Defending the rule of law in the European Union : is it sufficient to “police” EU values?

Abstract

Ongoing events in the European Union (EU), particularly in Hungary and Poland, have seen an aggressive government-driven dismantling of prominent Rule of Law (RoL) elements such as the separation of powers and the independence of the judiciary, a phenomenon identified as “RoL backsliding”. Since the RoL is one of the values the EU is founded on, as established in Article 2 of the Treaty on the European Union, the situation sparked a debate over how to best defend EU values, and particularly the RoL, within the EU. This thesis contributes to the debate by showing through an evaluation of the state of play alternative ways to effectively defend the RoL. After outlining the principle of the RoL and its legal status in the EU, this research explores the nature of RoL backsliding and why this is problematic for the Union. The EU’s response to RoL backsliding since its onset in 2011 is then critically assessed. This case illustrates that initial challenges hindering effective RoL protection through non-legal or soft mechanisms have shifted the EU’s response to favour an enforcement-oriented top-down approach. It is argued that this approach fails to deter RoL backsliding as it does not address its social dimension, i.e. the understanding and practice of the RoL in society, which actively shapes the phenomenon. An alternative bottom-up and citizen-enhancing approach where civil society organisations are central to the EU’s strategy is illustrated, leading to recommendations for further EU action. Keywords: Rule of law, EU values, EU law, rule of law backsliding, civil society, civil society organisations