Pub Date : 2022-11-28DOI: 10.1017/S1574019622000335
Mathieu Leloup, D. Kosař
It is a well-known maxim in the legal world that hard cases make bad law. Yet, this familiar phrase has long been turned upside down as well, as cases that are – by and large – not too difficult may also lead to judgments that are unconvincingly argued or poorly structured. It is especially disheartening to find such judgments in areas where the stakes are high, and even more so when the judgment has been issued through a more authoritative composition, such as a grand chamber. The Grzęda judgment unfortunately checks all of those boxes. Grzęda v Poland1 was the first Grand Chamber judgment of the European Court of Human Rights on the rule of law crisis in Poland, a topic that has been occupying Europe, together with its two main supranational courts,2 for several years now. The case concerned, in essence, the right of access to a court for Mr Grzęda to
法律界有一句著名的格言，即悬案成恶法。然而，这个熟悉的短语长期以来也被颠倒了，因为总的来说，不太难的案件也可能导致难以令人信服的论点或结构不佳的判决。在事关重大的领域发现这样的判决尤其令人沮丧，当判决是通过一个更权威的组成部分（如大法庭）发布时更是如此。不幸的是，格日达的判决勾选了所有这些方框。GrzÉda v Poland1是欧洲人权法院就波兰的法治危机作出的第一个大分庭判决，这一话题已经占据了欧洲及其两个主要的超国家法院2好几年了。本案实质上涉及GrzÉda先生诉诸法院的权利
{"title":"Sometimes Even Easy Rule of Law Cases Make Bad Law","authors":"Mathieu Leloup, D. Kosař","doi":"10.1017/S1574019622000335","DOIUrl":"https://doi.org/10.1017/S1574019622000335","url":null,"abstract":"It is a well-known maxim in the legal world that hard cases make bad law. Yet, this familiar phrase has long been turned upside down as well, as cases that are – by and large – not too difficult may also lead to judgments that are unconvincingly argued or poorly structured. It is especially disheartening to find such judgments in areas where the stakes are high, and even more so when the judgment has been issued through a more authoritative composition, such as a grand chamber. The Grzęda judgment unfortunately checks all of those boxes. Grzęda v Poland1 was the first Grand Chamber judgment of the European Court of Human Rights on the rule of law crisis in Poland, a topic that has been occupying Europe, together with its two main supranational courts,2 for several years now. The case concerned, in essence, the right of access to a court for Mr Grzęda to","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":null,"pages":null},"PeriodicalIF":2.1,"publicationDate":"2022-11-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48409833","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 : 2022-11-16DOI: 10.1017/S1574019622000323
Antonio‐Martín Porras‐Gómez
2021–2027 Recovery Plan for Europe and its Recovery and Resilience Facility have altered elements of the EU institutional equilibrium – constitutional consistency of the ensuing design – implications for the constitutional evolution of the EU – analysis of the expenditure of the Recovery and Resilience Facility – new fiscal economic stabilisation function – conditionality attached to the funds – strengthened role of the Council – nuanced multi-level financial governance – the fiscal stabilisation function enshrines a potential form of constitutional mutation – the new institutional framework for the expenditure of the EU funds seems to lean towards an intergovernmental preeminence
{"title":"The EU Recovery Instrument and the Constitutional Implications of its Expenditure","authors":"Antonio‐Martín Porras‐Gómez","doi":"10.1017/S1574019622000323","DOIUrl":"https://doi.org/10.1017/S1574019622000323","url":null,"abstract":"2021–2027 Recovery Plan for Europe and its Recovery and Resilience Facility have altered elements of the EU institutional equilibrium – constitutional consistency of the ensuing design – implications for the constitutional evolution of the EU – analysis of the expenditure of the Recovery and Resilience Facility – new fiscal economic stabilisation function – conditionality attached to the funds – strengthened role of the Council – nuanced multi-level financial governance – the fiscal stabilisation function enshrines a potential form of constitutional mutation – the new institutional framework for the expenditure of the EU funds seems to lean towards an intergovernmental preeminence","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":null,"pages":null},"PeriodicalIF":2.1,"publicationDate":"2022-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44353473","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 : 2022-11-11DOI: 10.1017/S1574019622000311
H. Hogan
In September 2020, ahead of a trip to Dublin, the EU Economy Commissioner, Paoli Gentiloni, described the imposition of austerity in Ireland as a ‘mistake’.1 This remarkable admission caused barely a ripple, either in Ireland or across the European Union. There were no public protests, no outcry from political parties, no complaints from the media or civil society groups. No one seemed to want to know why, less than a decade before, the public had been unequivocally informed that there was no alternative to the punitive cutbacks in state spending that had caused widespread devastation. Perhaps drawing attention to Commissioner Gentiloni’s remarks would be to invite greater scrutiny into the role of political parties, journalists, economists and others who had perpetuated the narrative that austerity was inevitable, that resistance was futile, and helped to legitimise the choices made by political actors during that era. Unravelling the dominant narrative around the Euro Crisis would be to expose those who continue to defend their legacy during austerity years as one in which they, too, had no alternative.
{"title":"Confronting Emergency Politics","authors":"H. Hogan","doi":"10.1017/S1574019622000311","DOIUrl":"https://doi.org/10.1017/S1574019622000311","url":null,"abstract":"In September 2020, ahead of a trip to Dublin, the EU Economy Commissioner, Paoli Gentiloni, described the imposition of austerity in Ireland as a ‘mistake’.1 This remarkable admission caused barely a ripple, either in Ireland or across the European Union. There were no public protests, no outcry from political parties, no complaints from the media or civil society groups. No one seemed to want to know why, less than a decade before, the public had been unequivocally informed that there was no alternative to the punitive cutbacks in state spending that had caused widespread devastation. Perhaps drawing attention to Commissioner Gentiloni’s remarks would be to invite greater scrutiny into the role of political parties, journalists, economists and others who had perpetuated the narrative that austerity was inevitable, that resistance was futile, and helped to legitimise the choices made by political actors during that era. Unravelling the dominant narrative around the Euro Crisis would be to expose those who continue to defend their legacy during austerity years as one in which they, too, had no alternative.","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":null,"pages":null},"PeriodicalIF":2.1,"publicationDate":"2022-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49223787","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 : 2022-09-01DOI: 10.1017/S1574019622000268
Angela Bourne
Problems with militant democracy and democratic defence approaches – a new typology of initiatives opposing populist parties: democratic defence as ‘normal politics’ – populist opponents: public authorities, parties and civil society – tolerant and intolerant modes of engagement with populists – intolerant initiatives opposing populist parties – rights restrictions by public authorities – ostracism by political parties – coercive confrontation by civil society actors – tolerant initiatives opposing populist parties – ‘ordinary’ legal controls and pedagogy by public authorities – forbearance by political parties – adversarialism by civil society actors
{"title":"From Militant Democracy to Normal Politics? How European Democracies Respond to Populist Parties","authors":"Angela Bourne","doi":"10.1017/S1574019622000268","DOIUrl":"https://doi.org/10.1017/S1574019622000268","url":null,"abstract":"Problems with militant democracy and democratic defence approaches – a new typology of initiatives opposing populist parties: democratic defence as ‘normal politics’ – populist opponents: public authorities, parties and civil society – tolerant and intolerant modes of engagement with populists – intolerant initiatives opposing populist parties – rights restrictions by public authorities – ostracism by political parties – coercive confrontation by civil society actors – tolerant initiatives opposing populist parties – ‘ordinary’ legal controls and pedagogy by public authorities – forbearance by political parties – adversarialism by civil society actors","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":null,"pages":null},"PeriodicalIF":2.1,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42468271","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 : 2022-09-01DOI: 10.1017/s1574019622000360
{"title":"ECL volume 18 issue 3 Cover and Front matter","authors":"","doi":"10.1017/s1574019622000360","DOIUrl":"https://doi.org/10.1017/s1574019622000360","url":null,"abstract":"","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":null,"pages":null},"PeriodicalIF":2.1,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46404069","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 : 2022-09-01DOI: 10.1017/S1574019622000293
François-Xavier Millet
What is a good case? Although the question may sound bizarre to the ear of most academics, who are primarily interested in what a good (or a bad) judgment is, judges are probably more familiar with it. It is indeed more usual for those on the bench to have a discussion on whether the cases upon which they are asked to adjudicate are suitable for a reconsideration of previous judgments and whether such reconsideration should take the form of a mere clarification, a revisiting, an overhauling or even an overruling. Making such a decision is obviously not easy. It depends on a mix of endogenous and exogenous factors: on one side, the facts of the case, its legal context, the type of legal issues at stake, the capacity of the bench to come up with a new, workable and assumingly better solution; on the other side, the timing, the political and judicial context, the embeddedness or the popular support of a long-standing solution. Against that background, it is rather clear that the case in Consorzio Italian Management1 was not deemed by the Court of Justice of the European Union (referred to throughout as the Court of Justice or simply the Court) to constitute
{"title":"Cilfit Still Fits","authors":"François-Xavier Millet","doi":"10.1017/S1574019622000293","DOIUrl":"https://doi.org/10.1017/S1574019622000293","url":null,"abstract":"What is a good case? Although the question may sound bizarre to the ear of most academics, who are primarily interested in what a good (or a bad) judgment is, judges are probably more familiar with it. It is indeed more usual for those on the bench to have a discussion on whether the cases upon which they are asked to adjudicate are suitable for a reconsideration of previous judgments and whether such reconsideration should take the form of a mere clarification, a revisiting, an overhauling or even an overruling. Making such a decision is obviously not easy. It depends on a mix of endogenous and exogenous factors: on one side, the facts of the case, its legal context, the type of legal issues at stake, the capacity of the bench to come up with a new, workable and assumingly better solution; on the other side, the timing, the political and judicial context, the embeddedness or the popular support of a long-standing solution. Against that background, it is rather clear that the case in Consorzio Italian Management1 was not deemed by the Court of Justice of the European Union (referred to throughout as the Court of Justice or simply the Court) to constitute","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":null,"pages":null},"PeriodicalIF":2.1,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42725077","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 : 2022-09-01DOI: 10.1017/S1574019622000244
Vlad Perju
The first two decades of the twenty-first century have ushered upon Europe a seemingly unending string of existential crises. From financial meltdowns to mass migration, from a pandemic and the impending climate catastrophe to the war in Ukraine, the EU has been facing pressures at a pace and on a scale far beyond what it had experienced during its not-entirely-uneventful past. The typical observer of European integration will likely conclude that, despite missteps and failures, the EU has managed not to succumb under the weight of these challenges. A sense of pragmatism and possibility, born in part out of pure despair, has driven its more successful policies and legal innovations. A modicum of institutional imagination was on display during the financial crisis when new mechanisms were created outside the Treaty’s formal architecture but not entirely beyond its constitutional purview. While the EU asylum system tragically collapsed during the 2015 refugee crisis, enough of a basic framework remained in place to handle, a few years later, the influx of Ukrainians fleeing their Golgotha. During the sad, protracted Brexit episode, the EU withstood London’s fraught attempts to break the united front of its member states. Nor have the EU’s institutions failed, despite some heart-stopping missteps, the task of setting up relief during the Covid public health emergency. The voice from Luxembourg, however tardy and dim, could be heard as the EU’s eastern lands saw
{"title":"The Politics of Form in European Constitutionalism","authors":"Vlad Perju","doi":"10.1017/S1574019622000244","DOIUrl":"https://doi.org/10.1017/S1574019622000244","url":null,"abstract":"The first two decades of the twenty-first century have ushered upon Europe a seemingly unending string of existential crises. From financial meltdowns to mass migration, from a pandemic and the impending climate catastrophe to the war in Ukraine, the EU has been facing pressures at a pace and on a scale far beyond what it had experienced during its not-entirely-uneventful past. The typical observer of European integration will likely conclude that, despite missteps and failures, the EU has managed not to succumb under the weight of these challenges. A sense of pragmatism and possibility, born in part out of pure despair, has driven its more successful policies and legal innovations. A modicum of institutional imagination was on display during the financial crisis when new mechanisms were created outside the Treaty’s formal architecture but not entirely beyond its constitutional purview. While the EU asylum system tragically collapsed during the 2015 refugee crisis, enough of a basic framework remained in place to handle, a few years later, the influx of Ukrainians fleeing their Golgotha. During the sad, protracted Brexit episode, the EU withstood London’s fraught attempts to break the united front of its member states. Nor have the EU’s institutions failed, despite some heart-stopping missteps, the task of setting up relief during the Covid public health emergency. The voice from Luxembourg, however tardy and dim, could be heard as the EU’s eastern lands saw","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":null,"pages":null},"PeriodicalIF":2.1,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47142656","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 : 2022-09-01DOI: 10.1017/S1574019622000281
Angela Bourne, B. Rijpkema
Introduction to the Special Section – ECPR 2021 Joint Sessions ‘Militant Democracy: New Challengers and Challenges’ – metamorphoses of a Cold War concept – new challengers intensify challenges for militant democracy – evaluation of the effects and effectiveness of militant democracy – new conceptual and normative approaches broaden concept of militant democracy – risk of ‘concept stretching’ – minimal common recognisable core
{"title":"Militant Democracy, Populism, Illiberalism: New Challengers and New Challenges","authors":"Angela Bourne, B. Rijpkema","doi":"10.1017/S1574019622000281","DOIUrl":"https://doi.org/10.1017/S1574019622000281","url":null,"abstract":"Introduction to the Special Section – ECPR 2021 Joint Sessions ‘Militant Democracy: New Challengers and Challenges’ – metamorphoses of a Cold War concept – new challengers intensify challenges for militant democracy – evaluation of the effects and effectiveness of militant democracy – new conceptual and normative approaches broaden concept of militant democracy – risk of ‘concept stretching’ – minimal common recognisable core","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":null,"pages":null},"PeriodicalIF":2.1,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47349713","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 : 2022-09-01DOI: 10.1017/S157401962200027X
T. V. D. van der Meer, B. Rijpkema
Impact of electoral system design on democratic self-defence – ‘informal’ (content neutral) militant democracy instrument – the minority to majority effect (assigning majoritarian power to political minorities) increases risk of democratic backsliding – minority to majority goes beyond conventional systemic dichotomies as majoritarianism versus proportionalism: outcome of diverse system features – resources and incentives as explanatory mechanisms – preliminary case studies – the limitations of institutional engineering
{"title":"Militant Democracy and the Minority to Majority Effect: on the Importance of Electoral System Design","authors":"T. V. D. van der Meer, B. Rijpkema","doi":"10.1017/S157401962200027X","DOIUrl":"https://doi.org/10.1017/S157401962200027X","url":null,"abstract":"Impact of electoral system design on democratic self-defence – ‘informal’ (content neutral) militant democracy instrument – the minority to majority effect (assigning majoritarian power to political minorities) increases risk of democratic backsliding – minority to majority goes beyond conventional systemic dichotomies as majoritarianism versus proportionalism: outcome of diverse system features – resources and incentives as explanatory mechanisms – preliminary case studies – the limitations of institutional engineering","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":null,"pages":null},"PeriodicalIF":2.1,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42170514","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 : 2022-09-01DOI: 10.1017/S1574019622000232
T. Olsen
Political parties are important for the functioning and consolidation of democracy – citizens should defend their rights against parties with agendas that conflict with the principles of liberal democracy – the types of actions that are permissible for citizens depends on the conditions of political legitimacy and the closeness to power of non-liberal-democratic parties – theories of both (un-)civil disobedience and violent self-defence are relevant here
{"title":"Citizens’ Actions against Non-liberal-democratic Parties","authors":"T. Olsen","doi":"10.1017/S1574019622000232","DOIUrl":"https://doi.org/10.1017/S1574019622000232","url":null,"abstract":"Political parties are important for the functioning and consolidation of democracy – citizens should defend their rights against parties with agendas that conflict with the principles of liberal democracy – the types of actions that are permissible for citizens depends on the conditions of political legitimacy and the closeness to power of non-liberal-democratic parties – theories of both (un-)civil disobedience and violent self-defence are relevant here","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":null,"pages":null},"PeriodicalIF":2.1,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41682981","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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