The Operationalisation of the Rule of Law in the EU Legal Order: An Evolving Jurisprudence of the Court

Sammanfattning: The European project was founded on the advancement of liberal democracy where the rule of law and respect for human rights have a central place. In a period of ‘instability’ in the Union where organisational changes to national judiciaries have raised fears over rule of law backsliding among Member States threatening the functioning of the European Union’s legal order. It is necessary to facilitate a discussion around the rule of law and to examine the role of the rule of law in the European Union legal order. The main aim of this thesis is to explore the operationalisation or justiciability of the rule of law as a founding value of the European Union enshrined in Article 2 Treaty on European Union in the European Union legal order, and its connection to European integration. To demonstrate that there is a developing jurisprudence in the European Union legal order towards increased justiciability of the rule of law, where the rule of law is being used as a stick to enforce compliance with recalcitrant ‘illiberal’ Member States. A departure from the more traditional understanding that limits the justiciability of the rule of law to an open ended value facilitating legal interpretation rather than being actionable in itself. This thesis is divided into three main section. Section 2 examines the proposition that the operationalisation of the rule of law and European integration is linked to a substantive rights based conception of the rule of law as a basis for the jurisprudential shift. Section 3 looks at what the normative arguments are for protecting the rule of law in the European Union, or in other terms why it is necessary for increased justiciability of the rule of law in the European Union. Section 4 analyses the operationalisation of the rule of law in the jurisprudence of the Court of Justice of the European Union, in which it is argued there is three lines of argumentation for the operationalisation of the rule of law in the case law of the Court.