Prepared as a contribution for SMU Apolitical’s Primer on the Rule of Law (2022).

Does a regional rule of law exist within the European Union? If so, what does it look like?

The bureaucratic machinery of the European Union (EU) today is considered by many to be highly arcane, and inaccessible to the layperson. Its complex and interwoven supranational institutions are seemingly unparalleled worldwide, making them difficult to compare with other international governance mechanisms^[1]. 

Fundamentally, the EU operates primarily on the system of supranationalism, which refers to the exclusion of individual member-state preferences, institutions, and interests from its agenda-setting and policy-making processes^[2]; intergovernmentalism, the contrasting theory of international institutions which focuses more on individual member-state interests, exists as well but to a very limited extent. Thus, the EU’s establishment of the rule of law would have to be unique unto itself in form and substance. It is the only regional power at the moment that can reasonably claim to establish a rule of law across borders.

The rule of law today, as outlined in the framework, is observed to imply and be defined by a set of institutional attributes, or a series of human goods which it provides^[3]. However, we will be using the EU’s own standard, which can be observed in the 2011 Report on the Rule of Law, published by the Venice Commission of the Council of Europe, the organization which oversees the implementation of the European Convention on Human Rights^[4]. While the Council of Europe is officially separate from the EU, the EU accepts the Council of Europe as “the benchmark for human rights, the rule of law and democracy in Europe.”^[5] The conditions which the Venice Commission accepts are: (i) the supremacy of law, (ii) legal certainty, (iii) no arbitrariness, (iv) access to justice before independent and impartial courts, (v) respect for human rights, and (vi) non-discrimination and equality before the law. This thick understanding of the rule of law is increasingly relevant to the EU, especially as it struggles to uphold it in the face of internal detractors.

The Main Institutions of the European Union

The institutions of the EU would evolve over the 20th Century, with the many treaties, regulations, and agreements underpinning the European integration project eventually being consolidated in 2009 through the Treaty of Lisbon. Article 13 of the Treaty on European Union (TEU) states that these institutions are the European Parliament (EP), European Council (EUCO), the Council of the European Union (the “Council”), the European Commission (EC), the Court of Justice of the European Union (CJEU), the European Central Bank (ECB), and the Court of Auditors (CoA)^[6] . All these institutions and their subsidiary entities are important to the governance of the European Union and its member states; for the purposes of understanding the European Rule of Law, however, the EP, Council, and EC are fundamentally important to the legislative and executive processes of the EU and creating the rule of law, while the CJEU is given the role of upholding and enforcing it.

European Commission (“EC”)

The European Commission functions as the executive branch of the EU, while also taking a role in the legislative process. It is made up of 27 commissioners – one from each member-state – each taking up a semi-ministerial position under a specialized portfolio which mix-and-match between services provided by the EC that are shown in the table below. For example, the EC is intended to be an organ separate from the interests of the member-states, and functioning purely in the interests of the union as a whole^[7]. Thus, it can be said that the EC is the leading supranational legislative organ of the EU, and this is reflected in the lawmaking process, where all bills and proposals originate from the EC.

Council of the European Union (“the Council”)

The Council of the European Union is made up of the political leaders of each member-state, all of whom vote on legislation proposed by the EC and represent the interests of their countries^[8]. Through this process, it is thought that supranational proposals for integration put forth by the EC may still be subject to national interests through Council approval. This much is further cemented by the need for approval from the Council in selecting all Commissioners^[9]. The Council represents the intergovernmental constraints placed upon the EU, and while the drafting of bills and proposals itself is conducted by the EC, the Council sets a general agenda and pace for European integration. It guides the legislative process and overall direction of the EU and encourages European leaders to move beyond their own national interests, while providing an avenue to protect those seen as crucial and sensitive.

European Parliament (“EP”)

The European Parliament is the democratic element of the EU. Although it is the only European institution whose members are directly voted in by European citizens, there has always been a democratic deficit since its inception, due to the lack of power accorded the EP^[10]. While it might be convenient to think of the EP as a lower-house of a parliament and the Council as the upper-house, the reality is that the EP holds little legislative power. It does not create legislation in the same way the US House of Representatives or the UK House of Commons might. Instead, proposals come externally from the EC with extensive consultation from the Council, and the EP is given limited opportunity to affect amendment should they find it unsatisfactory, since both the Council and EP have to approve legislative changes. Prior to the Treaty of Lisbon, proposals passing through the EP were seen as take-it-or-leave-it; today, they are given space to negotiate with the Council for a compromise, failing which they may enact an unconditional veto. In addition to this legislative role, the EP is also assigned the role of overseeing the budgetary management of the EC, which it has used in the past as a political weapon against the EC^[11].

Court of Justice of the European Union (“the CJEU”)

The Court of Justice of the European Union (CJEU) has the role of settling legal disputes between EU institutions, national governments, and the individuals, companies, or organizations who live within the EU’s jurisdiction^[12]. The CJEU’s work is divided between its two courts, the General Court and the European Court of Justice. For the interests of this primer, the ECJ is of greater interest because its area of responsibility is more relevant to the idea of the rule of law in Europe. This is elaborated by their website, which defines their primary task as to “examine the legality of EU measures and ensure the uniform interpretation and application of EU law.”^[13]

Creating and Enforcing European Law

The EU as a Liberal Institutionalist Project

Fundamentally, the EU is a liberal institution, or at least views itself as such. Its features can only be understood if you take into account the assumptions made about states and inter-state behaviour in liberal theory^[14]. The assumptions in new liberal theory may be summarized as such^[15]: individuals and groups of individuals are the most important actors in international politics, states are representative institutions and not actors in and of themselves, and outcomes in international politics are dependent on how independent state preferences are configured. This is especially significant considering that any large-scale change to the EU’s functioning, like new treaties or amendments, have to be ratified by individual national legislatures of the member-states after passing the EU’s legislative process. It must be noted, however, that this understanding of liberal institutionalism and how it affects the European legislative process is not a vindication of this theory of international relations; rather, it is necessary to understand the EU because the EU was designed to work within this framework. Experience throughout the history of the EU shows that other theories of international relations may yet apply to the EU’s functioning. While we will be covering the paradigm of constructivism later through recent academic attempts to recontextualize the EU as a normative power, it is also significant to note that realism has played a significant role in inter-state relations between member states as well^[16]. However, the liberal institutionalist framework is particularly important because it is foundational to the assertion that a rule of law existing above the sovereign state is even possible to begin with^[17].

The first assumption foregrounds itself in a pluralist conception of society, characterized by competing interests and values, with varying influences held by different members or parts of society. These interests and the rational individual pursuit of them by members of society then define the political agenda. Thus, state preferences arise primarily from social preferences, and with each individual European state having different political systems and cultures, this creates an observed lack of monopoly on what the EU’s interests are^[18]. Thus, the source of the pluralistic norms purported by the EU is in contention; whether these norms arose from a genuine common European desire for peace motivated by the experience of lifetimes of war on the continent, or are merely the best-fit set of norms that can reasonably accommodate all the interests and values represented on the continent^[19].

The second assumption is that states are assumed to be representative institutions for their societies, and not actors in and of themselves. This debate is highly complex when framed in a European context, particularly because there have been many questions of “actor-ness” within the EU itself. However, the question of whether the supranational style of government in the EU challenges the liberal constitutionalism which it purports to uphold^[20] can only be resolved if one considers the belief that the central institutions of the EU – the Commission, Council, and Parliament – provide representation for all the member-states while limiting independent action, thus actively removing the role of an actor from the state and viewing them more as a representative institution.

The final assumption is that outcomes in international politics are dependent on state preference configuration. This ties in with the theory of the Two-Level Game by Robert Putnam^[21], which describes the interplay between domestic politics and foreign policy: states have to bargain internally with domestic political actors (Level 1), and internationally with foreign counterparts (Level 2). As a state is a representative of their domestic interests and not an actor in and of themselves, they are bound to obtain deals that are beneficial to domestic interests. In order to obtain a negotiated deal, both states must have overlapping interests, conditions to the deal that is acceptable to them both. An astute state therefore seeks to obfuscate his own interests while ascertaining the other’s true interests, in order to gain the deal most beneficial to them. Thus, the configuration of domestic interests and the state’s representation of those interests interact symbiotically, as domestic interests change state foreign policy and states use domestic policy to try and change those same interests.

An illustration of the institutionalization of these assumptions at the core of the EU, and simultaneously a critique of it, would be the failure of the Treaty establishing a Constitution for Europe (TCE), which was rejected by the French in a referendum and by the Dutch in a consultative referendum. Although the TCE was mostly an attempt to unify the existing European treaties and thereby simplifying/reformulating institutional framework and decision-making procedures^[22], the term “Constitution” was easily connected to a movement towards federalism, a move that many did not agree with and that was successfully used by a variety of political voices to rally resistance to it^[23]. Attempts to explain this rejection mostly revolve around the age-old problem of the EU: an inability to ensure a proper pluralist airing of EU policies in the way national policies tend to be, and a sense of disconnect from what is perceived as the elite bureaucrats in Brussels^[24]. What the experience of the TCE showed as well was a general inability and lack of appetite to define a common set of values in the way that one would expect from a constitutionalist system. Rather, the TCE was “a simple functional consequence of the process of market integration… as a logical consequence of the constitutionalization process without any constitutional debate.”^[25] In this respect, the states acted out of their own interests, relatively uninformed by their populations; it was a mostly strategic attempt at hegemonic preservation to entrench their place and privilege in the prevailing EU system, which is a mostly realist assessment^[26]. This illustrates the possibility of the actual interactions of the EU member states running counter to the institutionalized liberal assumptions.

Applied to the EU, many modern conceptions of rule of law tend to require legitimate legislative bodies democratically elected by general suffrage and which are empowered to legislate for the community as a whole^[27]. However, the EP, while democratically elected and legitimate, does not have as much power to legislate for European citizens as we would expect. The investment of most legislative power into the EC and Council only makes sense if one believes that the governments of member-states negotiating through the Council accurately represent their domestic interests. This is reflected through the qualified majority voting mechanism^[28] by which the Council approves of laws.

Interactions Between European and National Law

Being a regional power, for any European rule of law to exist, its law must be authoritative and observed not just by its institutions and citizens, but also the institutions of the member-states as well.

Theoretically, law is derived in national polities from the national constitution. Thus, lawmakers and the judiciary are required to observe that all the subsequent laws they create are compliant with the national constitution. However, with the introduction of the European treaties as a source of European law similar to that of a national constitution, this creates a conflict between these two sources of law. This manifests itself in two particular realms: in the legislative realm as the concepts of competencies and harmonization, and in the judicial realm as the doctrine of supremacy of EU law.

The concepts of competencies and harmonization are inseparable. When we speak of harmonization, we refer to the process of creating consistency in legislative practices across member-states, in order to reduce compliance burdens when operating across member-states either as a business or as an individual. It is important to differentiate harmonization of law from unification of law; the unification of law across Europe would imply that all member-states enact the same laws in both form and substance. Harmonization is a less drastic method of transposing law that respects local circumstances by only requiring that the fundamental legal principles are transposed. Competencies, then, control the level to which the EU may request or enforce harmonization from its member-states.

For all that the EU is, it is still nothing more than a regional organization positively empowered by member states to take certain actions. This is reflected in the concept of “competencies”. A competency refers to an area on which the EU is able to make binding regulation and legislation on and the scope of their legislative power. These areas have been agreed-on by member-states in the Treaty on the Functioning of the European Union (TFEU). Three forms of competencies exist, and are outlined in Articles 2-6.

1. Exclusive competence confers on the EU the exclusive power to legislate and adopt legally binding laws, and member-states are only permitted to do so in these areas if for the purpose of “harmonizing” their national law with EU law, or if otherwise empowered to do so by the EU^[29].
2. Shared competence confers both the EU and member-states the power to legislate on issues related to a given area. However, a member state may only make law in that area to the extent that the EU has not done so.
3. Supporting competences empower the EU only to support, coordinate, or complement the actions of member-states. Any legally-binding EU acts in these areas do not require national law to “harmonize” with it; thus, [in the event of a conflict…], national law takes precedence in these areas.

For the purposes of fulfilling these competencies, EU law can come in many forms that mandate different levels of compliance from member-states. There are 8 types of legal acts the EU can make^[30], and they are outlined in Articles 288 & 290 TFEU^[31].

1. Treaties are the primary source of law for the EU, and are treated roughly similarly to the constitution of a traditional nation-state. All actions taken by the EU are founded upon the treaties themselves.
2. Regulations are binding legal acts applying to all EU member-states automatically and uniformly upon entry into law, without needing transposition into national law.
3. Directives are binding legal acts requiring EU member-states to achieve a certain legal result within a set time-frame, but grants member-states the freedom to choose how to do so. Directives tend to stipulate either minimum harmonization, i.e. a minimum standard to which the national law must conform to the legal principle desired, or maximum harmonization, i.e. the fullest extent to which national legislation may fulfil this principle.
4. Decisions are binding in their entirety, but only on the parties to whom it is addressed.
5. Recommendations and opinions are non-binding instruments that allow EU institutions to make formal suggestions/statements and to suggest a line of action without imposing legal obligations.
6. Delegated acts are legally binding acts that allow the EC to supplement/amend non-essential portions of EU legislation, for example to define detailed measures.
7. Implementing acts are legally binding acts enabling the EC to set conditions for the uniform application of EU laws, under the supervision of representative committees.

European Legislative Processes

Given all these forms of EU law, there are multiple ways in which law can be enacted, similarly to a national government^[32]. The common point would be that these tend to involve more consultation than usual; as a regional organization, the EU has to consult national legislative bodies for legislation in any area other than one in which it holds exclusive competence.

Revising the Treaties

The treaties, similarly to a national constitution, may be amended to institutionally empower the EU to face different challenges and circumstances. Where a national constitution typically requires a parliamentary supermajority to amend, EU treaties – owing to the regional nature of the EU – require unanimous approval from all member-states to amend. There are 2 revision procedures outlined in Article 48 TEU^[33]:

The ordinary revision procedure stipulates that proposals for increasing/reducing the competences conferred on the EU may be submitted to the Council by the EC, EP, or any member-state national government. The decision to examine this proposal is then taken by a simple majority vote in the Council after consulting the EP and EC. A convention is called by the President of the European Council composed of member-state representatives, the EP, the EC, and the European Central Bank (ECB) if the amendment involves changes in the monetary area. The convention should result in the adoption by consensus of the relevant proposal(s), upon which each individual member-state must ratify these treaty changes in their respective national legislatures.

The simplified revision procedure stipulates that proposals to amend Part 3 of the TFEU, which deals with EU policies and internal actions^[34], may be submitted to the Council by the EC, EP, or any member-state national government. The Council consults the EP, EC, and the ECB in case of changes in the monetary area, and acts with unanimity to adopt a decision. The decision does not enter into force until it is ratified by the respective national legislatures of the member-states.

Institution-Driven Legislative Procedures

Most EU law that is implemented, similarly to national law, does not directly seek to amend the treaties. As such, they are driven by a separate legislative procedure.

The ordinary legislative procedure, outlined in Article 294 TFEU , is how most EU law is adopted. The EC submits a legislative proposal to the Council and the EP, who review and amend the text^[35]. During the first reading, if both institutions are agreeable to the text in its initial or amended form, the proposed law is adopted. Should the amendments be insufficient and the EP and Council cannot agree, a second reading takes place. Should the bill not pass the second reading, a “conciliation committee” is established with an equal number of EP and Council representatives, who reach a consensus with regards to the form of the bill. Should the bill then fail the third reading, the law is not adopted.

The special legislative procedure is permitted by Article 289(2) TFEU^[36]. Since the treaties themselves do not give a precise description of these procedures, the rules are defined ad-hoc and on the basis of relevant treaty articles^[37]. Under this procedure, the Council becomes the sole legislator in practice, with the EP’s consultation/consent is required. It is effectively a means to fast-track legislative proposals.

Supremacy of EU Law

The doctrine of supremacy of EU law has been upheld in a number of cases since the founding of the EEC. The two most recent landmark cases would be the ones known as the Solange cases. These cases, drawn from the German Federal Constitutional Court (BVerfG), deal with fundamental legal conflicts between the German national legal system and the European one, and its named is derived from its conclusion: solange is similar to “so long as” in English.

The case of Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel (1974), also known as Solange I, dealt with the proportionality of EU law and its right to override national law. The European Common Agricultural Policy only permits exports by exporters who obtain an export license with a deposit of money that can be lost should the handler fail to make the export during the validity period of the license. A company called Internationale Handelsgesellschaft mbH lost its deposit in accordance with the Policy. The company claimed before the German Administrative Court that the export system as a whole, and the deposit system in particular, infringed on their right under the German Constitution to conduct trade.

The German Administrative Court referred the matter to the Court of Justice for a preliminary ruling on whether the Common Agricultural Policy was valid law. In response, the Court of Justice held that “recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the Community would have an adverse effect on the uniformity and efficacy of Community law.”^[38] In other words, one could not rely on national law rules or concepts to challenge the validity of EU measures.

Following the Court of Justice’s ruling, the German Administrative Court next referred to the German Constitutional Court the question of whether the Common Agricultural Policy was compatible with the right to conduct trade in the German Constitution. In ruling that the export licensing and deposit system was compatible with the German constitution, the BVerfG held that the supremacy of European law was acceptable under article 24 of the Basic Law (i.e. constitution) in Germany, particularly because it concluded on the facts of the case that the actions against Internationale Handelsgesellschaft mbH did not constitute an infringement of the appellant’s fundamental constitutional rights, and therefore they could not appeal to the BVerfG in this case.

In general, then, the BVerfG accepted the supremacy of EU law. Yet, there was the possibility of exactly such a conflict, and under these circumstances the BVerfG refused to renounce its right to uphold the fundamental rights of German citizens when these rights conflicted with EU law. Interpreting article 24 as “understood and construed in the overall context of the whole Basic Law”^[39] the BVerfG stated that “The part of the Basic Law dealing with fundamental rights is an inalienable, essential feature of the valid Basic Law of the Federal Republic of Germany and one which forms part of the constitutional structure of the Basic Law.” However, it recognized that the state of integration of the EU would always be of great importance to any consideration; at the time, the BVerfG stated that the EU “still lacks a democratically legitimate parliament directly elected by general suffrage which possesses legislative powers and to which the Community organs empowered to legislate are fully responsible on a political level… in particular, a codified catalogue of fundamental rights, the substance of which is reliably and unambiguously fixed for the future”. Thus, the BVerfG concludes that “the guarantee of fundamental rights in the Basic Law prevails as long as the competent organs of the Community have not removed the conflict of norms in accordance with the Treaty mechanism.”

This policy with regards to the conflict of norms was revisited in Re Wünsche Handelsgesellschaft (1986) BVerfGE 73, 339, also known as Solange II. In this case, it was a European import licensing system that was challenged, and the BVerfG expanded upon the previous ruling. This was because in the intervening years between the Solange cases, the ECJ had taken on the role of protecting the rights of European citizens to the extent that the BVerfG felt comfortable largely ceding the role of safeguarding the constitutionally-given fundamental rights of German citizens to the ECJ. [In other words, the German Constitutional Court trusted that…] This was supposedly evidenced by the incorporation of the European Convention on Human Rights (1950) into the political and judicial institutions of the EU, as well as the careful bedrock of case-law on human rights which the ECJ had been patiently building up^[40]. As a result, the BVerfG decided to stop exercising its jurisdiction to review European law by the standard of fundamental rights contained within the German constitution^[41]. While the Solange judgments are largely a success to the project of European integration, the results are not uniformly applied across national courts in Europe, even in the BVerfG^[42].

Europe as a Normative Power and its Effect on Rule of Law

Article 2 of the present Treaty of the European Union (TEU) 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, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”^[43]

While the EU has always a liberal institutionalist project – as previously stated above – there has been a relatively new identity of Europe as a normative power emerging in recent academic literature. A normative power promotes a set of normative principles through its actions and its framework, and this theory came about as a result of the debate on whether the EU was a civilian or military power; it does not seem to fit neatly into either category. While the original theory set out by Ian Manners in 2002 primarily deals with Europe’s external interactions in an international relations context^[44], the displacement of the state as the central actor and a willingness by the EU to disregard Westphalian conventions of sovereignty in favour of common principles affects member-states just as much, if not more, than it does other countries. The centrality of peace, the idea of liberty, democracy, the rule of law, and respect for human rights have been claimed to be the normative basis of the EU.

This interpretation claims that the EU seeks to diffuse norms not through hard European law, but rather through the use of ideological power. Specifically, Manners identifies a contagion method of diffusion, in which the EU leads by some form of “virtuous example”, or by transference, where norms are diffused together with goods, trade, aid, or technical assistance. An example of transference would be the Copenhagen Criteria, a conclusion in 1993 which required Eastern bloc nations seeking accession to the EU to undergo significant political, economic, and legislative reform to conform to the liberal democratic ideals of the EU^[45], with significant examples being the rule of law, a functioning market economy, and a democratic system based on the respect of human rights. In this respect, we can look at harmonization of EU law as discussed previously as something that is diffused through the incentives that are provided through the framework of the regional political economy^[46]; in fact, if the standardization of law across Europe happens passively rather than as a result of active pursuit, it might be more accurate to term it convergence.

However, we must ask if the passive normative effect of the EU and its institutions have on member-states is truly effective, particularly given the backsliding of rule of law in Eastern Europe. Since 2016, the EC has been concerned with the Polish Constitutional Tribunal, and what it sees as the gradual dismantling of its judicial independence – a key pillar of the rule of law. More recently in Hungary, Prime Minister Viktor Orbán introduced an Enabling Act, which is similar in substance to the law in Weimar Germany that dismantled rule of law mechanisms and transitioned Germany into a despotic, authoritarian system of governance^[47].

In reality, the EU has a rule of law framework, in order to prevent the sort of backsliding we see today. This is in order to prevent the deployment of Article 7 TEU, which sanctions a member-state and suspends their voting rights^[48]. The problem is that the framework is primarily discursive and not coercive^[49]; it consists primarily of a 3-stage process of dialogue between the EC and the member-state in question. It begins with an assessment of the level and nature of the threat to the rule of law by the EC, which takes into account the opinions and analyses of other groups and agencies like the Venice Commission, the EU Fundamental Rights Agency, and the Judicial Network of the EU. It then cooperates with other arms of the EU legislature to issue an opinion/resolution on its findings, essentially declaring the problem and its nature; an example would be the EP resolution in 2016 on the Polish rule of law^[50]. Finally, it issues a set of recommendations for the member state in question and sets a time limit. The EC did just this later in 2016^[51], and continued updating its recommendations biannually until December 2017, when it realized that Poland had no seeming intention to comply.

Should this process fail, Article 7 TEU is deployed. Article 7(1) consists of preventative measures, and under this the Council issues a decision with the consent of the EP and EC to determine a serious breach of the values in Article 2 TEU; in 2017, such a decision was issued outlining a “clear risk of a serious breach by the Republic of Poland of the rule of law”^[52]. Should the Council come to the conclusion that such a risk has come into existence, it can decide with an EP supermajority and the consent of the EC to suspend the membership rights (e.g. voting rights) of a member state under Article 7(3) TEU; however, this decision has to be made by unanimous majority excluding the member state in question at the Council level. Functionally, the EU has been unable to get past this hurdle to sanction Poland, as there has been a seeming resolve with fellow recalcitrant Hungary to block attempts to sanction the other^[53]. Thus, it is recognized that the toolbox is woefully insufficient^[54]; the Clingendael Institute describes this as a multilevel management deficit and observes that most of the EU’s instruments essentially amount to informal/ad hoc interventions^[55].

That is not to say that the Union itself has been ultimately consistent in the application of its own prescribed norms. One of the most important norms to the functioning of the EU has been consensus; thus, while qualified majority voting is technically allowed for many EU acts to pass, the Council prefers to act based on consensus. The importance of this norm is reflected in the role assigned to the sitting President of the Council in Article 15(6) TEU^[56], to “facilitate cohesion and consensus within the European Council”. It is in this background that in the current climate of the EU, the level of conflict in the EU legislative process has been observed to have increased, leading some to question whether the EU may shift from a consensual system to a majoritarian system instead^[57].

However, the biggest question regarding normative power Europe is whether the entire approach to the promotion of the EU’s stated values is wrong-footed to begin with. This primarily inspects the philosophical grounding of the EU’s values and processes, the existence of a coherent ideal at the heart of all the EU’s workings^[58]. This assessment is consistent with a quote that has been attributed to Jean Monnet, one of the EU’s founding fathers: “If it has to be redone, I would start with the culture”. If we accept the idea proposed by Friedrich Carl von Savigny that a “common consciousness” is “the seat of law”, we must also question whether the EU has this consciousness, or if it is even possible for such a consciousness to develop in a regional organization like the EU. Without such a common consciousness and a common ideal at the heart of EU law, without a meaningful sense of justice central to EU law, one must wonder if it is truly possible for the EU to exhibit the rule of law.

Conclusion

Returning to the questions asked at the beginning of the piece, is there a regional rule of law in Europe? If we refer to the common features of rule of law that were expounded on in the framework of this primer, we must agree that the answer is overall unclear and depends largely on the perception one has of what exactly a rule of law ought to look like. The state of Europe’s supranational rule of law is primarily dependent on the fact that the EU, as a regional organization, has been positively vested power to enact and enforce legislation by participants, and their powers, though unprecedented in breadth and scope, are still fundamentally limited by the political will of the participants.

Given that the political will is crystallized only in certain periods of times through the treaties, we can understand that the treaties are essentially ways to bind the member-states of Europe despite fluctuating feelings towards the European project. This is particularly important given that the rule of law in Europe as well as in member-states are constantly being put into question: although the Solange judgments may have set a precedent for the abdication of matters to European law, it is not as if these judgments are set in stone. After all, the word Solange means “so long as” in German; the conclusion of Solange II is seen as predicated on the state of EU institutions and integration, and is subject to changes in the state of affairs. Additionally, this doctrine, while naturally held by the ECJ, is not shared across all national courts, as has been evidenced in the past decades by rulings from the highest courts of the Czech Republic, Denmark, and Germany. Nor are all EU member states equally committed to the rule of law and the shared values of the EU, as can be seen in the passage of the Hungarian Constitution^[59] and the realization of suspicions of a shaky foundation for judicial autonomy in that country^[60].

Ultimately, the many questions surrounding European law and the rule of law in Europe have not been settled satisfactorily, at least not to the extent which many national systems of law have settled these questions. This is understandable, as regional rule of law as a subset of international rule of law is a rather recent field, and many would say that the EU today is itself as grand an experiment as was the founding of the United States of America in its time. One can only continue to watch the development of the project of European integration, and whether it has been truly able to achieve its goal of promulgating the rule of law in its own neighbourhood, let alone abroad in its quest to become a global EU.

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[1] Trondal, Jarle, Martin Marcussen, Torbjörn Larsson, and Frode Veggeland. “The Bureaucracy of International Organisations.” In Unpacking International Organisations: The Dynamics of Compound Bureaucracies, 3–20. European Policy Studies. Manchester University Press, 2010. https://www.jstor.org/stable/j.ctt155j8rn.8.

[2] Trondal, Jarle, Martin Marcussen, Torbjörn Larsson, and Frode Veggeland. “The European Commission.” In Unpacking International Organisations: The Dynamics of Compound Bureaucracies, 37–64. European Policy Studies. Manchester University Press, 2010. https://www.jstor.org/stable/j.ctt155j8rn.10.

[3] Kleinfeld, Rachel. “Competing Definitions of the Rule of Law.” In Promoting the Rule of Law Abroad: In Search of Knowledge, edited by Thomas Carothers, 31–74. Carnegie Endowment for International Peace, 2006. https://www.jstor.org/stable/j.ctt6wpk74.8.

[4] Venice Commission of the Council of Europe. “Report on the Rule of Law.” Study No. 512/2009, April 4, 2011. https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2011)003rev-e.

[5] Council of Europe, and European Union. “Memorandum of Understanding between the Council of Europe and the European Union,” May 23, 2007. https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900001680597b32.

[6] European Union. “Consolidated Version of the Treaty on the European Union.” Official Journal of the European Communities C 326 (October 26, 2012): 13–45.

[7] Staab, Andreas. “The European Commission.” In The European Union Explained: Institutions, Actors, and Global Impaact, 49–55. Bloomington, Indiana: Indiana University Press, 2013. http://www.jstor.org/stable/j.ctt16gz6r5.9.

[8] Staab, Andreas. “The European Council.” In The European Union Explained: Institutions, Actors, and Global Impaact, 56–60. Bloomington, Indiana: Indiana University Press, 2013. http://www.jstor.org/stable/j.ctt16gz6r5.10. [1] Staab, “The European Commission.”

[9] Staab, “The European Commission.”

[10] Staab, Andreas. “The European Parliament.” In The European Union Explained: Institutions, Actors, and Global Impact, 67–75. Bloomington, Indiana: Indiana University Press, 2013. http://www.jstor.org/stable/j.ctt16gz6r5.12.

[11] Ibid.

[12] Staab, Andreas. “The European Court of Justice.” In The European Union Explained: Institutions, Actors, and Global Impact, 76–83. Bloomington, Indiana: Indiana University Press, 2013. http://www.jstor.org/stable/j.ctt16gz6r5.13.

[13] Court of Justice of the European Union. “Court of Justice: Presentation.” Curia – Court of Justice of the European Union. Accessed June 21, 2020. https://curia.europa.eu/jcms/jcms/Jo2_7024/en/.

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[25] Kim, “The Political Rationale of the EU Constitutional Treaty.”

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[28] The qualified majority voting system has two requirements for a vote to pass. Not only must 55% of EU countries (15 of 27) vote in favor of the bill, but these countries must also represent at least 65% of the EU population. This balances power between larger and smaller member-states, and encourages coalition-building and political bargaining between member-states.

[29] European Union. “Consolidated Version of the Treaty on the Functioning of the European Union.” Official Journal of the European Communities C 326 (October 26, 2012): 47–390.

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[38] Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel, 37 BVerfGE 271 (Bundesverfassungsgericht 1974). https://law.utexas.edu/transnational/foreign-law-translations/german/case.php?id=588

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[41] Re Wünsche Handelsgesellschaft, 73 BVerfGE 339 (Bundesverfassungsgericht 1986).

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[48] European Union, “TEU.”

[49] European Commission. “The EU’s Rule of Law Toolbox,” April 2019. https://ec.europa.eu/info/sites/info/files/rule_of_law_factsheet_1.pdf.

[50] Weber, Manfred, Esteban González Pons, Gianni Pittella, Tanja Fajon, Josef Weidenholzer, Péter Niedermüller, Birgit Sippel, et al. European Parliament resolution of 13 April 2016 on the situation in Poland, B8-0461/2016, 2015/3031(RSP) (2016). https://www.europarl.europa.eu/doceo/document/TA-8-2016-0123_EN.html?redirect.

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[52] European Commission. “Reasoned Proposal in Accordance with Article 7(1) of the Treaty on European Union Regarding the Rule of Law in Poland,” December 20, 2017. https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1555065725694&uri=CELEX%3A52017PC0835.

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[60] Hungarian Helsinki Committee. “New Law Threatens Judicial Independence in Hungary – Again.” Budapest, Hungary: Hungarian Helsinki Committee, January 2020. https://www.helsinki.hu/wp-content/uploads/HHC_Act_CXXVII_of_2019_on_judiciary_analysis_2020Jan.pdf.