A. Beginnings

Much has been written about the association between contemporary quasi-authoritarian governments and legalism, noting the reliance of these regimes on law.Footnote ¹⁰ But legalism is by no means the sole prerogative of Europe’s semi-authoritarian regimes. That is apparent in the way the rise of authoritarianism in the Union has been framed. In September 2013, Commissioner Reding, in charge of Justice, Fundamental Rights and Citizenship, made the case that ‘in parallel to the economic and financial crisis which the European Union and its Member States have lived through since 2009, we also have been confronted on several occasions with a true “rule of law” crisis’.Footnote ¹¹ Her remarks made it clear that she considered the question less a political problem than one of ‘rule following’.Footnote ¹² She argued that:

She went on to cite the CJEU's 1986 case Les Verts, in which it had held that the Union’s precursor, the European Economic Community, was ‘a Community based on the rule of law’.Footnote ¹⁴ According to the Commissioner, national courts played a critical role in defending rights granted by Union law. In turn, that meant that ‘that the proper functioning of national court systems, the independence of national courts, their efficiency and quality, is essential for the proper functioning of the whole European Union – which is why all Member States need to be concerned if there are any deficiencies in the independence, efficiency or quality of the justice system in another Member State. In our Union, these rule of law matters are thus no longer a “domaine reserve” [sic] for each Member State, but are of common European interest’.Footnote ¹⁵

The Union’s own Treaties suggest a political sanction to conflicts with Member States over the Union’s foundational values. Article 7 TEU, sometimes described as the ‘nuclear option’,Footnote ¹⁶ allows the EU to suspend a Member State’s voting rights when it observes ‘a serious and persistent breach’ of the Union’s core values. Despite several attempts to put this provision in motion, no sanctions were ever adopted. The political will to do so is lacking, in part because one of the semi-authoritarian leaders – Viktor Orbán – was until recently a member of the Union’s biggest political party, which was unwilling to lose Hungarian voters in the confrontation that would ensue.Footnote ¹⁷ Another issue is deadlock in the European Council. Because the European Council must establish that such a ‘serious and persistent breach’ exists by unanimity vote (excluding the Member State concerned)Footnote ¹⁸ the existence of simultaneous breaches in multiple Member States is an obstacle. As Poland and Hungary are committed to protecting each other,Footnote ¹⁹ effective sanctions lie beyond reach.

B. The judiciary to the rescue

Commissioner Reding’s remarks were prescient. Both Hungary and Poland had enacted doubtful measures to ensure their highest courts were staffed with political allies. In response, the CJEU would condemn both Polish and Hungarian court packing programs as violations of the rule of law. In fact, the CJEU had already dealt with the Hungarian rule of law issue in November 2012, before Commissioner Reding’s intervention. After being solicited by the Commission, the court found that a Hungarian court measure lowering the retirement age of judges constituted a discrimination on the basis of age.Footnote ²⁰ For a brief moment, it appeared that there might not be an existential crisis for Union law after all, as the application of Union legislation would suffice to counter the authoritarian threat.

When it became clear this victory against Hungary failed to reverse Orbán’s court packing program,Footnote ²¹ the court adopted a bolder tone. The rule of law controversy gave rise to a constitutional transformation. In true Pescatorian tradition, the Court interpreted the Treaties an ‘an idea of order to which participating Member States are disposed to subordinate their national interests and their national hierarchy of values’.Footnote ²² The CJEU developed a novel interpretive theory in its Portuguese judges case and ruled that it had an extensive power to oversee national legislation organising the judiciary when it threatened the rule of law, a basic value of European integration.Footnote ²³ Using this constitutionalist vernacular, the Court was able to suspend the implementationFootnote ²⁴ and, later, deem incompatible with the rule of law Polish measures allowing the executive to extend the mandate of judges past their retirement age,Footnote ²⁵ lowering of the retirement age of the judges at the Supreme CourtFootnote ²⁶ and weaponising the disciplinary regime for judges.Footnote ²⁷ The court succeeded where the Union’s political branches had failed. Its decisions can be described as a ‘constitutional moment’ in which the Union takes position on the question ‘whether illiberal democracies become part of the European public order as laid out in Article 2 TEU, or are opposed by it’,Footnote ²⁸ and have been celebrated as ‘a veritable stepping stone towards a “Union of values”’, standing ‘on a par with the Court’s constitutionalising jurisprudence in van Gend en Loos and Costa/ENEL’. Footnote ²⁹

But in what sense is the CJEU’s series of consecutive cases on judicial independence a constitutional transformation? One might object that the court’s insistence on judicial independence is hardly novel, as it has been part and parcel of its case law for decades. Judicial independence is, first of all, a requirement for national courts in order to solicit a preliminary ruling. According to the Vaassen criteria, national courts must be independentFootnote ³⁰ and therefore ‘protected against external intervention or pressure liable to jeopardise the independent judgement of its members as regards proceedings before them …’Footnote ³¹ The CJEU found, for instance, that Austrian appeals chambers of regional finance authorities could not be considered independent in light of the hierarchical links between the appeals chambers and the regional finance authorities whose decisions they reviewed.Footnote ³² Likewise, the French prud’homie de pêche de Martigues was not an independent tribunal because its members could too easily be dismissed.Footnote ³³ If the requirement of judicial independence has been part and parcel of the Vaassen doctrine for decades, that doctrine serves to determine whether domestic courts may ask questions to the CJEU or not, but not to sanction violations of the requirement of judicial independence per se. (This raises the puzzling question whether preliminary references from Polish courts can still be considered admissible, in light of the court’s position on the shortcomings of judicial independence in Poland.Footnote ³⁴ The CJEU still seems to welcome Polish preliminary references.)

Second, the Union legal order has required for decades that Member State courts ensure the effective judicial protection of the rights protected by EU law.Footnote ³⁵ As early as the 1980s, the CJEU insisted on the presence of effective remedies for the protection of EU rights in areas such as the free movement of workersFootnote ³⁶ or gender discrimination.Footnote ³⁷ This had far-reaching implications, as the CJEU requires the courts in the Member States to grant interim reliefFootnote ³⁸ when the protection of Union rights is at stake and to provide a remedy for damages resulting from breaches of Union law.Footnote ³⁹ In Unibet, the CJEU made it clear that, although Union law in principle did not require the creation of new remedies, domestic judiciaries may nevertheless have to do exactly that when no adequate remedy exists under national law.Footnote ⁴⁰ The question of independence is directly relevant in the case of such remedies. Wilson, for example, dealt with a directive allowing lawyers to practice in other Member States. Member States were obliged to provide effective remedies in contentious cases. In Wilson, the Luxembourg bar had refused to register a British barrister.Footnote ⁴¹ The CJEU held that an appeals procedure against a decision refusing to register a lawyer before a body of lawyers which have a ‘common interest contrary to his own, that is, to confirm a decision to remove from the market a competitor’ did not offer sufficient guarantees of impartiality.Footnote ⁴²

The case law of the CJEU on the effective judicial protection of Union rights by Member State courts intersects with a very different area of Union law. Since the 1960s, the CJEU has had a restrictive interpretation of standing requirements in actions for annulment challenging the validity of measures of Union law.Footnote ⁴³ It preferred an indirect route for such challenges by means of preliminary references from domestic courts. The court indeed maintained that ‘it is for the Member States to establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection’.Footnote ⁴⁴ Member States were therefore required to ensure that the avenue of a preliminary reference was open when an action for annulment would be inadmissible. The Union’s Treaties were amended to confirm the views of the CJEU, in that Art 19(1) TEU requires since the Lisbon Treaty that ‘Member States provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. This provision was initially understood as a remedy for the quirks of the Union’s action for annulment rather than as a mechanism to challenge the composition of the judiciaries of the Member States.Footnote ⁴⁵

A third source of the requirement that courts be independent is the Charter of Fundamental Rights, which has become formally binding with the entry into force of the Lisbon Treaty. Its Article 47 provides for a right to effective judicial protection before an ‘independent and impartial tribunal’. On occasion, the CJEU deploys Art 47 of the Charter to verify whether domestic remedies comply with the right to effective judicial protection as it had done in Wilson. Art 47 implies that a remedy before an independent tribunal must exist in cases in which a Schengen visa is refused, for example,Footnote ⁴⁶ and domestic courts ruling on appeal in the context of the Union’s asylum procedures must be independent.Footnote ⁴⁷ Despite the norm’s constitutional tone, there are few significant developments with respect to the independence of the judges of the Union’s own Member States relying on Art 47Footnote ⁴⁸ prior to the rule of law crisis.

The relevance of Article 47 is severely limited by the scope of application of the Charter, which, according to Art 51(1) of that instrument, binds the Member States ‘only when they are implementing Union law’.Footnote ⁴⁹ The meaning of ‘implementation’ has always been somewhat nebulous,Footnote ⁵⁰ but the CJEU interprets it to mean that the Charter applies in ‘in all situations governed by European Union law’, specifically when acts of the Member States ‘fall within the scope of European Union law’.Footnote ⁵¹ In other words, ‘there must be a rule of EU law which is applicable, independent and different from the fundamental right itself’.Footnote ⁵² In some cases, that is straightforward, as when the rule at issue before a domestic court is a regulation. The Charter also applies when Member States derogate from free movement provisions.Footnote ⁵³ The question is trickier when national legislation is transposing a directive or, more generally, applying Union law. In a series of a judgements, the CJEU has developed a test verifying whether national legislation can be considered to be implementing Union law: relevant is whether the legislation at issue ‘intend[s]’ to implement EU law, what the ‘character’ of the national legislation is (even when Union law is capable only of ‘indirectly affecting’ domestic law) and whether it pursues objectives of EU law or not, as well as whether ‘there are specific rules of EU law’ capable of affecting the domestic legislation.Footnote ⁵⁴

What is surprising about the Portuguese Judges case - the starting point of the constitutional transformation at issue here - is that the court left this question by the wayside. The question was undeniably important. Portugal and even the Commission – usually not shy to argue a situation falls within the scope of Union law – considered that the court did not have jurisdiction. In their view, the national legislation could not be considered an implementation of EU law.Footnote ⁵⁵ The CJEU had good reasons to reject those arguments. In a prior case, it had held that austerity measures decided in the framework of bail-out programmes negotiated by EU institutions fell within the scope of application of Union law, and therefore triggered the application of the Charter.Footnote ⁵⁶ The hurdle of Art 51(1) could have been cleared with ease. But the CJEU followed neither the arguments of Portugal and the Commission, nor its own prior case law. Instead, it pointed out that ‘the material scope of the second subparagraph of Article 19(1) TEU … relates to “the fields covered by Union law”, irrespective of whether the Member States are implementing Union law, within the meaning of Article 51(1) of the Charter…’Footnote ⁵⁷ The question raised by the Portuguese court, the court argued, therefore fell within the scope of Union law. This was the decisive move that allowed the CJEU to use Art 47 of the Charter as a benchmark for judicial independence within the Member States, without dealing with the question whether Portugal was implementing Union law. The same argument would be used subsequently in the CJEU’s assessment of Poland’s court packing measures.

The marriage between Art 19(1) TEU and Art 47 CFR was not self-evident. Both provisions correspond to different rights under the ECHR – the former to Art 13, the latter to Art 6.Footnote ⁵⁸ In Portuguese Judges, Advocate General Saugmansgaard Øe pointed out that Art 19(1) TEU is aimed merely at ensuring ‘that possibilities of remedies exist in the Member States so that each individual is able to benefit from such protection in all the fields in which EU law is applicable’.Footnote ⁵⁹ This obligation is ‘primarily procedural’Footnote ⁶⁰ and does not relate ‘to the right to a fair hearing before an independent court, the content of which is substantially different’.Footnote ⁶¹ The ‘concept of “effective judicial protection” within the meaning of the second subparagraph of Article 19(1) TEU’ therefore ought not to ‘be confused with the “principle of judicial independence”’ given that ‘the purpose and the wording of Article 47 are different from those of Article 19 TEU’.Footnote ⁶²

Rejecting the views of its Advocate General, the CJEU developed its new approach to the question of judicial independence by ‘breathing life’ into the Union’s values.Footnote ⁶³ As other Union values, the rule of law had never been considered justiciable in the past.Footnote ⁶⁴ Observing that Article 19(1) TEU gives ‘concrete expression’Footnote ⁶⁵ to the value of the rule of law, and further associating Art 19 and the value of the rule of law with Article 47 of the Charter, the court created a new ‘primary law obligation’Footnote ⁶⁶ regarding the judicial independence of domestic courts. Article 19(1) TEU requires that Member States guarantee ‘remedies sufficient to ensure effective judicial protection’.Footnote ⁶⁷ Effective judicial review is deemed ‘of the essence of the rule of law’,Footnote ⁶⁸ and a ‘court or tribunal’s independence’ – as defined by the Charter – is in turn ‘essential’ to such an effective remedy.Footnote ⁶⁹ The value of the rule of law is the glue that binds these different provisions together: the systematic interpretation of these three norms was the key to the articulation of a new, self-standing norm of judicial independence in Union law.

Wasn’t this simply the right thing to do? After all, the importance of this complex web of norms cannot be underestimated. In functional terms, national courts are the ordinary courts of Union law – they serve as ‘juge de droit commun’.Footnote ⁷⁰ They are therefore an essential pillar of the enforcement of Union law, alongside the CJEU. As the Court itself puts it, ‘[t]he system set up by Article 267 TFEU … establishes between the Court of Justice and the national courts direct cooperation as part of which the latter are closely involved in the correct application and uniform interpretation of European Union law and also in the protection of individual rights conferred by that legal order’.Footnote ⁷¹ Theoretically, one could imagine a judicial system in the Member States where only some courts deal with matters of Union law, but others don’t. The latter courts would then be exempt from supervision by the CJEU. But the numerous tentacles of Union law make such a system unworkable in practice. In almost any case an unexpected dimension of Union law might pop up. De facto, therefore, the whole of the domestic judicial system may need to deal with questions of Union law.

As so often, the limits of the CJEU’s line of argument become more apparent in light of its counter-arguments. Advocate General Tanchev points out that

The Masters of the Treaties – Poland in particularFootnote ⁷³ – indeed conspicuously insisted that the Charter ‘shall not extend in any way the competences of the Union …’Footnote ⁷⁴ or ‘establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties’.Footnote ⁷⁵ In doing so, they hoped to avoid the ‘incorporation’ of the Charter, transforming the latter into a functional equivalent of the European Convention on Human Rights.Footnote ⁷⁶ The role of the EU – contrary to the Council of Europe, with its European Court of Human Rights – is not that of a guardian of fundamental rights protection in the Member States. The point of Article 51(1) of the Charter is to limit the scope of application of the Charter, and therefore the constitutional role of the Union with regard to fundamental rights protection in the Member States. It is in this respect that observers note some ‘stretch’Footnote ⁷⁷ in EU law, and that the same Advocate General notices some doctrinal ‘tension’Footnote ⁷⁸ in the CJEU’s reasoning in Portuguese Judges. That explains why it is controversial for the CJEU to transform ‘the rule of law into a legally enforceable standard to be used against national authorities to challenge targeted attacks on national judiciaries’.Footnote ⁷⁹

The CJEU was therefore confronted with a strategic choice between (at least) three options. In political and social terms, the stakes of the choice were significant. Yet all options could plausibly be justified on the basis of the legal materials. First, the CJEU could have emphasised the importance of Art 51(1) of the Charter, reiterating the traditional doctrine of its limited scope of application. Call this the ‘technocratic’ approach, which emphasises the limits on the Union's sphere of competences. In the absence of the CJEU’s signal in Portuguese Judges, the Commission would likely have chosen to continue the path adopted with respect to the Hungarian court packing measures. After all, as Poland – but before it, also Portugal and even the Commission – had suggested, in the absence of a clear connecting factor to a substantive norm of Union law other than Art 19(1) TEU, there is no judicially enforceable norm of Union law policing judicial independence. The question of the organisation of the domestic judiciary was thought to be largely a matter of Member State competence, subject to occasional (but potentially significant) Union supervision when a connecting factor did exist. Had this approach been chosen, the CJEU’s constitutional vernacular throughout the rule of law crisis would have remained absent. But the Union would still have been able to intervene in numerous cases, though parties before the domestic courts and the Commission would have had to demonstrate a connecting factor with a substantive norm of Union law.Footnote ⁸⁰

Second, the CJEU could have chosen a middle ground, going beyond Art 51(1) of the Charter yet recognising the importance of the limits on the EU’s powers. Call this the ‘balanced constitutionalist’ path. Several suggestions have been made in this regard. While Art 47 CFR could apply only in the limited cases when the Member States are ‘implementing’ Union law, Art 19(1) TEU could play a role as an independent legal ground in cases of ‘systemic or generalised deficiencies, which “compromise the essence” of the irremovability and independence of judges’Footnote ⁸¹ even beyond the limits of Art 51(1) of the Charter. Others argue Art 19(1) TEU should only be invoked in cases of violations of the ‘essence’ of fundamental rights.Footnote ⁸² Another variation on this theme makes a distinction between questions relating to ‘institutional safeguards’ of domestic courts (where Union oversight is warranted at all times) and cases dealing with the ‘procedural and remedial’ dimension of the Union’s principle of effective judicial protection (where a substantive link with Union law remains necessary).Footnote ⁸³

The CJEU appears, instead, to have chosen a third option. Call it the ‘radical constitutionalist’ approach. Sidelining the question of the limits imposed on the scope of application of the Charter, it uses the phrase ‘in the fields covered by Union law’ to indicate a scope of application broader than the one traditionally attributed to the Charter. The court did not indicate any limits to the use of Art 19(1) TEU, using it instead as a ‘stand-alone, quasi-federal provision’.Footnote ⁸⁴ Commentators observe that this opens perspectives for a ‘very large, not to say unlimited’ application of Art 47 of the Charter to the Member States.Footnote ⁸⁵ A mere indirect or hypothetical link to Union law is sufficient to trigger the Union supervision of judicial independence.Footnote ⁸⁶ Avocate General Bobek warned the CJEU that the ‘at present apparently limitless … reach of the second subparagraph of Article 19(1) TEU is not only a strength of that provision, but it is also its main weakness’.Footnote ⁸⁷ Advocate General Tanchev shares the worry that the use of Art 19(1) TEU is ‘used as a “subterfuge” to circumvent the limits of the scope of application of the Charter as set out in Article 51(1) thereof’.Footnote ⁸⁸

It is in this sense that the jurisprudence of the CJEU can be understood as a ‘constitutional transformation’.Footnote ⁸⁹ Its radical constitutionalist approach makes the leap from the demonstration of a specific link with Union law to the mere hypothesis that domestic courts may be called upon to ensure the existence of a remedy of Union law in specific cases. It also makes the leap from the question whether or not judicial independence is respected in the context of this or that specific remedy required by Union law – a question which the CJEU has long dealt with, paradigmatically in Wilson – to the analysis whether the judicial system of a Member State in toto respects the requirements of judicial independence. Portuguese Judges is therefore best understood as closing a loophole in the framework of Union law: ‘given that the principle of judicial independence stems from the constitutional traditions common to the Member States as one of the founding tenets of any democratic system of governance, it was assumed that national governments would not threaten it’.Footnote ⁹⁰ The rise of semi-authoritarianism challenged this assumption. The CJEU responded by strengthening the requirements of the Union legal order in this respect.

In fact, the court went on to bolster its response to authoritarian populism by anchoring judicial independence even deeper in the system of Union law. That is the lesson of its endorsement of the Union’s conditionality regulation. The regulation was adopted on a legal basis allowing the Union to specify ‘financial rules which determine in particular the procedure to be adopted for establishing and implementing the budget and for presenting and auditing accounts’,Footnote ⁹¹ a norm which prima facie would not allow the Union to withhold funds from the Member States. Once more, the reference to the Union’s values is critical. According to the CJEU, the Union’s foundational values:

The reference to the Union’s identity is central to the court’s rebuttal of the argument that the EU lacked the competence to adopt this transformative legislative act.Footnote ⁹³ Member States have some discretion in their interpretation of the rule of law, but not to the extent that variations in the definition or interpretation of the rule of law could be admitted. To the contrary, Member States are expected to ‘adhere to a concept of “the rule of law” which they share, as a value common to their own constitutional traditions, and which they have undertaken to respect at all times’.Footnote ⁹⁴ By personifying the Union legal order, the CJEU gives greater credibility to the idea that the protection of judicial independence is an existential matter for the Union, and must therefore be defended at all costs.

In light of the political context, these judgements send a clear message: the CJEU claims authority as ‘guardian of the rule of law within its Member States’.Footnote ⁹⁵ (Admittedly, the court may not always practice what it preaches, particularly in the context of preliminary references.Footnote ⁹⁶ ) In doing so, it takes a partial, but clear step in the direction of the incorporation of the Charter. It may not be the guardian of fundamental rights within the Member States in general, but at least it is with respect to matters related to the rule of law.

Sceptics of the court may denounce its attitude as a naked power grab.Footnote ⁹⁷ Arguments abound: the move can be cast as doctrinally implausibleFootnote ⁹⁸ or motivated by the political will of the court to ‘bolster[] its own role in the Polish debate and more generally when Member States adopt measures that allegedly undermine judicial independence’.Footnote ⁹⁹ In the vocabulary of the German Federal Constitutional Court, the move amounts to a ‘structurally significant shift in the order of competences to the detriment of the Member States’.Footnote ¹⁰⁰ By contrast, defenders of the CJEU may claim it is merely the logical implication of the choice of the Masters of the Treaties to enshrine judicial independence as a central requirement of Art 47 of the Charter, and the importance of effective judicial protection by Member State courts in Art 19(1) TEU – or of the functional intertwinement of the judiciaries of the Member States and that of the EU.

For the purpose of this contribution, I have little stakes in this debate. Rather, I wish to ask different questions. Who could and should have engineered this constitutional transformation, asserting the Union’s identity in the process? Why choose this constitutional transformation as opposed to any other and frame this norm to be the core of the Union’s identity, as opposed to any other? The answers to these questions suggest a diagnosis of legalism.

A. Performative contradiction

Judicial decisions are intrinsically legalist not just because they are the product of the most emblematic legalist institution, the courts, but also because their justifications necessarily suggest they merely apply norms that were already there,Footnote ¹²² as if judicial interpretation wasn’t a creative and political act. The CJEU’s bold and innovative invocation of the Union’s foundational values to justify this constitutional transformation represents less of a break with the past than one might imagine: the CJEU’s reliance on the systematic method of interpretation is consistent with classical interpretive approaches.Footnote ¹²³

The centrality of the invocation of the rule of law in the constitutional transformation enacted by the CJEU makes it paradigmatically legalist. Its reasoning alludes to the ancient and sexist distinction between the rule of law and the rule of men. Respect for the rule of law implies that the sovereign will of the legislator (gubernaculum) is limited by a pre-existing, autonomous body of law (iurisdictio).Footnote ¹²⁴ In casu, it is the power of the Member State to pack the courts that is found not to be at the sovereign’s disposal, as this would conflict with the normative requirements imposed by Union law. Iurisdictio understood in this sense does not refer to judicial choice, but to ‘jus dicere’: the ‘duty to say and declare’ what the law elaborated ‘through the wisdom of decades or centuries’ demands.Footnote ¹²⁵ There is recursivity at work here: the decisions recognising the rule of law as a norm that is binding on the Member States are themselves to be understood as the rule of pre-existing law rather than of human decision-making.

It is therein that the court’s case law is embroiled in a performative contradiction. Rather than the recognition of a pre-existing norm, the CJEU’s defence of judicial independence by means of the invocation of the rule of law – either as being given ‘concrete expression’ in other norms or as the ‘identity’ of the Union legal order – are of course the product of a judicial choice. The CJEU’s justification is a striking example of the ‘“dynamic” process of autogenesis’Footnote ¹²⁶ that typifies legalism. Precisely when the court is seeking not just to defend but also to embody the rule of law against the rule of men, it makes a decision by judicial fiat.

Shklar reminds us of the danger that legalists may ‘fail to recognize that they too have made a choice among political values’.Footnote ¹²⁷ The CJEU indeed makes a controversial claim by understanding judicial independence as part of the rule of law, exhibiting an exaggerated ‘faith in law’.Footnote ¹²⁸ Historically, it is not evident that for example the French état de droit or the German Rechtsstaat require protection for the independence of the judiciary (though contemporary versions of those concepts may well include such a protection).Footnote ¹²⁹ To this day, thin versions of the rule of law protect formal aspects of legality, such as the clarity, generality and consistency of legal norms.Footnote ¹³⁰ Thin versions of the rule of law may be unable to respond to most of the root causes of authoritarianism – indeed authoritarian regimes themselves could correspond to such a definition of the rule of law. As Raz famously argued, regimes ‘based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities, and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies’.Footnote ¹³¹ Somewhat thicker versions of the rule of law do tend to include protection for the independence of the judiciary.Footnote ¹³² Thick definitions of the rule of law, on the other hand, tend to include a large number of substantive legal norms such as human rights,Footnote ¹³³ and may therefore be better suited to protect against authoritarian politics, particularly when authoritarian movements enforce conservative values.

B. Transnational peer review

A constitutional transformation enacted by a legislature is the most plausible alternative to a constitutional transformation enacted by the courts. The best known example of constitutional transformation led by the legislature is perhaps the civil rights revolution in the United States half a century ago.Footnote ¹³⁴ Assuming ‘constitutional leadership’, the United States Congress adopted a series of legislative acts extending equal rights protection to domains such as housing, employment and voting.Footnote ¹³⁵ While these acts were technically of a merely legislative nature, their political significance gave them, in the eyes of some, de facto constitutional status.Footnote ¹³⁶

In this respect, the European Union has innovative resources at its disposal: the presence of a supranational organisation with democratic credentials alongside the Member States means that the Union can be a counter-power to semi-authoritarian rulers within the Member States even when they are firmly in power domestically. Constitutionally, the innovation of the European Union is a form of ‘peer review’Footnote ¹³⁷ which goes back to the pluralist architecture of supranational governance in Europe. Rather than the exchanges between high courts at the national and supranational levelFootnote ¹³⁸ most commonly alluded to in this context, what matters here is that the EU can pit one (supranational) democracy or several (national) democracies against another (national) democracy. The discourse of Union values shows that the question of militant democracy – the fight against enemies of democracy – has become a transnational one.Footnote ¹³⁹

The legislative approach can be considered a form of peer review because Member States themselves decide whether or not one of their peers has violated these foundational values.Footnote ¹⁴⁰ In this respect, the approach moves away from the iurisdictio paradigm where judicial decision-makers apply a pre-existing autonomous body of rules. Peers are more democratically legitimate than courts when they seek to put pressure on semi-authoritarian regimes, especially when creativity is needed because the existing toolkit is found to be lacking. It acknowledges that this determination is not a mechanical application of pre-existing rules, but an assessment driven by political debate about the significance of the Union’s core values. It is a feature rather than a bug that this procedure does not seek regime change: it merely seeks to put pressure on the domestic system deemed in violation of those core commitments, casting it as a pariah of the supranational club. Obstruction tactics are to be expected in response. Only the domestic population can, by democratic means, bring another constellation of political forces to power. The point of Union legislation is to create political friction with and within Member States that no longer respect its foundational values, in the hope those Member States will change course.Footnote ¹⁴¹

The Union can indeed use its political power to put pressure on the Member States who undermine democracy. Famously, the Lisbon Treaty created a procedure to establish the ‘existence of a serious and persistent breach’ of the Union’s foundational values, which can entail sanctions such as the suspension of the voting rights of the Member State concerned.Footnote ¹⁴² Yet the Union does not have to resort to this procedure in order to protect those foundational values: it can simply resort to its legislative powers to generate such friction. By justifying legislative intervention with reference to the Union’s values, the legislature can be the driver of constitutional transformation, as in the American model. The Union’s conditionality regulation stands out as an example. It allows the Union to withhold funds from Member States who breach rule of law when such breaches can demonstrably be linked to the execution of the Union’s budget.Footnote ¹⁴³

Claims that such transformative legislation is ultra vires are characteristic of such constitutional transformations. In the context of the United States, the issue of competences was central, as the civil rights legislation empowered of the federal government to the detriment of the states in contentious policy areas.Footnote ¹⁴⁴ In the context of Union law, similar challenges are to be expected. They were at the heart of the Polish and Hungarian challenge to the conditionality regulation.Footnote ¹⁴⁵ Though the Union is limited by the powers conferred upon it, it has been argued long ago that ‘[t]here simply is no nucleus of sovereignty that the Member States can invoke, as such, against the Community’.Footnote ¹⁴⁶ Such could be the motto of constitutional change driven by Union legislation. Competence creep is an asset in such circumstances, because it allows the Union to assert its foundational values at times when they are challenged and a strict reading of Union powers would prevent it from overcoming an identity crisis.

A. Economic inequality

Semi-authoritarian regimes tend to court the vote of the economic losers of globalisation. Because globalisation creates both winners and losers, ‘economic anxiety and distributional struggles exacerbated by globalization generate a base for populism’ (whether of the left- or right-wing variety).Footnote ¹⁵⁵ Autocrats succeed because they ‘are promising better pensions, health care, and more jobs, an agenda that is winning over the abandoned working class communities that were once a stronghold of the European social democratic and other progressive parties’Footnote ¹⁵⁶ – arguably a positive dimension of the rise of authoritarianism. Despite some differences in emphasis, there are significant parallels between the social policies of semi-authoritarian Member States in their development of a ‘conservative developmental state’.Footnote ¹⁵⁷ The Polish Law and Justice party relies heavily on redistributive policies. When it came to power, it reversed a measure which had lowered the retirement age, limited employer’s abilities to use precarious short-term labour contracts, raised the minimum wage and launched a popular child benefit scheme.Footnote ¹⁵⁸ The Hungarian case is more complex: Orbán initially curtailed the social welfare state by reducing the duration of unemployment benefits to three months, reducing the value of sick pay and social assistance benefits as well as family allowances and maternity benefits. Benefits received at the top of the income distribution increased.Footnote ¹⁵⁹ Orbán’s reforms can therefore be described as an attempt to boost the wealth and power of Hungary’s growing national bourgeoisie.Footnote ¹⁶⁰ Predictably, such policies cause much anger and resentment among those who are worried about their economic prospects. These policies are part of Orbán’s “Eastern winds” approach which seeks to mimic the growth model of fast-growing South-East Asian economies, in part by attracting foreign investments and more job opportunities for Hungarians.Footnote ¹⁶¹ More recently, Orbán turned to more generous social benefits as part of his natalist welfare nationalism, providing for instance a “lifetime exemption from personal income tax for women who bear and raise four or more children”Footnote ¹⁶² in an attempt to strengthen his chances of victory in anticipation of the next election cycle. Authoritarian regimes thus seek to respond, more or less skilfully, to the excesses of decades of neoliberalism and the high levels of inequality it has generated.Footnote ¹⁶³

In response to this semi-authoritarian strategy, the Union could have sought to redistribute resources itself in order to undercut part of the semi-authoritarian electoral strategy. The Union’s constitutional transformation could have been targeted at a more just redistribution of economic resources throughout the Union, rather than at judicial independence. As ‘equality’ and ‘solidarity’ – alongside numerous social rights protected in the Charter covered under the heading of ‘human rights’ – can be counted among the Union’s foundational values,Footnote ¹⁶⁴ the rise of inequality could be recognised as a threat to core Union values not unlike court packing.

In fact, the Union’s actions did involve some form of redistribution. The Union’s conditionality regulationFootnote ¹⁶⁵ allows it to withhold funds from those Member States who pose a threat to the rule of law. But this is an ineffective response to the authoritarian strategy. For one, the conditionality regulation is triggered by rule of law issues, rather than the economic anxiety which generates a voter base for would-be authoritarians. In principle, nothing prevents authoritarian regimes from emerging in the absence of threats to judicial independence. More importantly, the conditionality regulation seeks to stop redistribution rather than to promote it, likely causing even greater economic anxiety than in the absence of an instrument allowing for the withholding of funds.

The Union has not seized the opportunity of the crisis to develop stronger redistributive policies to compensate those who lost out in the process of globalisation.Footnote ¹⁶⁶ It was not for want of opportunity. Traditionally, the question of economic redistribution was considered within the remit of the national politics of the Member States, outside the bounds of Union powers. But in the midst of the rule of law crisis, the COVID-19 pandemic engendered another major constitutional transformation for the Union: its budgetary framework was overhauled considerably by borrowing on financial markets.Footnote ¹⁶⁷ Yet NextGenerationEU (NGEU) merely seeks to overcome the economic recession caused by the COVID-19 pandemic and to restore growth and resilience of the European economy in its aftermathFootnote ¹⁶⁸ rather than to redistribute Union resources to undercut the rise of semi-authoritarian governments. To finance the economic recovery, distributive decisions plainly had to be made. NGEU chose, for example, to redistribute resources in order to ensure a “fair and inclusive” transition to a carbon-neutral economy through its new just transition fund.Footnote ¹⁶⁹ Yet it did not channel extra resources to existing Union instruments that could mitigate high levels of inequality such as the Union’s existing European Globalisation Adjustment Fund for Displaced Workers,Footnote ¹⁷⁰ nor did it create any new Union instruments tailored to the economic anxieties that fuel the rise of authoritarianism. That is a missed opportunity.

B. Identity politics

To examine the distributive implications of the Union’s defence of the rule of law is not merely to question its economic and monetary implications. The economic resources authoritarian rulers redistribute are simultaneously a vector for the propagation of “welfare chauvinis[m]” which seeks to defend “patriotism, religion, and traditional family values”.Footnote ¹⁷¹ This ideology claims to protect the nation against what they perceive to be external threats (such as migrants) but also internal threats (such as women and the LGBTQ community).Footnote ¹⁷² It is infused in their vision of the welfare state, but also in other policy areas. Hungary’s Orbán has argued, for instance, that he wanted his country to be “a home to European citizens who do not want migrants, who do not want multiculturalism, who have not descended into LGBTQ lunacy”.Footnote ¹⁷³ By contrast with the effects of globalisation, which predate the rise of semi-authoritarianism in the Union, the responsibility for the effects of these policies lie squarely with these regimes. The Union’s constitutional transformation could have sought to strengthen the rights of those most affected by such identity politics, rather than strengthening judicial independence, but it did not do so. Below, I examine how the Union’s response to the rule of law crisis has (not) impacted such identity politics.

C. Democratisation

The rhetoric of the ‘rule of law’ has focused attention on domestic judiciaries, and this approach is not devoid of blind spots. The attack of authoritarian governments on the judiciary is arguably only a minor part of a much larger assault on democracy which has made ‘real turnovers in power increasingly difficult’.Footnote ²⁷⁰ Authoritarian governments have, for example, tinkered with the legal infrastructure of elections. In Hungary, Orbán gerrymandered election districts and altered the political composition of the electoral commission.Footnote ²⁷¹ Similarly, the Law and Justice party in Poland has restructured the electoral bureaucracy to increase political influence.Footnote ²⁷² Political pressure on media outlets – for instance through strategic use of state advertising or of public bodies supervising the media – is also a common feature of democratic backsliding, and Hungary and Poland have not been exceptions to that rule.Footnote ²⁷³ This is alarming in light of the Union’s rhetorical emphasis on the rule of law, democracy and human rights as a ‘trinity’ of Union values. If the protection of judicial independence is essential to the survival of democratic societies,Footnote ²⁷⁴ surely the same can be said of democracy?

Alongside the rule of law, democracy figures prominently in the catalogue of fundamental values of the Union.Footnote ²⁷⁵ Like the judiciary, the Union’s supranational political process depends on the proper functioning of its national counterpart.Footnote ²⁷⁶ Given populist emphasis on democracy and anti-elitism, some argue it might have been prudent to focus attention on democracy rather than on the judiciary, especially as the argument for militant democracy is strongest in that context.Footnote ²⁷⁷ But the Union has given a far greater role to the judiciary than to the democratic process. It failed to adopt significant legislative measures in order to strengthen democracy in the Member States. Admittedly, the Union has limited competences in this area. Yet, within those limits, the Union could have intervened meaningfully in order to signal its commitment to the value of democracy where it could. The conditionality regulation – which could have protected any number of Union values – focuses on the rule of law, not on democracy stricto sensu. The Union could have adopted specific rules related to municipal and European electionsFootnote ²⁷⁸ or otherwise extended the rights of Union citizens.Footnote ²⁷⁹ So far, the Union has acted solely to check potential violations of Article 2 by parties within the European Parliament (as opposed to within the Member States).Footnote ²⁸⁰ The European Media Freedom Act recently proposed by the Commission in the sphere of media regulation is an encouraging sign, though its new tools may be insufficient to combat existing or new semi-authoritarian regimes. The Act would require oversight over new domestic measures affecting media outlets, an assessment whether concentrations in the media sector risk undermining media pluralism and require public authorities to provide information about their advertising expenditure to media outlets.Footnote ²⁸¹ Those features have constitutional significance. At the time of writing, political negotiations with the Parliament and the Council were ongoing. By contrast with the conditionality regulation – which foregrounds the importance of the defence of the Union’s core values – the Commission frames this Act as a technical intervention in the internal market for media services, rather than as transformative legislation seeking to defend the Union’s foundational commitment to democracy.Footnote ²⁸²

The lack of transformative case law on this issue attests to the limited appetite of the CJEU to strengthen the democratic process within the Member States. Yet democracy, not unlike the rule of law, is also given ‘concrete expression’ – to use the vernacular of the CJEU – in the Treaties which claim that the ‘functioning of the Union shall be founded on representative democracy’.Footnote ²⁸³ The court has not developed a parallel jurisprudence to Portuguese Judges protecting domestic democracyFootnote ²⁸⁴ or protecting media freedom where it is being violated systematically.Footnote ²⁸⁵ Only in July 2022 did the Commission decide to refer Hungary to the Court of Justice, in particular for its refusal to license to the Hungarian radio station Klubradio.Footnote ²⁸⁶ Though the Commission cites the question of freedom of speech, the Commission’s intervention mainly relies on technical questions of compliance with Union legislation, while lacking the constitutional ambition that characterised the rule of law transformation of the European legal order.

In this sense, the cause of democracy has lost out in comparison with the project of strengthening the protection of domestic judiciaries. Worryingly, the strengthening of judicial independence might play into the hands of authoritarian regimes. Those regimes indeed find legitimacy in their ‘claim … to overcome the significant constraints to popular rule that they observe in liberal or legal constitutionalism’, such as ‘the entrenchment of norms [or] judicial independence …’Footnote ²⁸⁷ By reinforcing the counter-majoritarian power of the judiciary, the rule of law crisis has doubled down on technocratic rather than democratic governance throughout the Union. Some consider populism a ‘response to undemocratic liberalism’ and to the ‘depoliticization of politics’.Footnote ²⁸⁸ Strengthening technocratic governance might play into the hands of semi-authoritarian populists who claim democratic rule is under threat from liberal institutions rather than weaken them. As a result, the case has been made that the most appropriate response to authoritarian movements is through ‘more rather than less politics’ (albeit a ‘liberal democratic’ rather than an authoritarian populist politics).Footnote ²⁸⁹ That is the road not taken by the Union during the rule of law crisis.

D. Intermediary conclusion

The Union’s constitutional transformation is legalist not only in institutional terms – because the CJEU took the lead in engineering a de facto constitutional transformation – but also in substantive terms, because that constitutional transformation focuses on judicial independence. The thought experiment developed in this section shows that other constitutional transformations could have been imagined. The CJEU could, for example, have extended its transformative case law in the area of non-discrimination by applying it to the rights of the LGBTQ community. Such an approach would without question have been legalist in institutional terms, but less so in substantive terms. The Union’s legislature could also have taken a bolder approach to, for example, questions of migration or economic redistribution. The latter approach would have been significantly less legalist in both institutional and substantive terms. In comparative terms, the substantive focus on judicial independence is undeniably legalist.

It is not that the Union is not responding to the threat of authoritarianism in policy areas unrelated to judicial independence. The Union does intervene, with varying degrees of success, by means of judicial, executive or legislative action. The argument is, rather, that those actions fail to rise to the level of a constitutional transformation. This is significant, as the rise of semi-authoritarian regimes poses at least as much of a threat to democracy, identity politics and economic redistribution as it does to judicial independence. The Union is in the midst of a ‘severe identity crisis’Footnote ²⁹⁰ not just because of a threat to judicial independence, but also because of these other aspects of the authoritarian playbook. Beyond the matter of judicial independence, the Union’s refusal to respond to these threats in the language of constitutional transformation attests to the Union’s lack of appetite to uphold its own core values.

With its emphasis on the issue of judicial independence, the Union maintains, in essence, that authoritarianism is less objectionable in the absence of court packing measures. At best, this idea relies on a controversial assessment of authoritarianism according to which courts can be effective agents in the fight against authoritarianism. Sceptics retort that courts are best understood as ‘speed bumps’ on the road to authoritarianism.Footnote ²⁹¹ But the most important implication of the Union’s focus on judicial independence is that it covers up the lack of a genuine, substantive response to the multifaceted phenomenon of authoritarianism. Because of its failure to engage with other aspects of the semi-authoritarian playbook, this constitutional transformation constitutes a missed opportunity: it is not a constitutional transformation to compensate the losers of globalisation, nor to protect abortion rights or same sex marriage, nor to put a greater emphasis on solidarity and openness towards third country nationals, nor to defend national democracy. The emphasis on the rule of law is a poor substitute for a substantive vision of the Union’s core values, expressed in the vocabulary of constitutional transformation appropriate to their importance. Bolstering judicial independence merely hides the Union’s painful inability not just to reach consensus over the meaning of those other values, but even to engage in a genuine debate over their meaning. The Union’s defence of judicial independence is a form of ‘value-free functionalism’Footnote ²⁹² which legitimises authoritarian policies unrelated to judicial independence as unproblematic in terms of the Union’s foundational values.

Commissioner Reding might respond to this line of argument that the protection of the rule of law is merely the ‘prerequisite for the protection of all other fundamental values’.Footnote ²⁹³ Yet the Union’s emphasis on the rule of law likely delayed action in other policy fields. The existence of an answer to semi-authoritarian rulers – even if it was merely in terms of judicial independence – nevertheless meant that the Union had responded to that threat, making action in other policy areas less pressing. In addition, there are reasons to doubt that the CJEU would be eager to push its constitutional transformation further into other policy areas.Footnote ²⁹⁴ In the aftermath of the CJEU’s transformative case law with respect to judicial independence, it is likely the CJEU would pause and think twice before risking a backlash from the Member States in connection with other salient political questions. The same can be said for the Union’s legislature.

If so, the expansion of EU supervision over domestic judiciaries came at the cost of Union intervention in other matters. In other words, the Union’s focus on judicial independence has significant distributive implications. Numerous interest groups have lost out in the constitutional transformation brought about by the ‘rule of law’: those concerned for women’s reproductive rights, those who rally in opposition to xenophobic or anti-LGBTQ policies, but also those who seek Union-wide redistributive policies or are worried about the state of their national democracies. By contrast, there is one indisputable winner of the rule of law crisis: the judiciary itself. In the long run, the rule of law crisis has most of all been a justification for the strengthening of juristocracy throughout the European Union.

A. An institutional alibi

The idea that the CJEU came to the rescue of a failing Union democratic process only captures part of the implicit bargain that has been struck between the judicial and political branches. On the one hand, it downplays just how convenient the situation is to the Union’s political branches. The judicial response shields them from the messy trade-offs prompted by the authoritarian threat, from economic redistribution to the recognition of LGBTQ or reproductive rights and so on: they can avoid accusations of inaction and claim instead that the issue of authoritarianism is tackled effectively by the Union’s rule of law policies. The court unburdens the Union’s political institutions – but also the society at large – of anxious debates about the malaise provoked by the rise of authoritarianism in Europe.Footnote ²⁹⁷ On the other, it downplays the strength of the CJEU’s position. The CJEU successfully managed to avoid the constraints of democratic policy-making. Because of the intrinsic difficulty of amending the Treaties, especially on such sensitive matters, the CJEU is putting itself beyond the reach of democratic control when it develops a jurisprudence of values. Political optics make it all but impossible to respond to the court’s transformational case law by setting aside the rule of law or reinterpreting it. The values the court mobilises – paradigmatically the value of the rule of law – are so vague that the textual limits on the court recede far into the background.Footnote ²⁹⁸

The CJEU’s constitutional transformation has created a vicious circle in which politicians may not feel the need to act, anticipating intervention by the CJEU. When politicians do intervene, they simply echo and reinforce the achievements of the CJEU as opposed to adopting a genuinely original legislative agenda, with all the difficult political trade-offs that requires. That is what they did by adopting a conditionality regulation focused on the rule of law (though it further narrowed the grounds on which the withholding of funds would have been acceptable).Footnote ²⁹⁹ Had the CJEU stuck to a technocratic approach, a different situation might have emerged. Pressure on the political branches to take action would have been considerably greater and might have broken the political deadlock. The fact that a targeted legislative response to the rise of semi-authoritarian policies in different policy areas often requires unanimity among the Member States (for instance with respect to questions of non-discrimination, as the discussion of abortion and LGBTQ rights suggests) could also have made the triggering of Article 7 TEU more attractive. That provision indeed allows for a suspension of the voting rights of those Member States most vigorously opposed to such measures.

The idea that legalism stands for ‘law without government’Footnote ³⁰⁰ – insofar as judicial governance explicitly denies that is a form of government – therefore rings especially true at the current juncture. This institutional constellation spells trouble for the widespread appeals for a deeper democratisation of the Union.Footnote ³⁰¹ The legalist attitude towards the Union’s values results in the ungrudging disempowerment of the Union’s political branches, who don’t want and don’t get to determine which values they deem to be at the heart of to the European project. The problem is not merely that party political considerationsFootnote ³⁰² result in a lack of political will to trigger Article 7: there is also an issue of institutional collusion to avoid democratic debate about the Union’s values, their contours, and the priority between them.

B. Reifying political discourse

The CJEU’s framing of authoritarianism as a matter of judicial independence constitutes an astoundingly successful exercise of agenda setting. If Habermas was worried, some two decades ago, about the capacity of the German constitutional court to ‘program[] itself’,Footnote ³⁰³ the CJEU has succeeded in programming not just itself, but the Union’s political process as a whole. When the Court endorsed the doctrinal argument that Article 19 gave ‘concrete expression’ to Article 2 TEU, signalling a potential constitutional transformation, the Commission – despite its initial reservationsFootnote ³⁰⁴ – gladly followed suit and adopted the strategy in its challenge to Polish judicial reforms.Footnote ³⁰⁵ The CJEU’s supply created the Commission’s demand, and the constitutional transformation became a reality. Parliament and Council echoed this approach by adopting a conditionality regulation allowing the Union to suspend financial flows to Member States who do not respect the rule of law, and in particular judicial independence, whenever a link can be established with the Union’s budget.Footnote ³⁰⁶ By accepting the CJEU’s framing, Parliament and Council implicitly set aside broader interpretations of what the rule of law entails, views which would include other Union values and different politically salient issues in the rise of authoritarianism in the Union.Footnote ³⁰⁷ Political debate over the means to protect judicial independence displaced debate over the role of the Union’s other foundational values and the way they could be protected. It is plausible that this has distorted Union policy-making, to the extent that the Union’s legislators did not come up with alternative legislative responses to the crisis.Footnote ³⁰⁸

The question is not just whether but also how the Union’s institutions take up the baton of legal reform in order to oppose authoritarianism. The fact that the court frames a constitutional transformation may be a welcome contribution to democratic debate, but it can become problematic when the framing is reifying in the sense that it ‘engender[s] a particularly deep form of de-politicisation’.Footnote ³⁰⁹ Framing authoritarianism as a rule of law issue entails framing it as one of pre-existing higher lawFootnote ³¹⁰ rather than as a matter of political decision-making, preventing the Union’s political branches from engaging in an open-ended dialogue about the contours of the Union’s foundational values and, thereby, the Union’s identity. The attitude of the Parliament, in particular, shows the extent to which political action at the Union level has been distorted by its reliance on higher norms. When the Commission fails to enforce the conditionality regulation, Parliament chooses to take it to courtFootnote ³¹¹ instead of confronting it with its political responsibility.Footnote ³¹² Rather than demanding legislative initiatives respecting specific minimal guarantees regarding the right to abortion, Parliament calls for the inclusion of an abstract right to abortion in the Charter, leaving the politically most vexed question of its precise contours to the CJEU. Instead of pressuring Commission and Council to adopt legislation to protect LGBTQ rights across the Union, the Parliament prefers to invite the Commission to enforce the CJEU’s latest judicial innovations on the relevant matter. The attitude of the Council is no different when it enacts a conditionality regulation along the lines of the CJEU’s prior constitutional transformation.

This anecdotal evidence on one of the most salient political episodes of the past years suggests that it is not a lack of constitutional or political tools of the Union’s political branches which is the key to the Union’s depoliticisation. Instead, the Union’s institutions remain beholden to the authority of the law and of the court, attesting to a ‘culture of legalism in politics’.Footnote ³¹³ That European institutions are reluctant to get their hands dirty in the messy politics of the Union’s values could be explained as being in their rational self-interest in the current context of rising semi-authoritarian populism. But once these institutions do decide to get their hands dirty, the way they pursue their political objectives sometimes shows the marks less of their rational self-interest than of a ‘religious admiration’Footnote ³¹⁴ of Union law and of the CJEU. Even with regard to policy questions where political institutions have broad discretion for political action, they appear to imagine a legal straightjacket restricting their discretionary powers. It is the ‘symbolic power of the law at work in the sphere of politics itself’ which seems to diminish the authority of political actors ‘to speak authoritatively on political matters that implicate constitutional issues’.Footnote ³¹⁵ Legalism thereby becomes a liability which prevents the Union from facing up to the multi-faceted threat of authoritarian politics.

C. Ideological force of narratives

For the Union at large, the constitutional transformation brought about by the rule of law crisis may be most problematic not because of the immediate, practical effects of the case law of the CJEU – ie in the degree of independence of this or that tribunal in Poland or elsewhere – nor for the systematic impact on the doctrinal (re-)elaboration of Union law in light of the role of the Union’s foundational values, nor even for the other constitutional transformations which it hinders, but for its ideological implications. The constitutional transformation brought about by the rule of law crisis indeed conveys an implicit narrative about the significance of the project of European integration.Footnote ³¹⁶ The normative force of the idea of the rule of law, an ideal which commands authority – and casts suspicion on those who contest it as outside the bounds of acceptable democratic debate – makes this narrative appealing. The narrative has considerable success, as is witnessed by the thousands who have been protesting on Polish streets for the rule of law and judicial independence as opposed to more immediate political goals.Footnote ³¹⁷ The narrative suggests it can transcend the distributive conflicts implicit in the policy of defending the judiciary. Yet it may become contentious when no consensus exists around the significance of judicial independence as the key to the rise of authoritarianism.Footnote ³¹⁸

The narrative of the rule of law crisis emerges at a difficult juncture for the Union. The Union’s reliance on political messianism as a source of legitimacy was observed long ago.Footnote ³¹⁹ The dream of an ‘ever-closer union among the peoples of Europe’ which emerged in the shadow of the self-destruction of the European continent has energised generations of scholars and citizens. Irrespective of the economic benefits of European integration or its degree of democratic legitimacy, European integration seemed immune to critique because it was the ‘right thing to do’ in a continent torn apart by two world wars. More than half a century later, the messianic force of the project of European integration seems a thing of the past. Teetering from (constitutional) crisis to (euro zone, migration, Brexit, …) crisis, it has become painfully apparent that the project of European integration no longer commands universal assent.Footnote ³²⁰ Instead, the European project is viewed with increasing disillusionment and resistance.

The rule of law crisis allows the European institutions to tap once more into the legitimacy reservoir of political messianism. Reconnecting with the ‘heroic’ jurisprudence from the earliest decades of European integration,Footnote ³²¹ the European institutions and the Court of Justice rely on the belief that the rule of law is an essential component of a just society to challenge quasi-authoritarian states. The Union appears as the guardian of the foundational values of democracy, its legal order as a vital tool to protect it, and the Court of Justice as the courageous actor enforcing that vision against the Union’s semi-authoritarian Member States.

D. Alienating the polity

The emphasis on the rule of law may cause collateral damage. The narrative dismisses plausible causal accounts of the rise of authoritarianism. Three stand out. According to some, the root cause of the emergence of quasi-authoritarian regimes is the ‘depoliticization of politics’ in which an increasing number of political issues is relegated to decision-making powers outside of the realm of democratic control.Footnote ³²² Others argue that the rise of economic inequality inherent in later phases of economic globalisationFootnote ³²³ or the turn towards identity politicsFootnote ³²⁴ may have produced a backlash. If these accounts of the rise of authoritarianism are correct, the Union may already be an alienating force for significant numbers of European citizens.

By framing authoritarian politics as an issue of judicial independence – and, correlatively, refusing to frame it as a crisis of values in other respects – the rule of law narrative performatively silences these plausible accounts as insignificant from the perspective of EU law. Those who identify with such narratives – arguably already feeling alienated for that very reason – may feel alienated once more because of the Union’s response to what it has framed as a ‘rule of law’ crisis.Footnote ³²⁵ Their understanding of the problem is dismissed: they are being told the ‘real’ problem was lack of respect for the ‘rule of law’, ie for the independence of the judiciary, all along.

The matter is not solely one of narrative: the languages of law and politics are enmeshed to the extent that the language of law is a vehicle for emancipatory claims of recognition.Footnote ³²⁶ Those who identify with either of these causal narratives – whether on the right or on the left – are likely to have demands: demands for a more egalitarian distribution of resources, demands for the recognition of same-sex marriage or, at the opposite end of the political spectrum, demands for recognition of traditional family values. These demands are logically connected to legal claims, in the form of the recognition, on the left, of human dignity, equality rights and social welfare rights and, on the right, of a defence of public morality or national identity. EU law can be understood as a site of contestation for these different claims of recognition, and the courtroom as the stage of the ‘symbolic struggle’ of the competing world views they imply.Footnote ³²⁷ The CJEU has rejected all but the most centrist claims of recognition: that of judicial independence. Its technical but firm response to Member States which reject the Union’s imposition of solidarity regarding questions of migration during the migration crisis sends a clear message. Authoritarian claims of domestic competence over matters of law and order were categorically rejected,Footnote ³²⁸ a message unlikely to be received favourably by the semi-authoritarian voter base. Simultaneously, the Union also refuses to take up progressive claims about the preservation of abortion rightsFootnote ³²⁹ or the recognition of a Union right to same-sex marriageFootnote ³³⁰ as outside the scope of Union law, and thus as values unworthy of protection. To make matters worse, the way in which the Union has defended judicial independence rejects claims of recognition which seek a repoliticisation of domestic political spaces in favour of a continued and constitutionally anchored depoliticisation of national and supranational politics – itself one of the root causes of the rise of authoritarianism. The lack of recognition of such claims in the language of law is a troubling manifestation of the ‘symbolic domination’ of the law.Footnote ³³¹ If the Union and its CJEU in particular has become the guardian of the Union’s values, it also has become a censor of those legal claims of recognition not deemed important enough for the project of European integration.

The Union’s response to the rise of authoritarianism is best understood as a defence of centrist, technocratic values which will be disappointing to both to left-of-center and to right-of-center claims of emancipation, all of which fall on relatively deaf ears in the realm of EU law. They are meant to make do with an Ersatz for their grievances: a better protection of the judiciary. Rather than an emancipatory influence, Union law then becomes a polarising factor, and an alienating force for those European citizens who seek to resist what they deem to be forms of domination that originate in the European project itselfFootnote ³³² or forms of domination that originate in semi-authoritarian Member States.

If the revival of political messianism in the context of the rule of law crisis is problematic on several counts, the narrative behind the transformation of the Union’s constitution also stands out for its shallowness. It has been argued that, even in its best days, political messianism is intrinsically ‘self-referential and self-legitimating’.Footnote ³³³ Yet this seems true to an even greater degree for the narrative of this particular constitutional transformation. In its original version, political messianism was based upon a transformative vision for European society which sought a ‘fundamental restructuring of society and societal attitudes’.Footnote ³³⁴ Law was to be a means for the realisation of peace and prosperity on a continent disfigured by decades of conflict. Today, the transformative vision of Union law has become shallow, a shadow of its former self. In its current iteration, political messianism reveals the inward-looking attitude of European institutions towards the Union’s legal order. Other than the object and the instrument of European integration,Footnote ³³⁵ law appears to have become an end in itself. The ‘dream’Footnote ³³⁶ which once could inspire Europeans across the continent has become a legalistic tautology: the rule of law must be enforced as that is what the rule of law demands. Rather than a Court around which the Union could rally, as a representative of what Europeans shared,Footnote ³³⁷ the vision of the Union’s judiciary seems blurred by its own status interests, which the Union’s politicians seem unwilling or unable to look beyond. Rather than a genuinely transformative project, the constitutional transformation brought about by the rule of law crisis merely serves up the old wine of technocracy and juristocracy in new bottles.