La condizionalità tra "rule of law" e "rule by law": governamentalità neoliberale o astuzia della ragione europea?

The essay deals with the issue of conditionality to protect the rule of law, as outlined in EU Regulation 2020/2092 of 16 December 2020, relating to a conditionality regime that provides for the possibility of suspending European funding to a Member State where violations of the principles of the rule of law are ascertained that compromise in a sufficiently direct manner the sound financial management of the Union budget or the protection of its financial interests. The Court of Justice ruled on this provision in plenary session on 16 February 2022 and, in line with the conclusions of the Advocate General, rejected the appeals brought by Hungary and Poland, considering that the mechanism was adopted on the basis of an adequate legal basis, compatible with the procedure provided for in art. 7 TEU and respectful of the limits of the competences conferred on the Union and the principle of legal certainty. After a brief exposition of the institute, in the framework of conditionality techniques, we try to highlight the lights and shadows of the mechanism, in a perspective that recalls not only strictly legal aspects, but also political philosophy, since the theme of conditionality intertwines with that of the forms of exercise of contemporary power. We conclude by proposing two antithetical scenarios, that of neoliberal governmentality and that of the federal identity of European society.