Nonpolitical Rule of Law Constitutionalization in the EU? Process and Shortcomings

This article analyzes the constitutionalization of the rule of law in the EU from an actor-centered institutionalist and democratic constitutionalism perspective. Complementing research that views the rule of law mostly from an enforcement perspective, and based on primary documents and secondary literature, we show how the specification of the EU’s foundational principle has been left mainly to non-majoritarian institutions such as the Commission and the Court. We thereby demonstrate that the reliance on non-majoritarian institutions is widespread not only in the resolution of policy conflicts but also in the interpretation of values on which the EU is founded. As we contend, this nonpolitical constitutionalization mode is problematic when evaluated in the light of democratic constitutionalism theories. Besides, it has resulted in an additive rule of law concept. We therefore argue for broad constitutional debate on the rule of law.