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.

A Rule of Law Crisis in Lithuania? Possible Consequences of the EU Missing an Opportunity to Recognise Rule of Law Deficiencies in Yet Another Member States

The principles of the rule of law and separation of powers have recently come under significant strain in Lithuania. Irresponsible governance and politicisation of judicial appointments during 2020 have left the country facing an unprecedented constitutional crisis. For over a year now, the Seimas has refused to appoint three new Constitutional Court justices in a timely manner, meaning that the judges whose terms have expired were left to continue their duties in ‘over-time’. Furthermore, the non-replacement of Constitutional Court justices has been compounded by other attacks on judicial independence by the executive. This paper considers the impact of these recent developments on national constitutionalism, the rule of law and democracy. This paper also questions why EU political institutions have failed to take notice of some clear rule of law breaches in Lithuania, which is particularly relevant considering the EU’s ongoing rule of law crisis.

Interpretative Provisions – Unchanging Rules in a Changing World?

The application of law is based not only on the legal text but also on some guidelines concerning its interpretation. This can lead to considerably different understanding of provisions of law which reduces legal certainty. Legal provisions on statutory interpretation may increase the uniformity of judicial practice. On the other hand they can become a tool of manipulation. This paper consists in the analysis of potential dangers related to the creation of interpretative regulations by the legislator. It also deals with the possible content of statutory rules of interpretation. One of the key questions interpretative provisions could answer concerns an impact of dynamically changing circumstances on the meaning of a provision – whether to follow historical intent or to adapt meaning to new conditions. Can the legislator impose rules on this issue? I would like to indicate the boundaries as to the content of interpretative directives so that they do not violate the separation of powers.

Towards a Canadian Unitary State?: The Clash between Federalism and the Rule of Law

When it delivered the Reference Re Secession of Quebec in 1998, the Canadian Supreme Court asserted that federalism and the rule of law should be complementary, rather than antagonistic, constitutional principles. This Reference has since guided the judicial comprehension of the rule of law in the Canadian federation. However, this paper highlights the precariousness of the balance between the federal valuation of legal and socio-political diversity and the upholding of the rule of law. This paper first examines the fundaments and the relevance of these judicial teachings. It then finds out that the rule of law should not be construed in a uniform manner in a federal state in order for it to remain legitimate. That should be particularly true in a heterogenous polity such as Canada. Ultimately, this paper warns the Supreme Court against triggering what could be seen as a subtle unitisation of the rule of law, which would likely the crumbling of Canadian federalism.