This increase in references to the rule of law and the different importance given to its different components have been particularly noticeable in the area of EU external relations legislation and policy. See L. Pech “The EU as a Global `Rule of Law Promoter`: The Consistency and Effectiveness Challenges” (2016) 14(1) Europe-Asia Journal 7. The Court`s two judgments are as detailed as they are convincing. If a possible gap were to be identified, the Court`s recourse to the notion of (constitutional) identity could be considered unnecessary and perhaps imprudent. The primacy of EU law is a central element of our common legal order. While the Union must respect the specific national constitutional identities of its Member States, this does not alter the obligation of Member States to give full effect to Union law in their national legal orders. Constitutional identity should not be used as a pretext for departing from the fundamental principles of the rule of law. In order to ensure confidence in the EU legal order, the rule of law must be vigilantly protected at Union level. Resilience to threats to the rule of law requires positive action by the EU`s legislative and executive powers. EU values bind the EU institutions, bodies, offices and agencies, which must constantly strive to follow them in an exemplary manner.
In particular, respect for the rule of law safeguards EU decision-making processes and ultimately ensures equal treatment of all EU Member States. 272. Even though the provisions of art. 2 TEU, since the concept of the rule of law as a value of the Union is broadly defined, there is nothing to prevent the EU legislature from defining it more precisely in a particular area of application, such as budget implementation, for the purposes of establishing a financial conditionality mechanism. The Court, which exceptionally sat as a full Court, confirmed the validity of the Advocate General`s approach. footnote 38 As the Court points out, although Article 2 of Regulation (EU) No 2020/2092 does not specify the principles of the rule of law referred to therein, those principles have not only `been the subject of abundant case-law` but `have their origin in common values which are also recognised and applied by the Member States in their own legal orders`. Footnote 39 This means that no Member State can (seriously) claim that it is not in a position to “determine with sufficient precision” the content and legal requirements flowing from each of the principles of the rule of law listed in the Regulation. Footnote 40 The EU is founded on the rule of law: every action it takes is based on treaties that have been voluntarily and democratically adopted by all EU member states. Finally, several primary documents could be cited to demonstrate the prevailing concept of the rule of law as a fundamental principle that shares an essential and synergistic relationship with democracy and respect for human rights. To cite just two recent examples, reference should be made to a resolution of the Parliamentary Assembly of the Council of Europe on Poland, adopted in January 2020, and to the Regulation on Rule of Law conditionality, adopted by the European Parliament and the Council of the EU in December of the same year: a glimmer of hope on the horizon of the rule of law crisis in the EU is probably the many possibilities I have I would like to ask the Commissioner whether he is aware that the Commission has not yet presented a proposal for a directive on environmental protection in the Community. Similarly, one can perhaps be grateful for the conceptual challenge posed by national authorities pursuing regression strategies, as these have led the EU`s main political institutions to address definitional issues more vigorously than ever before, culminating in the inclusion of a detailed and enforceable definition of the rule of law in Regulation 2020/2092.
Finally, by calling into question the lawfulness of Regulation 2020/2092 and arguing that the rule of law `cannot be the subject of a uniform definition in EU law and must be specifically defined by the legal orders of each Member State` (Hungarian Government) and that, in any event, an EU budgetary regulation cannot `define the concept of the rule of law` (Polish Government footnote 35), these two “authoritarians” Footnote 36 provided the Court with a unique opportunity to engage in conceptual warfare. The doctrine of the Holy Crown refers to a historical concept of a constitution with significant symbolic significance for the continuity of the Hungarian state. It has been raised in debates on respect for the EU rule of law. The Advocate General therefore considers the complaints raised by the Hungarian and Polish courts, which in particular reject a breach of legal certainty. Indeed, the EU co-legislators have only developed the value of the rule of law by clarifying the fundamental legal principles that this value embodies, all of which are based on the Court`s case-law and are also guaranteed by the European Court of Human Rights. The indicative list of areas where breaches of the principles of the rule of law may occur and the examples cited by the EU legislature in Regulation 2020/2092 show that the EU legislature genuinely seeks to increase legal certainty. In the context of the increasing regression of the rule of law in the EU, the European Commission has presented the rule of law as an established and clearly defined principle, the essential meaning of which is also shared as a common value by all Member States. By contrast, the national governments of the two EU countries, both subject to EU special procedures because of the systemic threat to the rule of law caused by their repeated actions, argued that the rule of law is not and cannot be defined in EU law.