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UPGRADING RULE OF LAW IN EUROPE IN POPULIST TIMES
DISCOVERING THE RULE OF LAW — REINVENTING THE UNION
In dealing with the Rule of Law backsliding in the EU, the Court of Justice
managed to turn the proclamation-based rule of law value of Article 2 TEU into
an enforceable substantive principle of law, spanning across both the EU and
national legal orders. In discussing these issues it is important to fully realise the
fact that the rule of law and democracy backsliding problems occur in the EU
does not point in the direction of any specificity of the Union: defiance is wide¬
spread in federations, as R. Daniel Kelemen, inter alia, has demonstrated, using
the US as an example. The EU is thus not that special.* What was special about
the EU is that although adherence to the rule of law has always been praised as an
essential feature of its constitutionalism, the Union possessed — so it seemed — no
competence to intervene in the cases when backsliding occurred at the national
level.* And of course there is nothing close to the US National Guard in the
European Union to help restore law and order in the recalcitrant Member States.*
The competence lacuna had to be filled sooner or later, allowing the EU to
graduate into a true constitutional system that actually stands by its principles? —
and the case-law of the last three years could be interpreted as starting precisely this
kind of transformation. Given its vital importance combined with its innovative
nature, one could characterize it as a welcome power grab — an organic part of
the usual incrementalism in EU law’s development, but going further than usual
this time. What were the main aspects of this development? Four interrelated
component parts can be identified.
— The Court has managed, firstly, to turn the presumption of compliance with
the rule of law into an enforceable promise backed by the necessary compe¬
tence to intervene (II.).°
— Moreover, secondly, the Court of Justice has also articulated the core substan¬
tive elements of the supranational rule of law,’ which it had the competence
R. Daniel Kelemen, Europe’s Other Democratic Deficit: National Authoritarianism in
Europe’s Democratic Union, Government and Opposition 52 (2017), 211-238.
3 But see Carlos Closa — Dimitry Kochenov — Joseph H.H. Weiler, Reinforcing the Rule of
Law Oversight in the European Union, EUI RSCAS Research Paper (2014).
Mark Tushnet, Enforcement of National Law against Sub-National Units in the United
States, in Jakab, Andras — Dimitry Kochenov (eds.), The Enforcement of EU Law and Values:
Methods against Defiance, Oxford, OUP, 2017, 316-325.
5 Cf. Andrew Williams, Taking Values Seriously: Towards a Philosophy of EU Law, Oxford
Journal Legal Studies 29 (2009), 549-577.
Case C-64/16 Associaçäo Sindical dos Juizes Portugueses v Tribunal de Contas
EU:C:2018:117.
For a now classical account, see, Laurent Pech, The Rule of Law as a Constitutional Principle
+ 387 *