UNIVERSITÄT ZU KÖLN

The European rule of law: a common value with pluralist implementation?

László Detre

The precise content and the enforceability of the principle of the rule of law – as a founding value of the EU, common to the Member States enshrined in Article 2 TEU – has been in the focus of much discussion, evaluation and interpretation during the last decade. Yet, the wider theoretical debate around it has been ongoing for a longer time. In the legal system of the EU, the picture is getting clearer now. The Court of Justice of the European Union has established a firm case-law on the interpretation of the rule of law, especially on judicial independence in connection to Article 19(1) TEU. Furthermore, there is a legal provision in the EU’s legal system that provides for a comprehensive rule of law definition [Art 2(a) of the Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget].

In light of the recent legal developments, it shall be demonstrated that that the principle of the rule of law as enshrined in Article 2 TEU, while imposing normative demands (i.e., a list of requirements) on the Member States, it is not capable of endangering their constitutional autonomy. The thesis considers that the compliance with the rule of law always – in any legal system – happens in a re-active way due its essentially negative nature. Conceiving the EU rule of law principle as a list of non-derogation requirements it is to be proved that the erosion of the rule of law in Member States can be normatively countered without requiring homogenous positive measures. As such, the rule of law under Article 2 TEU never indicates the concrete solution that is required from a Member State but only what cannot be done. This means that Member States may not claim that their constitutional autonomy, or constitutional identity is endangered. The thesis – based on a theoretical foundation conceiving the rule of law as a list of negative requirements (i.e. prohibitions) – evaluates the EU’s conception of the rule of law, crystalizing its normative requirements.