INTRODUCTION

Writing extrajudicially in 2019, Judge Safjan identified a new, unprecedented and worrying trend in the EU: the ‘undermining, eliminating and distorting the rule of law’, which he presented as ‘one of the key challenges, if not the key challenge, facing’ the EU today. This report shares this diagnosis and will outline the lack of a prompt, forceful and systemic answer by the EU institutions in the face of a top-down, sustained and systemic process of rule of law backsliding which is continuing to spread and accelerate to this day. One may note in this respect a recent and unprecedented step: the lodging of four annulment applications by four organisations representing European judges against the Council's decision to endorse Poland's Recovery and Resilience Plan on the ground that the Council, and indirectly the Commission, disregards the Court of Justice's rulings.

Rule of law backsliding represents a critical challenge for the EU because it represents an existential threat to the EU: it structurally undermines the fundamental premise on which the EU's interconnected legal order is based. In light of the continuing deterioration of the situation on this front – which was entirely predictable and was indeed anticipated by the European Parliament in 2015 in light of the Commission and Council's persistent mix of denials and lack of meaningful actions – the President of the European Court of Justice was forced to publicly warn in November 2021 about the ‘extremely serious situation’ the EU finds itself in which ‘leaves the Union at a constitutional crossroads’ with the EU's ‘foundations as a Union based on the rule of law’ now ‘under threat’.