Constitutional Populism versus EU Law: A Much More Complex Story than You Imagined

Anti-institutional actions resulting from the populist narrative in the EU Member States concentrated
on the independence of the judiciary, led – at the supranational level – to a reinvention of the EU rule
of law. From a system of ‘declaratory’ rule of law, where adherence by national authorities to this
principle is merely a presumption, the Union has emerged, thanks to the recent foundational case-law
of the Court of Justice, as a constitutional system where this presumption is being gradually replaced by
a requirement for full adherence as a matter of fact. However, framing EU rule of law as an unconditional
good focuses on the specific purpose of reinforcing EU law’s supremacy and allows the Court of Justice
to question the criticism of its vision of the law from any quarter: the instrumental side of the rule of
law reinforces EU law’s claim to supremacy pre-empting substantive disagreements about the law. The
strategy of deploying the rule of law in such a way has paid off: the Court is triumphant. However, two
aspects of this triumph are particularly troubling: first, the absolute lack of change on the ground in
Poland and Hungary in the name of which the Court claimed new sweeping powers; and second, the
emergence of dual standards of judicial independence demonstrated by the illegal removal of AG
Sharpston from office without any lawful reason and in the absence of judicial review. Neither the
supremacy of EU law nor its autonomy were able to protect the Court against the attack by the Member
States. The same supremacy of EU law was not able to stop the rule of law backsliding in Member States
resulting from the constitutional populism offered by their leaders and cheered on by large sections of
the general public. The rule of law is forgotten in both respects. A much more complex story of EU rule
of law emerges, than the one often told.