Advocate General Ćapeta’s Opinion in Case C-225/24 of 12 February 2026 clarifies that, in contexts of systemic rule-of-law deterioration, compliance cannot be measured solely by legislative text, while also explaining the constraints of discretionary power in EU fund cases. This piece focuses on the first aspect of the Opinion: rule-of-law compliance must be assessed through effective implementation and attention to the broader constitutional environment. It argues that the Opinion articulates an evaluative logic for EU rule-of-law governance that is particularly significant in backsliding settings and foreshadows the standards required for constitutional reconstruction after illiberal rule.

The AG Opinion: compliance beyond legislative text

In Case C-225/24, the European Parliament challenged the European Commission’s decision to lift the suspension of certain EU funds to Hungary under the Common Provisions Regulation (CPR), following Hungary’s adoption of judicial reforms intended to satisfy the Charter-related horizontal enabling condition on judicial independence. The European Parliament argued that the Commission had acted prematurely and conducted a flawed compliance review, contending that some reforms had not yet entered into force, were not sufficiently implemented in practice, and that relevant contextual developments had not been adequately considered. Advocate General Ćapeta proposes partial annulment of the Commission’s contested Decision of 13 December 2023.¹⁾ While acknowledging that the Commission enjoys discretion in assessing compliance, the Opinion holds that once the Commission has defined concrete reform benchmarks, it is bound by them. Where those benchmarks require reforms to be “in place and being applied”, legislative adoption alone is not enough. The Commission must verify not only the entry into force and the effective implementation, which would strictly follow from the text “in place and being applied”, but also consider relevant legislative and practical developments within the broader constitutional context before concluding that the enabling condition has been fulfilled. If it departs from the defined conditions when deciding on disbursements, it must justify its decision to the Member State and to the public, particularly given that the decision concerns the release of EU funds.

As can be reconstructed from the Opinion, the Commission appears to have treated the approval decisions of 22 December 2022 as checklist-style benchmarks and their individual components as subject to flexible discretionary calibration (para 23). Hungary, for its part, approached the required reforms as discrete legislative text-production exercises, providing only the minimum it thought necessary to satisfy the specified conditions. Both actors thus operated within a formalistic compliance logic centred on legislative enactment: once the Hungarian Parliament passed the required amendments by inserting new provisions and formally repealing contested rules, the condition was deemed fulfilled, and disbursement could proceed. Such an approach aligns with the operational logic of a regime undergoing authoritarianization, where legal form is strategically deployed to demonstrate formal compliance and institutional normalcy without necessarily altering underlying power structures.

In contrast to this formalism, the Opinion reframes the Commission’s task as a functional and contextual evaluation. It makes clear that legislative adoption is not equivalent to implementation, that formal entry into force is not identical with practical effect, that compliance cannot be recognized where systemic risks remain unaddressed, and that relevant legislative and practical developments must be taken into account when assessing whether the enabling condition is fulfilled. As the Advocate General notes, the Court must be able to exercise judicial review by taking account of the Commission’s “adjustments for reality” (para 67). That “reality” cannot be reduced to a single legislative moment; it refers to the constitutional and institutional configurations in which reforms operate at the time disbursement is decided.

Two constitutional moves: from formal legality to effectiveness, and from isolated to systemic assessment

The AG Opinion therefore does two constitutionally significant things: it prioritizes constitutional effectiveness over formal legality, and it prioritizes systemic and contextual assessment over fragmented and static evaluation.

First, the Opinion, based on the language of the adoption decisions, adopts a functional understanding of compliance. Legislative amendments do not suffice. Where reforms must be “in force and being applied” (para 29), the Commission must verify that these requirements are actually satisfied (paras 73–74). Compliance concerns entry into force and institutional effect, not mere textual modification and enactment. This becomes clear, for example, in the assessment of the reform of the case allocation system. The relevant measures had not yet entered into force at the time of the contested decision (paras 79–88), and Hungary had not submitted the required report demonstrating that the new allocation mechanism was functioning as required (para 103). The Opinion rejects the idea that a formal enactment of changes alone could justify lifting the suspension. Application and implementation must be real and verifiable.

Second, the Opinion makes clear that reforms cannot be assessed in isolation from their broader constitutional environment (para 75). The amendment concerning preliminary references could not be examined abstractly: the Constitutional Court’s newly introduced power to issue an opinion on matters of national sovereignty in the context of a reference for a preliminary ruling and its potential chilling effect on judicial dialogue form part of the relevant environment in which the reform must be evaluated (paras 121–122). Likewise, broader institutional developments, including the Law on the Protection of National Sovereignty, constitute relevant contextual elements that should have been considered during the assessment of compliance (paras 124–128; see also the Opinion of Advocate General Kokott in Case C 829/24, where the insightfulness of this approach becomes clear ).

This systemic orientation also has a temporal dimension. Compliance cannot be treated as a snapshot fixed at the moment of amendment. If the institutional landscape changes before disbursement, the assessment must reflect that reality. The Hungarian case allocation system in the judiciary illustrates this point: a new system became applicable in 2024, replacing the one on which the Commission based its contested decision, and the Commission had prior knowledge about this change (paras 105–106).

Implications for authoritarianization and constitutional reconstruction

The Opinion’s significance extends beyond the immediate dispute over the release of funds. It bears on EU rule-of-law governance more broadly, on the evaluation of compliance under conditions of authoritarianization, and on the evaluation of legal reforms in processes of constitutional reconstruction after illiberal rule.

At first sight, the requirement that reforms be “in force and applied” may appear to reinforce formalism. One might argue that insisting on entry into force privileges legislative form over substantive transformation. However, within the Opinion’s structure, this requirement operates differently. It is embedded within rule-of-law constraints that transform it from a mere formalistic requirement into the mechanism of accountability, justification, and context.

The Opinion clarifies that while the Commission enjoys discretion in defining reform benchmarks under the CPR framework, once those benchmarks are codified, they bind the Commission. This is a straightforward application of the rule of law: an authority must adhere to the conditions it has defined. Compliance assessment thus becomes legally constrained rather than purely discretionary, while certain leeway is also acknowledged when justified. The Opinion insists on justification. If the Commission departs from its own defined conditions, it must provide a reasoned explanation (para 68). The duty to give reasons ensures transparency, enables judicial review, and prevents the silent relaxation of standards at the moment of disbursement. The Opinion embeds compliance assessment within a systemic and contextual framework. Verification that reforms are “in force and applied” is not a checklist exercise; it requires evaluation of institutional operation, practical implementation, and relevant developments in the broader constitutional environment. It serves the purpose of viewing the full picture: rule-of-law non-compliance, strategic amendment, surface compliance, and reform sequencing are deployed to entrench power while maintaining the appearance of legality, as in Orbán-led Hungary. This anti-formalist approach in the Opinion narrows the space for cosmetic reform, i.e., legislative adjustments designed to satisfy formal benchmarks while preserving the underlying structures of control. By insisting on implementation, justification, and contextual assessment, the Opinion raises the threshold for unlocking EU resources. It does not eliminate strategic legalism, but it makes it more difficult to deploy it successfully within the EU conditionality framework.

In this sense, the Opinion does more than discipline the Commission’s assessment practice by grounding it in the rule of law. It points toward a broader constitutional lesson: its evaluative framework creates structured incentives for the Member State to align with the rule-of-law requirements. Whether such alignment occurs remains contingent. It could signal a genuine shift toward constitutional reconstruction; alternatively, it may encounter continued resistance, framed politically as a defence of national sovereignty and legally as compliance with minimal formal requirements.

Constitutional reconstruction after illiberal rule

It also follows that the broader relevance of the Opinion’s reasoning becomes clearer in the context of constitutional reconstruction after illiberal rule. The reconstruction challenge differs from the one stemming from this case, but it confronts a structurally similar problem: how should legal systems respond when law itself has been used as an instrument of power consolidation? In such contexts, formal amendment may coexist with continued structural distortion. Captured institutions may persist beneath formally corrected legal texts. As debates surrounding the Venice Commission’s assessment of Poland’s judicial reform illustrate, a narrow formalist approach risks entrenching captured institutions rather than facilitating constitutional recovery. Reconstruction needs more than textual correction. It requires assessing how institutions have operated in practice and how reforms have interacted or will interact with the broader constitutional ecosystem before and after re-constitutionalization becomes possible. Even though Case C-225/24 concerns EU fund disbursement and is obviously not about post-illiberal reconstruction, the Opinion’s reasoning articulates an evaluative logic that is equally relevant to reconstruction: evaluative efforts cannot be reduced to legislative form when systemic degradation persists.

By insisting on effective implementation, contextual assessment, and reasoned justification, the Opinion thus reflects a deeper constitutional insight: legislation must be assessed in light of constitutional and institutional reality. Formal compliance (as in the case at hand) and formal legality (as in the reconstruction case) cannot serve as self-sufficient benchmarks. Both require attention to the functional operation of institutions and to the systemic environment in which legal reforms take effect.

The post Text Is Not Enough appeared first on Verfassungsblog.