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

• Published date: 01 November 2019
• Date: 01 November 2019
• Author: Melanie Smith
• DOI: http://doi.org/10.1111/eulj.12345

ORIGINAL ARTICLE

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

the EU

Melanie Smith

*

Abstract

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.

1|INTRODUCTION

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.

1

This article contributes to the wide scholarship on the rule of law in the EU.

2

It

*

Cardiff School of Law and Politics, Cardiff University, Museum Avenue, Cardiff, CF10 3AX, United Kingdom (smithm12@cardiff.ac.uk). Thanks to Jiri

Priban, Stijn Smismans, Elen Stokes, Sara Drake and the anonymous reviewers for comments on an earlier draft.

1

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 107–1084 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 Verfassungsblog.de.

2

A. J. Menendez, ‘The Existential Crisis of the European Union’(2013) 14 GLJ 453–526, L. Pech and K.L. Scheppele, ‘Illiberalism Within: Rule of Law

Backsliding in the EU’(2017) CYELS 3–47, D.M Trubek ‘Toward a social theory of the law: an essay on the study of law and development’(1972) 82 YLJ

1–50, 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 512–540, 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;25:561–576. wileyonlinelibrary.com/journal/eulj © 2019 John Wiley & Sons Ltd. 561

covers the period 2010–2019 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

3

) 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-

oped.

4

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.

5

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

meaningfully.

6

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.

2|THREE APPROACHES TO THE RULE OF LAW IN THE EU: A BRIEF

OVERVIEW

7

Understanding what is meant by the ‘rule of law’is 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

3

E. Chiti and P. G. Teixeira “The constitutional implications of the European responses to the financial and public debt crisis' (2013) 50 CMLR 683–708, M.

Dawson, F. De Witte ‘Constitutional Balance in the EU after the Euro-Crisis’(2013) 76 MLR 817–844, M. A. Wilkinson, ‘Specter of Authoritarian

Liberalism: Reflections on the Constitutional Crisis of the European Union’(2013) 14 GLJ 527–560, L. Jakulevicˇienė‘Migration Related Restrictions by the

EU Member States in the Aftermath of the 2015 Refugee “Crisis”In Europe: What Did We Learn?’(2018) 3 International Comparative Jurisprudence

222–230, C. Henderson, ‘Brexit and International Peace and Security: A Crisis for Crisis Management’in Michael Dougan (ed) The UK after Brexit: Legal and

Policy Challenges (Intersentia: 2017).

4

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 359–396 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 1050–1061.

5

C. R. Sunstein, ‘Incompletely Theorized Agreements in Constitutional Law’(2007) 74 Difficult Choices 1–24.

6

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.

7

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).

562 SMITH