Trading rule of law for recovery? The new EU strategy in the post‐Covid era

• Published date: 01 January 2021
• Author: Louise Fromont,Arnaud Van Waeyenberge
• Date: 01 January 2021
• DOI: http://doi.org/10.1111/eulj.12426

VARIETY

Trading rule of law for recovery? The new EU

strategy in the post-Covid era

Louise Fromont

*

| Arnaud Van Waeyenberge

*

Abstract

The ambition of this article is twofold. First, it argues that, in order to enhance respect for the rule

of law by its Member States, the EU has launched a new strategy albeit essentially based on mecha-

nisms which were not specifically designed to protect the rule of law. Second, the article aims to

clarify the notion of rule of law resulting from this strategy and to subsequently analyse its conse-

quences. In doing so, this article will thereby demonstrate that the instruments used by the new

strategy promote a notion of the EU rule of law which implies a constant arbitrage between the rule

of law and the economic objectives pursued by the EU. The risk may be, however, that it would sub-

jugate fundamental values (as defined in Article 2 TEU) to the logic of European economic integra-

tion, thus inverting the hierarchy between protection for the rule of law and economic values.

1|INTRODUCTION

The rule of law constitutes a cornerstone of the European Union (EU) and is considered to comprise the ‘basis of all

genuine democracy’

1

and to be ‘the backbone of any modern constitutional democracy’.

2

Both the preamble to the

Treaty of the European Union (TEU) and the preamble to the Charter of Fundamental Rights of the EU (CFR) depict

the rule of law as being a form of common heritage, one that is deeply grounded in shared cultural beliefs and consti-

tutional traditions. In its resolution of 25 October 2016, the European Parliament described the rule of law as being

the ‘prerequisite’for other values and fundamental rights in the EU, as well as the European project itself.

3

This is

because the rule of law is one of the fundamental values of the EU which are intended to be shared by the Member

States under Article 2 TEU. Moreover, respect for the rule of law constitutes a precondition for joining the EU.

4

Con-

sequently, to ensure its legitimacy—both internally and externally—the EU must abide by the rule of law.

* Louise Fromont is a post-doctoral researcher (F.R.S.-FNRS) and lecturer at ULB (louise.fromont@ulb.be). Arnaud Van Waeyenberge is an associate

professor at HEC Paris (van-waeyenberge@hec.fr). We are very grateful to Gabor Halmai, David Restrepo Amariles, Cecilia Rizcallah and Armin

Steinbach, who provided their useful comments on previous versions of this article. All remaining errors, mistakes and controversial points of view

remain our own. This research is part of the MEDROI project (ANR-21-CE41–0004-01).

1

Preamble to the Statute of the Council of Europe.

2

European Commission, A new EU Framework to Strengthen the Rule of Law, COM(2014) 158 final, 2.

3

European Parliament, Resolution of 25 October 2016 with recommendations to the Commission on the establishment of an EU mechanism on democracy, the

rule of law and fundamental rights (2015/2254(INI)), 25 October 2016, point H.

4

Article 49 TEU.

Received: 25 April 2022 Accepted: 25 April 2022

DOI: 10.1111/eulj.12426

132 © 2022 John Wiley & Sons Ltd. Eur Law J. 2021;27:132–147.wileyonlinelibrary.com/journal/eulj

For several years, the EU has faced a crisis of values, one that has been characterised by a systemic deterioration

of the EU's founding values in certain Member States, leading to the so-called “rule of law crisis”.

5

In particular, two

Member States—Hungary

6

and Poland

7

—are experiencing a significant decline in the rule of law,

8

a trend which has

involved the establishment of electoral autocracies that seek to undermine the limits placed on the exercise of exec-

utive power, so that the dominant political party may remain in power in the long term.

9

This is highly problematic

since threats to the rule of law in one Member State might rapidly spread or promote such spread to other Member

States, thereby undermining not only the trust EU citizens place in national and European authorities but also the

mutual trust among EU countries

10

and of the international community towards the EU. Even if EU law provides dif-

ferent political and judicial mechanisms to fight against this backsliding, they have already reached their limits in

ensuring rule of law protection for both political and legal reasons.

11

In this respect, the fight against the Covid-19 crisis has created an opportunity for the European institutions to

effectively ensure the rule of law in Member States in the sense that the EU has opted to link European economic

recovery to respect for the rule of law. In doing so, the EU has promoted a new strategy which relies on economic

and fiscal instruments that were neither specifically designed nor envisioned to protect the rule of law, namely the

European Semester, the Multiannual Financial Framework (MFF) and the protection of the EU's financial interests.

As such, the ambition of this article is to scrutinise this new strategy recently adopted by the EU and to critically ana-

lyse the instruments used by the EU in the wake of the Covid-19 crisis to ensure respect for the rule of law in Mem-

ber States. To this end, a pragmatic approach to law coupled with an instrument-based approach will be used.

Pragmatism refers to a ‘philosophy of action, oriented towards innovation, which seeks today, in the legal field,

to develop practical solutions to the concrete questions and problems raised by the Regulation and respect of rights

in post-national environments’.

12

This methodology appears adequate for grasping and understanding the precise

meaning given to the rule of law in the context of this new strategy. Indeed, it allows us to study the rule of law from

the point of view of its application in a concrete situation, one wherein it takes on its meaning and its effects are pro-

duced. From a pragmatic standpoint, the value of a norm does not depend so much on its origin or its author; rather,

‘the interest of an object, a norm, a device is often measured less by the quality of its “pedigree”than by the impor-

tance of the regulatory effects it produces’.

13

In other words, law is its application.

14

Utilising suchan instrument-based approach entails investigating‘the sum of issues that arise fromthe choice and

use of tools (techniques, means ofoperation, devices) which allowfor the materialisationand operationalisation ofgov-

ernment action. It is not only a question of understanding the reasons which lead to choosing one instrument over

5

For an analysis of this crisis: L.D. Spieker, ‘From Moral Values to Legal Obligations: On How to Activate the Union's Common Values in the EU Rule of

Law Crisis’, (2018) 24 Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper, 28; M. Smith, ‘Staring into the Abyss: A

Crisis of the Rule of Law in the EU’, (2019) 25 European Law Journal, 561.

6

For an overview of the situation in Hungary, see G. Halmai, ‘Hungary's Transformation and the Complicity of the EU’, (2021) Georgetown Journal of

International Affairs.

7

For an overview of the situation in Poland see L. Pech, P. Wachowiec and D. Mazur, ‘Poland's Rule of Law Breakdown: A Five-Year Assessment of EU's

(In)Action’, (2021) 13 Hague Journal of Rule of Law,1.

8

L. Pech and K.-L. Scheppele, ‘Illiberalism Within: Rule of Law Backsliding in the EU’, (2017) 19 Cambridge Yearbook of European Legal Studies,3.

9

L. Burgorgue-Larsen, ‘Populisme et droits de l'homme. Du désenchantement à la riposte démocratique’, in E. Dubout and S. Touzé (eds.), Refonder les

droits de l'homme. Des critiques aux pratiques (Pedone, 2019), 199–261; O. Macovei, ‘L'

Etat illibéral dans l'Union européenne, essai de conceptualisation’,

(2018) Civitas Europa, 127.

10

For an example of the undermining of mutual trust, see CJEU, C-411/10 N.S. and C-493/10 M.E. and Others, EU:C:2011:865.

11

For an analysis of political and judicial mechanisms, see the contribution of Petra Bard in this issue: P. Bard, ‘In Courts We Trust, or Should We? Judicial

Independence as the Precondition for the Effectiveness of EU Law’, (2022) 27 European Law Journal.

12

B. Frydman, ‘Le droit global selon l'

Ecole de Bruxelles: l'évolution d'une idée centenaire’, (2014) Centre Perelman Working Paper 3. See also R. Summers,

‘Pragmatic Instrumentalism in Twentieth Century American Legal Thought: A Synthesis and Critique of Our Dominant General Theory about Law and Its

Use’, (1980–1981) 66 Cornell Law Review, 861–948 and T. Tamanaha, ‘Pragmatism in U.S. Legal Theory: Its Application to Normative Jurisprudence,

Sociolegal Studies, and the Fact-Value Distinction’, (1996) 41 The American Journal of Jurisprudence, 1, 315.

13

B. Frydman, ‘Comment penser le droit global?’, in J.-Y. Chérot and B. Frydman (eds.), La science du droit à l'ère de la globalisation (Bruylant, 2012), at 26.

14

J. Dewey, ‘My philosophy of law’,inMy Philosophy of Law: Credos of Sixteen American Scholars, Julius Rosenthal Law Foundation (Boston Law Books,

1941), at 73 and L. Israel and J. Grosdidier, ‘John Dewey et l'expérience du droit. La philosophie juridique à l'épreuve du pragmatisme’, (2014) Tracés. Revue

de Sciences humaines, 27.

FROMONT AND VAN WAEYENBERGE 133