Democratic Backsliding and the Unravelling of the EU Legal Order

Abstract

The political world of the EU has often been accused of being a Potemkin village. It had a flag, a parliament and elections, but behind this façade the voters were not really engaged.1 This has fueled a tendency to easily perceive existential crises for the Union. With no real European demos, EU political institutions were seen as hollow and commentators found it easy to predict that they would be swept away when faced with a serious political problem. However, the Union’s legal situation was the opposite. Here a fairly modest institutional impression, namely a single international court sitting in Luxembourg, belied a deeply integrated, almost federal, legal order in which national courts across the Union applied EU law and rulings of the Court of Justice day in day out in the cases that came before them. Academics studying European integration noted the particular prominence of the role of law in the building of the EU, going so far as to describe the process as one of ‘integration through law’ in a seminal study from the late 1980s.2 And they had a point. Enforcement is usually the Achilles heel of international law. Often only states can make complaints of breaches of international obligations and adjudication of such complaints takes place in front of international tribunals whose rulings are difficult to enforce. But EU law was different. The European Court ruled in the 1960s that EU law could be invoked by individuals in front of their national courts and that national judges had a duty to give effect to EU in their rulings (this is known as ‘direct effect’) and to set aside any national law that clashed with EU law (this is known as primacy).3 National judges, for a number of reasons, went along with this and thereby transformed the nature of the European integration project.4 The acceptance of primacy and direct effect had a huge impact on the importance of EU law. Rather than being, as much international law is, a difficult to enforce declaration on paper, EU law was fully binding. This meant that the Union did not need to rely on the Commission to sue states