Protecting the Rule of Law in the European Union

The present dissertation will deal with how the rule of law has been protected by the EU institutions in the last decades. The rule of law is a very complex notion which has its roots in ancient times. It has been conceived as an essentially contested concept because it has different understandings from a school of thought to another, however there are some common traits of it which make different scholars agree on the fact that the rule of law represents the power of the law over the arbitrary power of the man. Albeit very contested the rule of law has unified many Western countries and has become one of the founding values of the European Union. However, an illiberal trend which is spreading in the Eastern Europe has confirmed that these values, upon which the EU is grounded, can no longer be taken for granted in all the Member States. The illiberal democracies of Hungary and Poland are undermining the rule of law within their national borders and indirectly they are threating the whole European Union. This tendency cannot be underestimated. The EU must do whatever it takes to protect its values both and fight to keep its integrity. The negative impact of negotiating and compromising with the rule of law is unknown, but definitely huge. The EU institutions, particularly the EU Commission, have developed a bunch of tools to tackle the so-called rule of law crisis both using treaty-based instruments and new tools created ad hoc. Many infringement proceedings based on Article 258 TFEU have been triggered both against Poland and Hungary while Article 7 TEU has been used just once against Hungary. Unfortunately, none of these weapons have revealed successful and efficient enough to resolve the problems in the recalcitrant Member States and to prevent other countries from falling in the same situation. Perhaps this is the result of a too dialogical approach which has been used by the Commission to avoid a direct confrontation with those Member States. From 2020 the Commission has started focusing more on financial tools. The latter have the purpose of protecting the EU budget from a bad management which might be carried out in the Member States. Among the other instrument the Conditionality Regulation has been approved in 2020 and it is the first instrument which explicitly links the accession to the EU funds with the rule of law. However, the Regulation has been exploited only once against Hungary and many doubts about it still exist especially regarding its capacity of modifying in better the situation in the "rule of law deficient Member States". Other instrument approved under the umbrella of the Multiannual Financial Framework 2021-2027 seem to have a bigger impact in the protection of the EU budget and open many possibilities to link the disbursement of EU funds to rule of law "milestones" to be fulfilled in the Member States. This is a very particular stage for the European Union, new challenges like the pandemic and the Russian invasion of Ukraine may make the EU structure wave, however the European Union must not forget the potential negative impact of the rule of law crisis while dealing with these new challenges.