Delineating the rule of law is a task worthy of several books in and of itself. Though it forms one of the core governance principles of modern states, the rule of law remains an elusive concept that has been defined in numerous ways throughout its rich history.Footnote 1 My aim here is not to recreate this history in all its glory. Instead, I merely seek to elucidate this concept for the purpose and context of this book. This means that my conceptualisation of the rule of law will be limited to its implications for the actions of public authorities and, more concretely, authorities that are part of the executive branch of power. As I already noted in the Introduction, while the rule of law also plays an important role in the organisation of relationships between private parties,Footnote 2 this falls outside the scope of my analysis.
In this chapter, I will first examine how the rule of law has been defined in legal theory, and how it has been distinguished from the rule by law, which is a distortion thereof (Section 3.1). Second, I will assess how the rule of law has been conceptualised in the context of the EU, as this book focuses primarily on the EU legal order (Section 3.2). In this regard, I will also draw on the acquis of the Council of Europe. The Council of Europe is a distinct jurisdictional order, yet it heavily influenced the ‘EU’ conceptualisation of the rule of law, and the EU regularly relies on Council of Europe sources in its own legal practices. Finally, I will draw on those findings to identify the rule of law’s core principles and to distil the concrete requirements that public authorities must fulfil to comply therewith (Section 3.3). Identifying these requirements – and the inherent challenges to achieve them – will subsequently allow me to build a normative analytical framework that I can use as a benchmark in Chapter 4 to assess how algorithmic regulation impacts the rule of law, and how it can lead to algorithmic rule by law.
3.1 A Theoretical Introduction to the Rule of Law
Before diving into primary sources of law, I will first consider how the rule of law has been conceptualised in legal theory and how it has been distinguished from other values, as this will provide a useful foundation to examine the role of this concept in the EU legal order later on. In this section, I start by setting out the various ways in which the rule of law has been defined thus far (Section 3.1.1) and conclude that – despite the fact that it is often conceptualised as a list of principles – there is something that can be called the ‘spirit’ of the rule of law which captures the protective role it plays in liberal democracies, beyond any formal list (Section 3.1.2). Building on this observation, I then distinguish between formal and substantive conceptions of the rule of law and underline that, in this book, the emphasis will lay on the latter (Section 3.1.3). Finally, I discuss the relationship between the rule of law and illiberal and authoritarian practices, by distinguishing the rule of law from the rule by law – a distinction that is central to this book’s argument (Section 3.1.4).
3.1.1 A Plethora of Definitions
The idea behind the rule of law dates back at least to ancient times.Footnote 3 Aristotle alluded to it in several of his works and most famously in his Politics, where he insisted on a ‘rule of law’ rather than a ‘rule of man’,Footnote 4 given that “he who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men”.Footnote 5 For Aristotle, not only citizens, but also ‘the guardians of the law’ ought to obey the law.Footnote 6 A similar idea was espoused by other Greek thinkers. Mirko Canevaro offers the example of an oration by Hypereides, who led the Athenian resistance against King Philip II of Macedonia and Alexander the Great, stating that: “For men to be happy they must be ruled by the voice of law, not the threats of a man; free men must not be frightened by accusation, only by proof of guilt; and the safety of our citizens must not depend on men who flatter their masters and slander our citizens but on our confidence in the law.”Footnote 7
Evidently, the notion of the rule of law in the fourth century BC does not fully coincide with its modern version(s), yet one can reasonably argue that its essence was already present back then. Both quotes express a clear opposition against governance through arbitrary rules that depend on the whims and interests of the people who happen to be in power. Both accounts argue in favour of governance through legal rules as a remedy against the arbitrariness of man. And both consider that, by placing confidence in ‘the voice the law’, which subjects rulers and the ruled alike to norms that are stable and bidding to reason, the corrupting nature of power can be curbed, and the liberty of citizens can be protected. This is also the spirit behind the concept of the rule of law that was espoused by more modern theorists, both in the European continent and in the Anglo-American world.Footnote 8
One of the most influential conceptualisations of the rule of law stems from A. V. Dicey, a nineteenth-century British constitutional theorist.Footnote 9 Of particular interest is Dicey’s caution against arbitrary rule-setting by the executive power, which he pronounced against the background of the enlargement of the state and its functions, and the birth of modern bureaucracy.Footnote 10 He put forward three essential principles that underlie the ‘rule or supremacy of the law’ in the British legal system, namely: (1) the need to curb the exercise of arbitrary power by persons in authority (non-arbitrariness of power); (2) the subjection of every man, whatever his rank or condition, to the ordinary law of the realm by ordinary tribunals (equality);Footnote 11 and (3) the protection of individual rights through general rules of constitutional law based on common law remedies, rather than a written constitution or Bill of Rights (general principles through common law).Footnote 12 While, as I will discuss below, the first two principles resonate with other rule of law-conceptions in Europe, the third principle clearly denotes a dissociation from the continental legal system,Footnote 13 seemingly implying that the rule of law is inherently a common law concept. This view has been criticised,Footnote 14 yet for the purpose of this book, we can bracket this discussion and continue exploring other rule of law conceptions. After all, Dicey arguably did not intend to put forward a general constitutional theory, but rather aimed to set out the principles of ‘British constitutional law’.Footnote 15
Dicey was not the only one whose fears of an unbounded administrative state or Leviathan proved particularly conducive of rule of law-theorising.Footnote 16 For Friedrich Hayek, who explicitly drew on Dicey’s work,
nothing distinguishes more clearly conditions in a free country from those in a country under arbitrary government than the observance in the former of the great principles known as the Rule of Law. Stripped of all technicalities, this means that government in all its actions is bound by rules fixed and announced beforehand – rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge.Footnote 17
Another influential account of the rule of law can be found in Lon Fuller’s The Morality of Law, in which eight elements are put forward as “the morality that makes law possible”. Footnote 18These concern the fact that (1) there should be general rules that can be applied to concrete cases (generality), (2) the rules should be made public so that those subjected thereto can know them (publicity), (3) the rules should be adopted before they are being applied to concrete cases (prospectivity), (4) the rules should be clear and understandable (intelligibility), (5) the rules should not contradict each other (consistency), (6) it should be possible practically to conform to the rules (conformability), (7) the rules should be relatively stable over time (stability) and (8) the application and implementation of the rules by the state should correspond with the promulgated rules (congruence). Fuller’s rule of law conceptualisation can be described as an anatomical or list-based approach, as it offers a list of features that the law should have to speak of its morality and hence of its legal character.
A similar approach was also embraced by Lord Bingham, whose list is slightly different.Footnote 19 His eight rule of law ingredients comprise the fact that: (1) the law must be accessible and so far as possible intelligible, clear and predictable (accessibility); (2) questions of legal right and liability should be resolved by application of the law rather than by arbitrary discretion (non-arbitrariness); (3) the laws of the land should apply equally to all, save to the extent that objective differences justify differentiation (equality); (4) public officers must exercise the powers conferred to them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding those powers’ limits, and not unreasonably (fair and reasonable exercise of power); (5) the law must afford adequate protection of human rights (human rights); (6) means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes (means for dispute resolution); (7) adjudicative procedures provided by law should be fair (fair trial); and (8) the rule of law requires compliance by the state with its obligations in international law as in national law (respect for the international legal order).
3.1.2 The Spirit of the Rule of Law
List-based approaches have been criticised as overly focusing on the formal features of the law, rather than considering the purpose that underlies these principles.Footnote 20 Without a consideration of the rule of law’s underlying purpose, the danger exists that its principles are applied in a way that does not actually achieve their aims. Martin Krygier therefore argued in favour of a ‘teleological’ approach to the rule of law, inviting reflection on the overarching purpose or ‘spirit’ of this concept.Footnote 21 In short, a teleological approach focuses on the why rather than the what. Once we identified this ‘why’, we can use it as normative guidance for institutional design and action, rather than being fixated on the list of its constitutive elements. The question is hence: what is the purpose or spirit of the rule of law?
Of course, that goal may be manifold when considered from the point of view of various actors, and it is also likely to be defined differently by different people. Yet if we consider a contextual approach in light of this book and focus on the role it plays in the public sector, it can be reasonably argued that the rule of law entails a commitment to set limits to the exercise of public power in order to ensure legal accountability and to safeguard human liberty, dignity and agency.Footnote 22 By subjecting public authorities to the law and ensuring their actions can be reviewed against that law, natural and legal persons are protected against overly broad encroaches on their rights and freedoms. Moreover, the fact that public authorities are bound by rules that are proclaimed in advance also enables citizens to plan their lives in accordance with those rules.Footnote 23
The chief merit of the teleological approach to the rule of law is that it puts this overarching purpose into perspective. The rule of law is not a goal in and of itself that should be fetishised, but a means that can help achieve other related values, such as the protection of human rights and public accountability, and thus democracy.Footnote 24 Based on that purpose, one can then logically derive that the features that the legal system must have in order to ensure the realisation of the rule of law’s spirit, such as the need for public authorities to comply with the law and the ability to hold them to account when they do not, as well as the need for the law and its application to be foreseeable, accessible and intelligible. This order of things is important, as the rhetoric of the rule of law can also be abused. As noted by Dixon, given the complexity of the ideal of the rule of law, it is “especially susceptible to superficial forms of abusive borrowing”, a practice she describes as “involving the use of one or more related techniques, namely radical: (1) superficiality, (2) selectivity, (3) decontextualisation, and (4) anti-purposive usage in the application of liberal democratic norms”.Footnote 25 When focusing solely on an anatomical or list-based approach, there is thus a risk that public authorities select only those principles on the list that suit them and that may be used precisely to undermine the underlying spirit of the rule of law. I will come back to this risk when distinguishing the rule of law from the rule by law.
3.1.3 Formal and Substantive Notions of the Rule of Law
Related to this discussion is the question whether the rule of law embodies only procedural aspects of the law, or whether it also covers substantive elements. Does the rule of law have anything to say about the law’s substance, such as the fact that it should be compatible with human rights and with democratic principles? Or are ‘human rights’ and ‘democracy’ distinct notions that are not part of the rule of law’s spirit? Glancing again over the descriptions above, one can note that respect for human rights is, for instance, featured in the ‘ingredients list’ proposed by Lord Bingham, but does not appear in the account of Lon Fuller. These conceptual differences lay at the heart of the distinction between formal and substantive notions of the rule of law, also referred to as thin and thick notions.Footnote 26
Formal or thin conceptions of the rule of law attach importance to the procedural aspects of the law’s promulgation (Was the law enacted through a valid procedure? Was the norm made public and is it sufficiently clear to safeguard legal certainty? Is the law administered by an impartial and independent tribunal?). However, as explained by Paul Craig, such conceptions “do not seek to pass judgment upon the actual content of the law itself”.Footnote 27 This does not necessarily mean that those who support such thin conceptions do not care about matters like human rights and democracy. However, they consider these aspects to be embodied by values other than the rule of law. In contrast, substantive rule of law notions are ‘thicker’ since they suggest that any rule of law definition, in addition to formal requirements, should also comprise a minimum of substantive requirements regarding the content of the rules and the type of procedure to enact them. In fact, they believe such substantive requirements to be an inevitable part of the rule of law, since the line between substance and procedure is too blurred to draw, and both aspects are inherently entwined.Footnote 28
The distinction between formal and substantive notions of the rule of law can arguably be seen as part of the broader distinction between two major strands in legal philosophy: positivism and naturalism. The former (on which the formalistic rule of law notion is based) holds that the authority of law stems from the validity of the procedures by which it is adopted, while the latter (corresponding to a substantive notion of the rule of law) holds instead that the authority of law also depends on a substantive standard based on which its content can and should be judged.Footnote 29 Hence, under a substantive view, immoral laws (such as those enacted in Nazi Germany, for instance) should not be considered as law at all, even if clear, publicly proclaimed and adopted by the established procedure. It is, in fact, precisely in reaction to these atrocious laws that naturalism started to gain more ground again after the Second World War.Footnote 30 Lord Bingham’s explicit inclusion of respect for human rights as part of his rule of law-ingredients list reflects this view. As he explains: “a state which savagely represses or persecutes sections of its people cannot in my view be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside is the subject of detailed laws duly enacted and scrupulously observed”.Footnote 31
While a substantive notion of the rule of law is intuitively attractive, opponents claim that it is unworkable as it presupposes an inherent element of justice or morality based on which a law should be judged to be considered as having the authority of law. Yet arguably, once we open the door to the law’s contestation based on whether it is deemed moral or just, we either enable all legal subjects to oppose any law they consider to be ‘unjust’, or we at the same time need to proclaim that an objective standard of ‘justice’ exists. After all, by bringing in ‘justice’ as a substantive standard against which the law’s authority should be judged, we also need to define that standard – and risk stumbling upon different conceptualisations thereof. Hence Carl Schmitt’s critique on substantive notions of the law, which he describes as the idea that: “law should above all be what I and my friends value”.Footnote 32
Joseph Raz was likewise critical of overly thick rule of law conceptions: “If the rule of law is the rule of the good law then to explain its nature is to propound a complete social philosophy. But if so the term lacks any useful function.”Footnote 33 Proponents of a formal rule of law-notion therefore prefer to conceptualise it as a self-standing value, which remains distinct from values like democracy, human rights, justice or the more abstract ‘good’. TamanahaFootnote 34 and Waldron, too, express reservations, the latter claiming that
once we open up the possibility of the Rule of Law’s having a substantive dimension, we inaugurate a sort of competition in which everyone clamors to have their favorite political ideal incorporated as a substantive dimension of the Rule of Law. […] The result is likely to be a general decline in political articulacy, as people struggle to use the same term to express disparate ideals.Footnote 35
Consequently, Waldron argues that the rule of law is a so-called essentially contested concept,Footnote 36 defined by WB Gallie as concepts “the proper use of which inevitably involves endless disputes about their proper uses on the part of their users”.Footnote 37 Others have gone further in their critique and suggested to do away with the concept altogether,Footnote 38 as they find it to be too vague, encompassing too many different things for different people, and thus ultimately ‘meaningless’.Footnote 39
While one can sympathise with these views to some extent, it would be a mistake to throw away the baby with the bathwater. In my view, the aspirational quality of the rule of law does not deduct from its value, nor does it deprive one from judging concrete government practices based on whether they respect, advance or impede this ideal. Rather than merely showing disaccord, the vast scholarly literature about the rule of law and its various conceptualisations can be seen as an attestation of its continuous importance in modern legal systems. Furthermore, the binary choice presented above is too simplistic. In modern liberal democracies, the values of human rights and democracy can unapologetically be identified as minimum substantive standards, without needing to navigate between the Scylla of bare proceduralism and the Charybdis of unbounded moral relativism. One does not need to open the door to infinite subjective sentiments of ‘justice’ to support a conceptualisation of the rule of law that requires public authorities to ensure the legal rules they adopt respect human rights and the democratic process. Certainly, the rule of law is an ideal type, as it is never fully achieved in practice.Footnote 40 Yet it represents something to be striven towards and can serve as a useful normative framework to guide public action – and to orientate my analysis in this book.
More importantly, as I will explain in Section 3.2, in the EU legal order, the rule of law is more than a normative principle. It is a value enshrined in both primary and secondary union law that all Member States and the EU itself must legally comply with.Footnote 41 This also counts for Member States of the Council of Europe, for whom compliance with the rule of law is a legally enshrined obligation, entwined with the obligation to comply with human rights and democracy.Footnote 42 Accordingly, while acknowledging the existence of both thick and thin notions of the rule of law in legal scholarship, this divergence does not stand in the way of rendering it both an aspirational value that should be striven towards, and a normative source from which concrete requirements can be derived that public authorities must legally abide by – including when they rely on algorithmic regulation. In what follows, I will thus dive into EU legal sources with the aim of distilling a more concrete conceptualisation of the rule of law in the context of the public sector to build my analytical framework.
Before doing so, I must however clarify one more theoretical point, namely the relationship between the rule of law on the one hand and authoritarian and illiberal practices on the other. As stated in the Introduction, the increase of such practices in modern liberal democracies – including in the EU – is a development that this book seeks to problematise. In the next section, I will therefore explain how they relate to the rule of law, and how this relationship informs the broader hypothesis of this book, namely that public authorities’ reliance on algorithmic regulation, in addition to potentially undermining the rule of law, can also dilute the law’s protective function against illiberal and authoritarian tendencies in society.
3.1.4 The Rule of Law and the Rule by Law
In political theory, authoritarianism is typically juxtaposed to democracy, not to the rule of law. While many different definitions of these concepts exist, put very simply, in a democracy, those subjected to the law must be able to have a say in it.Footnote 43 How such ‘say’ is organised depends on the type of democratic system, of which numerous variations exist,Footnote 44 yet they all differ from authoritarian or autocratic regimes, where the law can be decided by a sole person or entity with absolute power, without accountability to the governed people.Footnote 45 Note that, in both of these descriptions, the law plays a role. Of course, in the latter, the ruler can also unilaterally decide to govern arbitrarily, based on whims rather than legal rules, and it is that precise feature, the absence of laws, that proponents of a thin conceptualisation of the rule of law consider to be its opposite.Footnote 46 For this reason, some scholars have argued that the rule of law is compatible with authoritarianism, and that some authoritarian states can be meaningfully said to adhere to the rule of law.Footnote 47
Both in the past and in the future, states have indeed been relying upon laws (i.e., legal rules that were adopted in accordance with a given procedureFootnote 48) to implement illiberal and authoritarian practices. However, proponents of a substantive notion of the rule of law would qualify such states as adhering to a rule by law instead. The rule by law embodies a purely formalistic notion of the law, whereby the power of the law serves to advance authoritarian and illiberal purposes which are incompatible with the spirit of the rule of law,Footnote 49 namely the aim of taming excessive public power and protect human liberty. Recall in this regard also the quote by Lord Bingham cited above. It is not because a state persecutes minorities through legal rules that it abides by the rule of law. Accordingly, while the rule of law entails the idea that “the law should stand above every powerful person and agency in the land”, the rule by law, “in contrast, connotes the instrumental use of law as a tool of political power”.Footnote 50
The rule by law can hence be seen as a distortion of the rule of law, as it undermines the law’s protective role. Governments can indeed deploy the law to legitimise their actions – even if oppressive or unjust – and to consolidate rather than to limit their power. As noted by Joseph Weiler: “The rule of law, outside a democracy is simply the most effective instrument of authoritarianism and worse.”Footnote 51 Besides legal scholars, also the Council of Europe’s Venice Commission (which, as we shall see below, is responsible for advising Member States on rule of law-related matters) underscored this distinction, stating that “over time, the essence of the rule of law in some countries was distorted so as to be equivalent to ‘rule by law’, or ‘rule by the law’, or even ‘law by rules’. These interpretations permitted authoritarian actions by governments and do not reflect the meaning of the rule of law today”.Footnote 52 In its 2008 rule of law report, the Council of Europe’s Committee of Ministers explained it as follows: “There can be no democracy without the rule of law and respect for human rights; there can be no rule of law without democracy and respect for human rights, and no respect for human rights without democracy and the rule of law.”Footnote 53
Already centuries ago, authors like de Tocqueville stressed that democracy is more than the mere rule of the majority, as this could lead to a so-called tyranny of the majority.Footnote 54 That is why the maintenance of a liberal democracy requires a deliberative process that enables participation and the protection of certain rights and liberties, including for minorities, that cannot simply be overturned by a majority – even if it does so by law.Footnote 55 Moreover, as already touched upon in Section 2.3, the relationship between the government and its citizens is also subjected to a set of principles that enable administrative justice and ensure the government can be held to account when infringing the law. In other words, whereas the rule of law underpins human rights and democracy, under the rule by law, the law merely provides a veneer of legality for actions that are not compatible therewith, as it undermines the protective role that the law plays in safeguarding human rights and democracy.
Today, authoritarian tendencies are prevalent across the globe. Importantly, these tendencies are also surfacing in liberal democracies, and are eroding its normative pillars incrementally.Footnote 56 According to the authors of the Authoritarian Playbook,
before the 1990s, authoritarian leaders bent on upending democracy typically came to power forcefully and swiftly, often by means of a military coup d’état. The moment democracy ceased to exist could be timestamped and reported on with a block headline. Yet for at least the last thirty years, the threats to democracy have evolved. Today, democracy more often dies gradually, as the institutional, legal, and political constraints on authoritarian leaders are chipped away, one by one.Footnote 57
In other words, the threat hence comes from within, through the incremental erosion of legal protection mechanisms that are meant to safeguard the rule of law, democracy and human rights. Instead, the law is being used to bolster regimes that are moving away from liberal democracy, without (yet) meriting the connotation of an authoritarian regime.Footnote 58
Authoritarian-minded leaders that know the rules of the game and are eager to uphold the veneer of legality, which facilitates international legitimacy and hence entails financial benefits,Footnote 59 are increasingly facilitating illiberal and authoritarian practices by adopting new laws or legal reforms, seemingly in ‘full accordance with the law’, yet at the same time undermining the law’s protective function.Footnote 60 Furthermore, these practices typically occur cumulatively and incrementally rather than through one sweeping reform, which keeps the harm they cause under the radar for a longer time, and can hence fail to mobilise sufficient opposition.
It is, however, important to note that the distortion of the rule of law into the rule by law need not necessarily stem from a deliberate intention to undermine the law’s protective role. An overly rigid and disproportionately severe interpretation of the law can also lead to practices that run counter to the ideal of the rule of law. Reference can in this regard be made to the Venice Commission’s Opinion of 2021Footnote 61 regarding the ‘childcare allowance case’ in the Netherlands, which I will discuss further in Chapter 4. In this case, the Dutch tax authorities applied an overly strict approach to the implementation of a law against alleged fraudsters, and targeted parents even without the proven intention of fraud, with disproportionate reimbursement claims for the so-called undue benefits they had received. The authority’s (and later the courts’)Footnote 62 reluctance to apply a hardship clause and ensure a proportionate balance of the interests at stake, tragically impacted a large number of families, causing ‘unprecedented injustice’ and irreparable damage.Footnote 63 In its opinion, the Venice Commission noted that it has “consistently cautioned against considering ‘the rule of law’ as a purely formal concept in the meaning of ‘rule by law’ and not as a substantive concept, meaning that the law must be accompanied with guarantees against abuse of legal powers.”Footnote 64 It also noted that an “exercise of power that leads to substantively unfair, unreasonable, irrational or oppressive decisions violates the Rule of Law” which, it concluded, “has been done by several Dutch authorities”.Footnote 65 This demonstrates how the rule by law is not only the product of deliberate action, but can also be the consequence of negligence on behalf of public authorities to ensure that their exercise of power does not violate the rule of law.
Throughout this book, I will rely on the distinction between the rule of law and the rule by law, and argue that negligent or deliberately problematic reliance on algorithmic regulation might eventually foster algorithmic rule by law. I hence do not reserve this term solely for practices that consciously and purposely undermine the protective power of the law while upholding the veneer of legality, but also for practices that do so inadvertently by paying insufficient attention to this very risk. With this in mind, I will now examine how the rule of law is conceptualised in the European Union. While its entwinement with democracy and human rights is henceforth taken as a baseline, I still need to further concretise this ‘elusive’ conceptFootnote 66 before I can distil therefrom the requirements that public authorities must fulfil when taking administrative acts and examining how reliance on algorithmic regulation can affect them.
3.2 The Rule of Law in the European Union
The rule of law is typically part of a national legal order, where it functions as a normative value or guiding principle for the institutional design of a nation state. Yet, ever since the rise of international and supranational organisations in the twentieth century, the rule of law has also been considered beyond the context of the nation state.Footnote 67 Many international organisations have this value incorporated into their mandate or into their policy agenda, for instance in the form of ‘rule of law promotion initiatives’.Footnote 68 In addition, a number of non-governmental organisations have started mapping rule of law indicators and used this as a basis to create indexes that measure and compare states’ compliance with the rule of law.Footnote 69 Arguably, the most important international organisation mandated to set rule of law standards is the Council of Europe. While the Council of Europe’s legal order is distinct from that of the European Union, it has had a tremendous influence on the EU’s understanding of the rule of law, and effectively shaped its EU conceptualisation. In this section, I therefore start with an introduction to the Council of Europe’s work on the rule of law, and examine the authority it has in the European Union (Section 3.2.1). Next, I discuss the origins of the rule of law in the EU legal order (Section 3.2.2) and distinguish between its vertical and horizontal dimensions (Section 3.2.3). I then examine how the rule of law is conceptualised in primary sources of EU law and identify the six core principles associated therewith (Section 3.2.4). Finally, I conclude with a discussion of the so-called EU ‘rule of law crisis’ and draw attention to the rule of law’s fragility (Section 3.2.5).
3.2.1 The Rule of Law and the Council of Europe
When the Council of Europe was founded in 1949, the notion of the rule of law was already part of its establishing statute, stating in Article 3 that every member “must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms”.Footnote 70 Pursuant to Article 8 of the Statute, any member of the Council of Europe which has seriously violated Article 3 may be suspended from its rights of representation, and can eventually even be expelled from the organisation.Footnote 71 The European Convention on Human Rights (ECHR), signed under the Council of Europe’s auspices a year later, likewise evokes the rule of law in its preamble as part of a ‘common heritage’ of the governments of European countries. Since then, the Council of Europe produced a broad set of guidelines and recommendations regarding the rule of law, constituting one of its three pillars, together with democracy and human rights.Footnote 72 Accordingly, the idea of the rule of law as a concept that is common to signatory member states, and that can be given a common conception at the international level, started taking shape. This occurred not merely in theory, but through the explicit desire of states to work towards and commit to a common understanding of the rule of law, anchored in an international legally binding instrument.
In 1999, the Council of Europe established the European Commission for Democracy through Law (better known as the Venice Commission) which is an advisory body on constitutional matters.Footnote 73 Its 2011 report on the rule of law aimed at identifying a ‘consensual definition’ of this concept, in order to facilitate its interpretation and application. As already hinted at, the Venice Commission explicitly rejects a thin conception of the rule of law, in favour of one that also embraces substantive elements, including respect for democracy and human rights. The report states that “a consensus can now be found for the necessary elements of the rule of law”, namely: (1) legality, including a transparent, accountable and democratic process for enacting law; (2) legal certainty; (3) prohibition of arbitrariness; (4) access to justice before independent and impartial courts, including judicial review of administrative acts; (5) respect for human rights; and (6) non-discrimination and equality before the law. Based on those six elements, the Venice Commission subsequently prepared a rule of law-checklist to facilitate the evaluation of the condition of the rule of law in individual states.Footnote 74 The rule of law-checklist was subsequently endorsed by the Committee of Ministers and by the Council of Europe’s Parliamentary Assembly.Footnote 75
This work proved highly influential for the European Union, which came into existence a few years after the establishment of the Council of Europe. The EU acknowledged the Council of Europe’s ‘normative pre-eminence’Footnote 76 in the 2007 Memorandum of Understanding between the Council of Europe and the EU, stating that “the Council of Europe will remain the benchmark for human rights, the rule of law and democracy in Europe”.Footnote 77 All EU Member States are also a member of the Council of Europe. At the same time, both institutions agreed to cooperate and complement each other’s work as regards the protection of the rule of law based on common standards.Footnote 78 When building this book’s normative framework and distilling concrete rule of law requirements for public authorities, I therefore consider not only EU legal sources but also the output of Council of Europe bodies.Footnote 79
Cooperation between the European Union and the Council of Europe became ever closer over the years,Footnote 80 particularly considering the EU’s increasing competence in matters related to the Council of Europe’s working sphere, including the rule of law, which thus started to play a role not only at the national and international level, but also at the supranational level. In fact, the establishment of the EU as a supranational legal order can be seen as a turning point for the rule of law. Under the auspices of the Council of Europe, Member States already accepted to adhere to common standards, as further developed in the case law of the European Court of Human Rights (ECtHR). However, one could argue that this adherence is ‘softened’ by the intergovernmental nature of the Council of Europe, as well as the margin of appreciation doctrine that offers national authorities some room for manoeuvre in fulfilling their obligations under the ECHR, precisely in light of the acknowledged difficulty of identifying uniform European standards for the rule of law and human rights across states.Footnote 81 In the European Union, however, an independent legal order arose with the competence to autonomously define legal concepts, harmonise legislation, and create laws that have direct effect in the national legal order. How then, did the rule of law take shape in the EU?
3.2.2 The Rule of Law’s Origins in the EU Legal Order
Though the European Union came into being about seventy years ago, the concept of the rule of law only started to explicitly appear in its legal order halfway its existence.Footnote 82 The Union’s origins lay in a willingness of Member States to cooperate on economic matters (from common policies for the coal and steel sector, to the establishment of a customs union and a common market), leaving matters like democracy, human rights and the rule of law at the national level, and at the intergovernmental level of the Council of Europe.Footnote 83 Gradually, Member States embraced further integration, transforming the Union from a market-oriented project to a self-standing legal order in which human rights, democracy and the rule of law have come to play a central role,Footnote 84 greatly aided in this endeavour by the CJEU’s case law.Footnote 85
The seminal case in which the rule of law was first mentioned in the EU legal order is Les Verts, concerned with party political funding.Footnote 86 In this 1986 judgment, the CJEU formally stated that “the European Economic Community is a Community based on the rule of law, 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.”Footnote 87 According to the Court, the Treaties established a “complete system of legal remedies and procedures” designed to review the legality of measures adopted in the Union, and to protect natural and legal persons against the application to them of general measures implemented either by EU institutions or by national authorities.Footnote 88 While Les Verts was concerned with the rule of law horizontally, dealing with the relationship between EU institutions rather than within EU Member States, it did hint at the fact that also the actions of Member States can be reviewed based on their conformity with EU law. In subsequent case law, the CJEU reiterated and firmly entrenched the Union’s rule of law-basis.Footnote 89
A few years later, in 1993, the rule of law was included as part of the so-called Copenhagen criteria which set out the conditions that aspiring EU Member States should fulfil to be eligible for membership.Footnote 90 Yet it was not until the Treaty of Amsterdam, signed in 1997, that the rule of law was incorporated into primary EU law as one of the Union’s founding ‘principles’ that are ‘common to the Member States’, alongside liberty, democracy, respect for human rights and fundamental freedoms – without, however, providing any definition of the concept.Footnote 91 When the Treaty of Lisbon was signed ten years later, the rule of law and the other founding principles became ‘values’ insteadFootnote 92 yet obtained a more prominent place in the Treaty on European Union (TEU), right at the start in Article 2. The Lisbon Treaty likewise omitted the concept’s definition, yet reiterated that it is considered a value common to all Member States. Pursuant to Article 21 TEU, the rule of law is also a ‘principle’ that the Union seeks to ‘advance in the wider world’, hence constituting a part of the EU’s identity and objectives both internally and externally.Footnote 93 Whether called a value or principle, it is clear from both terms that the rule of law is considered an overarching guiding norm that requires concretisation through court interpretation or legislation in order to distil concrete obligations therefrom.Footnote 94
3.2.3 Vertical and Horizontal Dimensions
When discussing the rule of law in the European Union, a distinction needs to be made between the various dimensions in which the rule of law plays a role. First, the rule of law can be examined at the level of EU Member States, dealing with the relationship between national institutions (legislative, executive and judicial) and national citizens (vertically).Footnote 95 Member States are required to comply with the rule of – both national and European – law.Footnote 96 However, since the EU constitutes an autonomous legal order,Footnote 97 one can also examine the rule of law at the level of the EU, dealing with the relationship between EU institutions (legislative, executive and judicial) and EU citizens (horizontally).Footnote 98 Both of these layers are internal to the EU. These dimensions can further be distinguished from the rule of law’s external dimension, which concerns the relationship between the EU and third countries, and between the institutions of those countries and their citizens. This dimension is primarily relevant for the EU’s external action, such as rule of law-promotion activities in third countries pursuant to Article 21 TEU.
In this book, I will not be looking at the external dimension of the rule of law, nor will I consider the horizontal dimension of the rule of law in the EU.Footnote 99 At this point, it may therefore be useful to explain why, if my focus only lays on what happens at Member State level, I am nevertheless analysing the role of EU law. Surely there are national conceptions of the rule of law in all EU Member States, and national mechanisms to protect and enforce it in accordance with those conceptions. So why am I grounding my analysis in the EU legal order? Put differently: what does it matter from the perspective of EU law whether Member States, within their national jurisdictions, uphold the rule of law? I briefly answered this question in the Introduction, but this point merits some further clarification here.
It is true that the EU was not granted any ‘general’ competence regarding the ‘rule of law’. This is not surprising, as the rule of law is expressed as a relatively abstract value. As is well known, pursuant to the principle of conferral enshrined in Article 5 TEU, the Union “shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.” Moreover, Article 4 TEU also states the Union’s obligation to respect Member States’ national identities, “inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security.” Accordingly, it can be assumed that Member States, though declaring the rule of law to be a value that is common to their traditions, did not wish to create a harmonised conceptualisation of the rule of law or to bestow the EU with competences to control the compatibility of their actions therewith in general. Arguably, the Council of Europe – through the jurisdiction of the ECtHR, based on the ECHR – already has a mandate to govern and clarify rule of law-related matters.
At the same time, the EU does have some more specific or indirect competences related to the rule of law (which I will come back to in Chapter 5), and it cannot be denied that respect for the rule of law, also at Member State level, is crucial for the success of the Union’s project. There are several reasons for this. First, a large part of Union law has direct effect in Member States. EU law is hence integrated in national legal orders, enabling citizens to derive rights therefrom that are enforceable before national courts. The national level is hence not easily distinguishable from the European level, given the prevalence of EU law. Accordingly, “deficient rule of domestic law automatically translates in deficient rule of EU law”.Footnote 100 Second, the European Union hinges on mutual trust between Member States – including trust in the fact that their public authorities act in accordance with human rights, democracy, the rule of law and other EU values.Footnote 101 This trust has highly practical consequences, as it, for instance, enables a Member State’s court to extradite a citizen to another Member State pursuant to a European arrest warrant, or to engage in legal cooperation in asylum cases.Footnote 102 In other words, there are significant negative externalities involved for other Member States and the EU legal order as a whole if the rule of law is not observed.Footnote 103 Third, all citizens of Member States also have EU citizenship, which inter alia accords them with rights that they invoke when they move to another Member State, making it important for the sake of the enforcement of those rights that the host Member State respects the rule of law too. A weakening of the rule of law in one Member State hence not only affects the nationals of that state but also other EU citizens that moved there. In addition, more indirectly, it affects all those who reside in the EU by virtue of that state’s “participation in the EU’s decision-making processes and in the adoption of norms that bind all in the EU”.Footnote 104 This is why, fourth, adherence to the rule of law is also a prerequisite to become an EU Member State.Footnote 105 It is thus reasonable to require Member States to keep respecting the rule of law also after they joined the EU.
In sum, regardless of whether there exists a common conception of the rule of law in all Member States, and regardless of whether there exists an autonomous ‘EU’ notion of the rule of law, adherence to this value by all Member States is part of their common interest – and it thus makes sense for EU law to play a role in ensuring this adherence. This is also why several mechanisms exist in the EU legal order to protect the rule of law at Member State level. The (in)existence of a commonly accepted notion of the rule of law in the EU hence does not affect my arguments, as they do not rely on the specific ‘EU’ nature of the rule of law, but on the underlying value it represents, which is expressed not only at supranational, but also at national and international level. My focus on the EU legal framework primarily stems from a desire to analyse not only how algorithmic regulation can affect the rule of law, but also to examine, within a concrete legal system, which safeguards exist to protect it. Yet as noted in the Introduction, the theory of harm that I will conceptualise has relevance far beyond the EU and can provide insights for all jurisdictions where the rule of law – along with democracy and human rights – is deemed important. To make my research inquiry tractable, I will hence presume there is an ‘EU’ conceptualisation of the rule of law, drawing on EU legal sources, while stressing that, even if no such distinct notion were to exist, this leaves my analysis intact, as my normative framework is generalisable beyond the European Union.
3.2.4 The EU Conceptualisation of the Rule of Law
As noted above, Article 2 TEU lists the rule of law as a foundational Union value, without a definition. Since this article distinguishes the rule of law from other values, such as respect for human rights and democracy, some have noted that this may indicate a ‘thin’ understanding of the rule of law in the European Union.Footnote 106 It would, however, seem short-sighted to claim that the EU adheres to a formal conceptualisation of the rule of law based on the mere fact that ‘human rights’ is listed alongside the rule of law rather than as part of it. In fact, a closer look at EU legal sources reveals a rather thick conception of the rule of law instead.
Starting with the CJEU’s case law, one can note that judgments relating to the rule of law have been focusing primarily on two angles. The first concerns compliance with the rule of law at EU level – horizontally – where the availability of a complete system of remedies to ensure judicial protection of EU citizens against EU legal acts stands central. For instance, in the UPA case, the Court stated that “the European Community is […] a community based on the rule of law in which its institutions are subject to judicial review of the compatibility of their acts with the Treaty and with the general principles of law which include fundamental rights”.Footnote 107 This statement clearly indicates a thick conceptualisation of the rule of law, incorporating human rights-compliance.
The second angle of the Court’s case law concerns compliance with the rule of law at Member State level or vertically. Member State authorities are not only obliged to respect the rule of national law, but also the rule of EU law, covering both primary and secondary EU legislation. Thus far, Member States’ adherence to the principle of judicial impartiality and independence has received most attention.Footnote 108 As this principle is concretised through the second paragraph of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the EU (the Charter or the CFREU),Footnote 109 the Court was able to flesh out its requirements in more details. This focus is not surprising. Not only are some Member States deliberately and rather overtly attempting to undermine this principleFootnote 110 (which lead to several Court challenges) but the independence of the national judiciary is also of particular importance in the EU legal order, given the role of national courts as ‘first Union courts’.Footnote 111 One can also consider the principle of judicial independence as an overarching safeguard that can act as a last barrier against breaches of other rule of law principles. If a public authority arbitrarily uses its power, or if it breaches the principle of legal certainty and legality, the national court is the natural avenue to address this. As long as the functioning of the court hence occurs in an independent and impartial manner, other rule of law breaches can in theory be challenged (though, as I will discuss below, ex post protection mechanisms are insufficient safeguards in the context of algorithmic regulation, which requires ex ante safeguards instead).
The CJEU also clarified other principles of the rule of law, such as the principle of legality and legal certainty, and the obligation for the Commission – as part of the EU executive power – to state reasons for a decision.Footnote 112 While these cases dealt with the actions of EU institutions rather than Member States, they nevertheless show how the Court conceptualises the rule of law, and have been drawn upon by EU institutions when conceptualising the rule of law.Footnote 113
Yet courts are not the only actors who helped conceptualise the rule of law in the EU. The European Commission offered the most comprehensive definition of the rule of law at EU level thus far when it launched the rule of law framework.Footnote 114 The framework acts as a complementary component to existing protection mechanisms (further discussed in Chapter 5) and forms the Commission’s response to a set of authoritarian and illiberal practices undertaken by several EU Member States, thus clearly focusing on the rule of law’s vertical dimension. According to the Commission, even though “the precise content of the principles and standards stemming from the rule of law may vary at national level, depending on each Member State’s constitutional system”, nevertheless, case law of the CJEU and of the ECtHR, “as well as documents drawn up by the Council of Europe, building notably on the expertise of the Venice Commission, provide a non-exhaustive list of these principles and hence define the core meaning of the rule of law as a common value of the EU in accordance with Article 2 TEU”.Footnote 115
These principles are virtually identical to the ones identified by the Council of Europe and include legality, which implies a transparent, accountable, democratic and pluralistic process for enacting laws; legal certainty; prohibition of arbitrariness of the executive powers; independent and impartial courts; effective judicial review including respect for fundamental rights; and equality before the law. In its 2019 Communication on ‘Further strengthening the Rule of Law within the Union’, the Commission added the principle of ‘separation of powers’ to this list,Footnote 116 which also formed part of the rule of law’s definition in its 2020 and 2021 rule of law reports setting out the status of adherence to this value in each Member State.Footnote 117 With that addition, it brought its own definition entirely in line with the definition proposed by the Venice Commission. A number of those principles – such as the principles of legal certainty, equality before the law, and respect for human rights – have also been recognised as general principles of EU law.Footnote 118
In December 2020, the European Parliament and Council adopted the Conditionality Regulation.Footnote 119 This Regulation, which aims to protect the Union budget against adverse effects caused by breaches of the rule of law,Footnote 120 constitutes the first piece of EU legislation in which the rule of law is explicitly defined. I will discuss it more extensively in Chapter 5, but let me already emphasise here that the Regulation embraces a thick notion of the rule of law. Recital 3 states that,
while there is no hierarchy among Union values, respect for the rule of law is essential for the protection of the other fundamental values on which the Union is founded, such as freedom, democracy, equality and respect for human rights. Respect for the rule of law is intrinsically linked to respect for democracy and for fundamental rights. There can be no democracy and respect for fundamental rights without respect for the rule of law and vice versa.Footnote 121
In Article 2 of the Conditionality Regulation, the European Parliament and CouncilFootnote 122 have defined the rule of law precisely as the European Commission did in its rule of law reports, conceptualising it as “including the principles of legality implying a transparent, accountable, democratic and pluralistic law-making process; legal certainty; prohibition of arbitrariness of the executive powers; effective judicial protection, including access to justice, by independent and impartial courts, also as regards fundamental rights; separation of powers; and non-discrimination and equality before the law.”Footnote 123
In light of the above, I can conclude that these six principles collectively constitute the EU conceptualisation of the rule of law, which clearly encompasses not only formal but also substantive elements and is fully aligned with its conception at the Council of Europe. The rule of law is seen as a sine qua non for human rights and democracy, and as a value that merits being protected by EU law, also – or especially – when it risks being infringed at the level of Member States. Though conceptualisable as a list of principles, these should not be approached as a mere checklist, but as part of the rule of law’s broader spirit, acknowledging its protective power and its ability to uphold the normative infrastructure of liberal democracy.
3.2.5 The Rule of Law’s Fragility: A Tale of Caution
The existence of an EU definition of the rule of law does not mean that this definition is also universally respected by EU Member States. The fact that two Member States challenged the validity of the Conditionality Regulation provides an indication that the picture is not all rosy.Footnote 124 I have already alluded several times to the rise in authoritarian tendencies globally, and to the fact that the EU has been undergoing what commentators have called a ‘rule of law crisis’.Footnote 125 In this section, I will elaborate on this crisis and discuss the main points of friction that lead to this grave denomination.
At the outset, let me reiterate that the rule of law is an ideal, or a value that should continuously be striven towards rather than one that can be perfectly achieved. No EU Member State can be said to meet its principles entirely – if only because, as I shall discuss in the next section, when examining these principles more closely, they are imbued with internal and external tensions that renders their achievement challenging.Footnote 126 Bearing this in mind, what now does this EU ‘rule of law crisis’ consist of? It frequently happens that Member States do not fulfil their obligations under EU law in a negligent or sporadic manner, for instance because they did not implement a directive within the set deadline, or because the national measures they adopted to implement an EU legal act were (inadvertently or deliberately) misinterpreted and hence concern an incorrect implementation. Such occasional infringements or minor non-alignments with European Union law are, however, not what legal scholars are currently apprehensive about. Instead, concerns are centred around more structural challenges to the rule of law, which are twofold in nature.
First, in several Member States, the primacy of EU law, and hence the alignment of national acts with the rule of EU law, is being challenged. Such challenges can be explicit or more implicit, and were, for instance, instigated by the German and Polish Constitutional Courts,Footnote 127 the French Council of State,Footnote 128 as well as political parties.Footnote 129 To the extent that only one Member State institution is behind such challenge, this has in and of itself not (yet) caused major disturbances in the EU legal order.Footnote 130 The situation is, however, different in countries where the challenge of EU law’s primacy is more structural in nature and shared by various institutions, or where it complements a wider challenge to the values of liberal democracy more generally, which is the second and, arguably, more worrisome type of concern.
Several Member States have indeed taken legislative initiatives that deliberately pursue illiberal or authoritarian practices and undermine the protective power of the law.Footnote 131 In such states, “no longer are rule of law issues temporary and isolated deviations from a norm of compliance, which had been presumed. Instead, noncompliance with European values has become a principled ideological choice.”Footnote 132 Huq and Ginsburg note that “in both Hungary and Poland, for example, elected governments have recently hastened to enact a suite of legal and institutional changes that simultaneously squeeze out electoral competition, undermine liberal rights of democratic participation, and emasculate legal stability and predictability”.Footnote 133 The Polish reform of the judiciary which the Law and Justice Party initiated in 2015 after it gained majority control is a case in point. The government inter alia set up a disciplinary chamber to control Polish judges, undermined their ability to refer preliminary questions to the CJEU and lowered the retirement age of judges in an arbitrary way – thereby undermining their independence.Footnote 134 Hungary’s reforms of both the Constitution and of the Constitutional Court are likewise frequently mentioned examples, and also in Romania challenges to the independence of the judiciary have raised concerns.Footnote 135 Yet also beyond the sphere of the judiciary, Member States have relied on the law to advance illiberal and authoritarian aims. Consider, for instance, the introduction of legislative proposals that curtail the rights of LGBTQ+ individuals in Hungary,Footnote 136 PolandFootnote 137 and RomaniaFootnote 138 that curb the activities of non-governmental organisations who scrutinise the government’s actions,Footnote 139 or that undermine the plurality and freedom of media.Footnote 140
In sum, the rule of law, and in particular its role to secure constitutional checks and balances and to protect other core values such as human rights and democracy, is being undermined not in an isolated but in a systemic manner. Furthermore, the Member States in question are using the law as a tool to do so, thus legitimising actions that infringe the values in Article 2 TEU while upholding a semblance of legality at national level. This can only be conceptualised as rule by law.
These developments should be considered against the background of a broader global crisis of liberal democracy, including the rise of nationalism, populism and the increased support for authoritarian modes of governance which are believed to be more ‘efficient’.Footnote 141 For instance, in Belgium, a survey taken in September 2021 revealed that 37.4 per cent of the participants consider that ‘our society would be better governed if the power were concentrated in the hands of a single leader’.Footnote 142 Amongst people aged twenty-five to thirty-four, this number even rose to 46.9 per cent.Footnote 143
Overall, these developments demonstrate that the rule of law and the values of liberal democracy more generally are fragile. They can be eroded incrementally, almost invisibly, unless the isolated actions of Member States are looked at cumulatively.Footnote 144 Arguably, such gradual degradation is of even greater concern, as a sudden collapse may at least have the advantage of triggering a response from a sufficiently large group of people who refuse to have their rights and liberties stripped away. In contrast, an incremental attack on EU values – encased by a shell of legality through the perversion of the rule of law into rule by law – renders a large-scale mobilisation against such practices more difficult. Furthermore, as noted by Huq and Ginsburg, “there will be cases where disputes arise as to whether a sufficient aggregate amount of backsliding has occurred”,Footnote 145 and this dispute can aptly be exploited by those who use the guise of the law to legitimise their problematic practices.
To counter these developments, the European Union has been exploring routes to not only mitigate but also prevent some of these concerns, and over the last decade it has enlarged its toolbox with several rule of law-monitoring mechanisms that can play a more proactive role.Footnote 146 In Chapter 5, I will discuss the rule of law-protection afforded by EU law in more detail when I examine the robustness of these mechanisms against the risks of algorithmic regulation. For now, suffice it to conclude that a cautionary approach is warranted, since observance of the rule of law, even in the EU, where a layered normative infrastructure exists to uphold this value, cannot be taken for granted.
3.3 The Rule of Law as Normative Framework
Now that I analysed how the rule of law has been conceptualised in legal theory (Section 3.1) and in the EU legal order (Section 3.2), two conclusions can be drawn. First, the rule of law is an overarching concept, alternatingly denoted as a principle, idea, value or interest. It encompasses a range of principles that can be grouped in different ways and at different levels of generality. In the context of the public sector, these principles serve a common purpose, namely constraining public power and thereby also enabling such power by delineating its legal contours. Second, despite some conceptual differences, several principles seem to resurge in virtually all EU accounts of the rule of law and can hence be proposed as constituting its ‘core content’ in the context of the European Union’s legal order. These are the principles of legality; legal certainty; the prohibition of arbitrariness of the executive powers; equality before the law; effective judicial protection, with access to justice and review of government action by independent and impartial courts, also as regards human rights; and the separation of powers.Footnote 147 The question is now: how can these still rather broad and general principles serve as the normative framework of my research? To recap, my aim in this chapter is to assess how public authorities should exercise power in a way that complies with the rule of law when they rely on algorithmic regulation. Only then can I assess how their use of algorithmic regulation risks undermining such compliance.
In this section, I will take these six rule of law principles as my starting point and examine the concrete requirements that public authorities must respect to align therewith. To do so, I draw on relevant legal sources from the European Union and the Council of Europe that concretise these principles and clarify what they imply for the executive branch of power.Footnote 148 Through their concretisation, these six principles will serve as this book’s normative analytical framework. In Chapter 4, I will use this framework to analyse how public authorities’ reliance on algorithmic regulation can affect each of these principles and put forward an overarching theory of harm to conceptualise this threat.
As part of this concretisation exercise, it is important to consider the challenges that public authorities already face when seeking to fulfil these six principles, regardless of any reliance on algorithmic regulation. Just as the rule of law is an ideal that is never entirely achievable, so are its principles, which contain some intrinsic tensions that impede their full realisation.Footnote 149 Therefore, in this section, for each principle – namely legality (Section 3.3.1); legal certainty (Section 3.3.2); the prohibition of arbitrariness (Section 3.3.3); equality before the law (Section 3.3.4); judicial review of government action and access to justice (Section 3.3.5); and the separation of powers (Section 3.3.6) – I will not only assess their relevant requirements for public authorities, but also the challenges that are an inherent part thereof.
3.3.1 Legality
3.3.1.a The Principle’s Requirements
The principle of legality – sometimes also referred to as the principle of lawfulness – requires that public authorities recognise the ‘supremacy of the law’ and act in conformity therewith. While its focus often lays on conformity with the constitutionFootnote 150 (which typically delineates the competences of different authorities), the principle of legality requires conformity with legislation more generally, be it at national, international or supranational level.Footnote 151 This also implies that Member States must act in conformity with European law, in light of their legal obligations under the EU Treaties. While the rule of law also requires that public authorities fulfil their duties in ensuring that private parties respect the law,Footnote 152 my analysis focuses on the duties of public authorities themselves.
The legality principle is first and foremost a formal principle, and hence does not dictate the substance of the law that must be complied with as such. However, both the European Union and the Council of Europe have stressed that, since their Member States have committed themselves to human rights legislation (including the EU Charter of Fundamental Rights and the European Convention on Human Rights), the legality principle de facto also encompasses the requirement to comply with human rights,Footnote 153 and that judicial review of the legality of government action also entails a review of its alignment with human rights. Accordingly, while ‘respect for human rights’ is listed as a separate value under Article 2 TEU, the legality principle does bring the need to comply with human rights under the wings of the rule of law.Footnote 154
Importantly, public authorities must not merely ‘comply’ with the law; their actions must also be ‘authorised’ by law, thus implying the need to identify a legal basis to justify their acts.Footnote 155 Indeed, the powers of public authorities should be “defined by law”, and this “delineation of powers between different authorities” should be “clear”.Footnote 156 As implied by the Venice Commission’s rule of law checklist, cases in which public authorities are allowed to operate without an explicit legal basis should be a rarity and duly justified, making it the exception.Footnote 157 Moreover, whenever legislative power is delegated to the executive, “the objectives, contents, and scope of the delegation of power” should be “explicitly defined in a legislative act”.Footnote 158 Importantly, the principle of legality also applies when public authorities delegate their tasks to private actors. In that case, equivalent guarantees of legality should be established by law.Footnote 159
Beyond compliance with and action authorised by the law, the principle of legality also requires public authorities to safeguard the legal and practical conditions for the law’s correct implementation.Footnote 160 When public authorities implement laws and adopt administrative acts, they need to do so commensurably with the law’s text and with respect to the principle of proportionality, as highlighted by the Recommendation of the Council of Europe’s Committee of Ministers to Member States on good administration.Footnote 161 Concretely, this means that public authorities “shall impose measures affecting the rights or interests of private persons only where necessary and to the extent required to achieve the aim pursued”.Footnote 162 Moreover, “when exercising their discretion, they shall maintain a proper balance between any adverse effects which their decision has on the rights or interests of private persons and the purpose they pursue. Any measures taken by them shall not be excessive”.Footnote 163
Finally, both the EU and the Council of Europe emphasise that the principle of legality also requires public participation and transparencyFootnote 164 to ensure public authorities’ accountability. Indeed, the Conditionality Regulation, for instance, states that the principle of legality implies “a transparent, accountable, democratic and pluralistic law-making process”.Footnote 165 While it can be recalled that those adhering to a thin rule of law conception would consider these requirements as separate from the rule of law, it is clear that under its EU conceptualisation, the strong affinity with democracy is underscored, and a narrow conception of legality without democratic legitimacy is excluded. The Venice Commission’s checklist also provides that the public ought to “have access to draft legislation, at least when it is submitted to Parliament”, as well as “a meaningful opportunity to provide input”.Footnote 166 It also requires that, where appropriate, “impact assessments [are] made before adopting legislation (e.g. on the human rights and budgetary impact of laws)”.Footnote 167
Transparency and public participationFootnote 168 must, moreover, not only be ensured in the legislative phase, but also in the executive or implementation phase when public authorities adopt administrative acts.Footnote 169 Over the last decades, the idea of democratic participation in administrative processes has increasingly come to the forefront. As noted by Galligan, “this regeneration of democratic practices within administration can have strong elements of discussion, negotiation, and compromise”, drawing on the model of deliberative democracy to bring together a plurality of interests and views in modern societies.Footnote 170 Since normative administrative acts through which public authorities concretise legislation can indeed affect a multitude of interests, methods of deliberative democracy can contribute to an understanding of how those interests could be balanced. Moreover, by ensuring that they act transparently and in a participatory manner, public authorities can enhance their accountability as well as elevate the quality of their acts, for instance through the solicitation of feedback on whether the act reaches its aims and does not cause unintended negative externalities.
3.3.1.b Challenges to the Principle of Legality
Bearing in mind these requirements, what are the tension points that can arise when public authorities seek to abide by the principle of legality? The first challenge can be found in the need to ensure a sufficiently clear and delineated legal basis for public authorities to act on. Rules of general application tend to be over- and under-inclusive, since they typically set out broad instructions in advance that will subsequently be applied to an indeterminate number of individual cases.Footnote 171 As also admitted by Scalia, “all generalizations (including, I know, the present one) are to some degree invalid, and hence every rule of law has a few corners that do not quite fit”.Footnote 172 Situations will hence inevitably arise that were not foreseen and that do not entirely conform to the normative assumptions behind the rule. Tamanaha therefore concludes that “legality, which requires making decisions in accordance with rules, will in this manner occasionally produce non-optimal or undesirable results.”Footnote 173 While this may not be ideal, it is a price societies are willing to pay to avoid a situation of lawless or arbitrary decision-making. Moreover, as we saw in Section 2.3, when implementing legislation, public authorities can often rely on discretionary powers to ensure that the application of a general rule to a specific case remains proportionate and justified.
Second, as simple as the phrase ‘acting in conformity with the law’ may sound, its execution is not always straightforward. The broadness of legal rules often also leads them to be ‘vague’ and ‘ambiguous’.Footnote 174 Moreover, the law is language based, which means it is inherently open for various interpretations.Footnote 175 Accordingly, one can argue that the determination of how public authorities must act in conformity with the law can be up for discussion, and depends on the way in which the law is interpreted – and by whom. This is where, yet again, the executive’s discretion comes in. Rarely is a law so detailed and precise that no interpretative scope exists, hence necessarily implying a level of choice for public authorities to determine the law’s meaning when implementing it. Despite such discretion, public authorities cannot interpret the law arbitrarily. They need to do so in a way that conforms to the normative aims of the law. Moreover, the textual openness and ambiguity of the law can also be considered its very strength, as this feature allows it to be applied to different individual cases, thus precluding the need to foresee detailed rules for every individual situation in advance (which may raise tensions with the principle of equality) and preventing the need to continuously update the law to match changed realities (which may raise tensions with the principle of legal certainty).Footnote 176
As regards the third challenge, I would like to recall the above discussion about the rule of law versus the rule by law. When legality is considered a goal in itself, namely a self-standing principle outside of the rule of law’s overarching spirit, it embodies a formalistic conceptualisation of the law that considers its substance irrelevant, even if it may undermine important values like human rights and democracy. Legality then risks being reduced to legalism, which, as explained by Diver, in its strongest form can be seen as “an ideology, according to which not only should rules be followed, but they should not be questioned or even interpreted beyond their apparent meaning”.Footnote 177 In the past, a rigid interpretation of the legality principle has been relied on to legitimise atrocious rules that were unmistakeably incompatible with the spirit of the rule of law.Footnote 178 As discussed above, this risk also exists today. Indeed, legal rules can be used as a means not to delineate public power but to expand it and to enhance public control over natural and legal persons.Footnote 179 It is therefore crucial that the implementation of the legality principle is not seen separately from the purpose of the rule of law, and from the values that are essential in liberal democracies, lest it be abused for authoritarian and illiberal ends.
3.3.2 Legal Certainty
3.3.2.a The Principle’s Requirements
The principle of legal certainty is closely affined with and complementary to the principle of legality. Beyond the fact that the law should be respected and should authorise public actions, this principle focuses on the qualities that the law should have. Those qualities concern the law’s accessibility, intelligibility, transparency and publicity, as well as its foreseeability.Footnote 180 As pointed out by Tamanaha, this “enhances liberty of action or individual autonomy because people are advised of their permissible range of free action”, also pointing to a positive correlation between economic development on the one hand, and the predictability of the law and its application on the other.Footnote 181 This doctrine hence applies not only to legislation but also to administrative acts taken by public authorities, both as regards general and individual acts.Footnote 182
Legal certainty requires public authorities to ensure stability when implementing the law, and to carry out their tasks in line with people’s legitimate expectations, in a manner that is compatible with other legislation.Footnote 183 To achieve this, applicable laws and their implementation guidelines must be foreseeable as to their effects, through a sufficiently clear and precise formulation that enables natural and legal persons to organise their lives accordingly. A link can also be made to the principle of the non-arbitrary exercise of public power and the discussion of the executive’s discretion, since “a law which confers discretion to a state authority must indicate the scope of that discretion” as well as “the manner of its exercise with sufficient clarity, to give the individual adequate protection against arbitrariness”.Footnote 184 Finally, the law must also be applied in a consistent way, and when rules are changed, for instance because they are adapted to a changing reality, this needs to happen with a fair warning.Footnote 185
3.3.2.b Challenges to the Principle of Legal Certainty
The implementation of the legal certainty principle is not devoid of challenges. First, as noted above, a fine line exists between a legal text that is so precise that it loses its general and broad applicability, and a text that is so imprecise that it ceases being conducive to legal certainty and lends itself to arbitrariness. Where and how this line must be drawn depends on the context and substance of the legal provisions. As regards the regulation of technology-related risks, for instance, the need for technical expertise typically drives legislators to opt for broad legal provisions, which can then be further specified by (specialised) public authorities through administrative acts. It is, however, important that those administrative acts still comply with the principle of legal certainty, by remaining relatively foreseeable and in any case consistent with the normative aims of the law they are based on. This issue is specifically addressed in the Venice Commission’s checklist, which states that
precaution in advance of dealing with concrete dangers has now become increasingly important; this evolution is legitimate due to the multiplication of the risks resulting in particular from the changing technology. However, in the areas where the precautionary approach of laws apply, such as risk law, the prerequisites for State action are outlined in terms that are considerably broader and more imprecise, but the Rule of Law implies that the principle of foreseeability is not set aside.Footnote 186
Second, the consistent application of the law by public authorities can also be a challenge, especially when authorities are decentralised and when the law’s broadness leaves much scope for discretion. At a very practical level, the same law will often be applied to different individual cases by many different public officials, who might each have a different way of interpreting and implementing its provisions. In many situations, however, the risk of inconsistency is reduced by the adoption of implementation guidelines which public officials ought to follow, and by the hierarchical control that is typical of bureaucracy. Yet, there again, too much specification may shift the balance towards over-precision. Indeed, in certain situations, stability and consistency may lead to undesirable outcomes in the face of new or unforeseen circumstances that require flexibility. The Venice Commission therefore recalls that “stability is not an end in itself: law must also be capable of adaptation to changing circumstances. Law can be changed, but with public debate and notice, and without adversely affecting legitimate expectations”.Footnote 187
Consequently, just like the principle of legality, the principle of legal certainty comprises some inherent tensions, requiring a balance between consistency and adaptability. There is no uniform way of achieving this balance, as it depends on the particular context. Nevertheless, guidance must not be sought in the essentialisation or idealisation of either consistency or adaptability. Instead, it should be found in the overarching aim of this principle as part of the rule of law: ensuring that those subjected to the law can reasonably foresee the law’s effects and plan their lives accordingly. This is the goal that public authorities should strive towards when implementing laws and adopting administrative acts.
3.3.3 Non-arbitrariness of the Executive Powers
3.3.3.a The Principle’s Requirements
The prohibition of arbitrariness is arguably the clearest expression of the rule of law’s aim to constrain public power and ensure it is exercised in line with the law. Concretely, it provides that public authorities cannot act arbitrarily or based on whims. Instead, they must act rationally and unbiasedly, in the public interest, and make sure that “public officials carry out their duties in an impartial manner, irrespective of their personal beliefs and interests”.Footnote 188
The EU Charter of Fundamental Rights expresses this principle, as part of the right to good administration, as follows: “Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.”Footnote 189 As part of this provision, persons also have the right to be heard before a measure is taken that adversely affects them, and the right to have access to their file (while respecting the legitimate interests of confidentiality and of professional and business secrecy).Footnote 190 While the Charter’s provision only applies to public authorities at EU level, it expresses requirements that can be found in the administrative rules of all EU Member States as regards the relationship between public authorities and natural and legal persons.
An important requirement derived from the principle of non-arbitrariness is that public officials should provide reasons or justifications for their decisions in a clear and understandable manner.Footnote 191 This allows those affected by their decisions to appraise the non-arbitrary nature thereof. The obligation to give reasons for public decisions – also enshrined as a right in Article 41(2)(c) of the EU Charter – is particularly important when they affect the rights or interests of individuals.Footnote 192 Conversely, an explicit obligation to express the reasons behind the adoption of an administrative act does not always exist for normative acts, or those that have a general rather than an individual application. In Belgium, for instance, no formal motivation requirement exists in such case.Footnote 193 Nevertheless, the absence of a formal motivation duty for general acts does not extinguish the need for such acts to be based on factually and legally acceptable motives, which need to be clear either from the act itself or at least from the administrative file.Footnote 194
The prohibition of arbitrariness is especially important when public authorities have a (wide) margin of discretion. On the one hand, “the complexity of modern society means that discretionary power must be granted to public officials.”Footnote 195 On the other hand, this power ought to be exercised in a non-arbitrary manner, implying that measures taken by public authorities should be reasonable and proportionate.Footnote 196 Indeed, “an exercise of power that leads to substantively unfair, unreasonable, irrational or oppressive decisions violates the rule of law”.Footnote 197 Accordingly, discretionary power requires clear legal restrictions, “in particular when exercised by the executive in administrative action”.Footnote 198
Already in 1980, the Council of Europe’s Committee of Ministers adopted a Recommendation dealing with the exercise of discretionary power.Footnote 199 The Recommendation sets out six principles public authorities must respect whenever they exercise such power: they should not pursue a purpose other than that for which the power has been conferred; they must observe objectivity and impartiality, taking into account only the factors relevant to the particular case; they must observe the principle of equality before the law by avoiding unfair discrimination (which will be further discussed below); they should maintain a proper balance between any adverse effects which its decision may have on the rights, liberties or interests of persons and the purpose which it pursues; they must take their decision within a time which is reasonable having regard to the matter at stake; and they must apply any general administrative guidelines in a consistent manner while at the same time taking account of the particular circumstances of each case.
Finally, public authorities must also put in place mechanisms that can prevent, correct and sanction the arbitrary or abusive use of discretion.Footnote 200 This also includes, according to the EU rule of law report methodology, an anti-corruption framework, covering measures to ensure whistle-blower protection and to encourage the reporting of corruption, as well as the criminalisation of corruption as such.Footnote 201 Moreover, as regards public authorities’ use of electronic databanks, “precautions should be taken against any abuse or misuse of information”, making everyone concerned with the operation of electronic data processing in the public sector “bound by rules of conduct aimed at preventing the misuse of data and in particular by a duty to observe secrecy”.Footnote 202
3.3.3.b Challenges to the Principle of Non-arbitrariness
As regards the tensions that arise in the implementation of this principle, two aspects are particularly worth highlighting: first, tensions around the (overzealous faith) in rationality and efficiency and, second, tensions around the exercise of (excessive or insufficient) discretion. Let me discuss each in turn.
First, it can be recalled that the rise of the welfare state in the nineteenth century significantly expanded the competences of public administrations, which started organising themselves as hierarchical bureaucracies with the purpose of taking rational and objective decisions. There is, however, no such thing as ‘objectivity’ in public decision-making. As pointed out by Barth and Arnold, “the issue in the public sphere is not to remove values from decisions. We know that in public policy, there is no such thing as an apolitical or valueless decision; all but the most narrowly technical decisions reflect value choices or biases by what is done and by what is not done.”Footnote 203 Public authorities and officials are hence always coloured by the political processes that govern them in a direct way, and by the values and interests of the societal groups they are part of in a more indirect way. More generally, political values and policies lay at the basis of public decision-making, and thus also determine how decision-making processes take place and which goals they aspire to achieve. As noted above,Footnote 204 an overemphasis on procedural rationality, objectivity and efficiency hence risks obfuscating the fact that all public policy is grounded in normative values – whether those values are rendered explicit or not.
History has also shown that an overemphasis on rational procedures and efficiency, without critical attention to the substantive aims those procedures should attain, can lead to outcomes that are diametrically opposed to the spirit of the rule of law as cornerstone of liberal democratic societies.Footnote 205 Public authorities must hence make sure that their zeal for rational and efficient decision-making does not trump the social policies and values they are meant to achieve. While the requirement for rational and impartial decision-making should not be dismissed as unattainable, it is important to understand the normative assumptions that underlie the decision-making process and – in Weberian terms – to balance procedural rationality against substantive rationality. In this regard, the role of empathyFootnote 206 has been pointed out as a potential counterbalance against uncritical formal rationality in public decision-making. Yet the ability to let decisions be guided by empathy in addition to rationality also requires a certain level of discretion, which is imbued with similar tensions.
Indeed, the second challenge to the implementation of the prohibition of arbitrariness concerns the level of discretion that public officials ought to have when making decisions – a recurring dilemma in public governance theory, and one that I already touched upon in Section 2.3.3. As noted by HLA Hart, since “we are men, not gods”, we should “not cherish the conception of a rule so detailed that the question whether it applied or not to a particular case was always settled in advance, and never involved, at the point of actual application, a fresh choice between open alternatives.”Footnote 207 It can also be recalled that the flexibility afforded by discretion can be used to keep the excesses of procedural rationality in check, and to ensure more meaningful policy outcomes.Footnote 208 At the same time, it is equally clear that discretion needs to be delimited to avoid that public authorities can subvert legislative authority by interpreting and applying general rules in an arbitrary or abusive manner.Footnote 209 Being at the mercy of public officials who can singlehandedly decide whether a right is accorded or denied, was precisely the bureaucratic nightmare scenario depicted by Hayek in his Road to Serfdom.Footnote 210
Over time, public authorities have sought to decrease discretion at the level of public officials by routinising public decision-making processes through the adoption of detailed guidelines that public officials should follow. While this routinisation can contribute to the consistency of decision-making, decrease corruption and counter arbitrary actions, it also reduces the possibility for justified deviations, for instance when this would be beneficial to ensure substantive rationality, or to correct (unintended) adverse effects caused by the law’s general nature.Footnote 211 In other words, there is a fine line between an excess and a shortage of discretion at the level of individual public officials, which requires careful balancing rather than overly strict formalisation in one way or the other, while keeping in mind that discretion ought to be used in the public interest.Footnote 212
Finally, a third challenge arises when seeking to identify what exactly the ‘public interest’ is that public authorities should aim to achieve when performing their tasks and exercising discretion. While it is quite ingrained that the “proper ends of government” are “promoting the common good and human well-being”,Footnote 213 it is far from self-evident how concepts like the public interest or the common good should be defined or interpreted.Footnote 214 It would take me too far to discuss here the vast scholarship that either criticises these concepts as empty vessels which can be abused by any ideologyFootnote 215 or claims that they should be placed more prominently on policy agendas.Footnote 216 Suffice it to say that – in a modern heterogenous society where various people, groups and organisations have competing interests – identifying whether a measure is ‘in the public interest or not’ is not a straightforward exercise.
3.3.4 Equality before the Law
3.3.4.a The Principle’s Requirements
The principle of equality before the law, often mentioned together with the principle of non-discrimination, is strongly affined with the prohibition of arbitrariness. While in Article 2 TEU the value of equality is listed in addition to, rather than as part of, the value of the rule of law, in the Conditionality Regulation it is nevertheless mentioned as one of the sub-principles of the rule of law’s definition.Footnote 217 Equality is also a general principle of EU law recognised by the CJEU, enshrined in Title III of the EU Charter, and further concretised in secondary EU legislation.Footnote 218 Accordingly, compliance therewith can also be argued to fall under the rule of law’s principle of legality, which requires Member States’ actions to align with primary and secondary EU law. One could hence argue that thin and thick rule of law theorists alike must concede that in the EU, the principle of equality ought to be respected by public authorities.
Pursuant to this principle, public authorities must treat all individuals in an equal manner, and effectively protect them against discrimination. A number of discrimination grounds are explicitly prohibited by the EU Charter of Fundamental RightsFootnote 219 and by the European Convention on Human Rights.Footnote 220 In essence, the principle requires that persons in similar situations are treated equally and that different situations are treated differently. When public authorities violate this requirement, an effective remedy needs to be ensured so that this can be challenged in court.Footnote 221
In the European Union, besides being a formal requirement, the principle of equality is also considered to be a substantive one, requiring the substantively equal treatment of persons.Footnote 222 This implies that in certain situations, the principle’s application dictates that public authorities must make differentiations, namely when legal subjects are substantively finding themselves in unequal situations. However, whenever a differential treatment is applied, this should be objectively justified on the basis of a reasonable aim, and in conformity with the principle of proportionality.Footnote 223
3.3.4.b Challenges to the Principle of Equality
One can immediately notice the challenge that is contained in that last sentence. When is a distinction objectively justified and when do people find themselves in a differing situation that warrants differential treatment, and when not? A link can be made here also to the more general problem of over- and under-inclusivity that is inherent to any general rule of law. Solving these questions typically requires a case-by-case analysis and balancing exercise. Evidently, such a balance needs to take place not only at the level of the legislature, when adopting legislation, but also at the level of the executive, when implementing legislation and adopting administrative acts. Public authorities hence need to express an objective and reasonable justification for any differential treatment, which ought to pursue a legitimate aim and showcase a reasonable relationship of proportionality between the means employed and the aim one seeks to realise.Footnote 224 The situation of the differently treated people must hence be relevantly differentiated.Footnote 225 When such differentiations are challenged in court, the assessment of the justifiability of differentiation often reflects “local political, social and legal dimensions of the case as well as arguments made by claimants and alleged offenders”, revealing that there are “very few clear-cut examples of static rules, requirements, or thresholds for defining the key concepts and groups underlying discrimination as a legal standard”.Footnote 226
In addition, it may also be challenging for persons who are affected by a public authority’s unreasonable differentiation to remedy this situation, as it is not always evident that such differentiation is taking place. While laws and regulations of general application are in principle rendered public (given the transparency required by the principle of legal certainty and legality), individual acts taken by public authorities when they apply these laws to specific cases are typically not public.Footnote 227 Instead, they are often only communicated to the natural or legal person to which the act pertains, which means that it is not always easy for persons to ascertain that they are treated differently than others who are in a similar situation. Accordingly, the fulfilment of the requirement that an effective remedy must exist against discriminatory or unequal applications of the law depends on more than the mere existence of a ground of legal standing. It also necessitates a certain level of transparency by public authorities on how they interpret a general rule, and how they intend to apply it.
3.3.5 Judicial Review
3.3.5.a The Principle’s Requirements
Like other principles, the principle of effective judicial review can be broken down into various sub-principles, which are sometimes presented separately, sometimes together. The Conditionality Regulation speaks of “effective judicial protection, including access to justice, by independent and impartial courts, also as regards fundamental rights”,Footnote 228 while the Venice Commission frames it as “access to justice before independent and impartial courts, including judicial review of administrative acts” and lists respect for human rights as a separate principle.Footnote 229 As my focus lays on distilling from these principles more specific requirements for the executive branch of power, I will set aside the sub-principles on “access to justice” and “independent and impartial courts”,Footnote 230 and limit my attention here to the requirement of ensuring judicial review of administrative acts.
In essence, judicial review comprises a legality check that encompasses, but is not limited to, compliance of those acts with human rights law.Footnote 231 In the context of the European Union, this also implies the review of national authorities’ compliance with primary and secondary EU law. More generally, judicial review also enables the verification of public authorities’ compliance with the other rule of law principles listed above, including respect for legal certainty, the prohibition of arbitrary decision-making, and respect for the principle of equality. Given this overarching role in protecting the rule of law’s principles, the importance of an effective judicial review mechanism can thus not be overstated. The ability to “prevent, correct or sanction arbitrary or unlawful decisions by public authorities, including by law-enforcement authorities” can indeed be seen as a sine qua non to protect the rule of law.Footnote 232 Without this ability, the rule of law would ultimately remain a dead letter. Importantly, judicial review must also be enabled for acts that are carried out by private actors on behalf of public actors.Footnote 233 Public authorities can thus not escape a review of the legality of their actions – or of their responsibility – by outsourcing their tasks to companies or other private organisations.
A legality review can be instigated by natural and legal persons in a direct way (by directly challenging the administrative act in question before a court) or in an indirect way (by invoking the illegality of the act indirectly in the context of a court proceeding to which the act is relevant).Footnote 234 Yet while they should always be entitled to seek judicial review of an act if it directly affects their rights and interest, natural and legal persons do not always have standing to challenge an act that does not demonstrably directly and personally affects them (for instance when it concerns an administrative act of general applicability)Footnote 235 even if the act infringes one of the rule of law’s principles and hence causes societal harm.Footnote 236 The absence of a so-called actio popularis (an action that existed in Roman law, which could be brought by a member of the public to protect ‘the public interest’) is therefore not incompatible with the principle of effective judicial review.Footnote 237 This despite the fact that “leaving the possibility to ask for a review of constitutionality only to the legislative or executive branch of government may severely limit the number of cases and therefore the scope of the review”.Footnote 238
In many jurisdictions (as is the case in Belgium, for instanceFootnote 239) judges have the obligation not to apply administrative acts in case they are illegitimate, yet that of course first requires a judge to assess the act’s legality. Moreover, the court controlling public authorities’ exercise of discretionary power should also have the “powers of obtaining information as are necessary for the exercise of its function”.Footnote 240 Finally, if an administrative act (or act of negligence) by a public authority is found unlawful and private persons suffer damages, a remedy must be provided.Footnote 241
3.3.5.b Challenges to the Principle of Effective Judicial Review
Vital as the principle of effective judicial review may be, the challenges accompanying its realisation are manifold. For instance, where public authorities have discretion, judicial review often takes on a more limited shape to avoid judges replacing policymakers – which would obstruct the principle of the separation of powers. Certainly, the act taken by the public authority needs to be legal, but as regards its choice to pursue a particular discretionary policy or decision rather than another, judges can often only intervene if that policy or decision is (manifestly) unreasonable.Footnote 242 Any review is then limited to a review of legality, despite the fact that, in practice, public authorities can take actions that are legal, yet nevertheless cause a disproportionately adverse impact that could have been avoided with alternative policies.Footnote 243 Accordingly, whenever they have discretion (which, as discussed above, is often the case) public authorities may have a relatively broad margin of appreciation to evaluate the criteria based on which they pursue certain policies. The tension point here seems to lay between ensuring a sufficient level of judicial review that enables verification of the government’s compliance with the rule of law, while at the same time also ensuring that the separation of powers is upheld and that judges do not take over the task of governments.
In addition, one can raise the difficulties regarding the right to have standing in court to ensure that an administrative act is reviewed, and the accessibility of such a review. Firstly, there may be situations where an administrative act adversely affects a societal interest, which does not necessarily bear a one-on-one relationship with a demonstrable adverse effect on an individual right or interest.Footnote 244 In that case, natural and legal persons would be prevented from challenging the act, unless national law explicitly grants standing for collective or public interest groups (the standing problem). Secondly, if individual harm remains unnoticed – recall, for instance, the situation mentioned under the principle of equality, where an individual is simply not aware of the fact that the public authority erroneously or wrongly distinguishes her case from a similar case meriting equal treatment – the problematic act will not be challenged (the knowledge problem).Footnote 245 Thirdly, the harm at the level of the individual may be perceived as insignificant, or in any case as too small in proportion to the costs that may be involved in challenging it, even if the act more significantly impacts a societal interest, thus rendering it unlikely that the individual will challenge the problematic act (the threshold problem). Fourthly, an individual can also acquiesce with a problematic act and waive the opportunity to invoke her protective right to review (perhaps because the act, while infringing the rule of law, is beneficial to her), thereby undermining the opportunity to remedy any indirect adverse effects of the act suffered by third parties (the egocentrism problem).
Finally, in the context of the European Union’s ‘rule of law crisis’, one must also recall the importance of ensuring an independent and impartial judiciary.Footnote 246 Since this book focuses on the executive branch of power, I will not elaborate on this requirement here. I will point out, however, that Member States have been condemned by the CJEU and by the ECtHR precisely because they did not respect this principle.Footnote 247 Evidently, judges that are partial to the government and its administration will not be able to effectively carry out a judicial review of administrative acts and grant the protection that is due in this regard. For all those reasons, securing the principle of effective judicial review of government actions – including their respect for human rights – is not devoid of challenges.Footnote 248
3.3.6 Separation of Powers
3.3.6.a The Principle’s Requirements
The separation of powers aims at preventing the concentration of public power with one state entity. It does so by providing for checks and balances and thereby minimising the risk of unchecked power that can curb the rights and freedoms of citizens, erode democratic representation, and undermine public accountability. Not all legal theorists would consider it as a principle that is classifiable under the concept of the rule of law, and it is, for instance, absent from the ‘ingredients list’ of both Lon Fuller and Lord Bingham. At the same time, there is little doubt that the rule of law and the separation of powers are entwined. The separation of powers is therefore mentioned by both the EU and the Council of Europe in their rule of law conceptualisations, on par with the other rule of law principles. While the Venice Commission did not include separate questions for this principle in its rule of law checklist (presumably in light of the fact that the five other principles collectively contribute to the separation of powers), the European Commission’s rule of law framework does contain a residual pillar named “other institutional issues linked to checks and balances”, underlining that its abstract nature does not preclude its importance in the evaluation of countries’ compliance with the rule of law.Footnote 249
Distributing different public functions across different branches of power not only decentralises public power, but also enables one branch to ‘check’ and to ‘balance out’ the other.Footnote 250 Accordingly, the separation of powers is not a strict separation,Footnote 251 because its very aim is to enable mutual control, which requires a certain level of cooperation and transparency. Such control and cooperation occurs, in first instance, through the classical constitutional checks and balances of the trias politica doctrine. The legislative branch of power can keep the executive in check by organising parliamentary hearings and investigations, playing a role in the government’s budget approvals, as well as more generally delimiting the contours in which the executive can operate when enacting laws.Footnote 252 The judicial branch of power can carry out a judicial review of the government’s actions and hold it accountable if and when it transgresses the limits of its competences.Footnote 253
Yet, besides the two other branches of power, citizens also play a critical role in keeping the government accountable. They do so by casting their vote during popular elections (though this is primarily relevant for the ‘political’ as opposed to the ‘administrative’ executive) and by challenging problematic government actions in court.Footnote 254 By extension, enabling a healthy civil society can also be considered as an essential requirement of this principle, given the contribution of civil society organisations to the checks and balances of and between the three branches of power.Footnote 255 Together with (independent) media,Footnote 256 civil society investigates, reports on, raises awareness of, and challenges government action in the public interest – including, where possible, through public interest litigation in judicial review procedures. As the Commission’s 2021 rule of law report states: “An enabling framework for civil society allows for debate and scrutiny of those in power; and when their space to operate shrinks, it is a sign that the rule of law is at risk.”Footnote 257
In this regard, the requirement for public authorities to ensure transparency is vital. This requirement was already mentioned under the principle of legality (pertaining to the rule-making process) and under the principle of legal certainty (pertaining to the implementation process of legal rules), yet it can also be considered as essential for maintaining the separation of powers, as it enables the ‘checks’ it entails. The Council of Europe’s Code of Good Administration explicitly includes the ‘principle of transparency’ in this context. It requires public authorities to “ensure that private persons are informed, by appropriate means, of their actions and decisions which may include the publication of official documents. They shall respect the rights of access to official documents according to the rules relating to personal data protection.”Footnote 258 Furthermore, in a specific Recommendation on access to information, the Council of Europe’s Committee of Ministers also stresses that “everyone within the jurisdiction of a member state shall have the right to obtain, on request, information held by the public authorities other than legislative bodies and judicial authorities”, and that “access to information shall not be refused on the ground that the requesting person has not a specific interest in the matter”.Footnote 259
Finally, the principle of the separation of powers can arguably also be understood as requiring a certain level of separation between public and private power. This aspect is not rendered explicit in the Venice Commission’s rule of law checklist or in the European Commission’s rule of law reporting, yet it is implicit, for instance, in requirements regarding a framework against corruption and conflicts of interests.Footnote 260 Private actors are often relied upon by public authorities to exercise public tasks. As noted above, such outsourcing does not divest the government of its responsibilities: the same rule of law guarantees must apply, regardless of whether the public task is executed by a public or private entity.
3.3.6.b Challenges to the Principle of the Separation of Powers
The first challenge to uphold the separation of powers can be found precisely in the requirement to separate public and private powers. For an increasing number of functions, public authorities have no choice but to rely on private actors, because they may lack the know-how, skills, expertise or data to execute a task.Footnote 261 As I will discuss below, this is particularly the case in the digital realm, for instance as regards development of algorithmic systems. Such dependency not only poses the risk that public and private interests are mingled, but it can also create a power imbalance in the advantage of large technology companies who are increasingly influential in the public sphere. This influence manifests itself both directly by developing tools for the government and more indirectly by establishing the infrastructure and standards that those tools rely on, which are often not transparent – including for the officials that use those tools.Footnote 262
A second challenge lies in the fact that the balance amongst the various branches of power already seems to be skewed in favour of the executive branch of power. This is due to various reasons. One must, for instance, acknowledge the extensiveness of the tasks delegated by the legislative to the executive, especially in an ever more complex society, where regulatory trade-offs and risk assessments require detailed analyses that legislators are unable to conduct. As noted by Ackerman, “consider, for example, the regulatory problems posed by environmental protection. Although democratic legislation can provide guiding principles, parliaments have neither the time nor the expertise to sift the changing scientific data in search of responsible regulatory solutions”.Footnote 263 More generally, the legislative branch is dependent on the executive to implement and apply its general laws, and the judicial branch is dependent on the executive to implement and apply its judgments. Furthermore, in many countries, the last decade has witnessed a further consolidation of executive power, be it in the context of the financial crisis, the Covid-19 pandemic or for other reasons.Footnote 264 There is also an inherent asymmetry of information between the different branches: the executive holds much more information than the other two branches, which can render the latter’s control of the former difficult. The executive also holds and spends the state budget. Under a worst case scenario, it can deploy this budget to finance actions that fortify its position, slander political opposition and marginalise critics, restrict the scope of action of civil society organisations and gather ever more information about natural and legal persons to increase its control over them.
Evidently, the rule of law, together with secondary legislation that sets out, for instance, rules about budget spending or electoral advertisement, is specifically targeted at preventing this from happening, and limiting the executive’s ability to consolidate its power at the expense of the legislative, the judiciary and civil society. However, that does not take away the fact that, once problematic actions have been undertaken, it can be difficult for the other branches of power to reverse them. Far from being hypothetical, the previous section clarified that this situation is unfolding itself in various states across the world where authoritarian practices are on the rise.
Finally, when considering the context of the European Union, it should be noted that the division of tasks between different branches of power is organised somewhat differently in each Member State, in light of diverse national constitutional traditions.Footnote 265 As there is hence not one model for the configuration of state institutions, it is not always straightforward to assess the extent to which a particular configuration may cross the line of the ‘separation of powers’. This point is, unsurprisingly, also eagerly invoked by populist leaders who seek to diminish the separation of powers and to consolidate executive power under the guise of respecting the ‘diversity of national traditions’.Footnote 266 Accordingly, lest such arguments be used to undermine the rule of law, it is important to maintain a balanced understanding of the separation of powers, which safeguards both the foundational values listed in Article 2 TEU, and Member States’ national identities as protected by Article 4(2) TEU.Footnote 267
3.4 Concluding Remarks
In this chapter, I conceptualised the rule of law and drew on binding and non-binding legal sources from the European Union and the Council of Europe, as well as legal theory, to concretise its core principles into requirements that public authorities must abide by. By respecting these requirements, public authorities not only fulfil their rule of law obligations, but they also enable the protective role that the rule of law plays in constitutional liberal democracies, safeguarding both human rights and democracy. My analysis of the rule of law’s six principles revealed that, just like the concept of the rule of law itself, these principles represent ideals that should be striven towards. Moreover, their fulfilment involves intrinsic challenges, given the normative tensions that are inherent to a pluralistic society governed by general rules requiring concrete application.
Some of these challenges are external to the concept of the rule of law. For instance, the increase in the executive’s competences that accompanied the welfare state lead to what some have described as an (ever stronger) asymmetry of power between the executive, and the legislative and the judiciary.Footnote 268 I also noted how judicial review can be hampered by narrow standing rules, or by the fact that affected persons suffer from a knowledge gap or an incentive gap to initiate legal proceedings.Footnote 269 The fulfilment of the rule of law’s principles by public authorities also depends on whether they can incorporate them into their internal normative systems, rather than seeing them as externally imposed.Footnote 270 Legal obligations can only take one so far; what matters at least as much is the social environment in which public authorities operate.Footnote 271 This also implies that public authorities must be allocated sufficient resources – both time-wise and in terms of adequate resourcing – to achieve their tasks in a diligent manner, and in a way that fosters not only procedural but also substantive rationality.
The achievement of the rule of law is however also dependent on overcoming certain internal challenges, which are part of the rule of law’s very concept. Rather than being clear-cut, the requirements associated with its six principles are imbued with notions that are not always reconcilable and that necessitate delicate trade-offs. For instance, the principle of legality requires a balance between the law’s broadness and prescriptiveness. It is only by setting out broader rules with general applicability that the law can be tailored to specific cases that are not all foreseeable in advance. The goal that this principle serves is, after all, not to essentialise and idealise the law, but to help achieve the rule of law’s overarching aims. Similarly, the fact that public authorities must apply the law in a way that ensures legal certainty – including stability, foreseeability, consistency, publicity and intelligibility – serves the purpose of ensuring that individuals can autonomously and freely plan their lives in accordance with the law, with legitimate expectations about its effects. Yet this very purpose also implies that, sometimes, changed or unforeseen circumstances require a certain level of flexibility and adaptability to continue achieving the law’s normative aims despite the new situation. Moreover, while clear procedures and routinised decision-making processes can help public officials to act in a non-arbitrary and non-discriminatory manner, some level of discretion remains necessary, as it enables officials to balance competing interests in specific situations and soften the law’s hard edges.
In sum, there is a fine line between too little and too much precision, too little and too much stability, and too little and too much discretion. Overcoming these tensions may be a challenge, yet this should not be seen as a weakness of the rule of law, but rather as a strength – or, as Hildebrandt puts it, “a feature, not a bug”.Footnote 272 By navigating these tensions and balancing them in concrete situations, the law can fulfil its protective role in an ever-changing environment. Public authorities should hence not seek to undo these tensions – or worse, to disguise them – but they should aim to strike, in each context, the right balance between extremes in order to safeguard the rule of law’s spirit. Put differently, a marriage must be found between rules and discretion – whereby it should be stressed that marriage is a perpetual dance, not a one-shot game,Footnote 273 and that it requires continuous work rather than quick fixes. Certainly, it may not always be the happiest of marriages, but some mutual understanding is needed, for their divorce would either result in a rule by law (if the focus shifts entirely to the ‘rules’) or in no rules at all (if the focus shifts entirely to ‘discretion’). The rule of law is thus the middle way that public authorities should strive for, by embracing rather than erasing the tensions inherent thereto.
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