On constitutional integration: a case law analysis of the rule of law crisis

Abstract:

The EU rule of law crisis has generated a large body of case law surrounding the concept of the rule of law and the value it holds as a foundational component of democracy. Through the rule of law state and post-state constitutionalism has been brought into conflict and this conflict can be observed through the analyzing of a number of recent ECJ judgements. In doing so we can witness a deeper movement of integration on a constitutional level and the growing complexity of EU law as a supranational legal system and as a distinct supranational constitutional identity.

This essay will be structured in two parts; the first being a case law analysis of a number of recent judgements with the primary focus being on the approach of the ECJ in defining the rule of law as a value under Article 2 TEU in relation to the legal concepts of national identity, competency, certainty and proportionality. By using these concepts as a framework I will attempt to demonstrate the phenomenon of constitutional integration. The second section will be devoted to presenting my preliminary understanding of constitutional integration amidst the backdrop of the growing complexity of both state and post-state constitutionalism.

Introduction

The ongoing rule of law crisis within the EU has highlighted the pressing need for the formation of both a political consensus in regards to how breaches of the “rule of law” should be approached and a theoretical consolidation of the various working definitions that have attached themselves to the concept. By viewing the rule of law crisis as systemic issue we can deduce a general body of law and in turn observe a pattern of legal developments. My intention with this essay is to present an account of the rule of law crisis as a symptom of a deeper change underway in constitutionalism. The four areas of law I have identified for my case law analysis are as follows; certainty, national identity, competency and proportionality. By analyzing how the ECJ approaches these areas of law we can in turn observe the bringing into contact national constitutionalism with supranational constitutionalism with the rule of law crisis serving as a nexus for this phenomenon.

Each of the four areas identified offers separate perspectives on the phenomenon of constitutional integration. In this essay I will present a draft thesis on why constitutional integration is occurring, why it is an unavoidable phenomenon for the EU and how the rule of law is an example of this phenomenon. The structure of this essay will be as follows; I will first analyze the rule of law crisis using the four concepts of national identity, competency, certainty and proportionally as guiding tool. Next, I will outline constitutional integration in three parts; firstly, the model of integration being adopted currently by the EU, secondly my draft model of constitutional integration as a phenomenon, and lastly, I will consider briefly legitimacy concerns results from the concept of supranational constitutionalism and the concept of EU identity. This essay is an attempt to view the rule of law crisis as strictly as possible within the concept of constitutionalism. This essay will not cover the entirety of the case law surrounding the rule of law crisis or constitutional integration but it instead will serve as an introduction wherein a foundation for constitutional integration is established and the basic points of the concept are addressed.

1. Case law analysis of the rule of law crisis

The purpose of this section is to tie together the references to the general legal principles of certainty, national identity, competency and proportionality observable throughout the recent case law that has developed as a result of the rule of law crisis. The purpose of this task is to present a model representing the process of integration, a common EU law concept, relative to the concept of the rule of law as provided for under Article 2 TEU, and the corresponding provisional and ancillary legal provisions that are frequently cited alongside Article 2 TEU. This is less of an exploration of the integrationist forces present in EU law, or the broader EU political sphere, but rather an exploration of constitutionalism on both a national and supernational level. By observing the development of the body of law relating to breaches of the rule of law I wish to contend that we can observe the gradual, and incremental process of constitutional integration as an example of the complexity to which EU law has reached, and the implications of this fact upon national constitutional identities. This section will be structures as follows; national identity and competency, certainty and proportionality. Through the areas of national identity, competency and certainty we can establish a rough assessment of the concept of a congruent EU constitutional identity in relation to a key legal abstract such as the rule of law. Through proportionality we can observe the limitations placed upon this constitutionalism. Commentators have observed in European legal scholarship that the rule of law crisis should be approached as a systemic issue.(1) This essay is an attempt to adopt a likewise systemic view on constitutionalism.

A. National identity and competency

The concepts of national identity and competency are of particular relevance to the contents of Article 4 TEU where they are construed within the context of fundamental values as provided for under Article 2 TEU. The connection between Article 4 TEU and Article 2 TEU brings the rule of law as a fundamental value and membership obligation within the orbit of arguments based upon constitutional identity on both a national and supranational level. A common theme throughout the body of law that has emerged as a result of the rule of law crisis is the employment of Article 4(2) TEU as a shield against infringement proceedings under Articles 258 – 260 TEU and Article 7 TEU. In addition, national identity has presented itself as a reoccurring argument in review proceedings under Article 263 TEU and in preliminary reference procedures under Article 267 TEU.(2) The purpose of this section is to consider the approach adopted by the Court in response to the use of Article 4(2) TEU in relation to the rule of law. The concept of national identity is an essential concept within EU law. Article 4 TEU has been referred to as the “cornerstone” of the EU constitutional order and provides for the delineation of competencies between the EU and its Member States.(3) Of particular note is Article 4(2) TEU which obliges the EU to respect the national identities of the Member States including their respective constitutional structures. In addition, there is a connection between Article 4(2) TEU and Article 2 TEU in that Article 4(2) TEU provides for the concept of national identity while Article 2 TEU can be considered to define what can be described as the ”EU identity”.(4) In C-156/21 Hungary v Parliament and Council the Court remarked that Article 2 TEU defines the very identity of the EU.(5) Klamert continues and notes that while Article 4(2) TEU provides for the protection of national identities on a constitutional level no similar provision is provided for EU identity.(6) While Article 4 TEU does present a constitutional balancing act for the Court, perhaps Article 4 TEU doesn’t quite represent the unfair advantage Klamert suggests it does. Let us consider the place of the rule of law in the broader constellation of national and supranational constitutional identities that make up the EU legal order.

The term “national identity” entails a number of meanings within the sphere of EU law. It can be understood to represent the cultural identity of a state, the constitutional identity of a state or it can be used as a framework through which the delineation of competencies can be defined.(7) It is settled case law that where EU law is absent and no direction is provided through EU provisions then this area falls to the competency of the Member State however where EU law does cover a particular area then the national provisions must be construed in light of EU law. A relevant authority in this regard is C-182/15 Petruhhin.(8) The Court reaffirmed this position in C-247/17 Raugevicius where it stated “in situations covered by EU law, the national rules concerned must have due regard to EU law”.(9) The exact approximation of the rule of law as a competency is also unclear. The above case law concerns competency in a general sense. I will now consider the interrelation of competency and the rule of law.

The Courts judgment in V.M.A v Stolichna obshtina, rayon ‘Pancharevooffers’ offers an insightful glimpse into how the Court approaches the concept of national identity within the context of Article 4 TEU and its relation to Article 2 TEU specifically.(10) The facts of this case concerned the refusal of the Bulgarian authorities to issue a birth certificate showing two women as the mothers citing the concepts of motherhood and the “traditional family” fell under the scope of the Bulgarian national identify.(11) In light of the legal and factual context of the preliminary reference in question the Court raised the following question; firstly, is it necessary to strike a balance between the national identify of the Republic of Bulgaria and the interest on the child, particular the child’s right to privacy and free movement?(12) Concerning the concept of “national identity” the Court remarked that the provisions of Article 4TEU provide for an autonomous concept of interpretation within EU law that cannot be interpreted in the abstract.(13) The Court continued and elaborated by stating that the only concepts synonymous with national identify which may fall under the protection of Article 4 TEU are those which are consistent with the provisions of Article 2 TEU.(14)

Concerning the administration of justice and constitutional identity the case of C-619/18 Commission v Poland provides some direction as to how the Court has approached competency within the context of the rule of law.(15) Here, the Commission contended that the new reforms to the Polish judicial system failed to satisfy Poland’s membership obligation arising under Article 19(1) TEU being to provide effective legal protection. Supporting Article 19 TEU is Article 47 of the Charter which requires that in fulfilling the requirement for effective legal protection Member States are required to respect judicial independence.(16) On the issue of competency and the administration of justice the Court references the above noted judgment of Raugevicius and reaffirmed that that while the specific organization of judicial systems falls within the competency of the Member States this does not mean that in exercising this competency the Member States are precluded from complying with their obligations under EU law namely those arising under Article 2 TEU and Article 19 TEU.(17)

The approach demonstrated by the Court C-619/18 can be further observed in the recent judgment of C-791/21 Commission v Poland where the Court reiterated that while the administration of justice is a national competency this does not preclude a Member State from observing its EU membership obligations namely observing the rule of law.(18) What can be further observed here is the Court ‘s approach to linking exclusive competencies to Article 2 TEU by way of Article 19 as a medium for reaffirming the applicability of the rule of law as a fundamental value within the context of a national competency.(19) We can again see the reaffirmation of the rule of law as a universal fundamental value that extends to cover even areas of exclusive national competencies.

The limitation of Article 4 TEU and constitutional identity is clearly illustrated in C-156/21 Hungary v Parliament and Council where the Court emphasized that Article 2 TEU represents a core set of values that form a part of the EU identity and common legal order. These values express themselves as binding obligations upon the Member States.(20) The place of national identity appears to be found in the implementation of the rule of law but the result the rule of law is intended to achieve is to be universally observed irrespective of Member State constitutional identities.(21) This is a profound but welcome approach and it is perfectly in line with the generally progressing position adopted by the Court in response to breaches of the rule of law.

As mentioned briefly above, Klamert raises concern as to the potential for Article 4(2) TEU to act as an advantage for a Member State in proceedings and that no equal measure is offered in regards to EU identity. From viewing the Treaties, it would appear that indeed this a legitimate claim but as the Court has demonstrated through the above noted case law, the concepts the Treaties reference and the interaction between these concepts are continually being developed through the gradual and incremental development of a body of law that if viewed collectively appears to be not only defending the parameters of the rule of law as a component EU identity but constructing a universal definition for the rule of law in the process. It is clear that while well founded the constitutional unbalance noted by Klamert is perhaps not as unbalanced as it appears to be. The Court has demonstrated in the midst of the rule of law crisis that it is prepared to defend the rule of law even in areas where exclusive competency is claimed by a Member State.

B. Certainty

Craig and De Burca observe that “a basic tenet of the rule of law is that people can plan their lives with knowledge of the legal consequences of their actions”.(22) The rule of law represents the functional nature of law as a societal tool. Niklas Luhmann offers an interesting perspective on the functional role of law within systems by stating that the purpose of law is to generalize behavior so as to establish predictability, a feat achieved by virtue of legal certainty.(23) In order for law to achieve its function a number of procedural qualities are required such as judicial independence and that all within the state, both public and private, are bound to and entitled to the same benefits of the law.(24)

While the precise definition to be attached to the rule of law within the sphere of public international law remains somewhat open there is a consensus within the EU as to the general objective and spirit of what the rule of law seeks to achieve and this is reflected through the reference to the rule of law as a value under Article 2 TEU and the approach adopted by the ECJ when expressing this value. In Kühne & Heitz the Court referred to certainty as a general principle recognized under EU law yet as I will outline below there is a lack of certainty surrounding the rule of law as an EU constitutional concept which reveals a key weakness of the current format for the rule of law within EU law.(25) My intention here is not to discuss certainty as a general administrative principle but rather I wish to focus on the interaction between certainty and the rule of law as provided for under Article2 TEU.

It is first beneficial to briefly note the position of the rule of law within the broader constitutional constellation that makes up what can be referred to as the EU constitution.(26) Article 2 TEU references the rule of law as a fundamental value of the EU and as such the rule of law represents a component of the EU’s “untouchable core”.(27) In C-441/17 R, Commission v Poland the Court stated that the rule of law is a value upon which the European Union is founded.(28) This statement was reaffirmed by the Court in C-619/19 Commission v Poland referred to the rule of law as foundational value. (29) A core theme of the rule of law is certainty whether that be procedural predictability, the facilitation of legitimate expectation, transparency in the applicability and contents of a specific law or the legality of a decision or act.(30) Further, certainty is an essential administrative principle as illustrated through Kühne & Heitz. Yet despite both the rule of law and certainty being important principles in EU law there is a noticeable deficit of certainty surrounding the exact definition to be attached to the rule of law as it is expressed under Article 2 TEU.

The uncertainty of the rule of law was referenced in the submissions of Poland in C-157/21 Poland v Parliament and Council. By way of factual background, in C-157/21 the applicant had applied to the Court seeking the annulment of Regulation (EU, Euratom) 2020/2092. In support of this application the applicant submitted a number of arguments with certainty being one of them. Concerning certainty, the applicant argued that the regulation failed to satisfy the requirements of legal certainty due to the inclusion of the rule of law conditionality clause under Article 2 and Article 3 of the contested regulation.(31) The Court agreed with the applicant in that the criteria listed under Article 3 did not satisfy the requirements of clarity as the concepts contained within the definition presupposed that they each possessed universal meaning.(32) In addition, the Court noted that the concept of the rule of law cannot be imbued with a universal definition and as such its meaning may differ based upon the respective constitutional structure and legal traditions of the Member States.(33)

While the Court did concede that the reference to the rule of law under the contested regulation failed to meet the requirement of certainty the Court did not accept that the provisions lacked subjective qualities outright. Rather than relying on the provisions of Article 2 TEU directly the Court instead pivoted upon the provisions of Article 3 of the contested regulation holding that the definition contained therein is not a definition in the strictest sense but a technical checklist of relevant procedural principles associated with the purpose and aims of the contested regulation directly.(34) Thus, while the rule of law lacks clarity the regulation does provide certainty as to the technical application of the rule of law.

The Court arrived at a similar conclusion in C-156/21 Hungary v Parliament and Council where it stated that the principle of certainty requires both certainty as to the content of a law and foreseeability in the application the application of a law.(35) The Court was careful to emphasis that the principle of clarity cannot be interpreted so as to restrict the discretion of the EU legislature in areas where it is addressing abstract legal norms.(36) While the outcomes of both C-157/21 and C-156/21 are welcome ones the logical steps taken by the Court in addressing the systemic nature of the rule of law crisis remains unresolved. There still remains uncertainty as to what the rule of law as a fundamental concept. By framing the rule of law as a non-exhaustive concept with extensive reference to ancillary definitions and examples the legal weight of the rule of law is compromised.

In C-791/19 Commission v Poland infringement proceedings were brought against the Republic of Poland on the basis that Poland had infringed Article 19 TEU by failing to guarantee judicial independence. In a similar manner to C-157/21, the infringement proceedings also concerned a breach of the rule of law. Additionally, while the concept of the rule of law is repeatedly referenced throughout the judgment of the Court no precise definition is provided but instead the qualities of the rule of law are identified and expressed through reference to Article 19 TEU bringing this specific reference to the rule of law within the exclusive ambit of judicial independence.(37) As commentators have observed, this systemic, or function specific approach to addressing breaches of the rule of law fails to grasp the wider constitutional nature of such breaches. The result of the Court’s teleological interpretation of Article 2 TEU is that the problem of rule of law breaches is often missed and instead only the symptoms of said breach are addressed.(38)

The approximation of the rule of law under Article 2 TEU with the provisions expressed under Article 19 TEU is indicative of the Courts tendency to adopt teleological methods of interpreting Treaty provisions.(39) While this is a logical approach where the proceedings in question relate to breaches of judicial independence the broader ecological status of the rule of law within, the EU legal system is not systemically defended. Clarifying judicial independence is a function specific, or individual approach to remedying what should be considered a systemic issue. The rule of law does not simply entail judicial independence and rule of law breaches can occur in contexts unrelated to judicial independence.

A point of interest in the judgment of the Cout in C-791/19 is the relating of the rule of law to the broader themes of justice, trust and democracy.(40) In doing so the Court illustrates the deeper substantive qualities of what the rule of law is and why certainty of its procedural features is not only required but essential. From the above case law it is clear that where uncertainty surrounds the rule of law as a standalone, normative and procedural concept in EU law then the door is left open for further rule of law breaches. Relying on ancillary or approximate provisions is certainly a welcome approach where the proceedings in question require it avoiding the issue of uncertainty as to the rule of law as a permanent strategy will not assist in strengthen European democracies.

The Venice Commission noted in its 2011 ‘Report on the Rule of Law’ that the various definitions attached to the rule of law and the divergences between these definitions has raised doubt as to the effectiveness of the concept within the context of public law.(41) The above discussed case law serves as illustrations of this point. A common theme running throughout the body of case law that has developed in relation to the rule of law crisis is that the Court has typically relied upon the provisions of Article 19 TEU, or other secondary legislation, to avoid the technical deficits associated with attempting to formulate a robust defense of the rule of law as a fundamental value under Article 2 TEU. This point raises concerns as to what the EU constitutional identity is as where there is uncertainty as to the rule of law this naturally extends to the constitutional identity of the EU and the delineation of competencies between the Institutions of the EU and the Member States.

C. Proportionality

The next dimension of the rule of crisis that I will consider is proportionality. While it is an ancillary issue when compared to competency and certainty it is nonetheless relevant when considering the limitations of constitutional identity. On the principle of proportionality Craig and De Burca comments that “The proportionality test entails examining whether the rule is ‘suitable’ or ‘appropriate’ in achieving its aim”(42) They continue and observe that “The very essence of the subsidiarity and proportionality principles is that of restraint as regards the need for regulation and restraint in both the form and the content of regulation”.(43) The purpose of the principle of proportionality is that the EU does no more than is necessary in order to achieve its policy objectives. Sauter writes that the principle of proportionality serves to balance not just the competencies and interests of the EU and its Member States but also individual rights and public policy.(44) In regards to the relation between proportionality and the rule of law the principle of proportionality can be viewed as a limiting factor placed upon the EU legislatures competency to legislative in areas of constitutional importance. As I will outline below, the interaction between the rule of law and the principal proportionality typically concerns the implementation of measures indented to address breaches of the rule of law or strengthen the concept procedurally. In determining what is proportional a consideration of necessity is required. When discussing the rule of law discerning the necessity of remedial actions requires some deliberation as the procedural nature of breaches of the rule of law result in a complicated and technical legal landscape for the EU legislature to navigate across in order to arrive at their intended destination. Sauter observes that the current orthodoxy of the Court appears to favor the test for necessity as formulated in in de Peijper where the Court held that a provision will be considered unnecessarily restrictive unless it can be established that any alternative rule or practice would be beyond the competencies of what can be expected of an administration. (45)(46) Thus, proportionality is not simply a weighing up on interests but also a question of how best these interests can be facilitated in a very practical sense.

Concerning the application of proportionality within the context of EU intuitional actions a relevant authority in this regard is Gauweiler and Others where the Court confirmed that the principle of proportionality when applied to institutional acts requires that the act in question does not go beyond what is necessary to achieving its aims.(47) Per Poland v Parliament and Council ”necessity” within the context of acts of the EU institutions is to be understood as meaning that where multiple alternatives are available the least onerous must be adopted.(48) In selecting the necessary measure to be adopted the Court has historically bestowed a wide degree of discretion upon EU institutions as can be observed in the prior mentioned case of Gauweiler and Others and reaffirmed in C-626/18 Poland v Parliament and Council (49) This discretion does not simply extend to the adoption of the measure in question but also to assessments made by the institution as to the relation of said measure to the policy objective in question. In determining whether or not a measure is necessary such an assessment is not simply a question of which approach is objectively the least onerous but also an assessment of the contested act within the context of the overall policy direction it is aiming to address.(50)

We can observe how necessity interacts with the rule of law by analyzing the Court’s approach in C-157/21 Poland v Parliament and Council. Here, discretion is constructed in relation the competencies provided for under Article 4 TEU. The Court echoes the observations noted in the prior section covering national identity and states that the rule of law can be defined on both a national and supranational level however the objective of what the rule of law achieves is a universal obligation that extends even to areas of exclusive competency.(51) This brings the rule of law as a component of national identity under Article 4 TEU into the orbit of institutional discretion within the context of proportionality. In addressing the proportionality argument submitted in C-157/21, the Court relies upon the provisions of Article 5(3) of the contested regulation which provided that the assessment of proportionality is to be construed based upon the “actual or potential impact” of rule of law breaches on the potential for the sound financial management of Union funds.(52)

The Court’s judgment in C-157/21 allows us to understanding how the EU legislature must approach legislating on constitutional principles such as the rule of law and further outlines the limitations placed upon the legislative. The proportionality argument submitted by Poland concerned the alleged failure of the EU legislature to clearly establish a link between the necessity for the contested regulation, namely Article 2, 3 and Article 5(3) of said regulation, and the policy objective of protecting the sound financial management of the Union budget.(53) In response, the Court confirmed the discretion enjoyed by the EU legislature in this area of EU law extends to not only to political, economic and societal considerations as to the legislation itself but also to broader findings of basic facts.(54) This appears to be more or less a reaffirmation of the Court’s earlier position on the issue of discretion in areas concerning fundamental rights and membership obligations. However, the reference to findings of ”basic fact” based upon objective findings does indeed confer a significantly broader understanding of discretion than previously suggested in prior case law.(55)

What can be observed from the above case law is that in addressing the rule of law crisis both legal and political considerations are required. This naturally reflects the complexity of the rule of law as a concept in that it exists in both the legal and political dimensions and as such it would be difficult to legislate on the issue of the rule of law without a certain portion of this process existing in a political realm. While the Court has demonstrated that discretion is wide the Court requiring that in the exercise of this discretion some level of objectivity is required on the part of the EU legislature should offer some solace for those concerned with the possibility for the potential for the rule of law to be viewed as being only vertically applicable. It is clear that the rule of law extends throughout the EU institutions in a horizontal manner. Another interesting observation is the Court’s approach when applying proportionality in the context of fundamental values. Sauter observes that the correct test appears to be necessity rather than the less strict approach to be found under consistency.(56) This appears to certainly be the appropriate approach when discussing the rule of law and a clear example of the constitutional limitations placed upon the EU constitutional identity.

D. Conclusion

Through using the generally referenced principles of certainty, proportionality, national identify and competency as a framework to guide an analysis of the case law resulting from the rule of law crisis the intention was to present an observable process of constitutional integration. Through the rule of law, we can observe the bringing together the various tapestries of constitutionalism present on a national level. On a supranational level this process of congruency is presenting itself as a constitutional integrationist force. It is difficult to speculate on the what the likely outcome of this phenomenon will be but it will certainly have wider ramifications on the political and legal discussions surrounding EU constitutionalism.

2. Constitutional integration

In this next section I will outline the phenomenon of constitutional integration in so far as my own preliminary thoughts on the topic. When considering constitutional integration there are a number of key areas that require attention which mostly center on the issue of democratic qualification and Luhmann’s application of systems theory to law. In EU law the concept of constitutionalism touches upon both state and post-state forms of constitutionalism. This in turn raises a number of additional areas for future research however for as of the time of writing this essay this section represents my basic thoughts on the topic. This section will be structures as follows; firstly, a consideration on the direction of the influencing force behind the integration of constitutionalism as illustrated through the prior case law analysis. Secondly, an outline of my thesis on constitutional integration. The last two sections will address both democratic qualifications, of which there is significant overlap with the direction of constitutional integration, and future areas of research which are required to not only test this view on the rule of law crisis but also to inform the contributions this view could offer to the solving of the rule of law crisis.

A. The direction of constitutional integration: a bottom-up approach

Article 2 TEU represents the core essence of the EU identity, or at the very least it is the closest to an EU identity under the EU’s current constitutional framework. Article 4(2) TEU represents the other half of the constitutional systems by providing for the autonomous concept of national identity in EU law.(57) When we analyze the rule of law crisis through the lenses of certainty, national identity, competency and proportionality we can observe the gradual process of integration of the rule of law on a constitutional level in both national and supernational dimensions resulting in the placing of the rule of law as a foundational concept of the EU identity. The rule of law crisis has also inadvertently resulted in the rule of law becoming a nexus for the integration of national constitutional identities on a supranational level. Constitutional integration concerns the phenomenon of constitutionality influencing one another in a congruent manner. I am not suggesting the entirety of a constitution is integrating but rather specific components, or part systems of constitutional structures rather a generalized process.(58)

When we speak of EU constitutionalism, we are not simply referring to the jurisprudence of the Court or the Treaties but we must also account for the individual and unique national constitutionalism that also contribute to the formation of this supranational constitutionalism. As a preliminary point the variation of constitutionalism to which I am referring to in an EU context is not a big “C” constitution but rather a corpus of constitutional values. A constitution should not be understood as a single document but rather as a category of fundamental values, however abstract, that provide for the base procedural foundation for the state, or in the case of the EU – the supranational entity. The EU is organized around an organizational base that is provided for by way of the Treaties and other foundational documents. For this simple reason alone, the EU would in my mind already have a constitution, just not a Constitution Treaty, or however one would refer to such a document. The big “C” debate is rather settled and the death of the Constitutional Treaty is well documented.(59) I am also skeptical that formalizing or codifying a constitution is necessary at all as exemplified by the United Kingdom which has managed to sustain a long democratic tradition based upon the rule of law despite lacking a formal constitution. This feat has been largely enabled through the safeguarding of the rule of law through the jurisdiction of the Court as the sort of guardians of British democracy.(60) Perhaps a similar role of the judiciary should be adopted in the EU.

The rule of law crisis is centered on the divergence between constitutional understandings of the rule of law as a normative concept. The measured response of the Court has been to emphasis the value of the rule of law while clarifying its procedural dimensions. By clarifying the value of the rule of law the Court asserts the importance of the rule of law to democratic identity supported through the linking of this interrelation to EU membership. On the procedural side, the Court has repeatedly outlined that certain key features are required to be observable in any legal system that professes to observe the rule of law. Through the procedural emphasis of the Court’s position amidst the rule of law crisis we can witness the influence of constitutionalism on a national and supranational level and it is precisely this interaction to which integration is enacted. The integration of constitutional identity as a result of the rule of law crisis is largely procedurally led.

The direction of this influence is important to note. It is not top-down so to speak but rather bottom-up. It is not the EU that is influencing the constitutional identities of the Member States but rather the Member States dictating the EU supranational constitutional identity. In the German Constitutional Court’s judgment in Lisbon the German Court raised stated that if there were to be a federalization of the EU constitutional identity this would amount to a change of the German national identity.(61) While a legitimate concern regarding the variety of federal integration this is not the form of integration to which I speak. EU constitutional identity perhaps should be viewed as a part system of national constitutionalism. While the EU constitutional identity is an autonomous concept its emergence and direction are largely informed through the congruency of national constitutionalism. In terms of the bottom-up dynamic to which I speak this is observable if we view not only the Court’s position on the deduction of the value of the rule of law but also if we view commentary on the construction of the Lisbon Treaty.

The value placed upon the rule of law by the Court is clearly derived from the communality and shared commonality of certain democratic tendencies inherent to the Member States.(62) This is not to be confused with the universality of the procedural definition for the rule of law but rather it is a simple explanation for the motivation of the Court to attribute value to the rule of law. It is clear that the rule of law is synonymous with a society based upon justice thus the Court is simply giving formal expression on a supranational level to the value that the rule of law inherently possesses on a national level. However, the bulk of the work remains firmly affixed within the procedural dimensions as is clearly observable through my case law analysis on the areas of certainty, national identity, competency and proportionality.

The procedure led approach of the Court should be interpreted as a concession as to the universality of the value of the rule of law. Martijn Hesselink comments that the ECJ and the broader EU constitutional framework has been ambivalent as to the universality of the fundamental values and contends that there is no justification to claim that these values can be viewed as being universal.(63) This could perhaps be interpreted as evidencing a lack of universality and pan-European consensus on the meaning of the rule of law but central to Hesselink’s critique is the long-standing debate between” common values” and ”foundational values”. It is clear that from the perspective of the Court there is no hierarchy of norms, and thus it is preferable that overtly technical readings of the Treaties should now be avoided. It is clear that this debate is now settled and the Court has spoken – the values expressed under Article 2 TEU are equal in value.(64)

Throughout my analysis of the rule of law crisis it is clear that the Court has demonstrated a tendency to prefer a procedural based approach to the integration of constitutional norms. This is evidenced through the Court’s consistent reliance upon ancillary Treaty provisions and secondary legislation as the basis for their position rather than strictly relying on the rule of law as a fundamental value under Article 2 TEU directly.(65) In contrast the Court has also demonstrated a willingness to asset the value of the rule of law. This evidences through the relation between the rule of law and competency by stating that the procedural expression of the rule of law on a national level remains a competency of the Member State however the normative force of the rule of law is of universal value. At the center of Hesselink’s critique is the EU should not see to act as an ethical community but as a legal order which is sufficiently just and further the EU should seek to avoid pursing integration through objective interpretation of values.(66) To an extent I agree and I would offer that the current position of the Court in response to the rule of law crisis is an assertion of this statement. We are viewing the unfolding of a procedurally led approach to integration which seeks to reaffirm the basic democratic core of the EU as a union of just states.

The longevity of the current incremental approach of the Court is questionable and it is simply a matter of time before another set of proceedings are presented to the Court that concern a breach of the rule of law outside of the areas of judicial independence and sound financial management. If we are to view the rule of law checklist provided under Article 2 of Regulation (EU, Euratom) 2020/2092 as a potential template for what a definitive procedural definition for the rule of law could be it wouldn’t be too difficult to imagine issues emerging in the area of democratic and pluralistic rule making, or the issue of supremacy as recently was the case in the Polish case of K 3/21.(67) This is not a new observation and the collective differences in expression of how the rule of law has been defined across the multitude of European legal traditions is a well-documented phenomenon in European legal scholarship.(68)

B. A systemic view on the phenomenon of constitutional integration

Uniformity, compliance, mutual recognition, sincere cooperation. These terms form a large bulk of the broader terminology that has come to form the backbone of how we discuss topics of EU law. While the EU has presented an unprecedented opportunity to witness how economies, services and legal systems interact with one another and to see how this interaction is reflected in EU law. The rule of law crisis should not be viewed any differently – it is an opportunity to observe another kind of interaction. On a surface level, through the rule of law crisis we are witnessing how the concepts of sovereignty and national identity react when challenged by supranational influences. But we can certainly go deeper than that. I wish to propose that the process of constitutional integration is driven by a deeper process of interaction that is the result of the incremental increase in EU law complexity and administrative interactions. As a disclaimer this section is not to be understood as a final or conclusive position on the rule of law crisis as a phenomenon but it is an introduction to a topic I wish to expand further upon at a later stage.

The concept of an exclusive or isolated national society is largely a feat of political myth. The societal system has developed into a global societal system which lacks political unity. This places law in a precarious position as the ability of the EU legislature to legislate on issue that are systemic in nature is largely hindered due to the lack of political unity. This is certainly not a revelation and such an issue has been noted in literature since the post-World War 2 era. Luhmann comments on this very topic and concludes that systemic issue on a global scale is beyond the scope of legal redress.(69) I am not entirely sure if I agree with this conclusion but this is a point I will return to at a later stage. My purpose at this juncture is to outline both the supranational and systemic elements of the rule of law crisis and to set the scene so to speak.

When viewing EU constitutionalism, we should consider this concept not as a wholly autonomous concept in of its own right but as a duality of both national constitutional expression and as an example of post national constitutionalism. National systems are brought into contact with one another through the EU and specific instances of deviancy are remedied through the uniform application of EU law by way of the jurisdiction of the Court. A constitution is a selection of fundamental values and procedures.(70) A constitutional identity thus excludes some patterns of behaviors while permitting other forms in a very fundamental dimension. The operation of the societal system would not be possible without the existence of the constitution thus law possess a distinctive social function by limiting and permitting certain examples of behavior within the context of the territory to which it is said to apply. This functional view of law is largely inspired by HLA Hart (71) and Niklas Luhmann respectively. (72) As a societal system transitions from national to global so to must constitutionalism match this increase in complexity and thus law must become increasingly abstract.(73)

Constitutional integration should be viewed as an expression of the European Project reaching a heightened level of complexity. In terms of systems theory this can be interpreted as largely being the result of three processes; the need for increased variety in decision making and policy, the need for the removal of inefficient policy and the need for a mechanism through which efficient policy can be retained. In terms of the development of EU law we can trace this process through historical analysis and the gradual progression towards the European Union as an entity and the adoption of the Lisbon Treaty. This process is to be reflected in law as follows; the fragmentation of legal areas into part systems which leads to increased complexity, the creation of binding decisions in these part systems and lastly the incremental abstraction of the part system as a phenomenon.(74) Translating this statement into constitutionalism is a straightforward task; the increased complexity created through the creation of the EU identity as an autonomous concept in EU law, and the affirmation of the EU legal order resulted in the fragmentation of areas of law.(75) As a largely economic entity, this is a simply observation and evidenced through the technical nature of directives and regulations in relation to specific areas of economic activity which has largely obscured the purpose of the EU as a project. (76)

Part systems are function specific; the rule of law is a component of constitutionalism as a component of both national constitutionalism as a part system and EU constitutionalism as a part system.(77) When we view the rule of law, we should be viewing the systemic nature of the rule of law crisis as an example of an area of increased constitutional complexity which is presentative of constitutionalism as a part system of national societal systems. As is the case in the societal system, deviancy arises in the part system.(78) The rule of law crisis could be interpreted as an example of such a phenomenon – the deviancy of understandings of the rule of law as a normative concept has become the nexus for the interaction of both national and EU constitutional structures. A crucial component to this view is Luhmann’s understanding of the complexity-possibility relation which Luhmann formulates as follows; systems increase in complexity as they develop and this increase in complexity results in a surplus of possibilities which present stability concerns for the system. In response to this issue law is the stabilizing mechanism that both facilitates increasing complexity but limits the possibilities thereby generated by complexity.(79)

A key concept in Luhmann’s sociological theory of law is the influencing of national part systems giving rise to a universal intersubjectivity in terms of structural principles and rules. (80) The conclusion of this phenomenon is the resulting uniformity required for all future developments of the part system.(81) The rule of law crisis could be interpreted as representing this phenomenon. As the rule of law as a normative concept reaches a level of complexity where congruent consensus, or part consensus, is achieved as to the structural features of what the rule of law is, this means further development must be achieved uniformly. If one Member State is to observe the rule of law, or further observe a particular definition of the rule of law mandated on a supranational level, then any Member State where this development is not observed will result in crisis. The end result of this crisis will be the uniform development of the rule of law as a intersubjective, supranational constitutional concept and as a national constitutional concept. Luhmann laments that this process is not frictionless and notes that while this form of development is required for deeper complexity, it nonetheless requires a” weakening” of the system in order to facilitate further integration.

At this juncture Luhman concedes the limitations of law and muses the possibility of achieving societal evolution through alternative vectors for change. It is here that I disagree. Luhmann arrives at this conclusion on the basis that law in a global context does not offer any salient features required of a true “international system”.(82) Luhmann suggests that the reasons for this are largely political. Luhmann’s conclusion isn’t too dissimilar from Hart’s views on international law. Hart viewed international law as a voluntary system of rules rather than a legal system.(83) This largely in part due to Hart’s temporally correct view that there was, at the time Hart wrote The Concept of Law, no such example of an international legal system that possessed Hart’s requisite secondary rules.(84)

It is clear that the world both Luhmann and Hart lived in is not the reality we exist in today. The EU has a binding legal system by way of EU law and a compulsory Court with a binding jurisdiction. In addition, the EU also possess a legislature which is capable of meeting Hart’s secondary rules. Through the Court there is a theoretical potential created and I see no reason why the views of Hart of Luhmann regarding international, or global law, should be considered orthodox. There is certainty the potential for a legal solution to increased complexity of constitutionalism as a part system. The precise shape and form of this solution is to be seen. However, if we are to speculate as to how a solution will be achieved it is clear there are a number of salient issues that require further consideration such as democratic qualification and a number of procedural deficiencies as already noted in European legal scholarship.(85)

In terms of constructing a legal response to the rule of law I would urge that the process of constitutional integration directs the approach to be adopted. Addressing the rule of law crisis should entail careful consideration on the issue of democratic qualification. Hart was cognizant of this issue and commented on the potential for the mechanism of legal validity to become decoupled from the legitimacy resulting in a system of rules, not a system under the rule of law.(86) As I will outline below, I am of the view that Article 2 TEU is democratically qualified to an extent. The most important feature of this suggestion is that the procedural expression of the rule of law is to be left to the jurisdiction of the Court as the guardian of the rule of law. This in turn would require a detailed reevaluation of the procedural difficulties faced by the Court currently. This is a topic I wish to expand upon in the future.

C. Legitimacy concerns and democratic qualification

From prior case law analysis of the rule of law crisis it is clear that there is indeed a process of congruency which could be referred to as constitutional integration unfolding through the affirmation of the rule of law in terms of its value on both a national and apparently supranational level. This process raises concerns as to the democratic legitimacy of not simply strengthening the value of the rule of law on a supranational level but of all of the fundamental values found under Article 2 TEU. In outlining the legitimacy of supranational constitutionalism, it would be difficult to explicitly find a democratic qualification for this process. However, this does not mean that the process is democratically void. There are a number of salient meta democratic qualifications present. These meta qualifications are largely predicated on the understanding that EU constitutionalism represents a democracy for democracy. A system created by, and entirely devoted to, the fostering of democratic ideals and cooperation.(87)

Just as the rule of law as a concept exists in an almost superposition amidst the legal and political spheres so too does the conversations revolving around the concept dance from political philosophy into jurisprudence and back again. This is a disorientating pattern of approach and the speculation surrounding the “fix” is equally as uncertain as the rule of law is itself. What does Article 2 TEU represent? This should be the natural starting place. This is a question of simple value ascription; as the Court has indicated on countless occasions the rule of law is a fundamental value, derived through the shared understandings of democratic societies. The value placed upon the rule of law under Article 2 TEU is derived from the Member States political and constitutional traditions as endorsed by their simple existence as democracies.

The rule of law under Article 2 TEU presents an expression of a variant of constitutionalism that, despite the rule of law crisis existing as a phenomenon in certain Member States, is by and large the constitutional orthodoxy of all Member States.(88) Further, Article 2 TEU when viewed in tandem with Article 4 TEU confers the rule of law with additional value as a key component in the concept of EU membership. So long as the constitutional identity of a state continues to be that of a liberal connotational democracy, and so long as this is the majority position of EU Member States then I see no democratic issue in emboldening Article 2 TEU further as a vehicle for the further constitutional integration of national identities. Naturally, if a polity decide that the rule of law is not a constitutional identity they wish to endorse then they are free to vote to leave.

D. Final thoughts and areas of future research

My understanding of the rule of law crisis as an example of constitutional complexity does require further exploration. Conceptually the relevancy of integration as a driving concept within not only constitutionalism but within other areas of EU law is required. This would entail a deeper analysis of the current constitutional framework and a further exploration of the reason d’etare of the EU itself. Further, establishing constitutional integration as an expression of the natural development of both national and supernational constitutionalism also warrants an exploration of both the democratic and meta democratic dimensions of constitutionalism and their dual relationship with democratic theory on both a state level and post-state level.(89) All of these topics of consideration would also require an in-depth analysis of not just the case law emerging from the rule of law crisis but on constitutional issues in order to support any findings.

Case law analysis is an essential step in this undertaking. I am not simply speculating on the theoretical merits of constitutionalism but rather I am enunciated what is unfolding before us through the jurisdiction of the ECJ. The concept of the judiciary as the driving force behind EU constitutionalism is not a new phenomenon. However, as demonstrated through the rule of law crisis the work of the ECJ in this regard is far from finished. Perhaps by adopting a view on the rule of law crisis not as the result of failure but as a natural progression we can develop a deeper understanding of the incomplete nature of democracy, constitutionalism and even the concept of the European Project itself. This area of research does lend itself to intense speculation and I often find in current literature a tendency for works to drift from the legal into political philosophy. This is a natural occurrence and anyone writing on the topic of constitutionalism is all too aware of the inherent legal-political territory that comes with it. The topic does not exist in a vacuum but lawyers and jurists should be hesitant to cross such boundaries and when they are forced to do so they should do so carefully.

Lastly, the final outcome of this project should be to predict, or at least attempt to predict, the shape and form both national and supranational theories of constitutionalism may come to adopt in the future and how this relates to the systemic nature of the rule of law crisis. Undoubtedly the ramifications of the process of constitutional integration will have a wider impact upon both a national level and the EU itself. The purpose of this project should be to inform the concept of post-state constitutionalism as a force within the study of constitutionalism. At the center of this discussion is rule of law and its relation to democracy. Hart, Waluchow and Neil Walker eachcomment on the deficiencies of legal systems in varying degrees of abstraction.(90) Hart speaks to the pathology of a legal system, Waluchow remarks on the coupling of democratic qualifications to processes of legal validity and Walker presents an account of democratic incompleteness and its relation to constitutionalism. Each of these concepts must be considered in the broader discussion on constitutional integration. To contemplate on the development of constitutionalism would require an understanding of each of these three deficiencies.

Perhaps by adopting the methodology developed in sociolegal scholarship could assist in developing our understanding of constitutionalism within the context of the EU and further, may even assist in bringing together diverse national legal traditions and scholarships.(91) The value of the rule of law, and how this value is to be expressed in the future of constitutionalism will play a prominent role in the development of not only the EU but in the democratic tradition of its Member States.

3. Conclusion

Michal Ovádek suggests that the motivation to adopt measures relating to the rule of law reflects a fundamental shift in the EU’s political landscape.(92) The rule of law is a complex concept and as such it is difficult to discuss the rule of law crisis in a purely legal vacuum – the discussion will inadvertently drift into the political at some stage. This duality also poses a significant hurdle to be overcome in addressing the rule of law crisis from the point of view of the judiciary. Courts in general are ill suited to dealing with democratic crisis as the essence of the rule of law is stability yet more often than not democratic crises emerge amidst institutional deficiencies and democratic decay.(93) This is apparent through the winding approaches adopted by the Court in the above case law concerning the various considerations on the rule of law within the context of certainty, national identity, competency and proportionality.

The purpose of this essay was to view the rule of law crisis through the lenses of the general administrative principles of certainty, national identity, competency and proportionality. The purpose of this exercise was to identify the phenomenon of constitutional integration. As the rule of law crisis continues it is important that the EU’s focus shifts from attempting to discern the rule of law through specific instances of breaches but instead moves to consider the rule of law as a systemic issue resulting from the natural development of both national and supernational constitutionalism. Van der Leyen has commented that the rule of law is the foundation of the EU and that ”we will never tire of defending it”.(94) I hope this enthusiasm is sustained and that the EU institutions are prepared to weather out what will certainly be a long epoch in the history of the European Project. Through the rule of law crisis we are witnessing the integration of constitutional identities and the solidification of the rule of law as a concept with universal application and meaning but we are also beginning to see the theoretical limits of the current EU constitutional framework.

Footnotes:

1. Kim Scheppele, Dimitry Kochenov and Barbara Grabowska-Moroz, EU Values Are Law, After All: Enforcing EU Values Through Systemic Infringement Actions By The European Commission And The Member States Of The European Union (Yearbook of European Law, Volume 29 2020)

2. ibid

3. Stephan Schill and Christoph Krenn, ‘Art 4 EUV’ in Eberhard Grabitz, Meinhard Hilf and Martin Nettesheim (eds), Das Recht der Europäische Union, Kommentar, Vol II (Beck 2018)

4. Marcus Klamert and Dimitry Kochenov, 'Treaty On European Union - Article 2', Commentary on the EU Treaties and the Charter of Fundamental Rights (1st edn, Oxford University Press 2019), pg 24

5. C-156/21 Hungary v Parliament and Council at ara 127

6. Marcus Klamert and Dimitry Kochenov, 'Treaty On European Union - Article 4', Commentary on the EU Treaties and the Charter of Fundamental Rights (1st edn, Oxford University Press 2019pg 40 - 43

7. ibid

8. C-182/15 Petruhhin at para 26 - 27

9. C-247/17 Raugevicius at para 45

10. C-490/20 V.M.A v Stolichnaobshtina, rayon ‘Pancharevo’

11. ibid para 10 - 12

12. ibid para 26

13. ibid para 70 - 72

14. ibid para 73

15. C-619/18Commission v Poland

16. ibid para 34

17. ibid para 47 - 52

18. C-791/21 Commission v Poland, at para 56

19. ibid para 51

20. C-156/21 Hungary v Parliament and Council ibid para 232

21. ibid at para 232 - 234

22. Paul Craig and Grainne de Burca, EU Law: Texts, Cases And Materials (5th edn, Oxford University Press 2011) at pg 525

23. Niklas Luhmann, A Sociological Theory Of Law (2nd edn, Routledge 2014), translation by Elizabeth Kind-Utz and Martin Albrow, see Chapter 2

24. Tom Bingham, The Rule Of Law (2nd edn, Penguin 2011) at pg 23 - 24

25. C–453/00 Kühne & Heitz NV v Produktschapvoor Pluimveeen Eieren [2004] ECR I–837

26. Concerning the term “EU constitution” see Martijn W. Hesselink, Private Law and the European Constitutionalisation of Values (Amsterdam Law School Research Paper No 2016

26), pg 7 - 9

27. Nicolaos Lavranos, ‘Revisiting Article 307 EC: The Untouchable Core of Fundamental European Constitutional Law Values and Principles’ in Filippo Fontanelli, Giuseppe Martinico, and Paolo Carrozza (eds), Shaping Rule of Law through Dialogue: International and Supranational Experiences (Europa Law Publishing 2009)

28. C-441/17 R, Commission v Poland, para 102.

29. ibid para 42 – 43

30. C-157/21 Poland v Parliament and Council para 319 - 320

31. ibid at para 311

32. ibid para 313 – 314

33. ibid at para 312

34. ibid at para 319 – 323. See also C-156/21 Hungary v Parliament and Council, para 229 - 230

35. C-156/21 Hungary v Parliament and Council, para 222. See also C-206/16 Marco Tronchetti Provera and Others at para 39 – 40

36. ibid para 224

37. C-791/19 Commission v Poland para 50 – 51

38. Kim Scheppele, Dimitry Kochenov and Barbara Grabowska-Moroz, EU Values Are Law, After All: Enforcing EU Values Through Systemic Infringement Actions ByThe European Commission AndThe Member States OfThe European Union (Yearbook of European Law, Volume 29 2020). Pg 3 – 121

39. See Klamert and Schima, 'Treaty On European Union - Article 19', Commentary on the EU Treaties and the Charter of Fundamental Rights (1st edn, Oxford University Press 2019) pg 178

40. C-791/19 Commission v Poland para 112

41. Venice Commission, Report on the Rule of Law, Study No. 512/2009 (2011) pg 9

42. Paul Craig and Grainne de Burca, EU Law: Texts, Cases And Materials (5th edn, Oxford University Press 2011)pg 801

43. ibid pg 169

44. Sauter, Wolf and Sauter, Wolf, Proportionality in EU Law: A Balancing Act? (2013). TILEC Discussion Paper No. 2013-003, pg 440

45. C 104/75 Adriaan de Peijper, Managing Director of Centrafarm BV [1976] ECR 613.

46. Sauter, Wolf and Sauter, Wolf, Proportionality in EU Law: A Balancing Act? (2013). TILEC Discussion Paper No. 2013-003pg 456 - 460

47. C-62/14Gauweiler and Others, at para 67

48. Case C-358/14 Republic of Poland v European Parliament and Council of the European Union, para 78. See also recent decision in C-157/21 Poland v Parliament and Council, para 353

49. C-62/14 Gauweiler and Others, para 69 and C-626/18 Poland v Parliament and Council at para 95 – 97

50. C‑626/18Poland v Parliament and Council, para 95 - 97

51. C-157/21 Poland v Parliament and Council at para 358

52. ibid para 360

53. ibid para 346 - 349

54. ibid para 354

55. ibid para 356

56. Sauter, Wolf and Sauter, Wolf, Proportionality in EU Law: A Balancing Act? (2013). TILEC Discussion Paper No. 2013-003pg 456

57. See generally comments of Klamet in regards to the integrationist forces of solidarity and loyalty of Article 4 TEU - Marcus Klamert 'Treaty On European Union - Article 4', Commentary on the EU Treaties and the Charter of Fundamental Rights (1st edn, Oxford University Press 2019).pg 42

58. Term” part system” borrowed from Niklas Luhmann. See Niklas Luhmann, A Sociological Theory Of Law (2nd edn, Routledge 2014).

59. Paul Craig and Grainne de Burca, EU Law: Texts, Cases And Materials (5th edn, Oxford University Press 2011) pg 21 –28, Grainne de Burca, ‘The European Constitution Project aft er the Referenda’ (2006) 13 Constellations 205; A Moravcsik, ‘Europe without Illusions: A Category Error’ (2005) 112 Prospect, available at www.prospectmagazine.co.uk/landing_page.ph , Paul Craig, Constitutional Process and Reform in the EU: Nice, Laeken, the Convention and the IGC (2004)

60. See David Dyzenhaus, 'Form And Substance In The Rule Of Law: A Democratic Justification For Judicial Review', Judicial Review and the Constitution (Hart Publishing 2000). David Dyzenhaus, 'The Very Idea Of A Judge' [2010] University of Toronto Law Journal

For an excellent example of this process of judicial guardianship in action see R (Miller) v The Prime Minister (2019) UKSC 41

61. BVerfG, Judgment of the Second Senate of 30 June 2009 - 2 BvE 2/08

62. 62 See, C791/19 at para 50, C-156/21 at para 123 - 124, para 229, C-157/21 at para 16.

In Asociaţia 'Forumul Judecătorilor din România' and Others v Inspecţia Judiciară and Others at para 160

63. Concerning the term “EU constitution” see Martijn W. Hesselink, Private Law and the European Constitutionalisation of Values (Amsterdam Law School Research Paper No 2016-26), pg 10 - 12

64. C-157/21 at para 157 – 158. For further reading see Niall Coghlan’s article “One fattened, six starved? The Article 2 TEU values after the rule of law conditionality judgments” published 15 March 20. 22 accessible at https://europeanlawblog.eu/2022/03/15/one-fattened-six-starved-the-article-2-teu-values-after-the-rule-of-law-conditionality-judgments/

65. See C-157/21 and C619/18

66. Martijn W. Hesselink, Private Law and the European Constitutionalisation of Values (Amsterdam Law School Research Paper No 2016-26)pg 22 - 23

67. K-3/21, October 7, 2021, accessible at https://trybunal.gov.pl/postepowanie-i-orzeczenia/wyroki/art/11662-ocena-zgodnosci-z-konstytucja-rp-wybranych-przepisow-traktatu-o-unii-europejskiej

68. See for reading generally Dimitry Kochenov, EU Enlargement And The Failure Of Conditionality: Pre-Accession Conditionality In The Fields Of Democracy And The Rule Of Law (1st edn, Kluwer Law International 2008), Jan Wouters, 'Revisiting Art. 2 TEU: A True Union Of Values?' (2020) 5 European Papers pg 255 - 277 and Martijn W. Hesselink, 'Private Law And The European Constitutionalisation Of Values' (2016) 2016 - 26 Amsterdam Law School Research Paper No. 2016-26 Centre for the Study of European Contract Law Working Paper Series.

69. Niklas Luhmann, A Sociological Theory Of Law (2nd edn, Routledge 2014) pg 256

70. Ingrid van Biezen, 'Constitutionalizing Party Democracy: The Constitutive Codification Of Political Parties In Post-War Europe' (2012) 42 British Journal of Political Science pg 187 - 212

71. HLA Hart, The Concept Of Law (3rd edn, Oxford University Press 2012).

72. Niklas Luhmann, A Sociological Theory Of Law (2nd edn, Routledge 2014), pg 6 – 7

73. ibid pg 7

74. ibid pg 109 - 110

75. See generally Paul Craig and Grainne de Burca, EU Law: Texts, Cases And Materials (5th edn, Oxford University Press 2011). See C-26/62 Van Gend en Loos, C-6-64 Costa v ENEL, C-106/77 Simmenthal, C-213/89 Factortame Ltd (II), C-41/74 Van Duyn, Joined C-6/90 & C-9/90 Francovich

76. Grainne de Burca, Europe’s Raison D’Etere, (2013) New York University School of Law, Public Law & Legal Theory Research Paper Series, Working Paper No. 13-09

77. On functional nature of part systems see Niklas Luhmann, A Sociological Theory Of Law (2nd edn, Routledge 2014), pg 110

78. Niklas Luhmann, A Sociological Theory Of Law (2nd edn, Routledge 2014), pg 211 -213

79. ibid pg 6, 24 – 48, 103 –106

80. ibid pg 257

81. ibid pg 258

82. ibid pg 260 -261

83. HLA Hart, The Concept Of Law (3rd edn, Oxford University Press 2012) pg 220 – 224

84. ibid pg 230 – 236

85. Kim Lane Scheppele, Dimitry Vladimirovich Kochenov and Barbara Grabowska-Moroz, 'EU Values Are Law, After All: Enforcing EU Values Through Systemic Infringement Actions ByThe European Commission AndThe Member States OfThe European Union' (2020) 39 Yearbook of European Law.

86. HLA Hart, The Concept Of Law (3rd edn, Oxford University Press 2012) pg 118 – 120

WJ Waluchow, A Common Law Theory Of Judicial Review: The Living Tree (Cambridge University Press 2007) pg 190 - 193

87. See Neil Walker, Constitutionalism and the Incompleteness of Democracy: An Iterative Relationship (2010), Edinburgh School of Law Working Paper Series, pg 26 - 31

88. For further reading see data collected and presented in Ingrid van Biezen, 'Constitutionalizing Party Democracy: The Constitutive Codification Of Political Parties In Post-War Europe' (2012) 42 British Journal of Political Science.

89. Neil Walker, Constitutionalism and the Incompleteness of Democracy: An Iterative Relationship (2010), Edinburgh School of Law Working Paper Series

90. HLA Hart, The Concept Of Law (3rd edn, Oxford University Press 2012), WJ Waluchow, A Common Law Theory Of Judicial Review: The Living Tree (Cambridge University Press 2007) and Neil Walker, Constitutionalism and the Incompleteness of Democracy: An Iterative Relationship (2010), Edinburgh School of Law Working Paper Series

91. Niklas Luhmann, A Sociological Theory Of Law (2nd edn, Routledge 2014).

92. Michal Ovádek, The rule of law in the EU: many ways forward but only one way to stand still?, Journal of European Integration, (2018) 40:4 pg 500

93. Csongor Kuti, Post Communist Restitution and the Rule of Law (2009), Central European University Press, pg 4 – 9.

NB: While this book is largely focused on the technical aspects of the rule of law within the context of property restitution in post-soviet states, Kuti presents a remarkably constructive account of the rule of law and the difficulties presented by transitional justice and transitional dilemmas. He also presents a state-by-state case study of the various differences in transition which is relevant in understanding how the value attached to the rule of law is formed.

94. Van der Leyen, European Commission Press Release dated 2 March 2022, EU budget: Commission publishes guidance on the conditionality mechanism, accessible at https://ec.europa.eu/commission/presscorner/detail/en/IP_22_1468