Domestic Infringements of the Rule of Law as a European Union Problem

2018 ◽  
Vol 64 (4) ◽  
pp. 552-560 ◽  
Author(s):  
Marek Safjan
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Fundamental Rights ◽  
The Rule Of Law ◽  
Communist System ◽  
Domestic Legislation ◽  
Charter Of Fundamental Rights ◽  
New Type ◽  
The One ◽  
The Eu

In some countries of central Europe the rule of law is directly threatened by a new type of legislation based on the zeal of the political majority to establish a completely different political system than the one that was built after the collapse of the communist system. From that perspective, there is little place for the principle of separation of powers and the independence of the judiciary is threatened. This contribution discusses the multilevel dimension of the rule of law principle in the EU, issues in the context of the disrespect for the rule of law as a case of systemic deficiencies, followed by a brief discussion of the Copenhagen accession criteria. The article concludes that the rule of law principle as recognised under EU law is by no means of a merely symbolic nature, and that domestic legislation abolishing key safeguards of the rule of law can be scrutinized not only under the EU Charter of fundamental rights, where applicable, but also under the TEU. Without the solidarity of all Europeans, however, the preservation of our basic values and the future of the EU are in serious danger.

scholarly journals Strengthening the founding values of the EU: The potential role of the Fundamental Rights Agency

European View ◽  
2019 ◽  
Vol 18 (1) ◽  
pp. 97-104
Author(s):  
Konstantinos Margaritis
Keyword(s):  
Rule Of Law ◽  
Potential Role ◽  
Maastricht Treaty ◽  
Fundamental Rights ◽  
Member States ◽  
The Rule Of Law ◽  
Political Consequences ◽  
The One ◽  
The Eu

The rule of law is one of the founding values of the EU, as indicated in Article 2 TEU. This provision recognises that the rule of law is a core value, inherent to liberal democracy, and one which characterised the Union and its member states long before the formal establishment of the EU by the Maastricht Treaty. However, several member states, most notably Poland and Hungary, seem to have placed this value in jeopardy, leading EU institutions to disagree on how to combat this problem and its political consequences. The aim of this article is to propose a solution that involves a rather neglected, yet certainly competent actor, the Fundamental Rights Agency. The outcome would be twofold: on the one hand, the rule of law would be vitally strengthened; on the other, the role of the Agency would be fortified in line with its scope.

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 Ascertaining the ‘Guarantee of Guarantees’: Recent Developments Regarding the Infringement Procedure in the EU’s Rule of Law Crisis

2021 ◽  
pp. 207-236
Author(s):  
Matthias Schmidt ◽  
Piotr Bogdanowicz
Keyword(s):  
Rule Of Law ◽  
Critical Assessment ◽  
Fundamental Rights ◽  
Close Reading ◽  
Eu Law ◽  
The Rule Of Law ◽  
Recent Developments ◽  
Charter Of Fundamental Rights ◽  
The Common ◽  
The Eu

AbstractThis chapter builds on an assessment of infringement proceedings in the EU rule of law crisis that we previously published in the Common Market Law Review. We offer a close reading of two recent prominent infringement cases by the European Commission against Poland (cases C-619/18 and C-192/18). Noteworthy advancements in EU law made with them are in particular a clarification on the parallel use of Articles 7 TEU and 258 TFEU, the use of both interim relief and an expedited procedure prior to the judgment, and, as regards the merits, further substance for the functioning of Articles 19 TEU and 47 of the EU Charter of Fundamental Rights regarding the operationalisation of the rule of law in EU law. We offer a critical assessment of the Court’s findings and contextualise in light of two Commission communications on the rule of law published in 2019.

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.

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.

Adjudicating the European Social Market

2018 ◽  
pp. 51-106
Author(s):  
Oliver Gerstenberg
Keyword(s):  
Fundamental Rights ◽  
Social Democrats ◽  
The Social ◽  
Depth Analysis ◽  
Charter Of Fundamental Rights ◽  
Consumer Contracts ◽  
Unfair Terms ◽  
The One ◽  
Social Market ◽  
The Eu

At a first glance, to many observers the EU may appear to be an improbable illustration of the possibility of an extension of legitimacy and democratic justice beyond the state. In contemporary European constitutional debate constitutionalism and social democracy have become antagonists, with the survival of the one seeming to require sacrifice of the other. Authors in the tradition of ordoliberalism have celebrated the Europeanization process because it seemed to ultimately disconnect constitutionalism from democratic practice and to firmly entrench a logic of market evolution that marginalizes politics. Social democrats, by contrast, have come to believe that democracy can only flourish if the solidary politics of the nation retains its sovereignty against cosmopolitan, ‘constitutional’ intrusions from without. Proposals to deepen constitutional integration therefore give rise to the social-democratic objection. This chapter offers a stylized account of both views, which more or less mirror one another. This chapter then also provides an in-depth analysis of the CJEU’s jurisprudence in various domains regarding the efficacy of the Charter of Fundamental Rights of the EU (CFREU) in European private law: employment law and unfair terms in consumer contracts in particular. The chapter concludes that, contrary to expectations and concerns about a constitutional asymmetry between economic freedoms and fundamental social rights, the CJEU has in fact in many cases raised the standard of protection beyond the standard envisaged by national legal orders, thereby unblocking development.

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 THE INCONSISTENCY OF THE CONSTITUTIONAL COURT ON THE APPLICATION OF THE HYUNDAI-INSPIRED INTERPRETATION Democratic Alliance v Speaker of the National Assembly (CCT86/15) [2016] ZACC 8

Obiter ◽  
2017 ◽  
Vol 38 (3) ◽  
Author(s):  
Themba Maseko
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Case Note ◽  
Constitutional Court ◽  
National Assembly ◽  
High Court ◽  
The Rule Of Law ◽  
The Republic ◽  
The One ◽  
Do So

The Hyundai-inspired interpretation obliges the courts to interpret, where possible, legislation in conformity with the Constitution of the Republic of South Africa 1996. This process involves taking into account the objects and purports of an Act and interpreting its provisions in the manner that complies with the constitutional values. Essentially, it ensures that courts give preference to an interpretation of legislation that is within the parameters of the provisions of the Constitution over the one that is not. However, courts do not apply the Hyundai-inspired interpretation if it cannot be ascribed to the provision of the legislation in question or if it is not reasonably possible for them to do so. Such situations include the Hyundai-inspired interpretation that unduly strains the text, or that obliges the court to read-in too many qualifications. In these situations, the courts have to declare the legislative provision in question unconstitutional and resort to the remedy of reading- in or notional severance. The Hyundai-inspired interpretation is evidenced in quite a number of cases. However, this case note critically dissects the manner in which the Constitutional Court applied it in the case of Democratic Alliance v Speaker of the National Assembly ((CCT86/15) [2016] ZACC 8).It concludes that the manner in which the Constitutional Court applied it, in this case, is inconsistent with the manner in which the Constitutional Court applied it in the case of Abahlali Basemjondolo six years earlier. When interpreting the word “disturbance” which section 1 of the Powers Privileges and Immunities of Parliament and Provincial Legislatures Act (4 of 2004) defined as “any act which interferes with or disrupts or which is likely to interfere with or disrupt the proceedings of Parliament or a House or Committee” and which the High Court had found to be too broad that it had the effect of finding a robust and controversial debate unconstitutional, the Constitutional Court unexpectedly read in too many qualifications to the word “disturbance” in conformity with the Constitution. The reason being, the Constitutional Court, six years earlier, found the approach of reading- in too many qualifications in conformity with the Constitution to be straining the text and to be contrary to the rule of law and the principle of separation of powers in the case of Abahlali Basemjondolo.

Sign in / Sign up

Export Citation Format

Share Document