1 Mezinárodní právní revue číslo 1/2001 Prof. Dr. iur. Heribert Franz Kock Dean of the Law School and Dcputy Head of the Institute of International Law and International Relations and of the Institue of European Law děkan Právnické fakulty a zástupce ředitele Institutu ezinárodního práva a ezinárodních vztahů a Institutu evropského práva Heribert Franz Kock, Dr. iur. (Vienna), M. C. L. (Ann Arbor), ts full proťessor of law at the Johannes Kepler University oťlinz since 1981 and has been dean of the law school fro 1988 to 1994 and again fro 1996 onwards. His present ter oťofllce extends to He originated fro the University of Vienna, where he received the venia docendi in In 1979 he was ade tit. Associate Professor of the Vienna law faculty. His fields of teaching and research are public international law (including the law of international institution, European law (including the law of the European Union), and legal philosophy. He teaches at the University of Linz. the University of Vienna and the Danube University of Kres. He has given nuerous lectures at universities and other institutions in Europe and overseas. He is author, together with Peter Fischer, of thrcc standard textbooks on Public International Law, on International Organizations, and on European Law (Counity Law and the Law of the other iportant European regional organizations). In addition, he has published about 200 books, artieles, and contributions to copendia and encyclopediae in Austria and abroad. II. F. Kock is eber of nuerous scientific associations and corresponding eber of the Spánish Acadey of Science for Ethics and Politics. He has been repeatedly chairan of the Austrian Society of Public International Law and is presently Vice-President of the Austrian Association of European Law. Heribert Franz Kock, Dr. iur. (Vídeň), M. C. L. (Ann Arbor), v současné době profesor práva na Univerzitě Jana Keplera v Linci, zde působil jako děkan v letech 1988 až 1994 a poté od roku 1996 dosud. Ve funkci setrvá nejspíše do roku Svou profesní dráhu započal na vídeňské univerzitě, kde v letech 1974/75 získal venia docendi. V roce 1979 působí ve funkci asociovaného profesora Právnické fakulty ve Vídni. Ve své odborné práci se zaěřil na ezinárodní právo veřejné, spolu s právníi otázkai ezinárodních institucí, evropský práve a právní filozofií. Jako profesor působil na univerzitě v Linci, vídeňské univerzitě a Podunajské univerzitě v Kreži, na zahraničních institucích a univezitách. Společně s Petre Fischere je autore tří standardních knih o ezinárodní právu veřejné, ezinárodních institucích a evropské právu. K jeho publikační činnosti náleží přes 200 knih, článků a publikací v encyklopediích v Rakousku a zatlianu i H. F. Kock je člene řady vědeckých organizací a asociaci I í léne Španělské akadeie věd etických a politických. Opakovaně působil jako předseda Ral OUll i společnosti ezinárodního práva veřejného a dnes je viceprezidente Rakouské WKX lac< i vropského práva. International Law Review No. 1/2001 I. Chastising a Meber State - The European Union as a Reforátory Institution? (A propos the Sanctions of the Fourteen Against Austria) I. Origin of the "Austrian case" LA. The Declaration of 31 January 2000 Antonio Gutcrres, Portuguese Prie Minister and during the first six inonths of '<»()() President" of the Couneil of the European Union, 2 ' issued, on 31 January 2000, i declaration on behalť of fourteen of the EU's Meber States, 3 ' threatening Austria with certain sanction in case the Freedo Party (FPÓ) should becoe part of the new govcrnent to be fored as aconsequence of the parliáentary elections held on I ()ctober ) These sanctions cae into force when the new cabinet under Federal I lhancellor Wolfgang Schússel, a ÓVP 5, -FPÓ coalition governent, was sworn in on l Fcbruary LB. Bilateral sanctions It should be stated right at the beginning that these sanctions were not easures tuken by the European Union as such but only by fourteen partner countries against the Rfteenth. Although the Fourteen ade, for this purpose, use of the President of the I nuncii, it was not in this capacity that he could act; ř1) rather was he to be regarded the coon spokesan of the Fourteen. Moreover, the sanctions were declared to be of a bilateral nature and not intended to affect the sphere of the European Union or of the European Counity, respectively. II. The catalogue of "European values" Yet, we ay ask two questions: Are these sanctions legally adissiblc? And if the answer should be affirative, for which reason? Are they adissible becausc they are legally neulral, reaining in an area not governed by law and not interťering with rights of Austria? Or are they perissiblc because - although legally not neutral (not reaining outside the area governed by law and interfering with Austrian rights) - they are justified? In order to provide answers, it sees necessary first to answer the following (so-tosay preliinary) question: Do legally neutral sanctions exist at all? This sees to be an issue of distinguishing between legal atters on the one hand and political atters on "l~2~~
2 Mezinárodní právní revue číslo 1/2001 the other hand. All these questions lead us to the very core of the problé: If the sanctions taken by the Fourteen should not be neutral íro a legal point of view, if they should interiére with the rights of Austria - on which grounds could they be regarded justified? II.A. The notion of "European values" The ain arguent of these supporting the sanetions against Austria has been that Austria, by peritting the FPÓ to enter the governent, has violated the eatalogue of values of the European Union. 7) Now the notion of "values" oř "eatalogue of values" appears, if taken in abstraet, not to be suffieiently preeise, allowing everyone to understand it in a different anner. Moreover, in any legal systé - and therefore also in Union and Counity law - only those values ean be of legal relevance which are - either expressly oř by iplication - contained in, and reflected by, the law. Otherwise we would have an unacceptable conťusion of law and orals.*' II.A.l. Legal basis Thus, we have to infer the values of the European Union fro Union and Counity law itself. In doing so we have to bear in ind that we are not dealing here with a notion of values in a broad sense, coprising all kinds of valuable objectives and, in partieutar, econoic principles. Otherwise, object and purpose of the constitutional treaties would for, in their entirety, the values of the Union, quite independently of the hierarchical pláce the various objectives take in the systé of Union and Counity law. In connection with the sanctions of the Fourteen against Austria, the issue ís the alleged violation of fundaental values of the European Union. ILA.2. The fundaental values of the European Union The EU Treaty contains, in article 6, a definite eatalogue of values 9 * whose violation ay be sanctioned pursuant to article 7. The values listed in this eatalogue and called "principles" of the European Union, are identical with the traditional notion of the coon good and thus characteristic for that kind of State which is today regarded as providing the best conditions for its realization, náely the liberal and deoeratic State under the rule of law. 101 It is exclusively these values the violation of which - if serious and persistent - is sanctioned by the EU Treaty. 1 1) The fact that sanctions are provided for in such a case deonstrates that the European Union regards these values as fundaental and their violation as incopatible with the status of Mebership in the Union; and the fact that sanctions are provided for only in such a case indicates that other values, i. e. goals and principles of the Union, are not equally fundaental for it, and that for this reason it has not been considered necessary to sanction their violation through the proceduře laid down in article 7. International Law Review No. 1/2001 As regards violations of Counity Law, articles 226 and 227 EG Treaty becoe ipplicable providing for an action "for failure to fulfil an obligation under this Treaty" l2) 0r "for an alleged infringeent of an obligation under this Treaty" 13), respectively. 14) U.B. European values and participation in governent of the FPÓ Since the Fourteen invoked the participation of the FPÓ in the new Austrian governent as the ground for the iposed sanctions, the decisive question can only be Whether Austria has violated, by the inclusion of the FPÓ in the governent, the values listed in article 6 EU Treaty, or at least other values ebodied in Counity law. //./*./. Infringeent of the fundaental values of the European Union? The provision which has to be considered First is article 7 EU Treaty (as aended by the Treaty of Asterda). Para. 1, applicable here, speaks however of "a serious el persistent breach by a Meber State of principles entioned in article 6(1)"; it is only in this case that the Council, acting under article 7 (2), ay decide to suspend l ertain rights deriving for the State concerned fro ebership in the Union. It follows fro the wording of the article 7(1) that not each and every breach of the fundaental principles of the Union warrants the sanctions envisaged in para. 2; the breach has to be serious and persistent. For a breach to be serious, the conduct which.ilíccts these principles oraný one of the as well as the consequences of this conduct have to be considered as serious. As regards the conduct of the Meber State concerned, the test to be applied for its characterization as serious will be siilar to that which the European Court of Justice has worked out in its case law on Meber State responsibility for breach of Counily law; according to the Court, the breach ust be a qualified one. As regards the Consequences, the breach, for qualifying as serious, has to touch the very essence of the principles in question; erc violation of one of their peripheral aspects will not be sufficient. Moreover, a suspected threat of a breach of any of the said principles can nevěr coe under article 7(1). because a threatening violation is a violation that has not yet been coitted; and a violation that has not even yet been coitted can nevěr be a persistent violation. The character of the FPÓ Yet, the question of how article 7 EU Treaty is to be correctly interpreted has no decisive bearing upon the Austrian case because the Fourteen have not anyway ever claied that there existed, in Austria, a situation as envisaged by that provision. In fact, a sober consideration of all the circustances which perit a judgent of the character of the FPÓ and of its leading personalities will coe to the conclusion that 14 15
3 Mezinárodní právní revue číslo 1/2001 International Law Review No. 1/2001 the party's participation in the new governent does not constitute a violation of the Unioiťs fundaental values by Austria. In the past, i. e. during the period when it was the biggesl opposition party in the Austrian National Council, l5) the conduct of the FPÓ could be characterized as populist; and since it regarded as its ain political opponcnt the Sociál Deocratic Party (SPÓ), a grouping oťthe left, it ight be correct to say that the FPÓ has been right (or even right-wing) populist. However, as regards the criteria generally required for characterization of a party as extrée or radical (whcther right or left), viz. Parteiengeselz (law on political parties), Verbotsgesetz (law prohibiting neo-faschist activities), Artikel 9 und 20 Staatsvertrag von Wien 1955 (treaty of Vienna),,6) none of the can be said to apply to the FPÓ. Political Parties in the liberal and deocratic "Rechtsstaat" As the case ay be, any dispule about such characterization of the FPÓ is at any rate besides the point. Theoretical requireents - a European iniu standard A liberal and deocratic State under the rule of law (a State aptly called ''Rechtsstaat" in Geran legal writing) does not, by its very nature, know of any party which could at the sae tie be legally acceptable and politically so objectionable that it would be perissible to ipose sanctions upon the State where this party fors part of the governent. What is required fro a party can be derived fro the idea of the liberal and deocratic State under the rule of law itself. 17) The European Court of Huan Rights has repcatedly had the opportunity to deal with the question of when a party could be said to be copalible with the systé of values as contained in the European Convention of Huan Rights (ECHR). 1S) According to this Court it suffices for a party to subit to the deocratic rules and does not put in question the deocratic and liberal systé and the rule of law. 19 ' A party which seeks the power through other than deocratic eans and which akes it sufficiently clear, either expressly or by iplication, that it has the intention to do away with deocracy, frecdo, and the rule of law, leaves the coon ground constituted by the political consensus necessary even in a plurálistic society, and thereby loses the protection of the very systé it wants to abolish. 2()) Therefore, it ay be prohibited. 2 " Even ore: it is part of the function of those who for the governent to vvatch ovcr this systé, and to guard it against any attept to encroach upon it, coencing, iť need should be, the necessary proceedings against its foes. Unfortunately, this duly is nowadays often neglected. 22) Practical requireents - the inialist standard of the European Union This is certainly a deplorable fact; but it ust be taken into account when establishing the iniu standard existing in the various Meber states of the European Union with regard to the question of whether a party ight be acceptable, or even worthy, as part of a governent. We ay content ourselves with a few exaples - participation of the Alleanza Nazionale, the successor to the neo-fascist party, in the [talián cabinet of Berlusconi fro 11 May 1994 to 22 Deceber 1994, 23) participation Ol the Counist Party in the present cabinet Jospin in France since 1997, 24) the support for, and participation in, the governents of various coponent states of the Federal Republic of Gerany of the Party of the Deocratic Socialis (PDS), a blatant luccessor to the forer SED in the GDR 2 5 ) 26) - in order to show that no high-level requireents exist for qualification as a governing party, especially in the "big" Mebei States of the European Union. 27 ' The only eriterion sees to be the clai not to aspire to power through other than deocratic eans; 2S) a clai the credibility of which has, so far, nevěr been verified or l.ilsified, be it for the fortunate lack of opportunity to act otherwise. The Austrian case and the European double standard Copared with the reservations that could be ade against the participation in governent by parties of the extrée right and left in Italy, France, and Gerany, participation of the FPÓ in the new Austrian governent has to be considered as copletely innocent; for so far nobody has reproached it with seeking power by other than deocratic eans or with the intention of abolishing deocracy, freedo, and the Mile of law, if it should coe into power. By setting the above-entioned precedents, Italy, France, and Gerany have lost Rol only the ora] but also the legal right to call participation in governent by the PPČ a violation of the fundaental values of the European Union; these States have to face not only the well-known principle of international law of tu quoque 29 ' but also the generál legal conclusion a aiori ad inus. 3()) Moreover, the pact between the Spanisch Socialist Party and the Spanish Counisls, an abortive attept to win the parliaentary elections of 2000, 3I) has not even i Rised official protest on the part of any other Meber State of the European Union, let.ilonc the threat of sanctions in case the Spanish governent should be fored with participation of the Counist Party. And the stateent by the Geran Federal Chancellor Gerhard Schroder Italy would have to reckon with siilar sanctions if the Neo-Fascists should again becoe part of the Italian governent roused such a stor of indignation in Italy that Schroder, who \\,is not seconded by any other Head of State or Governent in the European Union, li.nl quickly to retract his stateent. 32 ' ( riícriafor legality Fro all this it ay be concluded that the Meber States of the European Union have so far not developed any standard which would perit the questioning of the participation in governent by a certain party with regard to "European values", as long as this party has not violated the deocratic rules. And participation in governent!-\ a party sees to constitute already in itself a presuption for its eligibility. 33) 16 17
4 Mezinárodní právní revue číslo 1/2001 International Law Review No. 1/2001 The observance of deocratic rules of proceduře on the doestic level For these reasons the only criterion for deciding whether a party which has attained participation in governent fulfils the necessary requireents is the actual effect its participation has on the copliance with the obligations of the Meber statě concerned under EU or EC law including, of course, the obligation to respect the principles of the European Union as ebodied in article 6(1). The observance of the obligations under the EU/EC Treaties on the Counity level Consequently, participation in governent by a party is not unlawful as long as such participation does not lead to an actual violation of the EU or EC law. And none of the fourteen partner countries of Austria in the European Union has alleged so far that participation in governent by the FPÓ would constitute in itself a violation of the fundaental principles contained in article 6 EU Treaty or of any other Austrian obligation under the constitutional treaties. Actually, if such had been the case, recourse could have been had to the proceduře laid down in article 7 EU Treaty or articles 225 and 227 EC Treaty, respectively; it would then not have been necessary to resort to sanctions outside the fraework of EU and EC law, the so-called bilateral sanctions of the Fourteen. But none of the has even alleged that participation in governent by the FPÓ would per se warrant instituting of proceedings under article 7 EU Treaty; and the sae applies to the proceedings under articles 226 and 227 EC Treaty. 34) This is an (at least indirect) recognition of the fact that a Meber State which does not violate the eatalogue of principles as contained in article 6(1) ay not be reproached with a breach of fundaental values of the European Union; and a Meber State which, oreover, does not violate any other obligation under counity law ay not be reproached with the violation of values of the European Union at all. II.B.2. The sanctions provided for in case of an infringeent of European (fundaental) values Sanctions according to article 7 EU Treaty EU law does not know either of fundaental values other than those contained in article 6 EU Tretay or, in case of violation of such values, of proceedings other than that provided for in article 7. 35) Therefore, a Meber State which does not infringe upon the principles listed in article 6, cannot be reproached with breach of fundaental values of the European Union. Sanctions according to articles 226 and 227 EC Treaty This is equally true for the so-to-say "siple" values ebodied in Counity law and for the proceedings provided for in articles 226 and 227 EC Treaty for their enforce- ent. 36) Therefore, a Meber State which does not violate obligations under Couly law cannot be regarded as breaching other any other values of the EU/EC systé. ()lher sanctions - no legal basis \ "dosed" (exhaustive) eatalogue of sanctions Consequently, outside the fraework set up by articles 6 and 7 EU Treaty and.ii tic les 226 and 227 EC Treaty 37) there does not exist, in Counity law, any basis for inctions against a Meber State. (If we say "in Counity law" we ean that the I IÍ/EC systé ofťers neither a ground that ay be invoked for the justification of any tuch sanctions nor a proceduře by which they ay be iposed.) Nowhere can be found, in Counity law, a link between alleged violations of v ftlues of the European Union or the European Counity and (bilateral or any other l llld of) sanctions taken (or to be taken) by Meber States. Moreover, such sanctions cannot be based on generál international law either, for if there exists no violation of such (fundaental or "siple") values, the basis for sanctions is equally lacking here. 3K) Doestic political freedo - a fundaental European value On the contrary: a Meber State which is not in breach of the fundaental values in article 6 EU Treaty or of other obligations under EU/EC law is free in olding its Interna] legal order and its internal policy. It is part of the principles of freedo and íeoeracy ebodied in article 6 EU Treaty that the other Meber States have to i espect this legal and political doaine réservé including the foration of a governent lhal has the support of a deocratically elected pari i aen t. H.B.3. Participation in governent by the FPÓ - an act <>f European iorality? It is generally recognized that the relations between States are not regulated by law I legal rules) only but also by the precepts of orals (the so-called international oi.ils) and of orderly anners (the so-called courtoisie or international courtesy). 3y) All ihree areas should not, of course, be confused. How ay they be distinguished fro each other, and what are the consequences of the distinction? 40 ' EÍIW International law is fored by those (relatively liited) body of rules the observaiion of which is regarded as so iportant for the coexistence of States that their viola- Hon will, or at least ay, entail enforced sanctions. In contrast to doestic law, the purpose of these sanctions is, unless in exceptional cases, not the punishent of the perpetrator but the execution of the nor concerned. 4 " Ti""
5 Mezinárodní právní revue číslo 1/2001 International Law Review No. 1/2001 Morals International orals are based on certain values coon to all (civilized) States. 42) The exaple usually given is the oral duty to render assistance to a State in a case of eergency. 4?) Of course, not all of these values are really generally recognized by all ebers of the international counity; this is a consequence of the fact that society - the national as well as the international - is pluralist. 44 ' Morals in a pluralist society This pluralis, based on a variety of philosophical and other convictions (what is properly designated by the Geran ter Weltanschauung), 45 ' has its counterpart in political pluralis: there exists a variety of conceptions about the shaping of policies, partly as regards the extent and the ways and eans of political interference in sociál affairs, partly over the objectives to be pursued. That it is legitiate to have different views and to hold different beliefs in sociál atters is recognized in all deocratic and liberal States with the rule of law, although it ay not yet have been understood and accepted by all ebers of society. It follows for the doestic doaine that it is essential for a pluralist society to respect different positions, with regard to Weltanschauungen as well as with regard to politics. Different views do exist and ay legitiately be held. Excursus. Law in a pluralist society Liberal and deocratic "Rechtsstaat" versus totalitarian systé Pluralist society has its constitutional corollary in a liberal and deocratic State under the rule of law. 46) This kind of State is characterized by fundaental rights which are recognized by the State's legal order 47 ' and which ay be enforced by legal procedures provided for therein. 4S) Where the necessary legal protection of these rights does not exist we ay speak of a police State; and where pluralis as such is negated, we are confronted with a totalitarian systé. The nature of the liberal and deocratic "Rechtsstaat" If we describc the liberal and deocratic State under the rule of law ore dosely, the adjective "liberal" indicates that different opinions, but also different political oveents and objectives ay coexist. In this connection we ay refer in particular to freedo of religion, 49 ' of opinion 5()) (including the freedo of speech), 5n and of assebling and foring associations. 52) "Deocratic" eans that the people has the right to decide itself about the political course to be pursued, ainly by eans of periodically held free elections. 53) The deterination of policies is free in principle but finds its liits in the fundaental rights just entioned. Thus, a balance between a necessary argin for policies and the scope of existential liberties for the individuals is established.* >4) The "rule of law" deands that freedo 551 and deocracy are fintily ebodied in the national legal order 5(,) (and especially in the constitution 57 ', and that the fundaental rights of the individual, both civic and political, ay be enforced by legal eans. 5H) A State under the rule of law (Rechtsstaat) has therefore also to be a State where the necessary legal institutions and proceedings for the enforceent of those fundaental rights exist (such a State being aptly called Rechtswegestaat in Geran legal terinology. 591 The relationship between law and politics (>n the doestic level The relationship between law and politics is governed by Kanťs forula: It is the i.isk of the law to ake the freedo of the one copatible with the freedo of the Other under a generál rule. 60 * The political freedo of the ones (náely those in po- \wi) to shape sociál structures according to their ideas finds its liit in the fundaental freedos and political rights of the others (náely those not in power). (>n the international level What has just been said with regard to the relationship of law and politics on the doestic level is applicable utatis utandis also on the international level. Here, too, ho Slate. and no group of States, has a vocation for iposing its own political position Upon another State. M) This generál rule applies especially to each StateVs right to decide about its own internal politics; for as long as the doestic affairs of a State have no bearing on its obligations under international law they are not open to interference on the part of another State or of the international counity as a whole, even in its organized for. 62) Political freedo as an international fundaental right Of course, every State and every group of States possesses a considerable argin Of political diseretion concerning its international relations with another State. Howe- VCr, this diseretion finds its liits in the rights of that other State, and not only in its fundaental rights 631 but also in any other rights that pertain to it under universal or regional international law, whether ebodied in a treaty or in established custo. ň4) III. Excursus. Sanctions in international law III.A. Reprisals It is not allowed to interiére with these rights unless the other State has itself coitted a violation of international law. 65) In this case counter-action is peritted; and it is lered a (licit) reprisal. 66) Thus, the reprisal is to be regarded a sanction under international law. f,7) Since reprisals ay only be taken in response to a violation of law by 20 21
6 Mezinárodní právní revue číslo 1/2001 the other side, the politics of a State, as long as they do not result in this State eondueting itselť in an illegal anner, ofťer no basis for reprisals. To enforce a particular policy against another State which pursues another political course only without breaching any international obligation would not be justified and therefore legally illicit. III. B. Retorsions Besides the reprisal, international law provides also another answer to an illegal, or at least unfriendly, act by State, náely retorsion. 6S) The retorsion (soeties also called retortion or retaliation) is itself an unfriendly act 69) which thus does not interiére with the rights of the other State. As just said, the condition for it is an act by another State that has to be characterized at least as unfriendly; 70 * as an answer to an illegal act, retorsion ay be considered also as a sanction of international law, albeit in the broader sense of the ter only. 71) IV. The sanctions iposed by the Fourteen as retorsions? International Law Review No. 1/2001 No negative attitude taken by Austria We have already deonstrated that internal politics in a Meber State which do Ol go beyond what is perissible in a liberal and deocratic State under the rule of l.iw ay not be regarded an unfriendly act against the other Meber States. 73 * Therefo- M\ the conduct of Austria towards its partners in the European Union is not adversely iffected by the FPÓ's participation in governent. No relevant consequences for the Fourteen Soeties it is argued that various other Meber States - and especially those \\ hic h had played a leading role in connection with the sanctions iposed on Austria 74) would have probles of their own with right-wing extreis 75 * and would therefore I Onsider theselves negatively afťected by participation in governent of the FPÓ. I lowever, this arguent is not valid because of at least two reasons. No negative exaple First of all, the FPÓ - as we have already shown 7M - cannot be considered an IKtreist party, but (at the ost) a populist one. Thus, its participation in governent tfoes a priori not set any negative exaple for extreist oveents in other Meber Slales. There can be no doubt that the sanctions taken by the Fourteen against Austria constitute at least an unfriendly act. This is not even disputed by the but explicitly intended: through international unfriendliness pressure shall be exercised on Austria. To be qualified as retorsions these unfriendly acts would have to be the answer to an (at least) unfriendly conduct on the part of Austria. 72 ' IV.A. Possible justification of these retorsions? This poses the question for the justification of retorsions of this kind. IV.A.l. Participation in governent by the FPÓ as an unfriendly act? May the participation in governent by the FPÓ be considered an unfriendly act of Austria vis-a-vis the other Meber States of the European Union? Fulfilent of the requireents for the characterization of an act as unfriendly? We could speak of such an unfriendly act only if the conduct of Austria towards the other EU countries, and consequently these countries theeselves, were negatively aťfected by the participation in governent of the FPÓ. fva.2. Illicit instruentalization of Austria Second, effects on other Meber States would have to be of such a nature as to HI il to speak of a connection between the Austrian situation and their own. Howewi, such a connection ay not be established for the siple fact that it is incubent»>n the other Meber States to set up and aintain conditions in their internal afťairs lhal are copatible with a liberal and deocratic State under the rule of law. Since they ay not interiére with the internal politics of another State as long as ihc latter does not leave the coon legal basis - which is, again, freedo, deocra- I \, and the rule of law, not less, but also no ore -, 77 * they also do not have the right to lhape their own internal politics by interfering with the internal politics of another Slale. In such a case, the other State would be instruentalized for their own political objectives, and this would be incopatible with, and a violation of, this State's fundaental rights. 7<S) The arguent it were necessary to resist the "origins" in Austria in order to prevent loething ''even worse" in other Meber States, 79 * is therefore not perissible; and the iaginary causa! nexus between the participation in governent by the FPÓ and a possible rise of right-wing extreis in other Meber States exists, if at all, only insofar as their artificially creating an extreist bugbear in Austria fosters right-wing extreis in their own countries, since it attributes to it an iportance it has lacked so far, and thus calls it into being or even to the political foreťront. 22