Follow the Leader: The European Commission, the European Court of Justice, and the EU’s Rule of Law Revolution

The autocratization of Hungary and Poland prompted a revolution in the European Court of Justice’s (ECJ) caselaw. The Court imposed novel obligations on member states to safeguard the rule of law (ROL) and expanded the legal bases for the EU to sanction governments. We ask: did the ECJ pioneer this ROL revolution or respond to an entrepreneurial European Commission acting as “guardian of the Treaties?” While supranationalist theories depict the Commission as a proactive agenda-setter, studies of the EU’s ROL crisis argue that the Commission dragged its feet or only recently seized the reins of leadership. Deploying a new theory of judicial innovation and agenda-setting on an original dataset of all ROL cases adjudicated by the ECJ, we demonstrate that the Commission has been an inconsistent and often indifferent agenda-setter. Besides several proactive interventions during the Juncker Commission, the Court’s rulings prompted the Commission to act more than the reverse.