The Systemic Implications of the Supranational Legal Order for the Practice of the Rule of Law

The article presents the main rule of law guarantees and the critique of the rule of law as it is applied in the European Union. Analysis is supplemented with the results of the European Parliament election survey which was conducted as a part of RECONNECT project. Despite the fact that rule of law topics reach the European media headlines on a regular basis, the rule of law was not perceived as the most important one by the respondents. Meanwhile Treaty-based mechanisms aimed at protecting EU fundamental values, such as Article 7 TEU and the infringement procedure, reflect the dual legal as well as political nature of the rule of law. The article analyses how the EU constitutional structure affects the practices of the rule of law—both at the supranational and domestic level—and offers some key recommendations on how to tackle deficiencies in the field of the rule of law.


Introduction
The European Union (EU) legal order constitutes an important challenge to traditional thinking about the rule of law. Even though the rule of law is a fundamental value in the EU, its practical implementation might differ from the rule of law applied by the Member States. In recent years, the 'the rule of law crisis' diagnosed in numerous Member States 1 enhanced the discussion about the place of the rule of law principle in the EU legal order, 2 especially in the context of the EU's role to secure it at the domestic level. 3 Legal studies research has already shown and explained the meaning and scope of the EU's understanding of the rule of law 4 and its practical meaning. 5 This article deals with the specificity of the EU rule of law guarantees and obstacles existing in the context of the supranational legal order. 6 Despite existing mechanisms (such as the Article 7 TEU procedure), rule of law backsliding in at least two Member States still has not been eradicated, which raises questions about whether the EU is even able to guarantee its fundamental value. 7 The article discusses how the EU constitutional structure affects the practices of the rule of law-both at the supranational and domestic level. It highlights the main rule of law guarantees, the critique of the rule of law as it is applied and the main obstacles in its full implementation. Finally, the article presents some key suggestions on how to tackle outstanding deficiencies in the field of the rule of law.

The EU's Specificity in the Rule of Law Context
The European Economic Community (EEC) was not primarily designed as a project aimed at upholding and promoting fundamental values (such as democracy, human rights or rule of law), but mainly at economic cooperation between the Member States 8 that was about to bring peace in Europe. 9 Since cooperation was based on the Treaties binding at that time, and secured with the possibility to seek judicial review before the Court of Justice 10 (the Court or CJEU), the rule of law was de facto inscribed into functioning of this supranational entity. 11 That is why the Communities began to be described as a 'community of law', 12 where courts have the final say in whether the law was violated. 13 The Court of Justice in its famous Les Verts ruling went even further and described the EEC as a 'community based on the rule of law'. 14 With the establishment of the EU and following the introduction of direct references to values and fundamental rights in its Treaties, it became obvious that without them the European project would be incomplete and unstable, since it is based, as the Court clarified in Opinion 2/13, on a 'structured network of principles, rules and mutually interdependent legal relations linking the EU and its Member States, and its Member States with each other'. 15 Under the EU Treaties in force, the rule of law is listed among the fundamental values and membership of the EU is restricted to States that respect them. 16 The rule of law, often described as an 'umbrella principle', 17 consists of numerous independent rules and principles (such as legality, judicial review, separation of powers or principle of equality) developed by the case-law of the Court of Justice 18 and by the expert bodies of the Council of Europe. 19 The 'limitation aspect' of the rule of law has been underlined in the EU's first annual Rule of Law Report published in September 2020, which found that 'under the rule of law, all public powers always act within the constraints set out by law, in accordance with the values of democracy and fundamental rights, and under the control of independent and impartial courts'. 20 Rule of law is not only a political ideal, but also a legal principle 'of constitutional value', 21 however 'respect for rule of law in Member States has become (…) an EU legal policy matter'. 22 Such a duality-political and legal nature of the rule of law-constitutes one of the main challenges for its effective protection.
The way the core principles of the rule of law are being applied-both at a domestic and supranational level-amount to rule of law practices (institutional, procedural and political ones). 23 The fact that rule of law is a practical concept has been confirmed by the 2019 Eurobarometer survey, where each of the rule of law principles was considered by the vast majority of the respondents (from 86 to 94%) as essential or important. 24 The importance of the rule of law among other EU values does not seem, however, to be that obvious. As part of the RECONNECT project, the European Parliament election survey was conducted. 25 The survey asked the respondents how important the following seven EU fundamental values are to them; they were asked to distribute a total of 100 points between: freedom, democracy, equality, rule of law, human rights, justice and solidarity. The more important the value, the more points were assigned ( Figs. 1 and 2).
The rule of law was not assigned the highest importance compared to other values, e.g. democracy (with the highest score in Denmark). In all respondents states, solidarity was marked with low level of importance, except France and Italy where rule of law was marked as the least important one. However in general the differences between each value are relatively minor. These findings confirm that the basic EU values are understood as closely interlinked. On the other hand, however, one might ask whether promotion of EU values among EU citizens is adequately effective and whether the EU's institutional framework responds to EU citizens' expectations regarding the rule of law.
Despite the fact that rule of law topics reach the European media headlines on a regular basis, the rule of law was not perceived as the most important one. The way how the EU institutions and officials discuss the rule of law problems which occurred at domestic level is of major significance how the ongoing debate about the rule of law is perceived-as a topic of another political storm or an existential discussion relevant for EU citizens. Since domestic narrative may go the opposite way and try undermine the importance of the EU debate on fundamental values, the

Supranational Rule of Law Guarantees
The EU's pre-accession process was perceived by the EU leaders as an effective procedure, allowing for verification of the rule of law guarantees in candidate countries. 26 That is why it was argued that a similar framework should have been adopted for after the accession-one that would allow to verify whether the Copenhagen criteria (including the political ones) continue to be fulfilled by the Member States. 27 The signs of the 'rule of law crisis' 28 and the process of rule of law backsliding 29 diagnosed in several Member States, while posing an existential threat to the EU project, 30 also puts institutional and procedural rule of law guarantees into question, since the dismantling of checks and balances at the domestic level 31 was not followed by a direct EU response. 32 The above situation inclined the European Commission to start the discussion about strengthening the rule of law in the EU in April 2019. The introduction 33 to the consultations and their outcome 34 showed that the EU can in fact avail of numerous tools aimed to guarantee respect for the rule of law at EU Member State level. 35 It confirms that the slow and gradual evolution of the Treaty framework contrasts with the intensive development of the EU's non-Treaty rule of law toolbox. 36 Treaty-based mechanisms such as Article 7 TEU and the infringement procedure (Articles 258-260 TFEU) reflect the dual legal as well as political nature of the rule of law. 37 Article 7 TEU embodies a political mechanism which is incorrectly perceived as the main tool aimed at protecting the values under Article 2 TEU. 38 The political nature of the decisions to be taken under Article 7(1)-(2) TEU (preventive stage) or Article 7(3) TEU (sanctions) implies a significant degree of discretion for the Member States acting via the European Council or the Council. 39 As a result, Article 7(1) TEU hearings are held irregularly and national governments' involvement in the procedure varies significantly. 40 This has led the European Commission to rethink the use of infringement action (Article 258 TFEU) whenever a violation of EU law occurred. Even though Article 2 TEU (expressing the fundamental values, such as rule of law) is a part of the Treaty, it is frequently but wrongly perceived as non-justiciable. 41 The first attempts, e.g. in cases regarding the retirement of the Hungarian judges, brought a very limited outcome-a ruling in a discrimination case, 42 which was unable to tackle systemic rule of law deficiencies. The 're-invention' of Article 19(1) TEU in Associação Sindical dos Juízes Portugueses (ASJP) 43 was rightly understood as a milestone in the development of the EU's rule of law protection. 44 Despite three successful infringement actions to date in relation to Poland's rule of law crisis and several applications for interim measures granted by the Court, the European Commission continues to refuse to put forward systemic infringement actions that would identify a pattern of state practices that constitute a serious violation of EU fundamental values and not only a single element of EU law. 45 As Kim Scheppele puts it, the Commission's strategy results in 'losing through winning' 46 small, particular cases, without winning the whole battle.
In addition to Treaty mechanisms, numerous non-binding instruments dealing with the rule of law (such as the annual rule of law dialogue in the Council, 47 the European Semester, 48 or Justice Scoreboard 49 ) theoretically allow for a regular overview and discussion of the existing situation at Member State level, as well as underlining the main challenges and formulating recommendations. One of the latest 'soft' instruments-the EU's annual Rule of Law Report, a part of the 'European Rule of Law Mechanism'-provides up-to-date information on four aspects of the rule of law (justice system, anti-corruption framework, media pluralism, and other institutional checks and balances). 50 It was criticized for, i.a., excessively soft language, lack of context, and foreseeing no remedies for diagnosed problems. 51 This quite broad spectrum of tools available for the EU institutions to respond to the rule of law crisis was supplemented in 2020 with the regulation on a general regime of conditionality for the protection of the Union budget. 52 After passing the constitutional muster before the Court of Justice in February 2022, the so-called rule of law conditionality mechanism is becoming slowly implemented against Hungary. The process takes a form of negotiating milestones set by the European Commission in order to get access to 'recovery funds' under the Recovery and Resilience Facility. The procedure is slightly more transparent that the Council's hearings under Article 7 TEU procedure, however still time-consuming and most probably at current stage it is not enough to reverse the democratic backsliding in Hungary. 53

Critique of Supranational Rule of Law as Applied
Ineffectiveness and narrow interpretation of the multiple rule of law enforcement tools in EU law are not, however, the only point of critique expressed regarding the rule of law in the EU. First of all, there were numerous attempts to challenge the rule of law as an undefined concept. 54 Such opinions were expressed by governments of 48 According to the official press release it 'provides a framework for the coordination of economic policies across the European Union', See, European Semester at: <https:// ec. europa. eu/ info/ busin ess-econo my-euro/ econo mic-and-fiscal-policy-coord inati on/ eu-econo mic-gover nance-monit oring-preve ntion-corre ction/ europ ean-semes ter_ en>. Poland and Hungary in a time of their facing Article 7 TEU procedures, 55 despite the fact that the definitional framework was provided by the Council of Europe 56 and further applied by the European Commission. 57 The definition of the rule of law has been also introduced into the Regulation 2020/2092 on a general regime of conditionality for the protection of the Union budget. Such a legislative development was accepted by the Court of Justice 58 and further enhanced by a finding that Article 2 TEU values are 'an integral part of the very identity of the European Union'. 59 Critique of the rule of law as lacking clear meaning is baseless in the less of the above definitional consolidation in the EU legal order. 60 The second type of critique deals with the perceived limited competences of the EU institutions. It has been argued that the EU lacks the powers to monitor and address rule of law problems in Member States 61 -for instance that the Court of Justice is not entitled to review the judicial 'reforms' adopted by Polish authorities since the end of 2015. Such a claim was quashed by the Court of Justice which stressed that 'the organisation of justice in the Member States falls within the competence of (…) Member States, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law (…) in particular, from the second subparagraph of Article 19(1) TEU'. 62 Another aspect of these 'limited competences' in the rule of law field deals with the institutions which have powers relevant for the protection of the rule of law, but which are not in practice employed to do so. Fundamental Rights Agency (FRA) is probably the main example here. 63 Its main task is to provide the EU institutions with assistance and expertise relating to fundamental rights. Close link between the fundamental EU values (democracy, rule of law and fundamental rights) places FRA in a good position to conduct research on connection between the rule of law standards and protection of fundamental rights. Meanwhile the FRA does not use its competence fully to investigate the situation of the rule of law in the Member States. Partially it results from its dependence on the European Commission, which decided not to involve FRA in this topic to a greater extent. It should be nevertheless reconsidered to broaden the powers of FRA in order to task it with conducting a research on implementation of the EU fundamental values in context of the human rights protection in the EU Member States. 64 Thirdly, a 'double standards critique' is often expressed. 65 Its 'horizontal' version is usually oriented at other Member States' legal systems and existing institutional solutions that are not under scrutiny of the EU institutions (e.g. suggestions that regulation of the Polish National Council for the Judiciary was inspired with the Spanish law). Such 'abusive comparativism' 66 allows their authors to formulate an argument about the EU institutions being biased against Central and Eastern European Member States. 67 The role of the annual Rule of Law Report was to fight with the double standards criticism and provide data on relevant rule of law issues with respect to all Member States. The 'vertical' version of such arguments are addressed to the EU institutions. Polish government for instance formulated them regarding the way the judges of CJEU are selected and nominated in the Polish Supreme Court case. 68 The Court refused both types of such a comparative arguments. First, the Court found that 'Member State cannot rely on a possible infringement of EU law by another Member State to justify its own default' 69 and secondly, that rules on judicial appointments to the Court of Justice established under the Treaties 'cannot modify the scope of the obligations imposed on the Member States pursuant to the second subparagraph of Article 19(1) TEU'. 70 Threat of 'double standards' in the EU is still present, especially after rulings in Sharpston case, 71 where the Court of Justice did not apply the same standard of a 'court established by law' as applicable to domestic courts in the light of Article 6 of the European Convention on Human Rights. 72 Fourthly, the EU rule of law was often defined through the lens of 'legality', 73 which heavily limited its scope and its functionality. Meanwhile the rule of law aims at 'securing against abuse of public power' and 'requires subordination to the law, which remains outside the scope of reach by any public authority'. 74 Such a functional understanding of the rule of law allows to secure other EU basic values, such as fundamental rights or justice. As suggested by A. Williams 'it should always be an essential task vis-à-vis any regime exercising powers of governance, to measure that regime in terms of standards of justice'. 75 Despite that the EU institutional specificity gave rise to questions regarding the 'justice deficit' in the EU, especially in the context of the EU ability to deal with its major crises. 76 The fact that 'the idea of justice is not the centerpiece of the European project' 77 or 'Europe's signifier' 78 might cause serious problems from the rule of law perspective, which requires access to justice, 79 whereas numerous tools employed to deal with Eurozone and migration crises most probably did not meet this requirement fully. 80

Supranational Structural Obstacles to Rule of Law Compliance
Lisbon Treaty improved the legal framework regarding the principle of the rule of law and answered the main concerns regarding the 'rule of law deficit'. 81 However the practical application of those EU tasks rises criticism. The main Treatybased tool which allows to sanction the rule of law violations in the Member States depends on political decisions taken by national governments acting in the Council. Difficulties in reaching high qualified majority (let alone unanimity) made Article 7 TEU to be perceived as a 'nuclear option', 82 meaning something one cannot use in normal state of affairs. 83 Defending the rule of law should not be perceived as a matter of political courage. It proves a 'normative asymmetry' understood as an insufficient tool-kit of value enforcement. 84 The other side of the 'enforcement coin', however, deals with the nature of the values, which are more difficult to enforce than the law. 85 Inability to adopt a final decision under Article 7 TEU procedure might undermine the fundamental nature of the rule of law. Furthermore, the way how the European Commission frame the infringement actions regarding rule of law issues do not give enough of an opportunity to capture systemic problems via judicial procedures. 86 Additionally, combating rule of law backsliding usually means that the European Commission will be two steps behind the rogue Member State. 87 When the EU is busy dealing with rule of law violations that transpired, new ones may meanwhile be occurring. 88 As the legal situation becomes more complicated, the EU reactions might become even more difficult and limited. 89 Internal rule of law backsliding poses a challenge to its external dimension 90 and to the EU's credibility. According to the TEU, the rule of law is an important factor in the EU external policies. The Union's actions on the international scene shall be guided by the principles which have inspired its own creation. Furthermore, the EU should develop its relations with entities sharing these principles. One of the major aspects of the external dimension of the rule of law deals with the accession to the European Convention on the Human Rights, 91 framed as an EU obligation. The idea of accession aims at guaranteeing that the EU meets the Strasbourg human rights standards. 92 The Opinion 2/13 of the Court of Justice makes the accession highly unlikely due to the scope and nature of EU autonomy as interpreted by the Court. The situation when the Court's opinion makes the Treaty obligation almost impossible to implement, already rises fundamental questions regarding the rule of law. The Court's interpretation of the rule of law was criticized in this respect as 'instrumental'-aimed at ensuring 'the primacy of EU law and the primacy of the CJEU' and the CJEU's 'supremacy' in long term. 93 The current 'debate' between the Council of Europe and the European Union also looks like debating over the 'supremacy' in the field of rule of law. 94 Negotiations on the EU's accession to the European Convention on Human Rights have been reopened and their main aim is to address concerns expressed in Opinion 2/13. 95 Its wording, however, does not leave much room for optimism when it comes to the outcome of the new negotiations round. 96 The Courts' reasoning was to a great extent based on the principle of autonomy of the EU law, which as a result makes almost impossible to review the EU law by any outside 'actor', e.g. European Court of Human Rights. In broader sense it does not allow to tame EU law through any other (higher) law 97 which poses a great challenge from the rule of law perspective. 98 In context of the ongoing rule of law backsliding the EU cannot allow itself to be oversee the Member States about rule of law, while at the same time remaining outside Strasbourg system of human rights protection due to blank use of principle of autonomy of EU legal order. It may cause a dangerous criticism that 'the CJEU uses the 'values' version of the rule of law to camouflage the capture of the rule of law as a device for asserting legal supremacy.' 99

Recommendations
Deficiencies to the EU rule of law protection present diverse challenges: from formal (lack of definition of the rule of law in the Treaty) to practical ones (inability to take a political decision under Article 7 TEU). The fundamental nature of rule of law leads the discussion about the EU problems in this field to question the credibility of the EU in respect to values-internally and externally. 100 The main principle of the possible responses is that EU institutions, and the European Commission in particular, should first of all use tools which are already available. In July 2019 the European Commission presented its 'Blueprint for Action' 101 which offered a list of such short-term responses to the rule of law crisis in EU Member States. However even some of those existing may require some improvement.
First of all, the European Commission should reconsider their policy regarding the scope and shape of infringement actions regarding the rule of law cases and frame them as systemic infringement actions. 102 When the Commission avoids action, Member States should make use of the procedure under Article 259 TFEU. 103 In such cases the decision-making process at domestic level should be as transparent and inclusive as possible. It will allow to avoid seeing litigation under Article 259 TFEU as a 'mechanism of attack', but rather a 'rule of law protection mechanism', if the Commission does not fulfil their obligation as the guardian of Treaties.
Secondly, discussion should not be perceived as a main tool to tackle rule of law backsliding in EU Member States. Discussing rule of law in Member State by peers suggests that the rule of law can be negotiated, which is against fundamental nature of this value. 104 The key aspect of the rule of law is that it implies a need for an adequate-well established, not only presumed-protection. 105 Instead of insisting on meaningless discussions, EU institutions and Member States should fulfil their obligations according to the Treaties. 106 This implies a need to e.g. assess whether there is a 'clear risk of a serious breach' in a Member State and to take a decision under Article 7 TEU within a reasonable time frame.
Thirdly, EU institutions should be able to communicate with the EU citizens about the rule of law more effectively. Explaining why certain rule of law related actions were taken by the EU (especially by the Commission) and what were the main sources of information. 107 It will allow to avoid (or at least minimize) blame shifting attempts by the government involved in the dispute. 108 Undermining the rule of law may bring legal uncertainty and in the long run it might trigger social frustration. 109 Misconceptions regarding content and nature of the rule of law constitute a threat to this value. In providing accurate information on all that, free media at a domestic level and vibrant civil society organisations (CSOs) are essential. 110 Civil society assistance might be also of crucial importance to make the EU voice be better heard. 111 Possible responses to the rule of law backsliding should avoid however ideas concentrated on establishing new institutions. They usually result from two factors: first of all, from the misconception that the European Commission was not granted clear competences to protect EU values and that their content is not precise; secondly, from the fact that rule of law conditionality at pre-accession stage did not assess effectively the guarantees of the rule of law in candidate states, 112 since it does not seem that the outcome of the pre-accession review has any impact on postaccession EC actions regarding the rule of law in the Member States. 113 Instead of establishing new bodies, institutional improvements at the EU level should cover the Fundamental Rights Agency-its mandate should be strengthened and the Agency shall become a fully independent rule of law actor in the EU. Laurent Pech and Joelle Grogan suggest that the Fundamental Rights Agency should be transformed into a 'Copenhagen Commission'-the EU version of the Venice Commission 114 -assigned with powers to provide assistance and expertise on EU values and fundamental rights, monitoring of the EU Member States and candidate states and the power to trigger Article 7 TEU. 115 Independently from internal institutional improvements, the EU should complete the process of accession to the European Convention on Human Rights in order to establish the external guarantee of the rule of law protection in the EU.
The long-term response to the rule of law crisis should involve Treaty amendments, 116 that will e.g. transform Article 7 TEU into an effective tool and not a 'nuclear' one. That might involve lowering of the required majority of votes, strengthening the European Parliament in the procedure, expanding the list of possible sanctions (including expulsion of a Member State). 117 Furthermore, the role of the Charter of Fundamental Rights in context of the rule of law protection needs to be reassessed, 118 together with providing the access of individuals to the Court of Justice in case of violation of fundamental rights. 119