The Rule of Law as a Constitutional Principle of the European Union

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The Rule of Law as a Constitutional Principle of the European Union


    Professor J.H.H. Weiler

    European Union Jean Monnet Chair

    Jean Monnet Working Paper 04/09

    Laurent Pech

    The Rule of Law as a Constitutional Principle of the European Union

     NYU School of Law ; New York, NY 10012

    The Jean Monnet Working Paper Series can be found at:

    All rights reserved.

    No part of this paper may be reproduced in any form

    without permission of the author.

    ISSN 1087-2221

    ? Laurent Pech 2009

    New York University School of Law

    New York, NY 10012


    Publications in the Series should be cited as:


    The Rule of Law as a Constitutional Principle of the European Union


     * Laurent Pech

    Abstract: The rule of law is one amongst a number of principles that are together regarded as under-girding the EU polity and common to the EU Member States. This paper first asserts that the rule of law can be accurately described as a ―common principle.‖ A series of ―shared traits‖ are outlined with respect to the three dominant constitutional traditions in Europe (England, Germany and France) and it is argued that these shared traits are sufficiently robust to amount to an identifiable common denominator. The meaning, scope of application and normative impact of the rule of law in the EU‘s constitutional framework is then explored in light of these shared traits. An attempt at distinguishing between the conventional and distinctive features of the EU rule of law is made. This paper suggests that similarly to national experiences, the EU rule of law has progressively and rightfully become a dominant organizational paradigm, a multifaceted legal principle with formal and substantive elements which nonetheless lacks ―full‖ justiciability. However, the EU rule of law also presents distinctive features which reflect the EU‘s original constitutional nature.

     *Lecturer in Law, Jean Monnet Chair in EU Public Law, National University of Ireland, Galway

    ( I am grateful for comments on earlier drafts by Paul O‘Connell, Tom Hickey, Dimitry Kochenov, Randy Peerenboom, Julian Rivers and Brian Tamanaha. I also wish to thank my colleagues at the NYU Jean Monnet Center for their helpful suggestions and good company.


Table of Contents

1. Introduction

    2. The Rule of Law in the EU Constitutional Framework: Preliminary Overview

    2.1. From Court‘s Dictum…

    2.2 …to a Formalized ―Constitutional‖ Principle

    3. A Principle Common to the Member States?

    3.1 Rule of law, Rechtsstaat and Etat de droit

    3.1.1 The Rule of Law in the English Legal Tradition

    3.1.2 Continental Variations on the Same Theme

    3.2 Unity and Diversity in the National Understandings of the Rule of Law 4. Shared and Distinctive Features of the EU Constitutional Principle of the Rule of Law

    4.1 Shared features

    4.1.1 The Rule of Law as a Foundational Principle

    4.1.2 The Rule of Law as an Umbrella Principle with Formal and Substantive


    4.1.3 The Rule of Law as a Rule of Law

    4.2. Distinctive Features

    4.2.1 The Rule of Law as a Politico-Legal Benchmark

    4.2.2 The Rule of Law as a Foreign Policy Objective

    5. Conclusion

Annex: References to ―the rule of law‖ in the case law of the EU courts (Sept. 2002-2008)


    ―If however we confined our observation to the Europe

    of the year 1889 we might well say that in most

    European countries the rule of law is now nearly as well 1established as in England.‖ (Dicey)

    ―[T]he rule of law remains a complex and in some 2respects uncertain concept.‖ (House of Lords)

1. Introduction

    In a landmark judgment, the European Court of Justice famously referred to the European Community (EC) as ―a Community based on the rule of law‖ inasmuch as neither the Member States nor the EC institutions can avoid review of the conformity of their acts with the EC‘s

    3―constitutional charter,‖ the EC Treaty. The Court has ever since continued to view the EC

    Treaty, albeit formally concluded in the form of a ―mere‖ international agreement in 1957, as the

    4constitutional document of a polity based on the rule of law. Remarkably, while the Court‘s

    constitutional narrative has been subject to ferocious criticism emanating from different

    5quarters, the reference to the traditional concept of the rule of law has been mostly welcomed even though this notion has mostly flourished and been theorized in the context of the nation-state. This positive response is not altogether surprising. Since the end of the Cold War, international organizations as well as national governments, regardless of the nature of their economic and political regimes, have been particularly keen to articulate their support if only

    6rhetorical for the rule of law. Indeed, the rule of law, which is regularly equated with the idea

    7of a ―government of laws, not of men,‖ is generally assumed including by the present author