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Dimitry Kochenov: Dialogical Rule of Law in the Hands of the Court of Justice: Analysis and Critique

In his new CEU DI Working Paper Dimitry Kochenov, lead researcher of our Rule of Law Workgroup argues that “the Court of Justice deploys the Rule of Law to pre-empt necessary dialogue and to disqualify substantive arguments of principle originating in other legal orders.”

The Rule of Law thus emerges as a trump card making the vital dialogue on which EU law directly depends impossible, he continues. Such deployment of the Rule of Law ruins the basic coherence of the EU legal system, as the Court does not measure itself by the same standards that it applies to the national courts, while embracing a multitude of conflicting approaches to the Rule of Law and judicial independence, steeply departing from EU law’s own established principles, as well as ECHR standards in Rule of Law cases.

The paper argues that such use of the principle is both dangerous and directly opposed to the very essence of European constitutionalism. It is an attack on the substance of the Rule of Law, as it opposes vital checks on the arbitrary power of the sovereign – in this case the Herren der Verträge. The abusive misuse of Rule of Law rhetoric to render the EU less accountable and undermine the dialogical pluralist essence of EU constitutionalism is what I term ‘supremacy Rule of Law’.

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