The Manifestations of the EU Rule of Law and Its Contestability: Historical and Constitutional Foundations
Journal of Constitutional History 2022
21 Pages Posted: 17 May 2022 Last revised: 10 Jul 2022
Date Written: April 29, 2022
Abstract
On the 16th of February 2022, the Court of Justice of the European Union (‘Court of Justice’) in Cases C-156/21 and C-157 Hungary and Poland v. Parliament and Council sitting in plenary session stated remarkably and in light of Article 2 TEU that the Rule of Law in the European Union constitutes a foundational principle of EU law based on the principle of solidarity. In this judgment, which relates to the legality of the Regulation on budgetary conditionality, the understanding of the Rule of Law by the Court of Justice appears to be a legal or constitutional self-evidence based on solid precepts rooted in the text of Article 2 TEU. Yet, from historical and general perspectives, the Rule of Law has always been a contested concept. But can we really posit the same in the EU law context? And if it is a contested concept, what is then the exact nature of the contestation? The aim of this article is to answer these two questions. The article will first look at the evolution of the concept of Rule of Law in the European Union from the early years of EU integration to its most recent manifestations. A comparison will be established between the doctrine of the Rule of Law and the doctrine of general principles in order to understand better its constitutional development. Secondly, we will analyze the nature of the present contestations which takes the form of the Rule by Law in ‘Illiberal Democracies’ such as Hungary and Poland. This new counter Rule of Law-narrative is in fact fueled by two basic ingredients: populism and legalism. Notably, we will argue in this essay that the Rule by Law imposed by these illiberal States on their citizens constitutes not only the main source of contestation of the doctrine of the Rule of Law in EU but also its main source of evolution. In other words, the application of the Rule by Law by the illiberal States fosters in turn the concretization of the Rule of Law in the European Union.
Keywords: Rule of Law, EU Law, Europea, European Court of Justice, Article 2 TEU, Rule by Law, populism, legalism
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