European Law Journal最新文献

The current repurposing of the principle of effet utile of European Union law can be found in the revolutionary steps taken by the Court of Justice in its application of Article 19 TEU. The implicit goal of this recent body of case-law is to equip national judges with the tools to resist domestic judicial reforms that affect their freedom to adjudicate independently. Considering Simmenthal to Unibet, Associação Sindical dos Juízes Portugueses to the latest case-law relating to the organisation of national judiciaries, this article contends that, while the case-law on judicial independence is unprecedented, the Court of Justice has gone to great lengths to ensure that the developments in EU law precipitated by its rulings are grounded in established doctrine. They follow a line of case-law that builds on the principle of primacy of EU law and the obligation to guarantee the effectiveness of EU law in the domestic legal order. Further, the current trajectory is for Article 19 TEU to form the operational basis of review of any judicially minded reforms, whether they be organisational (Article 19 TEU, together with Article 47 CFREU), limit actually or potentially the freedom for dialogue between national courts and the Court of Justice (Article 19 TEU together with Article 267 TFEU and Article 47 CFREU) or where they reduce the protection of the value of the rule of law (Article 19 TEU, Article 2 TEU, Article 49 TEU and Article 47 CFREU), with potential implications for the effective application in EU law of the principle of mutual trust.

The rule-of-law-backsliding in some Member States has subverted not only one of the EU fundamental values but also trust among national authorities when implementing European Arrest Warrants (EAW). However, when evaluating the execution of EAWs issued by countries experiencing rule-of-law crises, the Court of Justice of the EU (CJEU) sought to preserve judicial cooperation and imposed a rather “top-down” view on mutual trust among Member States. This approach seemingly disregards the (dis)trust which has emerged in the EU due to rule-of-law-backsliding and fails to acknowledge the psycho-sociological nature of trust. Drawing on the trust literature, the paper offers novel conceptual elements to rethink mutual trust in the EAW framework. Notably, it critically assesses some of the gaps in the CJEU's interpretation of mutual trust and advances suggestions to embed empirical considerations in the conceptualisation of this principle to bridge the gap between trust in practice and in principle.

The Court of Justice of the European Union (CJEU) is the apex of the EU legal order, and is the supreme arbiter of EU law. For decades, it has delivered judgments, collectively shaping European integration and ‘integration through law’. It has undoubtedly been an authoritative leader in entrenching a European judicial culture, and has benefited from the cardinal principle of judicial independence enshrined in the EU Treaties, which in turn, it has insisted on being upheld as regards national courts. Questions have rarely arisen, however, about judicial independence of the CJEU. The Sharpston Affair of 2020–2021 opened the door to questioning such judicial independence. Is the CJEU at the mercy of the Member States? If so, what are the consequences for the EU legal order? This article reflects on the judicial independence of the CJEU, and offers reflections on how it can be preserved in the future.

The ambition of this article is twofold. First, it argues that, in order to enhance respect for the rule of law by its Member States, the EU has launched a new strategy albeit essentially based on mechanisms which were not specifically designed to protect the rule of law. Second, the article aims to clarify the notion of rule of law resulting from this strategy and to subsequently analyse its consequences. In doing so, this article will thereby demonstrate that the instruments used by the new strategy promote a notion of the EU rule of law which implies a constant arbitrage between the rule of law and the economic objectives pursued by the EU. The risk may be, however, that it would subjugate fundamental values (as defined in Article 2 TEU) to the logic of European economic integration, thus inverting the hierarchy between protection for the rule of law and economic values.

The war in Ukraine triggered significant changes at the European Union level. The speed at which the EU has achieved progress on sanctions, migration and defense is particularly impressive. But the Russian aggression against Ukraine has also served as a pretext for putting aside internal discussions about the rule of law, and provided additional political rationales for inaction against Member State governments responsible for the violation of European values, as well as triggered the deepening of double standards in several fields. Against this background, the paper argues that using this crisis as a justification for further inaction in the context of EU values is not a sustainable course of action. The Union must not delay further the need to act to halt the insidious erosion of democracy and the rule of law within its own borders both at the national and supranational level.

By discussing the experiences of Hungary and Poland, this article aims to demonstrate that there are three layers of the rule of law which are relevant for EU competition law. The first one is external: it relates to the legal system of EU Member States of which competition law is a part. In national legal systems, rule of law safeguards need to be put in place in order to provide an adequate legal environment for the competition law system to perform its role. The second one is internal: it concerns rule of law safeguards in relation to the Member States' competition authorities, in particular their independence. The third one is consequential: the weakening of the rule of law within the external and internal layers affects the proper functioning of the competition law system. As a result, the effectiveness of Articles 101 and 102 TFEU is endangered, and a vicious circle of mutually reinforcing competition law and rule of law crises unfolds.

The present article argues that the EU possesses an arsenal of tools to address dissuasively rule of law problems in the Member States. This shows the double nature of the EU's separation of powers problem. Whereas some states suffer from rule of law decline and a lack of limitation of governmental powers, there is a risk of the crumbling of separation of powers at the EU level, too, where institutions fail to adequately address rule of law violations. Against the EU institutions' lack of forceful action towards rule of law backsliding, domestic courts try to protect judicial independence increasingly via preliminary references. Also, they attempt preventing the proliferation of the consequences of rule of law decline via judicial cooperation in the mutual trust/mutual recognition domain. This article explores to what extent preliminary rulings can make up for the failure to use adequate EU tools of rule of law enforcement.

The last decade has seen increasing demands for greater accountability in digital governance. What, however, does accountability require and what normative goods does it serve? This article develops a general framework for assessing digital accountability focused on four normative goods: openness, non-arbitrariness, effectiveness and publicness. As the article will evidence, claims for digital accountability often refer to deficits relating to one or more of these goods. While scholarly attention has deservedly focused on tying powerful digital actors to rule of law guarantees, the article argues that accountability offers an important normative yardstick to allow citizens to contest digital decisions beyond strict legality. The framework therefore provides a basis for both conceptually disaggregating and normatively forwarding accountability claims in the digital sphere.