The rule of law in EU multiconstitutional dialogue: towards its constitutional anchoring in EU citizenship

• Pages: 149-172
• Author: Mikel Díez Sarasola

— 149 —

THE RULE OF LAW IN EU MULTICONSTITUTIONAL

DIALOGUE: TOWARDS ITS CONSTITUTIONAL ANCHORING IN

EU CITIZENSHIP.1

MIKEL DÍEZ SARASOLA



SUMMARY: 1. INTRODUCTION. 2. RULE OF LAW. AN INMANENT CON-

CEPTION WITHIN THE EU. 2.1. The Rule of Law: A Bulwark Against Ar-

bitrary Exercise of Power. 2.2. The Dialogic Nature of the Rule of Law in

the EU. 2.3. The legal nature and binding character of EU values. 3. RULE

OF LAW AS AN INFRASTRUCTURE FOR EU INTEGRATION AND CON-

TROL. PITFALLS AND LIMITATIONS. 3.1. European Governance through

the Rule of Law: Towards a Constitutional Articulation; 3.2. Between

principle and Practice: Pitfalls and Shortcomings in the EU’s Upholding

of the Rule of Law. 4. STRENGTHENING EU CITIZENSHIP THROUGH

THE RULE OF LAW: EXPLORING NEW PATHWAYS. 4.1. Citizens as Acti-

ve Agents in the Defence of a Dialogic, Bottom–up Rule of Law. 4.2. The

Rule of Law as a Structuring Component of European Citizenship. 5. FI-

NAL REMARKS.

1. INTRODUCTION.

The rise of populism and the emergence of authoritarian tendencies

encroaching on established liberal democracies have propelled the rule of law to

the forefront of contemporary constitutional and political discourse. Although a

1 This article forms part of the research conducted within the framework of the Basque

system’s project ‘Multilevel Governance and EU Law’ (IT1733-22) and the Spanish Ministerio de

Ciencia e Innovación research project ‘Gobernanza Multinivel: Retos y oportunidades tras la crisis

pandémica’ (PID2021-128599NB-100).

MIKEL DÍEZ SARASOLA

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comprehensive examination of these global dynamics goes beyond the scope of

this paper, centred on the European Union (EU), it is important to acknowledge

that the phenomenon is by no means confined to the European context. Examples

of national and social populism vividly illustrate the contemporary erosion of

the rule of law. On the one hand, the weakening of constitutional checks and

¦}&<"{§¨<"%{

Russia under Putin, or the patterns of semi authoritarianism under Bolsonaro

in Brazil represent instances of right-leaning populist challenges to the liberal

democratic order. On the other hand, the systematic adulteration of the rule of

law by authoritarian-leaning regimes in Venezuela and Nicaragua2 exemplifies

similar dynamics emerging from left-leaning populist governments. Taken

together, these cases reflect a broader, transnational pattern of global democratic

regression,3 wherein the classical concept of the rule of law has re-emerged as a

pivotal source of contestation and defence.

Under the term democratic backsliding, scholars and policymakers in

Europe describe a gradual and systematic erosion of fundamental pillars of liberal

democracy, particularly the rule of law and the independence of the judiciary.4

While Poland and Hungary stand as the most emblematic cases of sustained

assaults on foundational liberal democratic principles within the European

Union, serious concerns regarding the rule of law have begun to surface in other

member states as well. Recently, the victory of the populist George Simion in

the first round of Romania’s presidential election – held after the Constitutional

Court annulled the previous vote due to Russian interference in favour of another

far-right candidate – has raised serious concerns within the European Union.5

Simion’s nationalist, anti-EU rhetoric, his scepticism regarding military aid to

Ukraine and his confrontational political style have sparked fears of renewed

democratic and rule of law backsliding and the emergence of an illiberal coalition

within the EU. These events in Romania have once again cast a spotlight on the

2 KORNBLITH, Miriam, “Latin America’s Authoritarian Drift: Chavismo After Chávez?”

 , vol. 24, no. 3, 2013. FARRIS, Emma, “Fragility in Venezuela and Nicaragua:

Returning to the Sanctions Question” in       

(VIEIRA, Maurício, Editor), UPEACE Press, San José, Costa Rica, 2023, p. 100.

3 See e.g. DIAMOND, Larry, “Democratic Regression in Comparative Perspective: Scope,

Methods, and Causes”, 28.1, 2021, pp. 22-42; GERSCHEWSKI, Johannes, “Erosion

or decay? Conceptualizing causes and mechanisms of democratic regression”, ,

28.1, 2021, pp. 43-62.

4 LAURENT, Pech and SCHEPPELE, Kim Lane, “Illiberalism within: rule of law backsliding

in the EU”,  , 19, 2017, vol. 19, pp. 3-47. ADAMSKI,

Dariusz, “The social contract of democratic backsliding in the “new EU” countries”, Common Market

, 56.3, 2019, pp. 623-666.

5 BOGDAN, Iancu, “Romanian Militant Democracy and the Time Machine”, 

https://verfassungsblog.de/romanian-militant-democracy-and-the-time-machine/