Rule of Law Crisis in the New Member States of the EU: The Pitfalls of Overemphasising Enforcement

Abstract

The European Union and the Member States seem to be doing as little as they can against rule of law backsliding in some of the EU's constituent parts. Each of the EU institutions came up with their own plan on what to do, inventing more and more new soft law of questionable quality. All that is being done by the institutions seems to reveal one and only one point: there is a total disagreement among all the actors involved as to how to sort out the current impasse. This inaction helps the powers of the backsliding Member States to consolidate their assault on EU's values even further.

The core question is how to ensure that the EU's own rule of law be upheld. Authors argue that the most mature answer to the problems should necessarily involve not only the reform of the enforcement mechanisms, but the reform of the Union as such, as supranational law should be made more aware of the values it is obliged by the Treaties to respect and aspire to protect both at the national and also at the supranational levels. EU law should embrace the rule of law as an institutional ideal, which implies, inter alia, eventual substantive limitations on the acquis of the Union, as well as taking EU values to heart in the context of the day-to-day functioning of the Union, elevating them above the instrumentalism marking them today.

Keywords: Rule of Law, Poland, Hungary, Backsliding, Democracy, Constitutional capture