Europe's Rule of Law Crisis: An Assessment of the EU's Capacity to Address Systemic Breaches of its Foundational Values in Member States
| Author | Patrick Lavelle |
| Position | LLM, BA and Scholar of Trinity College Dublin |
| Pages | 35-50 |
© 2019 Patrick Lavelle and Dublin University Law Society
EUROPE’S RULE OF LAW CRISIS: AN
ASSESSMENT OF THE EU’S CAPACITY TO
ADDRESS SYSTEMIC BREACHES OF ITS
FOUNDATIONAL VALUES IN MEMBER STATES
PATRICK LAVELLE
Introduction
Article 2 of the Treaty on the European Union states:
The Union is founded on the values of respect for human dignity,
freedom, democracy, equality, the rule of law and respect for human
rights … These values are common to the Member States.
1
The rule of law is one of the fundamental values upon which the European
Union (EU) claims to be founded. Along with the other values proclaimed
common to all Member States and therefore as ‘constitutive to the European
identity’.
2
Indeed, the values are considered ‘the cornerstone of European
integration’.
3
However, in recent years, a crisis has emerged within the EU
with significant deviation from the rule of law seen in several Member
States. This article seeks to analyse the EU’s capacity to respond to breaches
of the rule of law in Member States.
Section I of this article will commence by setting out the background
context, positing the functional and normative importance of the values in
Article 2, and offering an argument for why EU action is necessary in cases
of systemic breaches of the rule of law. It will present the cases of Poland
and Hungary, two countries whose governments are alleged to have
systemically undermined the rule of law. The article will then move onto its
substantive analysis on the EU’s capacity to take such action. Section II will
LLM, BA and Scholar of Trinity College Dublin. The author would like to thank Dáire
McCormack-George, James Rooney and Jean McCarthy for their suggestions and insightful
comments on earlier versions of this article.
1
Consolidated Version of the Treaty on European Union [2008] OJ C115/13, art 2.
2
Alina Kaczorowska, European Union Law (3rd edn, Routledge 2013) 28.
3
Armin von Bogdandy and Michael Ioannidis, ‘Systemic Deficiency in the Rule of Law: What
it is, what has been done, what can be done’ (2014) 51 Common Market Law Review 59.
Trinity College Law Review [Vol 22
36
comprise its primary analysis, focusing on the method prescribed in the
Treaties for addressing such breaches, namely Article 7 TEU, which it will
show to be a rather limited instrument in practice in addressing the current
crisis. As a result, the article will also briefly examine other possibilities for
enforcement of the rule of law. Section III will examine possibilities for
enforcements through infringement proceedings under Articles 258 of the
Treaty on the Functioning of the European Union (TFEU), while Section IV
will examine the role of national courts following the CJEU judgment in
Minister for Justice and Equality v LM.
4
This article will conclude that while
these formal instruments provide some tools to the EU to address breaches
of its values in Member States, they are quite limited and leave the EU’s
institutions unable to conclusively address the crisis facing the Union.
I. Article 2 TEU Values
The rationale of this article for studying the rule of law in the EU is founded
on the functional and normative importance of the EU’s founding values,
including the rule of law. This article adopts a definition of the rule of law
offered by the European Commission, which defines it as a term that
includes, but is not restricted to, ‘legality, which implies a transparent
accountable, democratic and pluralistic process for enacting laws; legal
certainty; prohibition of arbitrariness of the executive powers; independent
and impartial courts; effective judicial review including respect for
fundamental rights; and equality before the law’.
5
This is an effective
working definition as it offers a comprehensive understanding of the rule of
law, which draws from the common constitutional traditions of Member
States, CJEU case law and Commission statements.
6
The functioning of the EU legal order rests upon the assumption of
mutual trust, that all national and EU institutions are law-abiding, and
mutual recognition of judicial decisions, which together enable the existence
of ‘Europe’s regulatory and judicial interconnected space’.
7
Thus,
functionally, where one Member State ceases to uphold the rule of law, not
4
Case C-216/18 PPU Minister for Justice and Equality v LM [2018] OJ C190.
5
Commission, ‘Reasoned Proposal in Accordance with Article 7(1) of the Treaty on European
determination of a clear risk of a serious breach by the Republic of Poland of the rule of law’
COM (2017) 835 final, 2.
6
European Parliamentary Research Service, ‘Understanding the EU Rule of Law Mechanisms’
(January 2016) PE.573.922, 6.
7
Dimitry Kochenov and Laurent Pech, ‘Monitoring and Enforcement of the Rule of Law in the
EU: Rhetoric and Reality’ (2015) 11 European Constitutional Law Review 512, 521.
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