Reading References Rule Of

Council of the European Union General Secretariat

READING REFERENCES 2019 Council Library

RULE OF LAW

Council of the European Union Rue de la Loi/Wetstraat 175 - B-1048 Bruxelles/Brussel - Belgique/België Tel. +32 (0)2 281 65 25 Follow us http://www.consilium.europa.eu/en/library-blog/ - #EUCOlibrary 1/24

Introduction

"Rule of law is an important foundation to the EU. Violations of the principle of the rule of law undermine the reliance of citizens and companies on their rights and also diminish member states’ trust in each other’s legal systems. Failure to fully implement this principle within the EU calls into question not only the public acceptance and unity of the EU, but also its external credibility.

Strengthening the rule of law is one of the key themes of Finland’s Presidency of the Council of the European Union. Finland is promoting a comprehensive approach, meaning that the EU’s rule of law instruments will be regarded as mutually complementary."

The Council Library has compiled a reading list relating to the rule of law and the EU. It contains numerous books and articles that you can access via Eureka.

Resources selected by the Council Libraries

Please note:

This bibliography is not exhaustive; it provides a selection of resources made by the Council Library. Most of the titles are hyperlinked to Eureka, the resource discovery service of the Council Library, where you can find additional materials on the subject. Access to some resources might be limited to registered Council Library users or to users in subscribing institutions.

The contents are the sole responsibility of their authors. Resources linked from this bibliography do not necessarily represent the positions, policies, or opinions of the Council of the European Union or the European Council.

Reuse of the covers is prohibited, they belong to the respective copyrightholders.

Additional resources may be added to this list by request - please contact the Council Library to suggest a title: [email protected]

Books

Current threats to the rule of law in the EU: the fundaments on which the authority of EU law rests In: The authority of EU law: do we still believe in it? Wolfgang Heusel ; Jean-Philippe Rageade (Eds.) Berlin, Germany : Springer, 2019 Access via Eureka

"This book analyses the authority of EU law from various perspectives: legislation, jurisprudence of national supreme and constitutional courts, enforcement of Single Market rules, of EMU rules and of the rule of law. It discusses the interdependence between the perceived legitimacy of the European project and respect for the authority of EU law. Chapter VI focuses specifically on the threats and future of the EU rule of law and the challenges with Article 7 TEU."

Transnational law and the rule of law in the EU In: The European Union under transnational law: a pluralist appraisal Matej Avbelj Portland, OR: Hart, 2018 Available at Legal Library Main Collection (SJUR DEUR 105195)

"For almost a decade, the European Union has been stuck in a permanent crisis. Starting with domestic constitutional crises, followed by an imported financial crisis, it has evolved into a fully political crisis. The author argues that none of the crises are exclusively internal to the EU and a resolution can only come when the EU engages more fully with transnational law. The book attempts to explain the issues that transnational law has posed to the EU. These problems are explored from the perspective of four key tenets: the rule of law, democracy, the protection of human rights, and justice. Chapter 4 looks in detail on the relationship between transnational law and the rule of law in the EU."

Liability of member states for the violation of fundamental values of the European Union Armin Hatje ; Luboš Tichý (Eds.) Baden-Baden: Nomos, 2018 Request via Eureka

"Article 7 TEU protects the EU against political developments in member states that undermines values on which the common association is based. The authors identify three reasons for such a provision. First, the level of cooperation within the EU requires consensus from officials of the MS in EU decision making. Second, the EU is not merely an association of states, but a polity of constitutional quality, diversion from the common values would undermine the rights of private persons of other member states in their cross-border activities. Finally, it protects citizens and resident legal persons of the violating state against political changes that do not respect liberal values. Part I reflects on the meaning of the rule of law and how Art. 7 TEU safeguards it. Part II analyses what liabilities MS have under the article. Part III observes what enforcement measures the EU has in regards to the rule of law and Art. 7 TEU."

The accountability gap in EU law: mind the gap Marios Costa Abingdon: Routledge, 2017 Available at Legal Library Main Collection (SJUR DEUR 104175)

"This book investigates whether any progress towards more accountability and transparency has been made in the post- Lisbon era by taking a holistic approach to the subject. Marios Costa argues that currently the EU institutions and the Member States are not in a position to hold the so-called independent agencies as well as the various committees and expert groups accountable. Despite recent progress, the EU still needs to put forward an acceptable constitutional framework which will truly secure accountability at the EU level of governance. Chapter six deals with the legal accountability and the rule of law in the EU."

The rule of law in the European Union: the internal dimension Theodore Konstadinides Oxford: Hart, 2017 Available at Legal Library Main Collection (SJUR DEUR 104800)

"This is a book about the internal dimension of the rule of law in the EU. The EU is a community based on law which adheres to and promotes a set of values which are common between the Member States. The preservation of these values (such as legality, legal certainty, prohibition of arbitrariness, and respect for fundamental rights) is pivotal to the success of European integration and the well-being of the individuals within it. Yet, the EU rule of law suffers from an imposter syndrome and has been the subject of criticism. This book offers an analytical guide to the EU rule of law by conceptualizing it and locating it within the sources of EU law."

Infringement proceedings in EU law Luca Prete Alphen aan den Rijn: Wolters Kluwer, 2017 Available at Legal Library Main Collection (SJUR CJ 104667)

"This book provides not only an in-depth discussion on the role and functioning of infringement proceedings within the EU legal order, but also a critical assessment of the procedures as they currently stand, complete with proposals for future changes. The questions confronted in this book are whether infringement proceedings, as they stand, constitute an appropriate means of ensuring observance by Member States’ authorities of the EU acquis and, if not, what changes are needed to secure that end now and in coming years. Such a detailed and in-depth examination of this fundamental process of EU law will be of great and long-lasting interest to EU and Member State administrators, legal practitioners and academics. Chapter three look at member states liability as well as the framework and procedures of EU rule of law."

The enforcement of EU law and values: ensuring member states' compliance András Jakab ; Dimitry Kochenov Oxford: Oxford University Press, 2017 Available at Legal Library Main Collection (104576)

"It is clear that the current crisis of the EU is not confined to the Eurozone and the EMU, evidenced in its inability to ensure the compliance of Member States to follow the principles and values underlying the integration project in Europe (including the protection of democracy, the Rule of Law, and human rights). This defiance has affected the Union profoundly, and this book dissects the essence of this crisis, examining its history and offering coping methods for the years to come. Building on this legal-political context, the book focuses on the assessment of the adequacy of the enforcement mechanisms whilst learning from EU integration history. Structured in four parts, the volume studies theoretical issues on defiance in the context of multi-layered legal orders, EU mechanisms of acquis and values’ enforcement, comparative perspective on law-enforcement in multi-layered legal systems, and case-studies of defiance in the EU."

Strengthening the rule of law in Europe: from a common concept to mechanisms of implementation Werner Schroeder Oxford: Hart, 2016 Available at Legal Library Main Collection (SJUR DEUR 104545)

"Respect for the 'rule of law' is, according to Article 2 of the Treaty on European Union, a value on which the Union is founded and a prerequisite for the accession of new Member States. However, in some Member States there are deficiencies as regards the independence of the justice system or other aspects of the rule of law, and on several occasions the Union has been confronted with a rule of law crisis. In order to address this problem, the book elucidates the principal elements of a common European rule of law in a global context, and explores the different mechanisms and instruments appropriate to safeguard the rule of law and to address future rule of law crises in the Member States."

Democracy and rule of law in the European Union: essays in honour of Jaap W. de Zwaan Flora A.N.J Goudappel ; Ernst M.H Hirsch Ballin The Hague: Asser Press Springer, 2016 Available at Council Library Main Collection (103283) and Legal Library Main Collection (SJUR FEST 103366)

"The present collection of essays offers the reader a broad range of original perspectives on democracy and the rule of law in the EU. The articles have been written by leading experts from different countries and backgrounds, who focus on how democracy and the rule of law are related to topics like security, pension rights, judicial cooperation and human rights protection."

Equal citizenship and its limits in EU law: we the burden? Päivi Johanna Neuvonen Oxford: Hart Publishing, 2016 Available at Legal Library Main Collection (SJUR DEUR 103743)

"The book re-conceptualises the relationship between the status of EU citizenship and EU citizens' fundamental right to equal treatment by asking what indicates the presence of agency in EU law. This analysis provides an integrated philosophical account of transnational equality by showing that a new source of 'meaningful relationships' for the purposes of equal treatment arises from recognizing and treating EU citizens as full subjects of EU law and European integration. Chapters one and two discuss how the rule of law influences the average European citizens and what rights as well as limitations it might have."

Reinforcing rule of law oversight in the European Union Carlos Closa ; Dimitry Kochenov (Eds.) Cambridge, England: Cambridge University Press, 2016 Request via Eureka

"This book provides the definitive reference point on all the issues pertaining to dealing with the 'crisis of the rule of law' in the European Union. Both Member State and EU levels are considered. Particular attention is paid to the analysis of the concrete legal bases and instruments that the EU may avail itself of for enforcing rule of law, and the volume clearly demonstrates that a number of legally sound ways of rule of law oversight are available."

Networking the rule of law: how change agents reshape judicial governance in the EU Cristina Dallara ; Daniela Piana Farnham: Ashgate Publishing Ltd, 2015 Request via Eureka

"Judicial networks have proved effective in influencing recent judicial policies enacted by both old and new EU member states. However, this influence has not been standard. This volume seeks to improve our understanding of how networks function, as well as the extent they matter in the governance of a constitutional democracy. The authors examine the judicial function of networks, the way they cross the legal and territorial borders that confine the jurisdiction of the domestic institutions, and whether or not they are independent of the capacity and the leadership of their members. A highly salient issue in contemporary law and politics, judicial networks are now qualified actors of governance."

The European Union and the member states Eleanor E Zeff ; Ellen B Pirro Boulder, CO: Lynne Rienner, 2015 Available at Council Library Main Collection (102688)

"This new edition of The European Union and the Member States explores the complex relationship between the EU and each of its now 28 members. The country chapters follow a common format, considering: How and in what areas does EU policy affect, and how is it affected by, the member states? What mechanisms do the member states use to implement EU policy? What is each state’s compliance record? Covering the full range of political, economic, and social issues, the authors offer an insightful discussion of the interplay of EU initiatives with strong, existing national policies and traditions. The introduction provides a historic background of the EU rule of law, followed by articles regarding each and every MS."

Selected articles and think-tank papers

The politics of guarding the treaties: Commission scrutiny of rule of law compliance Carlos Closa Journal of European Public Policy, 04 May 2019, Vol.26(5), pp.696-716 Access online

"Commission’s expectations on eventual compliance explain its different behaviour when dealing with Rule of Law (RoL) crises in Hungary and Poland. Whilst the Commission activated the first stage of the procedure of article 7 against Poland in December 2017, it resisted to launch the same procedure against the Hungarian government despite mounting criticism and demands from both academics and EU institutions. The Commission considers that compliance depends, on last instance, on the cooperation of domestic authorities. Accordingly, it prefers to engage with them in dialogue and persuasion rather than activating enforcement mechanisms. If engagement strategies fail to obtain compliance, the Commission anticipates the consequence of activating article 7 enforcement: whether it can rely or not on Council support and the effects of not having it and it also anticipates negative consequences such as the future attitude of the affected member state vis-á-vis the EU."

Enforcement of EU values as a political endeavour: constitutional pluralism and value homogeneity in times of persistent challenges to the rule of law Oliver Mader Hague Journal on the Rule of Law, 1 April 2019, Vol.11(1), pp.133-170 Access online

"The paper aims at relating the discussion about value content and enforcement with their legal functions as driving forces of a European constitutionalisation process. It does so by focusing on the nature of values and foundational principles of EU law, how values are interlinked amongst each other, and to what extent the Union legal order requires value homogeneity as a gravity centre of legal integration."

Rule of law infringement procedures : a proposal to extend the EU’s rule of law toolbox Petra Bárd ; Anna Śledzińska-Simon Centre for European Policy Studies, 2019 Access online

"The authors propose that the EU Court of Justice (ECJ) introduce ‘rule of law infringement procedures’, having both a fast-track and a freezing component, as part of a wider ‘EU rule of law toolbox’. Firstly, the Commission should identify the rule of law problem explicitly. Second, it should not waste time and postpone its legal actions, while a member state openly violates the rule of law. Third, the ECJ should automatically prioritise and accelerate infringement cases with a rule of law element to avoid more harm being done by those in power. Fourth, interim measures should be used to put an immediate halt to rule of law violations that can culminate in grave and irreversible harm. Fifth, EU institutions should establish a periodic rule of law review."

From the rule of law to the rule of rules: technocracy and the crisis of EU governance Nicole Scicluna ; Stefan Auer West European Politics, 10 November 2019, Vol.42(7), pp.1420-1442 Access online

"This article focuses on two trends emerging through the so-called Eurozone crisis, both of which diminish the quality of democracy in the EU and its member states. The authors focus on two arguments. Firstly, that the crisis has led to an increased reliance on non-majoritarian institutions, such as the ECB, at the expense of democratic accountability. Secondly, that the crisis has led to a new emphasis on coercive enforcement at the expense of the voluntary cooperation that previously characterised (and sustained) the EU as a community of law."

What is the autonomy of EU law, and why does that matter? Niamh Nic Shuibhne Nordic Journal of International Law, March 2019, Vol.88(1), pp. 9-40 Access online

"This article argues that the autonomy of EU law conveys a set of rules and principles but also constitutes a principle of EU law on its own terms. Its features suggest a distinctive existential character, in light of its internal and external reach but, particularly, a quality of extremity that has come to define its implications. Reflecting on the nature of autonomy matters because of the closing down of space for compromise it produces and what is uncovered about the nature of EU primary law in consequence. The effects of autonomy have principally concerned the jurisdiction of the Court of Justice, but the wider focus on autonomy of "Union decision-making" as a "core principle" of Brexit negotiations, for the EU part, reactivates a more generalised understanding of what the principle commands. That process also tests the extent to which an understanding of autonomy as an existential principle should be sustained."

Revisiting the European Commission’s Approach Towards the Rule of Law in Enlargement Lisa Louwerse ; Eva Kassoti Hague Journal on the Rule of Law, April 2019, Vol.11(1), pp. 223-250 Access online

"The article critically examines the European Commission’s conceptualisation of the rule of law in enlargement. Three main arguments are advanced. First, the authors argue that the Commission’s understanding of the rule of law in the pre-accession process predominantly concentrates on legal- institutional reform. The article asserts that, although important, that particular focus fails to recognise that the rule of law is not only about the functioning of the (broader) legal sector, and the application and enforcement of law per se, but also about formal rule of law elements related to the quality of laws and regulations, as well as about societal orientation towards the rule of law and the will to respect it. Secondly, it argues that the EU’s pre-accession process does not sufficiently address the rule of law’s core formal elements, to the extent that its main focus is alignment with the acquis and changes made to domestic legislation are measured in terms of quantity and not quality. Thirdly, it illustrates that even though the recent enlargement strategies and monitoring reports increasingly acknowledge the importance of societal transformation needed for the rule of law to take root in the applicant states, it is not fully incorporated in the Commission’s understanding of and approach towards the rule of law."

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 Trinity College Law Review, 2019, Vol.22, pp. 35-50 Access online

"The article considers the capacity of the EU to respond to systemic breaches of the rule of law in its Member States, focusing on Poland and Hungary. It examines the options for European Commission enforcement action under TEU art.7 and TFEU art.258 as well as assesses the scope for Member States to suspend the mutual trust obligation due to rule of law concerns, commenting on Minister for Justice and Equality v LM."

Strengthening the founding values of the EU: the potential role of the Fundamental Rights Agency Konstantinos Margaritis European View, April 2019, Vol.18(1), pp. 97-104 Access online

"The rule of law is one of the founding values of the EU, as indicated in Article 2 TEU. This provision recognises that the rule of law is a core value, inherent to liberal democracy, and one which characterised the Union and its member states long before the formal establishment of the EU by the Maastricht Treaty. However, several member states, most notably Poland and Hungary, seem to have placed this value in jeopardy, leading EU institutions to disagree on how to combat this problem and its political consequences. The aim of this article is to propose a solution that involves a rather neglected, yet certainly competent actor, the Fundamental Rights Agency. The outcome would be twofold: on the one hand, the rule of law would be vitally strengthened; on the other, the role of the Agency would be fortified in line with its scope."

Rules enforcement in the EU conditionality to the rescue? Jörg Haas ; Pola Schneemelcher Jacques Delors Institute - Berlin (Germany), 2019 Access Eureka

"Budget conditionality has become a key issue in the ongoing debate on the next multiannual financial framework. Some regard it as the EU’s silver bullet against member states that refuse to implement EU values, rules and decisions. Others fear excessive interference in national competences. This policy paper examines what conditionality means in the EU context and whether it really improves the enforceability of EU rules and values."

The European Court of Justice: do all roads lead to Luxembourg? Allan Rosas Centre for European Policy Studies, 2019 Access Eureka

"The increasing tendency to submit questions of great political and constitutional significance to the ECJ prompts the question whether the Court has become the arbiter of all major problems facing the EU today. Judge Allan Rosas observes that de Tocqueville’s description of the importance of the US Supreme Court could apply to today’s ECJ. The author refers to the EU’s external relations, asylum and immigration, economic and monetary policy, citizenship, the rule of law in general, and Brexit, as cases that would probably not have come before the Court were it not for the Treaty of Lisbon."

Under siege: why Polish courts matter for Europe Piotr Buras ; John Dalhuisen ; Gerald Knaus ; Magdalena Milenkovska Europea Stability Initiative. ; Fundacja im. Stefana Batorego, 2019 Access Eureka

"2018 marked a turning point for the rule of law in Europe; courts in member states need to be “protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions.” This is no longer guaranteed in Poland today. The Commission must launch another infringement procedure before the Court of Justice, with the aim to restore the independence of courts and EU member states should voice their support for this overdue step."

Where the law ends: the collapse of the rule of law in Poland and what to do Piotr Buras ; Gerald Knaus Stefan Batory Foundation. ; European Stability Initiative, 2018 Access Eureka

"No member state of the EU has ever gone as far in subjugating its courts to executive control as the current Polish government has done, argue the authors. The Polish case is a test on whether it is possible to create a Soviet-style justice system, in an EU member state, where the control of courts, prosecutors and judges lies with the executive and a single party."

Another view of the cathedral: what does the rule of law crisis tell us about democratizing the EU? Fernanda G. Nicola Maastricht Journal of European and Comparative Law, April 2018, Vol.25(2), pp.133-138 Access online

"The author argues that the EU's response to the rise of autocratic government in Hungary and Poland suggests that it is learning the wrong lessons from this rule of law crisis. The article recommends that more attention should be paid to how the private law ideology of transnational governance regimes, such as the EU, can be balanced against democratic values."

The rule of law in the EU: many ways forward but only one way to stand still? Michal Ovádek Journal of European Integration, 07 June 2018, Vol.40(4), pp.495-503 Access online

"The rule of law belongs to the values the EU proclaims it is founded upon. Leaving aside the legal-historical inaccuracy of this statement, it is indisputable that the concept is at least rhetorically of constitutional importance to both the EU and its Member States. As such, the very open assault on the rule of law and associated constitutional principles in Poland and Hungary in recent years has undermined both the EU’s cohesion as a community of like-minded members and its legal system which in many respects depends on a shared commitment to common values. The present contribution reviews five recent publications which have grappled with the concept of the rule of law in the context of the EU and, in particular, the existing and potential role of the Union in addressing rule of law deficiencies in its Member States."

Saving EU criminal justice: proposal for EU-wide supervision of the rule of law and fundamental rights Petra Bárd Centre for European Policy Studies, 2018 Access Eureka

"The paper examines how the rigid insistence on mutual trust by the EU's legislative institutions puts into jeopardy the operation of mutual recognition-based instruments, as well as the whole body of EU law and values underlying EU integration. The author argues that the EU values and mutual recognition of member states values can and should mutually reinforce each other, and also offers recommendations to overcome the challenges described."

Rule of law, corruption and democratic accountability in the course of EU enlargement Arolda Elbasani ; Senada Šelo Šabić Journal of European Public Policy, September 2018, Vol.25(9), pp. 1317-1335 Access online

"The authors hypothesise that the domestic (non-)enforcement of EU-promoted rules depends on the mobilisation of politically autonomous constituencies of change – organized advocacy groups and autonomous state institutions – which enable democratic accountability. The empirical investigation focuses on the prosecution of political corruption as empirical foci to assessing the travails of EU-promoted rules in the domestic context. Specifically, that article traces the role of (1) EU’s RoL promotion strategy, (2) political resistance and (3) domestic accountability in explaining different records of prosecution of political corruption in Albania and Croatia."

Mutual trust under pressure: civil justice cooperation in the EU and the rule of law Monique Hazelhorst Netherlands International Law Review, 2018, Vol.65(2), pp.103-130 Access online

"In recent years, widespread concerns have been expressed about some of the proposed reforms to the judicial system in Poland posing a risk to the rule of law and the independence of the judiciary in the country. This article argues that the proposed reforms also threatens the mutual trust between EU Member States, which is the backbone of judicial cooperation in civil matters. It explains how mutual trust underpins the mutual recognition of judgments under various EU Regulations and discusses to what extent these regimes allow for exceptions to mutual recognition in case of fundamental rights concerns in the Member State of origin of a judgment."

Safeguarding democracy in the European Union: a study on a European responsibility Christoph Möllers ; Linda Schneider Heinrich Böll Foundation, 2018 Access Eureka

"The dismantling of democracy in an EU member state is not a national problem, it is a European one. If the rule of law is impeded in one member state, this affects the community at its core and threatens the basis of cooperation within it. But how should the EU react to the dismantling of democracy within its ranks? How can it prevent this and protect the democratic state upholding the rule of law? This is the subject matter of the present study. The study makes clear the dilemma in which the EU finds itself and what possibilities for action are available to it."

Why EU law claims supremacy Justin Lindeboom Oxford Journal of Legal Studies, 2018, Vol. 38(2), pp.328-356 Access online

"This article explores the conception of law that underlies the case law of the Court of Justice of the European Union (CJEU), building on Opinion 2/13 on EU accession to the European Convention on Human Rights (ECHR) as a topical example. Joxerramon Bengoetxea’s metaphor of the CJEU being a ‘Dworkinian court’ fails to explain fundamental aspects of the Court’s case law which are incompatible with Dworkin’s theory of law. Instead, the CJEU is committed to an EU legal system which conforms to Joseph Raz’s theory of the necessary conditions for legal systems: comprehensiveness, openness and a claim of supremacy. Within this paradigm, the supremacy claim of EU law needs demystification because it is inherent to any legal system. Paradoxically, while Opinion 2/13 suggests that the EU should be given special treatment in its accession to the ECHR, the Court’s underlying conception of the EU legal system is essentially mimetic of the typical characteristics of national legal systems. This mimetic nature of the EU legal system entails a dissociation between the political and the legal nature of the EU: while the EU is certainly not a state, its legal system is no different from national legal systems."

Conference report: how to save the EU Simon Tilford ; Christian Odendahl ; Sophia Besch Centre for European Reform, 2018 Access Eureka

"In the eventful 2016 Britain voted to leave the EU, Polish and Hungarian governments chipped away at the rule of law and the liberal democracy norms, while populist right-wing parties - and to a lesser extent also the populist left - have seen a boost in popularity across both Western and Eastern Europe. These developments raise many questions over the future of the EU, Eurozone, European identity, political integration and liberalism, which are all being addressed in detail by the paper's authors."

Can EU funds promote the rule of law in Europe? Jasna Šelim ; Ian Bond ; Carl Dolan Centre for European Reform, 2017 Access online

"The Treaty on EU lists the values on which it is founded as: "respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights" In recent years, however, the EU has struggled to respond when member states have not lived up to these values. This brief considers whether there are more effective tools available to handle these situations, like, whether the disbursement of EU funds to member-states could be tied to their compliance with EU values." Council of the European Union Rue de la Loi/Wetstraat 175 - B-1048 Bruxelles/Brussel - Belgique/België Tel. +32 (0)2 281 65 25 Follow us http://www.consilium.europa.eu/en/library-blog/ - #EUCOlibrary 16/24

Bounded Discretion in EU Law: a limited judicial paradigm in a changing EU Joana Mendes Modern Law Review, May 2017, Vol.80(3), pp.443-472 Access online

"This study aims to provide an independent and in-depth contribution on the status of bilateral economic exchanges and persistent trade barriers between the EU and China. A second objective is to encourage a frank and open dialogue, based on a scientific evaluation and without prejudice, of the possibility of a preferential trade agreement between the two sides."

State of democracy, human rights and the rule of law: populism - how strong are Europe's checks and balances? Thorbjørn Jagland Secretary General of the Council of Europe, 2017 Access online

"In his 2017 report, the Secretary General of the Council of Europe, Thorbjørn Jagland, analysed the state of democracy, human rights and the rule of law in Europe, based on the findings of the Council of Europe monitoring mechanisms and bodies. The report includes a definition of what is considered to be populism in the eyes of the Council of Europe, proposals for actions, and different chapters dealing with the main rule of law issues, like efficient, impartial and independent judiciaries, democratic institutions and freedom of expression, assembly and association."

Introducing the debate: European Union safeguards against member states' democratic backsliding R. Daniel Kelemen ; Michael Blauberger Journal of European Public Policy, 09 March 2017, Vol.24(3), pp. 317-320 Access online

"Today, the European Union (EU) is confronting a new democratic deficit at the national level. A number of EU member states have experienced an erosion of democracy and the rule of law in recent years, most severely in Hungary and Poland. Drawing on different strands of political science research, the contributions to this section debate the strengths and weaknesses of the various safeguards and tactics the EU has deployed or might deploy to resist democratic backsliding by member governments. This brief introduction raises the main questions of the debate: how politically feasible is the application of existing and proposed EU safeguards, and what are the likely consequences, intended as well as unintended, of various judicial and political approaches?"

The EU from a constitutional project to a process of constitutionalization Mario Telò European Politics and Society, 03 July 2017, Vol.18(3), pp. 301-317 Access online

"This article explores the relationship between Europeanisation and EU integration in the field of judicial politics. Taking a longue durée approach to EU political legitimacy, the paper examines three successive constitutional models of European integration: the transnational political movement for a democratic federal constitution; the ‘constitutional moment’ of 2001–2005; and the European de facto constitutionalisation through progressive treaty revision."

De wil van het volk?: Erosie van de democratische rechtsstaat in Europa Adviesraad Internationale Vraagstukken, 2017 Access Eureka

"The Advisory Council on International Affairs, on its own initiative, issued a policy advice on the erosion of the democratic rule of law in Europe. The questions that are addressed in this opinion are: How do democracy and the rule of law stand? What is the basis for the loss of social trust in the democratic rule of law in Europe? How can erosion of the democratic rule of law in Europe be prevented? And, how does the Netherlands contribute to foreign policy?"

Political discrimination in Hungary: case studies from the Hungarian justice system, local government, media, agriculture, education and civil sector Policy solutions, 2017 Access Eureka

"This paper analyses, according to the authors, political discrimination against those Hungarians who have been opponents of the government's politics in the last few years. Although political and other types of discrimination are severely prohibited by Hungarian laws, and while freedom of expression is a right laid down in the constitution, it is not uncommon for the government to retaliate against those with opposing views. The case studies of the analysis illustrate the tools the Hungarian government uses against its own citizens, taking advantage of the fact that democratic functioning and the rule of law are often just pretences, as the government could eliminate "in time" many of the checks and balances that are supposed to protect its subjects."

The open society and its enemies: an attack against CEU, academic freedom and the rule of law Petra Bárd Centre for European Policy Studies, 2017 Access Eureka

"This paper argues that the EU's approach of 'keeping problem children in the family' has proved to be dysfunctional in recent years. It argues that backsliding by a member state in the rule of law is a European matter and that European institutions must react accordingly by employing diplomatic and legal sanctions against any country undermining the EU's foundational values. Instead of watching an autocratic regime reinforce itself with EU money, they should make use of all available instruments, including the power of the purse."

Menace systémique envers l'Etat de droit en Pologne: entre action et procrastination Systemic threats to the rule of law in Poland: between action and procrastination Laurent Pech ; Sébastien Platon Fondation Robert Schuman, 2017 La version en français English version

"The authors refer that the violations of the principles at the heart of the rule of law concept by the Polish authorities have led the Commission to adopt a total of three recommendations based on the mechanism adopted in 2014. The European Parliament also expressed its concerns during four debates and via the adoption of two resolutions in 2016. As for the Council, it twice accepted the Commission's request to discuss the situation of the rule of law in Poland; first on 16 May 2017 and a second time on 25 September 2017, an unprecedented move in the history of the Council, according to the authors."

Introduction: the great rule of law debate in the EU Dimitry Kochenov ; Amichai Magen ; Laurent Pech Journal of Common Market Studies, September 2016, Vol.54(5), pp.1045-1049 Access online

"Faced with what has been labelled ‘rule of law backsliding’ in some EU countries, EU institutions have sought to address the rise of ‘illiberal regimes’ via existing mechanisms as well as new instruments. This introductory contribution offers an overview of the problem."

The EU’s rule of law promotion in central and Eastern Europe: where and why does it fail, and what can be done about it? Martin Mendelski Bingham Centre for the Rule of Law: Global Rule of Law Exchange Papers, 2016 Access online

"The article is a policy-oriented paper, addressing and assessing the EU’s role and impact on the rule of law in Central and Eastern Europe. The paper argues that the EU’s impact is uneven: both ‘positively-reinforcing’ and ‘negatively-reinforcing’ across four key dimensions of the rule of law. The four key dimensions include formal legality, substantive legality, judicial capacity, and judicial impartiality. The paper finds that EU-driven judicial reforms do not improve and lead to a deterioration of judicial impartiality and formal legality while the reforms increase judicial capacity and align domestic legislation with European and international standards. This paper is relevant because it attempts to provide an interesting factor that can lead to the undermining of the development of the rule of law."

The EU as a global rule of law promoter: the consistency and effectiveness challenges Laurent Pech Asia Europe Journal, 2016, Vol.14 (1), pp. 7-25 Access online

"This paper aims to examine the consistency and effectiveness of the EU as a global promoter of values by focusing on the rule of law, one of the key values on which the EU is based and which is also supposed to guide EU’s external action. The paper first offers the diagnosis that the EU has failed to properly address a number of key issues: (i) what the EU seeks to promote under the heading ‘rule of law’, (ii) how it measures and monitors a country’s adherence to this principle and (iii) the disconnect between its external and internal policies and instruments. To address these issues, four key recommendations are made: (i) the adoption of a guidance note, (ii) the development of a transversal measurement and monitoring instrument, (iii) the adoption of a rule of law checklist and (iv) the revision of the role of EU Fundamental Rights Agency, with the view of transforming it into a ‘Copenhagen Commission’ with new powers and a broader geographical remit."

La UE y la amenaza al estado de derecho en Polonia Carlos Closa Real Instituto Elcano, 2016 Access Eureka

"The defence of the respect for the rule of law by the EU member states still lack of powerful mechanisms, and the Polish case is the most recent example."

Better late than never? On the European Commission's rule of law framework and its first activation Dimitry Kochenov ; Laurent Pech Journal of Common Market Studies, 2016, Vol.54 (5), pp.1062-1075 Access online

"This article first offers an overview of the European Commission's Rule of Law Framework, which was adopted in March 2014. The mechanism's potential effectiveness and the Commission's reasoning to justify its first activation against Poland in January 2016, when it has failed to do so against Hungary, are subsequently analyzed. While the Commission should be commended for seeking to address increasing rule of law backsliding at Member State level, our main submission is that reliance on the Rule of Law Framework alone, if only because of its soft and discursive nature, will not remedy a situation where systemic violations of EU values form part of a governmental plan to set up an 'illiberal' regime."

Cracks in the foundations: understanding the great rule of law debate in the EU Amichai Magen Journal of Common Market Studies, September 2016, Vol.54(5), pp.1050-1061 Access online

"The article offers a succinct conceptual and analytical framework for approaching the ‘great rule of law debate’ currently unfolding in the EU (European Union) and the contending positions of the various EU institutions embroiled in it. It addresses the challenge of conceptualization imbued in the notion of the rule of law, and critically examines the definition of the concept provided by the EC (European Commission). It then demonstrates that over the course of modern European integration, the rule of law emerged as a central dimension in four distinct core areas of EC/EU identity and activity. Should the contemporary crisis of foundational values persist or deepen, each of the four is expected to be adversely affected. Finally, the article explores the emerging ‘rule of law turn’ in the EU."

An EU mechanism on democracy, the rule of law and fundamental rights Petra Bárd ; Sergio Carrera ; Elspeth Guild ; Dimitry Kochenov Centre for European Policy Studies, 2016 Access online

"The EU is founded on a set of common principles of democracy, the rule of law, and fundamental rights, as enshrined in Article 2 of the Treaty on the EU. Whereas future member states are vetted for their compliance with these values before they accede to the Union, no similar method exists to supervise adherence to these foundational principles after accession. This paper assesses the need and possibilities for the establishment of an EU Scoreboard, as well as its related social, economic, legal and political 'costs and benefits." Council of the European Union Rue de la Loi/Wetstraat 175 - B-1048 Bruxelles/Brussel - Belgique/België Tel. +32 (0)2 281 65 25 Follow us http://www.consilium.europa.eu/en/library-blog/ - #EUCOlibrary 21/24

Overseeing the rule of law in the European Union: legal mandate and means Christophe Hillion Svenska Institutet för Europapolitiska Studier, 2016 Access online

"Controversial changes in the laws of Poland and Hungary have deepened concerns about disregard for the rule of law in the EU. This analysis discusses what the EU is legally entrusted to do to address the issue. It recalls that Member States have endowed the Union with a legal mandate to ensure respect for the rule of law. It also suggests that the EU has various means at its disposal to fulfil such mandate, which in many ways remain to be used."

Upholding the rule of law in the EU: on the Commission's 'pre-article 7 procedure' as a timid step in the right direction Dimitry Kochenov ; Laurent Pech ; Robert Schuman Centre for Advanced Studies Centre for European Policy Studies, 2016 Access online

The "primacy" and "direct effect" of EU international agreements Szilárd Gáspár-Szilágyi European Public Law, 2015, Vol.21(2), pp. 343-370 Access online

"The rules on invoking EU norms before the Court of Justice and Member State courts are at the core of EU constitutional law. International agreements binding on the EU form an integral part of EU law and have primacy over inconsistent secondary EU legislation. Moreover, they also have primacy over inconsistent Member State law. This article aims to investigate, whether such primacy is capable of having effects independent of direct effect or it needs to be triggered by some form of ‘direct effect’ of the international agreement."

By way of introduction: the rule of law as a strategic priority for EU external action-conceptualization and implementation of EU law and policies Kolja Raube ; Matthieu Burnay ; Jan Wouters Asia Europe Journal, March 2016, Vol.14(1), pp. 1-6 Access online

"The article represents the introduction to a special issue of the Asia Europe Journal on “The Rule of Law as a Strategic Priority for EU’s External Action” and comprehensively introduces the concept of ‘rule of law’ as a principle of EU external action. It discusses the criticality of rule of law as part of European traditions and policies. It generally presents the contents on conceptualizing and implementing EU rule of law promotion. Firstly, the article presents rule of law as one of the EU’s main constitutional pillars. The rule of law principle does not apply only in the EU’s internal affairs, but it also applied externally. It goes on to introduce Article 21 TEU which places the rule of law and the promotion of the rule of law firmly at the centre of the EU’s external action. This article provides general background about rule of law in EU before delving into rule of law matters in CEECs more in detail."

How European Union membership can undermine the rule of law in emerging democracies Jonathan B. Slapin West European Politics, 2015, Vol.38(3), pp.627-648 Access Online

"This article challenges the ‘conventional wisdom’ of the positive impact of EU membership on the rule of law development in young democracies. Slapin argues that while the EU’s membership ‘carrot’ might be influential in triggering reforms with regards to the rule of law, the EU’s strategy might actually undermine the rule of law development, if the reforms undertaken are not supported by societal consensus and regarded as legitimate by local actors. The article offers a relevant perspective on the MOOCs topic, as it gives a potential explanation for the instability of the rule of law in some of the CEECs and thereby questions the EU’s enlargement approach."

Variation in EU external policies as a virtue: eu rule of law promotion in the neighbourhood Olga Burlyuk Journal of Common Market Studies, May 2015, Vol.53(3), pp.509-523 Access online

"The scholarship on the EU's external relations ties good performance to enhanced coherence across EU policies, often understood as uniformity, and interprets any sign of variation as incoherence and double standards. This article challenges the virtuousness of such uniformity in the case of EU rule of law promotion in the neighbourhood and examines the parameters of the

possible and the necessary. The findings reveal that variation in EU rule of law conceptions is inherent to the EU approach and inevitable due to the nature of the rule of law concept and the studied political context. Moreover, this variation in itself does not entail incoherence of EU rule of law promotion, as a shared understanding of the core meaning of the rule of law frames EU efforts across cases, and is even desirable for effective rule of law promotion, under law and development theory and practice."

Monitoring and enforcement of the rule of law in the EU: rhetoric and reality Dimitry Kochenov ; Laurent Pech European Constitutional Law Review, 2015, Vol.11(3), pp. 512-540 Access online

"This article offers a comprehensive examination of the rationale underlying the rule of law framework adopted by the Commission in March 2014 before outlining its main features. It is argued that while the Commission’s ‘light-touch’ framework falls short of what is required to effectively address internal threats to EU values of a systemic nature, it remains preferable to the new mechanism adopted by the Council in December 2014 and which consists of holding an annual rule of law dialogue among all Member States within the Council. To make the Commission’s framework more workable and effective, which should in turn increase its ‘dissuasive potential’, a number of modest recommendations are also offered at a time where an increasing number of voices are asking the Commission to activate the first phase its new mechanism in relation to Hungary and more recently, Poland."

Should the EU protect democracy and the rule of law inside member states? Jan‐Werner Müller European Law Journal, March 2015, Vol.21(2), pp. 141-160 Access online

"The article discusses the question whether the EU ought to play a role in protecting liberal democracy in Member States. the author argues that the EU has the authority to do so, both in a broad normative sense and in a narrower legal sense (though the latter is more likely to be disputed). The article then asks whether the EU has the capacity to establish a supranational militant democracy; here it is argued that at the moment both appropriate legal instruments and plausible political strategies are missing. To remedy this situation, the article proposes a new democracy watchdog, analogous to, but more powerful than, the Venice Commission. Finally, it is asked whether EU interventions would provoke a nationalist backlash. There is insufficient evidence to decide this question, but the danger of such a backlash probably tend to be overestimated."