European Law Journal最新文献

This article analyses how the automation of border control challenges the rule of law requirement on sufficient limits to discretion by using the idea expressed by the Court of Justice of the European Union (CJEU) non-delegation doctrine that it is possible to make a clear distinction between technically complex assessments and political discretion. To illustrate these challenges, the article uses the examples of the European Travel Information and Authorisation System (ETIAS) and the conferral of discretionary powers to EU agency Frontex to establish pre-determined risk criteria. The article argues that not recognising the inherent political aspects of exercising technical powers leads to insufficient limits to discretionary powers in the context of automated risk assessments. Beyond raising serious rule of law concerns of arbitrary exercise of power, the idea that technical assessments and policy choices can be clearly separated enables ‘algorithmic discretion’ as a new form of administrative discretion.

In response to widespread human rights violations involving the European Border and Coast Guard Agency (Frontex), multiple accountability mechanisms were activated, leading to the resignation of the agency's executive director. Does this mean the current framework can ensure Frontex's overall accountability? Playing with IT metaphors, this article scrutinises Frontex's accountability framework as a whole. It explores a holistic understanding of accountability, which includes judicial and non-judicial (administrative, democratic, social) accountability mechanisms that can together safeguard the Rule of Law. The article highlights the fragmented and ineffective current accountability framework. It challenges traditional accountability notions and suggests a ‘system reset’, introducing the concept of systemic accountability. Systemic accountability addresses systemic issues underlying consistent rights violations through focused structural solutions. As an accountability model, it can be applied further than Frontex operations to the complex realities of shared administration at external borders, where multiple actors and obscured accountabilities lead to systemic violations.

The essay deals with the enhancement of the legal framework for informal readmissions at internal borders enshrined in the former Schengen Border Code (now Union Code on the rules governing the movement of persons across borders), which in turn requires enhancement of bilateral police cooperation. It focuses on the impact of the new rules on the prohibition on police controls equivalent to border checks to highlight that the case-law of the Court of Justice on the matter creates a huge grey area which is critical for the ideal of a border-check-free Union. Increased use of video surveillance and other technologies also faces the legal bottleneck of prohibition on police controls having equivalent effects to border checks, as well as raising serious concerns about fundamental rights. It is argued that the situation resulting from these amendments to the former Schengen Border Code should be considered in terms of an impending rule of law crisis at internal borders.

While Artificial Intelligence (AI) is becoming a key element in supporting the migration and border management policies of the European Union and its Member States, so far, AI-based migration technologies have been tested and implemented with limited public scrutiny. In this context, the EU AI Act holds the promise of a regulation in line with the protection of fundamental rights and the rule of law. While Member States are bound by existing EU legislation when deploying AI, the Act represents the first attempt to regulate this technology in migration and border management. This paper examines the evolution of the Act throughout the negotiation process and its potential to hold actors involved in AI-driven migration technology accountable, thereby promoting the rule of law. It argues that while the regulation offers promising and important elements, a closer examination brings to light important concerns about its ability to ensure accountability.

The hotspot approach used to contain asylum seekers at the borders of Europe has been heavily criticized for deplorable conditions and multiple fundamental rights violations. This article dives into an underexplored issue in the hotspots, namely its datafication. It explores the question of the protection of personal data, and analyses whether the supervisory arrangements in place are sufficient to ensure the protection of personal data of individuals at the borders, or whether, as the current European Data Protection Supervisor states it, data protection is too often suspended at European Union borders. While supervision is in place to monitor the hotspots, this contribution shows that it remains limited and that many blind spots exist that fully escape any supervision. These emerge, for example by reasons of the complex legal framework of the hotspots, or of the informal nature of the exchanges of data.

Mutual trust that is the bedrock of intra-EU cooperation should not be equated to ‘blind trust’ when a Member State is under the ‘surveillance’ procedure foreseen by Article 7(1) of the Treaty on European Union. In this perspective it would be risky for the European Council to recognise a key coordinating role, as is the case when holding the Council Presidency, to a Member State under Article 7.1 TUE. It would then be sensible for the Council to modify its 2016 Decision, and delay the Hungarian Presidency of the Council of the European Union to such a time when the Article 7(1) TEU surveillance procedure will have been successfully concluded.

The principle of effective judicial protection is a cornerstone of EU law which is predicated on the existence of a complete system of judicial remedies. However, with the expansion of the operational powers of the European Border and Coast Guard Agency (Frontex) and the consequent fundamental rights concerns, this article challenges the assumption that the EU is based on such a complete system of remedies. By critically reviewing the judicial actions against Frontex before the Court of Justice, this article illustrates the limits to effective judicial protection for migrants attempting to enter the EU. It will be argued that the lack of an effective remedy suggests a violation of the right to good administration. Therefore, this article explores the potential of the bond between judicial protection and good administration to fix the loopholes within the emerging system of shared administration, in which EU agencies progressively interact with national competent authorities.

With the discharge procedure of the 2020 budget of Frontex, the European Parliament played a primary role in addressing the policy drift of the most important decentralised agency operating in the area of freedom, security and justice (AFSJ). This case demonstrates the potential of the discharge tool in steering the performance of decentralised agencies at a time when the mandate of these agencies within the EU executive order is affected by a structural accountability deficit. Confronted with a Rule of Law crisis in the AFSJ, the European Parliament has effectively leveraged the evolving normative framework to imbue the discharge process with significant political oversight functions. In this article, I aim to show that a constitutional dimension of the discharge procedure can be conceptualised, enabling the European Parliament to reaffirm its political account-holder role as derived from the Treaties and ensure agencies' compliance with their EU-oriented mandate.

This contribution takes issue with what I have called the ‘constitutional dismantling’ of external migration policy through the tactical informalisation of readmission cooperation. It maps out the strategic use of soft law mediating the tacit approval or active involvement of the main EU actors. The strategy is supposed to enhance policy outcomes but is at the expense of foundational principles. The principles of conferral, institutional balance, and sincere/loyal cooperation impose key constraints on EU/Member State action that the choice for soft law ignores. My main contention is that this is not an unintended consequence, but a deliberate or, at least, tolerated result, amounting to a form of ‘concerted dis-integration’ pursued by the very actors supposed to guard the EU integration project in line with Treaty provisions. The approach denotes the instrumentalisation of legal mechanisms for the advancement of policy objectives, embracing a regulation-without-legitimation paradigm that unravels the EU’s constitutional framework.