A constitution forged in crisis: The emergence of the rule of law as a constitutional principle in the EU legal order

Abstract

The rule of law crisis and the response by national and EU institutions undoubtedly constitutes one of the most significant challenges faced by the EU in the last decades. In the absence of a political response under Article 7 TEU, two institutions took the lead in the response to autocratic governments. The Commission with the Rule of Law Framework flashed out a more ambitious concept of the rule of law applicable to backsliding in the Member States. The Court of Justice, in the seminal Portuguese judges case set out an obligation for Member States to ensure the functioning of independent courts as a guarantee for the right to effective judicial protection through a combined reading of Article 19 (1) TEU, Article 2 TEU and Article 4 (3) TEU. The legislator followed suit with the Conditionality Regulation.

This contribution traces the transformation of the rule of law into a constitutional principle in the EU legal order. It investigates whether and how the rule of law (and its components such as judicial independence) has emerged as a constitutional principle in the EU’s internal domain by complementing the early structural principles whose aim was to ensure the effectiveness and autonomy of EU law. The chapter traces the emergence of the rule of law first as part of the EU pre-accession conditionality and then as part of obligations for Member States. Then it analyses the role of the Commission and the Court of Justice. Finally, it reflects on the nature of the principle and its potential emancipation as a self-standing and independently enforceable constitutional principle.