THE EMERGENCE AND DECLINE OF THE RULE OF LAW IN … · THE EMERGENCE AND DECLINE OF THE RULE OF LAW IN CENTRAL-EASTERN EUROPE AND POST-SOVIET STATES PRIMARY LAW Consolidated version

THE EMERGENCE AND DECLINE OF THE RULE OF LAW IN CENTRAL-EASTERN EUROPE AND POST-SOVIET STATES

PRIMARY LAW

Consolidated version of the Treaty on the European Union (2012). Official Journal of

the European Union. C 326/13

As it constitutes one of the two most important legal documents in the EU, alongside the Treaty

on the Functioning of the European Union, the Treaty on the European Union is an essential text

in any bibliography concerning the EU. Here, the main legal dispositions regarding the rule of law

can be found, like Article 2 (“The Union is founded on the values of [...] rule of law”), Article 3

(“The Union's aim is to promote [...] its values”), Article 21 (“The Union´s action on the

international scene shall be guided by the rule of law”) and many others. The following analysis

and reports should be read in light of this text.

Consolidated version of the Treaty on the Functioning of the European Union (2012).

Official Journal of the European Union. C 326/47

The second part of Lisbon Treaty completes the legal base of the European Union. Here, among

other dispositions, the classic infringement mechanisms are outlined in articles 258 to 260. The

study of these provisions is important in understanding in greater detail how the European Union’s

institutions can act in cases where their core values are at stake, and the implications of their

actions, and also how possible treaty amendments might take place in the legal framework.

European Commission for Democracy through Law: “Resolution (2002) 3 Adopting the

Revised Statute of the European Commission for Democracy through Law (Venice

Commission)”. CDL (2002) 27

In this resolution, the Representatives on the Committee of Ministers of the member states of the

Partial Agreement establishing the European Commission for Democracy through Law decided to

adopt the Revised Statute of the Venice Commission. This Statute is the principal legal text that

governs the composition, the functioning and the competences of the Venice Commission, the

Council of Europe´s advisory body on constitutional matters. It provides legal advice and helps

states to bring their legal and institutional structures into line with European standards in the fields

of democracy, human rights and the rule of law.

EUROPEAN UNION DOCUMENTS

Communication from the Commission to the European Parliament and the Council

(19.3.2014): “A new EU Framework to strengthen the Rule of Law”. Brussels.

COM(2014) 158 final/2

In 2014, through this communication, the European Commission established a new framework, in

order to reach a better, more effective and coherent protection of the rule of law in the European

Union. It was created to serve as a bridge between the soft-law mechanisms (Arts. 258-260 TFEU)

and the Article 7 TEU option, and to resolve the future breaches before the conditions to active

this Article appear. Thus, it is not an alternative rather than a complement to the procedures

existing before. The Communication also underlines the importance of the rule of law in the EU

set of values, and why and how this new framework would work, creating a three-stage process,

focusing on dialogue, respecting the principle of equal treatment of all member states, and

indicating concrete actions to be taken, like a Commission's recommendation. This text is crucial

because it presents the actual framework under which the EU and its member states operate in

situations where the rule of law is under threat.

European Commission (20.12.2017): “Commission Recommendation of 20-12-2017

regarding the rule of law in Poland complementary to Commission Recommendations

(EU) 2016/1374, (EU) 2017/146 and (EU) 2017/1520”. Brussels. C(2017) 9050 final

In his fourth and last recommendation regarding the Polish problem, the European Commission,

based on all the previous events occurred in Poland, decided to analyse in deep the reform of the

judiciary system in that member state. The Commission made clear that, whatever the model of

justice chosen by a member state, the rule of law requires to safeguard the independence of the

judiciary and the existence of check and balances and legal certainty. Finally, it recommended to

take several actions with regard to the new legal framework, such as to avoid discrimination

through the lowering of the retirement age of judges, to remove the discretionary power of the

President of the Republic and to remove the extraordinary appeal procedure. It is a useful text

because, along with the Commission’s Opinion already mentioned, it draws the complete picture

of the state of the rule of law in Poland.

European Commission (2017): “Commission Opinion on the Rule of Law in Poland and

the Rule of Law Framework: Questions and Answers”. Brussels.

Regarding the rule of law situation of Poland, the European Commission eventually decided to

launch an Opinion on 20 December 2017. In one of the EU’s most recent statements, the

Commission showed its preoccupation of what it considers to be a clear risk of a serious breach of

the rule of law in Poland. The document provides answers to a number of questions regarding the

legal basis for the Commission's actions, the reasons behind the Rule of Law dialogue on the

situation in Poland, the evolution since of the dialogue with Poland, the main issues that the

Commission is concerned about, and how it proposes to resolve the systemic threat to the rule of

law. It draws a clear picture of the actual situation in Poland, the developments since January

2016, and what the Commission is entitled to do in case the situation does not reverse.

European Parliament (2017): “The situation of the rule of law and democracy in

Poland. European Parliament resolution of 15 November 2017 on the situation of the

rule of law and democracy in Poland”. (2017/2931(RSP)). P8_TA-PROV(2017)0442

Concerning the rule of law crisis in Poland, the European Parliament issued a resolution on the 15

of November 2017. The text presents the major milestones of the turmoil, including the

Commission's recommendations, the decisions taken by the Polish government, and other actions

developed under the umbrella of the international community, like the UN. Also, it introduces the

Parliament´s position, including its support of the common European values listed in Article 2 TEU,

calling upon the Polish government to respect freedom of assembly and to comply with all the rule

of law provisions included in the EU legal framework, and proposing a regular process of monitoring

and dialogue including all member states.

European Parliament (2016): Briefing: Understanding the EU Rule of Law mechanisms.

Members' Research Service. PE 573.922

This briefing paper provided by the European Parliamentary Research Service offers a

comprehensive overview on the EU and the rule of law: The paper elaborates on key events related

to the EU rule of law, the Union’s values, the Article 7 TEU mechanisms and the Commission’s Rule

of Law Framework. Furthermore, it includes proposals on how to further enhance the existing

instruments and demonstrates the European Parliament’s role as a “consistent advocate of

protection of the rule of law”. The paper thereby not only offers a comprehensive summary, but

also some interesting insights on the European Parliaments viewpoint and role in the EU rule of

law debate.

European Parliament (15.11.2017): Parliamentary debate on the situation of the rule

of law and democracy in Poland. Video (EUTV), online available at:

http://www.europarl.europa.eu/ep-live/en/plenary/video?debate=1510732963211

This website offers access to the most recent debate in the European Parliament on the Polish rule

of law crisis. During the debate, not only Frans Timmermans (Vice President of the European

Commission, responsible for the rule of law) speaks on the Polish situation, but a vivid debate led

by a multitude of Members of the European Parliament from different countries of origin and

political groups evolves. This video documentation offers an interesting insight into the different

arguments and perspectives in the current EU discourse on how to deal with the deteriorating

situation in Poland.

European People’s Party (20.12.2017): The rule of law in non-negotiable in the EU.

Press release by EPP/Manfred Weber (Chairman of the EPP Group in the European

Parliament. Online available at: http://www.eppgroup.eu/press-release/The-rule-of-

law-isnon- negotiable-in-the-EU

In this statement, the Chairman of the European People’s Party (EPP), the largest political group

within the European Parliament, reacts to the initiation of the Article 7 procedure by the European

Commission: He underlines his group’s support for the European Commission’s decision and

stresses the importance of its fulfilment of its role as “guardian of the Treaties”. Signalling his

support, Weber underlines the high value of the rule of law within the European Union, being “non-

negotiable”, and indicates his groups support for the next steps in the Article 7 procedure.

Socialists&Democrats (20.12.2017): Pittella: Commission right to trigger Article 7.

Polish government caused this situation, now it must resolve it. Press release by

S&D/Gianni Pittella (President of the S&D Group in the European Parliament. Online

available at: http://www.socialistsanddemocrats.eu/newsroom/pittella-commission-right-

trigger-article-7-polish-government-caused-situation-now-it-must

In this statement, the President of the Socialists & Democrats (S&D), the second largest political

group within the European Parliament, gives a reaction on the European Commission to start the

Article 7 procedure against Poland. As the EPP, Pittella underlines his group’s full support for the

Commission’s step and emphasizes that the Commission had “no choice but to launch Article 7”.

What is interesting in comparison to the EPP’s statement, is that Pittella explicitly underlines that

the step was “caused by the Polish government” and urges the Polish side of the table to react to

the Commission’s demands accordingly - something that Weber did not underline in the same way.

These reactions of the political groups in Parliament provide significant insights into the different

perspectives in the current rule of law debate: for example, the European Conservatives and

Reformist Group (the group of which the PiS party is a member) did not make any statement on

the issue.

Jean-Claude Juncker (13.09.2017): State of the Union Address 2017, European

Commission Speech, online available at: http://europa.eu/rapid/press-

release_SPEECH-17-3165_en.htm

In his annual speech, the President of the European Commission, Jean-Claude Juncker gives an

annual summary on current developments within the European Union and gives a strategic outlook

on future priorities of the European integration project. What is interesting about the latest speech

is that Juncker explicitly mentions the rule of law seven times in his speech and underlines it as

being a “fundamental” and “unshakable” EU principle. Furthermore, without mentioning the current

rule of law challengers (Poland and Hungary) explicitly, he is unequivocal on the importance of

these principles within the EU: “The rule of law is not optional in the European Union. It is a must.”

Frans Timmermans (20.12.2017): Opening remarks of First Vice-President Frans

Timmermans, Readout of the European Commission discussion on the Rule of Law in

Poland. Online available at: http://europa.eu/rapid/press-release_SPEECH-17-

5387_en.htm

In this speech, First Vice-President of the European Commission Frans Timmermans announces

and explains the European Commission’s choice to initiate the Article 7 procedure. His speech

constitutes an important political moment, as it represents the first ever activation of this

procedure. In his speech, Timmermans – who had been leading the rule of law debate on Poland

during the past two years - underlines the past efforts by the European Commission to address

the issue and the fact that the Commission’s concerns are fully shared by “a wide range of

European and international organisations” (thereby giving the step a broader legitimacy).

Furthermore, he underlines that the step was taken “with a heavy heart” and that the Commission

is hoping for a positive response to its demands from the Polish side.

OTHER INTERNATIONAL ORGANIZATIONS DOCUMENTS

European Commission for Democracy through Law (Venice Commission) (11.12.2017):

Poland Opinion on the draft amending the act on the national council of the judiciary,

on the draft act amending the act on the supreme court, proposed by the president of

Poland, and on the act on the organisation of ordinary courts. Opinion No. 904/2017.

Strasbourg. CDL-AD(2017)031.

In this recent opinion, the Venice Commission studies the compatibility with the Council of

Europe´s standards on the rule of law of the most recent legal reforms carried out by the Polish

government. The report includes a deep in detail analysis of the draft act on the national council

of the judiciary, the draft act on the supreme court and the act on ordinary courts, as well as other

amendments. The Commission concludes that the new adopted legislation allows a clear

interference from the executive and legislative power into the administration of justice. This latest

opinion allows the delving into the detailed analysis provided by the Council of Europe regarding

the Polish case and provides an additional source to the European Union’s documents on the case.

Council of Europe (19.05.2017): State of Democracy, Human Rights and the Rule of

Law. Populism- How strong are Europe's checks and balances? Report by the Secretary

General of the Council of Europe. 127th Session of the Committee of Ministers.

https://edoc.coe.int/en/an-overview/7345-pdf-state-of-democracy-human-rights-

and-the-rule-of-law.html

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.

United Nations Special Rapporteur on the independence of judges and lawyers Mr.

Diego García-Sayán (27.10.2017): “Preliminary observations on the official visit to

Poland (23-27 October 2017)”. Warsaw.

https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22313

&LangID=E

Including documents from other international sources, the UN Special Rapporteur on the

independence of judges and lawyers, Mr. Diego García-Sayan, visited Poland between the 23 and

the 27 of October 2017. Prior to the official report, which will be presented on June 2018, the

rapporteur introduced his preliminary observations, stating that the independence of the judicial

system, as well as the separation of powers, are at stake in Poland. The recent actions taken by

the Polish government have the effect of eroding the check and balances between the main Polish

institutions. Following this reasoning, he analysed the main measures, like the Law on the Supreme

Court or the Act on the Prosecution Service, and recommended to refrain from any inappropriate

interference with the judicial process, and to engage in a constructive dialogue participated by the

government, the opposition parties and the civil society.

SCIENTIFIC AND RESEARCH ARTICLES

Bugaric, Bojan (2008): Populism, liberal democracy, and the rule of law in Central and

Eastern Europe, Communist and Post-Communist Studies, 41(2): 191-203

https://www.researchgate.net/publication/248415298_Populism_liberal_democrac

y_and_the_rule_of_law_in_Central_and_Eastern_Europe

The article addresses the rise of populism in Central and Eastern Europe countries (CEECs) and

persistent challenges that legal institutions of liberal democracy face in the region. The aim of the

article is to investigate how the current challenges posed by rising populism are likely to influence

further development of rule of law and constitutional democracy in Central and Eastern Europe.

The article argues that while there has been significant progress in the development of ‘electoral

democracy’ in the region, constitutional liberalism and the rule of law still remain relatively weak.

This article is relevant for this MOOC topic in a sense that it provides some insights for change in

political situation having some impacts on rule of law environment in a country. The article thereby

offers a particularly interesting insight, as it was written during the 2000s, early after the CEECs

accession to the EU.

Bugaric, Bojan: Protecting Democracy Inside the EU: On Article 7 TEU and the

Hungarian Turn to Authoritarianism, in CLOSA (2016). Reinforcing Rule of Law

Oversight in the European Union, Cambridge: Cambridge University Press

This paper shows how the EU has reacted, and how it can react, regarding the rule of law

backsliding in Hungary and its aim to create an “illiberal state”. The author claims that the crucial

problem is not related with the legal structure, but lack of political will. On the other hand, it

presents the key features in the Hungarian process, like the adoption of the so-called Fourth

Amendment, dismantling institutional checks and balances. Finally, it goes over possible reforms

of the actual legal mechanisms, like the expulsion of a member state as a final step and a system

of incremental sanctions. We recommend this article because of its usefulness regarding the

Hungarian problem, and how the EU and other European organizations has acted to cut its

deviation from the EU set of values.

Buras, Piotr (2017): The EU’s Polish Dilemma. The problem of Warsaw’s illiberalism is

not just legal but deeply political. European Council on Foreign Relations (ECFR).

https://www.ecfr.eu/article/commentary_europe_stand_up_to_poland_7211

This commentary of the European think tank ECFR gives a critical view on the European

Commission’s action with regards to the Polish rule of law situation and the EU Member States

position. The article criticizes that the Member States have been too passive on the ‘Polish problem’

by simply outsourcing the issue to the European Commission and thereby undermining the success

and firmness of the Commission’s actions. The article concludes by calling for the EU Member

States to take a clear position and address the illiberal developments in the East of Europe.

Buras, Piotr (2017): Poland’s black Wednesday: Crossing the Rubicon. European

Council on Foreign Relations (ECFR). Online available at:

http://www.ecfr.eu/article/commentary_polands_black_wednesday_crossing_the_r

ubicon

This commentary by the European think tank ECFR reflects upon the domestic Polish reactions to

the triggering of Article 7 TEU by the European Commission. The article demonstrates how leading

political figures perceived the step as a ‘hostile act’, criticising the Commission for overstepping its

mandate and acting on political motivations. The activation of Article 7 would thereby represent

one of the issues besides migration, Eurozone reforms and PESCO that put the EU at the centre of

political polarization in Poland. The article thereby gives important insights on the Polish discourse

about Europe and illustrates how the initiation of the Article 7 procedure is perceived internally.

Dimitrova; Antoaneta L. (2010): The New Member States of the EU in the Aftermath of

the Enlargement: Do New European Rules Remain Empty Shells? Journal of European

Public Policy, 17(1): 137-148.

https://openaccess.leidenuniv.nl/bitstream/handle/1887/15003/Dimitrova%20-

%20JEPP%20RA%20final.pdf?sequence=1

The article deals with whether the rules and practices of the European Union actually change the

rules and lead to institutionalization in the new member states. The article is particularly relevant

as it addresses adoption and implementation of rule of law in new member states, CEECs. The

article argues that the fate of institutional rules adopted in the new member states in response to

the EU’s conditions for membership is an important part of the post-enlargement research agenda.

It attempts to answer whether the informal rules and practices will also change following the

change in formal rules and ultimately lead to institutionalization, or alternatively whether the

imported rules will be reversed or remain empty shells. This article is interesting in terms of drawing

attention on roles of key actors bargaining over the new institutions. The actors include issue-

specific veto players and non-state actors in particular.

Emmert; Frank (2009): Rule of Law in Central and Eastern Europe, Fordham

International Law Journal, 32(2): 551-586.

https://www.researchgate.net/publication/254597727_Rule_of_Law_in_Central_a

nd_Eastern_Europe

The article addresses integration of Central and Eastern European countries (CEECs) to the

European Union and implications of rule of law in those countries. The article is relevant in

understanding what the rule of law actually is, since it begins by offering clear definition this rather

vague terms. The article analyses the pre-conditions that were supposed to promote the

development of rule of law and schemes that were intended to support this development in CEECs.

The article draws two main conclusions as follow: the concept of “rule of law” is poorly defined

and comprehended and this is a hampering factor for countries aspiring to newly build a system

based on rule of law; also, Western support for the transformation in CEECs was and continues to

be a combination of trial and error with a lack of appreciation of historic precedent and lessons.

Frank; Schimmelfennig; Sedelmeir; Ulrich (2004): Governance by conditionality: EU

rule transfer to the candidate countries of Central and Eastern Europe, Journal of

European Public Policy 11(4): 661-679

https://www.tandfonline.com/doi/abs/10.1080/1350176042000248089

The article discusses the mode of EU external governance in the region of Central Eastern European

countries. The main research questions of the article are as follows: What are the main features

of the mode of EU rule transfer to the CEECs and which governance mode is most effective for

rule transposition? In the article, a theoretical framework to study governance modes that lead to

an effective transfer of EU rules to outside states is presented. The main finding of the article is

that rule transfer from the EU to the CEECs and the variation in its effectiveness are best explained

according to the external incentives model and especially with the credibility of EU conditionality

and the domestic costs of rule adoption. The article offers relevant research results in terms of

pre- and post-accession situations of CEECs in the EU and their conditionality.

Hillion, Cristophe (2017): Overseeing the Rule of Law in the EU: Legal Mandate and

Means, in: C. Closa and D. Kochenov: Reinforcing Rule of Law in the European Union,

Cambridge, 59-81

http://www.sieps.se/en/publications/2016/overseeing-the-rule-of-law-in-the-

european-union-legal-mandate-and-means-20161epa

This paper begins its analysis on the rule of law in the EU with Article 2, which states that the EU

is founded in a set of values, one of which is the Rule of Law. Also, Article 3 (1) TEU foresees that

the Union exists to promote its values, including the Rule of Law. Also, the article reflects the two

complementary means that can be used to compel member states to respect the Rule of Law, the

specific sanction mechanism of Article 7 TEU, and the classic infringement mechanism of Articles

258 to 260 of TFEU. Finally, the article presents the different ways that can be used by the EU to

prevent these breaches, like the three-stage structured dialogue. The paper is of interest because

it gives a general overview of the EU legal system in relation with the Rule of Law, and put them

in the way to learn more about the legal insights of the European Union.

Hoff, Karla; Stiglitz, Joseph E. (2002): After the big bang? Obstacles to the emergence

of the rule of law in post-Communist societies, Working Paper No. 9282, National

Bureau of Economic Research

https://www.nber.org/papers/w9282

This article is part of the working paper series published by the National Bureau of Economic

Research situated at Cambridge, MA, USA. It addresses the comparatively weak constituency of

the rule of law in post-Communist countries, focusing on East and Central Europe. The contents

are focused on the perspective of political economy, exploring the mass privatization after the

collapse of Communist bloc. The article presents a dynamic equilibrium model of the political

demand for the rule of law and demonstrates that the beneficiaries of mass privatization may fail

to demand the rule of law, even if it is the efficient “rule of the game”. The paper is relevant

because it investigates a reason for uncertainty about the legal regime leading to asset stripping,

and thus giving agents an interest in prolonging the absence of the rule of law.

Kochenov, Dimitry (2015): Biting Intergovernmentalism: The Case for the Reinvention

of Article 259 TFEU to Make It a Viable Rule of Law Enforcement Tool, in: The Hague

Journal of the Rule of Law (Vol. 7, No. 11): 153-174.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2672492

In this article, the author discusses the lack of sufficient use of rule of law enforcement mechanisms

within the current EU Treaty Framework and proposes the ‘reinvention’ of existing Treaty

provisions. Kochenov presents the idea of ‘biting intergovernmentalism’ through which the existing

mechanism of Article 259 (TFEU), the infringement procedure, initiated by the EU Member States

themselves - not by the European Commission - could provide a solution to the current EU rule of

law crisis. The article provides another perspective on a potential solution for the rule of law

problems within the EU, particularly emphasising the role of the EU member state governments.

Kochenov, Dimitry (2017): The Acquis and its Principles: The Enforcement of the ‘Law’

versus the enforcement of ‘Values’ in the EU. In: A. Jakab and D. Kochenov (eds): The

Enforcement of EU Law and Values – Ensuring Member States’ Compliance. Oxford

University Press, 9-27

This book chapter focuses on the inefficiency of the attempts made by the European Union to

ensure a reliable enforcement of its main key principles, the rule of law and democracy. It also

presents different academic proposals to tackle this issue, from the exit card to a more effective

use of the infringement procedures, and the creation of a new EU body to monitor and enforce

the rule of law. Finally, the author claims that the literature focuses mainly on the acquis, while

the values perspective is hardly taken into account. He argues that any mechanism that doesn't

take into account the values would be detrimental.

Kochenov, Dimitry/Pech, Laurent/Scheppele, Kim Lane (2017): The European

Commission’s Activation of Article 7: Better Late than Never. Verfassungsblog. Online

available at: http://verfassungsblog.de/the-european-commissions-activation-

ofarticle-7-better-late-than-never/

This article offers an analysis of the recent first ever activation of Article 7 TEU by the European

Commission against the Polish government. The article begins by describing the steps that led to

the activation and the genesis of Article 7. The authors then explore why the activation of Article

7 was highly justified, while questioning why the step wasn’t taken earlier and not against Hungary.

Furthermore, the authors reflect on why it still remains to be seen whether the triggering of Article

7 will in fact make a difference. They conclude by formulating several policy recommendations on

how the next stages of the Article 7 process should look like and what the actors involved should

consider. The article thereby offers a comprehensive analysis of the most recent events in the EU’s

rule of law action against Poland.

Krygier and Czarnota, et al. (2016): The Rule of Law After Communism, New York:

Ashgate Publishing.

The book discusses the rule of law in post-Communist countries, focusing on East and Central

European countries. The book is collectively written by various authors, concentrating on a variety

of topics regarding the rule of law in the post-Communist context. The main puzzle when

addressing the rule of law after Communism is the question of whether law counted for little in

communist countries or not. Communists countries were abundantly supplied with various law

institutions including laws itself, lawyers, courts, and judges, etc. This book is relevant as it

provides case studies in Poland and Hungary.

Mendelski. Martin (2016): 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, Global Rule of Law

Exchange Practice Notes

http://anticorrp.eu/wp-content/uploads/2016/02/Mendelski-2016.-The-EUs-rule-

of-law-promotion-in-Central-and-Eastern-Europe.pdf

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.

Mueller, Jan-Werner (2015): Should the EU Protect Democracy and the Rule of Law

Inside Member States? European Law Journal. (Volume 21, Issue 2). Pages 141–160

https://onlinelibrary.wiley.com/doi/abs/10.1111/eulj.12124

This article deals with the question of which role the European Union should play with regards to

rule of law concerns within its Member States. The article argues that while the EU would have the

normative and legal authority, it lacks the capacity to act on the rule of law backsliding in its

Member States. The article therefore proposes to establish a ‘new democracy watchdog’, similar

to the Council of Europe’s Venice Commission: a Copenhagen Commission.

Oliver, Peter/Stefanelli, Justine (2016): Strengthening the Rule of Law in the EU: The

Council’s Inaction, in: Journal of Common Market Studies (Vol. 54, Issue 5): 1075-

1084.

https://onlinelibrary.wiley.com/doi/abs/10.1111/jcms.12402

This article critically analyses the role of the Council of the European Union in the current rule of

law crisis in Eastern Europe. By using the case of Hungary and the Council’s reaction to the

establishment of the new Rule of Law Framework by the Commission, the article demonstrates

that in contrast to the European Commission’s and the European Parliament’s actions, the Council

has remained largely inactive in facing its current rule of law dilemma.

Palombella, G. (2017): Beyond Legality – Before Democracy: Rule of Law Caveats in

the EU Two Level-System, in: C. Closa and D. Kochenov: Reinforcing Rule of Law in the

European Union, Cambridge, 59-81.

In this article, Palombella defends the idea of the Rule of Law as a concept going beyond efficient

legal standards. In other words, the Rule of Law is more than the mere compliance with rules.

Therefore, if the Rule of Law does not pursue specific contents, we must seek for another law,

which can establish counter-limits and guarantees to boundless powers. Thus, we prevent a

possible legal domination. Going into details, the European Union cannot handle the current

situation in countries like Poland and Hungary just like an administrative issue, but using

countermeasures that can work in an internal, deeper level, and that are not only imposed by an

external authority. Finally, tensions between a two-level system (supranational vs national) must

be solved with a shared basic understanding of what the concept means, and a strong prevention

of turning it into a simple tool in the hands of political will. It is an useful article because it clarifies

of the relations between the supranational level (EU) and the national one (member states), and

how they should reinforce their positions regarding the rule of law.

Pech & Kochenov (2015): Monitoring and enforcement of the rule of law in the EU:

rhetoric and reality, European Constitutional Law Review, 11: 512-540

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2719755

The article addresses the main monitoring and enforcement mechanisms regarding the rule of law

within the EU framework. It focuses on the discussion of the recently introduced Commission’s rule

of law framework that was put forward in 2014 to strengthen the rule of law within the EU’s

member states. The article’s main argument is the following: While the Commission’s ‘light’-touch’

proposal falls short of what is required to effectively address internal threats to EU values, it

remains however eminently preferable to the Council’s alternative proposal to hold an annual rule

of law dialogue. This article suggests a number of concrete recommendations in order to make the

Commission’s rule of law framework more effective and workable.

Raube, Burnay, Wouters (2016): By way of introduction: the rule of law as a strategic

priority for EU external action- conceptualization and implementation of EU law and

policies, Asia Europe Journal, 14:1-6

https://link.springer.com/article/10.1007/s10308-015-0431-0

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.

Ridder & Kochenov (2011): Democratic conditionality in the eastern enlargement:

ambitious window dressing, European Foreign Affairs Review 16: 589-605

https://lib.ugent.be/en/catalog/pug01:2005493

The article discusses the promotion of democracy in the enlargement process of the Central and

Eastern European countries. The article identifies two facets of pre-accession conditionality:

democratic conditionality and acquis conditionality. The main argument of the article is that the

European Commission did not draw a clear substantive distinction between the concepts of

democracy and rule of law. This has contributed the vagueness and legal-political fragmentation

of conditionality. In this regard, the Commission came to play the leading role in the pre-accession

process, however, profoundly augmenting its external powers without any explicit treaty

authorization. The article then presents key flaws of EU democratic conditionality in the pre-

accession context. Readers who are interested in extra case studies among CEECs can observe

this article because it provides cases of the Czech Republic and Slovakia.

Sajo, Andras (1990): New Legalism in East Central Europe: Law as an Instrument of

Social Transformation, Journal of Law and Society 17(3): 329-344

https://www.jstor.org/stable/1410157

The article discusses the rule of law as a new legalism in East Central Europe. The article mainly

addresses the rule of law in the East Central Europe in relation to Rechtsstaattype legalism. The

article argues that the Rechtsstaat model is making more sense in the east European context

though the rule of law if often mentioned as an achievable goal. The article goes on to introduces

the old legality in eastern European socialist countries and emergence of new legalism, serving as

legitimation instrument. This article is relevant in providing a very early analysis of the rule of law

situation in the CEECs and in offering another useful concept of Rechtsstaat model to understand

the rule of law in East Central Europe.

Sedelmeier, Ulrich (2011): After conditionality: post-accession compliance with EU law

in East Central Europe, Journal of European Public Policy 15(6): 806-825

https://www.tandfonline.com/doi/abs/10.1080/13501760802196549

The article discusses the concerns about East Central Europe with regards to compliance with the

EU’s rule of law pre-and post-accession processes. The research questions consist of the following:

Have these concerns or fears materialized? Are the new post-communist EU members particularly

prone to breaching EU laws? How do their compliance records compare to the older member states,

etc. ? The article presents descriptive statistics of data on transposition and infringement of EU

law in the member states, ultimately showing that the compliance of East Central European

member states in fact has been surprisingly good.

Šelih, Jasna; Bond, Ian and Doland, Carl (2017): Can EU funds promote rule of law in

Europe? Centre for European Reform.

https://www.cer.eu/publications/archive/policy-brief/2017/can-eu-funds-promote-

rule-law-europe

In this policy brief, the authors study the relation between the promotion of the rule of law and

the granting of EU funds. They propose additional measures to the existing ones, like the

suspension of disbursement of funds, ensuring that the poorest regions and the more vulnerable

groups don't suffer the consequences. Also, redirect the funds to enterprises and civil society, and

in that way not subsidise member states that don't comply with fundamental European norms and

values. This newly published report, is helpful in looking into different ways to stop main rule of

law deviations in the European Union.

Skapska, Grazyna (1990): The Rule of Law from the East Central European Perspective,

Law & Social Inquiry 15(4): 699-705.

https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1747-4469.1990.tb00601.x

The article addresses the rule of law from the East Central European perspective. The article argues

that the particular philosophical ideas could assume an irrepressible impetus and obtain such a

power over people that would eventually change whole political systems and fundamental concepts

of social life. In this sense, the article explores that particular ideas taken by the East Central

European countries were developed in the context of their own experiences. The article ultimately

argues that it is the liaison between legal security, guarantees of freedom and autonomous

development, and limits and control of political power that are critical factors to be considered

when discussing on the topic of the rule of law. The article is relevant for readers who would like

to observe the perspectives from CEECs.

Slapin, Jonathan B. (2015): How European Union Membership Can Undermine the Rule

of Law in Emerging Democracies. West European Politics. Volume 38. Issue 3. Pages

627-648.

https://www.tandfonline.com/doi/abs/10.1080/01402382.2014.996378

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.

WEBPAGES AND DATABASES

Freedom House (2017): Poland profile. Freedom in the world 2017. Available online at:

https://freedomhouse.org/report/freedom-world/2017/poland

In its profile about the state of political rights, civil liberties and freedom in Poland, Freedom House

made a complete study of the rule of law and democracy in the country. It starts with a general

overview of the Polish political system, while introducing the main key developments in 2016.

Finally, it presents an executive summary, stating that Poland´s civil liberties have declined in the

last year, due to the attempts of the government to increase its influence over Polish media,

judiciary, civil service and education system. This profile is helpful in providing insights into the

Polish system regarding civil liberties and the rule of law, and review the actual degradation of

checks and balances and the separation of powers in Poland.

Human Rights Watch (2017): “Eroding Checks and Balances. Rule of Law and Human

Rights Under Attack in Poland”. Online available at:

https://www.hrw.org/report/2017/10/24/eroding-checks-and-balances/rule-law-

andhuman-rights-under-attack-poland

This report provided by one of the major human rights NGOs Human Rights Watch deals with the

deterioration of the rule of law situation in Poland. The paper looks at the individual legislative and

policy measures undertaken by the Polish PiS government in detail and problematizes their

negative impact on not only the rule of law but also the human rights situation in Poland.

Furthermore, the paper includes concrete policy recommendations towards the Polish government,

EU institutions and the Council of Europe. This independent report gives a comprehensive analysis

of the detailed actions taken in the Polish case as well as their consequences.

The World Bank (2016): “DataBank. Worldwide governance indicators”. Available

online at: http://databank.worldbank.org/data/reports.aspx?source=worldwide-

governanceindicators

In this database, the World Bank examines aggregate and individual governance indicators for six

dimensions of governance, including voice and accountability, political stability and absence of

violence, government effectiveness, regulatory quality, control of corruption and rule of law. With

a timeline going from 1996 to 2016, one can consult how 214 countries in the world perform in

the field of the rule of law. In that way, they can complement the theory with the actual practice,

and see how the Central and Eastern European countries have evolved from the mid-90s to the

present situation.

WJP Rule of Law Index (2016). Available online at:

https://worldjusticeproject.org/ourwork/wjp-rule-law-index/wjp-rule-law-index-

2016

With a very complete index, the World Justice Project covers the rule of law situation in the world.

It examines 113 countries and jurisdictions, and uses 44 indicators across eight primary rule of law

factors, each of which is ranked globally and against regional peers. These 8 factors are constraints

on government powers, absence of corruption, open government, fundamental rights, order and

security, regulatory enforcement, civil justice and criminal justice. The project also includes a

general report and individual country press releases, where the students can manage to check

whether the countries in Eastern Europe has evolved or not in the protection and compliance with

the rule of law. A very useful and interactive tool to compare different countries and to study more

in depth the actual situation of the rule of law in Europe.