Defending the rule of law in the European Union

Abstract

This study explores the rule of law crisis in the European Union from a legal angle, with a focus on the regression of the rule of law within its Member States. Firstly, it examines the definition of the rule of law in EU law, including through the word of the Court. The focus is primarily on Article 2 TEU, which sets out a list of values on which the EU is based, including the rule of law. These values have the dual quality of being founding values of the Union and of being common among its Member States. The extent to which the rule of law can be enforced rests on this article and on whether it is merely declaratory in nature or legally binding and enforceable in a court of law. This question is addressed through a doctrinal analysis of the treaty provisions as well as jurisprudence. In parallel, contextual research is conducted to prove that the regression of the rule of law in EU Member States is not just real, but a veritable crisis posing an existential threat to the EU legal order and the Union itself. Secondly, this study presents a critical analysis of the current tools available in EU law to defend the rule of law, and their effectiveness. The treaty provides for two mechanisms in Article 7 TEU, a monitoring and a sanctioning mechanism. Yet, this nuclear option has never been used, largely because it depends on the political will of the Member States, which has been lacking. Secondary legislation now also provides for a new mechanism that conditions the payment of EU funds to the respect of the rule of law. However, this mechanism is limited in scope. In view of the inadequacy of the existing tools, the spotlight has turned on the ECJ, which has turned out to be a formidable champion of the rule of law. Thirdly, it brings together a set of recommendations for legal reform to improve the defence of the rule of law in EU law. Twenty recommendations are advanced, divided into three categories, namely: treaty changes, amendments to the procedural rules governing the ECJ, and a proposal for a new secondary legislation. The original and value-added contribution of this project culminates with draft legal amendments that incorporate these recommendations, including a draft Regulation on the establishment of a new Rule of Law Mechanism. These drafts are attached to this work as Annex I, II and III, and can serve as a basis for legal reform in this area. The conclusion of the study is that, not only is the rule of law a legal and constitutional principle of the Union, but it is also legally binding and the Union is legally mandated to defend it. However, since this goal cannot be sufficiently achieved with current tools, proposals are put forward to reform them and to establish a new Rule of Law Mechanism to strengthen the defence of the rule of law in the European Union.