The Second Phase of Constitutionalizing the Rule of Law in the European Union – between Least Common Denominator and Fully Harmonised Principle

2021 marked the advent of the rule of law Conditionality Regulation in the European Union (EU). This new instrument signifies the second phase of consolidation of the rule of law in the EU. For the first time, it contains a legally defined concept of what the rule of law entails.

Within the EU, the rule of law applies where the national rule of law already exists. Many Member States have a sophisticated discourse and long defined characteristics of the rule of law in their legal systems. The second phase of constitutionalisation of the rule of law in the EU may lead to a situation in which a supranational rule of law conflicts with national concepts of the rule of law.

This contribution inquires where the rule of law is headed in the EU and whether it is normatively desirable to have a least common denominator – as a thin conception of the rule of law, or a fully harmonised principle – as a thick conception of the rule of law – in a supranational legal system.