Emergency! But What about Legal Protection in the EU?

2018 ◽  
Vol 9 (1) ◽  
pp. 99-119 ◽  
Author(s):  
Tom BINDER ◽  
Argyro KARAGIANNI ◽  
Miroslava SCHOLTEN
Keyword(s):  
Rule Of Law ◽  
Legal Protection ◽  
Case Law ◽  
Public Authorities ◽  
The Rule Of Law ◽  
Emergency Powers ◽  
Executive Discretion ◽  
Legal Position ◽  
Private Actors ◽  
The Eu

AbstractThe EU institutions and agencies have become increasingly involved in enforcing EU law directly vis-à-vis private actors. A number of such EU entities have also acquired the so-called emergency powers, which allow interference with the legal position of a private party. Given the lack of research in this area, the question that this article addresses is whether relevant safeguards have been introduced to ensure the rule of law in such situations to prevent the abuse of executive discretion by public authorities. What are the relevant safeguards in the emergency in the EU in the first place? Having analysed relevant EU legislation and case law, the article offers a complete overview of all the existing EU entities with the emergency powers and shows a great diversity in the extent to which the EU legislator has regulated procedural safeguards in relevant law. The article discusses what safeguards need to be ensured in an emergency and argues for clarity of legislative frameworks in this respect.

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.

scholarly journals How Far Is It from Warsaw to Luxembourg and Karlsruhe: The Impact of the PSPP Judgment on Poland

2020 ◽  
Vol 21 (5) ◽  
pp. 1104-1115
Author(s):  
Stanisław Biernat
Keyword(s):  
European Integration ◽  
Rule Of Law ◽  
Case Law ◽  
Eu Law ◽  
Member States ◽  
The Rule Of Law ◽  
Eu Member States ◽  
Constitutional Tribunal ◽  
Legal Position ◽  
The Impact

AbstractA concern was voiced in commentaries after the PSPP judgment that the BVerfG’s position regarding the refusal to apply in Germany the CJEU judgment as issued on an ultra vires basis might be used in EU Member States infringing the rule of law, and the independence of the judiciary in particular. This issue is presented in relation to Poland. The article sets out the constitutional provisions which proclaim openness to European integration, as well as the union-friendly case-law of the Constitutional Tribunal (CT) until 2016. The CT jurisprudence at that time provided, however, for the possibility of refusing to apply EU law in exceptional situations, even though this never happened. Next, the article discusses endeavors of the new Polish authorities since the end of 2015 which drastically breach the rule of law in the field of the judiciary, as well as the measures taken by EU institutions to counteract these adverse phenomena. The Polish authorities argue that the competence to define the legal position of the judiciary has not been conferred on the Union and remains within the exclusive competence of the Member States. Such a stance was also taken by the politically dependent CT in April 2020. The PSPP judgment was therefore welcomed with joy by Polish politicians. There are major differences, however, between the rulings of the BVerfG and those of the Polish CT in its current composition, and the hopes pinned on the PSPP judgment by the Polish authorities are unfounded.

Vergaberechtsschutz im Spannungsfeld zwischen Beschleunigungsgebot und Gewährung effektiven Rechtsschutzes

2019 ◽  
Author(s):  
Hsi-Ping Chen
Keyword(s):  
Rule Of Law ◽  
Public Procurement ◽  
German Law ◽  
Legal Protection ◽  
The Other ◽  
The Rule Of Law ◽  
Other Hand ◽  
The One ◽  
Substantive Law ◽  
The Eu

The German Law on public procurement remedies, implementing the EU Remedies Directives into national law, has to engage in a balancing act between effective legal protection of bidders and the necessary acceleration of the award procedure. The book develops solutions for conflicts between the abovementioned opposing interests, which are consistent with the pluralistic paradigm of the European legal area, and the standards of assessment of the EU primary substantive law on public procurement. The Europeanisation of the German Law on public procurement remedies is analysed in detail. The work deals with the establishment and improvement of effective legal protection of bidders on the one hand and, on the other hand, shows that the acceleration of the award procedure within the framework of the procedural system is bounded by the rule of law. The book carves out strengths and deficits of the German Law on public procurement remedies.

scholarly journals Ombudsman decentralized in the EU: experience for Ukraine

2016 ◽  
Vol 4 (1-2) ◽  
pp. 42-50
Author(s):  
К. В. Мануілова
Keyword(s):  
The Netherlands ◽  
Rule Of Law ◽  
Significant Contribution ◽  
Public Authorities ◽  
Public Power ◽  
The Rule Of Law ◽  
Growth Status ◽  
The Individual ◽  
Further Development ◽  
The Eu

The article analyses the actual theme of the ombudsman institution in terms of decen­tralization of public power. The features of formation and functioning of the ombudsman in Sweden, Finland, of Denmark, Austria and the Netherlands. It is noted that it is the best ombudsman protects the rights of people in decentralized EU. Ombudsman makes a significant contribution to the democratization of society, public power closer to the peo­ple, ensuring fairness, legitimacy and willingness to meet the needs of citizens and con­tributes to greater transparency, efficiency and quality in the work of public authorities. Today, most decentralized European countries the post of local / regional ombudsman, which successfully handles control of public authorities. The conclusions emphasized that the activities of the institute of local / regional ombudsman investigated in the EU was an important step for the further development of democratic society; strengthening the rule of law key components (growth status of the individual, guaranteeing the rights and freedoms of man and citizen); providing better control over the activities of authori­ties and officials; realization of the main goal of the policy of decentralization of public power – the power to approach people. The recommendations for change Ukrainian om­budsman as a decentralized public power.

Saving Judicial Independence: A Threat to the Preliminary Ruling Mechanism?

2021 ◽  
pp. 1-27
Author(s):  
Charlotte Reyns
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Judicial Independence ◽  
Case Law ◽  
Preliminary Ruling ◽  
The European Union ◽  
The Rule Of Law ◽  
Court Of Justice ◽  
The Eu

Admissibility of questions for preliminary ruling – Independence of courts and tribunals in the case law of the Court of Justice of the European Union as Dorsch Consult criterion under Article 267 TFEU – Independence of courts and tribunals in the case law of the Court of Justice of the European Union as element of the Rule of Law value under Article 19 TEU – Structural inadmissibility of questions for preliminary ruling as perverse consequence of the attempts to safeguard independence of the EU judiciary

scholarly journals EU Courts’ review of decisions imposing fines in EU state aids cases

2013 ◽  
Vol 61 (4) ◽  
pp. 1017-1021
Author(s):  
Jana Mikušová
Keyword(s):  
Rule Of Law ◽  
Case Law ◽  
Historical Background ◽  
The Rule Of Law ◽  
Secondary Sources ◽  
Comprehensive View ◽  
Principle Of Proportionality ◽  
State Aids ◽  
The Eu

The aim of this article is to provide a comprehensive view on the application of the principle of proportionality in the Commission’s decisions imposing fines in the area of state aids as well as the EU courts exercise of the jurisdiction over these decisions.The primary and secondary sources of law and the case law would be investigated in this article. The author would like to briefly describe the historical background of the application of the principle of proportionality and by analysing the case law follow the evolvement of the application of the principle. The study should bring the answer on question whether the rule of law (in this case principle of proportionality) is safeguarded enough by the courts review of the decisions imposing fines.

scholarly journals International authority and the emergency problematique: IO empowerment through crises

2019 ◽  
Vol 11 (2) ◽  
pp. 182-210 ◽  
Author(s):  
Christian Kreuder-Sonnen
Keyword(s):  
Large Scale ◽  
Legal Protection ◽  
Checks And Balances ◽  
Mission Creep ◽  
Emergency Powers ◽  
International Authority ◽  
Un Security Council ◽  
Executive Discretion ◽  
Governance Modes ◽  
The Eu

AbstractThis paper applies the concept of emergency powers to the crisis politics of international organizations (IOs). In the recent past, IOs like the UN Security Council, the WHO, and the EU have reacted to large-scale crises by resorting to assertive governance modes bending the limits of their competence and infringing on the rights of the rule-addressees. In contrast to rational and sociological institutionalist notions of mission creep, this paper submits that this practice constitutes ‘authority leaps’ which follow a distinct logic of exceptionalism: the expansion of executive discretion in both the horizontal (lowering of checks and balances) and the vertical (reduction of legal protection of subjects) dimension, justified by reference to political necessity. This ‘IO exceptionalism’, as argued here, represents a class of events which is observable across fundamentally different international institutions and issue areas. It is important not least because emergency politics tend to leave longer-term imprints on a polity’s authority structures. This article shows that the emergency powers of IOs have a tendency to normalize and become permanent features of the institution. Thus IO exceptionalism and its ratcheting up represent a mechanism of abrupt but sustainable authority expansion at the level of IOs.

scholarly journals The Operationalisation of the Rule of Law in the EU Legal Order

2019 ◽  
Vol 2 (2) ◽  
pp. 20-36
Author(s):  
Joshua Chung
Keyword(s):  
Human Rights ◽  
European Integration ◽  
Rule Of Law ◽  
Liberal Democracy ◽  
Case Law ◽  
Central Place ◽  
Legal Order ◽  
The Rule Of Law ◽  
European Project ◽  
The Eu

  The European project was founded on the advancement of liberal democracy where the rule of law and respect for human rights have a central place. In a period of ‘instability’ in the Union where organisational changes to national judiciaries have raised fears over rule of law backsliding amongMember States threatening the functioning of the EU’s legal order, the main aim of this article is to explore the operationalisation of the rule of law as a founding value of the EU and its connection to European integration. To demonstrate that there is a developing jurisprudence in the EU legal order towards increased justiciability ofthe rule oflaw. The article in part 2 examines the proposition that the operationalisation of the rule of law and European integration is linked to a substantive rights based conception of the rule of law as a basis for the jurisprudential shift. Part 3 looks at the normative arguments for protecting the rule of law in the EU. Finally, Part 4 analyses the operationalisation of the rule of law in the jurisprudence of the CJEU, in which it is argued there is three lines of argumentation for the operationalisation of the rule of law in the case law of the CJEU.

scholarly journals Courting Asylum: How Asylum Claimants in Greece are Using Judicial Power to Combat neo-Refoulement and the EU-Turkey Safe Third Country Agreement

2019 ◽  
Vol 9 (2) ◽  
Author(s):  
Ender McDuff
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Case Law ◽  
Judicial Power ◽  
Appellate Court ◽  
Court System ◽  
The European Union ◽  
The Rule Of Law ◽  
Global North ◽  
The Eu

The international refugee regime is marked by a widening gap between the constitutional democratic values of countries in the global north and the practices employed by their state executives. While states have committed to the rights of refugees by joining the 1951 Refugee Convention, they have simultaneously subverted the rule of law in the name of security by instituting practices that externalize asylum: neo-refoulement. The purpose of this article is to examine the extent to which judicial power can be used to combat executive practices of neo-refoulement. This article considers asylum claims heard in the Greek appellate court system pertaining to the safe third country agreement between the European Union and Turkey. The article concludes that, under a system of coequal institutions, judicial power and case law harbour the potential for necessitating the consideration of all individual asylum cases effectively disarming practices of neo-refoulement.

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