page
Understanding the Best Practices
in the Area of the Rule of Law
Barbara Grabowska-Moroz
with the assistance of Dimitry Kochenov
Carlos Closa (annex)
DISCLAIMER
This project has received funding from the European Union’s Horizon 2020 Research & Innovation programme under Grant Agreement no. 770142. The information in this deliverable reflects only the authors’ views and the European Union is not liable for any use that may be made of the information contained therein.
DISSEMINATION LEVEL Public
Project: GA:
Horizon 2020: Funding Scheme:
RECONNECT – Reconciling Europe with its Citizens through Democracy and Rule of Law 770142
H2020-SC6-CULT-COOP-2017-two-stage Collaboration Project
Understanding the Best Practices in the
Area of the Rule of Law
Work Package 8 – Deliverable 8.1
Due date: 30.04.2020
Submission date: 30.04.2020
Lead beneficiary: University of Groningen
Authors: Barbara Grabowska-Moroz
Dimitry Kochenov (assistance and referencing) Carlos Closa (annex)
Content
1. Introduction ...5
2. Rule of law practices as an indispensable element of the adherence to the rule of law ...6
2.1. From the rule of law standards to the rule of law practices ...6
2.2. Types of rule of law practices ... 10
2.2.1. Institutional practices ... 10
2.2.2. Procedural practices ... 14
2.2.3. Political practices ... 16
3. Looking for best rule of law practices at the national level. ... 18
3.1. Institutional practices ... 19
3.2. Procedural practices ... 23
3.3. Political practices ... 28
4. Rule of law practices in the European Union – dual role in times of crisis ... 34
4.1. Rule of law practices and the EU institutional architecture ... 35
4.2. Procedural rule of law practices in the European Union ... 38
4.3. Political rule of law practices – EU institutions and Member States ... 42
Conclusions ... 47
1. Introduction
*Despite the enormous volume of literature on rule of law issues from European and world-wide perspectives, the ongoing debate regarding the so-called ‘rule of law crisis’ in the European Union (EU) has provoked numerous questions concerning the essence of the rule of law and its practical implications. Investigating the practices of the rule of law is essential for the ongoing debate about the limitations of EU actions regarding the rule of law protection in the EU Member States. ‘Many states may claim that they are subject to the rule of law but often these claims can be peeled away to reveal practices that hardly accord with all the elements that might plausibly be drawn from the definitional debates.’1
Dealing with the rule of law was often seen as ‘too academic or at least impractical, too sophisticated and certainly completely out-dated.’2 The ‘rule of law turn’3 observed in the last
years has refocused the approach to the rule of law as a concept affecting everyday application of EU law in the Member States. It has made the rule of law research more interested in practical aspects thereof.
Research on rule-of-law practices based on comparative methods shows numerous obstacles starting with definitional debates about the scope of the rule of law, and about common standards and tools available to ‘measure’ the rule of law situation in a given jurisdiction. The concept of ‘measuring the rule of law’ has been comprehensively conducted inter alia by the World Justice Project (WJP).4 In its 2019 report the WJP explains that the rule of law is a
framework of laws and institutions that embodies four universal principles: accountability, just laws, open government and accessible and impartial dispute resolution.5 The authors of the
WJP methodology clearly admit that ‘societies have different rules and institutions to establish the rule of law’ and comparing those institutions ‘is not meaningful unless we evaluate their merits or failures across a range of assessment criteria removed from contextual factors.’6 One
of the consequences of such an approach is that the WJP Rule of Law Index ‘measures adherence to the rule of law by looking at policy outcomes’.7 The research shows that not only
the measurement strategy but also expert perceptions are relevant when measuring the rule of law and when applying rule of law indicators.8
* Maciej Owidzki’s help with this paper is gratefully acknowledged.
1 Christopher May, The Rule of Law. The Common Sense of Global Politics (Edward Elgar 2014) 38 (hereafter May,
The Rule of Law).
2 Thomas von Danwitz, ‘Values and the Rule of Law: Foundations of the European Union – An Inside Perspective
from the ECJ’ (2018) 21 PELJ 2 (hereafter von Danwitz, ‘Values and the Rule of Law’).
3 Amichai Magen, ‘Cracks in the Foundations: Understanding the Great Rule of Law Debate in the EU’ (2016) 54(5)
JCMS 1058 (hereafter Magen, ‘Cracks in the Foundations’).
4 Juan C. Botero and Alejandro Ponce, ‘Measuring the Rule of Law’ (2010) The World Justice Project Working Paper
Series WPS No. 001 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1966257> accessed 1 February 2020 (hereafter Botero and Ponce, ‘Measuring the Rule of Law’).
5 WJP, Rule of Law Index 2019, 9.
6 Botero and Ponce, ‘Measuring the Rule of Law’ (n 4). 7 WJP, Rule of Law Index 2019, 8.
8 Mila Versteeg and Tom Ginsburg, ‘Measuring the Rule of Law: A Comparison of Indicators’ (2017) 42(1) Law and
Social Inquiry 124; Mila Versteeg and Tom Ginsburg, ‘Constitutional Correlates of the Rule of Law’ in Maurice Adams, Ernst Hirschballin and Anne Meuwese (eds), Constitutionalism and the Rule of Law. Bridging Idealism and Realism (CUP 2017) 506.
The paper analyses the main rule of law practices – both in the EU Member States and in the EU institutions. Those are practices which result from the rule of law theoretical framework and international standards, but also which might negatively affect the rule of law. In order to highlight why a given practice shall be considered as a positive one, a broader context might be needed. In consequence as the paper concentrates on best practices, it also analyses those which undermine the rule of law to present the functional added value of the best rule of law practice. As a result, such approach makes the picture of the rule of law practices more comprehensive and allows drawing positive recommendation from negative examples. The limits of the paper do not allow to apply ‘measuring’ methods to the European Union institutions and Member States, however existing research based on measuring methods constitutes a relevant point of reference when looking for examples as to how the rule of law is understood internationally and what practices can be recognised as contributions to the rule of law.9 The aim of the paper is to provide an analysis of widely divergent practices in the field
of rule of law as well as a comparative matrix of the key rule of law practices among the Member States. The paper provides basic features or elements of rule of law practices and allows conceptualizing this notion for the purpose of the debate concerning the rule of law in the EU environment. The working paper is divided into three parts. The first part provides an overview of the main types of EU rule of law practices. The second and third parts apply the proposed typologies to national and supranational contexts respectively. The working paper also includes an annex provided by Carlos Closa, which contains a detailed analysis of Member States’ positions regarding Article 7 TEU procedure. The methodology is based on existing research, publicly available official documents, court rulings, findings of international organisations and analysis provided by national NGOs and academia. Additionally, ‘rule of law practices’ were identified on the basis of media reports, officials’ statements, policy briefs.
2. Rule of law practices as an indispensable element of the adherence to
the rule of law
2.1. From the rule of law standards to the rule of law practices
The main point of reference regarding the definition of the rule of law in the European context is the Venice Commission’s ‘Rule of law Checklist’,10 which provides five benchmarks: legality,
legal certainty, prevention of abuse (misuse) of power, equality before the law and non-discrimination, access to justice. All of them were used by the European Commission for the purpose of the so-called ‘Rule of law framework’,11 supplemented with a broad requirement of
respect for fundamental rights. The Communication by the European Commission pointed also at the separation of powers as a rule of law element.12 The idea of a checklist making it possible
9 The Hague Institute for Innovation of Law, Concept Paper ‘Measuring the rule of law, justice and fundamental
rights’, Appendix.
10 Venice Commission, Rule of Law Checklist, Adopted by the Venice Commission at its 106th Plenary Session
(Venice, 11-12 March 2016) CDL-AD(2016)007.
11 Communication from the Commission to the European Parliament and the Council – A new EU Framework to
strengthen the Rule of Law, COM/2014/0158 final. For analysis, see, Dimitry Kochenov and Laurent Pech, ‘Better Late than Never: On the European Commission’s Rule of Law Framework and its First Activation’ (2016) 54 JCMS 1062-1074.
12 Communication from the Commission to the European Parliament, the European Council and the Council –
Further strengthening the Rule of Law within the Union State of play and possible next steps, Brussels, 3 April 2019 COM(2019) 163 final, p. 1. For analysis, see, Dimitry Kochenov, ‘Elephants in the Room: The European
to evaluate the state of the rule of law in a specific country gives the impression that the rule of law is truly a practical legal concept.13 Oversimplified checklists can however pose a threat
and legitimize governments and legal systems undermining the rule of law, where the rule of law institutions exist but do not fulfil their function – do not limit public power.
The Eurobarometer survey on the rule of law14 conducted by Kantor among more than 27
thousand respondents in all EU Member States and commissioned by the European Commission, was published in April 2019. Each of the ‘rule of law principles’ was found by the vast majority of respondents (from 86% to 94%) as essential or important.15 The survey was
based on a rather formal understanding of the rule of law – 17 detailed principles of the rule of law were divided into three groups:16
1. ‘Legality, legal certainty, equality before the law, separation of powers’ (equality before the law, clarity and stability of law, ease in following how parliament adopts laws, lawmakers act in public interest, independent controls of law);
2. ‘Prohibition of arbitrariness and penalties for corruption’ (clarity of public authorities’ decisions, independent review of public authorities’ decisions, unbiased decisions of public authorities, making decisions in public interest, acting of corruption, codes of ethics for politicians);
3. Effective judicial protection by independent courts (access to an independent court, length or cost of court proceedings, independence of judges, the proper investigation of crimes, respect for and application of court rulings, codes of conduct of politicians).17
Rule of law practice can be understood in a twofold way. On the one hand, practical realization and implementation of the theoretical rule of law concepts and standards may amount to rule of law practices.18 On the other however, rule of law practices may also be analyzed as rule of
law standards applicable in practice, despite the fact that they face challenges limiting their full implementation. Those challenges might be considered as negative rule of law practices. In consequence, the way in which rule of law abstract notion is applied and secured at national and supranational level might include negative and positive examples, often closely interrelated, as good practices might be considered as a tool to overcome negative rule of law situations. Practices designed precisely not to achieve compliance with the normative ideal are equally important.19 A simple realisation follows: not all governments are actually willing to
comply designing their policies to deviate from the rule of law on purpose, as opposed to falling short as a result of ineffective regulation or mismanagement. This allows scholars to speak of a
Commission’s 2019 Communication on the Rule of Law’ (2019) 11 Hague Journal of the Rule of Law 423 (hereafter Kochenov, ‘Elephants in the Room’).
13 Venice Commission, Report on the rule of law – Adopted by the Venice Commission at its 86th plenary session
(Venice, 25-26 March 2011) CDL-AD(2011)003rev-e, para 69.
14 Report – Rule of Law, Special Eurobarometer 489, July 2019. 15 Report – Rule of Law, Special Eurobarometer 489, 5.
16 Additionally, the survey was supplemented with issues regarding media and civil society. 17 Report – Rule of law, Special Eurobarometer 489, July 2019, 3-4.
18 According to Oxford Advanced Learner's Dictionary, the word ‘practice’ means i.a. ‘a way of doing something
that is the usual or expected way in a particular organization or situation’, as well as ‘thing that is done regularly’.
19 Martin Keygier, ‘The Rule of Law: An Abuser’s Guide’ in András Sajó (ed) Abuse: The Dark Side of Fundamental
‘spectrum of defiance’.20 In order to capture the matrix of the rule of law best practices, it is
inevitable to assess also the negative examples, which allow formulating positive recommendations.
In order to assess whether a given situation amounts to a positive or negative practice often requires analysis of a broader (legal, political, social) context and at least short-term consequences. Furthermore, analysis of the practices makes it possible to demonstrate when and under what conditions a broader context can play a relevant role in discussing adherence to the rule of law and when it is only a political smokescreen. Situations, when a legal system fulfils the theoretical rule of law requirements of various ‘rule of law checklists’, but does not guarantee that public power is limited, is one of the worst rule of law practices.
Kim Lane Scheppele used the term ‘Frankenstate’ to describe a system which is ‘composed from various perfectly reasonable pieces, and its monstrous quality comes from the horrible way that those pieces interact when stitched together’.21 It is due to the fact that those ‘pieces’
(institutions, procedures) play in practice a different role than what is assumed in a democratic state. Combining those elements – by referring to legal systems of liberal democracies – can give a sense that a Frankenstate will pass any rule of law checklist,22 even though in practice
those pieces add up to an authoritarian system.23 Parliamentary Assembly of Council of Europe
referred to this concept recently and found that ‘Frankensteinisation of legislation’ understood as a combination of ‘worst practices’ existing in other countries, instead of on best practice and common European standards. It was underlined that ‘even if certain provisions are similar to those in other countries, they cannot be taken out of the context of the overall legal framework and legal tradition in which they exist.’24
The recent ‘rule of law crisis’ strengthened a much-forgotten truth that the rule of law is a practical concept. Its main functions are: to protect people from the government and to protect people from each other.25 In any legal configuration the rule of law means at least that laws are
applied and enforced.26 The way this simple notion, but also other rule of law aspects,
materialises in practice might differ depending on a broader legal and socio-political context and legal culture. For this purpose, rule of law must be open-ended in order to fit into different contexts and systems.27 It can be determined by constitutional traditions, which in the EU
20 András Jakab and Dimitry Kochenov, ‘Introductory Remarks’ in András Jakab and Dimitry Kochenov (eds) The
Enforcement of EU Law and Values (OUP 2017) 3 (hereafter Jakab and Kochenov, ‘Introductory Remarks’).
21 Kim Lane Scheppele, ‘The Rule of Law and the Frankenstate: Why Governance Checklists Do Not Work’ (2013)
26(4) Governance: An International Journal of Policy, Administration, and Institution 559.
22 Ibid, 562; Kim Lane Scheppele, ‘Not Your Father’s Authoritarianism: The Creation of the “Frankenstate”’ (2013)
Newsletter of the European Politics and Society Section of the American Political Science Association 5.
23 Cf Laurent Pech et al., ‘An EU mechanism on democracy, the rule of law and fundamental rights – Annex I (EPRS
study)’, PE 579.328, April 2016; Petra Bárd et al., ‘An EU Mechanism on Democracy, the Rule of law, and Fundamental Rights: Assessing the Need and Possibilities for the Establishment of an EU Scoreboard on Democracy, the Rule of Law and Fundamental Rights’ (EPRS Sturdy) PE 579.328 April 2016.
24 Parliamentary Assembly of the Council of Europe, ‘The functioning of democratic institutions in Poland’
Resolution 2316 (2020) para 10.
25 Adriaan Bedner, ‘An Elementary Approach to the Rule of Law’ (2010) 2 Hague Journal on the Rule of Law 50
(hereafter Bedner, ‘An Elementary Approach to the Rule of Law’).
26 Theodore Konstadinides, The Rule of Law in the European Union – The Internal Dimension (Hart Publishing 2017)
(hereafter Konstadinides, The Rule of Law in the European Union).
27 Nicolas Hachez and Jan Wouters, ‘Promoting the Rule of Law: A Benchmarks Approach’ KU Leuven Working
context are common, but are not identical.28 However, as was underlined by the Venice
Commission, ‘the contextual elements of the Rule of Law are not limited to legal factors.’29
Other factors might deal with political and legal culture,30 since the rule of law understood as
‘practical ideals’ might be ‘determined by political disagreements and the tensions that beset political life’ and need to be sensitive to political reality.31
That is why the overall adherence to the rule of law is a matter of degree,32 since there are
different ‘kinds of disrespect of the rule of law’33 and ‘states can satisfy it to a greater or lesser
extent’.34 Unfortunately, pre-accession assessment conducted by the European Commission
does not provide many guidelines regarding the understanding of rule of law practices.35 First
of all, ‘rule of law’ was part of ‘political criteria’ section of the Copenhagen criteria of 1993,36
which is already a misleading assumption. Secondly, the Commission Opinions and Progress Report linked ‘rule of law’ and ‘democracy’, which creates even more terminological confusion, as the Commission does not make a clear distinction between the two concepts.37
Furthermore, research suggested that understanding of the rule of law in the accession process was closely linked to domestic understanding of the notion without any reference to autonomous supranational definition thereof. The main issues covered by ‘Democracy and Rule of Law’ criterion were: the functioning of legislature, the functioning of the judiciary, the functioning of the executive and anti-corruption measures. Additional areas of scrutiny were free and fair elections. The research showed however that despite the fact that Copenhagen criteria introduced a concept of ‘merit-based enlargement’ the threshold of meeting those requirements was rather low.38 Wojciech Sadurski is absolutely right, however, pointing out the
deep constitutionalising effect that the Copenhagen criteria and the whole pre-accession exercise had on the whole edifice of the EU legal system,39 eventually leading to the codification
28 Maurice Adams, Ernst Hirsch Ballin and Anne Meuwese, ‘The Ideal and the Real in the Realm of Constitutionalism
and the Rule of Law: An Introduction’ in: Maurice Adams, Ernst Hirsch Ballin and Anne Meuwese (eds), Constitutionalism and the Rule of Law. Bridging Idealism and Realism (CUP 2017) 13 (hereafter Adams, Hirsch Ballin and Meuwese, ‘The Ideal and the Real’).
29 Venice Commission, Rule of Law Checklist, para 42 30 Ibid.
31 Adams, Hirsch Ballin and Meuwese, ‘The Ideal and the Real’ (n 28) 14. 32 Magen, ‘Cracks in the Foundations’ (n 3) 381.
33 Nonetheless, it goes without saying that there is a fundamental difference in quality between those kinds of
disrespect of the rule of law, even if the precise point of distinction may not easily be identified in the abstract: von Danwitz, ‘Values and the Rule of Law’ (n 2) 10.
34 Paul Gowder, The Rule of Law in the Real World (CUP 2016) 26.
35 Eline De Ridder and Dimitry Kochenov, ‘Democratic Conditionality in Eastern Enlargement: Ambitious Window
Dressing’ (2011) 16 Eur Foreign Aff Rev 589; Dimitry Kochenov, EU Enlargement and the Failure of Conditionality: Pre-Accession Conditionality in the Fields of Democracy and the Rule of Law (Kluwer Law International 2008) (hereafter Kochenov, EU Enlargement and the Failure of Conditionality).
36 Christophe Hillion, ‘The Copenhagen Criteria and Their Progeny’ in Christophe Hillion (ed), EU Enlargement: A
Legal Approach (Hart Publishing 2004); Marc Maresceau, ‘Quelques réflexions sur l’application des principes fondamentaux dans la stratégie d’adhésion de l’UE’ in Le droit de l’Union européenne en principes: Liber amicorum en l’honneur de Jean Raux (LGDJ 2006) 69.
37 In the literature it was presented as ‘organic combination’. Cf Ronald Janse, ‘Is the European Commission a
Credible guardian of the Values? A Revisionist Account of the Copenhagen Political Criteria during the Big Bang Enlargement’ (2019) 17 ICON 43.
38 Dimitry Kochenov, ‘Behind the Copenhagen Façade. The Meaning and Structure of the Copenhagen Political
Criterion of Democracy and the Rule of Law’ (2004) 8(10) European Integration online Papers (EIoP) 1; Kochenov, EU Enlargement and the Failure of Conditionality (n 35) ch 1.
of the core values on which the legal systems of the EU and the Member States are built, moving away from unwritten practice of assuming the importance of, inter alia, democracy and the rule of law, toward the current text of Article 2 TEU.40
2.2. Types of rule of law practices
There are commonalities and differences regarding rule of law elements in Member States as well as in the EU.41 Each practice may have different nature and deal with different aspects of
law application and enforcement. Elements of such ‘rule of law mosaic’ can be divided into three groups: institutional, procedural and political. Scratches of best and worst practices can show the broad range of rule of law meaning which takes into account contextual differences, without providing a one-fit-for-all institutional model. They also show what are the red-lines in assessing rule of law situation are. Institutional arrangement cannot introduce (legalise) complete arbitrariness of public authorities, procedures need to ensure that the law will be correctly applied, and political goals will not overcome nor undermine the legal rules.
2.2.1. Institutional practices
Institutional practices deal with institutional arrangements which aim at securing and guaranteeing the practical application of the rule of law, e.g. with respect to legality or separation of powers. Institutions are perceived as guarantors of the law being correctly adopted, applied and enforced – so that the law will rule. The institutional aspect is strongly underlined in the context of transitional societies – what kind of institutions need to be (re)established in order to secure rule of law. Rule of law as an ‘institutional ideal’ concerns ‘adequacy of legal institutions to prevent the law turning into a sheer tool of domination, a manageable servant to political monopoly and instrumentalism.’42
On the one hand, the rule of law needs to be oriented at achieving this normative aim, on the other however existing context might need to be taken into account, thus prescribing that one homogeneous institutional model will most probably not meet those expectations.43 Ignoring
legal, political or cultural context might lead to a situation when institutions look good on paper, but do not fulfil their ‘rule of law obligations’ in practice. In consequence it might even lead to
40 Ibid. Cf Marcus Klamert and Dimitry Kochenov, ‘Article 2 TEU’ in Manuel Kellerbauer, Marcus Klamert and
Jonathan Tomkin (eds), The Treaties and the Charter of Fundamental Rights – A Commentary (OUP 2019) 22 (hereafter Klamert and Kochenov, ‘Article 2 TEU’). Codification does not mean full constitutionalisation, however: Andrew Williams, ‘Taking values seriously: Towards a philosophy of EU law’ (2009) 29 OJLS 549; Andrew Williams, The Ethos of Europe (CUP 2009).
41 Konstadinides, The Rule of Law in the European Union (n 26) 28; Dimitry Kochenov, ‘The EU Rule of Law: Cutting
Paths through Confusion’ (2009) 2 Erasmus L Rev 5.
42 Gianluigi Palombella, ‘The Rule of Law as an Institutional Ideal’ in Gianluigi Palombella and Leonardo Morlino
(eds), Rule of Law and Democracy: Inquiries Into Internal and External Issues (Brill 2010) 4 (hereafter Palombella, ‘The Rule of Law as an Institutional Ideal’).
43 ‘We can hardly determine a priori a universal list of institutional prescriptions for the rule of law’ – Martin
Krygier, ‘The rule of Law: Legality, Teleology, Sociology’ in Gianluigi Palombella and Neil Walker (eds), Re-locating the Rule of Law (Hart Publishing 2008) 47.
structural ineffectiveness regarding law enforcement.44 When analysing institutional
perspective of the rule of law practices, the proper goals need to outbalance the ends.45
Context-dependent efficiency of the rule of law institutional ideal does not mean however that diverse constitutional systems and traditions allow for different – lower or higher – standards in the EU context.46 Laurent Pech speaks of the presence of ‘shared significant traits’,47
whatever the perceived differences might be between the particular systems. ‘The rule of law similarly requires that on the plane of legal institutions a peculiar scheme of legality be available, that can be implemented, in diverse modes, through different contexts’.48 In
domestic and supranational context rule of law requirements rely on such features as consistency, transparency or even legitimacy.49 The role of the institutions is to ensure that
those assumptions be fulfilled.
Legality. Adriaan Bedner treats the institutional aspects of rule of law mainly as ‘guardian institutions’ – independent judiciary and other guardian institutions such as national human rights institutions.50 Those guardians aim first and foremost at securing legality – both in
Member States and in the European Union. The relation between the institutions and values (rule of law) might play a crucial role in securing the latter. Their establishment cannot be however perceived as sufficient to secure rule of law.51 It is It’s rather a starting point.
One of the expressions of the institutional ideal of the rule of law was offered by Gianluigi Palombella, who underlined the need for a distinction between jurisdictio (‘the law untouchable by the day-to-day rules running the legal system and removed from the ambit of the purview of the sovereign’) and gubernaculum (‘of the general rule-making power’) in order to effectively limit public power.52 Gubernaculum ‘embraces instrumental aims and
governmental policies’, however jurisdictio does not remain at the disposal of the sovereign.53
In the national context, law ‘unavailable’ for ordinary legislation is often perceived as the highest law of the land, i.a. the constitution. Such a divide is however often undermined if the
44 Michael Ioannidis, ‘Weak Members and the Enforcement of EU Law’ in András Jakab and Dimitry Kochenov
(eds), The Enforcement of EU Law and Values: Ensuring Member States' Compliance (OUP 2017).
45 Rachel Kleinfeld Belton, ‘Competing definitions of the rule of law’ (2005) Implications for Practitioners Carnegie
Papers 27.
46 Ronald Janse, De renaissance van de Rechtsstaat (Open Universiteit 2018) (hereafter Janse, De renaissance van
de Rechtsstaat). Cf Konstadinides, The Rule of Law in the European Union (n 26) 22.
47 Laurent Pech, ‘The Rule of Law as a Constitutional Principle of the European Union’ (28 April 2009) Jean Monnet
Working Paper Series No. 4/2009, 70 (hereafter Pech, ‘The Rule of Law as a Constitutional Principle of the European Union’).
48 Palombella, ‘The Rule of Law as an Institutional Ideal’ (n 42) 28.
49 Melanie Smith, ‘The Evolution of Infringement and Sanction Procedures: Of Pilots, Diversions, Collisions, and
Circling’ in Damian Chalmers and Anthony Arnull (eds), The Oxford Handbook of European Union Law (OUP 2015).
50 Bedner, ‘An Elementary Approach to the Rule of Law’ (n 25) 67.
51 ‘It would indeed be a mistake to think of concrete institutions and practices solely as instruments in the
realisation of certain ideals or moral values – in whatever form they are expressed – whose justification is given independently of these institutions and practices.’ Adams, Hirsch Ballin and Meuwese, ‘The Ideal and the Real’ (n 28) 13.
52 Palombella, ‘The Rule of Law as an Institutional Ideal’ (n 42). See also Martin Krygier, ‘Inside the Rule of Law’
(2014) 3 Rivista di filosofia del diritto, 77; Dimitry Kochenov, ‘EU Law without the Rule of Law: Is the Veneration of Autonomy Worth It?’ (2015) 34 Yearbook of European Law 82 (hereafter Kochenov, ‘EU Law without the Rule of Law’).
highest law undergoes constant amendments, i.a. constitution of Hungary, which became a purely political tool. At the EU level it is even more challenging to define jurisdictio, especially in the light of principle of autonomy of the EU law.54
The debate about the rule of law in the EU has been often limited to the requirement of legality.55 The basic specificities of the EU law were established by the Court of Justice in its
case law.56 The principles of direct effect and primacy of EU law57 secured with obligation to
compensate for violation of the EU law, establish a framework, in which the EU law can exist and develop.58 EU law is also governed by principles of loyalty, conferral and subsidiarity. It is
however argued that in the EU the principle of proportionality should also be considered as a part of the rule of law. It applies to both legislative and administrative measures, adopted at the EU and national level within the scope of the EU law.59 However, it is commonly underlined
that the answer to the question regarding compliance of the EU itself with the principle of legality might not be so obvious.60 In particular the European Monetary Union causes doubts
regarding compliance with the principle of legality, such as inaccessibility of legal sources, which were not published in all official (relevant) languages (mainly only in English).61
Furthermore, the status of Memoranda of Understanding is questioned from the perspective of principle of conferral62 and broadening the ECB competences raises questions regarding
compliance with Article 123(1) TFEU.63 Finally, the euro crisis led to the introduction of
emergency policies, of extra-legal character.64
Positive institutional practices to a great extent depend on procedural guarantees such as legal certainty and protection of legitimate expectations. Those values need to be protected by the
54 Kochenov, ‘EU Law without the Rule of Law’ (n 52) 74. Gianluigi Palombella, ‘Beyond Legality—before
Democracy: Rule of Law Caveats in the EU Two-Level System’ in Carlos Closa and Dimitry Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (CUP 2016) (hereafter Palombella, ‘Beyond Legality— before Democracy’).
55 Kochenov, ‘EU Law without the Rule of Law’ (n 52) 74-96 (and the literature cited therein).
56 See, especially, Pech, ‘The Rule of Law as a Constitutional Principle of the European Union’ (n 47). Cf Janse, De
renaissance van de Rechtsstaat (n 46); Maria Luisa Fernández Esteban, The Rule of Law in the European Constitution (Kluwer Law International 1999) (hereafter Fernández Esteban, The Rule of Law in the European Constitution).
57 Cf Justin Lindeboom, ‘Why EU Law Claims Supremacy’ (2018) 38 OJLS 328.
58 András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values: Ensuring Member States'
Compliance (OUP 2017).
59 Konstadinides, The Rule of Law in the European Union (n 26) 98.
60 ‘It follows that the question of whether a system is committed to legality does not necessarily have to be
answered in the notorious “all or nothing” fashion. Possibly, the weight given to legality is relatively weak in certain quarters.’ Alexander Somek, ‘Is Legality a Principle of EU Law?’ in Stefan Vogenauer and Stephen Weatherill (eds), General Principles of Law. European and Comparative Perspectives (Hart Publishing 2017) 57 (hereafter Somek, ‘Is Legality a Principle of EU Law?’).
61 Claire Kilpatrick, ‘One the Rule of Law and Economic Emergency: The Degradation of Basic Legal Values in
Europe’s Bailouts’ (2015) 35(2) Oxford Journal of Legal Studies 333; Fabian Amtenbrink and René Repasi, ‘Compliance and Enforcement in Economic Policy Coordination in EMU’ in András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values: Ensuring Member States' Compliance (OUP 2017) 145-181.
62 Somek, ‘Is Legality a Principle of EU Law?’ (n 60) 73. 63 Ibid, 71.
64 Nicole Scicluna and Stefan Auer, ‘From the rule of law to the rule of rules: technocracy and the crisis of the EU
law in order to implement the rule of law in practice and in consequence to ‘restrict the power’.65 Some aspects of those values are codified, i.a. in the Charter.
Separation of powers. The second aspect of the institutional practices relies on the separation of powers, which guarantees judicial independence. The main idea of the separation of powers is to limit different branches in order to prevent possible abuse of absolute (not separated or unified) power. Judicial independence is perceived as an ‘integral part of the fundamental democratic principle of the separation of powers’.66 As the Venice Commission stated in the
Rule of law Checklist: ‘distribution of powers among the different State institutions (…) should be well-adjusted through a system of checks and balances.’67
In May 2019, vice president of the European Commission in his letter to Romanian authorities elaborated on details dealing with understanding of separation of powers in Member States. Frans Timmermans stated that recent amendments threaten the requirement of ‘loyal cooperation between different powers of the state’, which could imply a prohibition of undermining others legal and factual authority within the state.68
Separation of powers together with independence of judiciary should be able to provide a tool allowing to secure legality – review of legality and constitutionality of ordinary legislation. It also requires procedural guarantees regarding access to a court and effective judicial review with effectively implemented rulings. Furthermore, the separation of powers ensures that no one will be a judge in his own cause, which ensures the generality of the law and equality before the law.69
The special role of the judiciary in upholding the rule of law has been broadly accepted. The CJEU case-law regarding judicial independence has been for a long time perceived as underdeveloped.70 It has however changed due to the latest rule of law challenges in EU
Member States. The Court has played the pivotal role in the articulation of the rule of law principle in contemporary EU law.71 In 2018 the Court in the ASJP case linked the value of rule
of law and the requirement of judicial independence and stated that ‘principle of effective
65 ‘Observance of the Rule of Law enhances certainty, predictability and security both among individuals, and
between citizens and government, as well as restricting governmental discretion. It restricts the power’: Sionaidh Douglas-Scott, ‘Justice, Injustice and the Rule of Law in the EU’ in Dimitry Kochenov, Gráinne de Búrca and Andrew Williams (eds), Europe’s Justice Deficit? (Hart Publishing 2015) 59.
66 Venice Commission, Rule of law checklist, para 74. 67 Ibid para 39.
68 Barbara Grabowska-Moroz, ‘Rule of law framework – is it time for Romania?’ (RECONNECT blog, 5 June 2019)
<https://reconnect-europe.eu/blog/grabowska-moroz-rule-of-law-romania-timmermans/> accessed 1 February 2020.
69 Geranne Lautenbach, Rule of law concept, The Concept of the Rule of Law and the European Court of Human
Rights (OUP 2013).
70 Case C-506/04 Graham J. Wilson v Ordre des avocats du barreau de Luxembourg (2006) ECR I-08613; Matej
Avbelj, ‘Judges Depending on Judges: A Missing Brick in the CJEU Jurisprudence on Judicial Independence’ (Verfassungsblog, 10 July 2019) <https://verfassungsblog.de/judges-depending-on-judges/> accessed 10 February 2020.
71 Peter Van Elsuwege and Femke Grimmelprez, ‘Protecting the Rule of Law in the EU Legal Order: A Constitutional
Role for the Court of Justice’ (2020) 16 EUConst 8 (hereafter Van Elsuwege and Grimmelprez, ‘Protecting the Rule of Law in the EU Legal Order’); Dimitry Kochenov and Petra Bárd, ‘The Last Soldier Standing? Courts versus Politicians and the Rule of Law Crisis in the New Member States of the EU’ (2019) 1 European Yearbook of Constitutional Law 243.
judicial protection is a general principle of EU law’.72 By stating that national courts which even
potentially might apply EU law, are covered with this principle and need to meet the EU standards of independence.
It made rule of law enforceable through Article 19 TEU,73 which additionally became an
objective principle applicable to domestic judiciary.74 As a consequence, the Court found that
the organisation of the national judiciaries is not exclusively a matter for each of the Member States,75 since Article 19 TEU limits states’ discretion with respect to judicial independence.
Furthermore, judicial independence is essential for judicial cooperation expressed in Article’s 267 TFEU procedure.76 Standard expressed in ASJP has been later implemented in new
case-law.77
The main problem with institutional approach to the rule of law is that it risks ‘shallow institutionalisation’ of the rule of law norms and practices in CEE countries78 resulting in
‘façade’ institutions representing forms without substance. That is why Bojan Bugarič advises to avoid ‘institutional fetishism’, also in relation to rule of law implementation.
2.2.2. Procedural practices
The procedural aspect of the rule of law was underlined by Jeremy Waldron. It deals with those elements of the rule of law which guarantee fair procedural commitments relevant when the law is about to be applied in individual cases. Waldron closely links procedural requirements with certain institutional arrangements, such as independent courts. Mixtures of those two (institutions and supporting procedures) are able to provide an ‘impartial forum where the law can be judged according to legal parameters.’79 Furthermore, Waldron perceives it a tool of
securing human dignity and allowing for active engagement in the administration of public affairs.80
72 Case C-64/16 Associação Sindical dos Juízes Portugueses v Tribunal de Contas (2018) ECLI:EU:C:2018:117, para
35. Cf Laurent Pech and Sébastien Platon, ‘Judicial independence under threat: The Court of Justice to the rescue in the ASJP case’ (2018) 55 CMLRev 1836 (hereafter Pech and Platon, ‘Judicial independence under threat’).
73 ‘The Court effectively and positively transformed the rule of law into a legally enforceable standard to be used
against national authorities to challenge targeted attacks on national judiciaries’: Pech and Platon, ‘Judicial independence under threat’ (n 72) 1836.
74 ‘Article 19(1) TEU applicable in abstracto, as an objective principle, to national measures of a general scope
which target the judiciary’ – ibid.
75 Matteo Bonelli and Monica Claes, ‘Judicial serendipity: how Portuguese judges came to the rescue of the Polish
judiciary. ECJ 27 February 2018, Case C-64/16, Associação Sindical dos Juízes Portugueses’ (2018) 14 European Constitutional Law Review 623 (hereafter Bonelli and Claes, ‘Judicial serendipity’).
76 Case C-64/16 Associação Sindical dos Juízes Portugueses v Tribunal de Contas (2018) ECLI:EU:C:2018:117 para
43; Editorial Comments, ‘2019 shaping up as a challenging year for the Union, not least as a community of values’ (2019) 56 Common Market Law Review 11.
77 Case C-216/18 PPU LM (2018) ECLI:EU:C:2018:586, Case C-619/18 Commission v Poland [2019]
ECLI:EU:C:2019:531; paras 46-50; Case C-192/18 Commission v Poland [2019] ECLI:EU:C:2019:924, paras 98-106. Cf Van Elsuwege and Grimmelprez, ‘Protecting the Rule of Law in the EU Legal Order’ (n 71).
78 Bojan Bugarič, ‘A crisis of constitutional democracy in post-Communist Europe: “Lands in-between” democracy
and authoritarianism’ (2015) 13(1) ICON 233.
79 Franco Peirone, ‘The Guardian Of The Law. The EU Rule Of Law And The Member States’ Corruption Challenges’
(2018) Jean Monnet Working Paper 6/18, 55 (hereafter Peirone, ‘The Guardian Of The Law’).
80 Jeremy Waldron, ‘The Rule of Law and the Importance of Procedure’ (2010) NYU School of Law, Public Law
Procedural elements deal with a right to be heard, presenting evidence, right to hear reasons of a reached decision or a right of appeal.81 Those elements are important aspects of CJEU
case-law regarding the rule of case-law, which covers the rights of defence,82 the right to be heard,83 the
right of access to the file84 and the obligation to state reasons. It shows that procedural
elements of the rule of law can be extended beyond the state.85
The close relation between institutional and procedural requirements ensure the main elements of rule of law, such as legality. The CJEU case-law regarding judicial independence represents how two requirements are supplemented and developed. The requirements regarding judicial independence resulting from Article 19 TEU expressed by the Court in ASJP ruling, have been later complemented with procedural requirements. In LM the CJEU specified the standard of judicial independence by adding a section regarding disciplinary regime regarding judges. The Court found that such a regime ‘must display the necessary guarantees in order to prevent any risk of its being used as a system of political control of the content of judicial decisions.’ The ‘disciplinary standard’ refers mainly to procedural requirements which will safeguard rights under Article 47 and 48 of the Charter (i.a. rights of the defence).86
The procedural aspect of the rule of law provides ‘an opportunity for the party concerned to voice her concern and to obtain a response thereto’, ‘the right to give and receive an explanation (in law as well in politics).’87 It allows the law to fulfil its function and introduces
new actors to the rule of law scene – private parties. Such functional aspect can be recognised i.a. in interpretation of Article 19 TEU provided by the Court in ASJP,88 and usage of the ‘sphere
of the EU law’ as a factor allowing to apply Article 19 TEU. As stated by Bonelli and Claes, relevant in this interpretation ‘are not facts of the case but the function of national courts as part of the European judiciary’.89 ASJP is also extremely interesting methodologically, as it
shows how principles are established by the Court. It appeared to be a right case to lay down ‘a principle’, which was later on applied in other (more sensitive) cases.90 In ASJP the way how
the case was decided was less relevant than the method used to interpret the existing Treaty
81 Ibid 6.
82 Case C-27/09 P France vs. People's Mojahedin Organization of Iran (2011) ECLI:EU:C:2011:853, paras 65-66. 83 Case C-550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission (2010) ECLI:EU:C:2010:512, para 92. 84 Case C‑300/11 ZZ v Secretary of State for the Home Department (2013) ECLI:EU:C:2013:363.
85 Sanne Taekema, ‘The Procedural Rule of Law: Examining Waldron's Argument on Dignity and Agency’ (2013) 21
Annual Review of Law and Ethics: The Rule of Law-Principle 143.
86 Case C-216/18 PPU LM (2018) ECLI:EU:C:2018:586, para 67. Cf Theodore Konstadinides, ‘Judicial Independence
and the Rule of Law in the Context of Non-execution of a European Arrest Warrant: LM’ (2019) 56 CMLRev 743; Michał Krajewski, ‘Who Is Afraid of the European Council? The Court of Justice’s Cautious Approach to the Independence of Domestic Judges’ (2018) 14 EUConst 792; Petra Bárd and Wouter van Ballegooij, ‘Judicial Independence as a Pre-Condition for Mutual Trust? The ECJ in Minister for Justice and Equality v LM’ (2018) 9 New Journal of European Criminal Law 353. See also Michal Dorociak and Wojciech Lewandowski, ‘A Check Move for the Principle of Mutual Trust from Dublin: The Celmer Case’ (2018) 3 European Papers 857.
87 András Sajó, ‘The Rule of Law as Legal Despotism: Concerned Remarks on the Use of “Rule of Law” in Illiberal
Democracies’ (2019) 11 Hague Journal on the Rule of Law 375 (hereafter Sajó, ‘The Rule of Law as Legal Despotism’).
88 Interpretation of Article 19 in ASJP is ‘functional necessity underpinning the legitimacy of EU decision-making’:
Pech and Platon, ‘Judicial independence under threat’ (n 72) 1841.
89 Bonelli and Claes, ‘Judicial serendipity’ (n 75) 631.
90 Tomasz Tadeusz Koncewicz, ‘On the Rule of Law Turn on Kirchberg – Part I: What and How has the Court of
Justice Been Telling Us About the EU Constitutional Essentials?’ (Verfassungsblog, 3 August 2019) <https://verfassungsblog.de/on-the-rule-of-law-turn-on-kirchberg-part-i/> accessed 10 March 2020.
tools (i.a. principle of effective judicial protection). Language applied by the Court allowed for the operationalization of the rule of law expressed in Article 2 TEU in one its aspect – requirement of judicial independence – by functional interpretation of general obligation under Article 19(1) TEU.
Independent institutions and adequate procedures are able to ensure effective judicial review and respect for fundamental rights. It was confirmed by the CJEU that the possibility for individuals to seek effective judicial review is ‘of the essence of the rule of law’ in the Union.91
In the light of the recent CJEU case-law, judicial protection was marked as a ‘meta-norm’, which is capable of ‘overriding conflicting primary EU law that would preserve the discretion of the political EU institutions or the procedural autonomy of the Member States’.92
The Commission’s communication (2014) referred to the concept of the EU as a ‘union based on the rule of law’, which means that that the acts of the EU institutions ‘are subject to review of their compatibility with, in particular, the Treaties, the general principles of law and fundamental rights’.93 Such a standard indicates that individuals are entitled to effective judicial
protection of the rights they derive from the Union legal order. In consequence, it is for the Member States to establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection.
2.2.3.
Political practices
Political practices regarding rule of law – adoption, enforcement and implementation of law – represent often a political culture in a given legal system. Joseph Raz argued that rule of law virtues can be achieved only in a ‘country with a democratic culture and a culture of legality’ and that it depends on ‘cultural and institutional presuppositions’.94 Also Joseph Weiler
underlined that the Western compliance with the rule of law ‘rests on a political culture that internalises, especially public authorities, obedience to the law rather than to expediency.’95
He underlined that this makes significant EU intervention in this domain at the Member State level difficult.96 András Sajó found that rule of law is ‘more of a cultural practice (a set of
practices) than anything else’.97 That is why limiting rule of law implementation to a ‘shallow
institutionalisation’ will probably gain little success.98
91 Case C-72/15PJSC Rosneft Oil Company v Her Majesty's Treasury and Others (2017) ECLI:EU:C:2017:236, para
73.
92 Volker Roeben, ‘Judicial Protection as the Meta-norm in the EU Judicial Architecture’ (2019) 12(1) Hague Journal
on the Rule of Law 29-62.
93 Annexes to: Communication from the Commission to the European Parliament and the Council: A new EU
Framework to strengthen the Rule of Law (2014) COM/2014/0158l. Annex I: The Rule of law as a foundational principle of the Union, 2.
94 Joseph Raz, ‘The Politics of the Rule of Law’ in Joseph Raz, Ethics in the Public Domain: Essays in the Morality of
Law and Politics (OUP 1994) 370, 378.
95 Joseph H. H. Weiler, ‘The political and legal culture of European integration: An exploratory essay’ (2011) 9(3-4)
ICON 690.
96 Joseph H.H. Weiler, ‘Epilogue: Living in a Glass House: Europe, Democracy and the Rule of Law’ in Carlos Closa
and Dimitry Kochenov (eds) Reinforcing the Rule of Law Oversight in the European Union (CUP 2016) 313 (hereafter Weiler, ‘Epilogue: Living in a Glass House’).
97 Sajó, ‘The Rule of Law as Legal Despotism’ (n 87) 372.
98 Paul Blokker, ‘EU Democratic Oversight and Domestic Deviation from the Rule of Law: Sociological Reflections
It places the discussion about the rule of law outside the purely institutional approach99 and
links it with a broader socio-political context. The relation between politics and (rule of) law is quite natural, as the law regulates political processes (such as elections)100, might be however
twofold. Politics is being held to follow the law but ‘political issues and political injustice can hardly be solved in a court of justice.’101 On one hand, actions taken by political actors
(especially elected ones) may strengthen the law and enhance its legitimacy. On the other hand, however, political decisions and actions might undermine the rule of law. As stated recently by AG Sharpston, disregarding legal obligations by Member States ‘because, in a particular instance, they are unwelcome or unpopular is a dangerous first step towards the breakdown of the orderly and structured society governed by the rule of law which, as citizens, we enjoy both for its comfort and its safety.’102
The tension between rule of law institutions/procedures and politics might rise since the core element of rule of law aims at tempering the public power. However, ‘if leaders attack, denigrate and abuse them, they will be weakened, and this, in turn, will weaken the character of quality of democracy.’103 This brings about the argument that law and politics should be
treated separately, especially to avoid political influence on enforcement and implementation of law (i.a. politically motivated criminal proceedings against political opponents).104 Such
political influence might be perceived as discriminatory and aiming at achieving particularised gains. The role of the procedure (right to a hearing and obligation to state reasons of a decision) is to be established in such a way to secure against such abuse of law. Such a separation aims at preventing ‘rule of politics’.105
Political engagement of public institutions with the rule of law might be also aimed at guaranteeing that law is being equally enforced or to enhance its legitimacy. Politicisation might be perceived as a counter-balance for ‘juridicisation’. Rule of law crisis in the EU Member States provides number of examples in this respect: the two stories are the sides of the same coin, authoritarians in backsliding governments using the rule of law arguments to defend the purported will of the people.106 Konstadinides perceived ‘gradual politicisation of the rule of
law’ as a ‘growing involvement of the EU political institutions in guaranteeing rule-of-law
CUP 2016) 249; Jacob van de Beeten, ‘Rule of Law enforcement in the EU: The Limits of the legal enforcement of Values’ (KSLR EU Law Blog, 27 November 2018) <https://blogs.kcl.ac.uk/kslreuropeanlawblog/?p=1333> accessed 29 April 2020.
99 ‘[T]he life of the law […] lies outside official institutions as much as, arguable more than, it does within them’ –
Martin Krygier, ‘The Rule of Law and ‘the Three Integrations’ (2009) 1 Hague Journal on the Rule of Law 24.
100 Martin Shapiro, ‘Law and Politics: The Problem of Boundaries’ in Gregory A. Caldeira, R. Daniel Kelemen and
Keith E. Whittington (eds), The Oxford Handbook of Law and Politics (OUP 2008) 773.
101 Sajó, ‘The Rule of Law as Legal Despotism’ (n 87) 373.
102 Case C-715/17 European Commission v Republic of Poland (2018) ECR C 112/18 Opinion of AG Sharpston; Case
C-718/17 European Commission v Republic of Hungary (2018) ECR C 112/25; Case C-719/17 European Commission v Czech Republic (2019) OJ C 112, para 241.
103 Fareed Zakaria, ‘Democracy is decaying worldwide. America isn’t immune’ (Washington Post, 23 February
2018).
104 Resolution 1950 of the Parliamentary Assembly (2013) Final version – Keeping political and criminal
responsibility separate.
105 Joelle Grogan, ‘The Rule of Law, not the Rule of Politics’ (Verfassungsblog, 1 October 2019)
<https://verfassungsblog.de/the-rule-of-law-not-the-rule-of-politics/> accessed 1 February 2020.
106 Dariusz Adamski, ‘The Social Contract of Democratic Backsliding in the “New EU” Countries’ (2019) 56 CMLRev
623; Paul Blokker, ‘Populist Constitutionalism and Meaningful Popular Engagement’ (2018) The Foundation for Law, Justice and Society Policy Brief (Centre for Socio-Legal Studies and Wolfson College, University of Oxford).
monitoring and enforcement—thus, portraying the EU as less of a ‘court-centric’ legal system.’107 The story behind the current developments is much more complex that it might
seem at the first glance.108
The idea of a ‘political European Commission’109 was perceived as a tool to effectively secure
the rule of law – that is to adopt (even inconvenient) political decisions in order to ensure rule of law in EU Member States. On the other was however criticised as overstepping the role of the Commission, whose actions might be perceived as politically motivated,110 which might in
longer run lead to a situation when the Commission might lose its neutral status of the ‘guardian of the Treaties’.111 History of Copenhagen criteria and their evaluation within
enlargement process might suggest that rule of law might be also perceived as a political benchmark – where historical and social experiences might be of relevance when studying rule of law practices.112 However, as the rule of law has a clear legal meaning and role, the political
nature of Commission’s decisions needs to be secured with transparent justification reflecting the decision making process, especially with respect to application of ‘legal tools’ such infringement actions. Otherwise, it will difficult to defend notion of being ‘political’ institution, and not just ‘politically biased’, especially when enforcing (often perceived as vague) rule of law standards.
3. Looking for best rule of law practices at the national level.
According to a Eurobarometer survey published in April 2019, for each of the principles of the rule of law, a large majority of respondents (over 80%) thinks that the situation in their country with regard to the respect of these principles needs at least some improvement.113 Analysis of
the rule of law practices often gives an impression that shortcomings are more visible than positive aspects. The situation when the law is obeyed does not bring much attention. The same is with the general notion of the rule of law – until ground-breaking changes were introduced in Hungary since 2010, for the EU institutions and EU scholars, the rule of law issues were not
107 Konstadinides, The Rule of Law in the European Union (n 26) 139.
108 Paul Blokker, ‘Populist Counter-Constitutionalism, Conservatism, and Legal Fundamentalism’ (2019) 15
EUConst 518.
109 ‘The Commission is political. And I want it to be more political. Indeed, it will be highly political.’ European
Commission, 2014. ‘A New Start for Europe: My Agenda for Jobs, Growth, Fairness and Democratic Change: Political Guidelines for the next European Commission’, Strasbourg, 15 July <https://ec.europa.eu/commission/publications/president-junckers-political-guidelines_en> accessed 24 April 2020.
110 Argument of politically motivated actions were expressed by i.a. government of Poland after rule of law
framework was initiated – Jan Cienski and Maïa de La Baume, ‘Poland strikes back at EU on media law’ (Politico, 18 January 2016) <www.politico.eu/article/poland-strikes-back-at-eu-on-media-law-frans-timmermans-stepkowski-andrzej-duda/> accessed 24 April 2020.
111 Dawson Mark, ‘Juncker’s Political Commission: Did it Work?’, SIEPS p. 7
<www.sieps.se/en/publications/2019/junckers-political-commission-did-it-work/> accessed 24 April 2020.
112 Pech, ‘The Rule of Law as a Constitutional Principle of the European Union’ (n 47) 45; Janse, De renaissance van
de Rechtsstaat (n 46).
sources of inspiration for political or even academic headlines.114 Poland offers a very similar
example of a quickly-dethroned poster-child.115
Furthermore, ‘rule of law issues and dynamics differ between countries’.116 On one hand we
can face a deliberate strategy aimed at undermining any external control of the government (Poland, Hungary), on the other side of the scale we can see unsolved structural problems undermining the effectiveness of public institutions (Malta). Not only the meaning of the rule of law might vary among Member States, but also the instruments designed to protect those values and principles might be the essence of the problem, due to its ineffectiveness.117
Particular and isolated violation of the law should be contextualised118 in order to assess, within
the broader picture, if it undermines the main idea of the rule of law – effective limitation of public power. Sajó argued recently that ‘the legal concept of the [rule of law] is uncertain even if it has enough consistency to find specific violations on formal grounds’.119 On the other hand,
practices regarding different rule of law elements (such as those regarding judicial independence) are often interconnected. For instance, institutional arrangements are supplemented with political (unwritten) rules and the final outcome is able to achieve the aim – limit the public power.
3.1. Institutional practices
In order to ensure that public power is limited and controlled, an independent arbiter is required. This function is often secured with the hands of institutions entitled to conduct judicial constitutional review of ordinary legislation. From the rule of law institutional ideal as defined by Palombella, such institutional arrangements allow to secure that gubernaculum (ordinary legislation) remains within the limits of jurisdictio (higher law remaining without the reach for legislator).
Rule of law crisis, both in Hungary and Poland, started with legal and factual capture of respective domestic constitutional courts. Both governments tried to support their attempts with examples from other Member States, arguing that constitutional review is not a rule of law core element existing in each Member State. Hungarian government argued recently that Finland does not have a constitutional court at all, which makes it difficult to assume that Finland meets the EU rule of law standards (and in consequence that it is legitimised to take
114 Zoltán Szente, ‘Challenging the Basic Values—the Problems with the Rule of Law in Hungary and the Failure of
the European Union to Tackle Them’ in András Jakab and Dimitry Kochenov (eds) The Enforcement of EU Law and Values (OUP 2017) 456; Laszlo Sólyom, ‘The Rise and Decline of Constitutional Culture in Hungary’ in Armin von Bogdandy and Pál Sonnevend (eds) Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics in Hungary and Romania (Hart Publishing 2015) 5.
115 Wojciech Sadurski, Polish Constitutional Breakdown (OUP 2019). Cf Kriszta Kovács and Kim Lane Scheppele,
‘The Fragility of an Independent Judiciary: Lessons from Hungary and Poland – and the European Union’ in Peter H. Solomon Jr. and Kaja Gadowska (eds), Legal Change in Post-Communist States: Progress, Reversions, Explanations (Ibidem Verlag 2019) 55.
116 Adriaan Schout and Michiel Luining, ‘The missing dimension in rule of law policy From EU policies to multilevel
capacity building’, Clingendael Instituut Report January 2018, 12; Jakab and Kochenov, ‘Introductory Remarks’ (n 20) 5.
117 Konstadinides, The Rule of Law in the European Union (n 26) 22. 118 Peirone, ‘The Guardian Of The Law’ (n 79) 73
part in debate about Hungarian rule of law backsliding).120 The Finnish mechanism aiming at
securing rule of law is based on the Constitutional Law Committee, which holds Finnish powers accountable by reviewing domestic legislation. Being a part of Eduskunta (parliament) it consists of at least 17 MPs, it provides opinions on the constitutionality of the draft legislation. Despite those opinions being non-binding, the Committee is perceived as independent and its opinions are in practice treated as obligatory. Under Article 74 of the Constitution, the Committee must review the draft legislation from the perspective of its conformity with the international human rights treaties.121 Despite lack of status of a judicial authority, Finnish
commission is capable to provide independent expertise regarding drafted legislation. Public trust to such non-judicial authority might strengthen their role to a greater extent compared with judicial body perceived by the public as non-independent.
The Polish government often referred to the Dutch prohibition of constitutional judicial review.122 It completely ignored the broader constitutional picture of the Netherlands (political
traditions in particular) as well as exceptions to the above rule dealing with the review of international treaties. Despite the fact the Dutch Constitution is not perceived as ‘strong normative document’, it provides the main actors with ‘common language which makes it possible to communicate and debate about the (…) values that seem to be constitutive for a polity’.123 Proposals to introduce constitutional judicial review, at least within a limited scope,
have been submitted and discussed on different occasions.124 The main guarantee that the
public powers will not be abused lies with the political consensus and need to negotiate any legislative drafts. Also in France, the role of the Constitutional Council (strengthened in 2008)125
is perceived more as ‘a judicial and benevolent advisor to the executive than a real source of revival for the checks and balances model: it more often helps the government to revise and rewrite bills than to block the global decision-making’.126 From the rule of law perspective, it is
essential that such constitutional bodies not only exist, but also that their powers are not arbitrarily limited in order to gain political results.127
120 Zoltan Kovacs, ‘PM Orbán: “When they question the rule of law, they step on our honor”’ (About Hungary, 1
October 2019) <http://abouthungary.hu/blog/pm-orban-when-they-question-the-rule-of-law-they-step-on-our-honor/> accessed 10 February 2020; Daniel Boffey, ‘Hungary’s far-right government vilifies Finland over rule of law inquiry’ (The Guardian, 13 August 2019) <www.theguardian.com/world/2019/aug/13/hungary-far-right-government-finland-rule-law-inquiry> accessed 10 February 2020.
121 Rene Uruena, ‘Domestic Non-Judicial Institutions in the Development of the International Rule of Law’ in
Machiko Kanetake and Andre Nollkaemper (eds), The Rule of law at the National and International Levels. Contestations and Deference (Hart Publishing 2018) 155-156.
122 According to Article 120 of the Dutch Constitution, the provision holds that the ‘constitutionality of Acts of
Parliament and treaties shall not be reviewed by the courts’.
123 Maurice Adams and Gerhard van der Schyff, Constitutional Culture in the Netherlands: A Sober Affair (CUP 2017)
380-381.
124 Maurice Adams and Gerhard van der Schyff, ‘Constitutional Review by the Judiciary in the Netherlands: A
Matter of Politics, Democracy or Compensating Strategy?’ (2006) 66 ZaöRV 399; Jurgen C.A. de Poorter, ‘Constitutional Review in the Netherlands: A Joint Responsibility’ (2013) 9(2) Utrecht Law Review 103.
125 The Council can declare a whole legislative act or its part unconstitutional – in the light of the Constitution or
Declaration of Human Rights.
126 Nicolas Roussellier, ‘France and the Fifth Republic. Constitutional Crisis or Political Malaise?’ in Mark Graber,
Sanford Levinson and Mark Tushnet (eds), Constitutional Democracy in Crisis? (OUP 2018) 221.
127 Opinion on questions relating to the appointment of Judges of the Constitutional Court (Slovakia), adopted by
