Seite 392 [392]
DIMITRY VLADIMIROVICH KOCHENOV
spirit of the Treaties. It can be hypothesized that such developments as the ones
we witnessed over the last two years, could occur much earlier in the history of
EU’s constitutionalism. Yet, there was probably no overwhelming need for their
articulation before now. Indeed, as one remembers from school physics lessons,
where there is action — there is reaction. The presumption of compliance by all the
Member States’ authorities with the rule of law — criticized amply by one of the
present authors’? — has actually worked well until the moment when rule of law
and democratic backsliding became the main headache of the powers that be in
Brussels and other capitals. Indeed, should the backsliding continue, the very soul
of the Union would be emptied of any content: if it is not anymore a club of rule of
law-abiding democracies, the added value of the whole integration project comes
naturally questioned.’ The issue is thus not helping the Polish and the Hungarian
people to remain free. The very rationale of the Union as such is at issue.” Tomasz
Koncewicz is absolutely right: ‘undoubtedly, while this emerging rule-of-law case¬
law adds constitutional layers to the community of law, its reformative potential
and significance go clearly beyond the courtroom’.
ARTICULATING THE SUBSTANCE OF THE EU RULE OF LAW: DISCOVERING
THE IMPORTANCE OF JUDICIAL IRREMOVABILITY AND INDEPENDENCE
Appealing to the independence of the judiciary, which is one of the least questioned
crucial elements of the rule of law, in order to accomplish the transition from
restating presumptions to ensuring compliance is a move of towering importance,
especially considered in its simplicity. As explained by President Lenaerts: ‘It
follows that national courts or tribunals, within the meaning of Article 267 TFEU,
are, first and foremost, called upon to protect effectively the rights that EU law
Baden, Nomos, 1995, 629-640; Constantinos N. Kakouris, La Mission de la Cour de Justice
des Communautés Européennes et l’ethos du Juge, Revue des affaires européennes 4 (1994),
35-41.
5 Dimitry Kochenov, The EU and the Rule of Law -Naivete or a Grand Design?, in Maurice
Adams — Anne Meuwese - Ernst Hirsch Ballin (eds.), Constitutionalism and the Rule of
Law: Bridging Idealism and Realism, Cambridge, CUP, 2017, 419-445.
Tomasz T. Koncewicz, Understanding the Politics of Resentment: Of the Principles,
Institutions, Counter-Strategies, Normative Change, and the Habits of the Heart, Indiana
Journal of Global Legal Studies 26 (2019), 501-630.
Carlos Closa, Reinforcing of EU Monitoring of the Rule of Law’, in Carlos Closa — Dimitry
Kochenov (eds.), Reinforcing Rule of Law Oversight in the European Union, Cambridge,
CUP, 2016, 15-35.
Tomasz T. Koncewicz, The Supranational Rule of Law as First Principle of the European
Public Space — On the Journey in Ever Closer Union among the Peoples of Europe in Flux,
Palestra 5 (2020), 167-216.
+ 390 +