De Facto Power Grab in Context: Upgrading Rule of Law in Europe in Populist Times
XL Polish Yearbook of International Law (2021) 197-208
12 Pages Posted: 7 May 2021 Last revised: 27 Jan 2022
Date Written: May 5, 2021
Abstract
Over the last three years EU law has experienced a veritable revolution triggered by the Court of Justice’s rethinking of the fundamental aspects underpinning both EU’s competence to deal with Rule of Law matters (especially related to the independence and irremovability of judges at the national level), and the substantive understanding of the key elements of the Rule of Law pertaining to the newly-found competence. An upgraded approach to interim relief in the matters related to the Rule of Law completes the picture. As a result, EU law has gone through a profound transformation and the assumptions as to the perceived limits of its reach as far as the organization of the national judiciaries goes no longer hold. There is also the opposite side to this ‘Rule of Law revolution’, however. While its effectiveness in terms of bringing recalcitrant Member States back on track has not been proven (and Poland and Hungary stand as valid reasons for being in doubt); the division of powers between the Member States and the EU has been altered forever. Rule of Law thus emerges as a successful pretext for a supranational power grab in the context of EU federalism. The picture is further complicated by the fact that the substantive elements of the Rule of Law required by the Court of Justice of the European Union of the Member States’ judiciaries are seemingly perceived as inapplicable to the supranational level itself. These include structural independence from other branches of power and the safeguards of the guarantees of irremovability and security of tenure of the members of the judiciaries. All elements considered, the glorious revolution appears to have triggered at least as many questions as it has provided answers, while being entirely unable to solve the outstanding problems on the ground in the Member States experiencing significant backsliding in the areas of democracy and the Rule of Law.
Keywords: Rule of Law, Backsliding, Judicial Independence, Court of Justice, Hungary, Poland
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