Constitutional avoidance and values enforcement in the European Union: pattern or policy?

This chapter examines the phenomenon of ‘constitutional avoidance’ in the EU's response to rule of law backsliding among Member States. While democratic backsliding and constitutional erosion have emerged globally, the EU has faced its own challenges, particularly in addressing deliberate attacks on foundational principles like judicial independence and the separation of powers. Despite the constitutional status of EU values, such as the rule of law and democracy, EU institutions, especially the Council and the Commission, have avoided imposing binding sanctions, relying instead on dialogue and soft tools. The chapter critiques this approach, arguing that it constitutes a policy of constitutional avoidance, undermining the EU's capacity to enforce its values effectively. The chapter first explores how domestic governments orchestrate constitutional capture and then analyses the EU's hesitant responses. It identifies delays, overreliance on dialogue and the inflation of soft tools as key signs of this avoidance, including its reflection in the CJEU's case law on judicial independence.