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Rule of Law

General

Abstract: 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: 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: 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: 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: 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.

EU and the Rule of Law

Abstract: After more than a decade of the RoL being a contentious issue on the EU's agenda, in this review, we provide an overview of the EU's responses. Is the EU better equipped to safeguard its values in the context of increasing backsliding in several Member States? Whilst often criticized for a lack of political will and for being slow and ineffective, the EU's emerging RoL regime could be seen as a reflection of political actors' preferences and their power relations in parliamentary, supranational and intergovernmental arenas. The response to the dismantling of the RoL in certain Member States indirectly corresponds to a complex process of building the EU's political authority. Involving key actors with different sources of legitimacy in a complex process of building political authority beyond the nation-state requires time, deliberation and contestation. Designed not ‘by stealth’ but through political debates in different institutional arenas, this new RoL regime strengthens de jure the political authority of the EU vis-à-vis its Member States. Its de facto implementation is open to interpretation, and its effectiveness will depend on both internal and external factors. We discuss this trajectory, focusing on the politics of the RoL crisis, from ‘actions without sanctions’ (Section I) and the incremental choice of hard and soft policy instruments (Section II) to the emergence of a new RoL conditionality regime (Section III) and its challenges (Section IV). We conclude by highlighting five lessons with political implications (Section V).

Abstract: Rule of law spending conditionality marks a turn in the EU’s strategy in the 2020s. The entry of this value into the budgetary sphere represents an economization process, creating room for the development of a transactional approach to rule of law compliance. This article defines this conceptual framework and examines the extent of its application through the case study of three budgetary instruments used during the 2021–2027 cycle: the Recovery and Resilience Facility, the Rule of Law Conditionality Regulation and the horizontal enabling condition of the Charter of Fundamental Rights. Contributing to the recent Europeanization literature, it also emphasizes the change in European governance and in the EU–Member State relationship triggered by the new conditionality culture following the succession of European crises, moving from a traditional politico‐legal enforcement model to a transactional one.

Abstract: The past decade has seen the rise of the semi-authoritarian regimes within the European Union. EU law scholars are rightfully concerned that, in the absence of a meaningful response, this leads to an existential crisis for the Union, as these regimes threaten respect for the Union’s foundational values. The Union did respond to what it has framed as a rule of law crisis by means of a constitutional transformation, asserting Union power to protect judicial independence within the Member States even in areas previously thought beyond the reach of Union law. This paper contends that the Union’s response to the authoritarian threat is flawed for its legalist faith in law and courts. In institutional terms, it was the Court of Justice of the European Union, rather than the Union’s political branches, that took the lead in this transformation. In substantive terms, the Union has transformed its constitutional framework to protect the organisational infrastructure of the judiciary, but it failed to do the same in response to various other strategies in the authoritarian playbook. By framing the authoritarian threat as, above all else, a threat to the judiciary, the Union’s response contributes to the reification of political debate at Union level and risks the alienation of the European polity.

Abstract: The primacy of EU law as framed by the Court of Justice pre-empts substantive arguments of principle that originate in other legal orders. This was accepted and acceptable to the extent that the values EU law contained were at least normatively equivalent to values originated from the other legal orders. In this contribution it is argued that this is no longer the case and that the misuse of the Rule of Law rhetoric justifying the primacy of EU law renders the EU less accountable and undermines the dialogical pluralist essence of EU constitutionalism.

Abstract: This contribution analyses the current situation of the implementation of the Rule of Law in the EU focusing on three essential aspects: the role of Article 2 of the TEU as a legal paradigm, the issue of effectiveness of secondary law to strengthen Supranational mechanisms for the defense of the Rule of Law; and the thorny issue of the primacy of EU Law in the current Era of European Integration.

Abstract: Next to the rule of law ‘crises’ within Member States, a new facet of this rule of law crisis is emerging at the external borders of the EU, and sees the EU border agency Frontex as its epicentre. This article illustrates the multiple facets of this crisis which concerns Frontex's functioning and activities, discussing a form of ‘agency capture’ that occurred under the mandate of the former Executive Director and a legal framework ensuring limited monitoring and transparency on operations. Subsequently, the article delves into the constitutional meaning of the rule of law for an agency such as Frontex, both for its significance on relations between authorities and individuals and for the interplay between the rule of law and accountability. The article concludes by calling for a rethinking of the accountability instruments in place, to constrain more effectively the exercise of discretion by agencies.

Abstract: Research pertaining to the dual-tier political system within the European Union (EU), specifically concerning the genesis and execution of EU policies, has garnered substantial scholarly attention. These inquiries delve into multifaceted dimensions, encompassing institutional dynamics, procedural intricacies, questions of legitimacy, and intricate relational dynamics entailing international diplomacy with other actors within the realm of international law. Nonetheless, a particularly intriguing and underexplored facet remains: the influence of member states’ compliance with the rule of law on the implementation of EU policies, particularly within the realm of energy policy. This article aims to elucidate the nexus between the realization of energy policy objectives in EU member states and fidelity to the rule of law. The conundrum of establishing a correlation between the indicators of environmentally sustainable energy policy and commitment to upholding the rule of law remains uncharted territory within the existing body of literature. Our analysis centers on a dataset derived from publicly accessible sources, reflecting data from the year 2020.

Abstract: 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: 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.

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.

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: 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).

Résumé: 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.

Abstract: 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.

Abstract: 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.

Abstract: 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: 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.

Abstract: 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.

Economics and the Rule of Law

Abstract: This article offers some general thoughts on the rule of law in international economic law. It begins by briefly defining the rule of law and indicating the legal sources on which it is based. It then shows that the TFEU, confirmed by the case law of the Court of Justice, requires the rule of law to be respected in the conduct of the Union’s commercial policy. However, although the rule of law may be favourable to international trade and investment, it is not indispensable to them. The rule of law is conducive, but not essential, to trade and investment. For businesses, the risks associated with a weak respect for the rule of law represent a cost, which they take into account when setting the price of their products. Finally, it should be remembered that the principles of the rule of law do not apply in the same way in the domestic sphere as in international law. This article is intended as a panoramic introduction to the relationship between the rule of law and international economic law. More specialised studies are published later in this issue, including analyses focusing on trade or investment or national perspectives, such as that of China.

Iintroduction: 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.

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: 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.

State of emergency and the Rule of Law

Abstract: 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: 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.

Abstract: 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.

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.

Rule of Law and the judiciary

Abstract: This article reflects on the groundbreaking case law of the European Court of Justice concerning the progressive judicialization of the EU principle of the rule of law and aims to discern from it potential future directions. While one possible path could involve a further broadening of the reach of the Union’s values by allowing Article 2 TEU to apply as a self-standing clause, more recent cases suggest that the Court is aware of the problems posed by an expanding body of case law in this domain. Consequently, it appears more inclined to exercise caution, stepping back from potential clashes with the national identities of the Member States.

Abstract: This contribution aims to illustrate that adopting a unitary approach to the “court or tribunal” concept might introduce certain undesired inefficiencies into the preliminary ruling process. In the midst of a broader Rule of Law crisis, such implications should be approached with caution. Furthermore, this article also tends to highlight that, under EU law, the autonomy of a notion is not necessarily synonymous with the unity of such a notion. In the first part, the origins of the unitary conception of the “court or tribunal” notion will be enlightened (I). Then, the advantages and risks of such a unitary approach will be revealed (II). Finally, some solutions will be assessed to see if they manage to safeguard the judicial protection principle and the Rule of law value without impeding the efficiency of the preliminary ruling procedure (III).

Abstract: 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: 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: 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: 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: 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: 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.

Challenges to the Rule of Law

Abstract: Like every innovation in history, Artificial Intelligence also needs to be governed for its disruptive power and impact on people, economy, society, rights and freedoms. Its impact does not only concern innovative areas but permeates all corners of our personal, social, economic and professional lives. Artificial lntelligence has become a central component of our daily lives in many ways , so the perspectives are both for the positive results they can bring to humanity and concerns for their disruptive potential. It brings structural changes that are captured by legal norms, but which sometimes go beyond the existing legal framework by transforming it. To this global revolution the law response must provide an equally innovative approach in order to ensure that complex technology does not undermine the rule of law.

Abstract: International environmental law rarely refers to the rule of law. However, in fostering inter-state cooperation, international environmental agreements oblige parties to prohibit, restrict or control various activities that are harmful to the environment. The application of these constraints at the national level requires the rule of law to be taken into account.

Abstract: 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: 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: 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.

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