Beyond Legality- Before Democracy: Rule of Law Caveats in the EU Two Level Systems

Abstract

What are the grounds on which the EU should be entitled to dictate substantive RoL measures within a member country, that do not attach to the infringement of any other law of the EU itself?

The main, genuinely ‘European’, justification for such EU interference into a Member State domain should simply be in the relevance of the peoples and individuals directly to the Union as an autonomous supranational ‘unity’.

The quality of a distinctive EU RoL, as an ultimate safeguard and a template of reference should come to the forefront. But all in all, the main aspects of the RoL propounded in this realm, concisely amount to the idea of vertical legality (on a mainly market driven viability) and to some not fully defined RoL as a system-relative notion. Moreover, some relevant further aspects are in order: the chronic lack of legal (let alone political) accountability of EU itself, particularly in its substantive governance mode (especially in the well known infra-structure of agencies and comitology), decision making process’s relative independence of legal review, let alone the innovating practice stretching the limits of legally legitimate powers in the times of financial crisis. It is equally complex for the EU to propound a valued ideal phrasing it through requirements of thicker import than that which itself has practiced on a very thin interpretation. So, a vicious circle surfaces: the deep justification for a RoL oversight reinforcing by the EU can be traced back to the protection of persons as Europeans and is pointed upon the aspiration of the EU to be- and grow up as- an autonomous polity and an autonomous legal order. But the RoL records of such a supranational entity, made of peoples and individuals (not just by Member States), would hardly be seen as fully credible and reliable. For the EU can certainly be a RoL guardian over its Member States due, among the rest, to associative obligations already agreed upon by States: but to be such a guardian is much different from being itself the justification and the ultimate reference, the space of citizenship of its peoples and of each Europeans, independently of the authority of their national States. In this case, the European citizens should be met by EU exemplary RoL evidence and reputation: something that they would now barely recognise.