Center for European Studies

284 Holland Hall

R. Daniel Kelemen, Rutgers University

Over the past few years, the European Union (EU) has experienced a profound rule of law crisis. In their effort to consolidate autocratic rule, EU member state governments in Hungary and Poland have systematically undermined the independence of their judiciaries. Attacks on judicial independence and the rule of law appear to be spreading to other member states, including Bulgaria, Romania, and Malta. Because the EU is a community based on the rule of law, the breakdown of the rule of law in its member states constitutes a profound threat to the operation of the EU as a whole. Why then has the EU done so little to counter the destruction of the rule of law in some of its member states? Ironically, efforts to address the EU’s supposed “democratic deficit” by encouraging more partisan competition at the EU level have created a half-baked system of party politics that shields populist governments who attack the rule of law from EU censure. The problem is not that the EU has become to politicized, but that the EU party politics is trapped in a mid-range, “authoritarian equilibrium”: the EU’s nascent system of party politics generates powerful incentives for Europarties (EU level party coalitions) to provide political protection to populist member governments who deliver votes to their coalitions, while it imposes almost no political cost on the mainstream parties who ally with them – even if their regimes dismantle the rule of law and backslide into authoritarianism. To date, this has allowed some member governments to dismantle the rule of law with near impunity, while still enjoying political protection from mainstream allies.