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 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.

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.

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 “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 EU Refugee Crisis: A Stumbling Block to the Process of European Integration?

2021 ◽  
Vol 10 (1) ◽  
Author(s):  
Dionysios Stivas
Keyword(s):  
European Union ◽  
European Integration ◽  
Refugee Crisis ◽  
The European Union ◽  
Member States ◽  
Eu Member States ◽  
Eu Integration ◽  
The Future ◽  
The Eu

Currently, the European Union (EU) is dealing with an unprecedented refugee crisis which has been blamed for bringing the process of the EU integration to an impasse. By applying theories of European (dis)integration, this paper assesses the extent to which the current refugee crisis constitutes an impediment to the future of the European Union. This paper’s analysis is constructed around two hypotheses: (1) the refugee crisis triggered Brexit and the failure of the EU’s relocation scheme, symptoms of the EU’s disintegration; (2) the refugee crisis has a dual potential: to simultaneously promote the deeper integration and the disintegration of the EU. To test these hypotheses, this paper examines if and how the refugee crisis is related to Brexit and whether the rebellious reaction of certain EU member states to the implementation of the EU relocation scheme is a sign of reversal in the process of EU integration.

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.

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 An Old Procedure with new Solutions for the Rule of Law Crisis

2019 ◽  
Vol 2 (2) ◽  
pp. 1-19
Author(s):  
Franziska-Marie Laura Hilpert
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Separation Of Powers ◽  
Fundamental Rights ◽  
The European Union ◽  
Enforcement Mechanism ◽  
The Rule Of Law ◽  
Strategic Approach ◽  
Small Things ◽  
The Eu

Suggested citation:  Franziska-Marie Laura Hilpert, 'An Old Procedure with new Solutions for the Rule of Law Crisis' (2019) 2(2) NJEL 1. While commentators for the past years, have highlighted that there is no effective enforcement mechanism after accession for the values of the European Union which are enshrined in Article 2 TEU, the Juncker Commission has announced in 2017 that it will be ‘bigger and more ambitious on big things, and smaller and more modest on small things’ thus applying a more strategic approach to enforcement in terms of handling infringements. This Article thus analyses two cases brought by the Juncker Commission after 2017 and on their bases seeks to show that the infringement procedure, when applied strategically, is and remains an effective enforcement mechanism even for the values enshrined in Article 2 TEU in the ‘rule of law crisis’. Thus, by way of analysis of the case C-619/18 Commission v Poland and its comparison with similar cases which have not been as effective, it is shown how the infringement procedure can prevent the enforcement of the most controversial provisions regarding the judiciary in Hungary and Poland and ensure the separation of powers, which is essential for the rule of law. Moreover, by comparison of the Commission’s request and the decision of the Court of Justice of the European Union in C-235/17 Commission v Hungary it is shown how the Charter could become a significant legal instrument in the Commissions infringement policy towards Member States that are undermining fundamental rights and the rule of law. This Article thereby aims to contribute to the discussion on how to effectively enforce the values of the EU enshrined in Article 2 TEU through an existing enforcement mechanism.

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.

scholarly journals The ‘Insecurity Toolbox’ of the Illiberal Regime: Rule by Law and Rule by Exclusion

2020 ◽  
Vol 1 (2) ◽  
pp. 216-242
Author(s):  
Ákos Kopper ◽  
Zsolt Körtvélyesi ◽  
Balázs Majtényi ◽  
András Szalai
Keyword(s):  
European Union ◽  
Member State ◽  
Rule Of Law ◽  
The European Union ◽  
The Rule Of Law ◽  
Rule By Law ◽  
European Standards ◽  
Democratic Norms ◽  
The Eu

Abstract This article scrutinizes the ‘insecurity toolbox’ that Hungary’s illiberal regime relies on in order to create an increasingly authoritarian system that sidelines the opposition and silences discontent. While authoritarian shifts are widespread, what makes the case of Hungary unique is that it involves a member state of the European Union. We identify three important features of the regime: (1) it relies on securitization by using an anti-immigrant meta-frame to justify virtually all policies and identify enemies whose presence justifies exceptional measures; (2)it applies law instrumentally and rules by law, which effectively undermines the rule of law and its guarantees against arbitrariness; (3)it maintains a screen of compliance with democratic and constitutional norms. While the EU seems impotent, or unwilling to halt this authoritarian backsliding, the Hungarian government feels it necessary to fake compliance with democratic norms by adopting policies that formally acquiesce to European standards but contradict them in essence.

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