The Last Soldier Standing? Courts vs. Politicians and the Rule of Law Crisis in the New Member States of the EU

Abstract

The rule of law backsliding in Hungary and Poland revealed the EU’s significant vulnerabilities in the face of the need to uphold the values that the whole system of EU integration presumes are in place. The lessons are revealing: respecting the acquis does not guarantee continuing adherence to Article 2 TEU values; economic success in the Union does not necessarily entrench democracy and the rule of law; the tools available to preserve the rule of law are largely inadequate, as they could go against the key assumptions of the internal market. Consequently, the lack of political will to deal with the values’ crisis is not at all irrational, which makes it even more worrisome. What stands out from the grim picture is the revolutionary case law of the Court of Justice on judicial independence and mutual trust, which bridges the available infringement procedures with the outstanding problems and offers horizontal and vertical empowerment to the EU’s decentralised judiciaries – now able to intervene – while also resolving the competences conundrum through a broad reading of the principle of judicial independence as a key element of the rule of law. However inspiring, recent case law developments are insufficient, we argue, to deal with the sociological legitimacy crisis in tackling illiberal democracies plaguing the EU: autocratic legalism cannot be fought with legalism alone. Designing a long-term systemic approach to a complex re-articulation of EU values is indispensable, as enforcement is not a panacea per se.

Keywords: EU law, rule of law, judicial independence, values enforcement, democracy, Poland, Hungary, judicial dialogue