The Rise of Procedural Rule of Law in the European Union - Historical and Normative Foundations

Summary, in English

The rule of law in the EU is not only substantive and formal, it is also procedural. From the early years of European integration until now – and this through the interpretative lens of either the terse Article 31 ECSC or the robust Article 19 TEU - the procedural rule of law has always been thriving and jolting in the case law of both the European Coal and Steal Community (ECSC) Court and the Court of Justice of the European Union (CJEU). Yet, in the last years, the place of the procedural rule of law in the European jurisprudence has increased significantly with the help of the newly drafted Article 19 TEU (replacing Article 220 EC, ex article 164 EEC) and the entry into force of the EU Charter of Fundamental Rights and notably its Article 47, which incorporates and codifies the general principle of effective judicial protection. Another reason of this contemporary rise of the procedural of law is the present ‘crisis context’ epitomized, for instance, by the state of economic emergency and the bailout case law of the CJEU. Claire Kilpatrick has relied on the concept of the procedural rule of law to show the malfunctioning of the EU judicial and administrative reviews of bailouts. Our contribution builds on her analysis, but is using a broader spectrum of investigation by not focusing merely on the situation of economic emergency and by tracing back the ‘procedural rule of law culture’ of the CJEU. We will inquire, therefore, the historical and normative foundations of the procedural rule of law by studying the roots of effet utile, effectiveness and effective judicial protection in the EU legal order and by viewing procedural effectiveness as idée directrice (directing idea) of EU Law. At the end of the historical circle, the ruling of the German Federal Constitutional Court in Weiss, from the 5th of May 2020, constitutes a great exemplification of the normative clash between the EU procedural rule of law applied in the context of economic emergency by the CJEU and a national judicial vision of the ‘proper’ standard of judicial review to be realized in such a situation. This contribution is divided into three parts. First, it maps the doctrinal debate on EU procedural law. In this section, it views the principle of effectiveness as the core ‘foundational’ norm of procedural rule of law. Second, it analyses the various applications of the procedural rule of law as procedural effectiveness in the CJEU case law by looking at effet utile, national procedural autonomy and effective judicial protection. This is done by tracking the historical roots of procedural effectiveness in the ECSC and CJEU Courts case law. Third, it uses the case law of the CJEU in the recent context of economic emergency as a test case of the application of the procedural rule of law.

• Author: Xavier Groussot; Anna Zemskova
• Editor: Antonina Bakardjieva Engelbrekt; Andreas Moberg; Joakim Nergelius
• Department/s: EU Law; Department of Law; Public Law
• Publishing year: 2021-12-02
• Language: English
• Publication/Series: Swedish Studies in European Law
• Issue: 15
• Document type: Book chapter
• Publisher: Hart Publishing Ltd
• Topic: Law
• Keywords: EU law; EU-rätt
• Status: Inpress
• Research group: EU Law; Public Law
• ISBN/ISSN/Other: ISBN: 9781509941605; ISBN: 9781509941599