Strengthening the Rule of Law at the Supranational Level: The Rise and Consolidation of a European Network

Abstract

The aim of this article is to show how (new) modes of governance emerge in EU politics. It seeks to find out how European institutions manage to define new policy tools and modes of governance when their legitimacy is not only contested but it also reveals a regulatory gap. By examining recent debates concerning the ability of the EU to safeguard the rule of law at the supranational level, this article shows that in a field in which politicization raises the pressure to act at the EU level but member states do not delegate more hierarchical powers, the European Commission applies a network approach that spans beyond the EU. This article shows that, in order to strengthen the EU's input, output, and throughput legitimacy, the Commission is creating a complex multi-institutional framework and has introduced a ‘division of labour’ between several international bodies and organizations. The article focuses not only on the emergence of this network, but also on its evolution and expansion.

Keywords:

• rule of law
• politicization
• network
• spill in
• spill over

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

¹ V. Reding, ‘The EU and the Rule of Law: What Next?’, Speech/13/677.

² I am very grateful to the two anonymous referees and my colleagues from the Centre d'étude de la vie politique and the Institute for European Studies of the Université libre de Bruxelles for their appropriate and constructive comments and suggestions. I extend my thanks to Caroline Milne for her professional help in editing this article.

³ The list of documents is available at the end of the article.

⁴ I also examined the ‘memos’ produced by the Commission for the attention of the EP and the Council with regard to the attempts to clarify the approach to the rule of law and the establishment of the EU Justice Scoreboard.

⁵ Academics from the European University Institute, Princeton University, Heidelberg University, the British Institute of International and Comparative Law.

⁶ Open Society—European Policy Institute; Centre for European Policy Study; Democracy Reporting International; the Danish Institute for Human Rights.

⁷ The documents are available on the website http://ec.europa.eu/justice/events/assises-justice-2013/interventions_en.htm (last consultation February 2015).

⁸ While Jan-Werner Muller has depicted this institution as an alternative to the Venice Commission, Rui Tavares, in his report and contribution to the Assises de la Justice, did not exclude the cooperation between the Copenhagen Commission and the work carried out by the Council of Europe and other bodies (European Parliament, Report 2012/2130(INI)).

⁹ As Viviane Reding stated, the legitimacy of the Commission should be ‘properly recognized and possibly reinforced’ if the institution is ‘entrusted with an enhanced or new monitoring, supervision and enforcement role’ (Speech 13/677).

¹⁰ These forms of international collaboration between European and non-EU actors have attracted the attention of various scholars. For example, specialists in Justice and Home Affairs referred to ‘the externalization of EU governance’ (Lavanex, Lehmkuhl, and Wichmann 2010), while others demonstrated that in its attempts to respond to concrete policy issues and to avoid the limitations of the classical methods of integration—the community method and intergovernmental negotiations.

¹¹ See http://www.venice.coe.int/WebForms/members/countries.aspx (accessed February 2015).