The rule of law as a well‑established and well‑defined principle of EU law

Against increasing rule of law backsliding within the EU, the European Commission has presented the rule of law as a well-established and well-defined principle whose core meaning is furthermore shared as a common value among all Member States. In refute, the national governments of the two EU countries, which are both subject to special EU procedures on account of the systemic threat to the rule of law their repeated actions have caused, have claimed that the rule of law is neither defined in EU law, nor could it be defined in EU law. This article’s primary aim is to assess these conflicting assertions. It does so by first offering an overview of the EU legal framework on the basis of which it is shown that the rule of law, as asserted by the Commission, is a well-established constitutional principle of EU law. It furthermore shows that it is well-defined, not least because of the Court of Justice’s extensive case law, the European Commission’s definitional codification of it and most recently, the adoption of the Rule of Law Conditionality Regulation 2020/2092 which provides the first comprehensive allen compassing internal-oriented definition of the rule of law adopted by the EU co-legislators. This article furthermore contends that the EU’s understanding of the rule of law reflects what may be presented as a broad consensus in the European legal space on its core meaning and components; its legal use as a primary principle of judicial interpretation and a source from which standards of judicial review may be derived; and how the rule of law relates to other fundamental values. Finally, this article concludes by examining the reality of a potentially emerging East-West dissensus as regards the rule of law. In light of evidence of strong and widespread support for the rule of law in every single EU Member State in the face of top-down attempts to systemically undermine it, it is however submitted that there is no meaningful East-West divide but an authoritarian-liberal divide at elite level

The EU as a global rule of law promoter: the consistency and effectiveness challenges

This paper aims to examine the consistency and effectiveness of the EU as a global promoter of values by focusing on the rule of law, one of the key values on which the EU is based and which is also supposed to guide the EU’s external action. The paper first offers the diagnosis that the EU has failed to properly address a number of key issues: (i) what the EU seeks to promote under the heading ‘rule of law’; (ii) how it measures and monitors a country’s adherence to this principle and (iii) the disconnect between its external and internal policies and instruments. To address these issues, four key recommendations are made: (i) the adoption of a guidance note; (ii) the development of a transversal measurement and monitoring instrument; (iv) the adoption of a rule of law checklist and (iv) the revision of the role of EU Fundamental Rights Agency, with the view of transforming it into a ‘Copenhagen Commission’ with new powers and a broader geographical remit

A. Court of Justice. Judicial independence under threat: the Court of Justice to the rescue

The ECJ’s ruling in Associação Sindical dos Juízes Portugueses is nothing short of ground-breaking. First, it is arguably the most important judgment since Les Verts as regards the meaning and scope of the principle of the rule of law in the EU legal system. Second, it comes close to being the EU equivalent of the US Supreme Court case of Gitlow as regards the principle of effective judicial protection

Monitoring and enforcement of the rule of law in the EU: rhetoric and reality

This article offers a comprehensive examination of the rationale underlying the rule of law framework adopted by the Commission in March 2014 before outlining its main features. It is argued that while the Commission’s ‘light-touch’ framework falls short of what is required to effectively address internal threats to EU values of a systemic nature, it remains preferable to the new mechanism adopted by the Council in December 2014 and which consists of holding an annual rule of law dialogue among all Member States within the Council. To make the Commission’s framework more workable and effective, which should in turn increase its ‘dissuasive potential’, a number of modest recommendations are also offered at a time where an increasing number of voices are asking the Commission to activate the first phase its new mechanism in relation to Hungary and more recently, Poland

Respect for the rule of law in the case law of the European Court of Justice: a casebook overview of key judgments since the Portuguese Judges Case

In recent years, the European Court of Justice has strengthened the rule of law as a binding value within the EU. This change is the result of several landmark rulings in the period 2018 to 2021, which should be seen in the context of the decline of the rule of law in some Member States. Professors Laurent Pech and Dimitry Kochenov unveil a profound change of the EU as a constitutional system

Thinking justice outside the docket: a critical assessment of the reform of the EU's court system

The 2015 reform of the EU’s court system will go down in history as the most radical transformation of the EU judicial architecture since the establishment of the General Court in 1989. It doubles the number of General Court judges but also dissolves the Civil Service Tribunal. This article offers a critical assessment of these two major, structural changes, addressing both the process by which they were adopted and their overall merits. After providing a detailed examination of the reform’s tortuous legislative history and highlighting its unique underlying procedural feature – with the Court itself initiating the process – this article identifies and systematizes its major shortcomings. It criticizes the underlying diagnosis and the cure administered. It concludes by presenting this reform process as a missed opportunity to address, in a more holistic manner, the pressing non-docket related challenges facing the EU judicial system, in particular, to reform a governance structure which is no longer fit for purpose considering the massive transformation of the EU judicial branch since 1951

Upholding the rule of law in the EU: what role for the FRA?

The EU Fundamental Rights Agency (FRA) was established to provide evidence-based policy advice to EU institutions and Member States. By blending social science research with traditional normative work, it aims to influence human rights policy processes through new ways of framing empirical realities. The contributors to this volume critically examine the experience of the Agency in its first decade, exploring FRA’s historical, political and legal foundations and its evolving record across major strands of EU fundamental rights. Central themes arising from these chapters include consideration of how the Agency manages the tension between a mandate to advise and the more traditional approach of human rights bodies to ‘monitor’, and how its research impacts the delicate equilibrium between these two contesting roles? FRA's experience as the first ‘embedded’ human rights agency is also highlighted, suggesting a role for alternative and less oppositional orientations for human rights research. While authors observe the benefits of the technocratic approach to human rights research that is a hallmark of FRA’s evidence-based policy advice, they also note its constraints. FRA’s policy work requires a continued awareness of political realities in Brussels, Member States, and civil society. Consequently, the complex process of determining the Agency’s research agenda reflects the strategic priorities of key actors. This is an important factor in the Agency’s role in the EU human rights landscape. This pioneering position of the Agency should invite reflection on new forms of institutionalized human rights research for the future

Better late than never? On then European Commission's Rule of Law Framework and its first activation

This article first offers an overview of the European Commission's Rule of Law Framework, which was adopted in March 2014. The mechanism's potential effectiveness and the Commission's reasoning to justify its first activation against Poland in January 2016, when it has failed to do so against Hungary, are subsequently analyzed. While the Commission should be commended for seeking to address increasing rule of law backsliding at Member State level, our main submission is that reliance on the Rule of Law Framework alone, if only because of its soft and discursive nature, will not remedy a situation where systemic violations of EU values form part of a governmental plan to set up an 'illiberal' regime

The uses and abuses of constitutional pluralism: undermining the rule of law in the name of constitutional identity in Hungary and Poland

This article explains why autocrats love constitutional pluralism and constitutional identity. Though these concepts were developed by scholars and jurists with the best of intentions in mind, we explain why they are also attractive to and inherently prone to abuse by autocrats. We then describe how the regimes in Hungary and Poland have made use of these concepts in their drive to consolidate autocracy. We conclude that given the dangers inherent in constitutional pluralism and its susceptibility to abuse, it should be replaced with a more traditional understanding of the primacy of EU law