The multilevel rule of law system of the European Union: Eked out, contested, still unassured

Abstract

This chapter analyses the establishment of a “multilevel rule of law system” that encompasses the supranational political system of the EU and several interdependent national levels of governance. We show how the principle of the rule of law in the EU has been set up by primary law and rulings of the European Court of Justice (ECJ) based on different traditions of the EU’s member states. We argue that the doctrines of primacy and direct applicability, both developed through ECJ case law, are a manifestation of the principle of legal certainty and focal to the multilevel character of the EU’s principle of the rule of law. We analyse two different kinds of resistance of the national level against the EU’s rule of law system: First, we look into the case law by higher national courts striving to protect “their” national, constitutional principles and, therefore, tending to accept the primacy of EU law only to a limited degree. Secondly, we analyse the current violations of the EU principle of the rule of law in Hungary and Poland. In the final chapter, we discuss the possibilities of the EU’s institutions to react, especially with regard to the Art. 7 TEU procedure, the EU’s “Justice Scoreboard” and the Commission’s new mechanism for prearranging Art 7 procedures.