Fundamental Change Beneath the Surface: The Supranationalisation of Rule of Law Protection in the European Union

• Published date: 01 January 2024
• Author: Sonja Priebus,Lisa H. Anders
• Date: 01 January 2024
• DOI: http://doi.org/10.1111/jcms.13489

Fundamental Change Beneath the Surface: The

Supranationalisation of Rule of Law Protection in the European

Union

SONJA PRIEBUS

1

and LISA H. ANDERS

2

1

Europa-Universität Viadrina Frankfurt (Oder), Frankfurt (Oder)

2

Leipzig University, Leipzig

Abstract

Whereas most studies on the European Union’s (EU) responses to the rule of law crisis stress the

underenforcement of EU law, this article offers a different perspective. Focusing on the long-term

dynamics concerning rule of law protection, we detect a gradual trend towards supranationalism.

The Rule of Law Conditionality mechanism adopted in 2020 is the f‌irst instance of ‘effective su-

pranationalism’, that is, a rule of law tool that combines supranational decision-making procedures

with binding and enforceable consequences. To explain this development in an area that has been

marked by considerable resistance to efforts to strengthen supranational oversight, we draw on the

agent-centric historical institutionalist approach. Our qualitative study shows that

supranationalisation has become possible through two interrelated factors: the joint strategies of

community bodies, which have promoted competence transfer to the EU level, and the increasing

marginalisation of sovereigntist positions within the Council, given the escalating conf‌licts with

Hungary and Poland.

Keywords: agent-centric historical institutionalism; European Commission; rule of law;

supranationalisation

Introduction

The scholarly assessment of the European Union’s (EU) approach to tackling the rule of

law crisis in Hungary and Poland has been predominantly negative. Observers consider

the EU’s rule of law toolbox ‘a rickety and redundant assemblage of instruments, more

designed for show than for eff‌icacy’(Kelemen, 2022, p. 4), criticising the deliberate

underenforcement of EU law (Closa, 2019; Emmons and Pavone, 2021; Kelemen, 2022;

Kelemen and Pavone, 2021). This criticism has not ceased following the introduction of

the so-called Rule of Law Conditionality in December 2020. Regulation 2020/2092 on a

general regime of conditionality for the protection of the Union budget, which allows the

EU to withdraw or reduce funds ‘in the case of breaches of the principles of the rule of law

in the Member States’, has been judged superf‌luous by some, whereas others have in-

stantly criticised the mechanism’s obvious compromise character, resulting in a substan-

tial watering down of the Commission’s original proposal (e.g., Scheppele et al., 2020).

In this article, we offer a different perspective by considering the Rule of Law Condi-

tionality mechanism a step towards what we call ‘effective supranationalism’in rule of

law protection. As we will show, it can be considered the f‌irst effective supranational rule

of law tool because it combines a supranational decision-making procedure with legally

binding decisions. Due to its compromise character, the mechanism has some intergov-

ernmental features; nevertheless, it represents a qualitative change in the relationship

JCMS 2024 Volume 62. Number 1. pp. 224–241DOI: 10.1111/jcms.13489

© 2023 The Authors. JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wile y&Sons

Ltd.

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and reproduction in any medium,

provided the original work is properly cited.

between the EU and its member states (Bos and Kurze, 2021, p. 24) that could push the

EU towards a ‘genuinely “constitutional”transformation’(Lindseth and Fasone, 2020),

allowing the enforcement instead of the management of the rule of law

(Priebus, 2022a). As we argue, it represents a major development concerning theEU’s

rule of law toolbox compared with its formerly established tools and is thus the manifes-

tation of a fundamental change, beneath the surface.

This shift towards effective supranationalism is puzzling. The rule of law is one of the

EU’s core fundamental values and a prerequisite for the functioning of the EU as a polity.

However, rule of law issues touch on core state powers, and debates surrounding the cre-

ation of EU-level oversight mechanisms have been shaped by member states’

longstanding resistance to supranational interference in rule of law issues and by sover-

eignty conf‌licts (Brack et al., 2019).

To explain why we are nevertheless witnessing supranationalisation, we draw on

agent-centric historical institutionalism and conduct a qualitative study based on off‌icial

statements, publicly accessible documents and secondary sources. Tracing developments

in the last decade and focusing on long-term dynamics, we show that the gradual shift to-

wards effective supranationalism is the result of two interrelated factors. On the one hand,

a strong initial coalition of pro-supranationalisation actors consisting of the Commission

and the European Parliament (EP) –indirectly empowered by the Court of Justice (ECJ)

–took the lead in the discourse about the EU’s rule of law crisis. These actors fostered the

idea that the competence for rule of law protection lies at the EU level and pushed for

supranationalisation, even though their capacities were limited by institutional and polit-

ical contexts. On the other hand, the escalating rule of law conf‌licts with Hungary and

Poland have led to a marginalisation of sovereigntist positions amongst EU governments,

contributing to the emergence of a pro-supranationalisation coalition within the intergov-

ernmental bodies. Paradoxically, the more the Hungarian and Polish governments –the

actors prominently opposing transfers of oversight competences to the EU level –

blocked rule of law-related decisions in the Council and European Council, the more they

actually encouraged supranational solutions for the rule of law crisis.

We contribute to the literature on the EU’s rule of law protection in two ways. First,

although there is a considerable body of research on individual rule of law instruments

(e.g., Batory, 2016; Bugarič,2016; Halmai, 2019), the EU institution’s individual ap-

proaches (Oleart and Theuns, 2022; Oliver and Stefanelli, 2016) and the technical and ju-

dicial intricacies of EU rule of law enforcement (Blauberger and Kelemen, 2016), the full

picture is still missing.

1

By analysing developments concerning the protection of the rule

of law since 2010, we adopt a bird’s-eye view that allows us to detect underlying dynam-

ics previously overlooked. In doing so, we, second, redress the widespread assumption of

the EU’s inaction. Although the EU and especially the Commission may not have made

the most of the available instruments and their actions have not reversed the backsliding

in Hungary and Poland, we can nevertheless detect a gradual institutional change that has

laid the foundations for a more supranationalised rule of law enforcement. Whether the

conditionality mechanism will translate into robust action against member states and

prove effective in combating backsliding depends, however, on whether and how

EU-level actors will use it.

1

See, for an exception, Coman (2022).

The supranationalisation of rule of law protection in the European Union225

© 2023 The Authors. JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wile y&Sons

Ltd.