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The Rule of Law as a Common Individual-Centred Principle and the European Union’s and Member States’ Joint Obligation to Uphold It

Published online by Cambridge University Press:  28 April 2026

Clarissa Barth Open the ORCID record for Clarissa Barth [Opens in a new window]
Clarissa Barth*
Affiliation:
Faculty of Law, University of Hamburg, Germany
*
clarissa.barth@uni-hamburg.de

Abstract

The current debate on the rule of law in the EU is focused on Member States’ rule of law observance within their national systems and the EU’s possibilities to foster it. Connected to this, the need for the effectiveness of EU law is stressed and the rule of law is mingled with EU law primacy. That focus’s conceptual underpinnings have considerable short-comings. In particular, they create fallacies with regard to the joint exercise of public power by the EU and Member States and fail to put individuals’ protection from public power’s misuse at the heart of the rule of law. In response to that, this Article (re)introduces rule of law’s understanding as a common individual-centred principle. It lays the conceptual and legal foundations and illustrates the joint obligation it creates with regard to collisions of EU and national law and to blurred lines of responsibility within cooperative administration. In contrast to an effectiveness-driven, functionalist and self-referential understanding, a common individual-centred principle of the rule of law functions as an individual-centred counterbalance to the joint exercise of public power within the EU. Without claiming a conclusive conceptualisation of the rule of law, these neglected facets are brought to the fore.

Keywords

Rule of lawEU valuescommon principlesprimacycooperative administration

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Article
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German Law Journal , First View , pp. 1 - 20
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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (https://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution and reproduction, provided the original article is properly cited.
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© The Author(s), 2026. Published by Cambridge University Press on behalf of German Law Journal e.V

A. Introduction

Triggered by rule of law backsliding in Member States, the current debate on the rule of law within the EU is focused on Member States’ rule of law observance within their national systems and the EU’s possibilities to foster it, that is the relationship between the EU and Member StatesFootnote 1 : When do Member States infringe their EU law obligations in a way that ought to trigger a reaction by the EU? What instruments can the EU enact? Who is to define the rule of law? What is to be protected to save mutual trust and cooperation? Connected to the focus on Member States’ rule of law compliance within their national systems, the need for the effectiveness of EU law is stressed and the rule of law is mingled with EU law primacy.Footnote 2

In response to that, some legal scholars speak of an abuse of the very concept of the rule of law.Footnote 3 At least, there are considerable short-comings. For one, focusing on effectiveness and mingling the rule of law with EU law primacy tends to expand public power instead of tempering it, while the latter can be seen as rule of law’s central aim.Footnote 4 Further, it silences mutual dialogue on rule of law’s functioning and meaning within the EU, hindering checks and balances.Footnote 5 For another, the focus on the inter-institutional relationship between the EU and Member States and a functionalist operationalisation of the rule of law tend to create blind spots with regard to the EU’s and Member States’ joint exercise of public power vis-à-vis individuals.

Assuming that these shortcomings cannot be solely put down to the rule of law backsliding in Member States, absorbing all our attention, but are linked to lopsided conceptual underpinnings, this Article brings to the fore rule of law’s distinct understanding as a common individual-centred Footnote 6 principle.Footnote 7 In contrast to an effectiveness-driven, functionalist, and self-referential understanding of the rule of law, an individual-centred perspective on a common constitutional principle can function as a counterbalance to the joint exercise of public power by the EU and Member States. Considering its multi-faceted connections and operationalisations, however, no conclusive conceptualisation of the rule of law is claimed. Rather, the Article highlights neglected facets of the functioning of the rule of law within the EU. To do so, Section B lays the conceptual and legal foundations for understanding the rule of law as a common individual-centred principle. To illustrate this understanding and the difference it makes, Section C elaborates on its implications for collisions of EU and national law and for blurred lines of responsibility within cooperative administration, that is two fields where the joint exercise of public power by the EU and Member States becomes particularly apparent. The Article’s overall aim is to contribute to the conceptualisation of the rule of law within the EU. It does not elaborate on rule of law’s content, trying to attribute different subprinciples or other elements to it, or its implications in specific cases. Rather, it sheds light on rule of law’s framing and functioning within the EU, advancing its understanding as a common constitutional principle. Beyond that, the Article aims at clarifying rule of law’s say on the ever-lasting question of primacy as well as the increasingly blurred lines of responsibility within cooperative administration. While rule of law’s implications can certainly not tell the whole story, the impact of framing something as a challenge to the rule of law makes them worth investigating.

In the beginning, two clarifications should be made: For one, the Article is based on the pluralistic assumption that EU and national law, both, is autonomously valid and applicable and interacts without a predetermined hierarchy.Footnote 8 For another, the rule of law is investigated as a fundamental constitutional Footnote 9 principle. Despite all interdependencies between society, concepts, and law, this differs from a genuine investigation as a political or social ideal.Footnote 10 As a legal principle, the rule of law is linked to its legal establishment(s) and tends to be self-reflective, that is focussing on the state of law and public institutions. Further, legal principles tend to follow the self-referentiality of “their” legal order. In this sense, they differ from overarching ideals naturally covering different legal orders.Footnote 11 However, with regard to the latter, this Article will show how a reciprocally common principle of the rule of law can bridge the gaps between the supranational and national self-referential legal orders and their demands.Footnote 12

B. The Rule of Law as a Common Individual-Centred Principle

Section B elaborates on the conceptual and legal foundations for understanding the rule of law as a common individual-centred principle within the EU. It is divided in preliminary elaborations on the development of the rule of law in the EU (I.), its individual-centredness (II.), and its understanding as a common principle (III.).

I. Rule of Law’s Development and Establishment in the Treaties

The development of the rule of law in the EU has two interconnected strands: Before it has been established in the treaties, subprinciples of, the rule of law had been developed as general principle(s) of Community law. To ground further elaborations on rule of law’s development and its recent establishment in Article 2 of the Treaty on European Union (TEU), both is shortly presented.

1. Rule of Law’s Development as General Principle(s)

Rule of law’s development as general principle(s) can be seen as a reaction to the extensive primacy claim. Quite in the beginning of the European integration project, the Court of Justice of the European Union (CJEU)’s claim for EU law primacy had triggered the development of general principles of Community law. EU law had just started to operate when the CJEU announced its autonomous applicability in the Member States: EU law as supranational law is directly applicable towards people.Footnote 13 As commonly known, the CJEU did not stop there, but added EU law’s primacy over national law.Footnote 14 As that also meant primacy over national constitutions,Footnote 15 the latter had been put out of place to protect individuals in areas covered by EU law. As a reaction, the CJEU began to develop fundamental rights as “general principles of Community law ….”Footnote 16 Even earlier, the court had started to develop general principles related to the rule of law.Footnote 17 Although in the beginning it did not frequently use the term rule of law, it subsequently acknowledged several of its subprinciples as general principles.Footnote 18 Later, it started to refer to the rule of law more frequently.Footnote 19 In mentioning the rule of law, however, the CJEU mingled the general principle(s) with the “community based on the rule of law ….”Footnote 20 While no clear-cut distinction can be drawn, the expression of the community based on law is rather used to highlight EU law peculiaritiesFootnote 21 and justify its primacy.Footnote 22 In contrast, the development of general principles by the CJEU can be seen as a reaction to challenges that the EU and Member States have in common.Footnote 23 That is why the CJEU refers, inter alia, to common national requirements when developing them. The emergence of the rule of law as general principle(s) has also been based on such.Footnote 24 That is, the rule of law has emerged as general principle(s) of EU law because it had been a fundamental principle of national constitutional law.Footnote 25 Similarly, though not referring to frictions stemming from the community based on law,Footnote 26 Tridimas distinguishes principles derived from national law that “refer primarily to the relationship between the individual and the public authorities[,]” attributing them to the rule of law, and principles that “refer to the relationship between the Community and Member States[,]” including inter alia primacy of EU law.Footnote 27

2. Rule of Law’s Establishment in the Treaties

The connection to national constitutions has been strengthened when the rule of law has been introduced into the treaties. Whereas the Treaty of Maastricht confirmed the attachment to the rule of law in its recitals, the Treaty of Amsterdam introduced it into the operational part.Footnote 28 According to Article F(1), the EU was based, inter alia, on the principle of the rule of law, common to all Member States.Footnote 29 The Treaty of Nice kept that wording until the Treaty of Lisbon brought some change.Footnote 30 According to Article 2 TEU, one of the values on which the EU is founded is the rule of law and this value is common to all Member States.Footnote 31 However, the establishment in Article 2 TEU has not clarified the matter. Instead, there are on-going debates on Article 2 TEU’s qualification, content, and implications, mainly due to the term values.Footnote 32 Here, it is only highlighted that it contains binding fundamental principles. In contrast to the Treaty of Maastricht, the Treaty of Lisbon has established the rule of law in its operative part.Footnote 33 Although the term values might typically be used to prescribe moral or ethical beliefs, breaches of the values in Article 2 TEU can have legal consequences.Footnote 34 Also, other texts still refer to principles, not having changed their wording.Footnote 35 Going further, Article 2 TEU shows that respect for human dignity, freedom, democracy, equality, the rule of law, and human rights are fundamental requirements in the EU.Footnote 36 To stress this fundamental importance, Article 2 TEU refers to the Union being founded on the values.Footnote 37 Considering this, the term values should not be understood as limiting their legal significance, but as stressing their importance as fundamental constitutional principles.

II. The Rule of Law as an Individual-Centred Principle

Building up on this, this section will substantiate the understanding of the rule of law as an individual-centred principle. Despite being quite indubitable, this feature is rather neglected: Following the focus on Member States’ rule of law observance and the EU’s possibilities to foster it, much attention is paid to the operationalisation of the rule of law within the inter-institutional relationship between the EU and its Member States. Apart from discussing new mechanisms to foster the latter’s rule of law observance, rule of law infringements have been made conditional on systemic breaches endangering cooperation and mutual trust between the EU and Member States.Footnote 38 Connected to that, the effectiveness of EU law in the Member States is stressed and the rule of law is mingled with EU law primacy;Footnote 39 while challenges to ensure clear responsibility and accountability in cooperative administration, where the rule of law could function as a counterbalance to the joint exercise of public power by the EU and Member States and protect individuals, are rather neglectedFootnote 40 . Considering this, the rule of law has rather been used as a functionalist tool for integration while neglecting its orientation towards individuals’ protection. In response to that, this section will (re)introduce the rule of law as an individual-centred principle. Acknowledging its multi-faceted connections and operationalisations, this will be done by contrasting different features of the rule of law.

1. Effectiveness vs. Restraint

When trying to grasp rule of law’s meaning, it should be acknowledged that there are quite different concepts.Footnote 41 Ranging between thinner “formal” and thicker “substantive” understandings, lists of rule of law requirements can differ significantly.Footnote 42 However, at least within the EU, the rule of law aims at ensuring that publicFootnote 43 power is bound by law to avoid its misuse against those subject to it.Footnote 44 In this sense, the misuse of power is understood as its arbitrary use that could not have been expected by those subject to it.Footnote 45 Insofar, the rule of law aims at tempering the exercise of public power against individuals. To ensure this, it also grants individuals the possibility to defend their rights, setting limitations to the exercise of public power and to the application and enforcement of law.Footnote 46

In contrast to this,Footnote 47 the rule of law is also connected to the effectiveness of law. To make law rule, it shall be effective – more effective, at least, than other forces.Footnote 48 In this sense, individuals’ law compliance can also be seen as an indicator for rule of law observance.Footnote 49 Notably, their compliance can be demanded either in order to guarantee law and order or in order to enable other individuals to rely on the law, also in private law areas. While a simple demand for law and order should be distinguished from the rule of law, the latter is connected to ensuring legal certainty for individuals.Footnote 50 Connected to this, the effectiveness of law should not be equated with that of public power. While both point in the same direction as far as the latter has been exercised by enacting law, the rule of law aims at tempering public power through, effective, legal boundaries. This distinction also concerns the separation of powers and institutional balance: From a tempering-perspective, inter-institutional checks and balances aim at moderating the exercise of public power vis-à-vis individuals, while from an effectiveness-perspective, public tasks should be adequately allocated to different institutions in order to be dealt with most effectively.Footnote 51 Rather than ensuring the rule of law, the latter aims at securing the proper functioning of public institutions.Footnote 52

Still, the rule of law is connected to the effectiveness of law as well as to limitations thereof. According to Rodríguez, “[t]his dialectical character is consubstantial to the rule of law and should be embraced instead of rejected. It poses though several difficulties to assess how it should work, i.e., where the concrete turning point is placed (raising … the question of the specific legal context) ….”Footnote 53 It “[f]inally … signals the importance of legal reasoning and argumentation, since at the theoretical level this dialectical nature entails the possibility of reversible argumentation resulting in opposite rulings ….”Footnote 54 Notably, the effectiveness of law proves to be a fragile argument where different laws interact. With Meyer, “effectiveness is itself janus-faced since it also comprises the effective protection of individual rights not only as vehicle for the enforcement of EU law but also an important limitation thereof.”Footnote 55 Now, within the pluralistic multi-level system of EU and national law, various legal norms interact and are intertwined in a complex manner. Considering this, the effectiveness of law does not promise to be a useful focal point for the conceptualisation of the rule of law within the EU, at least not in a way that determines the relationship between the different levels.Footnote 56

Article 2 TEU supports this understanding: As it establishes fundamental principles like respect for human rights and the rule of law that legitimise the exercise of public power against individuals, it can hardly have the effectiveness of public power or law at its heart. As it binds the EU and Member States to those common principles, it will hardly be limited to their inter-institutional relationship. Also, rule of law’s development as general principle(s) supports this understanding as those have been developed to restrain the newly established public power of the Community because national constitutions have been unable to do so, that is as a reaction to the primacy claim.Footnote 57

2. Inter-Institutional vs. Individual-Centred

Having touched upon institutional balance, it has already become clear that the rule of law also matters within inter-institutional relations. To ensure the moderation of public power to protect individuals from its arbitrary use, public institutions are in charge to enact some control over each other and defend their competences. Within the EU, there is not only a “horizontal” institutional balance on the national and the EU level, but also a “vertical”Footnote 58 one between the EU and Member States and a “diagonal” one between for example the CJEU and national governmentsFootnote 59 . In particular, they are defined by division of competences. In this sense, there are elements of the rule of law that regulate the inter-institutional relationship between EU and national institutions. However, acknowledging this feature is not the same thing as saying that the rule of law protects public institutions from the other institutions’ abuse of power.Footnote 60

More specifically, the treaties introduce possibilities to enforce Member States’ rule of law observance, apart from infringement procedures especially in Article 7 TEU. This shows that the EU is indeed in charge to foster Member States’ rule of law observance, which is affecting their inter-institutional relationship. Further, Article 49 TEU makes accession to the EU conditional on rule of law observance and the CJEU speaks of “compliance by a Member State with the values … [as] a condition for the enjoyment of all the rights deriving from the … Treaties to that Member State ….”Footnote 61 Here, the rule of law functions as a “benchmark … to assess and eventually sanction … its … members ….”Footnote 62 However, this function does not preclude an ultimately individual-centred perspective; which is at least shown by what the EU finally expects from backsliding Member States: reassuring judicial protection by independent courts to guarantee “the trust which justice in a democratic society governed by the rule of law must inspire in individuals ….”Footnote 63

Beyond such operationalisations, there are broader attempts to transfer rule of law protection to inter-institutional relations, even in the international context. According to Chesterman, “the application of rule of law principles to relations between states and other subjects of international law … is how the rule of law is typically understood in this context.”Footnote 64 Beinlich and Peters call it the “international rule of law ‘proper’” and perceive it as “mainly … used as shorthand for compliance with international law, a synonym for a ‘rule based international order’ ….”Footnote 65 This is not to be equated with a principle protecting one side from the misuse of power against it, setting limitations to the application and enforcement of law. Moreover, the situation within the EU considerable differs from the international context. Besides regulating the relationship between the EU and Member States, EU law is directly applicable towards people. In the pluralistic multi-level system within the EU, individuals are concurrently affected by EU and national law. Considering this joint exercise of public power towards individuals, it is at least not sufficient to transfer the rule of law to the relationship between the EU and Member States.

Setting aside the oversight over the Member States’ rule of law observance in Article 7 TEU and Article 49 TEU, the rule of law is most prominently established in Article 2 TEU.Footnote 66 The article’s interpretation supports the understanding of the rule of law as an ultimately individual-centred principle. For one thing, Article 2 TEU names the rule of law together with human dignity, freedom, equality, and human rights, which are closely connected to individuals. For another, the compilation shows that Article 2 TEU aims at constituting fundamental principles that legitimise and restrain the exercise of public power within the EU. In clear contrast, Article 3 TEU stipulates the EU’s aims and Article 4 and 5 TEU regulate the relationship between the EU and Member States.Footnote 67 Also, the development of the rule of law as general principle(s) supports its individual-centredness. Distinguishable from doctrines like equivalence and effectiveness of EU law, general principles have been developed by drawing from national constitutions in order to face challenges that the EU and Member States have in common. As a reaction to EU law’s direct effect and primacy, general principles were supposed to protect individuals as national constitutions had been put out of place to do so. Having drawn from national constitutions in order to face similar challenges related to the rule of law, the CJEU has not referred to the relationship between the EU and Member States, but has initially integrated an individual-centred perspective. With Tridimas, general principles “have been developed … in order to protect the individual, and … ensure that Community institutions and national authorities act within the remit of the rule of law.”Footnote 68 More generally: “Even if this process [of constitutionalization] has started as a spill-over of the primacy of the EU legal order, the core of … [it] is represented … by the nature of the relationship between public powers and individuals, in particular by how the exercise of public powers is constrained ….”Footnote 69

3. Functionalist vs. Individual-Centred

Following the focus on the EU’s possibilities to foster Member States’ rule of law observance within their national systems, rule of law infringements are being linked to their influence on cooperation and mutual trust. With regard to Article 7 and Article 2 TEU, the rule of law is only invoked when a situation in a Member State raises challenges for cooperation and mutual trust or, more generally, the functioning of the European integration project.Footnote 70 Also taking into account the problems of operationalising EU standards against Member States, infringements of the rule of law are seen to be limited to systemic deficiencies.Footnote 71 Such tendency to focus on systemic deficiencies can be noticed in several areas of EU lawFootnote 72 and in legal research.Footnote 73 Apart from limiting infringements to systemic deficiencies, the need to intervene is linked to their systemic relevance, namely their influence on cooperation and mutual trust.

While such considerations seem plausible with regard to Article 7 TEU and, arguably, the Commission’s choice to initiate infringement procedures, they do not meet the individual-centred principle in Article 2 TEU.Footnote 74 Article 2 TEU, in clear contrast to Article 7 TEU, gives no specific reason to limit rule of law observance to the avoidance of systemic deficiencies endangering cooperation.Footnote 75 Rather, it establishes a fundamental principle legitimising and restraining the exercise of public power against individuals. Despite all the difficulties of operationalising abstract terms, especially in a pluralistic multi-level context, a limitation to systemic deficiencies has no solid basis in Article 2 TEU. Rather, Article 2 TEU establishes fundamental principles restraining the exercise of public power in order to protect individuals from its arbitrary use, which can also happen in single cases. As soon as we loosen the focus on rule of law’s operationalisation against Member States, the limitation to systemic deficiencies loses its plausibility.Footnote 76 Instead, rule of law’s functioning as a fundamental constitutional principle comes to the fore. In Smith’s words, this means referring to its functioning as “a constitutional principle that limits the use of arbitrary public power” instead of a “tool of integration”, a “functional policy tool to ensure adherence to EU policies ….”Footnote 77

III. The Rule of Law as a Common Principle within the EU

Building up on its individual-centredness, the rule of law can be understood as a common principle, that is a shared principle jointly obliging the EU and Member States. This legal qualification is quite specific to the EU context and can be justified with reference to rule of law’s development as general principle(s) and Article 2 TEU. From a conceptual perspective, it seems quite natural that the rule of law, seeking to protect individuals from public power’s misuse, addresses all public power individuals are subject to. Within the multi-level system of EU and national law, it should address the exercise of public power by the EU and Member States. If public power is exercised jointly, it should address that joint exercise. However, as a legal principle, the rule of law is derived from a certain legal order and is therefore initially self-referential. Moreover, the EU rule of law principle could merely address the EU and Member States separately. While recent developments seem to point in that direction,Footnote 78 one of the main arguments here is that it does not. As stated in Article 2 TEU when both sentences are read together, the principle of the rule of law binds the EU and Member States and is common to them. Taking this establishment as common principle serious, the EU and Member States are not bound each separately. Rather, the principle is shared and results in a joint commitment. In other words, the EU and Member States are bound together.Footnote 79

This understanding is based on the distinct reference to common values in Article 2 TEU’s second sentence. Although “common” can be understood as “belonging to or shared by two or more people” or as “the same in a lot of places or for a lot of people”Footnote 80 and is therefore open to interpretation, the explicit reference is decisive. To establish separate commitments, the reference to common values would not have been necessary. Instead, Article 2 TEU could state that the EU and Member States are bound by the rule of law or, sticking to its structure, first state that the EU is bound and then add that also Member States are. Further, Article 2 TEU’s wording can be linked to the development as general principle(s), relying on common requirements in Member States. Those principles stem from a minimal consensus on the importance of the rule of law within the EU.Footnote 81 Moreover, general principles were introduced to address common challenges and fill the “constitutional gap” caused by the extensive claim for EU law primacy. Building up, general principles have been developed to ensure that the differentiation of public power initiated by the creation of the Community/EU will not create blind spots in individuals’ protection. Upholding this purpose with regard to the joint exercise of public power by the EU and Member States requires to understand the rule of law as jointly binding them. Article 2 TEU strengthens this connection to national constitutions, as well as the purpose to ensure that the differentiation of public power will not create blind spots to the disadvantage of individuals, by referring to values common to the EU and Member States. As Tridimas has put it: “At the heart of … European Constitutionalism lies an aspiration that … the transfer of powers to supra-national organizations is acceptable provided that it is accompanied by shared commitment to abstract principles ….”Footnote 82 Unlike the development of general principles, establishing the rule of law in Article 2 TEU was legally not conditional on its commonality. Yet by explicitly referring to common values, it has established a principle jointly binding the EU and Member States. This can further be supported by the article’s aim to legitimise the exercise of public power within the EU, hinted by the wording that the Union is founded on the values, which are common to all Member States. If that joint exercise is deeply intertwined, a principle that legitimises and restrains the exercise of public power has to consider that. Considering all of this, the reference to common values in Article 2 TEU cannot be solely understood as shielding Member States from too ambitious EU law standards. Admittedly, values common to various legal orders tend to be broader and create less obligations. However, Article 2 TEU binds the Member States to respect for human dignity, freedom, democracy, equality, the rule of law, and respect for human rights without making that conditional upon an actual commonality or lowest common denominators. Though the concretisation of common principles has to consider their commonality and cannot be unilaterally imposed by the EU, that cannot exhaust the reference to common values in Article 2 TEU. That would disregard the article’s legitimising function and purpose.

Broadening the perspective, some national constitutions also picture their fundamental principles as being shared within the EU, making them a concern of common interest. For example, the German constitution pictures the EU as being obliged, inter alia, by the fundamental principles of democracy, the rule of law, and the protection of human rights.Footnote 83 This shows that also from a German perspective, the rule of law is seen as a common principle, at least of the German and the EU constitution. So, despite different legal sources at the supranational and national level, the rule of law is reciprocally treated as a common principle. Insofar, it bridges the gaps between the autonomous EU and national legal order, with their initially self-referential principles,Footnote 84 by jointly addressing the exercise of public power, at least, by EU and German authorities. Apart from this reciprocal commonness, already from an EU law perspective, Article 2 TEU treats the rule of law as a common principle of the EU and all Member States.Footnote 85

While Palombella also calls for overthrowing a self-referential understanding of the rule of law, he refers to an overarching ideal and focuses on enhancing checks and balances through different layers of law, “operating, if need be, in the place of a hierarchically ordered formalist monism ….”Footnote 86 While such an understanding can also be supported by the above reading of Article 2 TEU, this Article focuses on addressing the intertwined public power of the EU and Member States, in particular from the perspective of individuals’ legal certainty.Footnote 87

C. Implications of the Joint Obligation to Uphold the Rule of Law

So, the rule of law within the EU can be understood as a distinctly common individual-centred constitutional principle that jointly obliges the EU and Member States. To illustrate this understanding, its implications for collisions of EU and national law (I.) and for blurred lines of responsibility within cooperative administration (II.) will be shown. Rule of law’s say on both of these issues is (re)considered without being able to appreciate the whole legal context and/or propose overall solutions. Rather, “problem” and “solution” are examined from a distinct rule of law perspective.

I. Norm Collisions and the Joint Obligation to Uphold the Rule of Law

To start with, rule of law’s say on collisions of EU and national law and the question of primacy needs to be reconsidered. Primacy has been discussed from the very beginning of European integration. As already mentioned, the CJEU gave its answer early, although there are different nuances in more recent jurisprudence.Footnote 88 Particularly because national courts have not fully accepted the primacy claim, the question is unsettled until today. Theoretically, the never-ending controversy is interlinked with the pluralistic interaction of EU and national law, though also pluralistic approaches can strive for resolving conflicts. Within the on-going controversy over primacy, the rule of law has been referred to for substantiating EU law primacy. As this section will show, that is one-sided and needs to be reconsidered from the perspective of a common individual-centred principle of the rule of law.

1. The Need to Solve Norm Collisions

Starting with addressing the problem, legal certainty as a subprinciple of the rule of law demands that individuals can adapt to the law.Footnote 89 As a shared principle jointly binding the exercise of public power by the EU and Member States, it requires the intertwined legal situation stemming from EU and national law to be sufficiently certain. It follows that also collisions of EU and national law shall be solved. While this is already true from an EU law perspective, a reciprocally common principle of the rule of law in EU and national law can go further. To appreciate this, we first have to broaden our perspective on collisions of EU and national law. When we consider the EU and the national perspective from a pluralistic standpoint, we have to take into account EU and national law’s equal autonomy, hindering one legal order to unilaterally impose its perspective on primacy upon the other.Footnote 90 As a consequence, there could be different perspectives on how to solve a norm collision which could not be easily reconciled. As EU and national law is concurrently applicable towards individuals, they could then not adapt to the legal situation applicable to them. Only if the rule of law is understood as a reciprocally common principle, however, this need can be addressed in strictly legal terms. Otherwise, one could simply take up the position that within each legal order everything is perfectly clear.Footnote 91 In this sense, the rule of law as a reciprocally common principle bridges the gap between the supranational and national autonomous, self-referential legal orders in order to comprehensively solve norm collisions.Footnote 92

At the same time, individuals are affected by law in given cases. What matters to them is not the whole intertwined multi-level system of EU and national law, but its application towards them in given cases. So, for the common individual-centred principle of the rule of law it is sufficient to solve norm collisions in the given cases in which they occur. From an individual perspective, there is no need for an abstract, system-related solution to norm collisions.Footnote 93 All in all, the rule of law as a reciprocally common principle calls for comprehensive solutions for collisions of EU and national law in given cases in which individuals are affected. In a broader sense, this marks a shift from ensuring system-related coherence by relying on the autonomy and self-referentiality of one legal order, preferably the EU legal order,Footnote 94 to ensuring individual-centred, comprehensive legal certainty for individuals concurrently affected by EU and national law, or, more generally, the joint exercise of public power, in given cases.Footnote 95

2. The Rule of Law, not the “Rule of One Law over the Other”

Still, such comprehensive solution to norm collisions cannot be achieved by unilaterally imposing the perspective on primacy of one legal order. Notwithstanding, the argument has been made that the rule of law requires EU law primacy.Footnote 96 Recently, also the CJEU refers to the rule of law to substantiate EU law primacy: In RS, the court links the full application of EU law in Member States with Article 19(1) and Article 2 TEUFootnote 97 and frames disregarding conflicting national rules and practices as a “guarantee that is essential to judicial independence as provided for in the second subparagraph of Article 19(1) TEU ….”Footnote 98 While some legal scholars simply highlight this partly new argumentation,Footnote 99 others accuse the court of an abuse of the very concept of the rule of law, arguing that relying on the rule of law to expand public power via EU law primacy and silencing further dialogue is contradictory to the principle’s aim.Footnote 100

At first glance, it seems quite plausible that, if the rule of law demands that law rules, the EU rule of law demands that EU law rules.Footnote 101 This view is favoured by a focus on effectiveness and considerably less likely when avoiding the arbitrary exercise of public power is stressed as rule of law’s central aim.Footnote 102 Further, from an EU law perspective, it seems natural to focus on the effectiveness of EU law, especially as its enforcement in Member States is quite challenging. From this angle, every non-application of EU law is seen as political disobedience to the rule of law.Footnote 103

At second glance, however, the argument is one-sided as it neglects that national law is also law and, if effective law enforcement is rule of law’s demand, shall be enforced. Holistically, a norm collision cannot be solved by reference to the rule of law.Footnote 104 More specifically, as a consequence of the common principle of the rule of law, the EU and Member States take part in a joint commitment to uphold the rule of law against the misuse of public power. That distinctly questions rule of law’s significance in determining the relationship between different laws. The rule of law as a common principle is no “rule of one law over the other.” It does not concern the relationship between different laws, but the one between the intertwined public power and the intertwined law. This is already true from the EU law perspective of the common principle of the rule of law stated in Article 2 TEU, as it jointly obliges the EU and Member States and demands to consider their intertwined exercise of public power.

What is more, calling for EU law primacy to settle the question and provide certainty over the applicable lawFootnote 105 does not meet rule of law’s individual-centred perspective. From this perspective, a solution to norm collisions is needed in given cases. Considering this, it would overstretch rule of law’s impact as a fundamental, yet relative, principle to base primacy on it. As long as there are other ways to sufficiently ensure certainty over the applicable law in given cases, it cannot demand abstract EU law primacy.Footnote 106 This is already true from the EU law perspective of a common principle of the rule of law, because Article 2 TEU establishes it as an individual-centred principle alongside others. Within the EU constitutional law framework, the rule of law is directed at safeguarding individuals’ protection and trust while not being an absolute requirement. In the end, “any confusion between supremacy and the Rule of Law should be excluded outright to guarantee the compliance of both levels of the EU’s complex legal system with the values of Article 2 TEU[,]”Footnote 107 including their joint exercise of power.

So, despite calling for solutions to norm collisions in given cases, the rule of law cannot provide them on an abstract level. Conceptually, it only frames related challenges as rule of law challenges and triggers joint efforts to find suitable solutions, marking the start, not the end of the story.Footnote 108 All in all, in the debate on the rule of law and primacy, things have gone too far. While primacy could instead be based on a shared demand for uniformity within the EU,Footnote 109 subprinciples of the rule of law, depending on the context and specific case, could be weighed against it and function as a counterbalance not only to the effective exercise of public power, but also to the uniformity of law within the EU.

II. Blurred Lines of Responsibility and the Joint Obligation to Uphold the Rule of Law

While norm conflicts and primacy have been widely discussed for decades, blurred lines of responsibility within cooperative administration, as a joint exercise of executive public power, are still less prominent. More recently, challenges to ensure clear responsibility and accountability are addressed,Footnote 110 but they are not sufficiently framed as rule of law challenges and a conceptualisation as a distinctly common individual-centred principle is missing.

1. Addressing Blurred Lines of Responsibility within Cooperative Administration

Over time, EU institutions have become more and more involved in the administration of EU law. In many fields of EU law, a complex administrative cooperation has been established.Footnote 111 In some areas, this complexity has been raised by establishing EU agencies that cooperate with EU and national authorities.Footnote 112 Also, national authorities from several Member States might be involved.Footnote 113 All in all, various EU institutions, EU agencies, and national authorities might cooperative within a single matter. In a nutshell, such complex cooperative settings can create blurred lines of responsibility. As a consequence, individuals cannot allocate the responsibilities of all the various actors. As judicial protection in the separated judicial systems still depends on allocating responsibilities, however, unclear responsibility also hinders individuals’ judicial protection. In particular at the EU borders, where for instance Frontex as an EU agency and national authorities carry out joint return operations, affected individuals have no means of allocating all the involved responsibilities and get effective judicial protection; a situation that encourages EU and national institutions to point fingers at each other.Footnote 114

Although challenges to ensure clear responsibility and accountability have been addressed for some time,Footnote 115 the rule of law is rarely relied on in a substantive manner. Whereas the right to an effective remedy is typically referred to for assessing the access to judicial protection, the rule of law is rather mentioned for framing, only peripherally, or not at all.Footnote 116 When the rule of law is mentioned, this is not underpinned by a distinct understanding as a common individual-centred principle.Footnote 117 At least, Marin states that “the EU rule of law can become the focal paradigm … since it can provide the key to understand the core of the challenges of today”Footnote 118 and emphasises that the “very core constitutional identity of the EU is … precisely expression of the relationship between public powers - interpreted in their double declination of (sub-)national and supranational - and individuals ….”Footnote 119 More recently, she explicitly refers to a “rule of law crisis at the external borders”Footnote 120 and also addresses challenges related to complex “multi-actor situations[.]”Footnote 121 Focusing on agencies, she insists that “constitutional constraints … are precisely forged on the relationship between public powers and individuals and [that] they require that the exercise of public powers be constrained by rules of law ….”Footnote 122 Notwithstanding, Marin also does not refer to a common individual-centred principle of the rule of law jointly obliging the EU and Member States.Footnote 123

An alignment to that joint obligation would enable us to properly address the complex intertwinement of public power in the EU. In contrast to a situation in which the EU and Member States would face separate obligations to uphold the rule of law, the joint obligation addresses EU and national institutions together. Facing a joint obligation to uphold the rule of law, they jointly have to ensure clear responsibility and accountability. Accordingly, they are legally forbidden from pointing fingers at each other.Footnote 124 That is why every approach to address challenges ensuring clear responsibility and accountability should be based on the (re)assurance of the common individual-centred principle of the rule of law. In contrast to the debate on the rule of law and primacy, the debate has not gone far enough. Here, a distinct understanding of the rule of law as a common individual-centred principle can align the discussion, putting it under a distinct rule of law framing. As a common fundamental constitutional principle jointly obliging EU and national institutions, the rule of law can function as a critical benchmark not only for the cooperative settings established by secondary law, but for the judicial protection available to affected individuals. Arguably, EU and national courts, facing a joint obligation to uphold the common individual-centred principle of the rule of law, are required to coordinate available proceedings and consider evident flaws at the other level.Footnote 125

2. Clear Responsibility and Accountability, not Centralisation

The rule of law as a common individual-centred principle should also be considered when developing solutions for blurred lines of responsibility. So far, different solutions have been suggested, from drafting clearer regulations comprehensively distributing all the relevant competences and duties,Footnote 126 enhancing public access to information and transparency,Footnote 127 and establishing a single forum for judicial protection,Footnote 128 to strengthening the supranationality of cooperative administration by establishing more EU competences to minimise complexity.Footnote 129 However, the rule of law does not demand supranationalisation of administrative processes. That would overstate its impact as an individual-centred, relative principle. As long as there are other ways to ensure sufficiently clear responsibility and accountability in given cases in which individuals are affected, the individual-centred principle of the rule of law does not, in and of itself, demand further centralisation.Footnote 130

D. Conclusion

Within the EU, the rule of law can be understood as a common individual-centred principle protecting individuals from the misuse of the joint exercise of public power by the EU and Member States. In addition to preventing backsliding in Member States, such understanding enables us to address and to counterbalance the intertwined exercise of public power within the EU. More specifically, it enables us to reconsider rule of law’s say on primacy and on blurred lines of responsibility within cooperative administration. While the former has been overstretched, the latter is still underexplored. This difference can be linked to the functionalist understanding of the rule of law that puts too much weight on effectiveness. The rule of law is not a mere policy tool, but a common constitutional principle. By examining its functioning as such, this Article contributes to “[t]ravelling the profound distance back toward an understanding of the rule of law as a power limiting principle that also applies to the EU institutions as well as Member States[,]”Footnote 131 focusing on their joint exercise of public power. With Palombella, “[t]he only way to avoid an instrumental use of the Rule of Law … lies in a convergence upon a ‘transitive’ meaning … as a common denominator among the two levels[,]”Footnote 132 that is individuals’ protection from public powers misuse.

For now, a certain pattern of rule of law’s functioning as a common individual-centred principle can be noticed: First, it demands to address uncertainties resulting from the intertwinement of the EU’s and Member States’ joint exercise of public power. Second, it does not leave the floor for mere considerations of effectiveness, but requires considering individuals’ protection, in particular through legal certainty, clear responsibility and accountability.Footnote 133 Finally, it neither demands nor provides seemingly easy solutions promised mainly by unification and centralisation. It rather calls for more holistic solutions within the pluralistic multi-level system within the EU.Footnote 134

In contrast to a merely effectiveness-driven, functionalist, and self-referential understanding, the individual-centred perspective on the rule of law as a common constitutional principle can function as a counterbalance to the joint exercise of public power by the EU and Member States and work as a “benchmark that serves to assess the way in which th[e] [constitutional] framework operates[,]”Footnote 135 indicating its critical potential.

Acknowledgements

The author is thankful for valuable feedback she received on former versions of this Article at a workshop at the EU Law Department of the University of Groningen in May 2025 and at a workshop organised by the German Chapter of the ICON-S in Mannheim, Germany, in September 2024. Thank you also to Emma Gilliam and the student editor team of the German Law Journal for their support throughout the editing process.

Competing Interests

The author declares none.

Funding Statements

No specific funding has been declared in relation to this Article.

References

1 While such a focus on the relationship between the EU and Member States can be observed, there is also a more nuanced dimension to it when for example the Commission initiates an infringement procedure with regard to a measure adopted by a national government or the CJEU scrutinises such a measure or the behaviour of a national court. For the sake of this Article, however, it suffices to highlight the overall inter-institutional focus in order to shift it towards a more individual-centred understanding.

2 See infra notes 3–5.

3 See Dimitry V. Kochenov, EU Rule of Law Today: Limiting, Excusing, or Abusing Power?, in The Rule of Law in the EU: Crisis and Solutions 28, 30–33 (Swedish Institute for European Policy Studies. Anna Södersten & Edwin Hercock eds., 2023); Dimitry V. Kochenov, Restoring Dialogical Rule of Law in the European Union: Janus in the Mirror, Cambridge Y.B. Eur. Legal Stud. 1, 1 (forthcoming 2024), https://doi.org/10.1017/cel.2023.16; Melanie Smith, Staring into the Abyss: A Crisis of the Rule of Law in the EU, 25 Eur. L.J. 561, 561–69, 575–76 (2019).

4 See Kochenov, supra note 3, at 30–33 (2023); Kochenov, supra note 3, at 11 (2024); Smith, supra note 3, at 652–66. See also infra Section B.II.1 (explaining rule of law’s aim).

5 See Kochenov, supra note 3, at 1–2, 7–8 (2024). Pointing in another direction see, e.g., Smith, supra note 3, at 566, 573 (highlighting ambiguity as part of the failure to adequately address the rule of law).

6 Instead of citizen-centred, the term individual-centred is used to indicate that rule of law protection is not limited to EU-citizens in the sense of Article 9(2) TEU, Article 20 TFEU, nor to citizens in a republican sense as (re)introduced by Armin von Bogdandy, The Emergence of European Society Through Public Law 93–95 (2024). See also Armin von Bogdandy, On Meaning and Promise of European Society 19 (MPIL Research Paper Series No. 2024-30, 2024) (referring to “all resident individuals”).

7 While observing the current rule of law focus and its short-comings has triggered investigations into the underlying rule of law understanding and its alternatives, this Article does not consist of an in-depth discourse analysis. Its aim is not to work out how different actors understand the rule of law, but to contrast different understandings and add to the bigger picture.

8 See Dana Burchardt, The Relationship Between the Law of the European Union and the Law of its Member States - a Norm-based Conceptual Framework, 15 Eur. Const. L. Rev. 73, 75–81, 89 (2019); Matej Avbelj & Jan Komárek, Introduction, in Constitutional Pluralism in the European Union and Beyond 1, 2–4 (Matej Avbelj & Jan Komárek eds., 2012) (highlighting a diverse understanding of pluralism).

9 Despite the controversy over a proper EU constitution, at least the principles established in Article 2 TEU can be understood as constitutional principles as they legitimise, organise and restrain the exercise of public power within the EU.

10 See Martin Krygier, What’s the Point of the Rule of Law?, 67 Buff. L. Rev. 743, 783–91 (2019). Though differing from his approach in this sense, approaching the rule of law via its central aim rather than setting up a list of requirements can also be adopted within the framework of a constitutional principle. Indeed, the structure of legal principles perfectly suits such an approach.

11 As an overarching ideal, the rule of law for example quite naturally calls for multiple intertwined layers of law as they strengthen checks and balances and the “taming of law with law[,]” see Kochenov, Restoring Dialogical Rule of Law in the European Union, supra note 3, at 12 (2024); Gianluigi Palombella, Beyond Legality – Before Democracy, in Reinforcing Rule of Law Oversight in the European Union 36, 40–44 (Carlos Closa & Dimitry Kochenov eds., 2016). With regard to a legal principle, such overarching functioning requires justification. Such justification is given here, but from a different angle: While especially Palombella focuses on enhancing checks and balances through intertwined layers of law, that is by the differentiation of public power (Id. at 45), this Article focuses on addressing the intertwined public power from the perspective of individuals’ legal certainty, see infra Section B.III.

12 See infra Section B.III & C.I.1.

13 CJEU, Case C-26/62, Van Gend en Loos v. Administratie der Belastingen, ECLI:EU:C:1963:1 (Feb. 5, 1963), § II.B., https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:61962CJ0026.

14 CJEU, Case C-6/64, Costa v. E.N.E.L., ECLI:EU:C:1964:66 (July 15, 1964), https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:61964CJ0006.

15 CJEU, Case C-11/70, Internationale Handelsgesellschaft v. Einfuhr- und Vorratsstelle, ECLI:EU:C:1970:114 (Dec. 17, 1970), para. 3, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:61970CJ0011.

16 CJEU, Case C-29/69, Stauder v. Stadt Ulm, ECLI:EU:C:1969:57 (Nov. 12, 1969), para. 7, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:61969CJ0029.

17 See, e.g., CJEU, Joined Cases C-42 & C-49/59, S.N.U.P.A.T. v. Hohe Behörde, ECLI:EU:C:1961:5 (March 22, 1961), 78, https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=ecli:ECLI:EU:C:1961:5; CJEU, Case C-13/61, De Geus v. Bosch, ECLI:EU:C:1962:11 (April 6, 1962), para. 14, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:61961CJ0013.

18 See also CJEU Case C-205/82, Deutsche Milchkontor v. Germany, ECLI:EU:C:1983:233 (Nov. 21, 1983), para. 30, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:61982CJ0205; CJEU, Joined Cases C-133 to 136/85, Rau v. BALM, ECLI:EU:C:1987:244 (May 21, 1987), para. 32, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61985CJ0133; CJEU, Case C-314/91, Weber v. Parliament, ECLI:EU:C:1993:109 (March 23, 1993), para. 22, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:61991CJ0314; CJEU, Joined Cases C-387, C-391 & C-403/02, Berlusconi, ECLI:EU:C:2005:270 (May 3, 2005), para. 68, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:62002CJ0387. With Laurent Pech, The Rule of Law as a Constitutional Principle of the European Union 60 (Jean Monnet Working Paper 04/09, 2009), “[G]eneral principles were drawn … from the laws of the Member States, and therefore were not explicitly linked to … the rule of law …. This is unfortunate … as the general principles share an obvious connection with the rule of law.”

19 See, e.g., CJEU, Case C-101/78, Granaria v. Hoofdproduktschap voor Akkerbouwprodukten, ECLI:EU:C:1979:38 (Feb. 13, 1979), para. 5, https://eur-lex.europa.eu/legal-content/FR/TXT/?uri=CELEX:61978CJ0101; CJEU, Case C-294/83, Les Verts v. Parliament, ECLI:EU:C:1986:166 (April 23, 1986), para. 23, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:61983CJ0294; CJEU, Case C-496/99 P, Commission v. Succhi di Frutta, ECLI:EU:C:2004:236 (April 29, 2004), para. 63, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:61999CJ0496; CJEU, Case C-303/05, Advocaten voor de Wereld v. Leden van de Ministerraad, ECLI:EU:C:2007:261 (May 3, 2007), para. 45, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:62005CJ0303; CJEU, Case C-279/09, DEB v. Germany, ECLI:EU:C:2010:811 (Dec. 22, 2010), para. 58, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:62009CJ0279.

20 See Les Verts, Case C-294/83 at para. 23. As Pech, supra note 18, at 10–11 correctly points out, the difference is less notable in English, while the German Rechtsstaat/Rechtsgemeinschaft and French Etat de droit/communauté de droit differs more clearly.

21 See, e.g., Armin von Bogdandy, Beyond Rechtsgemeinschaft, with Trust - Reframing the Concept of European Rule of Law 6 (MPIL, Research Paper No. 2018-02, 2018): “[T]he EEC is a Rechtsgemeinschaft (community of law), in contrast to other transnational regimes, but unlike a state, it is not a community of coercion, but only a Rechtsgemeinschaft.” (emphasis in the original).

22 Compare the ECJ in Les Verts, Case C-294/83 at para. 23 (using the term to justify judicial control over EU acts), with Joined Cases C-357/19, C-379/19, C-547/19, C-811/19 & C-840/19, Euro Box Promotion et al, ECLI:EU:C:2021:1034 (Dec. 21, 2021), para. 247, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2021%3A1034 (using the term to let EU law prevail).

23 This can be seen as a premise of using comparative studies to develop general principles from common national constitutional traditions, with regard to using those See Koen Lenaerts & José A. Gutiérrez-Fons, To Say What the Law of the EU is: Methods of Interpretation and the European Court of Justice, 20 Colum. J. Eur. L. 3, 44–49 (2014); see generally Michelle Graziadei, The European Court of Justice at Work: Comparative Law on Stage and Behind the Scenes, 13 J. Civ. L. Stud. 2 (2020). Notably, there are quite different types of principles called general principles of EU law. Here, reference is made to those drawn from or at least inspired by the Member States’ constitutions.

24 See Deutsche Milchkontor, Case C-205/82 at para. 30.

25 See Laurent Pech, The Rule of Law as a Well-Established and Well-Defined Principle of EU Law, 14 Hague J. On R.L. 107, 124 (2022) ("[T]he rule of law has … become a dominant … paradigm of modern constitutional law in all the EU Member States. Even in countries where the rule of law is not explicitly guaranteed … the rule of law is normally recognised … as one of the foundational principles undergirding the relevant national constitutional system.").

26 See Takis Tridimas, The General Principles of EU Law 4 (2nd ed. 2006) (referring to “[p]rinciples which derive from the rule of law” as being derived “from the fundamental premise that the Community legal order is based on the rule of law”).

27 Id. at 4. While primacy is here not seen as a, general, principle, this echoes that the latter category refers to principles specific to the EU legal order, while the former refers to principles addressing common challenges. He also states that the “categories … are so closely intertwined … that their separation would be liable to convey a misleading impression.” (Id. at 5). While such interaction cannot be denied, it makes sense to distinguish these basic functions and reconsider the specific functioning of principles.

28 See Treaty on European Union (Maastricht) recital 3, Feb. 7, 1992, 1992 O.J. (C 191); Treaty of Amsterdam, amending the Treaty on European Union, the Treaties Establishing the European Community and Certain Related Acts art. 1, no. 8(a) (replacing art. F(1)), Oct. 2, 1997, 1997 O.J. (C 340).

29 Id.

30 See generally Treaty of Nice, amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, Feb. 26, 2001, 2001 O.J. (C 80); Treaty of Lisbon, amending the Treaty on European Union and the Treaty Establishing the European Community art. 1, no. 3, Dec 13, 2007, 2007 O.J. (C306) (introducing a new Art. 1a that became Art. 2 TEU).

31 See Consolidated Version of the Treaty on European Union art. 2, 2012 O.J. (C 236) 13 [hereinafter Treaty on European Union].

32 See Werner Schroeder, The Rule of Law as a Value in the Sense of Article 2 TEU: What Does it Mean and Imply?, in Defending Checks and Balances in EU Member States 105, 110–15 (Armin von Bogdandy, Piotr Bogdanowicz, Iris Canor, Christoph Grabenwarter, Maciej Taborowski & Matthias Schmidt eds., 2021).

33 This is also highlighted by Armin von Bogdandy & Luke Dimitrios Spieker, Countering the Judicial Silencing of Critics: Article 2 TEU Values, Reverse Solange, and the Responsibilities of National Judges, 15 Eur. Const. L. Rev. 391, 409–10 (2019).

34 See Armin von Bogdandy, Grundprinzipien des Unionsrechts – eine verfassungstheoretische und -dogmatische Skizze [Fundamental Principles of EU Law – A Constitutional-theoretical and Dogmatic Outline], 44 Europarecht 749, 762 (2009); Armin von Bogdandy, Principles and Challenges of a European Doctrine of Systemic Deficiencies 14 (MPIL, Research Paper No. 2019-14, 2019).

35 See also Marc Bungenberg & Angshuman Hazarika, Rule of Law in the EU Legal Order, 22 Zeitschrift für europarechtliche Studien 383, 386 (2019) (“The change of words … is not a permanent change in terminology and in the preamble and Art. 21(1) of the TEU, the rule of law is again referred to as a principle.”). See also Charter on the Fundamental Rights of the European Union, Preamble, para. 2, Dec. 18, 2000, 2012/C 326/02 (speaking of a value and a principle).

36 See von Bogdandy, Principles and Challenges of a European Doctrine of Systemic Deficiencies, supra note 34, at 2, 14 (2019): “fundamental legal principles” and “widely shared and deeply rooted normative orientations and thus the true foundations of the common European house”.

37 Similarly, see Schroeder, supra note 32, at 112 (speaking of a “double-nature of the rule of law as a value of the Union and a principle of Union law”). However, both, value and principle, can be understood as legal qualifications leading to an understanding as fundamental constitutional principles.

38 See infra Section B.II.3 (providing references).

39 See infra Section C.I.2 (providing references).

40 See infra Section C.II.1 (providing references).

41 See, e.g., Pech, supra note 25, at 108; Schroeder, supra note 32, at 117; Elaine Mak & Sanne Taekema, The European Union’s Rule of Law Agenda: Identifying Its Core and Contextualizing Its Application, 8 Hague J. on R.L. 25, 26 (2016); Ramona Coman, The Politics of the Rule of Law in the EU Polity 37–65 (2022).

42 See, e.g., Schroeder, supra note 32, at 118; Mak & Taekema, supra note 41, at 26; Coman, supra note 41, at 44–47.

43 While there are attempts to cover also the exercise of private power, see generally Jacquelyn Veraldi, Private Power, the Rule of Law and the European Union, 15 Hague J. on R.L. 471 (2023); Martin Krygier, The Ideal of the Rule of Law and Private Power (CEU DI, Working Paper No. 8, 2023), the rule of law is here investigated as a constitutional principle that legitimises and binds the exercise of public power. While this seems to neglect the magnitude of private power as well as that, democratically, the people legitimise law through their collective self-determination, from a constitutional rule of law perspective, law establishes public institutions that enact and enforce law while restraining them: Public power is granted to institutions that are legally authorized to unilaterally enact and enforce law while being dependent on and bound by it.

44 See Filipe Brito Bastos, An Administrative Crack in the EU’s Rule of Law: Composite Decision-making and Nonjusticiable National Law, 16 Eur. Const. L. Rev. 63, 80 (2020) (“[C]ommon concern that public power should be limited by legal standards … suitable for preventing the arbitrary or excessive use of public power….”); Mak & Taekema, supra note 41, at 29 (“[T]he ideal of progressively reducing the arbitrary exercise of power ….”); Smith, supra note 3, at 563 (“[A] constitutional principle that limits the use of arbitrary public power ….”); Pech, supra note 25, at 124 (“[A] meta-principle which … describes and justifies the subjection of public power to … legal constraints with a view to guaranteeing the primacy of the individual and its protection against the arbitrary or unlawful use of such public power.”).

45 With regard to the arbitrary exercise of power, this Article can rely on an important facet most prominently described by Martin Krygier, What about the Rule of Law?, 5 Const. Ct. Rev. 74, 87 (2013): “We also speak of power being exercised arbitrarily where it is received, if those subject to it have no way of knowing how or when or why it will hit them, or with what.” (emphasis in the original).

46 See, e.g., Pablo M. Rodríguez, The Principle of Legal Certainty and the Limits of the Applicability of EU Law, 52 Cah. De Droit Eur. 115, 120 (2016).

47 Whether there is a conflict between tempering and effectiveness depends on the understanding. If you integrate effectiveness into a sophisticated understanding of “tempering” see, e.g., Krygier, supra note 10, at 778–83, you change the terminology without fully overcoming the tension between constraining and pushing the exercise of public power/law.

48 See Armin von Bogdandy & Michael Ioannidis, Das systemische Defizit [The Systemic Deficit], 74 ZaöRV 283, 289 (2014): “[T]he European rule of law demands that European law rules.” (translation by author).

49 Id. at 288; von Bogdandy, supra note 6, at 120–25.

50 Despite examining rule of law’s content not being this Article’s aim, it can be assumed that it at least contains legality, legal certainty, prohibition of arbitrariness, judicial protection, and separation of powers, see Venice Commission, Report on the Rule of Law 9–13 (Study No. 512/2009, CDL-AD(2011)003rev, 2011).

51 See Merijn Chamon, The Institutional Balance, an Ill-Fated Principle of EU Law?, 21 Eur. Pub. L. 371, 384–87 (2015) (further distinguishing separation of powers and institutional balance).

52 While the rule of law on the grounds is dependent on the proper functioning of public institutions, see Krygier, supra note 10, at 768–78 in general and von Bogdandy, supra note 6, at 120–25 with regard to EU law, the mere demand for effectiveness of (public) power without any connection to the effectiveness of law as a means to temper (public) power and/or enable individuals to rely on the law should be distinguished from the constitutional principle of the rule of law. This conceptual distinction is connected to the investigation of the rule of law as constitutional principle. While “failed states” (Krygier, supra note 10, at 773) or “Weak Statehood” (von Bogdandy, supra note 6, at 120–25, quote at 120) can pose challenges for building or defending a state/organisation worthy of the category of a state/organisation governed by the rule of law, the constitutional principle of the rule of law should be distinguished, and can potentially be weighed against, securing the effective exercise of public power via the proper functioning of public institutions.

53 Rodríguez, supra note 46, at 120.

54 Rodríguez, supra note 46, at 120.

55 Frank Meyer, Functions and Constitutional Dimensions of Effectiveness 11 (JMN EULEN, Working Paper Series No. 19-23, 2023).

56 See infra Section C.II. (detailing primacy and the rule of law). Without claiming that the rule of law understanding indicated by the current practice of EU institutions is limited to the effectiveness of EU law, which would not do justice especially to the CJEU’s case law on judicial independence in Member States, it is fair to say that the CJEU is much more reluctant to consider other rule of law related concerns when they conflict with EU law’s effectiveness. See also infra note 74.

57 See infra Section B.II.2.

58 Considering the autonomy of EU as well as national public power and law and its pluralistic interaction, the term “vertical” might give rise to false associations. Here, it does not imply a hierarchy between the EU and the national level, but merely seeks to illustrate the different types of institutional balance.

59 The latter is also shown when the CJEU scrutinises national measures regarding the national judiciary against EU rule of law requirements. While this should not be overlooked, it should not question the individual-centredness of the rule of law.

60 Also, it goes not far enough to state that “[T]he principles of conferral and institutional balance seek to uphold the values of respect for the rule of law within the EU, while protecting individual liberty from the arbitrary exercise of public power[,]” Koen Lenaerts & José A. Gutiérrez-Fons, Epilogue. High Hopes. Autonomy and the Identity of the EU, 8 Eur. Papers 1495, 1500 (2024), because the latter is precisely rule of law’s aim.

61 CJEU, Case C-156/21, Hungary v. European Parliament and Council, ECLI:EU:C:2022:97 (Feb. 16, 2022), para. 126, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62021CC0156.

62 Pech, supra note 18, at 63.

63 CJEU, Joined Cases C-83/19 et al, Asociaţia “Forumul Judecătorilor din România,” ECLI:EU:C:2021:393 (May 18, 2021), para. 197, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:62019CJ0083. Notwithstanding, the determination of a rule of law breach is mainly functionalist, introducing the condition of systemic deficiencies with systemic relevance, see infra Section B.II.3.

64 Simon Chesterman, An International Rule of Law? 32 (NYU Law School, Public Law Research Paper, No. 08-11, 2008)

65 Leander Beinlich & Anne Peters, An International Rule of Law, Oxford Bibliographies (Aug. 15, 2021), DOI: https://doi.org/10.1093/obo/9780199796953-0222.

66 See Treaty on European Union, supra note 31, at art. 2.

67 See Treaty on European Union, supra note 31, at arts. 3, 5.

68 Tridimas, supra note 26, at 7.

69 Luisa Marin, Which Rule of Law for EU Migration Agencies? 4 (JMN EULEN, Working Paper Series No. 15/22, 2022).

70 See Shu-Perng Hwang, Judikativer Werteschutz in der Europäischen Union: Eine verfassungsvergleichende Perspektive [Judicial Protection of Values in the European Union: A Comparative Constitutional Perspective], 59 Europarecht 240, 256–68 (2024). Interestingly, she praises a functionalist understanding opposed to a tyranny of substantive, centrally determined values, saving value diversity in the EU. However, the issue of commonness and diversity should not be bypassed by belittling the constitutional nature of the values in Article 2 TEU and the individual-centredness of the rule of law. See further, with a critical and broad stance on a functionalist understanding, Smith, supra note 3, at 562–69.

71 See, e.g., Friedrich Erlbacher & Katarzyna Herrmann, Fundamental Values of the European Union: From Principles to Legal Obligations, in 70 Years of EU Law 30, 40 (Commission’s Legal Service ed., 2022) (“[f]ollowing the logic of subsidiarity, … the EU should only intervene to defend the rule of law when national institutions fail to ensure its respect at national level because of … systemic deficiencies ….”).

72 See Schroeder, supra note 32, at 115–16; von Bogdandy, supra note 34, at 10 (providing further references).

73 Armin von Bogdandy, Piotr Bogdanowicz, Iris Canor, Giacomo Rugge, Matthias Schmidt & Maciej Taborowski, A Potential Constitutional Moment for the European Rule of Law: The Importance of Red Lines, in Defending Checks and Balances in EU Member States 385, 392–99 (2021); von Bogdandy, supra note 34, at 10; Claudio Franzius, Der Kampf um Demokratie in Polen und Ungarn [The Struggle for Democracy in Poland and Hungary],71 DÖV 381, 381−89, 383 (2018); von Bogdandy & Ioannidis, supra note 48, at 284–312; Kim Lane Scheppele, What Can the European Commission Do When Member States Violate the Principles of the European Union? The Case for Systemic Infringement Actions, Verfassungsblog (Nov. 2013), https://verfassungsblog.de/wp-content/uploads/2013/11/scheppele-systemic-infringement-action-brussels-version.pdf.

74 To be fair, the CJEU does not show the same rigidity in limiting rule of law protection to systemic deficiencies. In a number of well-known decisions, the court in particular found legislative changes regarding the judiciary in Poland incompatible with the EU rule of law without distinctly limiting its scrutiny to systemic deficiencies. While examining a breach of the rule of law, it also referred to its purpose of ensuring individuals’ judicial trust, in this regard see already above. In such cases, the CJEU’s approach is further not merely effectiveness-driven, but directed at judicial independence in the Member States—which goes hand in hand, however, with the effectiveness of EU law standards. Looking at the broader picture, the court seems much more willing to defend the rule of law where this goes hand in hand with defending EU law’s effectiveness and primacy, for a closer analysis, see Luisa Marin, Which Rule of Law for the External Borders of the European Union? Agencies, Institutions, and the Complex Upholding of the Rule of Law at the EU’s External Borders, 9 Eur. Papers 593, 600–20 (2024). In this sense, it is not enough to state that “the Court has been overwriting its functionalist approach to constitutionalism (direct effect, primacy, autonomy) with a principled one that relies on Article 2 TEU.” (von Bogdandy, supra note 6, at 18).

75 Admittedly, Article 2 TEU can also be seen as a kind of “homogeneity clause” that is directed at securing cohesion between the EU and the Member States. Legal establishments, in particular fundamental ones like Article 2 TEU, can combine many purposes. However, if we accept Article 2 TEU’s function to secure cohesion between the EU and Member States, the article at least makes clear that this is to be assured through the EU’s and Member States’ rule of law observance. If the rule of law is to be understood as an individual-centred principle, as it is argued here, that means that is has to be operationalised as such and that the EU’s and Member States’ joint commitment to an individual-centred principle of the rule of law is to secure their cohesion.

76 von Bogdandy, supra note 7, at 121–22, links the limitation to systemic deficiencies to rule of law’s aim to secure social expectations and trust, being endangered only by systemic deficiencies with regard to law observance. As far as one focuses on individuals’ protection from public power’s misuse, however, such misuse can also happen in single cases.

77 Smith, supra note 3, at 563 (tracing back the rule of law crisis to the transformation of the rule of law from a constitutional norm to a policy tool, pushed forward by EU institutions). While her analyses regarding the transformation of the rule of law is accurate in many parts, that conclusion goes too far. Rather, observing rule of law’s uses and their shortcomings should trigger efforts to address specific fallacies and blind spots without neglecting its multi-faceted connections and operationalisations.

78 See Section A (describing the current rule of law focus) and Section C (comparing some exaggerated tendencies, on the one hand, and an underexplored alignment of the rule of law, on the other).

79 To be clear, this understanding goes beyond examining and stating common principles as same or similar, but legally separate principles, see, e.g., Pech, supra note 18, at 22–62, 69–71, as it distinctly assumes a joint obligation.

80 Common, Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/english/common (last visited Oct. 12, 2025).

81 See Pech, supra note 25, at 124 (“[T]he rule of law has progressively become a dominant … paradigm of modern constitutional law in all the EU Member States. Even in countries where the rule of law is not explicitly guaranteed … the rule of law is normally recognised … as one of the foundational principles undergirding the relevant national constitutional system.”).

82 Tridimas, supra note 26, at 12.

83 See Grundgesetz [Basic Law], art. 23(1), translation at https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html.

84 That is to say that the EU principle of the rule of law, initially and strictly speaking, is only directed at the rule of law from an EU law perspective while the German principle of the rule of law is only directed at the rule of law from the perspective of the German legal order. See infra Section C.I.1 (arguing that, as a consequence, frictions between the perspectives cannot be addressed).

85 While this also creates a joint obligation of all Member States, it is only relevant as far as public power is exercised jointly vis-à-vis individuals.

86 Palombella, supra note 11, at 45.

87 See supra note 11, and with regard to individuals’ legal certainty in the next sections. While Palombella is right that the rule of law cannot be limited to legality, compliance, and effectiveness, I disagree that “certainty and predictability encapsulate the sense of this kind of conception ....” (Palombella, supra note 11, at 38). Legal certainty, at least as part of an individual-centred principle of the rule of law, sets limitations to the application of law to prevent its arbitrary use against individuals.

88 CJEU, Case C-409/06, Winner Wetten v. Stadt Bergheim, ECLI:EU:C:2010:503 (Sep. 8, 2010), paras. 53−69, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:62006CJ0409; CJEU, Case C-399/11, Melloni v. Ministerio Fiscal, ECLI:EU:C:2013:107 (Feb. 26, 2013), paras. 55−64, https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:62011CJ0399; CJEU, Case C-42/17, M.A.S. and M.B., ECLI:EU:C:2017:936 (Dec. 5, 2017), paras. 46−62, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:62017CJ0042.

89 Despite examining rule of law’s content not being this Article’s aim, it can be assumed that it at least contains legal certainty, see Venice Commission, supra note 50.

90 See Burchardt, supra note 8, at 75–81, 89.

91 Within the discourse on the interaction of legal orders, some pluralists welcome that conflicts cannot be ultimately solved. While welcoming the positive effects of contestation, they disregard concerns of legal certainty, see Nico Krisch, Who is Afraid of Radical Pluralism? Legal Order and Political Stability in the Postnational Space, 24 Int’l J. Juris. & Phil. L. 386, 394–97 (2011). Sticking to the vision of different equally autonomous, self-referential legal orders and the incommensurable supremacy clashes between them, this could not be criticised in strictly legal terms. Only a common principle of the rule of law can properly address uncertainties resulting from the pluralist interaction of EU and national law.

92 Notably, this does not mean that a self-referential principle of the rule of law would not demand to solve collisions of laws originating from its own system and incorporated ones. However, that would be restricted to the perspective of that legal order. As a consequence, diverging conflict rules would suffice the requirements of rule of law as strictly self-referential principle(s). In contrast, comprehensively solving collisions of laws from different legal orders comprises finding a solution that corresponds to both legal orders.

93 See also Burchardt, supra note 8, at 75–76, 89–90.

94 See Damjan Kukovec, The Court of Justice of the European Union for Hedgehogs 11−27 (NYU Sch. L., Jean Monnet Working Paper, No. 1/21, 2021) (nonetheless dealing with constitutional pluralism in the EU and the necessary dialogue with national and international laws and actors).

95 See generally Dana Burchardt, The Twilight of Legal Order? On the Current Challenges Faced by the Concept of a Legal System, 9 Tranat’l Legal Theory 110 (2018) (regarding the limited function the concept of a, self-referential, legal order can serve in times of intertwined multi-level systems).

96 See Julio Baquero Cruz, Against Constitutional Pluralism, in What’s Left of the Law of Integration? Decay and Resistance in European Union Law 27, 46–50 (2018); Julio Baquero Cruz, Another Look at Constitutional Pluralism in the European Union, 22 Eur. L.J. 356, 370–73 (2016); von Bogdandy & Ioannidis, supra note 48, at 289–90; Cormac Mac Amhlaigh, Questioning Constitutional Pluralism 30 (Univ. Edinburgh Sch. L., Working Paper Series, No. 2011/17, 2011); Armin von Bogdandy, Grundprinzipien [Fundamental Principles], in Europäisches Verfassungsrecht 13, 36-41 (Armin von Bogdandy & Jürgen Bast eds., 2nd ed. 2009). See also Mattias Kumm, The Jurisprudence of Constitutional Conflicts: Constitutional Supremacy in Europe Before and After the Constitutional Treaty, 11 Eur. L.J. 262, 299 (2005) (referring to the “idea of legality” leading to a “strong presumption that they are required to enforce EU law, national constitutional provisions notwithstanding”); Roberto Baratta, Rule of Law ‘Dialogues’ Within the EU: A Legal Assessment, 8 Hague J. Rule L. 357, 359 (2016); Karen J. Alter, Establishing the Supremacy of European Law 217–21 (2003).

97 CJEU, Case C-430/21, RS, ECLI:EU:C:2022:99 (Feb. 22, 2022), paras. 39, 54, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2022%3A99.

98 RS, Case C-430/21 at para. 62.

99 See, e.g., Luke Dimitrios Spieker, Werte, Vorrang, Identität: Der Dreiklang europäischer Justizkonflikte vor dem EuGH [Values, Primacy, Identity: The Triad of European Judicial Conflicts Before the ECJ], 33 EuZW 305, 310 (2022).

100 See Kochenov, EU Rule of Law Today, supra note 3, at 30–33; Kochenov, Restoring Dialogical Rule of Law in the European Union, supra note 3, at 11.

101 See von Bogdandy & Ioannidis, supra note 48, at 289.

102 This is strikingly demonstrated by Kochenov, Restoring Dialogical Rule of Law in the European Union, supra note 3.

103 See Baquero Cruz, Against Constitutional Pluralism, supra note 96, at 50 (2018) (“T]he … resistance of some national constitutional courts to the primacy of Union law should be understood as a form of ‘institutional disobedience’…. It is, as an instance of civil disobedience, an exceptional political act trespassing the boundaries of the legal system ….”). In detail, see Alter, supra note 96, at 217–21.

104 See also Dana Burchardt, Die Rangfrage im Europäischen Normenverbund [The Question of Precedence in the European ‘Normenverbund’] 271–74 (2015).

105 Baquero Cruz, Against Constitutional Pluralism, supra note 96, at 49 (“The primacy of the shared system of law is indeed the logical solution …. [T]here is no workable alternative. When more than one legal order may apply in a given situation, there has to be a rule saying—in a reasonably predictable manner—which one takes precedence….”). R. Daniel Kelemen, On the Unsustainability of Constitutional Pluralism: European Supremacy and the Survival of the Eurozone, 23 Maastricht J. Eur. & Compar. L. 136, 149 (2016) (“[L]egal certainty and the uniform application of EU law can only be assured if EU law has supremacy over … national law ….”).

106 Beyond that, the rule of law is not merely linked to providing legal certainty, but to enhancing checks and balances—also through different intertwined layers of law, “operating, if need be, in the place of a hierarchically ordered formalist monism[,]” see Palombella, supra note 11, at 45. That is another reason not to substantiate EU law primacy with the rule of law. While Palombella refers to an overarching ideal of the rule of law, also this functioning can be legally substantiated by acknowledging that Article 2 TEU has established the rule of law as a common individual-centred principle, see supra note 11.

107 See Kochenov, Restoring Dialogical Rule of Law in the European Union, supra note 3, at 15–16 (2024) (grounding this on the rule of law’s aim to enhance checks and balances through layers of law). See also Palombella supra note 11, at 45 (similar to that).

108 Finding comprehensive solutions for collisions of EU and national law cannot be part of this Article that examines rule of law’s say on a conceptual level. Still, it should be mentioned that norm collisions in given cases can be solved in a rather comprehensive manner on the basis of common principles, see Burchardt, supra note 8, at 88–103.

109 See Burchardt, supra note 8, at 91–94 (weighing a shared principle of uniformity).

110 See infra Section C.II.1 and 2.

111 See, e.g., Mariolina Eliantonio & Nikos Vogiatzis, Judicial and Extra-Judicial Challenges in the EU Multi- and Cross-Level Administrative Framework, 22 German L.J. 315, 316, 324 (2021); Bastos, supra note 44, at 63; Jane Reichel, Communicating with the European Composite Administration, 15 German L.J. 883, 883 (2014); Herwig C. H. Hofmann, The Right to an ‘Effective Judicial Remedy’ and the Changing Conditions of Implementing EU Law 16 (Université du Luxembourg Law, Working Paper, No. 2013-02, 2013); Deirdre Curtin & Morten Egeberg, Tradition and Innovation: Europe’s Accumulated Executive Order, in Towards a New Executive Order in Europe? 1, 11 (2009); Johannes Saurer, The Accountability of Supranational Administration: The Case of European Union Agencies, 24 Am U. Int’l L. Rev. 429, 430–32 (2009).

112 See generally Miroslava Scholten, Béla Strauss & Alex Brenninkmeijer, Controlling EU Agencies: An Introduction, in Controlling EU Agencies 1 (Miroslava Scholten & Alex Brenninkmeijer eds., 2020); Reichel, supra note 111; Hofmann, supra note 111; Curtin & Egeberg, supra note 111; Saurer, supra note 111.

113 See generally Luis Arroyo Jiménez, Effective Judicial Protection and Mutual Recognition in the European Administrative Space, 22 German L.J. 344 (2021); Emilie Chevalier & Olivier Dubos, The Notion of “Transnationality” in Administrative Law: Taxonomy and Judicial Review, 22 German L.J. 325 (2021); Luca de Lucia, Administrative Pluralism, Horizontal Cooperation and Transnational Administrative Acts, 5 Rev. Eur. Admin. L. 17 (2012); François Lafarge, Administrative Cooperation between Member States and Implementation of EU Law, 16 Eur. Publ. L. 597 (2010).

114 See Melanie Fink, Why is it so Hard to Hold Frontex Accountable: On Blame-Shifting and an Outdated Remedies System , EJIL:Talk! (Nov. 26, 2020), https://www.ejiltalk.org/why-it-is-so-hard-to-hold-frontex-accountable-on-blame-shifting-and-an-outdated-remedies-system/; Agostina Pirrello, EUAA Operations in Malta: Legal Remedies to De Facto Powers in the Absence of Legal Certainty 10 (JMN EULEN Working Paper Series, No. 01-23, 2023).

115 See generally Eliantonio & Vogiatzis, supra note 111 (providing a more recent overview).

116 See generally Salvo Nicolosi & Elmin Omičevic, The Rise of EU Migration Agencies: Striking a Balance between Enforcement Needs and Access to Justice (JMN EULEN Working Paper Series, No. 16/22, 2022); Eliantonio & Vogiatzis, supra note 114; Melanie Fink, The Action for Damages as a Fundamental Rights Remedy: Holding Frontex Liable, 21 German L.J. 532 (2020); Scholten, Strauss & Brenninkmeijer, supra note 112; Reichel, supra note 111; Hofmann, supra note 111.

117 See e.g., Miroslava Scholten, Shared Tasks, but Separated Controls: Building the System of Control for Shared Administration in an EU Multi-Jurisdictional Setting, 10 Eur. J. Risk Regul. 538, 538 (2020) (asking for “sophisticated systems of control over public power to safeguard and uphold the rule of law”). While there is a recognition that more holistic solutions are needed, the rule of law is only referred to as an “ideal” (Id. at 540); see also Bastos, supra note 45, at 79 (“EU’s version of the rule of law is … an overarching ideal that must inform and limit the exercise of public power not just at the supranational, but at the national level as well”). With a different focus, Kochenov most prominently insists that EU institutions need to be measured against the same standards, see generally Kochenov, Restoring Dialogical Rule of Law in the European Union, supra note 3 (extensively referring to the rule of law, but not elaborating on the joint commitment it creates as a common principle). Together with Sarah Ganty, he recently refers to the “problem of many hands” regarding the Integrated EU Border Management, but they do not develop a conceptualisation of the rule of law as a distinctly common constitutional principle, see Sarah Ganty & Dimitry V. Kochenov, EU Lawlessness Law, 30 Colum. J. Eur. L. 78, 101–03, 145–50 (2014) (quoting on page 145). Presumably, they do not think this necessary as, despite claiming a violation of Article 2 TEU, they seem to refer to an overarching ideal. See also Krygier, supra note 10 (similarly referring to an overarching ideal).

118 Marin, supra note 69, at 3.

119 Marin, supra note 69, at 5.

120 See generally Luisa Marin, Frontex at the Epicentre of a Rule of Law Crisis at the External Borders of the EU, 30 Eur. L.J. 11 (2024). See also Luisa Marin, Frontex and the Rule of Law Crisis at EU External Borders, Verfassungsblog (Sep. 5, 2022), https://verfassungsblog.de/frontex-and-the-rule-of-law-crisis-at-eu-external-borders/; Marin, supra note 77, at 593.

121 Marin, supra note 120, at 18 (2024). Also within the field of Migration law, see generally Evangelia Tsourdi, Asylum in the EU: One of the Many Faces of Rule of Law Backsliding, 17 Eur. Const. L. Rev. 471 (2021); Francesco Luigi Gatta, Migration and Rule of (Human Rights) Law in the EU: A “Constitutional” Crisis (Re:constitution Working Papers, Forum Transregionale Studien Vol.3/2022, 2022); Iris Goldner Lang & Boldizsár Nagy, External Border Control Techniques in the EU as a Challenge to the Principle of Non-Refoulement, 17 Eur. Const. L. Rev. 442 (2021); Valsamis Mitsilegas, The EU External Border as a Site of Preventive (In)justice, 28 Eur. L.J. 263 (2022).

122 Marin, supra note 120, at 24 (2024).

123 This neither can be found in Marin, supra note 74.

124 See Fink, supra note 114, and Pirrello, supra note 114, at 10 (exploring this phenomenon in greater detail).

125 The broader critical potential can be justified by the fundamental importance of the legitimising constitutional principles in Article 2 TEU which, considering their very function, without necessarily determining a formal hierarchy, can arguably be relied on to assess the framework of judicial protection as established in the treaties.

126 See, e.g., Melanie Fink, Frontex and Human Rights 341 (2019); Nicolosi & Omičevic, supra note 119, at 14.

127 See, e.g., Fink, supra note 126, at 341; Nicolosi & Omičevic, supra note 116, at 14; Marin, supra note 120, at 26 (2024).

128 See Fink, supra note 126, at 349. See also Marin, supra note 120, at 26 (2024) (referring to “joint supervisory authorities”); Herbert Rosenfeldt, Frontex in zentrum der europ ᴀ̈ ischen Grenz- Und K ᴜ̈ s tenwache [Frontex at the Center of the European Border and Coast Guard] (2021) (referring to a political accountability forum).

129 See Rosenfeldt, supra note 128, at 359.

130 That does not mean that systemic deficiencies should not be paid attention. If administrative procedures are designed to obscure and shift responsibility, systemic solutions regarding the legal framework and its application are needed, see Fink, supra note 114 (regarding the Integrated Border Management).

131 Smith, supra note 3, at 576. Without sharing all her critique, Smith’s analytical accuracy regarding the use of the rule of law should be acknowledged, see supra note 77. Connected to this, “travelling back” is not sufficient after all, as a conclusive conceptualisation of the rule of law would require considering all its connections and operationalisations.

132 Palombella, supra note 11, at 52. While he refers to an instrumental use as a self-protecting shield, you could also speak of an instrumental use as a self-expanding sword or, less dramatically, an instrumental use to enhance European integration and a neglect for the joint exercise of power.

133 With regard to the joint exercise of public power by the EU and Member States, not conclusively, but especially, ensuring legal certainty, clear responsibility and accountability means preventing its arbitrary exercise against individuals. While the individual-centred understanding of the rule of law might indicate a shift to a rights-based approach, the common fundamental principle of the rule of law establishes a joint obligation of the EU and Member States, binding every exercise of public power within the EU to rule of law standards. In this sense, the rule of law is directed at creating obligations and the scope of protection follows from the scope of exercise of public power, as every individual subject to the exercise of public power is protected by the rule of law. As a consequence, rule of law protection does not come with the limitations of rights-based approaches, even if it might not always be enforceable itself. See Marin, supra note 69, at 595 (with regard to the limitations of a rights-based approach).

134 As this shows, rule of law’s functioning is deeply interlinked with the pluralistic interaction of EU and national law. From a pluralistic perspective, individuals are faced by the concurrent exercise of public power by the EU and Member States. This is met by the joint obligation to uphold the common individual-centred principle of the rule of law. All in all, the joint obligation meets the pluralistic interaction, but does not overthrow it. Rather, pluralism as a theoretical-legal assumption and the rule of law as a common constitutional principle function as antagonists that need to be continually reconciled.

135 See Jacob van de Beeten, Unfulfilled Promises: Reconstructing EU Constitutionalism in times of Crisis and Contestation, 21 Eur. Const. L. Rev. 164, 174 (2025) (distinguishing such functioning from a use of Article 2 TEU that merely “seeks to justify the instrumental role of Article 2 TEU values to defend the systemic or structural foundations of EU law”). Notably, this distinctly differs from the functionalist use the rule of law has been brought to. Still, it can serve as an immanent critique (Id. at 168, 190). Such critical potential can be justified by the fundamental importance of the legitimising principles in Article 2 TEU. In this sense, it is too easy to state that “the EU constitutional structure … gives concrete expression to the values contained in art. 2 TEU[,]” see Lenaerts & Gutiérrez-Fons, supra note 60, at 1501.