The Rule of Law in the European Union: The Internal Dimension Modern Studies in European Law

Abstract

This is a book about the rule of law in the European Union (EU) as a principle upon which the EU is founded. It focuses upon the internal dimension of the rule of law in the EU—that is the rule of law as it applies to the EU institutions, the Member States’ authorities and EU citizens. Our starting point is that the EU is a community based on law which adheres to and promotes a set of values which are in their majority common between the Member States. The preservation of these values (including, for instance, the prohibition of arbitrariness and respect for fundamental rights) is pivotal to the success of European integration and the well-being of the individuals within it. Hence, the ability of the EU to enforce respect to the rule of law by all actors that partake to European integration is a condition sine qua non of its existence. Our focus on enforcement will not neglect ‘design’. Instead, this book will dedicate equal space to both components of the rule of law. It will commence in Part I by providing an analytical guide to the meaning, legal geography and protection of the rule of law in the EU and will proceed by providing an account in Part II of the EU standards in place to ensure its respect, at both the EU and domestic level. It will also consider whether these standards are appropriate for the EU to protect the principle upon which it is founded.

The book contains six chapters and is virtually divided into two parts: i) Design conceptualisation/location/interpretation); ii) Enforcement (disciplinary function of the EU rule of law). The first part on Design presents the constitutional protection of the rule of law in the EU legal order. Chapter 1 (‘Foundations’) provides some background viz the book’s conception of the rule of law and the two subsequent chapters provide insight into the substance of the EU rule of law. In particular, Chapter 2 (‘Conceptualising the EU Rule of Law’) sets up the origins and definitional contours of the EU rule of law, whilst Chapter 3 (‘Locating the EU Rule of Law’) focuses on the legal geography and express commitment undertaken by all Member States to safeguard the rule of law. It analyses the relevant provisions of the Treaty of Lisbon and the EU Charter of Fundamental Rights that refer to the rule of law in a declaratory fashion and cherry picks certain justiciable principles that underpin it as a restraint against abuses of power. It also analyses the rule of law as a juridical construction looking, in particular, at the way the CJEU has championed in its case law the concept of a Union based on the rule of law. In particular, it examines the degree to which the EU institutions and Member States alike are held to the law and are thereby subject to the jurisdiction of the CJEU.

The second part of the book on Enforcement focuses on the EU rule of law in action. It is divided into two chapters. Chapter 4 (‘Holding EU Institutions to the Rule of Law’) looks into rule of law enforcement against the EU institutions viz substantive due process. On a similar note, Chapter 5 (‘Holding Member States to the Rule of Law’) discusses the ability of the EU as a community based on the rule of law to exercise democratic oversight over its Member States and sanction them via the public enforcement ‘infringement’ procedure pursuant to Articles 258–260 TFEU which is designed to compartmentalise and remedy EU law breaches. It also looks into the broad political sanction mechanism of Article 7 TEU. While the former procedure is aimed at addressing any breach of EU law, the latter is a nuclear option, aimed to tackle serious and continuing breaches of the values enshrined in Article 2 TEU, the rule of law inclusive.

The conclusive chapter brings the book’s findings together and entertains the idea of the EU rule of law expanding beyond the reach of the EU—the notion of a wider ‘global’ rule of law underpinning international constitutionalism and global governance—one based on commitment and solidarity from all actors that partake in European integration.

Keywords: Rule of Law, EU Law, Public Law