scholarly journals Elephants in the Room: The European Commission’s 2019 Communication on the Rule of Law

2019 ◽  
Vol 11 (2-3) ◽  
pp. 423-438 ◽  
Author(s):  
Dimitry Kochenov
Keyword(s):  
Rule Of Law ◽  
Critical Reading ◽  
The Rule Of Law ◽  
The Core ◽  
Core Problem ◽  
The Eu

Abstract This contribution honouring Prof. Martin Krygier scholarship provides a brief critical reading of the European Commission’s July 2019 Communication on the Rule of Law (COM(2019) 343 final). It argues that although the Commission’s effort is welcome, the Communication fails to correctly identify the core problem related to the Rule of Law in the EU, which is the constitutional capture in the illiberal regimes. The failure to identify the core problem with unequivocal precision and spell out its key elements as well as dissect its causes undermines the likely effectiveness of the tools proposed by the Commission to address the unnamed and unanalyzed on-going Rule of Law concerns. Consequently, the Communication is lacking in vital essentials, if not vacant at the core.

On Barks, Bites, and Promises

2020 ◽  
pp. 147-156
Author(s):  
Dimitry Vladimirovich Kochenov
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
The Rule Of Law ◽  
The Core ◽  
Constitutional System ◽  
The Eu

The demise of Poland and Hungary as constitutional democracies clearly illustrate that the EU is unable to guarantee the preservation of democracy and the rule of law. Beyond looking at the response provided by EU institutions to the amplification of the rule of law backsliding in Hungary and Poland, this chapter provides an overview of how the EU is maturing as a constitutional system as a result of the challenge. The lesson of the crisis is thus a positive one: the EU is discovering the substance of the core principles guiding its own legal system and the CJEU provides a guiding light in this process.

scholarly journals Verfassungsaufsicht in der Europäischen Union

2021 ◽  
Author(s):  
Matthias Schmidt
Keyword(s):  
European Commission ◽  
Rule Of Law ◽  
Final Part ◽  
Eu Law ◽  
The Rule Of Law ◽  
Complex Concept ◽  
The Third ◽  
The Core ◽  
Main Thesis ◽  
The Eu

This book offers, in five parts, an analysis of the so-called rule of law crisis in the EU. The first part focuses on the concepts that help to understand the rule of law crisis, in particular that of “systemic deficiencies in the rule of law”. In order to shine light on the complex concept of “rule of law” included in Art. 2 TEU, the author focusses on the operationalisation of the rule of law in recent CJEU jurisprudence. The second part of the book is devoted to developments in certain Member States that make up the rule of law crisis. Special attention is paid to Poland and Hungary. The third part deals with the main thesis of the book: why it is useful to conceive of the measures taken in response to the rule of law crisis as "constitutional supervision” in EU law. The merits and roots of this concept are discussed in detail. On this basis, the fourth part presents the core of the analysis: the different mechanisms of EU constitutional supervision. After introducing its different actors, the work focuses on the activities of the European Commission. The final part concludes with an outlook.

scholarly journals A Populist Monster and the future of Constitutional Democracy

2021 ◽  
Vol 4 (1) ◽  
pp. 83-100
Author(s):  
Andraž Teršek
Keyword(s):  
Rule Of Law ◽  
Legal Protection ◽  
Constitutional Court ◽  
Court Decisions ◽  
Constitutional Democracy ◽  
Council Of Europe ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
The Social ◽  
The Eu

Abstract The central objective of the post-socialist European countries which are also Member States of the EU and Council of Europe, as proclaimed and enshrined in their constitutions before their official independence, is the establishment of a democracy based on the rule of law and effective legal protection of fundamental human rights and freedoms. In this article the author explains what, in his opinion, is the main problem and why these goals are still not sufficiently achieved: the ruthless simplification of the understanding of the social function and functioning of constitutional courts, which is narrow, rigid and holistically focused primarily or exclusively on the question of whether the judges of these courts are “left or right” in purely daily-political sense, and consequently, whether constitutional court decisions are taken (described, understood) as either “left or right” in purely and shallow daily-party-political sense/manner. With nothing else between and no other foundation. The author describes such rhetoric, this kind of superficial labeling/marking, such an approach towards constitutional law-making as a matter of unbearable and unthinking simplicity, and introduces the term A Populist Monster. The reasons that have led to the problem of this kind of populism and its devastating effects on the quality and development of constitutional democracy and the rule of law are analyzed clearly and critically.

The COVID-19 Pandemic, the Courts and Online Hearings: Maintaining Open Justice, Procedural Fairness and Impartiality

2021 ◽  
pp. 0067205X2199313
Author(s):  
Michael Legg
Keyword(s):  
Rule Of Law ◽  
Procedural Fairness ◽  
Judicial Power ◽  
Communications Technology ◽  
Design Decisions ◽  
Adoption Of Technology ◽  
The Rule Of Law ◽  
The Core

The COVID-19 pandemic and the ensuing mandated health protections saw courts turn to communications technology as a means to be able to continue to function. However, courts are unique institutions that exercise judicial power in accordance with the rule of law. Even in a pandemic, courts need to function in a manner consistent with their institutional role and their essential characteristics. This article uses the unique circumstances brought about by the pandemic to consider how courts can embrace technology but maintain the core or essential requirements of a court. This article identifies three essential features of courts—open justice, procedural fairness and impartiality—and examines how this recent adoption of technology has maintained or challenged those essential features. This examination allows for an assessment of how the courts operated during the pandemic and also provides guidance for making design decisions about a technology-enabled future court.

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 State-building for the market economy in Eastern Europe

2020 ◽  
Vol 70 (4) ◽  
pp. 471-491
Author(s):  
Paul Hare
Keyword(s):  
Eastern Europe ◽  
Rule Of Law ◽  
Law And Economics ◽  
Recent Analysis ◽  
The Rule Of Law ◽  
State Institutions ◽  
Role Of The State ◽  
New States ◽  
The Eu

AbstractKornai's earlier works embodied the idea that state institutions formed a system with a strong tendency to reproduce itself, and hence to resist minor reforms. Thus, at the end of socialism, huge changes were needed in politics, economics, and the law to build a new system oriented towards the market-type economy, which would again be stable, self-reinforcing and self-sustaining. Transition promoted the development of new states in Eastern Europe that conformed to the Copenhagen criteria for the EU accession. Were we too hasty in thinking that we had succeeded? The new systems are not returning to the previous one, and only in a few areas have the basic norms of a market-type economy been set aside in Hungary or Poland. But concerns arise at the interface between politics, law and economics – to do with the rule of law, the nature and role of the state, and the interactions between parliament, the executive and the judiciary. Unavoidably, there is also an interesting international dimension here, represented by the shift from the Warsaw Pact and CMEA to NATO and the EU. This paper explores these issues in the light of some of Kornai's recent analysis of developments in Hungary, while also drawing on his very insightful earlier works.

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.

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