scholarly journals Policing the Genuine Purity of Blood: The EU Commission’s Assault on Citizenship and Residence by Investment and the Future of Citizenship in the European Union

2021 ◽  
Vol 25 (1) ◽  
pp. 33-62
Author(s):  
Dimitry Vladimirovich Kochenov
Keyword(s):  
European Union ◽  
International Law ◽  
Rule Of Law ◽  
The European Union ◽  
The Rule Of Law ◽  
The Public ◽  
Poor Understanding ◽  
Purity Of Blood ◽  
Migration Law ◽  
The Eu

This article provides a brief critical assessment of the European Commission’s January 2019 “Report on Investor Citizenship and Residence Schemes in the European Union”. Since it is the firs detailed document by the Commission outlining this institution’s position on the matters of investment residence and citizenship, and given the Commission’s recently articulated intentions to take Cyprus and Malta to Court over their investment migration law and practice, the Report in question is of paramount importance. The document sets the legal-political context of the regulation of the migration of wealthy third-country nationals in Europe. It is also deeply fl awed. Rather that summarising the document, this article focuses on fi ve core defi ciencies of the Commission’s embarrassing product and demonstrates how the Commission failed to get the EU’s own law right, in addition to showing a poor understanding of international law on the matter. Ripe with nationalist assumptions not rooted in the Treaties or the secondary law of the Union and showcasing a timid, convoluted and inconsistent analysis of the issues it purports to address, the Report has unsurprisingly failed to change the landscape of regulation in the field of investment citizenship and residence in the EU or anywhere else in the world. What it did make clear, however, was that the mere political suspicion of a particular type of naturalisation is enough for the European Commission to set aside the law and misinform the public, underlying once again the problematic tension between the growing political nature of this institution and its key task as guardian of the Treaties. There is a burning need for the Commission to take a more careful, coherent and informed approach to its actions, an approach indispensable for the preservation of the rule of law in the Union.

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 Constitutionalizing the act of justice in the European Union

2020 ◽  
pp. 47-63
Author(s):  
MARIETA SAFTA
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Constitutional Court ◽  
The European Union ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
The Public ◽  
Necessary Being ◽  
National Courts ◽  
Constructive Dialogue

This study addresses a component of the constitutionalization process at the Union level, namely the act of justice, considering its importance for the evolution of the constitutionalization process. The significance and importance of the constitutionalization of the act of justice are analyzed, as well as the premises and mechanisms of the constitutionalization of the act of justice in the European Union, with particular reference to the jurisprudence of the Romanian Constitutional Court. In this context, the control of constitutionality appears as a decisive modeling factor of the normative action of the legislator and even of the public policies. The constructive dialogue – if we refer to the two legal orders, national and supranational – is all the more necessary, being noticeable the key role played by national courts – and in particular constitutional courts – in defending the rule of law in the European Union, including through their collaboration with the CJEU in cases and through the instruments provided for in the Constitutions and the Treaties.

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.

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 European Union and Migration: An Interplay of National, Regional, and International Law

AJIL Unbound ◽  
2017 ◽  
Vol 111 ◽  
pp. 509-513
Author(s):  
Iris Goldner Lang
Keyword(s):  
European Union ◽  
International Law ◽  
The European Union ◽  
Member States ◽  
Global Migration ◽  
Eu Member States ◽  
The Law ◽  
Migration Law ◽  
The Eu ◽  
Third Country Nationals

If global migration law “includes all levels of the law,” then the European Union represents the most developed instance of the interplay of national, regional, and international law. Migration law in the European Union involves the interaction of EU Member States’ national laws, EU regional law, and international law. This complex interchange of different migratory legal regimes is the consequence of diverse, and sometimes conflicting, objectives and interests of the Union and its Member States, and the nature of EU law itself. This essay explores the impact of these three levels of the law on the four migratory regulatory categories—EU citizens, “desirable” third-country nationals, asylum seekers, and all other third-country nationals—and the three objectives associated with these categories. The predominance of one legal regime over another varies depending on the regulatory category of migrants and the objectives associated therewith. While describing the existing legal systems, the essay outlines their attributes and shortcomings, the most prominent being: a clear rift between the rights granted to EU citizens and to third-country nationals; EU Member States’ determination to reserve to their respective national territories a high level of national control over labor migration; and significant deficiencies of the EU asylum law which were brought to the surface by the recent refugee influx into the EU.

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.

scholarly journals Combating the constitutional crisis in Poland – Can the European Union provide an effective remedy?

2021 ◽  
Author(s):  
Monika Kawczyńska
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Legal Order ◽  
Proper Solution ◽  
Preliminary Ruling ◽  
The European Union ◽  
The Rule Of Law ◽  
Effective Remedy ◽  
Fundamental Values ◽  
The Eu

AbstractRecent constitutional reforms in Poland have demonstrated a lack of respect for the rule of law and for the fundamental values which form the foundations of the EU legal order. The Polish authorities have substantially deviated from principles that the country has accepted as a part of the Copenhagen criteria. The aim of the article is to analyse the mechanisms and procedures applied by the EU institutions to address the systemic threats to the rule of law in Poland. The main focus of the assessment is on the effectiveness of the measure and its potential for a proper solution to the problem. The response provided by the EU demonstrate that there has been a shift from a political to judicial enforcement of values. The article argues that the remedies that were deemed to be the least suitable to address the systemic deficiencies in the rule of law – an infringement action and a preliminary ruling procedure – proved to be the most effective remedy to defend independence of the Polish judiciary. Unexpectedly, the most efficient institution to ensure the respect for values enshrined in Article 2 TEU in Poland proved to be the CJEU, providing extensive interpretation of Article 19 (1) TEU and Article 47 of the Charter. Nevertheless the values are still much more difficult to enforce than the law. While the most serious infringements have been reversed, this has not prevented the Polish authorities from further violating the rule of law.

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