The rule of law breakdown experienced by some Member States has been at the centre of the EU debate for some time now. Much has been written about how to tackle systemic processes of rule of law backsliding affecting, particularly, new EU Member States such as Hungary, Poland, or Romania. In recent years, debates have also been initiated about initiatives to reform the judiciary that may lower judicial independence guarantees without breaching Articles 19 or 2 TEU, e.g. Malta or Spain.

The aim of this paper is to examine how the principle of non-regression can be applied to these cases as a post-accession tool that guarantees consistent judicial independence standards across the EU. This principle already appears in trade agreements (e.g. the EU-UK Trade and Cooperation Agreement) in which the parties commit to maintaining regulatory standards in different areas (e.g. employment laws or environmental protection) to prevent a race to the bottom in these areas. This paper examines whether this principle may be applied in connection with Articles 19 and 49 TEU to prevent similar processes in the field of judicial independence and the right to an effective remedy within the EU. This would provide an alternative solution to the “Copenhagen dilemma”, which encompasses the lowering of rule of law or human rights standards agreed during the accession process once a Member State joins the EU.

The principle of non-regression has already appeared in some CJEU judgments. For instance, in Commission v Poland, the Court discussed whether a Member State could lower judicial independence standards without breaching Articles 19 TEU and 47 of the Charter of Fundamental Rights of the European Union. More recently, in Repubblikka, the Court explicitly formulated this principle in connection with Article 49 TEU as impeding that EU Member States adopt national rules that would challenge EU standards of judicial independence. Ultimately, this paper will examine whether this reasoning would justify the development of a legal framework governing judicial independence that would go beyond minimum standards and prevent a race to the bottom in this area post-accession. Additionally, it will consider how this principle may provide a new rule of law judicial enforcement tool when Member States contravene these standards.

In 2020, the EU introduced for the first time a robust rule of law conditionality regime for both the regular 7-year EU budget, the Multiannual Financial Framework (MFF) and for the special pandemic recovery plan known as Next Generation EU (NGEU). This regime was finally activated in 2022 when the Council, on the Commission’s recommendation, voted to withhold some cohesion funds from Hungary in response to its ongoing rule of law violations. It is argued that this regime represents a new mode of rule of law oversight – budgetary – that is different in kind from the other previously existing modes (political, technocratic and legal), each of which involves different institutions, procedures, decision rules and purposes. Given that the primary purpose of the new rule of law conditionality regime is to protect the EU budget, it should give greater scope for the involvement of parliamentary institutions, namely the European Parliament, national parliaments, and interparliamentary bodies.

The governmentality approach has gained momentum in the study of EU politics and European integration. Michel Foucault conceptualised governmentality as the last stage of power imposition upon a population, beyond discipline and sovereignty. Little do we know, though, about how governmental power reifies within a context of multi-level governance (MLG) such as the one of the EU. This paper argues that within the context of EUropean governance, governmental power is imposed on interconnected political subjects on behalf of equally interconnected centres of executive power, thus observing the gradual emergence of inter-governmentality. To support this theoretical argument, the essay draws on member-states' reactions during the EU financial crisis. The paper’s first section revisits existing post-Foucauldian accounts, showing that they have not sufficiently elaborated on how governmental power gets qualified within transnationalism and supranationalism. The article proceeds with an epistemological analysis of how governmentality has so far paved the way for inter-governmentality. The third section of the paper uses the actions of the European Council and Council of the EU during the EU financial crisis to empirically illustrate inter-governmentality as a new stage of power imposition in EU politics. The concluding remarks refer to the theoretical value-added of inter-governmentality for EU studies.