Elephants in the Room: The European Commission’s 2019 Communication on the Rule of Law

Abstract

This contribution honouring Prof. Martin Krygier scholarship provides a brief critical reading of the European Commission’s July 2019 Communication on the Rule of Law (COM(2019) 343 final). It argues that although the Commission’s effort is welcome, the Communication fails to correctly identify the core problem related to the Rule of Law in the EU, which is the constitutional capture in the illiberal regimes. The failure to identify the core problem with unequivocal precision and spell out its key elements as well as dissect its causes undermines the likely effectiveness of the tools proposed by the Commission to address the unnamed and unanalyzed ongoing Rule of Law concerns. Consequently, the Communication is lacking in vital essentials, if not vacant at the core.

Keywords: COM (2019) 343 final, Rule of Law, EU Law, Illiberal democracy, EU values, enforcement, Poland, Hungary