Common values, rule of law conditionality and the state of democracy in Europe

The european union’s ‘rule of law’ crisis usually refers to a series of violations within certain Member States of the values listed in Article 2 TEU, and of the rule of law in particular. These violations fall under the provisions of Article 7 TEU. The crisis can be viewed from two fundamentally different perspectives. In the first, it is the Union’s day-to-day functioning as such which is at stake. In this perspective, the problem is how to absorb the crisis’ disruptive effects gradually in the procedures and mechanisms governing the EU/Member States relationship. In a second perspective, the focus is on the values ‘common to the Member States’ on which the Union ‘is founded’. In this perspective, the crisis is existential and threatens the EU’s very foundation, namely democracy and the rule of law both in the EU and in its Member States. Which of the two perspectives is adopted plays a role in the assessment of all remedies for the rule of law crisis, including the conditionality mechanism that has been recently introduced for coping with what has been called the purposeful destruction of the rule of law inside EU member states’, to begin with Hungary and Poland.