![]() ![]() Section 3 will then address the consensual nature of the EU’s legal understanding of the rule of law most recently codified in Regulation 2020/2092. 2 of this article will examine the EU legal framework to show that the rule of law is on the contrary a well-established constitutional principle of EU law which is furthermore well-defined not least because of the Court of Justice’s extensive case law and the European Commission’s definitional codification efforts in the past decade. ![]() Footnote 8 It would follow that there is no such a thing as a binding and enforceable principle of the rule of law in EU law. Footnote 6 This conceptual challenge culminated in a legal challenge seeking the annulment of the EU’s Rule of Law Conditionality Regulation of 16 December 2020 Footnote 7 on the ground inter alia that the rule of law would neither be defined in EU law, nor could it be defined in EU law. Footnote 5 One may also refer to Hungary’s Minister of Justice who has presented the rule of law as a buzzword’ allegedly lacking ‘well-defined rules’ and which would remain ‘the subject of much debate’. Footnote 4 As examples of this ‘illiberal’ conceptual criticism, one may quote Poland’s former Minister of Foreign Affairs who promised ‘a horse and saddle or box of Belgian chocolates for anyone who finds the definition of ‘the rule of law’ in the Treaty or any other legally binding EU document’. Footnote 3 Addressing this conceptual relativism is however more crucial than ever considering the increasingly open conceptual challenge originating from authorities subject to special EU procedures on account of the systemic threat to the rule of law their repeated actions have caused. Indeed, the rule of law is regularly referred to as an ‘essentially contested concept’, a point first made by W.B. In a context of increasing rule of law backsliding within the EU itself, Footnote 1 the European Commission presented the rule of law in 2019 as ‘a well-established principle’, ‘well-defined in its core meaning’ which is furthermore ‘the same in all Member States.’ Footnote 2 This article’s primary aim is to assess the extent to which the European Commission is correct in asserting that the rule of law is a well-established and well-defined principle of EU law whose core legal meaning is shared across the EU.Ī focus on the (legal) meaning and scope of the EU rule of law may appear to some as a rather academic exercise at best, and possibly futile exercise at worst. In light of evidence of strong and widespread support for the rule of law in every single EU Member State in the face of top-down attempts to systemically undermine it, it is however submitted that there is no meaningful East-West divide but an authoritarian-liberal divide at elite level. Finally, this article concludes by examining the reality of a potentially emerging East-West dissensus as regards the rule of law. This article furthermore contends that the EU’s understanding of the rule of law reflects what may be presented as a broad consensus in the European legal space on its core meaning and components its legal use as a primary principle of judicial interpretation and a source from which standards of judicial review may be derived and how the rule of law relates to other fundamental values. It furthermore shows that it is well-defined, not least because of the Court of Justice’s extensive case law, the European Commission’s definitional codification of it and most recently, the adoption of the Rule of Law Conditionality Regulation 2020/2092 which provides the first comprehensive allen compassing internal-oriented definition of the rule of law adopted by the EU co-legislators. It does so by first offering an overview of the EU legal framework on the basis of which it is shown that the rule of law, as asserted by the Commission, is a well-established constitutional principle of EU law. ![]() This article’s primary aim is to assess these conflicting assertions. In refute, the national governments of the two EU countries, which are both subject to special EU procedures on account of the systemic threat to the rule of law their repeated actions have caused, have claimed that the rule of law is neither defined in EU law, nor could it be defined in EU law. Against increasing rule of law backsliding within the EU, the European Commission has presented the rule of law as a well-established and well-defined principle whose core meaning is furthermore shared as a common value among all Member States. ![]()
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