The Rule of Law and the European Union

Abstract: This is a thesis in legal jurisprudence, as it revolves around the use of one concept : the rule of law. It has relevance also for EU law, as it deals with the EU’s application of this concept, and for onstitutional law, as it is a concept belonging to that discipline. The thesis analyses the EU’s application of the rule of law concept in different contexts, in order to discern consistencies and nconsistencies. On the basis of this analysis, models predicting the likely scope of the application in different contexts are presented. In the absence of any authoritative declaration of intent by the EU, as to what interpretation of the rule of law it wishes to apply and promote, the study outlines how the EU applies the concept in three different contexts : vis-à-vis the EU Member States and all subjects therein, towards countries seeking membership of the EU, and in relation to all third countries with which the EU has structured external relations. The model established to extract the components of the rule of law as the EU uses it internally, is transposed to the enlargement and external relations areas in order to ascertain if it is one concept used consistently in all situations or not. The internal EU conception of the rule of law is formulated mainly by the European Court of Justice through the development of its case law. The enlargement conception of the rule of law has been formulated mainly by the European Commission, with the agreement of the Council, through the assessment mechanism it constructed in the mid-1990s, and a decade’s practice in applying it. The external relations conception of the rule of law has been formulated by the Commission, as regards co-operation, aid and trade, and by the Council and its Secretariat as regards other foreign policy measures. A comparison of how the EU applies the concept in these three different situations demonstrates great variations that reveal lack of consistency more than any intentional proliferation of the concept. The reasons for this unintentional proliferation are rooted in the growth of supranational power in the Community sphere, countered by the continuing strong influence of Member States in other policy areas, resulting in different decision-making processes used in different policy areas that prevent a prevailing and singular approach to the application of the concept. As EU primary and secondary legislation attach consequences to the inconsistent application of the concept by subjects to EU legislation, the proliferation is a violation of the rule of law principle in itself.