This RECONNECT paper offers analysis of the best rule of law practices on national and supranational level. It relies on four types of practices: institutional, procedural, political, social. From the national perspective, it provides examples how best practices, despite technical and legislative differences, might lead to achieving the main rule of law aim – limiting the public power. Furthermore, the paper shows that each type of the rule of law practices are interrelated and to a great extent its practical role might be determined by local context – constitutional culture, political tradition – and not only the text of legal provisions. Finally, practices (and particular legal amendments) taken in isolation will not provide broader picture unless combined effect of overall elements is considered.
In an open letter in September 2019, three major European judicial networks warned about the ongoing “destruction of judicial independence in some Member States”. This paper will first focus on the tactics, political rhetoric and legal arguments used by national autocratic authorities within the EU when they seek to subdue the judicial branch so as to subject it to the will of the country’s ruling party. The case of Hungary, where a law was recently adopted to “guarantee judicial decisions favourable to the government in politically sensitive cases”, and the case of Poland, where the country’s government is on its way to recreate “a Soviet-style justice system”, will illustrate. The paper will then analyse the extent to which what may be labelled “rule of law backsliding” represents an existential threat of the EU. Finally, an overview of the EU institutions’ positive answers, counterproductive answers, façade of answers and non-answers to this threat will be offered.
A key challenge to the tackling the spread of rule of law backsliding across the EU is the recurring argument that the rule of law has no common meaning or content, and is ultimately ‘meaningless’. Presenting key findings of the RECONNECT working paper, “Unity and Diversity in National Understandings of the Rule of Law in the EU”, this paper highlights the process by which the rule of law has come to underlie all national legal systems in Europe and explore unity and diversity in the interpretation and application of the rule of law across different constitutional traditions in Member States through a historical and comparative analysis of principles embedded in e.g. legal texts, constitutions and case law. This paper then forwards the existence of a ‘European conception of the rule of law’ and considers the EU’s contribution to a renewed understanding of the rule of law on the international plane.