The concept of the rule of law in the EU external action

Conceptual problématique of the rule of law

The rule of law represents an "expansive” and "essentially contested" concept, characterized by multi-aspect problématique, including unclear relations to other concepts, and varying interpretations in scholarship (Fallon, 1997; Waldron. 2002). These understandings vary from associating the rule of law with the formal presence of transparent and predictable rules to complex conceptualizations, entailing formal, substantive and institutional aspects. While these understandings are not mutually exclusive, the difficulties emerge on the rule of law’s path from a theory to the "solution of the world's troubles” (Ringer, 2007, p. 178) and the objective of reforms, funded by international donor institutions. The global “conceptual anarchy” (Ibid.} surrounding the rule of law, divergent constitutional traditions of EU Member States and the peculiarities of supranational EU law turn the solidification of the EU's rule of law concept into a uniquely challenging task. Hence, this chapter will discuss the status of the rule of law in the EU legal system, as well as the relevant theoretical approaches to conceptualizing the rule of law.

1. Rule of law in the EU legal order

Marked by both structural and aspirational nature, "the rule of law already manifests itself in the very existence of the Union and its predecessors” (Larik, 2016, p. 220). Addressing the European Economic Community (EEC) as a "phenomenon of law” (Hallstein, 1979, p. 51), the first EEC President Walter Hallstein coined the notion of Rechtsgemeinschaft (addressed in English-language scholarship as a "European supranational legal community”) and, subsequently, gave rise to the theory of European integration though law” (Muller, 2012, p. 10). Importantly, Hallstein conceptualized the Community as Rechtsgemeinschaft in four senses: as a creation of law (Rechtsschopfung}, a source of law (Rechtsquelle), the legal order (Rechtsordnung) and a legal policy (Rechtspolitik) (Hallstein, 1979, p. 53). In terms of the first connotation, Hallstein emphasized the fact that the Community was not just an economic but a legal project, wherein the relations between the Member States and their relations to the Community had to be governed by law, rather than economic power or force (Tuori, 2015, p. 213). In turn, ensuring such a functioning of the Rechtsgeineinschaft requires strong Rechtsstaat or the rule of law.

Since the concepts of the Rechtsgeineinschaft, Rechtstaat and the rule of law significantly differ in their substance (Tuori, 2015, p. 213), the European Court's of Justice (ECJ’s) referral to the former European Community (EC) as a “Community based on the rule of law” in its Les Verts judgement brought about crucial conceptual disarray.^[1] The Court underlined that the rule of law plays a founding role for the Community "inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional Charter, the Treaty”, thus, evoking the components of both Rechtsgeineinschaft and Rechtstaat.- The analysis of the described formula leads us to three takeaways important for understanding the rule of law concept within the legal system of the EU as a successor of the European Community.

First, the Court implicitly addressed the rule of law as a "positive good in itself’ (Pech, 2009. p. 13) or, put it differently, as a value. Second, since this formulation defines the Treaty as a Constitutional Charter, the rule of law can be regarded as a constitutional principle of the EC to be upheld not only by the ECJ, but national courts that become "decentralized” Union courts (Reding. 2013). Third, the Court approached the rule of law in the EC from the formal standpoint, primarily associating it with the EC institutions and Member States being subject to the rules, contained in Treaties, rather than the substance of Treaty rules.

The rule of law was the first time formalized in the Preamble of the TEU(M), which reflected the Member States’ “attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law”. This reference did not, however, either define the status of the rule of law or refer to its substance. Art. 6( 1) of the Treaty of Amsterdam (TEU [A]) mentioned the rule of law among the principles the Union is founded upon. Moreover, the TEU(A) pioneered in introducing sanctions for the Member States’ “serious and persistent breach . . . of principles, mentioned in Art. 6(1) TEU (A) and Art. 49 TEU (A)” (respect for the rule of law as a criterion for the EU accession). Art. 11(1) TEU(A) also mentioned the rule of law among the objectives of the Union’s Common Foreign and Security Policy (CFSP). Thus, particularly the TEU(A) reaffirmed the constitutional nature of the rule of law for the EU legal system, giving rise to its conceptualization as a “meta-norm” pertaining to both the EU and its institutions, and the Member States (Palom-bella, 2009).

As opposed to Art. 6( 1) TEU(A) that viewed the rule of law as a founding principle of the Union, Art. 2 TEU as modified by the Lisbon Treaty mentions the rule of law among the EU’s common values. Such a vocabulary change was repeatedly assessed by scholars as “regrettable”, since the concept of founding principles "expresses the overarching normative frame of reference for all primary law, indeed, for the whole of the EU’s legal order” (von Bogdandy, 2010, p. 22). Nevertheless, the analysis of the further referrals to the founding values in EU primary law reveals that the change of wording (though, hard to explain) is most likely unrelated to any ideas to change the nature or substance of the founding principles as formulated by Art. 6(1) TEU(A). On the contrary, the Treaty of Lisbon (TEU[L]) consolidated the functions the rule of law plays in the EU legal order. Alongside Art. 2 that refers to the rule of law as a fundamental value. Art. 3(1) and 13(1) TEU position the rule of law as an objective of both the EU and its institutions. Next, the TEU(L) mentions the rule of law among the criteria for EU membership. Furthermore, following the trend to the constitutionalization of foreign policy objectives (Larik, 2016), the TEU(L) distinguishes the promotion of EU values, including the rule of law, as a general objective of the whole spectrum of EU external policies.

Despite the detailed regulation of various functions of the rule of law in the TEU(L), it did not shed light on the substance of the rule of law. However, important developments of the EU rule of law agenda took place due to the ongoing rule of law crises in Poland and Hungary. First of all, the "Great Rule of Law Debate” led to the acknowledgement of the lack of genuinely common understanding of the rule of law as a crucial reason behind Member States’ non-compliance with the foundational rule of law requirements, such as judicial independence and impartiality (Kochenov, Magen and Pech, 2016). It was also stressed that, alongside Art. 7 TEU, offering a straightforward way to address a breach via sanctions, the EU has lacked instruments to react to Member States’ non-compliance with fundamental values. Having recognized the rule of law problem but being reluctant to immediately proceed with sanctions, the European Commission started with introducing a new EU Framework to Strengthen the Rule of Law (“2014 Rule of Law Framework”).

Conceived as an early warning tool to address the rule of law threats through the dialogue with a concerned Member State, the 2014 Rule of Law Framework applies the consensual approach to the rule of law, introduced by the Venice Commission. Even though the Framework allows for a particular degree of vagueness to accommodate differences in Member States' constitutional traditions, the Commission’s first attempt to map the substance of the rule of law testifies to the ongoing consolidation of the concept at the Union level. Importantly, the formulation of Art. 2 l(2)(a) TEU (“The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields

¹

European Commission, Communication to the European Parhament and the Council: A New EU Framework to Strengthen the Rule of Law, COM (2014)158 final/2 of 19 March 2014.

of international relations, in order to (a) safeguard its values”, emphasis added) points to an immediate notional link between the Union’s understanding of the rule of law as a fundamental value of the Union and an objective of the EU external action. Subsequently, the adoption of the Rule of Law Framework is crucial not only for streamlining the protection of the rule of law as a fundamental value but defining the substance of this concept that can be, inter alia, extrapolated to the EU enlargement and external action.

The second significant trend that emerged as a result of the intra-EU rule of law crises has been the elaboration of new instruments to promote the rule of law. In this vein, the Commission’s 2019 Communication “Strengthening the rule of law within the Union. A blueprint for action” introduced the Rule of Law Review Cycle and Annual Rule of Law Report to both monitor significant developments in EU Member States and engage into dynamic dialogue with them. Thus, although the rule of law crises in the EU were not yet resolved, and the infringement procedures are ongoing, the Great Rule of Law Debate in the EU promoted the search for a consensual concept of the rule of law.

2. Scholarly approaches to the substance of the rule of law

The easiest-to-capture controversy in the rule of law debate relates to its substance. Such a controversy manifests itself in the co-existence and complex interplay of formal (including institutional) and substantive approaches to the rule of law in the doctrinal interpretation of the concept and the rule of law promotion practice. The core of the formal approaches to the rule of law directly stems from the opposition between the “rale of law” and the “rale of men”, i.e. “the condition of government absent of law, where men rale, according to their fancies, not according to general rales” (Cheesman, 2015, p. 20). In turn, alongside the prevention of the "rale of men” through effective and binding rales, substantive approaches to the rale of law zoom in on the contents of legal regulations. Both approaches are considered in more detail in what follows.

Formal perspectives on the rule of law

Focusing on the ways to effectively bind the governments, the main representatives of the formal approach, such as the Israeli philosopher Joseph Raz (1979) and the British constitutionalist Albert Venn Dicey (1985), emphasized clear, prospective and predictable rales as the foundation of the rale of law. In this vein, Raz (1979) argued in favour of a clear distinction between the rale of law and other features of the political and legal systems, such as democracy, justice and the protection of human rights. The impressive formality of Raz’s approach to the rale of law is manifested by the fact that he “readily admits that the rale of law

¹

European Commission, Communication to the European Parliament and the Council: Strengthening the role of law within the Union. A blueprint for action, COM/2019/343final of 17 July 2019.

The rule of law in the EU external action 15 could be met by regimes, whose laws are morally objectionable, provided that they comply with the formal precepts that comprise the rule of law” (Craig, 1997, p. 468). According to Raz (1979), these formal precepts of the rule of law include prospective nature, openness and clarity of laws; relative stability of laws; open, stable and clear rules of law-making; guaranteed independence of the judiciary; observance of the principles of "natural justice” (p. 217) (open and fair hearing, the absence of bias etc.); review powers of the courts; and accessibility of courts and limited discretion of the crime-preventing agencies.

Although Raz (1979) tries to distinguish the rule of law from other features of government, the analysis of formal approaches to the rule of law, introduced by him and other scholars, reveals tight links between the formal rule of law, on the one hand, and equality, fairness and the protection of individual rights, on the other hand. First, he himself goes beyond the solely formal approach to the rule of law, when mentioning the concept of "natural justice”, characterized by profound substance. Second, the fact that Raz (1979, p. 217) mentions that "the courts should be easily accessible” among the formal precepts of the rule of law, can be interpreted as individuals’ right to equal access to courts. Third, the non-arbitrariness of the state’s actions, mentioned by Locke (2015), Dicey (1985) and Hume (1994), is widely recognized as a prerequisite of equality and fairness. In particular, the prohibition of arbitrary punishments and individuals' equality before the law represent two out of three components of the Dicey's famous three-element formula of the rule of law. Relevant for the British legal system, characterized by the absence of the written Constitution, the third element of the Dicey's formula stipulates that “the Constitution (the law) is the result of previous judicial decisions, determining the rights of private persons” (Dicey, 1985, p. 349). Despite these links to substantive issues, the key problem with the formal conceptualizations of the rule of law is that it can be, nevertheless, observed by undemocratic regimes that deny human rights and practice racial segregation or religious persecution.

Substantive approaches to the rule of law

Adherents to the substantive perspective of the rule of law argue that the formalist view of the concept contributes to the government's "rule by law”, rather than bounds the state to treat individuals acceptably (Tamanaha, 2005, p. 92). An emphasis on the contents of the law dates back to Aristotle, who argued that "laws, when good, should be supreme” (Frank, 2007, p. 37). While recognizing that the rule of law serves an important purpose of countering the rule of men. John Locke (2015) linked the rule of law to “peace, safety and the public good of the people” (p. 68). A similar position was expressed by Dworkin (1986), who views formal rules as a crucial means of enforcing moral rights and substantive justice (pp. 11-12).

In Germany, the opposite to the formal rule of law (fortnaler Rechtsstaat) is represented by the concept of the material rule of law (jnaterieller Rechtsstaat). According to Kelsen (2009), the notion of the “formal rule of law” applies to asituation, where a state bases its action on its legal order - independent on the specific substance of such order (p. 121). On the contrary, materieller Rechtsstaat requires particular institutions, such as the democratic law-making, responsibility of the executive, observance of the individual freedoms, independent judiciary and the presence of administrative courts system (Verwaltungsgerichtsbarkeit) (Ibid., p. 45). Having been first applied in the legal tradition of the Weimar Republic (1919-1933), materieller Rechtsstaat gained the new momentum in the value-based order, created by the German Basic Law (Grundgesetz für die Bundesrepublik Deutschland) (Enzmann, 2012, pp. 51-57). The modem concept of materieller Rechtsstaat emphasizes material justice (materielle Gerechtigkeit) and the need for ensuring the order, directed to the public good (am Gemeinwohl orientierte Ordnung) (Ibid., p. 51). Thus, beyond the formal characteristics of laws, the substance of the respective concept encompasses human rights (including socially ensured rights to education and healthcare), and justice. Interestingly, while Kelsen (2009) tended to underline the importance of democratic institutions and processes for the material rule of law, nowadays materieller Rechtsstaat is viewed not only as means to promote human rights observance and justice but limit the discretion of the parliamentary majority (Möllers, 2008).

In English legal scholarship, the three-level substantive conceptualization of the rule of law was developed by Lord Tom Bingham (2011). As opposed to the German concept of the material rule of law, Bingham's model is strongly rights oriented, rather than focusing on justice and social security dimensions. The basic level of Bingham’s understanding of the rule of law is founded on the principle that “all persons and authorities within the state, whether public or private, shall be bound by and entitled to the benefit of laws, publicly made, taking effect (generally) in the future and publicly administered in courts” (Bingham, 2011, p. 13). The second level encompasses several normative principles, such as the clarity of laws, everybody's equality before the law, limits to authorities’ discretion and fair adjudicative procedures (Ibid.). Finally, underlining that the genuine rule of law goes beyond institutional and procedural benchmarks. Lord Bingham (2011) distinguished adequate protection of human rights, and a state’s compliance with its international obligations as the necessary substantive elements of the rule of law.

Substantive elements of the rule of law are present across a broad array of the conceptualizations of the rule of law, applied by international organizations. For instance, the United Nations (UN) views “accountability to laws, consistent with the international human rights norms and standards”, “strengthening states' compliance with international law” and "fostering an enabling environment for sustainable human development”. Similarly, the OSCE vision of the Rule of law is strongly linked to the "fulfillment in good faith of obligations under international law”, “justice, based on the recognition and full acceptance of the supreme value

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United Nations Secretary-General, Report “Delivering Justice: Programme of Action to Strengthen the Rule of Law at the National and International Levels”, A/66/749 of 16 March 2012.

The rule of law in the EU external action 17 of human personality” and democracy and human rights.^[2] Finally, the Council of Europe's concept of the rule of law also includes respect for human rights and compliance with international law. Thus, in the post-World War era, marked by a uniquely strong common ambition to sustain the hard won peace, substantive components of the rule of law have become an essential for the international rule of law effort. In view of all of this, this book will adhere to the substantive approach to the rule of law, considering human rights to constitute a part of the concept. At the same time, given the fuzzy boundaries between democracy and the rule of law in the EU external action, further analysis is needed to draw the boundaries between democracy and substantive rule of law, and between the rule of law and democracy promotion.

3. Relationship between the rule of law and democracy

in the EUpolitical and legal orders

Similar to the rule of law, the concept of democracy lacks a unified understanding in the EU constitutional law, with multiple variations of democratic models, suggested in scholarship, and a long-lasting debate as to countering the EU "democratic deficit” (e.g. Moravcsik, 2004; Follesdap and Hix, 2006; Innerarti, 2018) In conceptual terms, the EU’s understanding of democracy is claimed to be founded on the classical "liberal” or "Lockean” view (Merkel, 2004, pp. 34-35). According to this understanding, "the democratic process accomplishes the task of programming the government in the interest of society, where the government is represented as an apparatus of public administration, and society as a market-structured network of interactions among private persons” (Habermas, 1996. p. 21). In practice, such a programming takes the form of “collective decision-making, characterized by the kind of equality among the participants of the decision-making process” (Christiano, 2004, p. 266).

Despite the rigorous academic discourse on the applicability of the notion of Demos to conceptualizing EU democracy, "the institutional model of the nationstate theory of democracy” (Nettesheim, 2005, p. 371) is used to discuss democracy and its peculiarities in the Union. According to Art. 10(1) TEU, "the functioning of the Union shall be founded on the principle of representative democracy”. Institutionally, the EU model of democracy is marked by the presence of two pivotal channels of democratic representation: Member States' representation in the European Council and in the Council by their democratically accountablegovernments and citizens' direct representation in the European Parliament. Additionally, the Lisbon Treaty reinforced the intra-EU democracy by strengthening the role of national parliaments in the EU decision-making processes (Art. 12 TEU) and introducing the European Citizens' Initiative (Art. 11 [4] TEU). In turn, citizens’ rights to representation, openness of decision-making procedures and the application of the principle of subsidiarity, provided for in Title II TEU, can be distinguished as functional prerequisites of the EU democracy.

While the substance of the EU model of democracy is shaped by the peculiarities of the EU as a sui generis legal entity, the democratic model the Union seeks to promote abroad has long been a contested issue in scholarship (e.g. Merkel, 2004; Wetzel, 2015). Simultaneously, a number of authors stress the technocratic nature of the EU’s rule transfer under the auspices of democracy promotion (e.g. Radaelli, 1999; Korosteleva, 2016). Mapping the substance of the Union’s external democracy promotion, Wetzel (2015) applies the complex "embedded democracy” model (Merkel, 2004, p. 33), developed by the German political scientist Wolfgang Merkel. In his model, he distinguished five internal characteristics of democracy (or "partial regimes” (Merkel, 2004, p. 33)), such as electoral regime, political rights, civil rights, horizontal separation of powers and elected officials' effective power to rule. In turn, external conditions of democracy, emphasized by Merkel (2004), are the degree of socio-economic development, functioning civil society, as well as international and regional integration.

The analysis of the EU internal and external perspectives on democracy, and substantive conceptualization of the rule of law, allows distinguishing a range of shared components. The key component, shared by the concepts, is represented by the focus on civil rights that Merkel (2004) explicitly links to the protection of an individual from violations of own rights by the state or private parties. Moreover, virtually all models of democracy, including “embedded democracy”, encompass political or citizens’ rights, such as the right to vote and stand as a candidate at elections, right to good administration, right of access to documents and right to petition, contained in Chapter V of the EU Charter of Fundamental Rights (CFR). Second, the conceptualizations of both democracy and the rule of law tend to refer to the delineation of powers between authorities, the checks and balances system, and accountable and transparent law- and decision-making procedures. In the rule of law-related understanding, the delineation of powers between authorities and the functioning "checks and balances” system represent the essential prerequisites for the observance of the legality standard that requires inter alia authorities’ compliance with laws. Simultaneously, the separation of powers and, especially, the limitedness of the executives’ powers are necessary for ensuring the proper role for a parliament within the representative democracy system. The system of powers' delineation becomes even more complex in the case of the EU, where the Member States' and citizens' representation co-exist. With regard

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Charter of Fundamental Rights of the European Union, OJ C 364/101 of 18 December 2000, pp. 1-17 (hereinafter referred to as “CFR”).

to both democracy and the rule of law, the institutionalized practices of public accountability serve as crucial means to ensure officials' adherence thereto. In turn, exercising public accountability requires openness and transparency of law-and decision-making processes. Scholars’ confidence in the inextricable nature of the relationship between the rule of law and democracy (e.g. O'Donnell, 2004), and important components they share, raise a question regarding the concepts’ interdependence and functions they fulfil with respect to each other. Can the rule of law exist in a non-democratic state or can democracy function under no rule of law? What is the relationship between democracy and the rule of law, on the one hand, and human rights, on the other hand? Answers to these questions significantly depend on one’s understanding of the very idea behind the rule of law and democracy and the choice of conceptual premises for the analysis.

Understood in formal terms, the rule of law can exist in an authoritarian state, where human rights are poorly observed. The case is more controversial with the substantive rule of law. Theoretically, one can argue that substantive rule of law requirements can be fulfilled within the authoritarian state, provided that such state observes individual human rights. In the same vein, Mollers (2008) states that democracy shall be associated with the particularities of the decision-making, while the outcomes of such processes (e.g. a majority’s decision to violate minority rights) do not anymore belong to the concept of democracy. However, the essential nature of political rights for both the rule of law and democracy, and the fact that political rights’ violations are typical for states, testify to the tight nexus between the rule of law and democracy.

Despite the scholarly criticism regarding the formal approach to the rule of law, particularly formal characteristics of the rule of law serve as crucial prerequisites for both democracy and the observance of human rights. Sufficiently general, publicly promulgated prospective rules public institutions comply with serve as the fundamental basis for creating transparent, accountable and inclusive processes that lie at the heart of democracy. Next, the formal rule of law principle is essential for ensuring the functionality of a classic liberal govermnent, wherein the state takes “its traditional minimalist, night watchman form” (Stewart. 2004, p. 136), the powers are separated and the exceptions to democracy and fundamental rights are stipulated in laws. As it can be exemplified by Art. 51-52 CFR. the rule of law principle presupposes multiple limitations to an individual's discretion, such as an individual's and institutions' obligation to comply with laws, the separation of powers and, finally, the requirement of lawfill exceptions to fundamental rights and democratic processes. Different from the formal rule of law, both the British substantive rule of law concept and the German material rule of law (niaterieller Rechtsstaaf) are broadly understood as a means to limit the discretion of the ruling majority. In scholarship, a similar role is attributed to individual rights that are included in the core of the substantive rule of law. Importantly, the rule of law-democracy nexus shall not be viewed as a one-way road, where the rule of law contributes to creating an "enabling environment” for democracy and limits the discretion of democratically elected officials. Various components of democracy also facilitate the rule of law. For instance, as argued by Merkel (2004), compliance with laws and their social acceptance depend on the properties of processes through which laws are enacted, such as transparency, accountability, deliberative nature and exclusiveness.

The preceding analysis reveals that, despite the “inextricable linkage” between the concepts of democracy, the rule of law and human rights, they require delimitation in both the theory and practice of international value-promotion. In practical terms, such delimitation is of particular importance in view of the far-reaching critique of the EU and others international actors’ technocratic or “institutions-only” approach to value-promotion that focuses on institutional capacities, rather than carefully applying the rule of law and democracy concepts to particular political and socio-economic contexts.

• [1] European Court of Justice, Parti écologiste “Les Verts’TEuropean Parliament, Case294/83, Judgment of 23 April 1986. 2 Ibid., para 23. 3 Treaty on European Union, OJC191of29 July1992, Preamble; hereinafter refereed to as “TEU(M)”. 4 Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts, OJ C 340 of 10 November 1997; hereinafter refereed to as “TEU(A)”.
• [2] Conference on Security and Cooperation in Europe, Helsinki Final Act, 1975. [online] Available at: www.osce.org/helsinki-final-act7downloadMrue; Conference on the Human Dimension of the CSCE, Concluding Document of the Copenhagen Meeting, 1990. [online] Available at: www.osce. org/odihr/elections/14304?download=true. 2 European Commission for Democracy through Law, “Rule of Law Checklist”, Study No 711/2013 of 18 March 2016. [online] Available at: www.venice.coe.int/webforms/documents/default. aspx?pdffile=CDL-AD(2016)007-e (hereinafter referred to as “Venice Commission Rule of Law Checklist” or “The Rule of Law Checklist”).