the emergence and decline of the rule of law in … · the emergence and decline of the rule of law...
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THE EMERGENCE AND DECLINE OF THE RULE OF LAW IN CENTRAL-EASTERN EUROPE AND POST-SOVIET STATES
PRIMARY LAW
Consolidated version of the Treaty on the European Union (2012). Official Journal of
the European Union. C 326/13
As it constitutes one of the two most important legal documents in the EU, alongside the Treaty
on the Functioning of the European Union, the Treaty on the European Union is an essential text
in any bibliography concerning the EU. Here, the main legal dispositions regarding the rule of law
can be found, like Article 2 (“The Union is founded on the values of [...] rule of law”), Article 3
(“The Union's aim is to promote [...] its values”), Article 21 (“The Union´s action on the
international scene shall be guided by the rule of law”) and many others. The following analysis
and reports should be read in light of this text.
Consolidated version of the Treaty on the Functioning of the European Union (2012).
Official Journal of the European Union. C 326/47
The second part of Lisbon Treaty completes the legal base of the European Union. Here, among
other dispositions, the classic infringement mechanisms are outlined in articles 258 to 260. The
study of these provisions is important in understanding in greater detail how the European Union’s
institutions can act in cases where their core values are at stake, and the implications of their
actions, and also how possible treaty amendments might take place in the legal framework.
European Commission for Democracy through Law: “Resolution (2002) 3 Adopting the
Revised Statute of the European Commission for Democracy through Law (Venice
Commission)”. CDL (2002) 27
In this resolution, the Representatives on the Committee of Ministers of the member states of the
Partial Agreement establishing the European Commission for Democracy through Law decided to
adopt the Revised Statute of the Venice Commission. This Statute is the principal legal text that
governs the composition, the functioning and the competences of the Venice Commission, the
Council of Europe´s advisory body on constitutional matters. It provides legal advice and helps
states to bring their legal and institutional structures into line with European standards in the fields
of democracy, human rights and the rule of law.
EUROPEAN UNION DOCUMENTS
Communication from the Commission to the European Parliament and the Council
(19.3.2014): “A new EU Framework to strengthen the Rule of Law”. Brussels.
COM(2014) 158 final/2
In 2014, through this communication, the European Commission established a new framework, in
order to reach a better, more effective and coherent protection of the rule of law in the European
Union. It was created to serve as a bridge between the soft-law mechanisms (Arts. 258-260 TFEU)
and the Article 7 TEU option, and to resolve the future breaches before the conditions to active
this Article appear. Thus, it is not an alternative rather than a complement to the procedures
existing before. The Communication also underlines the importance of the rule of law in the EU
set of values, and why and how this new framework would work, creating a three-stage process,
focusing on dialogue, respecting the principle of equal treatment of all member states, and
indicating concrete actions to be taken, like a Commission's recommendation. This text is crucial
because it presents the actual framework under which the EU and its member states operate in
situations where the rule of law is under threat.
European Commission (20.12.2017): “Commission Recommendation of 20-12-2017
regarding the rule of law in Poland complementary to Commission Recommendations
(EU) 2016/1374, (EU) 2017/146 and (EU) 2017/1520”. Brussels. C(2017) 9050 final
In his fourth and last recommendation regarding the Polish problem, the European Commission,
based on all the previous events occurred in Poland, decided to analyse in deep the reform of the
judiciary system in that member state. The Commission made clear that, whatever the model of
justice chosen by a member state, the rule of law requires to safeguard the independence of the
judiciary and the existence of check and balances and legal certainty. Finally, it recommended to
take several actions with regard to the new legal framework, such as to avoid discrimination
through the lowering of the retirement age of judges, to remove the discretionary power of the
President of the Republic and to remove the extraordinary appeal procedure. It is a useful text
because, along with the Commission’s Opinion already mentioned, it draws the complete picture
of the state of the rule of law in Poland.
European Commission (2017): “Commission Opinion on the Rule of Law in Poland and
the Rule of Law Framework: Questions and Answers”. Brussels.
Regarding the rule of law situation of Poland, the European Commission eventually decided to
launch an Opinion on 20 December 2017. In one of the EU’s most recent statements, the
Commission showed its preoccupation of what it considers to be a clear risk of a serious breach of
the rule of law in Poland. The document provides answers to a number of questions regarding the
legal basis for the Commission's actions, the reasons behind the Rule of Law dialogue on the
situation in Poland, the evolution since of the dialogue with Poland, the main issues that the
Commission is concerned about, and how it proposes to resolve the systemic threat to the rule of
law. It draws a clear picture of the actual situation in Poland, the developments since January
2016, and what the Commission is entitled to do in case the situation does not reverse.
European Parliament (2017): “The situation of the rule of law and democracy in
Poland. European Parliament resolution of 15 November 2017 on the situation of the
rule of law and democracy in Poland”. (2017/2931(RSP)). P8_TA-PROV(2017)0442
Concerning the rule of law crisis in Poland, the European Parliament issued a resolution on the 15
of November 2017. The text presents the major milestones of the turmoil, including the
Commission's recommendations, the decisions taken by the Polish government, and other actions
developed under the umbrella of the international community, like the UN. Also, it introduces the
Parliament´s position, including its support of the common European values listed in Article 2 TEU,
calling upon the Polish government to respect freedom of assembly and to comply with all the rule
of law provisions included in the EU legal framework, and proposing a regular process of monitoring
and dialogue including all member states.
European Parliament (2016): Briefing: Understanding the EU Rule of Law mechanisms.
Members' Research Service. PE 573.922
This briefing paper provided by the European Parliamentary Research Service offers a
comprehensive overview on the EU and the rule of law: The paper elaborates on key events related
to the EU rule of law, the Union’s values, the Article 7 TEU mechanisms and the Commission’s Rule
of Law Framework. Furthermore, it includes proposals on how to further enhance the existing
instruments and demonstrates the European Parliament’s role as a “consistent advocate of
protection of the rule of law”. The paper thereby not only offers a comprehensive summary, but
also some interesting insights on the European Parliaments viewpoint and role in the EU rule of
law debate.
European Parliament (15.11.2017): Parliamentary debate on the situation of the rule
of law and democracy in Poland. Video (EUTV), online available at:
http://www.europarl.europa.eu/ep-live/en/plenary/video?debate=1510732963211
This website offers access to the most recent debate in the European Parliament on the Polish rule
of law crisis. During the debate, not only Frans Timmermans (Vice President of the European
Commission, responsible for the rule of law) speaks on the Polish situation, but a vivid debate led
by a multitude of Members of the European Parliament from different countries of origin and
political groups evolves. This video documentation offers an interesting insight into the different
arguments and perspectives in the current EU discourse on how to deal with the deteriorating
situation in Poland.
European People’s Party (20.12.2017): The rule of law in non-negotiable in the EU.
Press release by EPP/Manfred Weber (Chairman of the EPP Group in the European
Parliament. Online available at: http://www.eppgroup.eu/press-release/The-rule-of-
law-isnon- negotiable-in-the-EU
In this statement, the Chairman of the European People’s Party (EPP), the largest political group
within the European Parliament, reacts to the initiation of the Article 7 procedure by the European
Commission: He underlines his group’s support for the European Commission’s decision and
stresses the importance of its fulfilment of its role as “guardian of the Treaties”. Signalling his
support, Weber underlines the high value of the rule of law within the European Union, being “non-
negotiable”, and indicates his groups support for the next steps in the Article 7 procedure.
Socialists&Democrats (20.12.2017): Pittella: Commission right to trigger Article 7.
Polish government caused this situation, now it must resolve it. Press release by
S&D/Gianni Pittella (President of the S&D Group in the European Parliament. Online
available at: http://www.socialistsanddemocrats.eu/newsroom/pittella-commission-right-
trigger-article-7-polish-government-caused-situation-now-it-must
In this statement, the President of the Socialists & Democrats (S&D), the second largest political
group within the European Parliament, gives a reaction on the European Commission to start the
Article 7 procedure against Poland. As the EPP, Pittella underlines his group’s full support for the
Commission’s step and emphasizes that the Commission had “no choice but to launch Article 7”.
What is interesting in comparison to the EPP’s statement, is that Pittella explicitly underlines that
the step was “caused by the Polish government” and urges the Polish side of the table to react to
the Commission’s demands accordingly - something that Weber did not underline in the same way.
These reactions of the political groups in Parliament provide significant insights into the different
perspectives in the current rule of law debate: for example, the European Conservatives and
Reformist Group (the group of which the PiS party is a member) did not make any statement on
the issue.
Jean-Claude Juncker (13.09.2017): State of the Union Address 2017, European
Commission Speech, online available at: http://europa.eu/rapid/press-
release_SPEECH-17-3165_en.htm
In his annual speech, the President of the European Commission, Jean-Claude Juncker gives an
annual summary on current developments within the European Union and gives a strategic outlook
on future priorities of the European integration project. What is interesting about the latest speech
is that Juncker explicitly mentions the rule of law seven times in his speech and underlines it as
being a “fundamental” and “unshakable” EU principle. Furthermore, without mentioning the current
rule of law challengers (Poland and Hungary) explicitly, he is unequivocal on the importance of
these principles within the EU: “The rule of law is not optional in the European Union. It is a must.”
Frans Timmermans (20.12.2017): Opening remarks of First Vice-President Frans
Timmermans, Readout of the European Commission discussion on the Rule of Law in
Poland. Online available at: http://europa.eu/rapid/press-release_SPEECH-17-
5387_en.htm
In this speech, First Vice-President of the European Commission Frans Timmermans announces
and explains the European Commission’s choice to initiate the Article 7 procedure. His speech
constitutes an important political moment, as it represents the first ever activation of this
procedure. In his speech, Timmermans – who had been leading the rule of law debate on Poland
during the past two years - underlines the past efforts by the European Commission to address
the issue and the fact that the Commission’s concerns are fully shared by “a wide range of
European and international organisations” (thereby giving the step a broader legitimacy).
Furthermore, he underlines that the step was taken “with a heavy heart” and that the Commission
is hoping for a positive response to its demands from the Polish side.
OTHER INTERNATIONAL ORGANIZATIONS DOCUMENTS
European Commission for Democracy through Law (Venice Commission) (11.12.2017):
Poland Opinion on the draft amending the act on the national council of the judiciary,
on the draft act amending the act on the supreme court, proposed by the president of
Poland, and on the act on the organisation of ordinary courts. Opinion No. 904/2017.
Strasbourg. CDL-AD(2017)031.
In this recent opinion, the Venice Commission studies the compatibility with the Council of
Europe´s standards on the rule of law of the most recent legal reforms carried out by the Polish
government. The report includes a deep in detail analysis of the draft act on the national council
of the judiciary, the draft act on the supreme court and the act on ordinary courts, as well as other
amendments. The Commission concludes that the new adopted legislation allows a clear
interference from the executive and legislative power into the administration of justice. This latest
opinion allows the delving into the detailed analysis provided by the Council of Europe regarding
the Polish case and provides an additional source to the European Union’s documents on the case.
Council of Europe (19.05.2017): State of Democracy, Human Rights and the Rule of
Law. Populism- How strong are Europe's checks and balances? Report by the Secretary
General of the Council of Europe. 127th Session of the Committee of Ministers.
https://edoc.coe.int/en/an-overview/7345-pdf-state-of-democracy-human-rights-
and-the-rule-of-law.html
In his 2017 report, the Secretary General of the Council of Europe, Thorbjørn Jagland, analysed
the state of democracy, human rights and the rule of law in Europe, based on the findings of the
Council of Europe monitoring mechanisms and bodies. The report includes a definition of what is
considered to be populism in the eyes of the Council of Europe, proposals for actions, and different
chapters dealing with the main rule of law issues, like efficient, impartial and independent
judiciaries, democratic institutions and freedom of expression, assembly and association.
United Nations Special Rapporteur on the independence of judges and lawyers Mr.
Diego García-Sayán (27.10.2017): “Preliminary observations on the official visit to
Poland (23-27 October 2017)”. Warsaw.
https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22313
&LangID=E
Including documents from other international sources, the UN Special Rapporteur on the
independence of judges and lawyers, Mr. Diego García-Sayan, visited Poland between the 23 and
the 27 of October 2017. Prior to the official report, which will be presented on June 2018, the
rapporteur introduced his preliminary observations, stating that the independence of the judicial
system, as well as the separation of powers, are at stake in Poland. The recent actions taken by
the Polish government have the effect of eroding the check and balances between the main Polish
institutions. Following this reasoning, he analysed the main measures, like the Law on the Supreme
Court or the Act on the Prosecution Service, and recommended to refrain from any inappropriate
interference with the judicial process, and to engage in a constructive dialogue participated by the
government, the opposition parties and the civil society.
SCIENTIFIC AND RESEARCH ARTICLES
Bugaric, Bojan (2008): Populism, liberal democracy, and the rule of law in Central and
Eastern Europe, Communist and Post-Communist Studies, 41(2): 191-203
https://www.researchgate.net/publication/248415298_Populism_liberal_democrac
y_and_the_rule_of_law_in_Central_and_Eastern_Europe
The article addresses the rise of populism in Central and Eastern Europe countries (CEECs) and
persistent challenges that legal institutions of liberal democracy face in the region. The aim of the
article is to investigate how the current challenges posed by rising populism are likely to influence
further development of rule of law and constitutional democracy in Central and Eastern Europe.
The article argues that while there has been significant progress in the development of ‘electoral
democracy’ in the region, constitutional liberalism and the rule of law still remain relatively weak.
This article is relevant for this MOOC topic in a sense that it provides some insights for change in
political situation having some impacts on rule of law environment in a country. The article thereby
offers a particularly interesting insight, as it was written during the 2000s, early after the CEECs
accession to the EU.
Bugaric, Bojan: Protecting Democracy Inside the EU: On Article 7 TEU and the
Hungarian Turn to Authoritarianism, in CLOSA (2016). Reinforcing Rule of Law
Oversight in the European Union, Cambridge: Cambridge University Press
This paper shows how the EU has reacted, and how it can react, regarding the rule of law
backsliding in Hungary and its aim to create an “illiberal state”. The author claims that the crucial
problem is not related with the legal structure, but lack of political will. On the other hand, it
presents the key features in the Hungarian process, like the adoption of the so-called Fourth
Amendment, dismantling institutional checks and balances. Finally, it goes over possible reforms
of the actual legal mechanisms, like the expulsion of a member state as a final step and a system
of incremental sanctions. We recommend this article because of its usefulness regarding the
Hungarian problem, and how the EU and other European organizations has acted to cut its
deviation from the EU set of values.
Buras, Piotr (2017): The EU’s Polish Dilemma. The problem of Warsaw’s illiberalism is
not just legal but deeply political. European Council on Foreign Relations (ECFR).
https://www.ecfr.eu/article/commentary_europe_stand_up_to_poland_7211
This commentary of the European think tank ECFR gives a critical view on the European
Commission’s action with regards to the Polish rule of law situation and the EU Member States
position. The article criticizes that the Member States have been too passive on the ‘Polish problem’
by simply outsourcing the issue to the European Commission and thereby undermining the success
and firmness of the Commission’s actions. The article concludes by calling for the EU Member
States to take a clear position and address the illiberal developments in the East of Europe.
Buras, Piotr (2017): Poland’s black Wednesday: Crossing the Rubicon. European
Council on Foreign Relations (ECFR). Online available at:
http://www.ecfr.eu/article/commentary_polands_black_wednesday_crossing_the_r
ubicon
This commentary by the European think tank ECFR reflects upon the domestic Polish reactions to
the triggering of Article 7 TEU by the European Commission. The article demonstrates how leading
political figures perceived the step as a ‘hostile act’, criticising the Commission for overstepping its
mandate and acting on political motivations. The activation of Article 7 would thereby represent
one of the issues besides migration, Eurozone reforms and PESCO that put the EU at the centre of
political polarization in Poland. The article thereby gives important insights on the Polish discourse
about Europe and illustrates how the initiation of the Article 7 procedure is perceived internally.
Dimitrova; Antoaneta L. (2010): The New Member States of the EU in the Aftermath of
the Enlargement: Do New European Rules Remain Empty Shells? Journal of European
Public Policy, 17(1): 137-148.
https://openaccess.leidenuniv.nl/bitstream/handle/1887/15003/Dimitrova%20-
%20JEPP%20RA%20final.pdf?sequence=1
The article deals with whether the rules and practices of the European Union actually change the
rules and lead to institutionalization in the new member states. The article is particularly relevant
as it addresses adoption and implementation of rule of law in new member states, CEECs. The
article argues that the fate of institutional rules adopted in the new member states in response to
the EU’s conditions for membership is an important part of the post-enlargement research agenda.
It attempts to answer whether the informal rules and practices will also change following the
change in formal rules and ultimately lead to institutionalization, or alternatively whether the
imported rules will be reversed or remain empty shells. This article is interesting in terms of drawing
attention on roles of key actors bargaining over the new institutions. The actors include issue-
specific veto players and non-state actors in particular.
Emmert; Frank (2009): Rule of Law in Central and Eastern Europe, Fordham
International Law Journal, 32(2): 551-586.
https://www.researchgate.net/publication/254597727_Rule_of_Law_in_Central_a
nd_Eastern_Europe
The article addresses integration of Central and Eastern European countries (CEECs) to the
European Union and implications of rule of law in those countries. The article is relevant in
understanding what the rule of law actually is, since it begins by offering clear definition this rather
vague terms. The article analyses the pre-conditions that were supposed to promote the
development of rule of law and schemes that were intended to support this development in CEECs.
The article draws two main conclusions as follow: the concept of “rule of law” is poorly defined
and comprehended and this is a hampering factor for countries aspiring to newly build a system
based on rule of law; also, Western support for the transformation in CEECs was and continues to
be a combination of trial and error with a lack of appreciation of historic precedent and lessons.
Frank; Schimmelfennig; Sedelmeir; Ulrich (2004): Governance by conditionality: EU
rule transfer to the candidate countries of Central and Eastern Europe, Journal of
European Public Policy 11(4): 661-679
https://www.tandfonline.com/doi/abs/10.1080/1350176042000248089
The article discusses the mode of EU external governance in the region of Central Eastern European
countries. The main research questions of the article are as follows: What are the main features
of the mode of EU rule transfer to the CEECs and which governance mode is most effective for
rule transposition? In the article, a theoretical framework to study governance modes that lead to
an effective transfer of EU rules to outside states is presented. The main finding of the article is
that rule transfer from the EU to the CEECs and the variation in its effectiveness are best explained
according to the external incentives model and especially with the credibility of EU conditionality
and the domestic costs of rule adoption. The article offers relevant research results in terms of
pre- and post-accession situations of CEECs in the EU and their conditionality.
Hillion, Cristophe (2017): Overseeing the Rule of Law in the EU: Legal Mandate and
Means, in: C. Closa and D. Kochenov: Reinforcing Rule of Law in the European Union,
Cambridge, 59-81
http://www.sieps.se/en/publications/2016/overseeing-the-rule-of-law-in-the-
european-union-legal-mandate-and-means-20161epa
This paper begins its analysis on the rule of law in the EU with Article 2, which states that the EU
is founded in a set of values, one of which is the Rule of Law. Also, Article 3 (1) TEU foresees that
the Union exists to promote its values, including the Rule of Law. Also, the article reflects the two
complementary means that can be used to compel member states to respect the Rule of Law, the
specific sanction mechanism of Article 7 TEU, and the classic infringement mechanism of Articles
258 to 260 of TFEU. Finally, the article presents the different ways that can be used by the EU to
prevent these breaches, like the three-stage structured dialogue. The paper is of interest because
it gives a general overview of the EU legal system in relation with the Rule of Law, and put them
in the way to learn more about the legal insights of the European Union.
Hoff, Karla; Stiglitz, Joseph E. (2002): After the big bang? Obstacles to the emergence
of the rule of law in post-Communist societies, Working Paper No. 9282, National
Bureau of Economic Research
https://www.nber.org/papers/w9282
This article is part of the working paper series published by the National Bureau of Economic
Research situated at Cambridge, MA, USA. It addresses the comparatively weak constituency of
the rule of law in post-Communist countries, focusing on East and Central Europe. The contents
are focused on the perspective of political economy, exploring the mass privatization after the
collapse of Communist bloc. The article presents a dynamic equilibrium model of the political
demand for the rule of law and demonstrates that the beneficiaries of mass privatization may fail
to demand the rule of law, even if it is the efficient “rule of the game”. The paper is relevant
because it investigates a reason for uncertainty about the legal regime leading to asset stripping,
and thus giving agents an interest in prolonging the absence of the rule of law.
Kochenov, Dimitry (2015): Biting Intergovernmentalism: The Case for the Reinvention
of Article 259 TFEU to Make It a Viable Rule of Law Enforcement Tool, in: The Hague
Journal of the Rule of Law (Vol. 7, No. 11): 153-174.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2672492
In this article, the author discusses the lack of sufficient use of rule of law enforcement mechanisms
within the current EU Treaty Framework and proposes the ‘reinvention’ of existing Treaty
provisions. Kochenov presents the idea of ‘biting intergovernmentalism’ through which the existing
mechanism of Article 259 (TFEU), the infringement procedure, initiated by the EU Member States
themselves - not by the European Commission - could provide a solution to the current EU rule of
law crisis. The article provides another perspective on a potential solution for the rule of law
problems within the EU, particularly emphasising the role of the EU member state governments.
Kochenov, Dimitry (2017): The Acquis and its Principles: The Enforcement of the ‘Law’
versus the enforcement of ‘Values’ in the EU. In: A. Jakab and D. Kochenov (eds): The
Enforcement of EU Law and Values – Ensuring Member States’ Compliance. Oxford
University Press, 9-27
This book chapter focuses on the inefficiency of the attempts made by the European Union to
ensure a reliable enforcement of its main key principles, the rule of law and democracy. It also
presents different academic proposals to tackle this issue, from the exit card to a more effective
use of the infringement procedures, and the creation of a new EU body to monitor and enforce
the rule of law. Finally, the author claims that the literature focuses mainly on the acquis, while
the values perspective is hardly taken into account. He argues that any mechanism that doesn't
take into account the values would be detrimental.
Kochenov, Dimitry/Pech, Laurent/Scheppele, Kim Lane (2017): The European
Commission’s Activation of Article 7: Better Late than Never. Verfassungsblog. Online
available at: http://verfassungsblog.de/the-european-commissions-activation-
ofarticle-7-better-late-than-never/
This article offers an analysis of the recent first ever activation of Article 7 TEU by the European
Commission against the Polish government. The article begins by describing the steps that led to
the activation and the genesis of Article 7. The authors then explore why the activation of Article
7 was highly justified, while questioning why the step wasn’t taken earlier and not against Hungary.
Furthermore, the authors reflect on why it still remains to be seen whether the triggering of Article
7 will in fact make a difference. They conclude by formulating several policy recommendations on
how the next stages of the Article 7 process should look like and what the actors involved should
consider. The article thereby offers a comprehensive analysis of the most recent events in the EU’s
rule of law action against Poland.
Krygier and Czarnota, et al. (2016): The Rule of Law After Communism, New York:
Ashgate Publishing.
The book discusses the rule of law in post-Communist countries, focusing on East and Central
European countries. The book is collectively written by various authors, concentrating on a variety
of topics regarding the rule of law in the post-Communist context. The main puzzle when
addressing the rule of law after Communism is the question of whether law counted for little in
communist countries or not. Communists countries were abundantly supplied with various law
institutions including laws itself, lawyers, courts, and judges, etc. This book is relevant as it
provides case studies in Poland and Hungary.
Mendelski. Martin (2016): The EU’s rule of law promotion in central and eastern
Europe: where and why does it fail and what can be done about it, Global Rule of Law
Exchange Practice Notes
http://anticorrp.eu/wp-content/uploads/2016/02/Mendelski-2016.-The-EUs-rule-
of-law-promotion-in-Central-and-Eastern-Europe.pdf
The article is a policy-oriented paper, addressing and assessing the EU’s role and impact on the
rule of law in Central and Eastern Europe. The paper argues that the EU’s impact is uneven: both
‘positively-reinforcing’ and ‘negatively-reinforcing’ across four key dimensions of the rule of law.
The four key dimensions include formal legality, substantive legality, judicial capacity, and judicial
impartiality. The paper finds that EU-driven judicial reforms do not improve and lead to a
deterioration of judicial impartiality and formal legality while the reforms increase judicial capacity
and align domestic legislation with European and international standards. This paper is relevant
because it attempts to provide an interesting factor that can lead to the undermining of the
development of the rule of law.
Mueller, Jan-Werner (2015): Should the EU Protect Democracy and the Rule of Law
Inside Member States? European Law Journal. (Volume 21, Issue 2). Pages 141–160
https://onlinelibrary.wiley.com/doi/abs/10.1111/eulj.12124
This article deals with the question of which role the European Union should play with regards to
rule of law concerns within its Member States. The article argues that while the EU would have the
normative and legal authority, it lacks the capacity to act on the rule of law backsliding in its
Member States. The article therefore proposes to establish a ‘new democracy watchdog’, similar
to the Council of Europe’s Venice Commission: a Copenhagen Commission.
Oliver, Peter/Stefanelli, Justine (2016): Strengthening the Rule of Law in the EU: The
Council’s Inaction, in: Journal of Common Market Studies (Vol. 54, Issue 5): 1075-
1084.
https://onlinelibrary.wiley.com/doi/abs/10.1111/jcms.12402
This article critically analyses the role of the Council of the European Union in the current rule of
law crisis in Eastern Europe. By using the case of Hungary and the Council’s reaction to the
establishment of the new Rule of Law Framework by the Commission, the article demonstrates
that in contrast to the European Commission’s and the European Parliament’s actions, the Council
has remained largely inactive in facing its current rule of law dilemma.
Palombella, G. (2017): Beyond Legality – Before Democracy: Rule of Law Caveats in
the EU Two Level-System, in: C. Closa and D. Kochenov: Reinforcing Rule of Law in the
European Union, Cambridge, 59-81.
In this article, Palombella defends the idea of the Rule of Law as a concept going beyond efficient
legal standards. In other words, the Rule of Law is more than the mere compliance with rules.
Therefore, if the Rule of Law does not pursue specific contents, we must seek for another law,
which can establish counter-limits and guarantees to boundless powers. Thus, we prevent a
possible legal domination. Going into details, the European Union cannot handle the current
situation in countries like Poland and Hungary just like an administrative issue, but using
countermeasures that can work in an internal, deeper level, and that are not only imposed by an
external authority. Finally, tensions between a two-level system (supranational vs national) must
be solved with a shared basic understanding of what the concept means, and a strong prevention
of turning it into a simple tool in the hands of political will. It is an useful article because it clarifies
of the relations between the supranational level (EU) and the national one (member states), and
how they should reinforce their positions regarding the rule of law.
Pech & Kochenov (2015): Monitoring and enforcement of the rule of law in the EU:
rhetoric and reality, European Constitutional Law Review, 11: 512-540
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2719755
The article addresses the main monitoring and enforcement mechanisms regarding the rule of law
within the EU framework. It focuses on the discussion of the recently introduced Commission’s rule
of law framework that was put forward in 2014 to strengthen the rule of law within the EU’s
member states. The article’s main argument is the following: While the Commission’s ‘light’-touch’
proposal falls short of what is required to effectively address internal threats to EU values, it
remains however eminently preferable to the Council’s alternative proposal to hold an annual rule
of law dialogue. This article suggests a number of concrete recommendations in order to make the
Commission’s rule of law framework more effective and workable.
Raube, Burnay, Wouters (2016): By way of introduction: the rule of law as a strategic
priority for EU external action- conceptualization and implementation of EU law and
policies, Asia Europe Journal, 14:1-6
https://link.springer.com/article/10.1007/s10308-015-0431-0
The article represents the introduction to a special issue of the Asia Europe Journal on “The Rule
of Law as a Strategic Priority for EU’s External Action” and comprehensively introduces the concept
of ‘rule of law’ as a principle of EU external action. It discusses the criticality of rule of law as part
of European traditions and policies. It generally presents the contents on conceptualizing and
implementing EU rule of law promotion. Firstly, the article presents rule of law as one of the EU’s
main constitutional pillars. The rule of law principle does not apply only in the EU’s internal affairs,
but it also applied externally. It goes on to introduce Article 21 TEU which places the rule of law
and the promotion of the rule of law firmly at the centre of the EU’s external action. This article
provides general background about rule of law in EU before delving into rule of law matters in
CEECs more in detail.
Ridder & Kochenov (2011): Democratic conditionality in the eastern enlargement:
ambitious window dressing, European Foreign Affairs Review 16: 589-605
https://lib.ugent.be/en/catalog/pug01:2005493
The article discusses the promotion of democracy in the enlargement process of the Central and
Eastern European countries. The article identifies two facets of pre-accession conditionality:
democratic conditionality and acquis conditionality. The main argument of the article is that the
European Commission did not draw a clear substantive distinction between the concepts of
democracy and rule of law. This has contributed the vagueness and legal-political fragmentation
of conditionality. In this regard, the Commission came to play the leading role in the pre-accession
process, however, profoundly augmenting its external powers without any explicit treaty
authorization. The article then presents key flaws of EU democratic conditionality in the pre-
accession context. Readers who are interested in extra case studies among CEECs can observe
this article because it provides cases of the Czech Republic and Slovakia.
Sajo, Andras (1990): New Legalism in East Central Europe: Law as an Instrument of
Social Transformation, Journal of Law and Society 17(3): 329-344
https://www.jstor.org/stable/1410157
The article discusses the rule of law as a new legalism in East Central Europe. The article mainly
addresses the rule of law in the East Central Europe in relation to Rechtsstaattype legalism. The
article argues that the Rechtsstaat model is making more sense in the east European context
though the rule of law if often mentioned as an achievable goal. The article goes on to introduces
the old legality in eastern European socialist countries and emergence of new legalism, serving as
legitimation instrument. This article is relevant in providing a very early analysis of the rule of law
situation in the CEECs and in offering another useful concept of Rechtsstaat model to understand
the rule of law in East Central Europe.
Sedelmeier, Ulrich (2011): After conditionality: post-accession compliance with EU law
in East Central Europe, Journal of European Public Policy 15(6): 806-825
https://www.tandfonline.com/doi/abs/10.1080/13501760802196549
The article discusses the concerns about East Central Europe with regards to compliance with the
EU’s rule of law pre-and post-accession processes. The research questions consist of the following:
Have these concerns or fears materialized? Are the new post-communist EU members particularly
prone to breaching EU laws? How do their compliance records compare to the older member states,
etc. ? The article presents descriptive statistics of data on transposition and infringement of EU
law in the member states, ultimately showing that the compliance of East Central European
member states in fact has been surprisingly good.
Šelih, Jasna; Bond, Ian and Doland, Carl (2017): Can EU funds promote rule of law in
Europe? Centre for European Reform.
https://www.cer.eu/publications/archive/policy-brief/2017/can-eu-funds-promote-
rule-law-europe
In this policy brief, the authors study the relation between the promotion of the rule of law and
the granting of EU funds. They propose additional measures to the existing ones, like the
suspension of disbursement of funds, ensuring that the poorest regions and the more vulnerable
groups don't suffer the consequences. Also, redirect the funds to enterprises and civil society, and
in that way not subsidise member states that don't comply with fundamental European norms and
values. This newly published report, is helpful in looking into different ways to stop main rule of
law deviations in the European Union.
Skapska, Grazyna (1990): The Rule of Law from the East Central European Perspective,
Law & Social Inquiry 15(4): 699-705.
https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1747-4469.1990.tb00601.x
The article addresses the rule of law from the East Central European perspective. The article argues
that the particular philosophical ideas could assume an irrepressible impetus and obtain such a
power over people that would eventually change whole political systems and fundamental concepts
of social life. In this sense, the article explores that particular ideas taken by the East Central
European countries were developed in the context of their own experiences. The article ultimately
argues that it is the liaison between legal security, guarantees of freedom and autonomous
development, and limits and control of political power that are critical factors to be considered
when discussing on the topic of the rule of law. The article is relevant for readers who would like
to observe the perspectives from CEECs.
Slapin, Jonathan B. (2015): How European Union Membership Can Undermine the Rule
of Law in Emerging Democracies. West European Politics. Volume 38. Issue 3. Pages
627-648.
https://www.tandfonline.com/doi/abs/10.1080/01402382.2014.996378
This article challenges the ‘conventional wisdom’ of the positive impact of EU membership on the
rule of law development in young democracies. Slapin argues that while the EU’s membership
‘carrot’ might be influential in triggering reforms with regards to the rule of law, the EU’s strategy
might actually undermine the rule of law development, if the reforms undertaken are not supported
by societal consensus and regarded as legitimate by local actors. The article offers a relevant
perspective on the MOOCs topic, as it gives a potential explanation for the instability of the rule of
law in some of the CEECs and thereby questions the EU’s enlargement approach.
WEBPAGES AND DATABASES
Freedom House (2017): Poland profile. Freedom in the world 2017. Available online at:
https://freedomhouse.org/report/freedom-world/2017/poland
In its profile about the state of political rights, civil liberties and freedom in Poland, Freedom House
made a complete study of the rule of law and democracy in the country. It starts with a general
overview of the Polish political system, while introducing the main key developments in 2016.
Finally, it presents an executive summary, stating that Poland´s civil liberties have declined in the
last year, due to the attempts of the government to increase its influence over Polish media,
judiciary, civil service and education system. This profile is helpful in providing insights into the
Polish system regarding civil liberties and the rule of law, and review the actual degradation of
checks and balances and the separation of powers in Poland.
Human Rights Watch (2017): “Eroding Checks and Balances. Rule of Law and Human
Rights Under Attack in Poland”. Online available at:
https://www.hrw.org/report/2017/10/24/eroding-checks-and-balances/rule-law-
andhuman-rights-under-attack-poland
This report provided by one of the major human rights NGOs Human Rights Watch deals with the
deterioration of the rule of law situation in Poland. The paper looks at the individual legislative and
policy measures undertaken by the Polish PiS government in detail and problematizes their
negative impact on not only the rule of law but also the human rights situation in Poland.
Furthermore, the paper includes concrete policy recommendations towards the Polish government,
EU institutions and the Council of Europe. This independent report gives a comprehensive analysis
of the detailed actions taken in the Polish case as well as their consequences.
The World Bank (2016): “DataBank. Worldwide governance indicators”. Available
online at: http://databank.worldbank.org/data/reports.aspx?source=worldwide-
governanceindicators
In this database, the World Bank examines aggregate and individual governance indicators for six
dimensions of governance, including voice and accountability, political stability and absence of
violence, government effectiveness, regulatory quality, control of corruption and rule of law. With
a timeline going from 1996 to 2016, one can consult how 214 countries in the world perform in
the field of the rule of law. In that way, they can complement the theory with the actual practice,
and see how the Central and Eastern European countries have evolved from the mid-90s to the
present situation.
WJP Rule of Law Index (2016). Available online at:
https://worldjusticeproject.org/ourwork/wjp-rule-law-index/wjp-rule-law-index-
2016
With a very complete index, the World Justice Project covers the rule of law situation in the world.
It examines 113 countries and jurisdictions, and uses 44 indicators across eight primary rule of law
factors, each of which is ranked globally and against regional peers. These 8 factors are constraints
on government powers, absence of corruption, open government, fundamental rights, order and
security, regulatory enforcement, civil justice and criminal justice. The project also includes a
general report and individual country press releases, where the students can manage to check
whether the countries in Eastern Europe has evolved or not in the protection and compliance with
the rule of law. A very useful and interactive tool to compare different countries and to study more
in depth the actual situation of the rule of law in Europe.