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2024 | Buch

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The Rule of Law in the EU

Challenges, Actors and Strategies

herausgegeben von: Luisa Antoniolli, Carlo Ruzza

Verlag: Springer International Publishing

Enthalten in: Springer Professional "Wirtschaft+Technik" , Springer Professional "Wirtschaft"

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Über dieses Buch

This book reflects on the nature of the rule of law in the European Union and the present and future consequences of the attacks that are undermining it. Presenting various case studies, it analyses violations of the rule of law and their impact on the quality of European democracy and on the workings of civil and political society. Written from an interdisciplinary perspective, the book connects legal aspects related to infringements of the rule of law with their political and sociological consequences at both a general and the EU level.

The book is divided into three parts. The first focuses on the rule of law in the European context and the threats to democracy posed by its violations. It examines how populist movements and parties utilize the erosion of the checks and balances in liberal democracies to weaken resisting intermediate bodies, such as dissenting civil society groups. The second part concentrates on the political perspectives, which it approaches both in terms of its general features and through a set of case studies related to violations of the rule of law. The third part provides a legal perspective on these issues and examines the impact of the rule of law and its infringement in several areas, impacting both the internal and external dimensions of the EU.

Inhaltsverzeichnis

Frontmatter
Introduction
Abstract
This book explores the challenges that the rule of law faces in contemporary Europe from a range of interconnected perspectives, contextualising the rule of law and the impact of populism in the EU. It analyses the key debates that have shaped the political and legal discourse in recent years, focusing on challenges related to the spread of populism, particularly among right-wing parties. It also analyses the meaning and effects of the rule of law, a complex and multi-faceted concept based both on institutional checks and balances and the protection of fundamental rights, which lies at the heart of the EU integration process and its evolving features. The book highlights some crucial features of this phenomenon, such as the progressive institutionalsation of populism, and its interaction with relevant actors such as civil society, NGOs and intermediate bodies. By analysing a number of specific and diverse issues where the rule of law is influenced by populist pressures, the book provides a useful analytical framework for understanding recent dynamics and the trends within the European Union.
Luisa Antoniolli, Carlo Ruzza

General Aspects of the Rule of Law and Populism in the European Union

Frontmatter
Historical Perspectives on the Democratic Deficit(s)
Abstract
The chapter discusses the history of the democratic deficit and its evolution until the 1980s. It is based upon one assumption and has three major aims. The assumption is that in the burgeoning debate on the EU democratic deficit, historians had little to say on its origins and developments, as well as on its evolving meanings. For this reason, the first aim is at discussing the emergence of an early definition of “democratic deficit”. Rather than considering it as an innate feature of the institutions created by the Treaty of Rome, it argues that a specific and clear democratic deficit emerged as the unintended consequence of three decisions adopted at the 1969 Hague Summit, namely the granting of budgetary powers to the not-yet-directly elected European Parliament, the strengthening of majority voting within the Council, and the accession of more sceptical Europeans to the EEC as a consequence of the 1973 enlargement. Second, it will discuss the evolution of the meanings that “democratic deficit” assumed to scholars, politicians and civil society in those years. Finally, it will highlight the main, although partial, solutions elaborated to cope with it before the adoption of the Maastricht Treaty.
Umberto Tulli
Populism and Segmentation in Contemporary Europe
Abstract
Contemporary Europe faces serious problems of democratic backsliding and rule of law violations. This chapter focuses on the nature of these transformations and the role of the European institutional and constitutional context. First is to clarify what characterizes these violations of democracy and rule of law. The chapter highlights forms of democratic and rights-based exclusion. Second is to clarify the relationship between the EU’s character as a segmented political order and violations of democracy and rule of law. A segmented political order is a political entity that is substantively biased and subject to material (capacity), normative, and constitutional constraints, which through largely unintended effects limit the scope for remedial action. That reading of the EU has implications for our understanding of the constitutional implications of populist onslaughts on democracy and rule of law. The chapter therefore examines whether democratic and rule of law backsliding is ultimately a vertical (EU-Member State) or a more horizontal (Member State-Member State) constitutional conflict. From a constitutional perspective, a vertical reading neglects the central role of the Member States in determining the EU’s constitutional nature and direction. Hence, we need to underline the horizontal (Member State-Member State) aspect of the conflict.
John Erik Fossum
Democracy in Europe: Between a Rock and a Hard Place
Abstract
After several waves of democratic expansion and consolidation in European states (Huntington, 1991), democratic politics appears to be in retreat throughout the continent. This chapter adopts a perspective that complements the focus on issues concerning the Rule of Law in EU member-states by considering other sources and aspects of ‘democratic malaise’ in the EU. While it has become evident that Eurosceptic/populist governments, particularly in Central-Eastern Europe (CEE), have manifested illiberal tendencies (Kochenov and Bard, 2020), it cannot be omitted that European integration has, in the first place, produced a ‘deficit’ in European democracy (Weiler et al., 1995; Follesdal and Hix, 2006; Mair, 2013). Indeed, current EU politics can be seen as a polarized confrontation between Undemocratic Liberalism, in the form of EU elitism, and Illiberal Democracy, in the form of authoritarian Eurosceptic populism (Mudde, 2021). In fact, in recent years, a growing recurse to (or appetite for) illiberal measures can also be attributed to political actors/institutions that are neither necessarily populist nor Eurosceptic. In a context of polycrises—and the consequent ‘crisification of policy-making’ (Rhinard, 2019)—a series of emergency measures and pressing requests for more dictatorial politics have been adopted and advanced also by ‘mainstream’ voices, casting a gloomy picture on the state and fate of liberal democracy in Europe (Goetz and Martinsen, 2021).
Emanuele Massetti
Populism, Human Rights, and (Un-)Civil Society
Abstract
In retrospective, the hope—particularly strong in the 1990s—that a vigorous civil society provided a secure pathway towards a robust, consolidated democratic regime and that reinforcing civil society would invariably strengthen the democratic project, seems somewhat naïve. A normative faith in civil society is more difficult to uphold in contemporary times but has not entirely disappeared. There is currently too little reflection on how civil society is itself a sphere of intense democratic and civil struggle, and that civil society forces cannot be necessarily equated with ‘progressive’, liberal-democratic forces or even that progressive activism might not necessarily lead to an overall strengthening of democracy. This chapter reflects on the role of sociology in the study of populism and draws attention to the need for a critical sociology of civil society. The chapter discusses sociological approaches to populism and civil society and outlines a pluralistic approach to populist societal forces and human rights mobilization or ‘lawfare from below’. Three case studies of European conservative uncivil society actors will be briefly analysed.
Paul Blokker
The Epistemic Vices of Democracies in the Age of Populism
Abstract
The subject of this paper is how the epistemic limitations of individuals and their biases in reasoning affect collective decisions and in particular the functioning of democracies. In fact, while the cognitive sciences have largely shown how the imperfections of human rationality shape individual decisions and behaviors, the implications of these imperfections for collective choice and mass behaviors have not yet been studied in such detail. In particular, the link between these imperfections and the emergence of contemporary populisms has not yet been thoroughly explored. This is done in this paper by considering both fundamental dimensions of the political space: the cultural-identitarian and the socio-economic one. As has been noted, reflections on these points induce to revise the picture of democracy as a regime producing collective decisions that come out from the interaction of independent individuals well aware of their values and interests, and rationally (in the sense of rational choice theory) pursuing them. This leads to a certain skepticism towards the idealization of democracy as human rationality in pursuit of the common good, which serves to provide cover for those who profit from the distortions and biases in the policy-making processes of actual democracies. A natural conclusion of the paper is that contemporary democracies are quite vulnerable in the face of populist leaders and parties, that are systematically trying to exploit to their advantage people’s imperfect rationality (using “easy arguments”, emotions, stereotypes…).
Luigi Bonatti
Too Little, but Not Too Late? Assessing the Role of Sanctions in the EU’s Rule of Law Conflict with Poland
Abstract
Until recently, the European Union (EU) has been unable to stop democratic backsliding in one of its biggest member states, Poland. Academic evaluations attribute the ineffectiveness of internal EU sanctions mostly to internal shortcomings, such as institutional gridlock and intergovernmental resistance. In the 2020s, the EU introduced new mechanisms, such as Rule of Law conditionality and the European Public Prosecutor’s Office (EPPO). This chapter examines the effectiveness of pre-existing and newly introduced mechanisms utilized in the ‘rule of law’ conflict between the EU and Poland. Our analysis shows that financial conditionality mechanisms were more effective than other sanctions, such as infringement or Article 7 procedures. At the same time, the Polish PiS government was able to block the efficacy of other new mechanisms, such as the EPPO. Contrary to some expectations, internal EU sanctions also did not lead to a ‘rally around the flag’ effect in Poland.
Adam Holesch, Eliza Rutynowska, Clara Portela

Political Perspectives on Populism and the Rule of Law in Key Political Contexts

Frontmatter
The Rule of Law as a Cornerstone of Anti-Populism: European Institutions, Populists, and ‘the People’ in European Parliament Debates
Abstract
This paper argues that populism and anti-populism are used in EP politics as boundary-creating categories. They define alliances and processes of inclusion and exclusion. They are used in political discourse and are connected to other boundary-defining categories, such as attitudes towards the process of European construction, social inclusion, and anti-discrimination policy. However, the concepts of populism and anti-populism are difficult to operationalise because they refer to ideologies, political styles, and political behaviours that may be somewhat similar between the two blocs. In this context, a third overarching concept—the ‘rule of law’—comes to play a fundamental role in boundary creation and maintenance. This role has been empirically examined in a debate on the relationship between Poland and the independence of the judiciary that took place in the EP in December 2021, and which has been content analysed. The paper argues that there are two contrasting conceptualisations of the rule of law that define contrasting political blocs.
Carlo Ruzza, Carlo Berti
Democracies Under Pressure in Pandemic Times: The Relationship Between State of Emergency and Rule of Law in Angela Merkel and Victor Orbán’s Political Communication
Abstract
The chapter examines the communication strategies adopted by institutional and populist leaders during the first wave of Covid-19. By comparatively analyzing official speeches delivered between March and June 2020 by Angela Merkel and Victor Orbán, the study identifies the leadership styles of two European heads of government who represent the populist/anti-populist cleavage. The contrast in the narrative strategies employed by the German Chancellor and the Hungarian Prime Minister reveals their respective approaches to the issue of the rule of law. Angela Merkel's leadership style is characterized by her institutional, pro-European, and femininely-informed approach, while Victor Orbán's approach is macho, populist, and anti-European. The analysis examines how these two contrasting political narratives have framed the relationship between the emergency government and the democratic structures. Taking into account three variables—the relationship between the state of emergency and the rule of law; the relationship between European institutions and national governments; the relationship between the government and other local political actors—the chapter reveals the different conceptions of liberal democracy adopted by the two leaders in the face of the pandemic: a weak political model to be overcome in Orbán's discourse, a resilient system to be preserved in Merkel's narrative.
Flaminia Saccà, Luca Massidda
Gender Rights and Opposition to Populism
Abstract
The 2020–2025 gender equality strategy presented by the European Commission has set out key actions in order to put an end to gender-based violence and stereotypes, to ensure equal participation and opportunities in the labour market and in policymaking. The European Parliament called for support for women's rights campaigners as well as women's rights organisations in the EU and worldwide, including organisations dealing with LGBTIA + people, by providing them with more substantial and targeted financial support. On this basis, the first part of this contribution aims to shed light on the way in which Italian populist institutional actors deal with gender issues within their government programmes and on whether their representations of gender correspond to the values defined at European level. A second part of the work aims to analyse the tension between institutional populist actors and antagonistic feminist associations, which act in an anti-populist sense. The contribution will examine the practices and political discourses of the movement Non una di Meno in Italy, focusing on how and in which specific areas it takes action as an anti-populist force and on the relationship that can be identified between its objectives and values and those set by the European Commission on gender issues.
Milena Meo, Valentina Raffa
Left Populism and the Rule of Law. Notes Based on the Greek and Ecuadorian Experiences
Abstract
Populism and the rule of law have been more often than not depicted as necessarily antithetical to each other. Although it has received less attention in the relevant literature than its right counterpart, left populism is also treated with suspicion. The paper problematises the all too common attitude of having populism as the ultimate peril for the rule of law. Such a critical undertaking is pursued in two ways. Firstly, through a definitional discussion on how to best interpret and treat populism and the rule of law. The view adopted here is that the discursive approach to populism and the functional one to the rule of law are the best proxies to understand the two notions at stake, as they seem better equipped than rival theories to pay heed to context and contingency. Secondly, the paper conducts an empirical analysis of two left populist practices–those of Alexis Tsipras in Greece and Rafael Correa in Ecuador. If taken to an extreme, left populism may be problematic in terms of tempering abuses of power. At the same time however, left populism may also spur processes of institutional strengthening that increase state legitimacy, arguably another fundamental component of the rule of law. Yet both aspects should be assessed empirically on a case by case basis rather than by reference to theory, as populism can manifest itself very differently and the rule of law should be understood in terms of use rather than meaning.
Samuele Mazzolini
Predictors of Populism and Anti-populism in France and Poland: A Comparative Analysis
Abstract
Using data from the last wave of the European Value Survey, we analyse and compare voters for authoritarian-populist parties in two European countries. Our purpose is to determine what features of populism are country-specific and what are instead indicative of a cross-country trend. We consider in particular the debate between economic deprivation versus cultural backlash theories, arguing that the choice between these two perspectives excessively simplifies analysis of the drivers of the right-wing populist vote. Instead, on the basis of a comparative analysis of the populist vote in France and Poland, we maintain that a more nuanced theory of the populist vote is needed. It should include historical factors that differentiate an ‘un-civic’ type of French populism from a traditionalist-religious Polish populism. This typology could be used to assess a broader set of populist electorates.
Stefano Benati, Carlo Ruzza

Legal Perspectives on the Rule of Law in the European Union and Threats Posed by its Violation

Frontmatter
The Principle of Legality as a Pillar of the EU’s Rule of Law: Bridging the Gap between International and National Law
Abstract
This chapter examines the principle of legality as a central component of the rule of law in the internal context of the European Union (EU), with a particular focus on the perspective of the Court of Justice. It examines the historical development of the principle in the context of modern states and its place in international law. The rule of law is a fundamental concept within the EU's legal and political framework, serving as the cornerstone ensuring that all actions and decisions taken by the EU comply with the principles of legality, transparency, and respect for fundamental rights. Within this comprehensive framework, the principle of legality plays a central role, underlining the need for the exercise of public authority, both at EU and national level, to be clear, predictable, and lawful. The focus on the internal dimension of the rule of law within the EU underlines the crucial importance of ensuring that EU institutions and Member States comply with the legal norms and principles applicable to their respective areas of competence in order to fully affirm a ‘Union based on the rule of law’.
Antonino Alì
Conditional or Sustainable? The Rule of Law and Judiciary Reforms in the Western Balkans
Abstract
European integration is legal integration. Rule of Law is an essential part of the DNA of the European Union, which is itself a “community based upon law” (ECJ, Les Verts). Judges in the Member States are not only an integral part of their own judicial system, but also of the integrated European legal order. The Rule of Law principle is recognized as a founding value in Article 2 TEU, after its outward projection had long been part of the Copenhagen criteria for EU accession. The experiences with enlargement in 2004 and 2007 as well as the creation of the Space of Freedom, Security and Justice have led to major emphasis on the Rule of Law in the enlargement process, and on the related chapters 23 and 24, before and during accession negotiations. According to the new cluster-methodology applied by the European Commission since 2020, the Rule of Law has become the real litmus test in the accession process. This paper shall assess judicial reforms in the Western Balkans over the last 20 years and the EU’s financial and technical assistance, with a focus on the difficulties created by state capture and by the continuity of a formalistic legal culture which is a socialist legacy. The central question is whether and to which extent Rule of Law can be sustainably created from the outside, by external actors and assistance.
Jens Woelk
EU Social Policy, Social Partners, and the Rule of Law
Abstract
The chapter examines the peculiarities of the concept of “rule of law” within EU social policy, focussing, in particular, on the role played by social partners (i.e., trade unions and employers’ organizations) in its development. After a brief analysis of the evolution of EU primary law in the field, the author firstly points out that, during the 1990s, the social partners actively contributed to the improvement of EU social policy, especially through the possibility, provided by the Treaties, to incorporate collective agreements into EU directives. He secondly affirms that the situation completely changed with the EU enlargement to several Central and Eastern countries and the economic and financial crisis that broke out at the end of the 2000s: in this period of time, social policy and the social partners were marginalised, meaning that the EU stopped adopting new directives on labour matters. The final part of the chapter is devoted to the analysis of the so–called “EPSU case”, which was recently decided by both the EU General Court and the EU Court of Justice. According to these judgements, the EU Commission is not obliged to submit to the EU Council the request of the social partners to incorporate collective agreements into EU directives, i.e., it holds discretionary powers in this respect. According to the author, this kind of interpretation is really dangerous, because it paradoxically ends up weakening the social partners in a moment of renewed activism of the EU Commission on social policy.
Matteo Borzaga
Climate Change Litigation and the Rule of Law in the European Union
Abstract
Rule of law is a complex concept, with a meaning that is highly dependent on the specific context in which it is applied. Yet, in all systems, one of its essential components is an effective system of fundamental rights that are protected by independent and impartial courts. In this framework, climate change litigation is an important test for the impact and evolution of the rule of law. It is a recent but highly significant phenomenon, through which individuals, groups, and associations use litigation in order to force a change in the way in which climate change is addressed (“regulation through litigation”). This trend (which exists also in other areas of environmental protection), is developing on a global scale, but has specific features that depend on the characteristics (institutions, principles, and rules) of the legal system where the judicial action is brought and handled. This is true also for the EU, which is a multi-level system, with an integrated system of judicial protection, comprising both the European Court of Justice and national courts. The analysis of a recent leading case, Carvalho (decided in 2019 by the General Court and on appeal by the Court of Justice in 2021), shows that the limits for judicial review of the validity of EU acts by individuals are very narrow, due to both the way in which the rules (art. 263(4) TFEU) are formulated and the interpretation that the courts have given to them. The conservative position of case law stands in stark contrast with the active and progressive character of EU legislation on environmental protection, and also with the gradual emergence of case law protecting fundamental rights related to the environment in various national legal systems.
Luisa Antoniolli
The EU Sustainable Corporate Governance Initiative and the Rule of Law
Abstract
The rule of law is enshrined in the Treaty on the European Union (TEU) as one of the common and fundamental values for all member states, a value that the EU shall uphold and promote internally and in its relations with the wider world. The protection and promotion of the rule of law is primarily a duty of States, but companies and citizens may also play a role in advancing it. Indeed, by adopting responsible business practices and ensuring the respect of human rights and good governance, companies may also contribute to strength the rule of law, serving as a complement to government action. The chapter will investigate whether and to what extent the recent EU initiative on ‘sustainable corporate governance’, aimed at introducing binding due diligence obligations upon companies, may contribute to the enhancement of the rule of law and, in turn, to the achievement of sustainable development within the EU borders and in foreign countries where EU companies operate. The chapter will compare the content of the EU Parliament’s Report to the Commission on corporate due diligence and corporate accountability (11 February 2021) and the EU Commission’s proposal for a directive on Corporate Sustainability Due Diligence (23 February 2022) and assess relevant differences, as well as implications for the rule of law. The chapter will further discuss pros and cons of involving companies in the promotion of the rule of law.
Sondra Faccio
Conclusions
Abstract
The aim of this book has been to analyse violations of the rule of law and the related impact of the new wave of populism on the European integration process. It has done so through a number of studies focusing both on general and theoretical issues, and on specific areas and cases, applying a variety of disciplinary approaches. This concluding section examines whether general lessons can be drawn from the various disciplinary perspectives and case studies discussed in the previous chapters. For this purpose, it addresses some key issues. It analyses the meaning of the rule of law in the European Union context and in the member states, as well as its impact in various areas important for the European integration progress. It then explores the implications for the rule of law of the onset of populism as a set of ideas and practices in the European supranational arena.
Luisa Antoniolli, Carlo Ruzza
Metadaten
Titel
The Rule of Law in the EU
herausgegeben von
Luisa Antoniolli
Carlo Ruzza
Copyright-Jahr
2024
Electronic ISBN
978-3-031-55322-6
Print ISBN
978-3-031-55321-9
DOI
https://doi.org/10.1007/978-3-031-55322-6

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