scholarly journals Suspension of EU Funds Paid to Member States Breaching the Rule of Law: Is the Commission’s Proposal Legal?

2021 ◽  
pp. 269-303
Author(s):  
Justyna Łacny
Keyword(s):  
Rule Of Law ◽  
Judicial Independence ◽  
Member States ◽  
The Rule Of Law ◽  
Common Values ◽  
Financial Framework ◽  
Legislative Initiative ◽  
The One ◽  
Current Rule ◽  
The Eu

AbstractThe existing scale of violations of the rule of law by some Member States, including capturing judicial independence by their governments, is a relatively new phenomenon for the EU; the one for which the EU based on the EU common values (Article 2 TEU) originally was not prepared to effectively deal with. The EU reacts to current rule of law crisis by using different legal methods and instruments: it inter alia applies existing procedures (Article 7 TEU procedure and with more success general infringement procedure under Articles 258-260 TFEU) and struggles to develop new ones. This contribution is focused on the new EU legislative initiative of connecting in the Multiannual Financial Framework (MFF) 2021–2027 transfers of EU funds to Member States with their observance of the rule of law. Or to put it differently, this legislative initiatives would authorize the EU institutions to suspend regular transfers of EU funds to Member States that systematically breach the rule of law.

scholarly journals Strengthening the founding values of the EU: The potential role of the Fundamental Rights Agency

European View ◽  
2019 ◽  
Vol 18 (1) ◽  
pp. 97-104
Author(s):  
Konstantinos Margaritis
Keyword(s):  
Rule Of Law ◽  
Potential Role ◽  
Maastricht Treaty ◽  
Fundamental Rights ◽  
Member States ◽  
The Rule Of Law ◽  
Political Consequences ◽  
The One ◽  
The Eu

The rule of law is one of the founding values of the EU, as indicated in Article 2 TEU. This provision recognises that the rule of law is a core value, inherent to liberal democracy, and one which characterised the Union and its member states long before the formal establishment of the EU by the Maastricht Treaty. However, several member states, most notably Poland and Hungary, seem to have placed this value in jeopardy, leading EU institutions to disagree on how to combat this problem and its political consequences. The aim of this article is to propose a solution that involves a rather neglected, yet certainly competent actor, the Fundamental Rights Agency. The outcome would be twofold: on the one hand, the rule of law would be vitally strengthened; on the other, the role of the Agency would be fortified in line with its scope.

scholarly journals Rights and Powers in the European Union: Towards a Charter that is Fully Applicable to the Member States?

2020 ◽  
pp. 1-22
Author(s):  
Aida TORRES PÉREZ
Keyword(s):  
Rule Of Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Member States ◽  
The Rule Of Law ◽  
Rights Protection ◽  
Scope Of Application ◽  
Judicial Protection ◽  
Eu Fundamental Rights ◽  
The Eu

Abstract This contribution will tackle a central question for the architecture of fundamental rights protection in the EU: can we envision a Charter that fully applies to the Member States, even beyond the limits of its scope of application? To improve our understanding of the boundaries of the Charter and the potential for further expansion, I will examine the legal avenues through which the CJEU has extended the scope of application of EU fundamental rights in fields of state powers. While the latent pull of citizenship towards a more expansive application of the Charter has not been fully realized, the principle of effective judicial protection (Article 19(1) TEU) has recently shown potential for protection under EU law beyond the boundaries of the Charter. As will be argued, effective judicial protection may well become a doorway for full application of the Charter to the Member States. While such an outcome might currently seem politically unsound, I contend that a progressive case-by-case expansion of the applicability of the Charter to the Member States would be welcome from the standpoint of a robust notion of the rule of law in the EU.

Russia and EU Countries: Partnership for Modernization

2013 ◽  
pp. 54-61
Author(s):  
T. Romanova ◽  
E. Pavlova
Keyword(s):  
Rule Of Law ◽  
New Classification ◽  
Member States ◽  
The Rule Of Law ◽  
Normative Power ◽  
Eu Member States ◽  
The World ◽  
The Difference ◽  
The Eu

The article examines how the normative power, which the EU puts forward as an ideological basis of its actions in the world, manifests itself in the national partnerships for modernization between Russia and EU member states. The authors demonstrate the influence of the EU’s normativity on its approach to modernization as well as the difference in the positions of its member countries. It is concluded that there is no unity in the EU’s approach to democracy, human rights and the rule of law, and the new classification of EU member states, which is based on their readiness to act in accordance with the Union’s concept of normative power, is offered.

Judicial independence as a precondition for mutual trust? The CJEU in Minister for Justice and Equality v. LM

2018 ◽  
Vol 9 (3) ◽  
pp. 353-365 ◽  
Author(s):  
Petra Bárd ◽  
Wouter van Ballegooij
Keyword(s):  
Member State ◽  
Rule Of Law ◽  
Mutual Recognition ◽  
Judicial Independence ◽  
Fundamental Rights ◽  
Judicial Cooperation ◽  
The Rule Of Law ◽  
State Compliance ◽  
The Right ◽  
The Eu

This article discusses the relationship between judicial independence and intra-European Union (EU) cooperation in criminal matters based on the principle of mutual recognition. It focuses on the recent judgment by the Court of Justice of the EU in Case C-216/18 PPU Minister for Justice and Equality v. LM. In our view, a lack of judicial independence needs to be addressed primarily as a rule of law problem. This implies that executing judicial authorities should freeze judicial cooperation in the event should doubts arise as to respect for the rule of law in the issuing Member State. Such a measure should stay in place until the matter is resolved in accordance with the procedure provided for in Article 7 TEU or a permanent mechanism for monitoring and addressing Member State compliance with democracy, the rule of law and fundamental rights. The Court, however, constructed the case as a possible violation of the right to a fair trial, the essence of which includes the requirement that tribunals are independent and impartial. This latter aspect could be seen as a positive step forward in the sense that the judicial test developed in the Aranyosi case now includes rule of law considerations with regard to judicial independence. However, the practical hurdles imposed by the Court on the defence in terms of proving such violations and on judicial authorities to accept them in individual cases might amount to two steps back in upholding the rule of law within the EU.

scholarly journals The independence and impartiality of the hybrid CETA Investment Court System: Reflections in the aftermath of Opinion 1/17

2020 ◽  
Author(s):  
Maria Fanou
Keyword(s):  
Rule Of Law ◽  
Trade Agreement ◽  
Judicial Independence ◽  
Court System ◽  
Eu Law ◽  
The Rule Of Law ◽  
Court Of Justice ◽  
The Right ◽  
Right Of Access ◽  
The Eu

In its recent Opinion 1/17, the Court of Justice of the EU (CJEU) examined the compatibility of an external judicial body, the Investment Court System (ICS) under the EU–Canada Comprehensive and Economic Trade Agreement (CETA), with EU law. At a time when judicial independence has arisen as one of the main challenges for the rule of law in the EU, this article discusses the Court’s findings in relation to the compatibility of the ICS with the right of access to an independent and impartial tribunal.

scholarly journals The Rule of Law Framework in the European Union: Its Rationale, Origins, Role and International Ramifications

2021 ◽  
pp. 305-331
Author(s):  
Artur Nowak-Far
Keyword(s):  
European Union ◽  
Human Rights ◽  
Rule Of Law ◽  
The European Union ◽  
Member States ◽  
The Rule Of Law ◽  
Eu Member States ◽  
International Legal Order ◽  
High Level ◽  
The Eu

AbstractAt present, the European rule of law enforcement framework under Article 7 TEU (RLF) is vulnerable to unguaranteed, discretionary influences of the Member States. This vulnerability arises from its procedural format which requires high thresholds in decision-making with the effect that this procedure is prone to be terminated by the EU Member States likely to be scrutinized under it, if only they collude. Yet, the Framework may prove effective to correct serious breaches against human rights (in the context of ineffective rule of law standards). The European Commission is bound to pursue the RLF effectiveness for the sake of achieving relative uniformity of application of EU law (at large), and making the European Union a credible actor and co-creator of international legal order. The RLF is an important tool for the maintenance of relative stability of human rights and the rule of law in the EU despite natural divergence propensity resulting from the procedural autonomy of the EU Member States. By achieving this stability, the EU achieves significant political weight in international dialogue concerning human rights and the rule of law and preserves a high level of its global credibility in this context. Thus, RLF increases the EU’s effectiveness in promoting the European model of their identification and enforcement.

scholarly journals The Rule of Law and the Roll of the Dice. The Uncertain Future of Investor-State Arbitration in the EU

2021 ◽  
pp. 333-359
Author(s):  
Wojciech Sadowski
Keyword(s):  
Rule Of Law ◽  
Legal Reasoning ◽  
Eu Law ◽  
Member States ◽  
The Rule Of Law ◽  
Investment Treaty ◽  
Treaty Law ◽  
Energy Charter Treaty ◽  
Uncertain Future ◽  
The Eu

AbstractInvestment treaty law and EU law began to develop in the same era and share some important philosophical and axiological foundations. The pressure on the CEE countries to enter into numerous bilateral investment treaties in late 80s and early 90s, in the context of the EU accession aspirations of the former communist countries, was likely to result, eventually, in a conflict between EU law and investment treaty law. The conflict could have been managed in three different ways, yet the CJEU decided in Achmea to declare an undefined volume of intra-EU arbitrations to be incompatible with EU law. This important judgment, which delivered an outcome desired by the European Commission and a number of Member States, is based on questionable legal reasoning that creates high uncertainty in this area of law. The doubts include the scope of application of Achmea, which is now a highly debatable issue. The CJEU itself saw it necessary to limit the scope of Achmea by declaring in Opinion 1/17 (CETA) that the legal reasoning of Achmea did not apply to investment protection treaties with third countries. The Member States of the EU remain politically divided in their views as to whether Achmea applies to the Energy Charter Treaty. And while the problems with the rule of law and independence of the judiciary in certain Member States continue to grow, Achmea has left an important gap for which there is no substitute in the current architecture of the EU legal system.

Article 1 TFEU

2019 ◽  
Author(s):  
Marcus Klamert
Keyword(s):  
Rule Of Law ◽  
Community Based ◽  
Member States ◽  
The Rule Of Law ◽  
The Eu

The EU is founded on ‘the Treaties’, i.e. the TEU and the TFEU (Article 1(2) TEU). It has been referred to as a ‘community of law’, and a ‘Community based on the rule of law, in as much as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty’.

scholarly journals La Unión Europea, Cataluña y Escocia (Cuestiones jurídicas sobre las recientes tendencias secesionistas en los Estados Miembros de la UE)

2016 ◽  
pp. 101 ◽  
Author(s):  
Jean-Claude Piris
Keyword(s):  
Rule Of Law ◽  
Safe Haven ◽  
Member States ◽  
The Rule Of Law ◽  
Eu Member States ◽  
Informal Consultation ◽  
National Constitution ◽  
The Uk ◽  
Regional Elections ◽  
The Eu

Este estudio surge de los acontecimientos producidos en 2014 y 2015 en Escocia (referéndum sobre la independencia) y en Cataluña («consulta informal» y elecciones autonómicas). En ambos casos, los movimientos secesionistas deseaban que un nuevo Estado nacido de la secesión llegara a ser (según ellos, «siguiera siendo») parte de la UE. Esta convicción les fortalece, ya que la UE es vista como un «refugio seguro », que permite la independencia sin la amenaza de quedar aislado. Los Tratados de la UE ni prevén ni prohiben la división de un Estado miembro. No obstante, para llegar a ser parte de la UE, la región secesionista debería primero ser reconocida como Estado por la comunidad internacional, y específicamente por los 28 Estados miembros de la UE (incluyendo España y el Reino Unido). Esto sería legalmente posible si el nuevo Estado naciera respetando completamente el Estado de Derecho, pero en cambio excluiría un «Estado» que hubiera declarado unilateralmente su independencia violando la Constitución nacional. Así, un nuevo Estado reconocido podría ser candidato a incorporarse a la UE. El autor muestra que debería seguirse el procedimiento del artículo 49 del Tratado de la UE y no el del artículo 48 (enmiendas a los Tratados). Tomando Escocia como ejemplo, el autor describe los pasos legales necesarios que deben darse después de la secesión. Señala que la división de un Estado de la UE ya no debería verse como un asunto estrictamente nacional; dadas sus consecuencias sobre la UE en conjunto y sobre otros Estados miembros, es un asunto que no puede ser ignorado por la UE.This study starts from the 2014-2015 events in Scotland (referendum on independence) and in Catalonia («informal consultation» and regional elections). Secessionists movements in both cases wished that a new State born from the secession would become (according to them «continues to be») part of the EU. That conviction strengthens them, as the EU is seen as a «safe haven», allowing independence without the threat of being isolated. The EU Treaties neither provide for, nor prohibit the partition of a Member State. However, in order to become part of the EU, the secessionist region should first be recognized as a State by the international community, and specifically by the 28 EU Member States (including Spain and the UK). This would be legally possible if the new State was born in full respect of the Rule of Law, but would exclude a «State» having unilaterally declared its independence in violation of the national Constitution. Then, a new State recognised could be a candidate to the EU. The author shows that the procedure of article 49 of the Treaty on EU woud have to be followed (accession of a new State) and not that of article 48 (amendments to the Treaties). Taking Scotland as an example, the author describes the necessary legal steps to be accomplished after the secession. He stresses that the partition of an EU State should not anymore being regarded as a strictly national matter. Given its consequences on the EU as a whole and on other Member States, it is a matter that cannot be ignored by the EU.

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