Background and relevance

The rule of law has been under pressure in recent years. Several EU Member States have taken measures that undermine the independence of the judiciary or the protection of fundamental rights more generally. Poland has, for instance, established a disciplinary chamber within the Supreme Court to discipline judges engaging in "political activity". Both the Court of Justice of the EU (CJEU) and the European Court of Human Rights (ECtHR) determined that this is not a lawful tribunal because of political interference. The independence of judicial authorities in Hungary has also been under attack with judicial reforms creating disciplinary procedures against judges and the introduction of questionable appointment processes of new judges and presidents of courts. Such rule of law backsliding has gone hand in hand with unrestricted political and media attacks against the judiciary. These developments show that the rule of law requires constant maintenance and attention. This also holds true for Western EU Member States, including the Netherlands, usually championed as a forerunner in terms of rule of law and fundamental rights. Both the State Committee on the Parliamentary System (2018) and the Council of Europe’s Venice Commission (1031/2021) held that the resilience of the Dutch rule of law system needed to be strengthened, also in the light of European developments. The necessity was further illustrated by the Dutch Childcare Allowance Parliamentary Inquiry Committee report "Unseen injustice" (2020) finding serious and systemic deficiencies in individual rights protection involving all branches of government.

The question is how the EU and EU law have responded to such rule of law backsliding. There has long been an idea that the values related to the rule of law, as laid down in Article 2 TEU, have limited legal value and are not jusiticiable. What is more, for a long time, the organisation of the judiciary within Member States was seen as a national competence free of EU interference. The Portuguese judges case (C-64/16), however, showed that EU law has become more relevant for the quality of rule of law in EU Member States, especially via Article 19 TEU. The CJEU has ever since developed its jurisprudence in relation to the ‘principles of the rule of law’ (e.g. C-156&157/21). One logical explanation concerns the growing importance of the EU Charter for Fundamental Rights (CFR) that has become legally binding since December 2009. One can think in particular of the right to an effective remedy and to an impartial tribunal in Article 47 of the Charter. Another related development that explains this shift is the cooperation between EU Member States in the Area of Freedom, Security and Justice. Such cooperation has made increasingly clear that the quality of the rule of law in a particular Member State also affects rule of law and fundamental rights protection in other Member States. Criminal, police and asylum cooperation, based on the principle of mutual trust and mutual recognition, is hampered by insufficient fundamental rights protection or cracks in the independence of the judiciary.

These developments warrant the question: how can it be ensured that the values of the rule of law and the foundational principles of public law are preserved? Moreover, what exactly are the ‘principles of the rule of law’, common to the Member States? What role do EU standards and EU institutions play in the protection of these values? And lastly, of what relevance are those principles for national legal orders, the Dutch rechtsstaat in particular.

The proposed EURoLNAT Chair addresses these questions. A focus on the resilience and an in-depth understanding of the concept of rule of law and its protection obviously required an interdisciplinary and integrative approach going beyond a mere legal doctrinal perspective. Two aspects can be discerned. First, a multidisciplinary and metalegal approach to the study of the ‘principles of the rule of law’. This includes legal philosophy for a better, in-depth and critical understanding of the concept as well as sociological and political science approaches to the (empirical) study of the ‘law in action’. Second, a legal integrative approach that studies the concept of rule of law from different national public law traditions and perspectives, including constitutional law, administrative law and criminal law. This Chair aims to foster the study of national public law and the rule of law in the light of EU law (bottom-up) as well as EU law and its consequences for national legal orders (top-down). This Chair thus moves beyond a purely EU focus and tries to integrate national legal traditions and perspectives on the rule of law in the study of the concept of the rule of law. Such a national public law perspective could also enhance the effectiveness of EU law that - despite its supremacy - depends to a large extent upon its acceptance by national courts and policy makers. Recent years have seen judgments of national courts questioning important doctrines of EU law, such as the primacy of EU law. National courts in some EU Member States, such as the German, Polish, Hungarian and Czech Constitutional courts, have determined that they are not bound to always follow the CJEU or its Strasbourg counterpart, the ECtHR.