Pub Date : 2021-04-13DOI: 10.1007/s40803-021-00154-6
Justyna Łacny
<p>Some say that the Union is built by moving from crisis to crisis. Crises in the last decade which affected the Union and its citizens concerned, <i>inter alia</i>, public finance (the financial crisis, 2008), migration (2014), public health (the COVID-19 pandemic, 2020) and the rule of law crisis (2018). This paper focus on the latter. It has been noted that some Member States have been happy to receive the benefits of EU membership, specifically the financial ones, while their commitment to European values, including the rule of law (Article 2 TEU), has been lacking. Since many instruments applied by EU institutions to improve this situation have proved rather insufficient, halting transfers of EU funds to these recalcitrant Member States has been touted as the way that might solve this crisis. Accordingly, a draft regulation was put on the table that authorised the EU institutions to suspend EU funds if a Member State is found to be in breach of the rule of law. This draft aimed to make the transfer of EU funds to the Member States conditional upon their continuous respect for the rule of law (and therefore became known as ‘the rule of law conditionality’). This paper comments on this draft as first proposed by the Commission in 2018 (Proposal for a regulation of the European Parliament and of the Council on the protection of the Union budget in the event of generalized gaps in the rule of law in the Member States [COM (2018) 324 final).], amended in 2019 by the European Parliament [European Parliament legislative resolution of 4 April 2019 on the proposal for a regulation of the European Parliament and of the Council on the protection of the Union's budget in case of generalised deficiencies as regards the rule of law in the Member States (COM(2018)0324–C8-0178/2018–2018/0136(COD)); https://www.europarl.europa.eu/RegData/seance_pleniere/textes_adoptes/provisoire/2019/04-04/0349/P8_TA-PROV(2019)0349_EN.pdf. A draft version of these provisions was presented in von Bogdandy and Łacny (Suspension of EU funds for breaching the rule of law - µ a dose of tough love needed? European Policy Analysis 2020, No 2, p. 1–15, https://sieps.se/en/publications/2020/suspension-of-eu-funds/, 2020).], and finally adopted by the European Parliament and the Council as Regulation (EU, Euratom) 2020/2092 of 16 December 2020 on a general regime of conditionality for the protection of the Union budget [Hungary and Poland voted against it and it is expected that its validity will be challenged before the CJEU via an action for annulment (Article 263 TFEU).] (henceforth called ‘Regulation 2020/2092′). This Regulation, containing 29 recitals in the preamble and 10 articles, entered into force on 1 January 2021 (Article 10 Regulation 2020/2092.). In the conclusions of the European Council meeting in December 2020 it was however accepted that it will be applied only in relation to budgetary commitments starting under the new Multiannual Financial Framework (MFF) 2021–202
{"title":"The Rule of Law Conditionality Under Regulation No 2092/2020—Is it all About the Money?","authors":"Justyna Łacny","doi":"10.1007/s40803-021-00154-6","DOIUrl":"https://doi.org/10.1007/s40803-021-00154-6","url":null,"abstract":"<p>Some say that the Union is built by moving from crisis to crisis. Crises in the last decade which affected the Union and its citizens concerned, <i>inter alia</i>, public finance (the financial crisis, 2008), migration (2014), public health (the COVID-19 pandemic, 2020) and the rule of law crisis (2018). This paper focus on the latter. It has been noted that some Member States have been happy to receive the benefits of EU membership, specifically the financial ones, while their commitment to European values, including the rule of law (Article 2 TEU), has been lacking. Since many instruments applied by EU institutions to improve this situation have proved rather insufficient, halting transfers of EU funds to these recalcitrant Member States has been touted as the way that might solve this crisis. Accordingly, a draft regulation was put on the table that authorised the EU institutions to suspend EU funds if a Member State is found to be in breach of the rule of law. This draft aimed to make the transfer of EU funds to the Member States conditional upon their continuous respect for the rule of law (and therefore became known as ‘the rule of law conditionality’). This paper comments on this draft as first proposed by the Commission in 2018 (Proposal for a regulation of the European Parliament and of the Council on the protection of the Union budget in the event of generalized gaps in the rule of law in the Member States [COM (2018) 324 final).], amended in 2019 by the European Parliament [European Parliament legislative resolution of 4 April 2019 on the proposal for a regulation of the European Parliament and of the Council on the protection of the Union's budget in case of generalised deficiencies as regards the rule of law in the Member States (COM(2018)0324–C8-0178/2018–2018/0136(COD)); https://www.europarl.europa.eu/RegData/seance_pleniere/textes_adoptes/provisoire/2019/04-04/0349/P8_TA-PROV(2019)0349_EN.pdf. A draft version of these provisions was presented in von Bogdandy and Łacny (Suspension of EU funds for breaching the rule of law - µ a dose of tough love needed? European Policy Analysis 2020, No 2, p. 1–15, https://sieps.se/en/publications/2020/suspension-of-eu-funds/, 2020).], and finally adopted by the European Parliament and the Council as Regulation (EU, Euratom) 2020/2092 of 16 December 2020 on a general regime of conditionality for the protection of the Union budget [Hungary and Poland voted against it and it is expected that its validity will be challenged before the CJEU via an action for annulment (Article 263 TFEU).] (henceforth called ‘Regulation 2020/2092′). This Regulation, containing 29 recitals in the preamble and 10 articles, entered into force on 1 January 2021 (Article 10 Regulation 2020/2092.). In the conclusions of the European Council meeting in December 2020 it was however accepted that it will be applied only in relation to budgetary commitments starting under the new Multiannual Financial Framework (MFF) 2021–202","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":"23 1","pages":""},"PeriodicalIF":2.2,"publicationDate":"2021-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138517197","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-04-01DOI: 10.1007/s40803-021-00156-4
Bas Schotel
{"title":"Administrative Law as a Dual State. Authoritarian Elements of Administrative Law","authors":"Bas Schotel","doi":"10.1007/s40803-021-00156-4","DOIUrl":"https://doi.org/10.1007/s40803-021-00156-4","url":null,"abstract":"","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":"13 1","pages":"195 - 222"},"PeriodicalIF":2.2,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1007/s40803-021-00156-4","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"52954625","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-04-01DOI: 10.1007/s40803-021-00155-5
I. Jelić, Dimitrios-Stavros Kapetanakis
{"title":"European Judicial Supervision of the Rule of Law: The Protection of the Independence of National Judges by the CJEU and the ECtHR","authors":"I. Jelić, Dimitrios-Stavros Kapetanakis","doi":"10.1007/s40803-021-00155-5","DOIUrl":"https://doi.org/10.1007/s40803-021-00155-5","url":null,"abstract":"","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":"13 1","pages":"45 - 77"},"PeriodicalIF":2.2,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1007/s40803-021-00155-5","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45121550","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-03-29DOI: 10.1007/s40803-021-00153-7
D. Kochenov, N. Lavranos
{"title":"Achmea versus the Rule of Law: CJEU’s Dogmatic Dismissal of Investors’ Rights in Backsliding Member States of the European Union","authors":"D. Kochenov, N. Lavranos","doi":"10.1007/s40803-021-00153-7","DOIUrl":"https://doi.org/10.1007/s40803-021-00153-7","url":null,"abstract":"","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":"14 1","pages":"195 - 219"},"PeriodicalIF":2.2,"publicationDate":"2021-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1007/s40803-021-00153-7","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43252980","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-03-24DOI: 10.1007/s40803-021-00151-9
Laurent Pech, Patryk Wachowiec, D. Mazur
{"title":"Poland’s Rule of Law Breakdown: A Five-Year Assessment of EU’s (In)Action","authors":"Laurent Pech, Patryk Wachowiec, D. Mazur","doi":"10.1007/s40803-021-00151-9","DOIUrl":"https://doi.org/10.1007/s40803-021-00151-9","url":null,"abstract":"","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":"13 1","pages":"1 - 43"},"PeriodicalIF":2.2,"publicationDate":"2021-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1007/s40803-021-00151-9","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46818001","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-03-24DOI: 10.1007/s40803-021-00152-8
N. Arajärvi
{"title":"The Core Requirements of the International Rule of Law in the Practice of States","authors":"N. Arajärvi","doi":"10.1007/s40803-021-00152-8","DOIUrl":"https://doi.org/10.1007/s40803-021-00152-8","url":null,"abstract":"","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":"13 1","pages":"173 - 193"},"PeriodicalIF":2.2,"publicationDate":"2021-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1007/s40803-021-00152-8","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"52954555","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-07DOI: 10.1007/s40803-020-00149-9
Julian Sempill
The distinction between “the rule of law” and “the rule of men” is still in use, after more than two and a half thousand years. It is well known that Aristotle’s aphorism extols government according to institutionalized impersonal rules and condemns government by personal fiat. However, the formulation has another dimension that, during the course of the modern era, has gradually been obscured: Aristotle, following Plato, is making a set of philosophical points about the relations between human nature, the wider natural order, and positive law. The first part of this article offers an account of this neglected dimension of the ancient contrast between “the rule of law” and “the rule of men”. The second part of the article considers the reception of the contrast in the early modern age, focussing on the limited government tradition which emerged in the seventeenth and eighteenth centuries. The article concludes by considering how the rise of so-called “formal” accounts of the rule of law tend not merely to deny the validity of the Classical approach, but to render it increasingly obscure.
{"title":"The Rule of Law and the Rule of Men: History, Legacy, Obscurity","authors":"Julian Sempill","doi":"10.1007/s40803-020-00149-9","DOIUrl":"https://doi.org/10.1007/s40803-020-00149-9","url":null,"abstract":"<p>The distinction between “the rule of law” and “the rule of men” is still in use, after more than two and a half thousand years. It is well known that Aristotle’s aphorism extols government according to institutionalized impersonal rules and condemns government by personal fiat. However, the formulation has another dimension that, during the course of the modern era, has gradually been obscured: Aristotle, following Plato, is making a set of philosophical points about the relations between human nature, the wider natural order, and positive law. The first part of this article offers an account of this neglected dimension of the ancient contrast between “the rule of law” and “the rule of men”. The second part of the article considers the reception of the contrast in the early modern age, focussing on the limited government tradition which emerged in the seventeenth and eighteenth centuries. The article concludes by considering how the rise of so-called “formal” accounts of the rule of law tend not merely to deny the validity of the Classical approach, but to render it increasingly obscure.</p>","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":"41 16","pages":""},"PeriodicalIF":2.2,"publicationDate":"2021-01-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138496374","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-11-18DOI: 10.1007/s40803-020-00148-w
Andi Hoxhaj
{"title":"The EU Rule of Law Initiative Towards the Western Balkans","authors":"Andi Hoxhaj","doi":"10.1007/s40803-020-00148-w","DOIUrl":"https://doi.org/10.1007/s40803-020-00148-w","url":null,"abstract":"","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":"13 1","pages":"143 - 172"},"PeriodicalIF":2.2,"publicationDate":"2020-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1007/s40803-020-00148-w","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"52954182","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-10-12DOI: 10.1007/s40803-020-00147-x
Lieneke Slingenberg
{"title":"Evaluating ‘Life Steeped in Power’: Non-Domination, the Rule of Law and Spatial Restrictions for Irregular Migrants","authors":"Lieneke Slingenberg","doi":"10.1007/s40803-020-00147-x","DOIUrl":"https://doi.org/10.1007/s40803-020-00147-x","url":null,"abstract":"","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":"12 1","pages":"399 - 420"},"PeriodicalIF":2.2,"publicationDate":"2020-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1007/s40803-020-00147-x","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47817821","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-10-07DOI: 10.1007/s40803-020-00146-y
Katarzyna Gajda-Roszczynialska, Krystian Markiewicz
{"title":"Disciplinary Proceedings as an Instrument for Breaking the Rule of Law in Poland","authors":"Katarzyna Gajda-Roszczynialska, Krystian Markiewicz","doi":"10.1007/s40803-020-00146-y","DOIUrl":"https://doi.org/10.1007/s40803-020-00146-y","url":null,"abstract":"","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":"12 1","pages":"451 - 483"},"PeriodicalIF":2.2,"publicationDate":"2020-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1007/s40803-020-00146-y","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48861619","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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