INTRODUCTION

What is the ‘other’ side of the rule of law coin in Europe, as opposed to the story of the fight for the values of Article 2 of the Treaty on European Union (TEU) at the national level, explored by Pech in this volume? It is the deployment of the principle of the rule of law by the European Court of Justice (ECJ) to pre-empt necessary dialogue and to disqualify substantive arguments of principle originating in other legal orders. The rule of law, on this count and as used by the Court, emerges as a trump card making the vital dialogue on which the rule of law directly depends impossible. 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 European Convention on Human Rights (ECHR) standards in rule of law cases. Such use of the principle is both dangerous and directly opposed to the very essence of European constitutionalism. It is an attack on the procedural side of EU law, as it undermines coherence, as well as on the substance of the rule of law, as this approach opposes vital checks on the arbitrary power of the sovereign – in this case the Herren der Verträge. This is all particularly dangerous given the huge question marks concerning the ECJ's own structural independence.