Problematising the rule of law as a fundamental value of the European Union

Abstract

By ‘problematising’, I mean to state my intention to discover why the rule of law has become such a significant problem in the European Union over the past decade. In turn, I will analyse the concept of the constitutional ideal that is the rule of law, how it surfaces in the legal order of the European Union and what framework is in place for supranational engagement with it. I rely on the examples of recent constitutional reform in both Poland and Hungary to develop an understanding of how such a lacuna has arisen and the ways in which this founding value is vulnerable to exploitation. Furthermore, I explain how a chain of shortcomings by drafters and European institutions has permitted Member States to regress on their commitment to the Copenhagen criteria, thereby failing to prevent the consolidation of illiberalism before it became entrenched. Finally, I examine the recent evolution in the role of the Court of Justice through the most significant jurisprudence on the topic; and defend the expansion of its competences in order to adequately tackle the so-called ‘Rule of Law Crisis’.