The Use, Misuse and Non-Use of the EU’s Rule of Law Toolbox

This paper first offers an overview of the development of the EU’s rule of law toolbox so as to show the extent to which this toolbox has been properly used, misused or not used ever since José Barroso, then President of the European Commission, identified a new type of “threats to the legal and democratic fabric in some of our European states” in 2012. Three existing, interconnected and transversal trends are drawn from this overview: (i) an EU infatuation with toolbox redesign so as to avoid using existing response tools; (ii) a tendency by the EU’s “enforcement duo” (the European Commission and the Council) to embrace narrow if not contra legem interpretations to delay action or prevent their forceful use; (iii) an increasing politicisation and disregard for the rule of law at EU level whenever politically or geopolitically deemed necessary, coupled with gaslighting to hide the increasing gap between the EU’s uncompromising rhetoric and the reality of the EU’s (in)action in the face of systemic threats to and/or violations of the rule of law both internally and externally. These existing, interconnected and transversal trends may be expected to exacerbate as they are being reinforced by two new trends: (iv) increasing reckless disregard for the rule of law in consolidated democracies and (v) increasing lawlessness on the international plane in a broader context of rising authoritarianism worldwide. The paper posits that the end result will be a new phase in the history of the rule of law in the EU where inconsequential reporting, undue politicisation and recurrent Panglossian assessments will become major features.