scholarly journals Verfassungsaufsicht in der Europäischen Union

2021 ◽  
Author(s):  
Matthias Schmidt
Keyword(s):  
European Commission ◽  
Rule Of Law ◽  
Final Part ◽  
Eu Law ◽  
The Rule Of Law ◽  
Complex Concept ◽  
The Third ◽  
The Core ◽  
Main Thesis ◽  
The Eu

This book offers, in five parts, an analysis of the so-called rule of law crisis in the EU. The first part focuses on the concepts that help to understand the rule of law crisis, in particular that of “systemic deficiencies in the rule of law”. In order to shine light on the complex concept of “rule of law” included in Art. 2 TEU, the author focusses on the operationalisation of the rule of law in recent CJEU jurisprudence. The second part of the book is devoted to developments in certain Member States that make up the rule of law crisis. Special attention is paid to Poland and Hungary. The third part deals with the main thesis of the book: why it is useful to conceive of the measures taken in response to the rule of law crisis as "constitutional supervision” in EU law. The merits and roots of this concept are discussed in detail. On this basis, the fourth part presents the core of the analysis: the different mechanisms of EU constitutional supervision. After introducing its different actors, the work focuses on the activities of the European Commission. The final part concludes with an outlook.

scholarly journals Does the concept of rule of law have any material content? A Nordic point of view

2017 ◽  
Vol 24 (6) ◽  
pp. 774-791 ◽  
Author(s):  
Juha Raitio
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Theoretical Perspective ◽  
Point Of View ◽  
Eu Law ◽  
The European Union ◽  
The Rule Of Law ◽  
The Third ◽  
Protection Of Human Rights ◽  
The Eu

What does the concept of rule of law mean? Does it contain any material elements? Despite the difficulties, it is worth trying to define the rule of law, but in a certain context. Now this context relates to the Nordic (mainly Finnish), German and British conceptions of the rule of law as well as to the rule of law in the European Union. The rule of law is a relatively contradictory concept from a theoretical perspective. For example, one may disagree whether the concept of democracy is a prerequisite for the rule of law. Another difficult question seems to be whether the concept of the rule of law contains a substantive element. The third issue to disagree relates to the question whether and to what extent one should take into account the contemporary European and international interpretations of the concept. In this article the emphasis is on the EU law perspective in a sense that the rule of law is connected to respect for democracy and the protection of human rights just like it has been presented in the Article 2 TEU.

scholarly journals The independence and impartiality of the hybrid CETA Investment Court System: Reflections in the aftermath of Opinion 1/17

2020 ◽  
Author(s):  
Maria Fanou
Keyword(s):  
Rule Of Law ◽  
Trade Agreement ◽  
Judicial Independence ◽  
Court System ◽  
Eu Law ◽  
The Rule Of Law ◽  
Court Of Justice ◽  
The Right ◽  
Right Of Access ◽  
The Eu

In its recent Opinion 1/17, the Court of Justice of the EU (CJEU) examined the compatibility of an external judicial body, the Investment Court System (ICS) under the EU–Canada Comprehensive and Economic Trade Agreement (CETA), with EU law. At a time when judicial independence has arisen as one of the main challenges for the rule of law in the EU, this article discusses the Court’s findings in relation to the compatibility of the ICS with the right of access to an independent and impartial tribunal.

scholarly journals The Rule of Law and the Roll of the Dice. The Uncertain Future of Investor-State Arbitration in the EU

2021 ◽  
pp. 333-359
Author(s):  
Wojciech Sadowski
Keyword(s):  
Rule Of Law ◽  
Legal Reasoning ◽  
Eu Law ◽  
Member States ◽  
The Rule Of Law ◽  
Investment Treaty ◽  
Treaty Law ◽  
Energy Charter Treaty ◽  
Uncertain Future ◽  
The Eu

AbstractInvestment treaty law and EU law began to develop in the same era and share some important philosophical and axiological foundations. The pressure on the CEE countries to enter into numerous bilateral investment treaties in late 80s and early 90s, in the context of the EU accession aspirations of the former communist countries, was likely to result, eventually, in a conflict between EU law and investment treaty law. The conflict could have been managed in three different ways, yet the CJEU decided in Achmea to declare an undefined volume of intra-EU arbitrations to be incompatible with EU law. This important judgment, which delivered an outcome desired by the European Commission and a number of Member States, is based on questionable legal reasoning that creates high uncertainty in this area of law. The doubts include the scope of application of Achmea, which is now a highly debatable issue. The CJEU itself saw it necessary to limit the scope of Achmea by declaring in Opinion 1/17 (CETA) that the legal reasoning of Achmea did not apply to investment protection treaties with third countries. The Member States of the EU remain politically divided in their views as to whether Achmea applies to the Energy Charter Treaty. And while the problems with the rule of law and independence of the judiciary in certain Member States continue to grow, Achmea has left an important gap for which there is no substitute in the current architecture of the EU legal system.

scholarly journals Values and objectives of the EU in light of Opinion 1/17: ‘Trade for all’, above all

2020 ◽  
Vol 4 (1) ◽  
Author(s):  
Ivana Damjanovic ◽  
Nicolas de Sadeleer
Keyword(s):  
Rule Of Law ◽  
Trade Agreement ◽  
Fundamental Rights ◽  
Equal Treatment ◽  
European Convention ◽  
Court System ◽  
Eu Law ◽  
The European Union ◽  
The Rule Of Law ◽  
The Eu

In Opinion 1/17 the Court of Justice of the European Union (CJEU) ruled that the new Investment Court System (ICS) in the Canada–EU Comprehensive Economic and Trade Agreement (CETA) is compatible with the EU constitutional framework. This article examines the CJEU’s analysis of the ICS in its Opinion through the prism of EU values and objectives. Given the judicial nature of the ICS, the article unfolds around the concept of the rule of law. The scope and the content of this core EU value are considered under both EU law and the European Convention on Human Rights (ECHR). In particular, the ICS is analysed in light of the two core rule-of-law requirements: equal treatment and the independence of courts, enshrined in Articles 20 and 47 of the Charter of Fundamental Rights (CFR). Importantly, in Opinion 1/17 the CJEU for the first time applied Article 47 CFR to a court outside the EU judicial system. While the CJEU ruled that the ICS complies with the CFR rule-of-law criteria, this article argues that it nevertheless falls short of the rule-of-law standards required for judicial bodies under EU law. The article demonstrates that the CJEU prioritises free and fair trade as the CETA’s core objective, rather than the rule of law, and endorses the ICS as the conditio sine qua non of guaranteeing such trade. The Court’s findings have wider consequences for the rule of law in international law as the EU continues to pursue the establishment of a Multilateral Investment Court (MIC).

scholarly journals Pozycja i rola Komisji Europejskiej w procedurze ochrony budżetu UE w przypadku uogólnionych braków w zakresie praworządności w państwach członkowskich

2021 ◽  
pp. 145-156
Author(s):  
Karol Piwoński
Keyword(s):  
European Commission ◽  
Rule Of Law ◽  
Comparative Method ◽  
Point Of View ◽  
New Paradigm ◽  
The Rule Of Law ◽  
Wide Range ◽  
The One ◽  
The Eu

The aim of this article is to analyse the position and role of the European Commission in the procedure provided in the regulation on a general regime of conditionality for the protection of the European Union’s budget. For this purpose the scheme of this procedure was analysed, by interpreting the relevant regulations using the dogmatic method and considering opinions of the EU institutions and views of the scholars. A comparative method has also been applied. The new position of the Commission in the procedure for protection of the EU budget has been compared with the position it plays in the existing instruments. The analysis made from the point of view of the position of individual institutions in the new procedure, although it does not allow predicting how they will be implemented. The conducted analysis demonstrates that the European Commission – an institution of Community character – has gained wide competences, and in applying them it has been given a wide range of discretion. On the one hand, the introduced regulations exemplify a new paradigm in creating mechanisms for protection of the rule of law. On the other hand, they raise doubts as to their compliance with EU law. However, they undoubtedly constitute a decisive step towards increasing the effectiveness of the EU's instruments for the rule of law protection.

Poland-EU constitutional crisis will not end soon

2016 ◽  
Keyword(s):  
Economic Growth ◽  
European Commission ◽  
Rule Of Law ◽  
Content Type ◽  
The Rule Of Law ◽  
Constitutional Tribunal ◽  
The Government ◽  
Polish Government ◽  
The Eu

Subject European Commission concerns about the rule of law in Poland. Significance The Commission has sent a formal Opinion to the Polish government, activating the first stage in the EU's 'Rule of Law Framework'. It expresses concerns about respect for the rule of law in Poland (a fundamental founding value of the EU), and in particular about the Polish government's handling of the crisis over the Constitutional Tribunal (TK, for Trybunał Konstytucyjny) Impacts Poland's EU position is likely to suffer as a result of the dispute, making it more difficult for it to achieve other political goals. Polish politics will remain unsettled and polarised, with the opposition using the Commission's Opinion to challenge the government. Legal uncertainty may translate into lower investment by individuals and enterprises dampening economic growth in the medium-to-long term.

Warsaw will not budge on its key agenda

2018 ◽  
Keyword(s):  
European Commission ◽  
Rule Of Law ◽  
Prime Minister ◽  
Member States ◽  
Content Type ◽  
The Rule Of Law ◽  
Early Evidence ◽  
The Eu

Subject Polish/EU frictions. Significance The European Commission has taken the unprecedented step of warning of a "clear risk" of a serious breach of the rule of law in Poland. Many in Brussels and Poland hoped that the appointment of a young prime minister and a major cabinet reshuffle signalled a rapprochement. On early evidence, at least, they may be sorely disappointed. Impacts Poland’s position in the EU will become more constrained as the rule-of-law conflict is exploited in negotiations on unrelated issues. In openly censuring Poland, the EU sees an opportunity to prove its credentials as a bulwark against populism and extremism. If Poland is pushed too far, the EU’s actions may undesirably strengthen anti-EU sentiments in one of its largest member states.

scholarly journals Elephants in the Room: The European Commission’s 2019 Communication on the Rule of Law

2019 ◽  
Vol 11 (2-3) ◽  
pp. 423-438 ◽  
Author(s):  
Dimitry Kochenov
Keyword(s):  
Rule Of Law ◽  
Critical Reading ◽  
The Rule Of Law ◽  
The Core ◽  
Core Problem ◽  
The Eu

Abstract This contribution honouring Prof. Martin Krygier scholarship provides a brief critical reading of the European Commission’s July 2019 Communication on the Rule of Law (COM(2019) 343 final). It argues that although the Commission’s effort is welcome, the Communication fails to correctly identify the core problem related to the Rule of Law in the EU, which is the constitutional capture in the illiberal regimes. The failure to identify the core problem with unequivocal precision and spell out its key elements as well as dissect its causes undermines the likely effectiveness of the tools proposed by the Commission to address the unnamed and unanalyzed on-going Rule of Law concerns. Consequently, the Communication is lacking in vital essentials, if not vacant at the core.

scholarly journals In search of the concepts of the European Union research

2016 ◽  
pp. 129-152
Author(s):  
Stanisław Kaźmierczyk
Keyword(s):  
European Union ◽  
Complex Structures ◽  
Eu Law ◽  
The European Union ◽  
European Legislation ◽  
The Third ◽  
Main Thesis ◽  
New Concepts ◽  
Shed Light ◽  
The Eu

In search of the starting points of the title concept one can focus on the EU law as a broadly viewed basis encompassing the accession of the states to the European Union, thus their membership. In this context the following important question may be asked, i.e. where we obtain the knowledge of the European Union. Referring to the juridical correlation in place, we would then say that the answer lies in the respective treaty ofthe primary law of the EU It goes without saying that this answer is not subject to doubt.  However, the answer itself does not prove comprehensive when we differentiate the foundation of the European Union, then the formal membership, and its development affiliation. Generally speaking, the first two areas legitimise the above presented ‘fromwhere’ in a different way from the way it is subject to legitimisation in the third area. The particle gains in importance as we still tend to (ultimately) explain the development of the European Union through the European legislation. One can apply this approach, yetone should also bear in mind that such action proves, above all, one-sided. The action primarily proves anti-developmental as it finds itself unable to shed light on the EU in the numerous aspects of its functioning.For the reasons given above, the main thesis of the paper is that, in the methodological ways of examining the thought, the European Union should be subject to examination through the EU as a community, i.e. the EU within the EU To help exemplify the reasoning, I applied the familiar inter, which is broadly applied in the methodologies of science. I ascribe the generation of new concepts to it, the ones that allow to examinethe complex structures of the EU, and through the examination it is hoped to coin new postulates that concern the steering of the EU as a way of practice. Undoubtedly, the inter is reconstructed on grounds of the up-to-date knowledge of itself. Only then do we conceptualise it, and arising out of this conceptualisation, we would reconstruct the postulates aimed at the EU, yet not in the narrow-juridical categories as the EU law doesnot exhibit a separately differentiated theory.

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