The Rule of Law in EU Law

Question 1

What is the key Treaty provision regarding the Rule of Law for current EU member states?

Answer 1

Article 2 TEU - Rule of Law as one of the values on which the EU is founded

Question 2

Is there a legislative definition for the Rule of Law?

Answer 2

Yes - Rule of Law Conditionality Regulation (Regulation 2020/2092) but no definition in the Treaties

Question 3

Commission v Hungary

Answer 3

Article 258 proceedings – Violation of Article 2 sole basis first time
Question = Is Article 2 a justiciable provision? Largest number of MS ever supporting EC and full court judgment

Question 4

Explain Article 7 TEU and the Rule of Law

Answer 4

Refers to Article 2 values as a block; has been used twice; Consists of two mechanism – Prevention (Used twice for Poland, closed in May and Hungary, still in use) and sanctioning (deprived of voting rights in the Council but never used)

Question 5

What is the key Treaty provision for prospective EU member states?

Answer 5

Article 49 TEU

Question 6

What is the key treaty provision for third countries and international organisations?

Answer 6

Article 21(1) TEU
- Provision used to expand the number of situations where you can sue the EU for its FP actions
- Inserted in ToL

Question 7

Explain the significance for the Rule of Law in EU Law for Cases C-156/21 and C-157/21 (Poland and Hungary cases)?

Answer 7

• Article 2 TEU “is not merely a statement of policy guidelines or intentions, but contains values” which “are given concrete expression in principles containing legally binding obligations for the Member States”
• RoL principles are not “of a purely political nature”
• An assessment of whether these principles have been respected” can “be the subject of a strictly legal analysis”
• Compliance with RoL can be the subject of legal analysis – Can have legal and financial consequences
• Full court – Precedent setting usually

Question 8

What is the impact of Rule of Law backsliding in the EU on the CJEU’s caseload?

Answer 8

CJEU’s caseload increasing

Question 9

Hungary immigration and asylum law case

Answer 9

• Largest ever LSP for failure to comply with previous judgment
• Hungarian authorities refused to pay both PP and LSP
• CJEU – EC can deduct unpaid FP from Hungary’s EU funds
• Article 279 – Power to impose interim measures; interpreted as giving court power to impose interim measures and FS where IM disregarded e.g. Poland 1 million Euro fine until IM non-compliance