EU constitutional resilience: on the mutual dependence of the rule of law and democracy at both EU and Member State levels

András Jakab and Lando Kirchmair

Chapter 26 in Research Handbook on European Constitutional Law, 2026, pp 483-501 from Edward Elgar Publishing

Abstract: In this chapter we argue that (1) the rule of law – in our understanding including also the protection of fundamental rights – and democracy are mutually dependent. Therefore they can only be protected together. (2) Safeguarding them at EU level and MS level is inseparably linked. Hence, any severe crisis at one level is most likely to spill over sooner or later to the other level. (3) Slow deterioration (ie erosion) of the rule of law and democracy, not only at Member State level but also at EU level, has already happened. Negative trends at Member State level and EU level have a mutually reinforcing effect. We call this ‘mutual poisoning’. (4) EU constitutionalism ought to develop answers, in our wording antidotes, to address the challenge of this two-level erosion. By constitutional resilience we mean all the methods which prevent, stop and reverse erosion.

Keywords: Rule of law; Democracy; Crisis; Illiberal regimes; Fundamental rights; Spitzenkandidaten-system; EU Justice Scoreboard (search for similar items in EconPapers)
Date: 2026
ISBN: 9781802207866
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