scholarly journals La Unión Europea, Cataluña y Escocia (Cuestiones jurídicas sobre las recientes tendencias secesionistas en los Estados Miembros de la UE)

2016 ◽  
pp. 101 ◽  
Author(s):  
Jean-Claude Piris
Keyword(s):  
Rule Of Law ◽  
Safe Haven ◽  
Member States ◽  
The Rule Of Law ◽  
Eu Member States ◽  
Informal Consultation ◽  
National Constitution ◽  
The Uk ◽  
Regional Elections ◽  
The Eu

Este estudio surge de los acontecimientos producidos en 2014 y 2015 en Escocia (referéndum sobre la independencia) y en Cataluña («consulta informal» y elecciones autonómicas). En ambos casos, los movimientos secesionistas deseaban que un nuevo Estado nacido de la secesión llegara a ser (según ellos, «siguiera siendo») parte de la UE. Esta convicción les fortalece, ya que la UE es vista como un «refugio seguro », que permite la independencia sin la amenaza de quedar aislado. Los Tratados de la UE ni prevén ni prohiben la división de un Estado miembro. No obstante, para llegar a ser parte de la UE, la región secesionista debería primero ser reconocida como Estado por la comunidad internacional, y específicamente por los 28 Estados miembros de la UE (incluyendo España y el Reino Unido). Esto sería legalmente posible si el nuevo Estado naciera respetando completamente el Estado de Derecho, pero en cambio excluiría un «Estado» que hubiera declarado unilateralmente su independencia violando la Constitución nacional. Así, un nuevo Estado reconocido podría ser candidato a incorporarse a la UE. El autor muestra que debería seguirse el procedimiento del artículo 49 del Tratado de la UE y no el del artículo 48 (enmiendas a los Tratados). Tomando Escocia como ejemplo, el autor describe los pasos legales necesarios que deben darse después de la secesión. Señala que la división de un Estado de la UE ya no debería verse como un asunto estrictamente nacional; dadas sus consecuencias sobre la UE en conjunto y sobre otros Estados miembros, es un asunto que no puede ser ignorado por la UE.This study starts from the 2014-2015 events in Scotland (referendum on independence) and in Catalonia («informal consultation» and regional elections). Secessionists movements in both cases wished that a new State born from the secession would become (according to them «continues to be») part of the EU. That conviction strengthens them, as the EU is seen as a «safe haven», allowing independence without the threat of being isolated. The EU Treaties neither provide for, nor prohibit the partition of a Member State. However, in order to become part of the EU, the secessionist region should first be recognized as a State by the international community, and specifically by the 28 EU Member States (including Spain and the UK). This would be legally possible if the new State was born in full respect of the Rule of Law, but would exclude a «State» having unilaterally declared its independence in violation of the national Constitution. Then, a new State recognised could be a candidate to the EU. The author shows that the procedure of article 49 of the Treaty on EU woud have to be followed (accession of a new State) and not that of article 48 (amendments to the Treaties). Taking Scotland as an example, the author describes the necessary legal steps to be accomplished after the secession. He stresses that the partition of an EU State should not anymore being regarded as a strictly national matter. Given its consequences on the EU as a whole and on other Member States, it is a matter that cannot be ignored by the EU.

Russia and EU Countries: Partnership for Modernization

2013 ◽  
pp. 54-61
Author(s):  
T. Romanova ◽  
E. Pavlova
Keyword(s):  
Rule Of Law ◽  
New Classification ◽  
Member States ◽  
The Rule Of Law ◽  
Normative Power ◽  
Eu Member States ◽  
The World ◽  
The Difference ◽  
The Eu

The article examines how the normative power, which the EU puts forward as an ideological basis of its actions in the world, manifests itself in the national partnerships for modernization between Russia and EU member states. The authors demonstrate the influence of the EU’s normativity on its approach to modernization as well as the difference in the positions of its member countries. It is concluded that there is no unity in the EU’s approach to democracy, human rights and the rule of law, and the new classification of EU member states, which is based on their readiness to act in accordance with the Union’s concept of normative power, is offered.

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.

2. Membership: Crisis, Conceptions and Challenges

EU Law ◽  
2020 ◽  
pp. 34-60
Author(s):  
Paul Craig ◽  
Gráinne de Búrca
Keyword(s):  
Rule Of Law ◽  
Member States ◽  
The Rule Of Law ◽  
Eu Membership ◽  
Article 50 ◽  
The Uk ◽  
The Eu ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter considers two important issues that have affected the EU in recent years: Brexit and the rule of law crisis. These issues are explored in the context of the considerations they raise about EU membership and resulting obligations. The discussion of Brexit covers the UK referendum and ensuing debate, Article 50 TEU, and the relevant Treaty provisions. It explores what the Brexit negotiations tell us more broadly about the EU, and describes the Withdrawal Agreement and Political Declaration. The second half of the chapter is concerned with the rule of law crisis: the Treaty framework and membership obligations that flow therefrom, the problem posed by ‘rule of law backsliding’ by some Member States, and the different ways in which the EU has responded to this ‘backsliding’.

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.

2. Membership: Crisis, Conceptions and Challenges

EU Law ◽  
2020 ◽  
pp. 32-58
Author(s):  
Paul Craig ◽  
Gráinne de Búrca
Keyword(s):  
Rule Of Law ◽  
Member States ◽  
The Rule Of Law ◽  
Eu Membership ◽  
Article 50 ◽  
The Uk ◽  
The Eu ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter considers two important issues that have affected the EU in recent years: Brexit and the rule of law crisis. These issues are explored in the context of the considerations they raise about EU membership and resulting obligations. The discussion of Brexit covers the UK referendum and ensuing debate, Article 50 TEU, and the relevant Treaty provisions. It explores what the Brexit negotiations tell us more broadly about the EU, and describes the Withdrawal Agreement and Political Declaration. The second half of the chapter is concerned with the rule of law crisis: the Treaty framework and membership obligations that flow therefrom, the problem posed by ‘rule of law backsliding’ by some Member States, and the different ways in which the EU has responded to this ‘backsliding’.

scholarly journals Rule of Law vs. Poland and Hungary – an Inconsistent Approach?

2021 ◽  
Vol 60 (3) ◽  
pp. 236-259
Author(s):  
Nasiya Daminova
Keyword(s):  
Rule Of Law ◽  
Case Law ◽  
Judicial Reform ◽  
Member States ◽  
The Rule Of Law ◽  
Eu Member States ◽  
European Arrest Warrant ◽  
European Values ◽  
Multiple Challenges ◽  
The Eu

The first attempts of the European Commission and Parliament to invoke Art. 7(1) of the Treaty on European Union against the Polish and Hungarian governments demonstrate the EU’s political willingness to claim its own authority in defending core European values (Art. 2 TEU) in case of state disobedience. However, despite these attempts to integrate the Rule of Law concept into the overall EU’s supervisory machinery, the Commission’s and the Parliament’s submissions indicate a lack of coherency in implementing the principle as a relevant tool to address multiple challenges arising within the EU Member States legal systems. The parallel developments in the CJEUs case-law (LM/ML, Torubarov) support this statement. Regardless of the Council’s yes/ no decisions in the Polish and Hungarian cases, these lines of reasoning are capable of giving rise to further questions in application of the European Arrest Warrant Framework decision or the Asylum Procedures Directive, in particular the EU Member States which remain within the scope of the EU’s attention in view of systemic Human Rights violations (Italy, Romania, Bulgaria, Croatia). Moreover, the series of the CJEU’s judgements on the Polish judicial reform are capable of paving the way to the de facto intervention into traditional areas of the EU Member States competence – the organisation of the national judicial systems, in light of the development of a EU-specific principle of effective judicial review.

The World after the Termination of Intra-EU BIT S

2020 ◽  
Vol 5 (1) ◽  
pp. 196-211
Author(s):  
Nikos Lavranos
Keyword(s):  
Rule Of Law ◽  
Legal Systems ◽  
Member States ◽  
The Rule Of Law ◽  
Eu Member States ◽  
Investment Protection ◽  
The World ◽  
Lower Standard ◽  
European Investment ◽  
The Eu

This article examines the potential consequences of the termination agreement recently signed by 23 EU Member States, which will soon terminate the existing intra- EU BIT S of the signatory Member States. The author concludes that the retroactive application of the termination agreement to disputes that have been initiated before this termination agreement enters into force is a serious violation of the Rule of Law. He also finds that the Facilitator procedure offered by the termination agreement is not a suitable tool to settle any ongoing intra- EU BIT disputes. In light of the significant shortcomings in the judicial legal systems of many EU Member States, the author calls for the adoption of an EU Investment Protection Regulation as well as the creation of a European Investment Court. Finally, despite the fact that the termination agreement is not intended to apply to intra- EU ECT disputes, the author expects that the fallout of the Achmea judgment will lead to substantial “reforms” of the ECT in due course. All these developments will inevitably lead to a lower standard of investment and investor protection within the EU.

scholarly journals “The Rule of Law Mechanism” and the Hungarian and Polish Resistance: European Law Against National Identity?

2021 ◽  
Vol 14 ◽  
pp. 49-67
Author(s):  
Christoph J. Schewe ◽  
◽  
Thomas Blome ◽  
Keyword(s):  
Rule Of Law ◽  
Economic Recovery ◽  
Adoption Process ◽  
European Law ◽  
The European Union ◽  
Member States ◽  
The Rule Of Law ◽  
Eu Member States ◽  
The World ◽  
The Eu

Similarly to the rest of the world, the COVID-19 pandemic has also hit the European Union (EU) severely. In order to foster the process of the economic recovery of EU Member States, the EU Member States agreed on a financial aid package combined with a regulation – the conditionality mechanism – that provided for financial sanctions in the event of a breach of the rule of law. Given that the positions of Poland and Hungary in the adoption process of this regulation caused a controversy, this article examines general questions on the rule of law, the regulation and the background to the controversy.

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 Democratic Backsliding in the European Union

2019 ◽  
Author(s):  
Nick Sitter ◽  
Elisabeth Bakke
Keyword(s):  
European Union ◽  
Member State ◽  
Rule Of Law ◽  
European Parliament ◽  
The Other ◽  
Political Will ◽  
Member States ◽  
The Rule Of Law ◽  
Eu Member States ◽  
The Eu

Democratic backsliding in European Union (EU) member states is not only a policy challenge for the EU, but also a potential existential crisis. If the EU does too little to deal with member state regimes that go back on their commitments to democracy and the rule of law, this risks undermining the EU from within. On the other hand, if the EU takes drastic action, this might split the EU. This article explores the nature and dynamics of democratic backsliding in EU member states, and analyses the EU’s capacity, policy tools and political will to address the challenge. Empirically it draws on the cases that have promoted serious criticism from the Commission and the European Parliament: Hungary, Poland, and to a lesser extent, Romania. After reviewing the literature and defining backsliding as a gradual, deliberate, but open-ended process of de-democratization, the article analyzes the dynamics of backsliding and the EU’s difficulties in dealing with this challenge to liberal democracy and the rule of law. The Hungarian and Polish populist right’s “illiberal” projects involve centralization of power in the hands of the executive and the party, and limiting the independence of the judiciary, the media and civil society. This has brought both governments into direct confrontation with the European Commission. However, the EU’s track record in managing backsliding crises is at best mixed. This comes down to a combination of limited tools and lack of political will. Ordinary infringement procedures offer a limited toolbox, and the Commission has proven reluctant to use even these tools fully. At the same time, party groups in the European Parliament and many member state governments have been reluctant to criticize one of their own, let alone go down the path of suspending aspect of a states’ EU membership. Hence the EU’s dilemma: it is caught between undermining its own values and cohesion through inaction on one hand, and relegating one or more member states it to a second tier—or even pushing them out altogether—on the other.

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