In this blogpost, we argue that the ongoing rule of law crises in a number of EU Member States has led the EU into a 'soul-searching' process defined by two major exercises: one of reflection and one of reinvention
It is often said that we do not fully appreciate what we have till we are about to lose it. While it cannot be said that the European Union (‘EU’) did not appreciate the rule of law in the past – this being a fundamental principle upon which the European integration process has been based from the very early days– it is clear that the phenomenon of rule of law backsliding[1] constitutes a strong reminder of the centrality of the rule of law for the European project.
In this blogpost, we argue that the ongoing rule of law crises in a number of EU Member States has led the EU into a “soul-searching” process defined by two major exercises: one of reflection and one of reinvention. For that purpose, we will consider rule of law backsliding and highlight how it has impacted the notion of rule of law at EU level as well as triggered initiatives aimed to address systemic threats to the rule of law in the EU.
It is at the occasion of the 2012 State of the Union speech that Commission President Barroso highlighted the need to strengthen the foundations on which the EU is built, including rule of law, and raised the alarm about threats being brought to the legal and democratic fabric of certain European states[2] on the backdrop of the situation at the time in Hungary, which had passed a new Constitution removing a number of checks and balances and Romania, where the Government had ignored decisions of the Constitutional Court and changed referendum laws so as to make easier the impeachment of the President. It is here argued that this statement constitutes an important moment [3] in the soul-searching process that we aim to address in this blog post.
It is reasonable to say that the situation has worsened ever since. In Hungary, it has eroded to the point where a report has described the country as no longer being a democracy after the adoption in 2020 of an emergency law that allowed the government to rule by decree indefinitely[4], in Poland the judiciary is ever under greater threat since 2015 when the ruling party has attempted to replace five of the judges of the Constitutional Court and then remove its president[5], while Romania has been in and out of the spotlight in the past few years due to suggested modifications to the country’s criminal law code which would have granted amnesty for offences of corruption or made them more difficult to prosecute and punish.[6]
Populist politicians, not only from these countries but from across Europe, from Fidesz to the Brexit Party, have, throughout this time, put forward a number of criticisms in regard to the way rule of law is understood and applied by the EU, forcing the EU institutions into a soul-searching exercise about the origins and meaning of this concept.
Recurring criticisms have been very aptly presented and analysed elsewhere.[7] For the purposes of this blogpost, we will focus on the most prevalent one – the illiberal critique[8]. Put simply, this critique takes one of two forms:
A common thread underpinning both of these forms is that of an alleged conflict between democracy and the rule of law, where democracy is seen simply as the voice of the people expressed through vote. The proponents of this critique usually argue that the vox populi should prevail as it is the purest expression of democracy over the rule of law that is understood as a more technocratic – not to say elitist - source of legitimacy.
A telling example of how this criticism looks in practice, and which, very interestingly, is a mix between the two forms set out above comes from Hungary’s Justice Minister, who argues that rule of law has become a buzzword in the European Union which lacks well-defined rules and remains the subject of much debate (1). As a result, she believes that the EU institutions should pay greater respect to specifics of Member States and not try to impose an artificial, one-size-fits-all framework (2).[9]
Such claims encouraged not only the EU institutions but also commentators more widely to consider the evolution of the rule of law concept in the history of the European Project, the first appearance of which has been traced back all the way to the beginnings in Article 31 of the 1951 European Coal and Steel Community Treaty[10].
The next key moment in the history of rule of law in the European Project is the judgment of the Court in Les Verts[11] where it held that the Community is based on the rule of law. Following from this judgment, the Treaty of Maastricht sees multiple, though largely symbolic, references to rule of law being added[12] such as the Preamble of the 1992 TEU through which Member States confirm “their attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law” or Article 11 TEU and Article 177(2) EC which assign developing and consolidating democracy and the rule of law and respect for fundamental rights as the objective of both EU’s foreign and security policy and the EC’s policy of development cooperation. Finally, from 1997 the treaties refer to the EU as being founded on the principle of the rule of law.[13]
Reflection was also warranted on the diversity of legal systems when it comes to the rule of law. Two takeaway points from a Reconnect paper that focused on this reflective process[14] are relevant here (1) all constitutions of the EU27 make reference to rule of law, if not directly by name then to the principles that underpin it (rule of law is also recognised as a fundamental principle of UK’s unwritten constitution) and (2) it can be reasonably argued, having regard of (1) but also of the role of the European Court of Human Rights and of the EU itself, that ‘without ignoring or minimising the differences between national legal systems in Europe, one can however reasonably defend the view that legal understandings of the rule of law have largely converged’.[15] Credit for this process of convergence should also be given to the Venice Commission for its work in clarifying and streamlining the meaning of rule of law as well as for its interventions when the measures taken by a particular country threatened it.[16]
In the soul-searching process, reflection came together with reinvention. Reinvention in this case meant both new elements and improving the existing ones. During this process, first came the Commission’s Justice Scoreboard in 2013 as a tool to measure a country’s adherence to rule of law by looking at a number of indicators such as spending in the justice system and managing of the backlogs of the courts. It was followed in 2014 by the so called ‘pre-Article 7’ procedure meant to use the spectre of the “nuclear option”[17] as motivation for the countries in question to engage in dialogue and solve the relevant issues without the need to actually revert to triggering Article 7 and by the Council’s Annual Rule of Law Dialogue, a tool similar in terms of the nature of the goals it sought to achieve.[18]
Infringement proceedings have also been reinvented through the judgment of the Court in the “Portuguese judges cases” which made it clear that any national measure which undermines the independence of any national court which may hear questions of EU law may be directly challenged on the basis of Article 19(1) TEU.[19] This change has had a significant impact in the fight against rule of law backsliding, opening the way for – by now already numerous - proceedings brought against the measures taken in Poland which have resulted in landmark judgments.[20]
As part of this process, the Commission has also published a definition of rule of law in April 2019[21], which builds upon another definition published in 2014[22], in yet another attempt to put to rest criticisms related to the vagueness of this notion. Taking inspiration from the work of the Venice Commission, the Commission outlined the core meaning of the essential elements of this concept, stating that under the rule of law all public powers always act within the constraints set out by law, in accordance with the values of democracy and fundamental rights, and under the control of independent and impartial courts and enumerating a number of principles stemming from this concept such as legality, effective judicial protection and equality before the law.[23]
At the end of the same year, together with the new Commission also came new plans to address the rule of law crisis this being one of its main priorities as stated in the Agenda for Europe of President von der Leyen.[24] Here too one can see the tell-tale signs of the process of reinvention, for example in the way in which the European semester has been reinterpreted so as to be given a rule of law dimension.
One has to wait to see how effective these new tools will be. It would be reasonable to expect the Court, whose interventions have already had an important impact, to play an even greater role in this soul-searching process of reflection and reinvention. Perhaps even more so in light of the fact that it is itself the forum of a new rule of law controversy following the claims made by the departing AG Sharpston.[25] With that in mind, it seems clear that the soul-searching process is bound to continue for a while.
[1] For a detail discussion on rule of law backsliding see L Pech and KL Scheppele, “Illiberalism Within: Rule of Law Backsliding in the EU” (2017) 19 Cambridge Yearbook of European Legal Studies 3.
[2] J. Barroso, President of the European Commission, State of the Union 2012 Address, Plenary session of the European Parliament, Strasbourg, Speech/12/596, 12 September 2012.
[3] L Pech, ‘The Rule of Law in the EU: The Evolution of the Treaty Framework and Rule of Law Toolbox’
RECONNECT Working Paper No. 7, March 2020, available at
[4] Freedom House, “Nations in Transit 2020: Dropping the Democracy Façade”, available at: https://freedomhouse.org/report/nations-transit/2020/dropping-democratic-facade.
[5] See, for example, T Koncewicz, “Farewell to the Polish Constitutional Court”, available at: https://verfassungsblog.de/farewell-to-the-polish-constitutional-court/
[6] For a discussion on the rule of law backsliding in Romania see L Pech, V Perju and S Platon, “How to Address Rule of Law Backsliding in Romania”, available at: https://verfassungsblog.de/how-to-adress-rule-of-law-backsliding-in-romania/.
[7] “Meaning and Scope of the EU Rule of Law”, Reconnect, Workpackage 7, Deliverable 2, available at: https://reconnect-europe.eu/wp-content/uploads/2020/05/D7.2-1.pdf
[8] Ibid.
[9] J Varga, ‘Facts You Always Wanted to Know about Rule of Law but Never Dared to Ask ‘https://www.euronews.com/2019/11/19/judit-varga-facts-you-always-wanted-to-know-about-rule-of-law-hungary-view (Euronews, 22 November 2019) .
[10] L Pech, ‘The Rule of Law in the EU: The Evolution of the Treaty Framework and Rule of Law Toolbox’
[11] Case 294/83 Parti écologiste ‘Les Verts’ v European Parliament (1986) ECR 1339
[12] L. Pech, “The Rule of Law as a Constitutional Principle of the European Union”, Jean Monnet Working Paper 04/09
[13] Ex Article 6(1) TEU as modified by the Amsterdam Treaty: “The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.”
[14] “Unity and Diversity in National Understandings of the Rule of Law in the EU”, Reconnect, Work Package 7, Deliverable 1, Available at: https://reconnect-europe.eu/publications/deliverables/
[15] Ibid.
[16] “Meaning and Scope of the EU Rule of Law”, Reconnect, Workpackage 7, Deliverable 2, available at: https://reconnect-europe.eu/wp-content/uploads/2020/05/D7.2-1.pdf
[17] For a detail discussion on “the nuclear option” see L. Pech, “From ‘Nuclear Option’ to Damp Squib?”, available at: https://verfassungsblog.de/from-nuclear-option-to-damp-squib/.
[18] Several dialogues have taken place since this tool was implemented followed by concluions on best practices that were left rather vague. For a more detail discussion on the effectiveness of this tool see D. Kochenov and L. Pech ‘Monitoring and Enforcement of the Rule of Law in the EU: Rhetoric and Reality’ (2015) 11(3) European Constitutional Law Review 512.
[19] C-64/16 - Associação Sindical dos Juízes Portugueses EU:C:2018:117
[20] See, for example,
[21] European Commission Communication, Further strengthening the Rule of Law within the Union. State of play and possible next steps, COM(2019) 163 final, 3 April 2019. For further analysis, see D. Kochenov and L. Pech ‘Monitoring and Enforcement of the Rule of Law in the EU: Rhetoric and Reality’ (2015) 11(3) European Constitutional Law Review 512
[22] Commission Communication: A new EU Framework to strengthen the Rule of Law, COM(2014) 158 final/2, 19 March 2014.
[23] The full definition reads: Under the rule of law, all public powers always act within the constraints set out by law, in accordance with the values of democracy and fundamental rights, and under the control of independent and impartial courts. The rule of law includes, among others, principles such as legality, implying a transparent, accountable, democratic and pluralistic process for enacting laws; legal certainty; prohibiting the arbitrary exercise of executive power; effective judicial protection by independent and impartial courts, effective judicial review including respect for fundamental rights; separation of powers; and equality before the law.
[24] U. von der Leyen, “A Union that strives for more, My Agenda for Europe: political guidelines for the next European Commission 2019-2024”, July 2019, available at: https://op.europa.eu/en/publication-detail/-/publication/43a17056-ebf1-11e9-9c4e-01aa75ed71a1.
[25] See, for example, D. Halberstam, “Could there be a Rule of Law Problem at the EU Court of Justice?”, available at: https://verfassungsblog.de/could-there-be-a-rule-of-law-problem-at-the-eu-court-of-justice/