Tutela dei valori e democrazie illiberali nell’UE: lo strabismo di una narrazione “costituzionalizzante”

The evolution of the EU Treaties testifies a deepening of the values that should characterize the identity of both the Member States and the Union, alongside that of the political conditions for accession and the juridification of the procedure to paralyze those States that, once admitted, no longer comply with such conditions (Articles 2, 49 and 7 TEU). Like homogeneity clauses in federal countries, the enforcement of the Union’s values has long been considered the prerogative of the political brunch alone. Faced with the rule of law backsliding in Hungary and Poland and the stalemate of the procedures of art. 7 TEU, the EU first introduced soft law instruments, then tried with judicial litigation, which resulted, however, in an escalation of worrying dimensions. In 2022, the regulation on conditionality (2020/2092) was finally approved with the aim of hitting “the purse” of the countries responsible for violating the Rule of Law impairing the EU budget, simultaneously with the approval of the NGEU. The CJEU rejected both the Polish and the Hungarian challenges to this regulation with two judgments in which the identity dimension of the EU and the imperative to defend its values are exalted, despite the clear reservation to politics set by art. 7 TEU. The article warns against the institutional optimism of those blessing this evolution as another proof of constitutionalization of the EU, pointing out the unsettled asymmetry between the para-federal tools of enforcement and the poor democratic credentials of the EU. The conditionality of Regulation 2092 is closely related to that which guided the inadequate accession procedures of the Eastern States; like that, it does not appear to be able to grasp the reasons underlying the lack of widespread social adherence to the values of democratic constitutionalism.