This is an editorial introduction to the theme of the Erasmus Law Review Vol. 2 No.1. Focusing on different relevant topics linked to the rule of law in the European Union, the contributions highlight both the ambiguity and broad scope of this notion, as well as its exceptional place in the European legal order; the application of the rule of law concept to a new, supranational legal order arguably being a contributing factor in this regard. The editorial introduction places the different contributions in perspective

Amtenbrink, F. (Fabian)

Erasmus University Digital Repository

INTRODUCTION:OBSERVING THE RULE OF LAW IN THEEUROPEAN UNION - SELECTED ISSUESWith the ratification of the founding Treaties of the European Communitiesand the subsequent Treaties which define today’s European Union, a newlegal order has been created which is distinct both from national law andpublic international law. In one of its most celebrated early judgments theCourt of Justice of the European Communities (ECJ) pointed out that bycontrast with ordinary international treaties, the EEC Treaty [now ECTreaty] has created its own legal system which has become an integral partof the legal systems of the Member States and which their courts are boundto apply. A central characteristic of this autonomous legal order is that notonly Member States are its subjects, but also their nationals. European lawimposes obligations on individuals and confers upon them rights whichbecome, as the ECJ has put it, part of their legal heritage. Mainly through thedevelopment of the doctrines of supremacy and direct effect of Communitylaw, arguably the two most important constitutional cornerstones of today’ssupranational legal order, a complex multidimensional system of governancehas emerged, in which both Member States and the European Union act in alaw-making and executive capacity. Ensuring the democratic legitimacy andlegality of the exercise of power, as well as the protection of the rights ofindividuals, in such a system is much more complex than in a state context.The concept of the ‘rule of law’ is anything but well-defined, despiteits wide acceptance and application. Indeed, while practicing lawyers, judgesand legal scholars make regular reference to the concept, its actual scope andimplications in today’s legal systems is rather vague. Different approacheshave been identified in the relevant literature which categorize the severaland sometimes rather diverse elements into formal, substantive andfunctional definitions of the rule of law.1 In search of a quantification of thephrase ‘rule of law’ Lord Bingham, former Lord Chief Justice of Englandand Wales, has suggested that the core of the rule of law should be1 For a short but informative overview see e.g., World Bank, ‘The Rule of Law as aGoal of Development Policy’ at <http://go.worldbank.org/DZETJ85MD0>(accessed 7 December 2008).2 Erasmus Law Review [Volume 02 Issue 01… that all persons and authorities within the state, whether public or private, shouldbe bound by and entitled to the benefit of laws publicly and prospectivelypromulgated and publicly administered in the courts.2He identifies a number of elements which are useful in further defining thescope of the rule of law: accessibility, intelligibility and predictability of thelaw; limiting the exercise of discretion in questions of legal right andliability in favor of the application of law; non-discriminatory contents andapplication of the law; adequate protection of fundamental rights; right ofunimpeded access to a court; exercise of state power within boundaries oflaw and possibility of effective judicial review; fair and transparentadjudicative procedures; observance of obligations in international law.Summarizing these elements it may be observed that the rule of law amountsto ‘… a system that attempts to protect the rights of citizens from arbitraryand abusive use of government power.’3These elements of a legal system combine a formal with a functionalapproach to the rule of law, in that they do not only describe certaincharacteristics of the law or the legal system, whose presence or absence canbe objectively observed and whose presence is considered desirable, but alsoallows for an assessment of how well a legal system performs certainfunctions which are believed to form a prerequisite for the rule of law.Prominently absent from Lord Bingham’s definition are elements moreclosely linked to the notion of democratic government. Indeed, the questionwhether democracy or democratic government forms an essential element ofthe theoretical concept of the rule of law remains subject of debates.However, in the constitutional reality of the European Union and its MemberStates, the exercise of power is closely linked to the concepts ofparliamentary democracy, the separation of powers, as well as responsiblegovernment. In this context the judiciary plays a particularly important role.As was observed by Lord Hope of Craighead in the famous opinion of theHouse of the Lords of Appeal in the cause Jackson and others (Appellants)v. Her Majesty’s Attorney General concerning the legal validity of theBritish Fox Hunting Act 2004: ‘The rule of law enforced by the courts is the2 The Rt. Hon Lord Bingham of Cornhill KG, House of Lords, Sixth Sir DavidWilliams Lecture: The Rule of Law (2006) University of Cambridge, Centre forPublic Law available at <http://www.cpl.law.cam.ac.uk/past_activities/the_rt_hon_lord_bingham_the_rule_of_law.php> (accessed 7 December 2008).3 H. Yu and A. Guernsey, ‘What is the Rule of Law’ University of Iowa Center forInternational Finance and Development, available at <http://www.uiowa.edu/ifdebook/faq/Rule_of_Law.shtml> (accessed 7 December 2008).2009] Introduction: Observing the Rule of Law 3ultimate controlling factor on which our constitution is based.’4The importance of the rule of law in the European Union as a quasi-constitutional principle was recently highlighted by the ECJ in joined casesYassin Abdullah Kadi and Al Barakaat International Foundation v. Counciland European Commission, where the Court had to decide, among otherthings, whether it was competent to review the legality of a CommunityRegulation which gave effect to an instrument of international law, i.e. theUnited Nations Financial Sanction Regime in the fight against terrorism.Answering this question in the affirmative, the ECJ emphasized that… it is to be borne in mind that the Community is based on the rule of law,inasmuch as neither its Member States nor its institutions can avoid review of theconformity of their acts with the basic constitutional charter, the EC Treaty, whichestablished a complete system of legal remedies and procedures designed to enablethe Court of Justice to review the legality of acts of the institutions.5Focusing on different relevant topics linked to the rule of law in theEuropean Union, the contributions to the present issue of the Erasmus LawReview highlight both the ambiguity and broad scope of this notion, as wellas its exceptional place in the European legal order; the application of therule of law concept to a new, supranational legal order arguably being acontributing factor in this regard. In his contribution Dimitry Kochenovcritically analyses the application of the rule of law as a supranational,Community legal construct, rather than a notion borrowed from the legalsystems of the Member States. The author builds the case for the adoption ofa substantive approach to the rule of law in the European context,emancipated from the different approaches in legal theory in the MemberStates, and rising above the level of a purely procedural safeguard.Interestingly, it is precisely these procedural safeguards which form thebackground to the contribution by Rachid Abdullah Khan and GarethDavies.They pose the rather provocative question, whether one of the mostimportant areas of European law, i.e. competition law and namely the law onmergers, can and should be referred to as law in the first place. Based on ananalysis of merger control exercised in the European Union, the authorsoffer evidence for the assessment that actual practice points towards a policyof ‘non-legal competition-regulation’ that may not be fully subject to the ruleof law. Finally, Wim Voermans’ paper focuses on the longstanding issue ofquality of European legislation. Indeed, poor legislation poses a seriouschallenge to the rule of law, as it may result in ineffectiveness, non-4 Jackson and others (Appellants) v. Her Majesty’s Attorney General concerning thelegal validity of the British Fox Hunting Act 2004 [2005] United Kingdom House ofLords Decisions 56 at para. 107.5 Joined cases C-402/05P and C-415/05P, Yassin Abdullah Kadi and Al BarakaatInternational Foundation [2008] ECR I-nyp21 at para. 281.4 Erasmus Law Review [Volume 02 Issue 01compliance and market distortions. Against this background, the authorcritically analysis the scope and effectiveness of policies and instrumentsthat have been put in place on the European level to improve the quality ofEuropean legislation. In this context it is emphasized that the outcome of anassessment of these efforts depends largely on the definition of the basicfunctions of European legislative instruments and the standards derived fromit.Fabian Amtenbrink

Introduction: Observing the Rule of Law in the European Union-Selected Issues

Abstract

Similar works

Full text

Available Versions

Erasmus University Digital Repository