Factual Silence as Rule of Law Evasion: Adverse Inference and the Evidentiary Collapse of EU Accountability

This Saar Brief is a contribution in the joint Online-Symposium from Jean Monnet Saar and JuWissBlog on the topic: “Protecting the Rule of Law in the European Union – Mechanisms and National Responsibility”. Moon Hwan Lee analyzes how certain EU Member States use factual silence as a method to avoid legal accountability while preserving the formal appearance of compliance. When access to judicial records and administrative data is blocked, core enforcement mechanisms of the Union lose their function. The argument introduces adverse inference as a doctrinal solution that allows institutions to treat unjustified silence as legal evidence of breach. This approach builds on existing EU principles and offers a concrete path to restore the effectiveness of rule of law protections.