Pub Date : 2022-09-01DOI: 10.1017/S1574019622000256
M. Steuer
The unsuccessful petition to ban Slovakia’s extreme right parliamentary party – the value of focusing on judicial craft for studies of militant democracy and courts – statutory frameworks as intervening variables and their overview in Czechia, Hungary and Slovakia – key components of judicial craft endogenous to courts: consistency, legal reasoning skills, problem-solving abilities, creativity – the cases of Workers’ Party (Czechia), Slovak Togetherness–National Party (Slovakia), People’s Party Our Slovakia (Slovakia) and Hungarian Guard (Hungary) – the decisions of the Czech Supreme Administrative Court (2009) and the Slovak Supreme Court (2019) – re-evaluating what counts as ‘success’ with party bans: judicial craft affects the effectiveness of the statutory framework for party bans – a court-centric perspective on militant democracy when courts face illiberal assaults
{"title":"The Role of Judicial Craft in Improving Democracy’s Resilience: The Case of Party Bans in Czechia, Hungary and Slovakia","authors":"M. Steuer","doi":"10.1017/S1574019622000256","DOIUrl":"https://doi.org/10.1017/S1574019622000256","url":null,"abstract":"The unsuccessful petition to ban Slovakia’s extreme right parliamentary party – the value of focusing on judicial craft for studies of militant democracy and courts – statutory frameworks as intervening variables and their overview in Czechia, Hungary and Slovakia – key components of judicial craft endogenous to courts: consistency, legal reasoning skills, problem-solving abilities, creativity – the cases of Workers’ Party (Czechia), Slovak Togetherness–National Party (Slovakia), People’s Party Our Slovakia (Slovakia) and Hungarian Guard (Hungary) – the decisions of the Czech Supreme Administrative Court (2009) and the Slovak Supreme Court (2019) – re-evaluating what counts as ‘success’ with party bans: judicial craft affects the effectiveness of the statutory framework for party bans – a court-centric perspective on militant democracy when courts face illiberal assaults","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":"47058925","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/s1574019622000372
{"title":"ECL volume 18 issue 3 Cover and Back matter","authors":"","doi":"10.1017/s1574019622000372","DOIUrl":"https://doi.org/10.1017/s1574019622000372","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":"41417456","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/S1574019622000220
F. Feisel
EU militant democracy – an approach beyond member states’ democratic backsliding – the EU as a first case of transnational democratic self-defence – the EU’s democratic legitimacy – national and supranational threats to EU democracy – instruments and enforcement of EU militant democracy – comparison to national militant democracy – problems of effectiveness
{"title":"Thinking EU Militant Democracy beyond the Challenge of Backsliding Member States","authors":"F. Feisel","doi":"10.1017/S1574019622000220","DOIUrl":"https://doi.org/10.1017/S1574019622000220","url":null,"abstract":"EU militant democracy – an approach beyond member states’ democratic backsliding – the EU as a first case of transnational democratic self-defence – the EU’s democratic legitimacy – national and supranational threats to EU democracy – instruments and enforcement of EU militant democracy – comparison to national militant democracy – problems of effectiveness","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":"46056847","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/S1574019622000219
Katarina Hyltén-Cavallius
To reside, to integrate, to naturalise. A Union citizen who, in accordance with the spirit of EU law on free movement, has taken firm steps towards achieving the ‘deepest form of integration’ in a host member state, i.e. naturalisation, will not be completely abandoned by EU law during the possible perils of that process.1 This is the main message of the Court of Justice’s judgment in Case C-118/20, JY, concerning member state discretion in the area of nationality law.2 The case resonates with its predecessors, Rottmann and Tjebbes; all three cases deal with member state obligations arising from Article 20 TFEU regarding an individual’s de jure loss of Union citizenship.3 JY can also be linked to the free movement case of Lounes, concerning a Union citizen who naturalised in the host member state, which, under national practices, led to the loss of the EU free movement lawbased residence rights in the host member state for her third-country national
{"title":"Stateless Union Citizens in a Nationality Conundrum: EU Law Safeguarding Against Broken Promises","authors":"Katarina Hyltén-Cavallius","doi":"10.1017/S1574019622000219","DOIUrl":"https://doi.org/10.1017/S1574019622000219","url":null,"abstract":"To reside, to integrate, to naturalise. A Union citizen who, in accordance with the spirit of EU law on free movement, has taken firm steps towards achieving the ‘deepest form of integration’ in a host member state, i.e. naturalisation, will not be completely abandoned by EU law during the possible perils of that process.1 This is the main message of the Court of Justice’s judgment in Case C-118/20, JY, concerning member state discretion in the area of nationality law.2 The case resonates with its predecessors, Rottmann and Tjebbes; all three cases deal with member state obligations arising from Article 20 TFEU regarding an individual’s de jure loss of Union citizenship.3 JY can also be linked to the free movement case of Lounes, concerning a Union citizen who naturalised in the host member state, which, under national practices, led to the loss of the EU free movement lawbased residence rights in the host member state for her third-country national","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":"44869159","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/S157401962200030X
Franziska Brandmann
Democratic defence – Germany’s militant democracy – militant measures against radical-right parties – targeted organisations in militant democracies not passive recipients of militant measures – actions taken by targeted organisations – parties engaging in frontstage moderation to shield the party from militant measures – alternative for Germany shielding the party from militant measures by the Office for the Protection of the Constitution
{"title":"Radical-right Parties in Militant Democracies: How the Alternative for Germany’s Strategic Frontstage Moderation Undermines Militant Measures","authors":"Franziska Brandmann","doi":"10.1017/S157401962200030X","DOIUrl":"https://doi.org/10.1017/S157401962200030X","url":null,"abstract":"Democratic defence – Germany’s militant democracy – militant measures against radical-right parties – targeted organisations in militant democracies not passive recipients of militant measures – actions taken by targeted organisations – parties engaging in frontstage moderation to shield the party from militant measures – alternative for Germany shielding the party from militant measures by the Office for the Protection of the Constitution","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":"43057826","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 : 2022-06-01DOI: 10.1017/S157401962200013X
M. Chamon, Nathan de Arriba-Sellier
Before FBF was decided by the Court of Justice, it was described as a golden opportunity to transform a ‘wind of change’ into a ‘perfect storm’. In this metaphor, the wind represented different national legal systems becoming increasingly receptive to the judicial review of soft law, while the perfect storm would be the Court of Justice revisiting its own restrictive approach towards the justiciability of soft law.1
{"title":"FBF: On the Justiciability of Soft Law and Broadening the Discretion of EU Agencies","authors":"M. Chamon, Nathan de Arriba-Sellier","doi":"10.1017/S157401962200013X","DOIUrl":"https://doi.org/10.1017/S157401962200013X","url":null,"abstract":"Before FBF was decided by the Court of Justice, it was described as a golden opportunity to transform a ‘wind of change’ into a ‘perfect storm’. In this metaphor, the wind represented different national legal systems becoming increasingly receptive to the judicial review of soft law, while the perfect storm would be the Court of Justice revisiting its own restrictive approach towards the justiciability of soft law.1","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":null,"pages":null},"PeriodicalIF":2.1,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43007408","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 : 2022-06-01DOI: 10.1017/S1574019622000128
M. Fisicaro
Introduction On 16 February 2022, the Court of Justice fully dismissed the annulment actions lodged by Hungary and Poland against Regulation 2020/2092,1 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.2 The judgments were long awaited by those following with concern the process of rule of law backsliding unfolding in some EU member states,3 and even more so in light of the much-discussed compromise reached at the European Council’s meeting of 10-11 December 2020.4 As is known, in the attempt to overcome the Hungarian and Polish ‘veto’ threatening the approval of the 2021-2027 Multiannual Financial Framework and of the reform of the Own Resources Decision needed to greenlight the ‘Next Generation EU’ package, the European Council agreed on a de facto suspension of the conditionality mechanism due to be finally approved a few days later, on 16 December 2020. In what is definitely the most controversial part of the Conclusions, the European Council stated that the mechanism should not be enforced before the adoption of guidelines on its application by the Commission and that, should an action of annulment be introduced, such guidelines should be finalised only after the Court of Justice’s ruling on the matter.5 With the Commission faithfully abiding by the indications of the European Council, the delivery of the two judgments – whose decisum was actually anything but surprising – became the crucial piece missing for making the enforcement of the Regulation a concrete reality. In a rare ‘closing of ranks’ in defence of the fundamental values underpinning the European integration process,8 an extraordinary number of ten member states intervened in support of the Council and the Parliament.9 The latter, which figures among the most critical voices on the Commission’s inaction,10 held also a rather unusual debate on the implications of the judgments during the plenary session of 16 February and adopted a resolution that, once again, spells out a firm j’accuse towards the Commission and the Council.11 Finally, as a side note, on the very day of the delivery of the two judgments, the (unlawfully composed)12 Polish Constitutional Tribunal held a public hearing on Case K 1/22, which originates from the application of the Prosecutor General – who is also, by the way, the Polish Minister of Justice – asking whether Article 322(1)(a) TFEU is compatible with the Polish Constitution to the extent that it provides the legal basis of Regulation 2020/2092.13 Besides their political significance, the two judgments touch upon a number of extremely salient legal issues, including the nature and content of the values enshrined in Article 2 TEU, the limits of the ‘national identity’ clause of Article 4(2) TEU, as well as the transparency of the legislative process and the access to opinions of the EU institutions’ legal services, whose influence on EU policy-making
{"title":"Protection of the Rule of Law and ‘Competence Creep’ via the Budget: The Court of Justice on the Legality of the Conditionality Regulation","authors":"M. Fisicaro","doi":"10.1017/S1574019622000128","DOIUrl":"https://doi.org/10.1017/S1574019622000128","url":null,"abstract":"Introduction On 16 February 2022, the Court of Justice fully dismissed the annulment actions lodged by Hungary and Poland against Regulation 2020/2092,1 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.2 The judgments were long awaited by those following with concern the process of rule of law backsliding unfolding in some EU member states,3 and even more so in light of the much-discussed compromise reached at the European Council’s meeting of 10-11 December 2020.4 As is known, in the attempt to overcome the Hungarian and Polish ‘veto’ threatening the approval of the 2021-2027 Multiannual Financial Framework and of the reform of the Own Resources Decision needed to greenlight the ‘Next Generation EU’ package, the European Council agreed on a de facto suspension of the conditionality mechanism due to be finally approved a few days later, on 16 December 2020. In what is definitely the most controversial part of the Conclusions, the European Council stated that the mechanism should not be enforced before the adoption of guidelines on its application by the Commission and that, should an action of annulment be introduced, such guidelines should be finalised only after the Court of Justice’s ruling on the matter.5 With the Commission faithfully abiding by the indications of the European Council, the delivery of the two judgments – whose decisum was actually anything but surprising – became the crucial piece missing for making the enforcement of the Regulation a concrete reality. In a rare ‘closing of ranks’ in defence of the fundamental values underpinning the European integration process,8 an extraordinary number of ten member states intervened in support of the Council and the Parliament.9 The latter, which figures among the most critical voices on the Commission’s inaction,10 held also a rather unusual debate on the implications of the judgments during the plenary session of 16 February and adopted a resolution that, once again, spells out a firm j’accuse towards the Commission and the Council.11 Finally, as a side note, on the very day of the delivery of the two judgments, the (unlawfully composed)12 Polish Constitutional Tribunal held a public hearing on Case K 1/22, which originates from the application of the Prosecutor General – who is also, by the way, the Polish Minister of Justice – asking whether Article 322(1)(a) TFEU is compatible with the Polish Constitution to the extent that it provides the legal basis of Regulation 2020/2092.13 Besides their political significance, the two judgments touch upon a number of extremely salient legal issues, including the nature and content of the values enshrined in Article 2 TEU, the limits of the ‘national identity’ clause of Article 4(2) TEU, as well as the transparency of the legislative process and the access to opinions of the EU institutions’ legal services, whose influence on EU policy-making","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":null,"pages":null},"PeriodicalIF":2.1,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49099066","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 : 2022-06-01DOI: 10.1017/S1574019622000141
Filip Horák
A functional universalistic approach to human dignity in legal argumentation – a theory which applies three variables to define the functions of dignity: content width, argumentative power, and applicability before courts – relative individual right, objective value and source of human rights as legitimate basic functions – the problematic nature of hybrid functions created by blending the basic functions – a set of principles to avoid hybrid functions and minimise the problems caused by them – qualitative analysis of several examples of judgments by supreme, constitutional and international courts to support the theory
{"title":"Human Dignity in Legal Argumentation: A Functional Perspective","authors":"Filip Horák","doi":"10.1017/S1574019622000141","DOIUrl":"https://doi.org/10.1017/S1574019622000141","url":null,"abstract":"A functional universalistic approach to human dignity in legal argumentation – a theory which applies three variables to define the functions of dignity: content width, argumentative power, and applicability before courts – relative individual right, objective value and source of human rights as legitimate basic functions – the problematic nature of hybrid functions created by blending the basic functions – a set of principles to avoid hybrid functions and minimise the problems caused by them – qualitative analysis of several examples of judgments by supreme, constitutional and international courts to support the theory","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":null,"pages":null},"PeriodicalIF":2.1,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46562647","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 : 2022-06-01DOI: 10.1017/S1574019622000153
Eduardo Gill-Pedro
Granting fundamental rights to companies – nature of freedom as a fundamental value in EU law – intrinsic value of protecting freedom of individuals and instrumental value of protecting freedom of companies – Dan Cohen and rationale for protecting rights of organisations – transformation of the right to conduct business in EU law in Alemo Herron and subsequent case law – from right to do that which the law allows to right to be free from constraints – whose freedom is at stake when a company’s right to conduct business is protected – theories of the firm – company as a nexus of contracts or as a subject of rights on its own behalf – company as a locus of authority and as a jurisdiction – protecting freedom of company to restrict freedom of human beings – ideological underpinnings of extensive protection of freedom of companies – dehumanisation of fundamental rights.
{"title":"Whose Freedom is it Anyway? The Fundamental Rights of Companies in EU Law","authors":"Eduardo Gill-Pedro","doi":"10.1017/S1574019622000153","DOIUrl":"https://doi.org/10.1017/S1574019622000153","url":null,"abstract":"Granting fundamental rights to companies – nature of freedom as a fundamental value in EU law – intrinsic value of protecting freedom of individuals and instrumental value of protecting freedom of companies – Dan Cohen and rationale for protecting rights of organisations – transformation of the right to conduct business in EU law in Alemo Herron and subsequent case law – from right to do that which the law allows to right to be free from constraints – whose freedom is at stake when a company’s right to conduct business is protected – theories of the firm – company as a nexus of contracts or as a subject of rights on its own behalf – company as a locus of authority and as a jurisdiction – protecting freedom of company to restrict freedom of human beings – ideological underpinnings of extensive protection of freedom of companies – dehumanisation of fundamental rights.","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":null,"pages":null},"PeriodicalIF":2.1,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49030387","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 : 2022-06-01DOI: 10.1017/s1574019622000207
{"title":"ECL volume 18 issue 2 Cover and Back matter","authors":"","doi":"10.1017/s1574019622000207","DOIUrl":"https://doi.org/10.1017/s1574019622000207","url":null,"abstract":"","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":null,"pages":null},"PeriodicalIF":2.1,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44506183","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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