Oldal 391 [391]
UPGRADING RULE OF LAW IN EUROPE IN POPULIST TIMES
TURNING THE PRESUMPTION INTO
AN ENFORCEABLE PROMISE
The most recent case-law reinventing EU’s rule of law calls for a new way of
approaching the Union: from a system of ‘declaratory’ rule of law,'* where the
adherence of the national authorities to this principle is merely a presumption,
the Union emerged as a constitutional system where this presumption is being
gradually replaced with a statement of full adherence to this statement as a fact,
which comes with a possibility of checking whether this presumption holds true
combined with a possibility to police serious deviations both in the political and
in the legal context. Leaving aside the political context of Article 7 TEU, which
has been analyzed in the literature in detail, this contribution focused on what
has been the most important set of developments in EU law over the last several
years and what is bound to be the core legacy of President Lenaerts’ Court: the
articulation of the rule of law as a workable principle of law applicable across the
legal orders in the EU. Indeed, if only an actual, as opposed to a declaratory, rule
of law system can lend its ‘constitutional’ characterization some truth, the EU is
only becoming a constitutional rule of law-based system now, in front of our eyes.
The swift transformation of the law at both supranational and the national
level that this fundamental shift entails is a result of the revolutionary case-law
over the last two years, since the Portuguese Judges ruling, where the Court for
the first time in EU history turned to Article 19(1) para 2 TEU in order to kill two
birds with one stone. Firstly, it gave clear EU law substance to the value of the
rule of law in Article 2 TEU, thus elevating the independence of the judiciary to
a new level both in theory and in practice in the context of the EU legal system.
Secondly, it found a way to articulate EU law jurisdiction in the cases involving
threats to judicial independence at the national level, de facto broadening the
material scope of EU law to a significant extent. It goes without saying that such
broadening, predicted by eminent scholars of the past, form Judge Kakouris to
John Usher," is rock-solid in terms of its legal grounding in the texts and the
8 Dimitry Kochenov, Declaratory Rule of Law: Self-Constitution through Unenforceable
Promises, in Jiti Priban (ed.), The Self- Constitution of European Society beyond EU Politics,
Law and Governance, Abingdon, Routledge, 2016, 159-179.
John A. Usher, How limited is the jurisdiction of European Court of Justice?, in Janet Dine
— Sionaidh Douglas-Scott — Ingrid Persaud (eds.), Procedure and the European Court,
London, Chancery Law Publishing, 1991, 72-84, 77; John A. Usher, General Course: The
Continuing Development of Law and Institutions, in Frank Emmert, Collected Courses of
the Academy of European Law, 1991, European Community Law. Vol II, Book 1, The Hague:
Martinus Nijhoff Publishers, 1992, 37-165, 122; Constantinos N. Kakouris, La Cour de
Justice des Communautés européennes comme cour constitutionnelle: trois observations,
in Ole Due — Marcus Lutter — Jiirgen Schwarze (eds.), Festschrift für Ulrich Everling, Baden
+ 389 +