Fundamental Change Beneath the Surface: The Supranationalisation of Rule of Law Protection in the European Union

Abstract

Whereas most studies on the European Union's (EU) responses to the rule of law crisis stress the underenforcement of EU law, this article offers a different perspective. Focusing on the long‐term dynamics concerning rule of law protection, we detect a gradual trend towards supranationalism. The Rule of Law Conditionality mechanism adopted in 2020 is the first instance of ‘effective supranationalism’, that is, a rule of law tool that combines supranational decision‐making procedures with binding and enforceable consequences. To explain this development in an area that has been marked by considerable resistance to efforts to strengthen supranational oversight, we draw on the agent‐centric historical institutionalist approach. Our qualitative study shows that supranationalisation has become possible through two interrelated factors: the joint strategies of community bodies, which have promoted competence transfer to the EU level, and the increasing marginalisation of sovereigntist positions within the Council, given the escalating conflicts with Hungary and Poland.