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Abstract by the author: The standard account of the relation between democracy and the rule of law focuses on law’s liberty-enhancing role in constraining official action. This is a faint echo of the complex, constitutive relation between the two. The Greeks used one word – isonomia – to describe both. If democracy is the system in which people have an equal say in determining the rules that govern social life, then the rule of law is simultaneously before, after, concurrent and synonymous with democracy: It contributes to the formation of citizens with the capacity for self-governance, serves as the instrument through which democratic decisions are implemented, functions as one of the central social practices that constitute citizens as equals and addresses the question of how to ensure that government by the people operates for the people. The rule of law has many independently valuable qualities, including impartiality and predictability. But, to valorise the rule of law for its own sake is to fetishize authority. The fundamental values of the rule of law are as the instrument of democratic self-governance and the expression of the equal dignity of all persons. Democracy thus entails the rule of law, but both implicate the yet more comprehensive ideal of equality. Core rule-of-law values require political norms and conditions of equality, generality and comprehensiveness. In a modern, differentiated society, however, the constitutive relation between democracy and the rule of law is fractured and law becomes the agent of authority. Courts in the modern constitutional state have contributed to the decline of rule-of-law values, supporting role specialization through judge-made immunity doctrines that protect officials at all levels. The crisis of police violence against minorities is a symptom of this breakdown. Greater accountability can ameliorate the problem. But an effective solution requires the fair and equal distribution of political power.
Abstract by the author: The rule of law movement is a by-product of the post-WWII rebirth of human rights, which turned into a key political issue by the turn of the millennium. By becoming part of the language and blackmailing practice of international politics, it has self-emptied as well. It is an ideal; historically a function of human experience at individual places and times, shaped by local traditions. As a complex of heterogeneous values and principles, its ethos can at best be respected and approached via the never-ending balancing of compromise solutions.
Abstract by the author: Popular sovereignty plays a central role in both the democratic and the populist ideology. While democracy’s version of qualified sovereignty is accepted as mutually constitutive with the rule of law, populism’s version of absolute sovereignty is seen as incompatible with this ideal. The article reconsiders this oversimplifying approach. By examining the interaction of these concepts with a nuanced account of the rule of law, it argues for the compatibility of both democracy and populism with different versions of this ideal. While this remains a key distinguishing factor between democracy and populism, the ambiguity of the rule of law still allows populism to claim that it complies with a thin version of this concept.
Abstract by the author: This essay traces the history and development of the concept of the Rule of Law from ancient times through the present. It describes the elements of the Rule of Law and its importance to the protection of human rights in a variety of contexts, including under domestic and international law. From ancient Greece and Rome to the Enlightenment, and from the American and French Revolutions to modern times, the Rule of Law has played a key role in societies around the world. The essay discusses definitions of the Rule of Law, its origins, and its development over time, including in Europe, America's founding period, and the post-World War II era. In particular, the essay discusses the intellectual contributions of historical figures such as the Italian criminal-law theorist Cesare Beccaria, the French jurist, Baron de Montesquieu, and American revolutionaries who played major roles in laying the now centuries-old foundation for the development of the modern-day Rule of Law concept (i.e., in drafting early American constitutions and laws, including the U.S. Constitution and its Bill of Rights). The essay explores a wide range of topics, from the creation of the United Nations and the ratification of international conventions and human rights treaties, to the adoption of South Africa's post-apartheid constitution, to Donald Trump's continuous and systematic assault on the Rule of Law, human rights, and democratic institutions and norms. The essay also highlights the Rule of Law 's symbiotic relationship to the protection of fundamental human rights such as the rights to equality, to vote, and to be free from discrimination, cruelty and torture. Arguing that various Trump Administration acts and policies (e.g., separating children from their parents at the U.S.-Mexico border and the death penalty's use) and the outrageous and brazen efforts of Donald Trump and his campaign and allies to discriminate against and disenfranchise voters violate core Rule of Law principles, the essay concludes by emphasizing the Rule of Law's continuing and critical importance to the protection of civil liberties and fundamental human rights in the twenty- first century.
Abstract by the author: Discusses the ways in which the concept of the rule of law is deployed around the world, and reflects on when it is, and when it is not, appropriate to mention it. Examines the benefits that may result from not referring to it, in certain circumstances.
Abstract by the author: The prevalent approach to the concept of the rule of law among legal theorists puts attributes first, assigning certain features of laws and sometimes legal systems as rule-of-law virtues. Inquiring at a more basic level, this paper advances a novel, structuralist view of the rule of law. While honoring theoretical constraints that guard against diluting the rule-of-law concept too thinly as a remedy for myriad societal ills, this approach shows that the concept implicates inequalities sustained by a society’s social, economic, and political structures. This is accomplished by demonstrating that the rule-of-law project holds a structural position in the collective normative discourse as a vehicle by which people morally evaluate the interplay between the actual capabilities of individuals and groups to participate in law, and the legal system’s treatment of those individuals and groups. Law’s procedural outputs may formally provide the public with access to the legal system, but the rule-of-law project goes to the actual capabilities of the people to access the system in reality, to have a fair opportunity to participate in the inputs into the system, and to have that participation impartially adjudicated. Conditions impacting a diversity of stakeholders – and particularly the most disadvantaged within the population – perturb the virtues typically associated with the rule-of-law ideal when those conditions, and the power exercised to maintain them, impair capabilities for fair, dignified, and equal access to legal processes. Understanding the rule of law in structuralist terms, as an informal moral operator, (1) makes sense of the schism we normally accept between the concepts of law and the rule of law, (2) reorients the source of rule-of-law thinking from theorists bent on fixing a conceptual definition to communities engaged in first-order interactions with the legal system, (3) helps explain why citizens come not only to expect law to constrain official coercive powers but also to demand that law promote their actual capabilities to participate in the legal system on an egalitarian and dignitarian footing, and hence (4) implicates a critique of conditions of political and material inequalities that cannot but impair the healthy functioning of the rule-of-law project.
Abstract by the authors: A key strategic measure of the international community needed over the next decade is the enhancement of the international rule of law in order to reinforce multilateralism and enhance global governance capabilities. A project to significantly upgrade the existing international legal architecture should be launched upon the occasion of the UN’s 75th anniversary, making good on core UN Charter and related international commitments. In this paper, we propose an ambitious, yet realizable “International Rule of Law Package” of reforms meant to substantially enhance the integrity of the international governance system. Key international justice institutions the International Court of Justice, the International Criminal Court, and the UN’s Human Rights architecture should be strengthened in terms of both their jurisdiction and effectiveness. In addition, the UN75 anniversary represents an opportunity to pave the way for new bodies to fill existing institutional gaps. Hence, we support the creation of an international anti-corruption court as well as an international judicial training institute to ensure the requisite capacity, skills, and knowledge across international courts. The international community, on this historic occasion, should begin focused discussion on such an international rule of law reform package with the goal of modernizing and making more robust and legitimate the core international governance architecture, fit for the range of global challenges it now confronts.
Abstract by the author: The content of the international Rule of Law is frequently debated. In this debate, domestic Rule of Law conceptions are frequently-if only indirectly or implicitly-used to derive the international concept. I argue this derivation, and the debate regarding the form of any derivation, is unnecessary because the domestic conceptions frequently used as a foundation for the formulation of the international concept cannot be internationalised. This happens as the context in which such concepts were framed fundamentally differs to the contemporary international arena. I also argue deriving the international Rule of Law in this way is both impractical and unhelpful as derivation necessitates the arbitrary selection of aspects of domestic conceptions to formulate the international concept. I do not suggest there is not, or cannot be, an international Rule of Law. I do, however, argue the international Rule of Law should be formulated without recourse to domestic ideas.
Abstract by the author: The paper analyzes the relation between the principle of “rule of law” and the concept of constitutionalism. In this context, the paper elaborates the concept of rule of law and its varieties of definitions. The author emphasizes that although there are different approaches in defining the concept of constitutionalism, they all include the principle of rule of law. The paper also brings up the issue of some legal aspects of the principal of rule of law – hierarchy of acts in the legal system (Kelzen-Merkl Stuffentheorie), and the limits and boundaries of the powers of the norm makers, in the process of materialization of the law. The paper analyzes the problem of (pan)iuridisation and polyferation as deviation / hybridization of the legal system in practice.
From the introduction: In the last six years, the rule of law has been at the forefront of the minds of EU law scholars. In particular, the growing case law of the Court of Justice interpreting Article 19 TEU in reaction to judicial reforms that undermine the independence of the judiciary in Poland, has served as food for thought.' The judgment in Sped-Pro v. Commission broadens this debate. It confirms the importance of the rule of law for the EU single market, demonstrating the consequences the weakening of the rule of law in a Member State may have for the single market in the context of the various cooperation mechanisms its functioning entails. In essence, the General Court (GC) opted for an analogous application of the test elaborated by the ECJ in LAd· for judicial cooperation in criminal matters, to competition proceedings. It confirmed that the Commission has a broad margin of discretion in deciding whether a Union interest exists in launching an investigation in reply to a complaint alleging that a given undertaking violated EU competition law (i.e. Art. 101 or Art. 102 TFEU) and in deciding that the national competition authority (NCA) is better placed to deal with the complaint.
From the introduction: In international law, absent statal and strong organizational structures, the notion and aspiration of the rule of law is more modest. In a system which is largely treaty-based and relies upon consent, the rule of law amounts to the principle of pacta sunt servanda. No more, but also no less. In international law, it today is essentially reduced to positive law, entailing treaties, but also customary law, general principles of public international law and general principles of law. Under the rule of law, states are obliged to comply with obligations incurred. They are entitled to makegood use of rights granted. Rights and obligations are to be respected by governments. They are to be respected by courts of law, both international and national, one would assume. Courts of law and the legal profession are the main guarantors of the rule of law. They are the guardians and play a critical role. An inquiry into the rule of law in international economic law therefore will essentially be an inquiry into the role of courts and lawyers in the game.
Abstract by the authors: Recent literature has analyzed three main channels regarding the effect of international trade on legal institutions: overall openness to trade, a specialization on institutionally intensive exports, and a dependence on exports of natural resources. Unlike previous literature, we examine all these channels within a single regression framework. Importantly, we develop a new measure of institutional intensity of exports at the goods level based on nearly one hundred million disaggregated bilateral trade flows. Our new measure shows that goods subject to international fragmentation of production are the most institutionally intensive. Using a sample of 144 countries, our regression results show that specialization on institutionally intensive exports, especially on fragmented goods, helps countries to improve their rule of law. In addition, we find that greater openness improves the rule of law, but we fail to find any effect from natural resources exports.
Abstract by the author: Economic constitutions may be ‘substantive’, seeking to implement fundamental economic policies or ‘the will of the people’ in relation to economic management, or ‘communicative’, establishing institutions for economic organisation and holding these accountable. In the context of fiscal policy there have been recent important successes for the ‘substantive’ model through the use of balanced budget rules, but a more ‘communicative’ approach can be seen in the development of fiscal councils. Similar moves to a more ‘communicative’ model can be found in monetary policy and in the regulation of public utilities, including in EU liberalization. If such a move is to be successful, the institutions involved need independence, though this should not be confused with complete autonomy of decision-making as decisions will often need to be taken within a broader framework of government policy. The ‘communicative’ model is the most appropriate one for an economic constitution in complex modern economies.
Abstract by the author: The rule of law has become a hotly debated issue at EU level recently. What appears to be missing in those debates, however, is attention to the peculiarities the rule of law presents in the setup of the EU’s economic constitutional framework. The founding EU Treaties have put in place such framework permitting Member States’ diversified (capitalist) economies to grow ever closer. At the same time, however, that framework has also continuously given rise to specific rule of law challenges. This diagnostic article revisits and summarizes those challenges, arguing that addressing them is more than ever necessary if only to increase the EU’s legitimacy in targeting more general rule of law deficiencies in some of its own Member States.
Abstract by the author: This article discusses the implications of the rule of law crisis on a core area of EU law: competition law. It analyses the reforms of the judiciary in selected EU Member States and the reaction of EU institutions. The article shows that the reforms of the judiciary give rise to doubts regarding the independence and expertise of courts which are responsible for reviewing the decisions of national competition authorities adopted under Articles 101–102 Treaty on the Functioning of the European Union (TFEU) and national competition laws. As a result, the effective judicial protection required by EU primary law is undermined. In addition, mutual trust, upon which the decentralized enforcement of EU competition law is based, is put into question. The article calls upon EU institutions, and in particular the European Commission, to monitor closely the developments in Member States which may affect the enforcement of EU (and national) competition rules.
Abstract by the author: Enforcement of the EU competition rules, especially in relation to cartels and cartelists, involves a complex jurisdictional patchwork, characterise by inconsistency but also a strong public rhetoric which masks policy and practical differences, Application of the rules to different legal categories of actor, geographical and jurisdictional diversity, and the uneven use of enforcement measures and sanctions give rise to a number of rule of law issues in the form of inconsistent treatment, uncertainty and lack of proportionality. The discussion here maps out and illustrates these problems and suggests that these should be addressed through a more critical consideration of the claims made for deterrence as an enforcement imperative in this context.
Abstract by the authors: The rule of law and democracy in the European Union (EU) are under great pressure. Indices measuring the rule of law show that attacks on it are on the rise. In the meantime, the EU has developed numerous instruments to defend the rule of law, but so far these have only been able to sanction, but not to prevent the dismantling of the rule of law. What both approaches have in common: they are more reactive than preventive. They can detect deterioration and sanction violations, but not anticipate them. In order to mitigate this shortcoming, we propose a new approach. It adds a preventive dimension to the debate on the rule of law in the EU: resilience. To this end, we identify factors that make the rule of law resilient to attacks and argue that this depends above all on its political, social and economic environment.
Résumé de l'auteur: En vue de répondre à la crise des valeurs à laquelle elle est confrontée depuis plus d’une décennie, l’Union européenne s’est engagée dans une nouvelle stratégie. Cette dernière consiste à utiliser des politiques qui n’ont pas spécifiquement été conçues pour protéger l’État de droit, mais qui permettent indirectement d’en protéger certains aspects, telles que la gouvernance économique européenne, la politique de cohésion et le budget de l’Union. Si le règlement établissant un régime général de conditionnalité pour la protection du budget de l’Union a attiré l’attention, une conditionnalité a également été intégrée dans le principal instrument de la relance économique post-Covid, la facilité pour la reprise et la résilience. Elle pourrait se révéler particulièrement efficace pour lutter contre le déclin de l’État de droit en ce qu’elle permet à la fois d’inciter financièrement les États membres à mettre en œuvre des réformes propices à l’État de droit et de les sanctionner lorsque certains principes sont violés. Toutefois, elle questionne des principes fondamentaux de l’ordre constitutionnel européen, notamment l’équilibre institutionnel et la répartition des compétences.
From the editorial: For the past twelve years, the Regulation is the first concrete and meaningful measure to address one of the biggest ongoing crises of the EU in political, legal and economic terms. The fact that the Commission has triggered its mechanism the past month also underlines its potential to finally address the rule of law crisis. Still, to achieve its ultimate goal – to protect EU money from fraud – the Commission currently depends on a multiple stage trajectory with a long-envisaged duration. Moreover, currently the application of the conditionality mechanism has only been activated vis-à-vis Hungary and seems unlikely to be started in the near future against Poland. Yet, the mechanism could prove to be a powerful tool in the hands of the Commission to restore the legal, political and economic balance of European integration.
From the introduction: On 16 February 2022, the Court of Justice fully dismissed the annulment actions lodged by Hungary and Poland against Regulation 2020/2092, which notoriously established a regime of conditionality for the protection of the Union’s budget in case of breaches of the principles of the rule of law. ... This case note reflects on the judgments against the broader theme of competence creep via conditionality. This topic, which has long been neglected in the academic debate concerning the EU, is growing in significance in the most recent period, in parallel with the rapid affirmation of conditionality as a key EU internal governance tool as well as with the increasing centrality of the Union’s budget in the trajectories of European integration. To this end, the case note first sketches out the competence issues arising from the use of spending conditionality and briefly retraces the debate accompanying the legislative process concerning Regulation 2020/2092. In the second section, it discusses the judgments of 16 February 2022, focusing on the parts concerning the legal basis of the conditionality mechanism and its relation to Article 7 TEU. Finally, it reflects on the broader implications of the judgments on the use of conditionality as an alternative enforcement mechanism of EU law.
Abstract by the author: In the realm of the rule of law crisis taking place in several Member States of the European Union (EU), illiberal governments attempt to dilute institutional and non-institutional checks and balances with the aim to unrestrainedly exercise the state power. In this context, civil society, a sphere autonomous from the state where public interests are being expressed and formulated, is constantly undermined. This article tries to illustrate the relation between civil society and the rule of law and its backsliding. In this regard, a theoretical framework indicating the connections of the dominant civil society theories with core rule of law elements will be developed and the points of friction with rule of law backsliding will be indicated. This theoretical framework will, then, be tested in EU institutional practice through the examples of the EU Annual Rule of Law Report and the case Commission v. Hungary (Transparency of Associations, C-78/18).
État de droit et États des droits. Penser l’Union européenne, Préserver l’identité de la paix; Marie-Suzel Tabard; Revue du droit de l'Union européenne; 2022; Vol. 2; pp. 273-283.
Résumé de l'auteur: L'Union européenne est un ensemble institutionnel sui generis fondé par une volonté commune aux États qui y adhèrent de se fondre, sans se confondre, dans un ensemble de valeurs et de principes juridiques. De nos jours, il apparaît nécessaire de réaffirmer que l'ensemble de ces valeurs et principes constituent une identité réelle de l'État de droit et de l'État des droits que des phénomènes tels que les fake news, la promotion de l'illibéralisme par certains gouvernements, les conséquences des migrations ou encore les équilibres économiques, ne peuvent remettre en cause. L'État de droit, devenu pour partie, État des droits, constitue une essence pour l'Union européenne, une forme d'absolu même, que cette Union doit juridiquement et politiquement vouloir et pouvoir préserver.
Le volontarisme du Parlement européen en matière d'État de droit; Lencka Popravka; Revue de l'Union européenne; 2022-04-08; Vol. 657; pp. 249-254.
Résumé de l'auteur: Dès sa résolution de 2004 sur l'article 7 du Traité sur l'Union européenne, jusqu'à sa résolution du 21 octobre 2021 signant un potentiel recours en carence à l'encontre de la Commission européenne, le Parlement européen s'incarne comme l'un des acteurs les plus exigeants de la protection de l'État de droit, tant concernant l'établissement des faits que concernant les réponses appropriées à ceux-ci. Il se place comme un des acteurs majeurs en matière de protection de l'État de droit, notamment en offrant une vision globale sur les faits liés à l'État de droit dans l'Union.
Rule of law with leverage: Policing structural obligations in EU law with the infringement procedure, fines, and set-off; Pekka Pohjankoski; Common Market Law Review; 2021-10; Vol. 58 (5); pp. 1341-1364.
Abstract by the author: Does the EU have enough leverage to police the rule of law in Member States? This article first outlines how the infringement procedure is functionally adequate to address breaches of the rule of law. It argues that EU law entails “structural obligations” for Member States to uphold the rule of law within their legal systems. To the extent respecting such structural obligations is indispensable for observing specific EU law rules, their breach can be the target of infringement proceedings. The article then analyses the EU’s leverage to guarantee the authority of EU law in case of Member States’ non-compliance with fines imposed in that procedure. The article concludes that the recovery of fines by set-off against EU money enables effective policing if respect for the rule of law is deficient, and constitutes, therefore, an essential constitutional guarantee of the EU legal order.
État de droit : le régime de conditionnalité pour la protection du budget de l’Union – une analyse; Anna Perego; Revue du droit de l'Union européenne; 2021; Vol. 1; pp. 163-174.
De l'introduction: Cet article vise à apporter un éclairage sur certaines questions débattues durant le processus d’adoption du règlement, en particulier sur : les raisons et les discussions qui ont conduit à la proposition de ce mécanisme; les critères de déclenchement et leur relation avec l’article 7 TUE; la procédure d’adoption des mesures au titre du règlement.
How to Develop the Eu Justice Scoreboard into a Rule of Law Index: Using an Existing Tool in the Eu Rule of Law Crisis in a More Efficient Way; András Jakab, Lando Kirchmair; German Law Journal; 2021-09; Vol. 22 (6); pp. 936-955.
Abstract by the authors: In this article we argue that rule of law indices are a powerful tool to detect ills in the rule of law of EU Member States. In order to explain how to improve the indices’ potential, we give a critical overview of the methodological issues of the four rule of law indices which we consider particularly instructive for our purpose. These are the indices provided by the Freedom House (“Freedom in the World,” FIW), the Bertelsmann Stiftung (“Bertelsmann Transformation Index,” BTI), the World Bank (“Worldwide Governance Indicators,” WGI), and the World Justice Project (“Rule of Law Index,” WJP RLI). After analyzing the strengths and weaknesses of these indices, we turn to the EU Justice Scoreboard (EUJS). While the introduction of the EUJS in 2013 has already been an important step in order to lay the ground for an EU-wide analysis, in this Article we suggest how the EUJS should be further developed into a proper rule of law index by aggregating expert opinions into a single number. This would make the EUJS a significantly more useful tool in the ongoing EU rule of law crisis.
The rhetoric of inaction: failing to fail forward in the EU’s rule of law crisis; Cassandra Emmons, Tommaso Pavone; Journal of European Public Policy; 2021; Vol. 28 (10); pp. 1611-1629.
Abstract by the authors: In the EU, political crises often serve as catalysts for policymaking and ‘failing forward’. Yet as a breakdown of the rule of law has swept some member states, EU institutions have repeatedly failed to react. We argue that this outcome is partly tied to how political elites strategically mobilize rhetoric to legitimate stasis during crises. Building on theories of rhetorical action and discursive institutionalism, we rectify their bias for change and draw on Albert Hirschman’s work to theorize ‘rhetorics of inaction’: A coordinative discourse wielded by national and supranational actors to reconcile divergent preferences and justify stasis by appealing to the very policies and values threatened by crisis. We specify the conditions under which rhetorics of inaction are most likely to pervade EU policymaking and illustrate the theory’s explanatory purchase in a case study of the EU’s (non-)responses to the constitutional breakdowns of Hungary and Poland. By tracing the discursive interactions between EU and government policymakers, we demonstrate that populist and partisan affronts on the EU conceal far more sophisticated and obstructive argumentative strategies behind-the-scenes. We conclude that rhetorical politics are central to understanding the EU’s failure to respond to crises and elaborate avenues for future research.
Abstract by the authors: The problem of democratic backsliding as well as instruments to protect the rule of law have been acknowledged at the EU level for several years. However, no agreement on the introduction of a rule of law conditionality could be reached among the EU member states until the European Council summit in December 2020. Now, for the first time, the allocation of EU funds to member states is made conditional on the adherence to the principles of the rule of law. To explain how this far-reaching decision became possible despite the persistence of deeply diverging interests, the article draws on the multiple streams framework. More precisely, it is argued that the coronavirus crisis created an unpredictable window of opportunity which was successfully utilised to put the existing proposal for a rule of law mechanism on the agenda again and to finally reach an agreement on a respective regulation.
Compromise(d)? – Perspectives of Rule of Law in the European Union; Márton Sulyok; Central European Journal of Comparative Law; 2021; Vol. 2 (1); pp. 207-228.
Abstract by the author: This paper introduces different perspectives of rule of law in the European Union starting out of the assumption that fear and (common) economic interests continue to be the primary motivator of European integration as to the European Union. The analysis touches upon the problematic tension between national specificities of the rule of law developed organically inside state frameworks of constitutionalism, through the practice of national constitutional courts and the practice and standards of international organizations and institutions in this matter. Starting out of problems brought about by open statehood and the "dialogical" development of rule of law in the European Union, the paper also describes the institutions, concepts and processes relevant to the enforcement of the value of rule of law in the EU.
Abstract by the author: For decades the Rule of Law has been emphasized as a core constitutional value common to all Member States of the European Union, although its substantial content was not precisely determined enough in the European context. Moreover it was defined as a multilayered value that encompasses other values such as democracy and fundamental rights, and it was underlined as one of the most important conditionality criteria for the EU enlargement policy. The ongoing crises of EU values, and more precisely the Rule of Law crisis, appeared long before, but reemerged fiercely with the creation of the "illiberal state" concept in Hungary and then in Poland. The EU has implicitly and more successfully, through the work of its institutions tried to compensate for the inadequate and a "a little too late" reaction, as well as for the lack of monitoring in the previous enlargement circles. The aim of this article is to show how, the rule of Law was stressed as a leading value shaping democratic constitutions and national, as well as supranational, legal systems. It is important to demonstrate that the Rule of Law is not only "coined" for the EU or Council of Europe purposes, but that it is firstly a value that is in the core of each constitutional tradition of a sovereign state. Therefore, in order to be promoted as common and set as a strong and rigid condition for future members, it should be, pro futuro, analyzed, understood and endorsed by EU institutions on each level. Finally, we take Western Balkan countries as an example where the Rule of Law is defined as a value but also as a core basis of the Negotiation Chapters 23 and 24, determined in a more thorough and precise way than in the EU and among its Member States, where, we could agree, it should have been in the first place. We point out to the need of getting closer to its uniform understanding in and outside of the EU and therefore to the need to create a continuous and stable Rule of Law concept both substantially and formally.
Abstract by the author: This article studies European reactions to the most troublesome instance of systemic deficiencies in EU Member States: the undermining of checks and balances. It begins by surveying the various institutional options and constitutional grounds for action.To understand the problem better, it then unfolds the concept of systemic deficiencies as a specific form of illegality and inter-systemic conflict. The third step develops a legal framework to coordinate the panoply of systemic deficiency instruments in the European legal space, but also to assess critically any respective EU action; the building blocks of this framework are competence, procedure, standards, and control. The article shows that red lines can be drawn that respect constitutional pluralism, and that legitimacy of any action is enhanced if many institutions undertake it jointly, so that Europe speaks with a single and principled voice.
Abstract by the author: Acceptance of the meaning, operation and enforcement of the rule of law in the EU by its Member States is critical to the Union's legitimacy. Any perceived or real crisis in the rule of law thus merits careful consideration. This article focuses on how a crisis in the rule of law occurred within the EU and how the intended ambiguity of the rule of law has entrenched this crisis. This article argues that the primary cause of the crisis has been the EU's development of a unique ideation of the rule of law ‐ as a constitutional norm, policy instrument and value ‐ that 'hollowed out' the rule of law from a constitutional principle to an expedient policy tool. The EU institutions have entrenched the crisis in the rule of law and then tried to manage the chasm between what it deems as respect for the rule of law and certain Member States' conduct.
Résumé de l'auteur: L'État de droit est un standard du droit constitutionnel européen, produit d'une communauté de valeurs et érigé en étalon de normalité dans l'UE. Il plonge ses racines dans l'histoire européenne de la lutte pour la prééminence du droit contre l'arbitraire et incarne la forme juridique du libéralisme politique. Dynamique, servant de support à de multiples revendications, l'État de droit a, en tant que standard, un contenu évolutif étroitement lié à la nature et la finalité du discours qui le porte, oscillant entre une conception formelle portée par la Cour de justice et une conception matérielle axée sur les valeurs relayées par les institutions politiques de l'Union.
Résumé de l'auteur: Le standard de l'État de droit est apparu, en droit de l'Union européenne, sous la forme de la « Communauté de droit », devenue « l'Union de droit ». Pendant longtemps, c'est un standard que la Cour de justice appliquait à l'Union elle-même, en particulier pour assouplir l'accès à son propre prétoire. L'expression « État de droit » n'apparaît, quant à elle, en droit de l'Union européenne, qu'avec le Traité de Maastricht. Elle est corrélée avec une extension de ce standard plus nettement marquée en direction des États membres. Au terme de ce processus, le standard de l'État de droit apparaît aujourd'hui en droit de l'Union comme étant, d'une part, le vecteur d'une extension limitée de l'accès au prétoire de la Cour de justice et, d'autre part, un élément d'un ordre public de l'Union européenne opposable aux États membres.
Abstract by the author: The paper claims that during the fight over the compliance with the core values of the EU pronounced in Article 2 TEU with backsliding Member States the EU institutions using both the traditional mechanism (infringement procedures and Article 7), and the newly established Rule of Law Framework have proven incapable of enforcing compliance, which considerably undermined not only the legitimacy of the Commission, but also that of the entire rule of law oversight. Hence, new means of value conditionality should also be activated, such as cutting funds for member states that do not comply with certain basic institutional requirements of the rule of law. As the paper argues, this is possible through implementing the Common Provision Regulation, and can be carried out on a case-by-case basis. Putting conditionality into the Multiannual Financial Framework after the 2020 budget period is another potential avenue to enforce compliance with joint values.
Abstract by the author: By taking the European Union (EU) as a principal focal point, this chapter will evaluate critically the rule of law challenges arising from the production and operation of counterterrorism norms. The article will focus on four case studies, two involving the rule of law ex ante (at the stage of adoption of EU law) and two involving the rule of law ex post (looking at its impact). In terms of ex ante rule of law challenges, the chapter will analyse the production of binding standards by the global executive and the trickle-down effect of these standards at the regional, EU and national level and the limits of scrutiny and justification of counterterrorism legislation on emergency grounds. In terms of rule of law ex post, the chapter will examine challenges of counterterrorism law to the principle of legality via over-criminalisation and the adoption of vague and broad definitions of terrorism, as well as challenges to the right to a fair trial and principle of effective judicial protection resulting from state arbitrariness in the mechanism of producing terrorist sanctions. The contribution will question whether the entry into force of the Lisbon Treaty, and the process of constitutionalisation of criminal law it entailed, has made a difference regarding the compliance of EU counterterrorism law with the rule of law.
Abstract by the author: In the management of the Coronavirus Pandemic, law is called to play a synergistic role with the science to guarantee the public order and safety. In the European context Italy is to be examined, i.e. the first state in Europe to launch containment measures of the spread of the virus and to protect public health. Through a comparative approach, the purpose here is to examine the assumptions and the impact of the emergency legislation on the Italian democratic system. Evaluating within what limits fundamental human rights and freedoms’ compression can be legitimated on a national and international basis in exceptional events allow to analyse the relative reflections on the rule of law. Finally, the discussion focuses on the compatibility of using mass surveillance technologies on the International and European regulatory framework where balancing techniques and the principle of proportionality represent the core in framing the regulatory activity. Despite undoubted short-term benefits, the concern is to safeguard both the protection of personal data and health, in the face of this 'invisible enemy', considering that the link between emergency regulation and prolonged compression of rights in technological innovation requires special attention.
Mariolina Eliantonio and Oana Ștefan; European Journal of Risk Regulation; 2021-03; Vol. 12 (1); pp. 159-175.
Abstract by the authors: This article takes issue with the legitimacy of EU soft law instruments issued to deal with the COVID-19 crisis. Up to August 2020, we identified a total of 197 such instruments, and analysed the procedures for their adoption. We found little evidence of Parliamentary involvement or stakeholder consultation, with COVID-19 soft law replicating decision-making patterns which have been constantly criticised in the literature as illegitimate and opaque. Giving due consideration to the exceptional nature of these measures, the article suggests some quick fixes which might increase, ex post factum, the legitimacy of these instruments.
From the introduction: In the present paper, we will try to make sense of this constellation of phenomena by addressing both the legality of the restrictions enacted in Belgium and their legitimacy, considered in a broader, philosophical context. To this end, we begin with a general outline of the requirements of the rule of law in times of a pandemic, then scrutinise the restrictions implemented by the Belgian federal government. In the concluding part attention is paid to the possibly huge ramifications for some areas of wider debate in the philosophy of law and its classic topoi such as the boundaries between ethics and law, utilitarianism, trias politica, constitutionalism, sovereignty, and the rule of law.
Résumé de l'auteur: La question qui guide notre étude est celle de savoir si ces clauses de dérogation sont réconciliables avec l’État de droit. L’État de droit peut être entendu de deux manières distinctes: l’État de droit formel, qui impose la soumission des institutions publiques au droit ; et l’État de droit substantiel, qui requiert, en outre, le respect de droits fondamentaux. À travers l’étude des cas d’application des clauses de dérogation par les organes chargés de l’application des Conventions de DIDH, nous trouvons une réponse nuancée. La reconnaissance des situations d’état d’urgence par les clauses de dérogation renforce l’État de droit formel en ce qu’elles permettent de préserver l’applicabilité du DIDH, même en situation exceptionnelle. Dans le même temps, le juge international opère un contrôle parfois très abstrait en accordant une large marge d’appréciation aux États, affectant ainsi indéniablement l’État de droit substantiel.
From the introduction: This article first considers the central question of the use of power during an emergency: is it better or worse for democracy and the rule of law to declare an emergency or, instead, rely on ordinary powers and legislative frameworks? The article then considers whether the use of powers (ordinary or emergency) in response to the pandemic emergency has ultimately been a cause, or catalyst of, further democratic deconsolidation. In doing so, it highlights how states have struggled to maintain some degree of legislative and judicial normality – essential for the scrutiny and review of emergency measures – while other states have given it up entirely. It concludes on a note of optimism: an emerging best practice of governmental response reliant on public trust bolstered by rationalized and transparent decision-making and the capacity to adapt, change and reform measures and policies.
From the introduction: According to the ngo Freedom House’s latest ‘Nations in Transit’ report, some countries, e.g. Hungary, even lost their status of ‘democracy’ due to the measures taken. There are many humbling lessons to be learnt from the social response to this virus, lessons that criminal law and criminological field can put into perspective, and it is a few of those lessons that will be addressed in this editorial.
COVID-19: Testing the Limits of Human Rights; Alessandra Spadaro; European Journal of Risk Regulation; 2020-06; Vol. 11 (Special Issue 2); pp. 317-325.
From the introduction: This article starts by explaining why the taking of measures to contain the pandemic is warranted under human rights law. The article shows that, at the same time, some measures can have a detrimental effect on the enjoyment of a number of human rights. With a focus on the International Covenant on Civil and Political Rights (ICCPR) and on the European Convention on Human Rights (ECHR), the article then proceeds to analyse the conditions under which States may legitimately interfere with certain human rights through either limitations or derogations and highlights some areas of concern in this respect. It concludes that while the curtailment of certain freedoms might be temporarily necessary to deal with the COVID-19 outbreak, such curtailment should be carefully limited and constantly monitored so as to avoid abuses.
Abstract by the authors: In this article, we ask what the impact is of the role of the EU administration in responding to emergencies in terms of (changes to) the rule of law. A response to an emergency in some cases creates exceptions to rule of law guarantees that bind the authorities to procedural rules and fundamental rights. These exceptions can become more permanent and even change the constitutional order of the EU. We articulate the legal framework for health emergencies, and discuss how the EU court has interpreted and developed this framework in two key decisions. We then ask whether this framework offers adequate safeguards for upholding the rule of law in cases of major health emergencies. We conclude that public health emergencies can bend and even break rule of law requirements for the EU administration, and advocate for more legal guidance on proportionality, which may offer better safeguards suited for protecting the rights of affected parties.
Abstract by the author: We study the conditions under which the European Court of Justice (ECJ) expanded the European Union's reach into issues of national judicial independence. The ECJ's 2018 ruling in a case known as Portuguese Judges contained a far-reaching constitutional interpretation that had a transformative impact on the European Union's rule of law crisis. We conduct a theoretically guided investigation into both the domestic origins and the judicial outcome in the Portuguese Judges case. We show how the ECJ, with implicit support from the majority of the Member States, strategically exploited suitable characteristics of an inconspicuous case to produce a landmark ruling that enabled unprecedented enforcement action against democratic backsliding in Poland and Hungary.
Abstract by the author: There has been a global tendency towards the growth of judicial control over the last decades. Have we transited from a rule of law to a rule of rights? The paper offers a brief description of the scope of the institutional transformations around the world and its underlying narrative. It describes the liberal ideals that inspired the concept of a rule of law and argues that these have been profoundly perverted by the institutional transformation legal systems have experienced. I suggest that the transit to a rule of rights jeopardises some of our core democratic values, privatising our politic disputes and eroding our common world.
Abstract by the authors: This article discusses how the application the EU Charter of Fundamental Rights contributes to the fight for the rule of law in the EU. After outlining the connections between the two it focuses on two examples of how the Charter could and should play a more significant role in upholding the rule of law. As to Member State-level rule of law breakdowns, we demonstrate that the Charter has either been missing in the shadow of Article 19(1) of the Treaty on European Union or threatened to undermine the fight for the rule of law when the principle of judicial independence was reduced to Article 47 Charter standing alone. As to supranational level rule of law issues, where the Charter’s applicability under Article 51 CFR is uncontroversial, we show that it has nonetheless so far been applied to a problematically limited extent. This is particularly clear with regard to party-financing at EU-level. This file offers a case in point to show how taking the Charter seriously could make a significant difference in protecting the rule of law in the EU.
Abstract by the authors: Requirement that tribunals be established by law – European Convention on Human Rights – EU Charter of Fundamental Rights – Fair trial – Rule of law – Separation of powers – Public trust
Abstract by the author: The debate on the rule of law in the EU is mainly taking place from an EU law point of view, stemming from the analysis of CJEU judgments and its interpretation of general principles and primary EU law. This article argues that only by comprehending the global context of rise of populism and delegitimation of the judiciary may we realise the risks that national judges and the CJEU started to take when they entered the stage of this discussion. An overview is made of the global trend of delegitimation of the judiciary, referring to the example of Poland. The author then analyses how the CJEU and national courts, while defending the rule of law, are also mutually contributing to their own protection against external threats, and why that dialogue is essential to keep the debate juridical, as a way of avoiding what the author identifies as the “populist trap to the judiciary.”
Abstract by the author: As human rights have increasingly gained importance at the European Union level, this article examines the remaining scope of human rights protection under the EU–UK Trade and Cooperation Agreement. While some international human rights instruments remain applicable, the Charter of Fundamental Rights of the European Union did not become part of the Trade and Cooperation Agreement (TCA). The consequences, especially the inapplicability of the internationalised ne bis in idem principle, are analysed. Furthermore, the conditionality of the TCA in general as well as the specific conditionality for judicial cooperation in criminal matters are discussed. In this context, the risk that cooperation may cease at any moment if any Member State or the UK leave the European Convention of Human Rights is highlighted. Lastly, the authors raise the problem of the lack of judicial review, as the Court of Justice of the European Union is no longer competent.
Abstract by the authors: The judicial contribution to the dynamic process of European Integration was especially important, as the Court of Justice of the EU, through its creative and extensive interpretation of the Treaties, became an important catalyst for the integration process. The next phase of the European integration seems to be the 'integration through the rule of law', as the further development of this process must be based on a secure and solid ground, reaffirming the Union as a community of values. Given its importance for the confidence of citizens in the Union and the effective delivery of policies, the rule of law is of central relevance to the future of Europe. The main aim of this paper is to examine the progressive and influential role of the CJEU regarding the integration process, as a starting premise for determining its potential as an actor in the process of overcoming the following challenges.
Abstract by the authors: The rule of law as one of the core constitutional values of the EU legal order – The rule of law in the case law of the Court of Justice of the European Union – Jurisdiction of the Court on the basis of a combined reading of Articles 2 and 19 TEU – Protecting the rule of law in the Common Foreign and Security Policy – Protecting the rule of law in the member states in order to safeguard the structure and functioning of the EU legal order – Limits to the scope of application of EU law.
Abstract by the author: In Associação Sindical dos Juízes Portugueses, the CJEU seized the occasion to uphold the principle of judicial independence as a primary obligation for the Member States under the second subparagraph of Article 19(1) TEU. This newly crafted interpretation of Article 19(1) has crystallized in Commission v. Poland, in which the CJEU declared that the reform of the Polish law on the Supreme Court lowering the retirement age of judges breached the obligation to respect judicial independence. The goal of this piece is to assess the bold interpretation given to the second subparagraph of Article 19(1) as a building block of the EU’s constitutional order. First, the expansion of the substantive content of Article 19(1) TEU will be analysed. How did the CJEU justify the shift from an obligation to establish a system of remedies ensuring effective judicial review to an obligation of respect for judicial independence? Second, the scope of this obligation and its potential reach will be critically examined. I will argue that Article 19(1) TEU may actually trigger the application of the Charter. Eventually, Article 19(1) TEU has the potential to become an open door for enforcing the Charter against the States regardless of its limited scope of application.
Abstract by the author: The crisis of civil justice system is present in many countries in the EU and worldwide and it takes different forms. In response, many different pathways are explored in order to overcome not only the growing sense of crisis, but also its manifestations. One of the suggested routes in the ongoing efforts to improve access to civil justice at the EU and national levels is the privatization of justice through the ADR mechanisms. In many areas, with the encouragement and support of governments and other policy-making bodies, the administration of justice is being encouraged to leave the courts for alternative forums. Thereby, the ADR are presented as mechanisms which are facilitating informal, fast, cost-effective and affordable access to justice, at the same time preserving public resources. Yet, in spite of these undeniable benefits, ADR mechanisms are subject of some doubts and expressed concerns. One of the major concerns, which has already sparked a wider debate, is whether the informal and private nature of ADR is hostile to the Rule of Law and ultimately to justice itself. Namely, if the privatization of civil justice is considered in the context of the fundamental public commitment to provide substantive justice on an equal basis to all citizens, the question arises whether the ADR mechanisms are capable to secure and foster the virtues of the Rule of Law (publicity, transparency, fairness, equality, etc.). The purpose of this paper is to contribute to this debate, renewing the interest in analysing the relationship between the privatization of civil justice and the concept of the Rule of Law. In the light of evolving social, economic and political circumstances, the paper attempts to answer the question whether the growing privatized dispute resolution landscape is undermining or promoting the rule of law.
Abstract by the authors: The article examines the existing rule of law efforts and rule of law challenges in the EU, specifically those linked to the functioning of justice systems and EU criminal law. First, the legal framework of the principle of the rule of law is presented, then the measures for its realisation in practice, and finally the different understanding of the role of the principle in the context of criminal law. The principle is pursued in a dialogue between the Commission and the Member States and at the same time at the EU level. The Treaty on the Functioning of the European Union explicitly defined competences in the field of criminal law. Therefore, the principle of the rule of law can be regarded at the EU level also as a tool for limiting the criminal-law lawmaking activity of the EU bodies. The article analyses the fundamental judgments of the EU Court that demonstrate the scope of the restrictive role of the principle of the rule of law. EU criminal law can function as a means of strengthening and a means of undermining the rule of law. Strengthening of criminal jurisdiction has also brought about the creation of mechanisms that strengthen the democratic legitimacy of EU legislation, in particular by strengthening the role of the European Parliament. On the other hand, criminal law jurisdiction remains firmly linked to EU objectives and policies, and EU criminal law can still be understood primarily as a tool for achieving EU policy goals. The article identifies various aspects of the rule of law in the context of EU criminal law and concludes by revealing some outstanding rule-of-law challenges yet to be fully addressed in the EU.
Abstract by the author: Composite administrative procedures – Exclusive jurisdiction of Union courts to review non-binding national preparatory acts – No jurisdiction of Union courts to enforce national law – Autonomy and uniformity of EU law – No judicial control possible of violation of domestic law by national authorities – National rule of law gap – Judicial review, effective judicial protection, and principle of administrative legality.
Abstract by the author: In Polen und Ungarn wird seit Jahren das EU-Rechtsstaatsprinzip anhaltend underheblich verletzt. Betroffen sind das Justizsystem, Korruption, Medienpluralismus sowie Grund- und Menschenrechte für Nichtregierungsorganisationen und Minderheiten. Der folgende Beitrag betrachtet die Gründe, warum die Lage der Rechtsstaatlichkeit in beiden Ländern prekär bleibt. Dafür werden die Defizite der vorhandenen EU-Instrumente, insbesondere des Vertragsverletzungsverfahrens und des Art.7-EUV-Verfahrens, analysiert. Davon ausgehend wird der eine Konditionalisierung von EU-Transferleistungen und EU-Grundwerten vornehmende Rechtsstaatmechanismus vorgestellt und sein konkreter europäischer Mehrwert herausgearbeitet, um Mitgliedstaaten effizient zur Einstellung von Verstößen gegen europäische Grundwerte zu bewegen. Der Beitrag beleuchtet zudem eingehend die unter mehreren Aspekten europarechtswidrige Anweisung des Europäischen Rates an die Europäische Kommission von Dezember 2020, den durch EU-Verordnung 2020/2092 am 1.1.2021 in Kraft getretenen Rechtsstaatsmechanismus bis zur Fertigung ihrer Anwendungsleitlinien unter Abwarten des antizipierten EuGH-Urteils nicht anzuwenden. In dem die Kommission dieser Anweisung Folge leistete, verhielt sie sich ihrerseits vertragswidrig. Ihre Aufgabe als „Hüterin der Verträge“ dürfte insoweit auf das Parlament übergegangen sein, das im Oktober 2021 Untätigkeitsklage gegen die Kommission wegen fortgesetzter Rechtsstaatlichkeitsverletzungen in Polen und Ungarn erhoben hat.
Abstract by the author: This article explores how national executives in Serbia and Bulgaria address European Union (EU) rule of law conditionality by framing it within the populism/technocracy dichotomy. The rule of law remains one of the main problems of EU relations with the two countries. While acknowledging the nuances of pre- and post-enlargement Europeanisation, this article explores the technocratic and populist narratives exploited by the national executives in their interactions with the EU and their domestic public. Rather than positioning the current executives unequivocally either as populist or technocratic, we argue that the political elites act strategically in using both populist and technocratic techniques towards their publics when explaining interaction with the EU. We explore the extent this type of executive behaviour is determined by the countries' formally different status. While we look for the levels of possible similarity and distinction in the two cases/countries stemming from their different EU membership status, our findings confirm the existence of strategic defensive populist and technocratic techniques applied towards the EU and the national public in both countries The aim of this strategy is to mitigate the impact of the EU rule of law pressure and to secure the persistence of the existing rule of law shortcomings within the process of European integration. Interestingly, our research did not identify substantial impact of the formally different status towards the EU of the two countries.
Abstract by the author: This report seeks to discuss the threats to liberal democracy and explore how to devise a new path towards democratic transition and the challenges faced: civil war, sectarian and religious conflicts, ethnic and national tensions, international terrorism and regional wars, and societal violence. The impact on democratic transformation, especially the sense of threat, whether literal or theoretical, led to the tendency of demagogic towards a populist outlook in pluralistic societies, generating reactions across other societies suffering from external alienation and internal tyranny. The world is currently faced with the decline of the core values of the concept of democracy at the global level which has led us to the following questions: the principle of the rule of law, peaceful trading of power, human rights, the principles of equality and sovereignty. The populists attempt to exploit the ideas of the stereotypical, especially on hatred of the other, and the xenophobia against foreigners when faced with the wave of asylum and migration seekers, diminishing freedoms and citizenship rights, coupled with the rejection of economic globalization, to the implementation of a protectionist policy. Victories such as Brexit or Donald Trump’s in the United States have brought forward scenes of fear and hatred of ‘the other’, encouraging intolerance and extremism. This led to a rise in policies against foreigners, migration, terrorism, Islam and protectionist economics. This report will look at a future beyond traditional democracy, discovering what the next stage in democracy will be, in terms of the survival of society, raising problematic questions: Is democracy, by virtue of their dynamics, able to respond to the changing realities, and whether it can renew itself and overcome some of its issues to invent new methods and literature?
Abstract by the author: In the context of a perceived crisis of globalization, this article outlines key features of the globalization paradigm that bore influence in media and communication studies, observing two recurring and related weaknesses: underestimation of the continuing significance of nation-states, and overestimation of the extent to which cultures and identities had become ‘post-national’ and cosmopolitan. The rise of populism could lead to a post-global era, but it is more likely that it marks a reassertion of national policy and political priorities into the operations of global corporations and multilateral institutions. This raises the question of whether global communication studies need to be more concerned with national policy questions rather than with ‘the global’ as an entity in its own right.
Abstract by the authors: How should the European Union cope with Member States that no longer respect the basic values of the Union? This article reviews the responses of the major European Union institutions to Poland and Hungary as their governments removed checks on their power, eliminated the independence of judiciaries and failed to honour their European commitments. As the article demonstrates, the responses of EU institutions have so far been ineffective in bringing these Member States back into line with European values. We examine the various proposals that have been made to do better, concluding that there is promise in some legal strategies that are available now, but have yet to be tried.
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