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Severe rule of law crisis has been pestering the European Union for more than a decade now. A lot of academic energy has been invested in pursuit of the potential solutions to the crisis. Political initiatives, national and supranational, have been under way, and resounding judicial decisions have been handed down to stop the on-going rule of law regression and to revert the course of the events. However, the overall success of all these remedial attempts has been relatively meagre and the rule of law in many EU member states has continued to slide back. At the same time, perhaps not unexpectedly, but relatively less noticeable, the legitimacy-laden and therefore extremely politically powerful rule of law protection rationale has also been relied upon to violate this very rule of law that ought to be safeguarded. In other words, the rule of law can be, and indeed has been, violated in the name of the rule of law. The recent scandalous case of ‘depoliticizing’ the Slovenian public broadcaster will be discussed to illustrate this point. This case-study will be, in turn, relied upon to theoretically reflect on a broader issue of ensuring a veritable and viable transition from the rule of law regressive regime into a functional and sound constitutional democracy. It will be argued, in conclusion, that such a transition, in order to succeed, should occur in a realist, structural, principled and inclusive constitutional manner.
The paper is available upon request from the author.
Matej Avbelj is a Professor of European Law and Prorector at the New University in Slovenia. He graduated from the University of Ljubljana Faculty of Law, obtained an LL.M at NYU School of Law and defended his PhD at the European University Institute. Dr. Avbelj has been awarded several prestigious international fellowships and research grants and has acted as a guest lecturer at many universities in Europe and the USA. He currently holds a Jean Monnet Chair at the New University dedicated to pluralism in the European Union. He has written extensively in the fields of EU law, constitutional law, legal theory and human rights protection. Dr. Avbelj is, inter alia, the editor in chief of the Commentary of the Constitution of the Republic of Slovenia. His most recent books in English, for example, include: The Future of EU Constitutionalism (Hart 2023, editor). The Impact of European Institutions on the Rule of Law and Democracy in Slovenia and Beyond (Hart 2020, with Letnar Černič); The European Union under Transnational law (Hart, 2018); Research Handbook on Legal Pluralism and EU Law (Edward Elgar 2018, co-edited with Davies); Kadi on Trial: A Multifaceted Analysis of the Kadi Trial (Routledge 2016, co-edited with Martinico and Fontanelli). He has led or acted as a researcher on several research projects in the fields of European public law. He has been an active member of Slovenian and international professional and civil society organisations promoting the values of constitutional democracy. He has acted as a consultant for the public and private sector institutions in the fields of constitutional law, EU law and human rights protection. Since 2022 he has served as a member of the management board of the European Fundamental Rights Agency.
Márta Pardavi is co-chair of the Hungarian Helsinki Committee, a leading human rights NGO based in Budapest, Hungary. A lawyer by training, she has recently been focusing on the threats to the rule of law and civil society space in Hungary and in the EU. She also co-leads the Recharging Advocacy for Rights in Europe (RARE) programme, which equips human rights defenders to build stronger organisations and alliances for joint action on civic space and rule of law in the EU. Márta serves on the boards of PILnet and the International Partnership for Human Rights. She has been awarded the 2018 William D. Zabel Human Rights Award from Human Rights First, Civil Rights Defender’s Civil Rights Defenders of the Year 2019 award and was chosen to be a member of POLITICO28 Class of 2019. In 2020/2021, she was a Policy Leader Fellow at the European University Institute’s School of Transnational Governance in Florence, Italy.
Dimitry Kochenov leads the DI's Rule of Law working group and teaches at the Department of Legal Studies in Vienna. He is the author of Citizenship (MIT Press, 2019), translated into several languages and reviewed in NYRB and of EU Rule of Law Casebook (with L. Pech, SIEPS, 2021). He edited a number of volumes on EU Rule of Law and other aspects of European Integration, including five for Cambridge and one for Oxford University Press. Dimitry’s Quality of Nationality Index (with J.Lindeboom, Bloomsbury, 2020) was featured in The Economist, Forbes and FT. Prof. Kochenov is on the editorial boards, inter alia, of the Oxford Encyclopaedia of EU Law and Hague Journal of the Rule of Law. He taught at Princeton, Oxford, Rome, Osaka, UNAM, Groningen etc and served as the founding chairman of Investment Migration Council (Geneva). He consults governments and international organizations.