INTRODUCTION: The rule of law in the EU is in crisis. The independence of national judiciaries in Hungary and Poland is under attack by governments that call themselves ‘illiberal’ democracies. Not surprisingly, scholars pointing to the cracks in the EU architecture have offered some solutions to avoid its collapse. These solutions range from the Commission enforcing a rule of law framework by bringing systemic infringement actions based on democratic values enshrined in Article 2 of the Treaty on European Union (TEU) or by cutting EU cohesion funds to the autocrats. Both solutions seem to have been taken seriously in Luxembourg by the Court of Justice of the European Union (CJEU) and in Brussels by the Commission in shifting European funding from Central and Eastern to Southern Europe. Yet the EU seems to be drawing the wrong lesson from the rule of law crisis. After imposing new rule of law conditionalities and economic sanctions on autocrats, it is necessary to ask why judicial independence slid away so quickly in Poland and Hungary and why cohesion funds did not create a more egalitarian society in the EU.The rule of law crisis begs the following question: what has been the impact of the EU on the democratization in Central and Eastern European (CEE) countries transitioning from communist to liberal democracy regimes and transforming planned into market economies. The EU has prioritized judicial independence because national judiciaries hold a unique place in the model of European integration by tying together domestic and European regimes and ensuring their compatibility. In addition, the judiciary ensured the protection of property and human rights that was central to market liberalization, even though such reforms increased inequalities and allowed the creation of powerful oligarchies. The current crisis shows how, by over relying on the rule of law to consolidate the European integration project, the EU has failed in the creation of more democratic and egalitarian societies in its member states.
Another view of the Cathedral: What does the rule of law crisis tell us about democratizing the EU?,
Maastricht Journal of European and Comparative Law
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