Polexit? Hungarexit? Quo vadis EU? Reflexions on the latest solutions provided by EU constitutional law in the face of a persistent rule of law misery

Abstract

Based on a talk at the University of Graz in November 2021, this article treats the current state and some consequences of the ongoing dismantling of rule-of-law standards driven by legislative “reforms” in some EU Member States. It connects to the Conditionality Regulation and highlights the attempts of EU constitutional law to avoid what has been called “backsliding” of EU Member States or - with the term used by the European Court of Justice (ECJ) in Repubblika1 - “regression” in relation to rule of law standards. The ECJ operationalises art. 19 TEU as an objective right for protecting the judicial independence of Member States’ courts. As is submitted here, the principle of non-regression is a new meta-principle to put an end to Member States’ backsliding in their rule of law standards. It basically also applies to other fundamental values of the European Union. The new principle has to be seen to-gether with the so-called context method applied by the ECJ in proceedings for preliminary ruling.

Keywords

• rule of law
• conditionality regulation
• backsliding
• ultra-vires
• judicial independence
• ecj
• principle of non-regression
• meta-principle
• identity of the union
• eu fundamental values
• context method