The Rule of Law in the EU: The Evolution of the Treaty Framework and Rule of Law Toolbox

Abstract

The history of the rule of law in the EU Treaty framework has been one of gradual but extensive process of entrenchment and formal enshrinement. While it may be argued that the founding Treaties did protect the rule of law to the extent that they provided for a supranational and independent court with a wide jurisdiction to guarantee that the “law is observed”, it was not until a 1986 judgment of the Court of Justice that the rule of law was explicitly and prominently referred to in a ruling in which the then European Community (EC) was described as “a Community based on the rule of law”. This first judicial reference was followed, starting in 1992, by multiple and important references in the EU’s founding Treaties When comparing the evolution of the Treaty framework to the evolution of the EU’s rule of law toolbox, it is difficult not to be struck by the contrast between the gradual evolution of the Treaty framework with the rapid development of the EU’s rule of law toolbox. This swift development and densification of the EU’s rule of law toolbox may be understood both in a positive and negative way: It may be positively understood as the sign of a broad consensus regarding the critical importance of the rule of law and an increasing awareness of the existential nature of the threat that rule of law backsliding poses to the EU. Conversely, this evolution may be understood as a failure to fully confront those who have deliberately undermined the rule of law in their countries by instead focusing in a quasi-permanent new instrument creation cycle at the EU level.