Oldal 389 [389]
OCR
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 widespread 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 competence to intervene (II.).° — Moreover, secondly, the Court of Justice has also articulated the core substantive 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 *
