Generating Trust Through Law? Judicial Cooperation in the European Union and the “Principle of Mutual Trust”

2016 ◽  
Vol 17 (3) ◽  
pp. 339-382 ◽  
Author(s):  
Thomas Wischmeyer
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Mutual Recognition ◽  
Mutual Trust ◽  
The European Union ◽  
Judicial Cooperation ◽  
The Rule Of Law ◽  
Legal Rules ◽  
Eu Member States ◽  
The Eu

For a long time, EU institutions have emphasized the connection between one of the most important concepts of the integration method, mutual recognition, and the presence of mutual trust between EU Member States. Only recently, the ECJ reaffirmed in its Opinion 2/13 that mutual trust is at the heart of the EU and a “fundamental premiss” of the European legal structure. But can law really restore, advance or even govern by trust? This question is crucial for the EU of today, which finds itself in the midst of a severe crisis of trust. For the EU as a community “based on the rule of law” generating trust through law might seem the natural, maybe the only politically viable response to a crisis of trust. Nevertheless, even if one agrees that the rule of law requires people to place trust in legal rules, and that courts and administrative agencies need to trust each other in order to work efficiently and consistently, how would legal rules be able to generate or promote trust? Moreover, isn't it deeply rooted in our ideas about constitutional government that democratic law must institutionalize mutual distrust rather than govern by trust? These conceptual and normative objections did not stop the European Union from pursuing the project of trust-building through law in one of the most sensitive areas of EU law, judicial cooperation in civil and criminal matters. This Article will ask whether the project to promote trust through law is a promising one, and, eventually, how to reinterpret statutory provisions and legal principles that purport to generate trust amongst their addressees.

scholarly journals Torpedoing v. Carpet Bombing: Mutual Trust and the Rule of Law

2021 ◽  
Vol 1 ◽  
pp. 9-22
Author(s):  
Adam Máčaj
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Future Application ◽  
Mutual Trust ◽  
The European Union ◽  
Judicial Cooperation ◽  
The Rule Of Law ◽  
Fundamental Value ◽  
The Impact ◽  
The Eu

The aim of this paper is to assess the most recent developments in the arising threats to the rule of law, in particular from the viewpoint of their impact on the judicial cooperation in light of the principle of mutual trust in the European Union. The paper analyses the development of this principle, the position of the Court of Justice of the European Union on the issue, and its views on recent challenges to the rule of law as a fundamental value of the EU, along with positions of other judicial bodies. The assessment then seeks to establish the impact the arising threats to rule of law in the EU, including judicial independence, may exert on the future application of the principle of mutual trust amongst judicial authorities of the Member States, and outline the implications arising therefrom.

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.

THE EUROPEAN UNION DISTINCTIVENESS: A CONCEPT OF THE RULE OF LAW

2021 ◽  
Vol 6 (2) ◽  
pp. 157-171
Author(s):  
Adnan Mahmutovic ◽  
Helza Nova Lita
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
The European Union ◽  
Government Officials ◽  
The Rule Of Law ◽  
Eu Member States ◽  
Eu Integration ◽  
Legal Principle ◽  
The Subject ◽  
The Eu

This paper discusses the distinctiveness of the European Union with focus on the Rule of Law and its importance for the EU integration process. Rule of Law is a notion that is very frequently used, but at the same time quite controversial as it is not so easy always to reach generally accepted meaning. Therefore, this paper provides a analysis of the EU Rule of Law  as multidimensional legal principle gravitating between values and principles. The paper acknowledges that a concept of the EU rule of law can be the subject of diverse interpretations and implementation. High-ranking government officials of a two EU member states, Poland and Hungary, have argued recently that a concept of the EU rule of law lacks well-defined rules and remains the subject of much debate. Therefore, the paper provides for better understanding of the concept itself within the specific supranational legal environment. Also, the paper argues that the future of the EU and its integrations depends largely on the respect of the rule of law that remains to be a core and the element of unity within Europe’s legal space. The relationship between the principles and values upon which the EU is founded remain close and interrelated. The EU Rule of law with all its distinctiveness can be concluded with certainty that it reflects a specific character and nature of the EU legal system.

scholarly journals The “Thick” Rule of Law and Mutual Trust in the European Union

2019 ◽  
Vol 18 (1) ◽  
pp. 1-17
Author(s):  
Juha Raitio
Keyword(s):  
European Union ◽  
Human Rights ◽  
Rule Of Law ◽  
Judicial Review ◽  
Good Governance ◽  
Mutual Trust ◽  
The European Union ◽  
The Rule Of Law ◽  
Material Concept ◽  
The Eu

The concept of the rule of law has lately become a topical and controversial issue. For example, the existence of effective judicial review is an inseparable part of the rule of law and some problems in this respect have been analysed. This article advocates for a thick concept of the rule of law. This refers to the idea that the rule of law has both material and formal content. The controversial part seems to be the question of material content and whether it obscures the essential meaning of the rule of law as a requirement of legality. However, the material aspect of the rule of law can be linked to the value-base of the European Union. For example, during its EU Presidency, Finland strongly emphasized the significance of the value base and the rule of law in Article 2 teu for the development of the EU. Democracy, the rule of law, and the actualisation of fundamental and human rights in particular are connected together, combined in a trinity where all the components form preconditions for the others. This stance is not a novelty in Finland, since Jyränki, for one, two decades ago already maintained that human rights protect the individual’s position and thus belong to the sphere of the material concept of the rule of law. I have employed the metaphor of a musical triangle. A triangle can only make a sound if all three of its corners are connected to each other, thereby connecting the sides of the triangle. Observance of the core values of the EU is a precondition for mutual trust between Member States, which in turn is necessary for a well-functioning European Union and good governance.

Nationales Verfassungsrecht in der Europäischen Union

2021 ◽  
Author(s):  
Claus Dieter Classen
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
The European Union ◽  
Basic Principles ◽  
Member States ◽  
The Rule Of Law ◽  
Eu Member States ◽  
Head Of State ◽  
State Functions ◽  
The Eu

The book presents the constitutional systems of the 27 EU member states in an integrated form. Basic principles such as democracy and the rule of law, constitutionalismincluding constitutional jurisdiction, state organs (parliament, government, head of state) and state functions (legislation, administration, jurisdiction, foreign policy) are dealt with. Thus, common European basic principles are elaborated, but above all, the different manifestations of many constitutional principles are clarified. The book is aimed at all those who wish to inform themselves in a clear form about the constitutional systems of the EU member states on which the European Union is based.

scholarly journals “WOULD MONEY MAKE A DIFFERENCE?”: HOW EFFECTIVE CAN THE RULE-OF-LAW-BASED PROTECTION OF FINANCIAL INTERESTS IN THE EU STRUCTURAL AND ENLARGEMENT POLICY BE?

2021 ◽  
Author(s):  
Aleksandar-Andrija Pejović
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Big Bang ◽  
The Other ◽  
Annual Reports ◽  
The European Union ◽  
Member States ◽  
The Rule Of Law ◽  
Eu Member States ◽  
The Eu

In recent years, the rule of law and, especially, its “proper” implementation has become one of the most debated topics in Europe in recent years. The “Big Bang Enlargement” marked the beginning of dilemmas whether the new EU Member States fulfil the necessary rule of law criteria and opened the way for divergent views on how to implement TEU Article 2 values in practice. Furthermore, constant problems and difficulty of the candidate countries to fulfil the necessary rule of law criteria added to the complexity of the problem. In turn, the European institutions have tried to introduce a series of mechanisms and procedures to improve the oversight and make the states follow the rules - starting from the famous Treaty on the European Union (TEU) Article 7, the Rule of Law Mechanism, annual reports on the rule of law and the most recent Conditionality Regulation. The Conditionality Regulation was finally adopted in December 2020 after much discussion and opposition from certain EU Member States. It calls for the suspension of payments, commitments and disbursement of instalments, and a reduction of funding in the cases of general deficiencies with the rule of law. On the other hand, similar provisions were laid out in the February 2020 enlargement negotiation methodology specifying that in the cases of no progress, imbalance of the overall negotiations or regression, the scope and intensity of pre-accession assistance can be adjusted downward thus descaling financial assistance to candidate countries. The similarities between the two mechanisms, one for the Member States, the other for candidate countries shows an increased sharing of experiences and approaches to dealing with possible deficiencies or breaches of the rule of law through economic sanctioning, in order to resolve challenges to the unity of the European union. The Covid-19 pandemic and the crisis it has provoked on many fronts has turned the attention of the Member States (i.e. the Council) away from the long running problematic issues. Consequently, the procedures against Poland and Hungary based on the Rule of Law Mechanism have slowed down or become fully stalled, while certain measures taken up by some European states have created concerns about the limitations of human rights and liberties. This paper, therefore, analyses the efforts the EU is making in protecting the rule of law in its Member States and the candidate countries. It also analyses the new focus of the EU in the financial area where it has started to develop novel mechanisms that would affect one of the most influential EU tools – the funding of member and candidate countries through its structural and enlargement policy. Finally, it attempts to determine and provide conclusions on the efficiency of new instruments with better regulated criteria and timing of activities will be and how much they would affect the EU and its current and future member states.

scholarly journals LEGAL APPROACHES TO THE ARTIFICIAL INTELLIGENCE AND ROBOTS REGULATION IN THE EUROPEAN UNION AND ITS MEMBER STATES

2020 ◽  
pp. 121-128
Author(s):  
T. S. Zaplatina
Keyword(s):  
European Union ◽  
Mutual Recognition ◽  
Legal Regulation ◽  
The European Union ◽  
Member States ◽  
Legal Rules ◽  
Eu Member States ◽  
Ethical And Legal Issues ◽  
The Eu

This article is devouted to the analises of legal approaches to the regulation of artifi cial intelligence in the European Union and its member states. The European Union, Austria, France and Germany legal regulation analysis shows that at that moment there is no single approach regarding the legal regulation of artifi cial intelligence and robots. So, current legal rules are not fully applicable in the scope of contractual liability, that creates need for the adoption of new eff ective standards meeting modern technological achievements and innovations. There is important role of ethical and legal issues associating with risks in the fi eld of human rights and fundamental freedoms, issues developing ethical principles in artifi cial intelligence algorithms. The single legal European approach will help to avoid fragmentation of the EU Member States legislation and will expand the possibilities of mutual recognition in the cross-border use of robots and robotic systems.

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.

Caught Between National and Supranational Values: Limitations to Judicial Cooperation in Criminal Matters as Part of the Area of Freedom, Security and Justice within the European Union

2008 ◽  
Vol 10 (1) ◽  
pp. 51-72
Author(s):  
Olivia den Hollander
Keyword(s):  
European Union ◽  
Legal Framework ◽  
The European Union ◽  
Judicial Cooperation ◽  
Member States ◽  
Eu Member States ◽  
The Third ◽  
The One ◽  
Criminal Matters ◽  
The Eu

AbstractCurrently, the European Union is based on both supranational (first pillar) and international (second and third pillar) law. The third pillar signifies police and judicial cooperation in criminal matters and although formally based on international law, it has been under increasing "supranational pressure" by the developments in the "Area of Freedom, Security and Justice". This Area is focused on a set of common values and principles closely tied to those of the single market and its four "freedoms". The main argument of this article is that the legal framework of the third pillar is an impediment to judicial cooperation in criminal matters in general, and to the coordination of conflicts of jurisdiction and the principle of ne bis in idem in particular. The legal framework of the third pillar finds itself in the middle of an identity crisis, since it can neither be identified as a traditional intergovernmental, nor as a supranational institutional framework. Criminal law is a politically sensitive matter, which on the one hand explains why the EU member states are reluctant to submit their powers over the issue to the European level and on the other hand, it implies that if the EU member states really want to cooperate on such an intensive level, they will have to submit some of their powers in order to strengthen EU constitutional law. The article suggests a reform of the third pillar through the method of "communitization", which is exactly what will happen in case the EU Reform Treaty will enter into force. This would offer the ingredients for a true international community in which the ambitious agenda of the Area of Freedom, Security and Justice can realise its aim of a common set of values and principles which supersedes those of each of the member states individually.

scholarly journals Hungary and the Indirect Protection of EU Fundamental Rights and the Rule of Law

2013 ◽  
Vol 14 (10) ◽  
pp. 1959-1979 ◽  
Author(s):  
Mark Dawson ◽  
Elise Muir
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Central Place ◽  
Fundamental Rights ◽  
The European Union ◽  
Far Right ◽  
The Rule Of Law ◽  
Fundamental Values ◽  
Eu Fundamental Rights ◽  
The Eu

According to Article 2 of the Treaty on European Union, the European Union is a political and economic union founded on a respect for fundamental rights and the rule of law, referred to hereafter as EU fundamental values. The central place of this commitment in the EU Treaties suggests a founding assumption: That the EU is a Union of states who themselves see human rights and the rule of law as irrevocable parts of their political and legal order. Reminiscent of the entry of Jorg Haider's far-right Freedom Party into the Austrian government in 2000, the events of 2012 have done much to shake that assumption; questioning both how interwoven the rule of law tradition is across the present-day EU, and the role the EU ought to play in policing potential violations of fundamental rights carried out via the constitutional frameworks of its Member States. Much attention in this field, much like the focus of this paper, has been placed on events in one state in particular: Hungary.

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