The rule of law, as a constitutional principle of the EU, is
regularly assessed in light of the Court of Justice’s case law. This approach lacks the required depth as it fails to take into account that
the EU rule of law is not merely a constitutional principle that can be
referred to and applied in judicial proceedings. It may be more fruitful, in
order to assess the meaning, scope and impact of the EU rule of law, to analyze
its unique and shared features in light of the common traits identified in the
preceding section. In
doing so, one discovers that the EU rule of law is similarly a dominant
organizational paradigm as regards EU constitutional arrangements, a
multifaceted or umbrella legal principle with formal and substantive elements
which lacks “full” justiciability. The EU rule of law also presents distinctive
features. In other words, it has a broader scope of application than the one it
normally has at the national level. Indeed, it is also used as a politico-legal
benchmark with respect to current EU Member States and prospective ones and as
a policy objective in relation to so-called third countries and other regional
organizations. These distinctive features do not illustrate or derive from an
alternative understanding of what the rule of law should entail at the
supranational level. They rather reflect the EU’s original constitutional
nature. As a supranational and “dynamic” organization theoretically open to all
European countries who share the same values and whose main objectives are to
promote peace and prosperity on the international plane, the EU has naturally
additional uses for the rule of law.
Shared features
Reflecting most national
constitutional experiences in Europe , the EU
rule of law is first and foremost a posited legal principle with a foundational
nature. The absence of any formal and precise definition of what the principle
entails is also a typical feature and should not necessarily be criticized considering
the “umbrella” character of the rule of law in all legal systems. Finally, the
rule of law, in conformity with what national practices have taught us, has
been reasonably relied on by the Court of Justice as an interpretative guide
and as a source from which additional more specific legal standards may be
derived, rather than as a rule of law in itself.
The Rule of Law as a
Foundational Principle
By stipulating that the EU is “founded” on – and must not merely
respect – the principles of liberty, democracy, respect for fundamental rights
and the rule of law, Article 6(1) TEU makes clear that these are foundational
or defining principles. To put it differently, this provision offers the overarching principles or
values of political morality that “underlie and inform the purpose and
character” of the EU’s politico-legal system as a whole. To that extent, it is fair to say
that the EU founding Treaties have come to give “primary importance” to these
principles. Furthermore, by explicitly recognizing the rule of law as a posited legal
principle, Article 6(1) TEU is clearly reminiscent of the countries where the
rule of law has long been enshrined in the national constitution. While there
continues to be some confusion about this aspect, the Treaty reference to the
rule of law does not mean that the EU is itself a sovereign state-like entity
or pursues this ambition. While, in languages other than English, Article 6(1)
TEU refers to the principle of a State
founded on the rule of law, the reference
to “State” can be explained by the historical circumstances which have presided
over the birth and conceptualization of the Rechtsstaat principle. As a
regulating principle, the principle of a State governed by law seems perfectly
applicable to a non-state polity. In other words, as far as
the EU is concerned, the reference to the notions of rule of law/Rechtsstaat/Etat
de droit broadly means that the
Union is also governed by a general and fundamental principle, which is common
to the Member States, and according to which the exercise of public power is
subject or regulated by a set of formal and substantive limitations.
Undeniably, the codification of the rule of law as a fundamental principle on
which the EU is founded has further consolidated the dominant character of the
rule of law as an organizational paradigm of modern constitutional law at the
national and international levels. The EU’s strong and explicit emphasis on the rule of law might explain, for
instance, the 2005 statutory recognition of the rule of law as an existing constitutional principle in the
United Kingdom
From a legitimacy point of view, Article 6(1) TEU represents a
positive development in the sense that European citizens can only but welcome
the explicit linkage of the EU’s constitutional system with the key tenets of
Western constitutionalism. In the age of globalization and the serious
challenges to the democratic legitimacy of the nation state this phenomenon has
raised, as observed by Tridimas, this “enshrinement of values in constitutional texts
seeks to achieve protection, legitimacy, legal certainty and historical
continuity. At the heart of this new European constitutionalism lies an
aspiration that a new social and political order can be attained and that the transfer
of powers to supra-national organizations is acceptable provided that it is
accompanied by shared commitment to abstract principles imbued in liberal
ideals.” Advocate General Poiares Maduro recently expressed a
similar point of view:
Article 6 TEU expresses the respect due to national
constitutional values. It also indicates how best to prevent any real conflict
with them, in particular by anchoring the constitutional foundations of the
European Union in the constitutional principles common to the Member States.
Through this provision the Member States are reassured that the law of the
European Union will not threaten the fundamental values of their constitutions.
At the same time, however, they have transferred to the Court of Justice the
task of protecting those values within the scope of Community law.
While it would be interesting to also address the question of
whether the foundational principles mentioned in Article 6(1) TEU could help
forge, in practice, a common European identity it may be sufficient here to stress that the EU, in giving emphasis to these
abstract “ideals,” is not particularly innovative. A more remarkable aspect of
the enshrinement of the rule of law into the EU’s founding treaties is that it
is hardly ever mentioned as a stand alone
principle. In most cases, the principles of liberty, democracy and respect
for fundamental rights immediately accompany the rule of law. This is the right approach. While the rule of law is traditionally considered
“one of the most important political ideals of our time,” it is obviously not the only one. Indeed, it “is one of a cluster of ideals
constitutive of modern political morality; the others are human rights,
democracy, and perhaps also the principles of free market economy.” Those faithful to a strict “formal” conception of the rule of law have
nevertheless controversially argued that it should not be confused with
democracy, justice, equality, etc. and that it can even be “compatible with
gross violations of human rights.” The EU offers a striking counter-model to this doctrinal approach and in doing
so, more accurately reflects the positive law of most if not all European
countries.
In EU constitutional law, the rule of law is rightly understood as
sharing a consubstantial, one may say organic, link with the other foundational
principles mentioned in Article 6(1) TEU. This makes it difficult to assess the rule of law, as a constitutional
principle of the EU, in light of the traditional – yet largely artificial –
theoretical divide between formal and substantive approaches, especially if one
wrongly believes that formal and substantive features of the rule of law are
mutually exclusive. Indeed, the EU offers a mixed model. By distinguishing the
rule of law from other foundational principles such as democracy or fundamental
rights, Article 6(1) TEU may seem to suggest the adoption of a narrow and
predominantly formal understanding of the rule of law (i.e. judicial review,
principle of legality, hierarchy of norms, etc.). Such an interpretation, however, would not do full justice to the fact that the
EU’s “Constitution,” viewed as whole, strongly indicates that all the
principles referred to in Article 6(1) TEU are interdependent and must be
construed in light of each other. The EU is founded on all of them
simultaneously and violation of any of them should necessarily mean that the
others cannot be satisfactorily complied with. This reading seems to be
validated by Articles 7 and 49 TEU. It also appears to have gained ground in the
case law of Court of Justice as will be shown below. Although it is true that
the Court’s initial understanding was predominantly formal and procedural in
nature, an evolution towards a more expansive and substantive understanding can
be detected.
The Rule of Law as an Umbrella Principle with Formal and
Substantive Components
While Article 6(1) TEU clearly stresses the fundamental character of
the rule of law as one of the fundamental constitutional principles on which
the EU is founded, it does not attempt to define it. Scholars often regret this
lack of a formal definition, but it seems excessive to criticize, on this basis, the Treaty reference to the
rule of law. This lack of definition is far from unprecedented and does not
necessarily mean that the EU rule of law is inevitably and unjustifiably vague.
Where national constitutions explicitly refer to the rule of law, they do not
specify what this principle precisely and exhaustively entails. A similar
diagnosis can be made in relation to constitutional courts. This general
reluctance to give a precise meaning to the rule of law may be a wise choice
considering the polysemic and contested nature of this principle. In the EU
context, the absence of any definition has had the consequence of allowing or
rather obliging the EU courts to flesh the principle out. The most remarkable
aspect of the Court of Justice’s case law post Les Verts lies in the broader interpretation of the rule of law.
This is to be welcomed as the rule of law should be understood as an “umbrella
principle” with formal and substantive components or sub-principles. In reflecting this understanding, the Court’s case law is not particularly
innovative but on the contrary, replicates to a great extent national
constitutional experiences and in particular, the German one. Before listing
the legal sub-principles that the EU rule of law, as outlined by the Court,
entails, it may be useful to briefly explain the nature of an umbrella
principle.
Following Les Verts, the
formula “Community based on the rule of law” was rightly described as a
“principle” in 1990, a few years before Article 6(1) TEU made explicit that the rule of law, legally
speaking, is neither a mere political ideal nor a rule of law. It is an
umbrella constitutional principle from which more concrete legal principles can
be derived with the aim of subjecting the exercise of public power to some
“limitations”. It is not, however, a neutral principle. As clearly indicated in Les Verts, the central “moral” purpose
of the EU rule of law is to guarantee the existence of a legal order where
natural and legal persons subject to this order, as a matter of principle, are
judicially protected against any eventual arbitrary or unlawful exercise of
Community/Union power. To protect, in practice, the subjects of this “new”
legal order, the Court initially focused on guaranteeing formal/procedural
principles, the most important of which are the principle of judicial review
and the right to an effective remedy, the principle of legal certainty, the
principle of legitimate expectations and the principle of proportionality. But
the EU rule of law does not simply demand compliance with a set of formal
principles. In fact, in most if not all European constitutional traditions, the
rule of law is generally understood by courts as requiring that the exercise of
public power be subject to procedural as
well as substantive limitations. As a consequence, the direct and explicit linkage, which has been made by the
Court of Justice, to the general principle of fundamental rights protection
since the UPA judgment of 2002, is
neither surprising nor objectionable:
The European
Community is, however, a community based on the rule of law in which its
institutions are subject to judicial review of the compatibility of their acts
with the Treaty and with the general principles of law which include
fundamental rights. Individuals are therefore entitled to effective judicial
protection of the rights they derive from the Community legal order …
The Court’s first explicit reference to fundamental rights makes
clear at last that the EU rule of law does not merely encompass compliance with
formal and procedural requirements. It has a substantive dimension in the sense
that the rule of law also demands, according to the Court, judicial remedies
and processes to protect procedural as well as substantive fundamental rights.
To further argue that the UPA case
also shows that the Court views fundamental rights, not only as a component of
the rule of law but as its foundation may
nonetheless be questioned. Indeed, there is no express indication that the
Court understands judicial review as being ontologically and primarily
justified by the need to protect fundamental rights. Rather, the Court merely
indicates that respect for fundamental rights is of particular importance when
it has to review the “constitutionality” of EU institutions’ actions. This
interpretation is perfectly reasonable in light of Article 6(1) TEU and
illustrates the existence of a consubstantial link between the principles of
the rule of law and of respect for fundamental rights. One may nevertheless
concede that while not being a formal foundation of the rule of law, the modern
core theoretical or philosophical purpose of this concept is to protect the
primacy and dignity of the individual and therefore his/her fundamental rights. In Germany
[T]he review
by the Court of the validity of any Community measure in the light of fundamental
rights must be considered to be the expression, in a Community based on the
rule of law, of a constitutional
guarantee [our emphasis] stemming from the EC Treaty as an autonomous legal
system …
It follows that one important, if not the most important, purpose of
judicial review, according the Court, lies in the protection of natural and
legal persons’ fundamental rights. This means, for instance, that the
interpretation and application of the formal components of the EU rule of law
must permanently be guided by this purpose and that “strict judicial scrutiny”
should be the rule when public interferences with individual fundamental rights
are at issue.
While the Court’s “deepening” of the rule of law is a positive
development, its traditional formula since Les
Verts (the EC is a community based on the rule of law) would benefit from
some adjustment to make the substantive dimension of the principle more
explicit. My suggestion is for the Court to use the likely entry into force of
the Lisbon Treaty as the perfect opportunity to revise its formula along those
lines:
The European
Union is a Union founded on the values of human dignity, freedom, equality and solidarity and governed inter alia by the
principle of the rule of law [Rechtsstaat, Etat de droit, etc.,
which primarily means that its institutions are subject to judicial review of
the compatibility of their acts, save narrowly construed exceptions, in order
to guarantee their compatibility with the constitutional order created by the
EU’s founding treaties and in particular the whole range of fundamental rights
it protects.
Regardless of whether one agrees with this suggestion, the most
important point here is that the Court of Justice has refined its understanding
of the rule of law and its constitutive components since Les Verts. A move towards a more “material” and “demanding”
conception can be detected. This is to be welcomed and accurately reflects the subsequent enshrinement of
the rule of law as one of the foundational principles on which the EU is
founded. This codification of the rule of law legitimizes judicial references
made to it and would seem to justify a more explicit linkage of the rule of law
with the other foundational principles with which it is invariably associated.
Yet and somewhat intriguingly, the Court of Justice has continued to refer to
the rule of law somewhat parsimoniously and has not directly relied on it to regulate the exercise of EU power. This
reluctance to apply the rule of law as a
rule of law is not, however, uncommon.
The Rule of Law as a Rule of
Law
The normative added-value of the
rule of law, as a constitutional principle of EU law, has been challenged. For
some critics, either when it is mentioned at Article 6(1) TEU or relied on by
the Court of Justice, the rule of law is a mere umbrella term whose unique
function is, from a legal point of view, to synthesize a series of
sub-principles in an attractive and valorizing formula. This criticism is not entirely warranted. While scholars and the Court, the
latter not always explicitly, have invoked the notion of community based on the
rule of law to justify the “discovery” of a set of fully justiciable general
principles of law, it would be wrong to conclude that the rule of law’s alleged
lack of justiciability necessarily implies a complete lack of normative effect.
The rule of law, as a “structuring principle,” can in particular guide judicial
interpretation. Before looking at the rule of law’s interpretative function,
the extent of its justiciable nature should be further explored.
It would be difficult to deny that the Court of Justice does not
view the rule of law as a rule of law
actionable before a
court. For instance, parties in legal proceedings cannot directly rely on the rule of law to seek annulment of the acts of
EU institutions. The reason is that the rule of law is not one of the principles of judicial
review but rather provides the constitutional foundation for judicial review at
EU level. This explains the relatively minor number of instances where the rule
of law has played a direct role with
respect to the outcome of the cases before the EU courts, even where the Court
of Justice or the Court of First Instance have been invited to do so by the private parties’ counsels or
by the Advocates General. This finding is not entirely surprising as the rule of law is, above all, a
foundational principle with an umbrella nature. Therefore, it is not an ideal
standard for day-to-day judicial work. Indeed, if the rule of law were treated
as a rule of law, it would potentially run afoul of its own requirements for
the simple reason that the rule of law itself is not entirely clear or certain
in meaning. This is why, not unlike national judicial practices, EU judges have
been more naturally inclined to rely on more concrete and less open-ended
principles to scrutinize public authorities’ measures. The prudent use of the
rule of law also presents the advantage of being less likely to opening up a
debate on Europe ’s judicial activism. This is
not to say that the rule of law is not a legal principle or that it completely
lacks legal effect. As a fundamental proposition of law which underlies the European legal order,
the rule of law can be used both as a source from which more narrowly defined
or concrete principles can be derived, and as a constitutional norm which
should guide the interpretation of other constitutional and
infra-constitutional norms.
As previously noted, the Court of Justice has developed a rich body
of jurisprudence on the so-called general principles of law. While the most
important ones have already been identified, their modus operandi and their
relationship have not been fully explained. The general principles of Community
law constitute, similarly to Treaty provisions, a primary source of Community
law, i.e. they are located at the top of the Community’s hierarchy of norms.
Their main purpose is to operate as grounds of review, i.e. Community courts
can invalidate EC “legislation” and administrative measures (and in some
circumstances, national measures) when they conflict with the general
principles of law. Historically, most of these general principles were drawn by
the Court of Justice, before the judgment in Les Verts, from the laws of the Member States, and therefore were not explicitly linked to the principle of the rule of law.
The case law post Les Verts is,
regrettably, not much more explicit. This is unfortunate, conceptually
speaking, as the general principles share an obvious connection with the rule of
law. Indeed, they are “concrete” emanations of the rule of law as their primary
purpose is to regulate public power according to material and substantive
standards. The rule of law can therefore be used to legitimize and bring
coherence to the judicial “discovery” of these plainly justiciable general
principles. The Court of First Instance, on one occasion at least, made
explicit the existence of such a relationship by referring to the right to
sound administration and the principle of judicial review as “general
principles that are observed in a State governed by the rule of law and are
common to the constitutional traditions of the Member States.” This innovative and welcome wording, which the Court of Justice has yet to
adopt, conveniently relays two important ideas previously discussed: (i) the
rule of law, at the national and EU levels, must primarily be viewed as a
foundational principle of constitutional value; (ii) the general principles of
law protected under Community law are inherent to any polity governed by the
rule of law.
In numerous legal systems, the rule of law also functions as a key
interpretative guide and this is the second important normative function this
principle fulfills in the EU context. As one of the few constitutional principles which has a defining character and
on which all modern and liberal political systems are expected to be based, the
rule of law is in a “preferred position” when courts must interpret the
national constitution. The rule of law may not be fully justiciable and possess
the nature of a principle formally “superior” to other constitutional norms. Yet as a “structuring principle” or “primary constitutional principle,” it must always inform the interpretation of other constitutional and
infra-constitutional norms. To put it differently, the rule of law, alongside the principles of democracy,
liberty and fundamental rights protection, represents a foundational value of
the EU legal order that the EU courts must always take into account in their
day-to-day adjudicative role with a view of strengthening concrete compliance
with it. In practice, and in most cases, the Courts have rightly referred to
the notion of “community based on the rule of law” to justify a dynamic and, at
times, contra legem reading of “restrictive”
Treaty provisions, i.e. provisions which may be viewed as constituting
exceptions to the rule of law. Judicial references to the rule of law have also
been made to justify the exercise of a strict degree of judicial scrutiny over
EU measures.
Distinctive Features
In the EU constitutional framework, the rule of law is also used as
a benchmark to assess the actions of its members and candidate countries and as
a foreign policy objective. Viewed in light of national constitutional traditions,
these features may seem quite original. Two caveats are nonetheless in order.
The EU’s supranational and dynamic character explains the first feature. While
federal states may have constitutional clauses according to which their
constitutive entities must comply with inter
alia the rule of law, one of the EU’s raisons
d’être is to expand and welcome more members As a result, compliance with
the rule of law is also a prior condition for EU membership. This largely
explains why the rule of law is one of the key objectives of the EU’s “foreign
policy.” This does not obviously mean that its Member States cannot or do not
seek to promote compliance with this principle as part of their own foreign
policies. As a supranational and goal-oriented organization with conferred
powers, the EU naturally possesses a complex and much more detailed rulebook
than most countries. In other words, unlike most national constitutions, the
EU’s “Constitution” includes a long description of its policies and exhaustive
lists of the objectives it must pursue. To that extent, it is not surprising
that the rule of law was also enshrined in the EU’s rulebook as a foreign
policy objective but in this context, the rule of law, arguably, completely
ceases to operate as a constitutional principle. In other words, the rule of
law as a foreign policy objective should fall outside the scope of this paper
and as a result, only brief developments will be offered here.
The Rule of Law as a Politico-Legal Benchmark
By comparison to other national practices, the use of the rule of
law by the EU – along with liberty, democracy and respect for fundamental
rights – as a benchmark or standard to assess and eventually sanction the
actions of its current and prospective members is rather unique. This aspect,
however, is not entirely unprecedented on the international plane. To mention a
single example, the Council of Europe possesses a formal mechanism under which
any of its 47 members can be suspended from the organization in the context
where a “serious” violation of the principles of the rule of law and respect
for fundamental rights occurs. EU mechanisms nonetheless appear both more ambitious and sophisticated.
With respect to current EU Member States, Article 7 TEU enables the
Council to take measures against any country guilty of “a serious and
persistent breach” of the principles mentioned in Article 6(1) TEU. Preventive
sanctions are also possible in situations where there is “a clear risk of a
serious breach.” With respect to candidate countries, Article 49 TEU provides that any European State
wishing to become a member of the Union must
respect the principles on which it is founded.
A remarkable aspect of these two provisions is that they confirm the
interdependent nature of the EU’s foundational principles. Although the awkward
wording of Article 7 TEU theoretically enables EU institutions to sanction an
individual Member State for seriously and persistently violating only one of
the four principles mentioned in Article 6(1), subsequent attempts at
implementing this provision have indicated that these principles should be
understood as being interdependent. Furthermore, as amended by the Lisbon Treaty, Article 7 TEU clearly indicates
that these principles are to be taken together: The Council may either
determine that there is a clear risk of a serious breach by a Member State, or
the existence of a serious and persistent breach by a Member State, of “the” values (and not “of principles”)
referred to in Article 2 TEU (currently Article 6(1) TEU).
This debate may nevertheless be
relatively insignificant for several reasons. Firstly, the fact that there must
be a clear risk or that the actual
breach must be simultaneously serious
and persistent, indicate that the
thresholds for activating Article 7 TEU will be hard to satisfy. Any
implementation of this provision is further circumscribed by demanding voting
thresholds and the Council’s discretionary power to sanction the relevant Member State Member State Member
State
With respect to Article 7 TEU, the
Court lacks the jurisdiction to review the legality of any decision determining
that there is a clear risk of a breach of the Union ’s
foundational principles or a serious and persistent breach of these principles.
The Member States deliberately limited the Court’s jurisdiction to the review
of the “purely procedural stipulations in Article 7,” with the aim of merely
guaranteeing that the “guilty” Member
State
Their limitations and defects
notwithstanding, Articles 7 and 49 TEU serve a useful purpose. While individual
Member States
or candidate countries cannot realistically fear respectively any formal
sanction or the rejection of their membership application for violating the
foundational principles on which the Union is
based, national governments must always be ready to defend the legitimacy of
their actions in light of principles they cannot individually set aside. In
that regard, the rule of law fulfills a distinctive and useful purpose when
compared to the uses made of this principle at the national level. Another original
aspect of the EU rule of law is that it is referred to as a foreign policy
objective.
The Rule of Law as a Foreign Policy Objective
Since the end of the Cold War,
promotion of the rule of law has become a major and recurrent objective of the EU
when it acts externally, and more
precisely on the international scene. In this particular context, the rule of
law, arguably, ceases to fulfill a constitutional function. As a policy
objective, it does not impose legally-binding obligations on EU institutions
but rather operates as a “soft” and largely undefined ideal that is supposed to
broadly guide EU actors when they act in the international arena. In the words of Advocate General Mengozzi, in its external dimension, the rule
of law constitutes a “value to be “exported” beyond
the borders of the Union by means of
persuasion, incentives and negotiation.”
Technically speaking, one may
distinguish between three areas where the rule of law is formally viewed as a
“pure” policy objective rather than a politico-legal benchmark as in the case
of the EU enlargement policy. The development and the consolidation of
democracy and the rule of law is first mentioned as one of the EU’s foreign and
security policy objectives, while the EC Treaty refers to the rule of law as one of the general objectives
of the EC’s policy of development cooperation and as one of the EC’s policy in
the area of economic, financial and technical cooperation measures with third
countries. The multiplication of Treaty provisions has, unsurprisingly, led to a
proliferation of policy initiatives, instruments and norms. In practice, the
external promotion of the rule of law can mostly be found “in clauses of
agreements, as an objective of financial and technical assistance, as a key element
of conditionality and as part of the Union ’s
developing conflict prevention and crisis management policies.”
Rather than exhaustively reviewing
all these EU policies and the multiple references made to the rule of law, it
appears more useful to stress two important aspects as regards the meaning and
scope of the rule of law in this context. Firstly, the rule of law is once
again clearly linked to the principles – or values – of democratic government
and human rights protection. Indeed, these principles are so often intrinsically linked in practice that it
appears impossible to clearly differentiate between them. This is reminiscent
of our previous conclusion regarding the existence of a consubstantial link
between these principles. EU legislation further demonstrates that the rule of
law as a foreign policy objective of the EU goes beyond the formal approach
favored by the followers of Raz, to mention one but eminent author, and
includes substantive components as well.
Secondly, the rule of law is rarely
subject to explicit definitions and when definitions are offered, they often
lack consistency or rather they tend to focus on specific formal and/or
substantive components of the rule of law. In this respect, one author has
interestingly distinguished between three conceptions or models of the rule of
law in EU external relations: the Co-operation model, the Development model and
the Security and Defense model. However, to criticize the EU for lacking a uniform and precise definition and
suggest that the EU rule of law cannot, therefore, constitute a rule of law,
seems to miss the point. National experiences have taught us that the rule of
law, as a constitutional principle, is rarely defined. Furthermore, the rule of
law is rarely if ever used as a rule of law but rather encompasses different
components which can be used as legal standards by courts on a case by case
basis. It fulfills a diverse set of constitutional functions and in particular,
as a foundational value, it plays a legitimating role. The question of whether
the rule of law constitutes a rule of law also appears misplaced when analyzing
the impact of this principle as a foreign policy objective. The primary purpose
of EU external policies in this context is to change the situation “on the
ground,” i.e. to institutionalize compliance with the rule of law through
diverse structural reforms with a view of guaranteeing a “better functioning”
of the executive, legislature and judiciary. In this particular situation, it
seems reasonable for EU institutions to emphasize compliance with some
components of the rule of law to the detriment of others, in order to reflect
different priorities and contexts. This is not akin to creating a different
concept of the rule of law per policy area. In addition, while it may be true
that EU external policies sometimes reflect questionable understandings of what
the rule of law should entail (e.g. anti-corruption), the core demands of the
rule of law (principle of legality and existence of effective legal remedies to
guarantee the protection of fundamental rights) appear to be always taken into
account. This is not to say, however, that the EU would not benefit from
adopting a more explicit, transversal and integrated approach when it comes to
promoting, in its relations with third countries and regions of the world, the
foundational principles on which it is said to be founded.
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