Staring into the abyss: A crisis of the rule of law in the EU

Published date01 November 2019
Date01 November 2019
AuthorMelanie Smith
Staring into the abyss: A crisis of the rule of law in
the EU
Melanie Smith
Acceptance of the meaning, operation and enforcement of the rule of law in the EU by its Member
States is critical to the Union's legitimacy. Any perceived or real crisis in the rule of law thus merits
careful consideration. This article focuses on how a crisis in the rule of law occurred within the EU
and how the intended ambiguity of the rule of law has entrenched this crisis. This article argues that
the primary cause of the crisis has been the EU's development of a unique ideation of the rule of
law - as a constitutional norm, policy instrument and value - that 'hollowed out' the rule of law from
a constitutional principle to an expedient policy tool. The EU institutions have entrenched the crisis
in the rule of law and then tried to manage the chasm between what it deems as respect for the rule
of law and certain Member States' conduct.
The purpose of this article is to examine how the rule of law crisis developed in the EU and to evaluate the institu-
tions' attempts to resolve the crisis. The contribution to scholarship made in this article is that it identifies the EU as
the cause of the crisis through its conceptual appropriation of the rule of law, from constitutional norm to expedient
policy tool. The article sets out a three- part ideation of the rule of law that has been essential in some aspects of
the EU's constitutional development, but on the other hand, has weakened the fidelity of certain Member States to
the original organising constitutional norm. The article examines the origin and spread of the crisis and analyses the
conduct of the EU institutions specifically focusing on the CJEU, the European Parliament and the Commission
throughout the unfolding events.
This article contributes to the wide scholarship on the rule of law in the EU.
Cardiff School of Law and Politics, Cardiff University, Museum Avenue, Cardiff, CF10 3AX, United Kingdom ( Thanks to Jiri
Priban, Stijn Smismans, Elen Stokes, Sara Drake and the anonymous reviewers for comments on an earlier draft.
For reasons of space, the article cannot analyse every twist and turn in this long saga, nor can it comment in depth on every institution nor the actions of
each Member State concerned. This has been covered piecemeal in other literature.For example, for a thorough analysis of the Council's woeful inaction in
this area, see P Oliver, J Stefanelli, Strengthening the Rule of Law in the EU: The Council's Inaction(2016) 54 JCMS 1071084 and the rest of this special
edition on the rule of law. Alternatively Pech and Kochenov have covered the day to day events of the Member States extensively in
A. J. Menendez, The Existential Crisis of the European Union(2013) 14 GLJ 453526, L. Pech and K.L. Scheppele, Illiberalism Within: Rule of Law
Backsliding in the EU(2017) CYELS 347, D.M Trubek Toward a social theory of the law: an essay on the study of law and development(1972) 82 YLJ
150, W. Schroeder (ed) Strengthening the rule of law in Europe: from a common concept to mechanisms of implementation (Oxford: Hart 2016), D. Kochenov,
L Pech Monitoring and Enforcement of the Rule of Law in the EU: Rhetoric and Reality(2015) 11 European Constitutional Law Review 512540, D
Kochenov, EU enlargement and the failure of conditionality: pre-accession conditionality in the fields of democracy and the rule of law (Netherlands: Wolters
Kluwer 2008).
Received: 19 March 2019 Revised: 20 August 2019 Accepted: 16 September 2019
DOI: 10.1111/eulj.12345
Eur Law J. 2019;25:561576. © 2019 John Wiley & Sons Ltd. 561
covers the period 20102019 and as such aims to provide an overview of some of the interventions germane to the
evolution of this crisis.
Whilst much has been written across disciplinary boundaries about particular crises in the EU (the global banking
crisis, migration and Brexit
) less has been written about the crisis of the rule of law in the EU in relation to the origin
of the crisis and the role played by the EU institutions. Troubling events in Member States, I argue, is not the genesis
of the crisis; such events have merely exposed pre-existing tensions in the meaning and role of the rule of law within
the EU and its institutions. However, recent events offered the opportunity for the EU to re-assert the rule of law as
power-limiting constitutional principle which ultimately it has failed to capitalise on.
A crisis in the rule of law is significant for any state or international organisation, but for the EU it is especially
perilous. The EU's mission to bring states together based on civilising and liberal values in order to prevent regression
into fascism and conflict in Europe is based entirely on respect for the rule of law. Legal constitutionalism is the inte-
grative force of the EU. A perceived or real crisis in the rule of law is thus a weighty concern; it has the potential to
spread beyond discrete areas of governance and risks infecting the very heart of the EU project. Yet, legal scholar-
ship on the genesis of the rule of law crisis beyond the activities of particular Member States remains under-devel-
This article addresses that gap.
This article argues that a major problem confronting the EU institutions in the rule of law crisis is one of their
own making: fracturing the rule of law and emptying it of its meaning as a constitutional norm by the institutions and
an inability (or unwillingness) to move back from this now established position.
The tools proposed by the EU insti-
tutions to combat this crisis are insufficient, repetitive or misplaced; when Member States began to test the bound-
aries of how they can behave with respect (or lack thereof) to the rule of law, the EU has been unable to respond
Unpicking the origin of the crisis and evaluating the institutions' handling of the crisis so far will help
us to frame how (and why) the rule of law crisis seems intransigent. First I analyse the meaning (and role of) the rule
of law in the EU, presenting a three-part ideation of the rule of law. For reasons of space I pick out three significant
moments in the history of the rule of law crisis, in order to explain how and why we have arrived where we are
today. The second half of the article focuses on an evaluation of the European Commission (Commission) and
European Parliament's (EP) responses to the crisis.
Understanding what is meant by the rule of lawis critical to the analysis of whether there is a rule of law crisis in
the EU. In jurisprudential and philosophical literature, the notion of the rule of law is notoriously slippery. It is flexible
and agile: flexible in that it can accommodate many different interpretations and meanings, and agile in that it can
E. Chiti and P. G. Teixeira The constitutional implications of the European responses to the financial and public debt crisis' (2013) 50 CMLR 683708, M.
Dawson, F. De Witte Constitutional Balance in the EU after the Euro-Crisis(2013) 76 MLR 817844, M. A. Wilkinson, Specter of Authoritarian
Liberalism: Reflections on the Constitutional Crisis of the European Union(2013) 14 GLJ 527560, L. JakulevicˇienėMigration Related Restrictions by the
EU Member States in the Aftermath of the 2015 Refugee CrisisIn Europe: What Did We Learn?(2018) 3 International Comparative Jurisprudence
222230, C. Henderson, Brexit and International Peace and Security: A Crisis for Crisis Managementin Michael Dougan (ed) The UK after Brexit: Legal and
Policy Challenges (Intersentia: 2017).
For a doctrinal perspective see L. Pech, ‘“A Union Founded on the Rule of Law: Meaning and Reality of the Rule of Law as a Constitutional Principle of
EU Law(2010) 6 European Constitutional Law Review 359396 and for a different perspective on the origins see A Magen Cracks in the Foundations:
Understanding the Great Rule of Law Debate in the EU(2016) 54 JCMS 10501061.
C. R. Sunstein, Incompletely Theorized Agreements in Constitutional Law(2007) 74 Difficult Choices 124.
It is outside of the scope of this article to address the question of moral authority, ie should the EU be enforcing the rule of law against its Member States
and on what basis they claim the moral authority to do so. Others have tackled this question (see eg Muller n 89 below). Rather the article addresses the
fact that the EU is proclaiming to enforce the rule of law and the article assesses the relative success of this claim.
This section will necessarily deal with complex literature on the rule of law in an overview since complete immersion in this topic cannot be covered in a
single article. For an in-depth discussion see C. May and A. Winchester (eds) Handbook on the rule of law (Cheltenham: Edward Elgar 2018).

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