The Notion of Rule of Law in Light of the European Court of Justice’s Case Law: Is Law Trapped by Politics or Politics by Law?

Abstract

The concept of rule of law has a decades-long history in the Union law, and following the modification of the Lisbon Treaty, it constitutes one of the Member States’ common values, but not common principles anymore. Although the Treaties have provided the Member States with monopoly with regard to the so-called rule of law procedure since the Treaty of Amsterdam, the concept living its renaissance in the 2010s and the debate surrounding it seem to have prompted the CJEU to apply radical changes in this field. According to its landmark rulings in 2018, national judicial systems are from now on part of EU law and are the custodians of the rule of law. Accordingly, as for their judiciary, Member States can be held to account not only by the CJEU but also by the national courts of the Member States under certain conditions. With its 2018 judgments based on the notion of community of law, the CJEU has clearly taken control of the rule of law and its verifiability, however, it has failed so far to define the concept in a  general manner.