European Law Journal最新文献

This article emphasises the role of criminal law as a strategic form of accountability aimed at safeguarding the EU rule of law, especially when public officials are entrusted with powers that may violate fundamental rights. Abuses committed in the context of border management serve as a case study and a test bench for the more general argument developed in the contribution. It is argued that criminal law—through sanctioning serious abuse of power irrespective of any lucrative intent—contributes to the legitimacy of policies and actions carried out in the name of the union. As impunity gaps may result from the difficult application of domestic law, the article maintains that it is necessary to stigmatise at the union's level such misdeeds that go beyond cases of mere bad policy or ‘maladministration’. It therefore advocates for a directive requiring Member States to criminalise abuse of powers, which are in breach of the rule of law as one of the foundational values enshrined in Article 2 TEU.

In recent years, the European Union Agency for Asylum (EUAA) has been variously involved in the decision-making processes of national authorities deciding on individual asylum applications. In spite of its capability of affecting national asylum procedures and the circumstances in which they are carried out, holding EUAA accountable for its action is prevented by the lack of clear allocations of tasks and the consequent inadequacy of the judicial remedies available. By analysing and comparing the main role played by the Agency in Italy and Malta, this article sheds some light on the different problems of effective judicial protection, which vary and arise differently depending on the tasks performed by EUAA in each national legal system.

Next to the rule of law ‘crises’ within Member States, a new facet of this rule of law crisis is emerging at the external borders of the EU, and sees the EU border agency Frontex as its epicentre. This article illustrates the multiple facets of this crisis which concerns Frontex's functioning and activities, discussing a form of ‘agency capture’ that occurred under the mandate of the former Executive Director and a legal framework ensuring limited monitoring and transparency on operations. Subsequently, the article delves into the constitutional meaning of the rule of law for an agency such as Frontex, both for its significance on relations between authorities and individuals and for the interplay between the rule of law and accountability. The article concludes by calling for a rethinking of the accountability instruments in place, to constrain more effectively the exercise of discretion by agencies.

This article analyses to what extend the rapid growth of Frontex has been accompanied by adequate democratic accountability, whereby the author draws on her experiences as a Member of Parliament. She elaborates on the safeguards in legislation but also on their application in practice, with a focus on the lessons the Parliament learned from its own inquiry on the role of Frontex in pushbacks. The contribution subsequently puts democratic control to a test on two relatively recent tasks of Frontex: return and external cooperation. Regarding the latter, the Parliament's role is highlighted in the negotiations on the Frontex status agreements between the EU and Mauritania/Senegal. The article answers the question of what obstacles must be overcome, through legislative amendments or changes in practice and culture, for the Parliament to exercise its role effectively. Two of these factors are dealt with more prominently: transparency and cooperation with national parliaments.

The essay deals with the enhancement of the legal framework for informal readmissions at internal borders enshrined in the proposal on an amended Schengen Border Code, 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 on fundamental rights. It is argued that the situation resulting from these amendments to the Schengen Border Code should be considered in terms of an impending rule of law crisis at internal borders. [Correction added on 19 July 2024 after first online publication: The Abstract section was previously omitted and has been included in this version.]

Access to justice depends on the ability of the person who is alleging a breach of human rights to establish to a credible extent the facts of the case. Where the individual is unable to provide supporting documentation about the facts, the claims are likely to be found inadmissible, or at least the defendant's lawyers are likely to seek to have the case dismissed on the basis of no case to answer. The transnational nature of state authorities' violence in external border controls (border violence) complicates the ability of victims to establish what has actually happened. Indeed, victims are often on one side of the border and those seeking to assist them on the other, while border police themselves are most reluctant to assist in establishing facts which may result in liability for themselves. This article examines how the EU can establish effective monitoring mechanisms with the competence to investigate allegations of state agencies' border violence building on existing structures.

Following the landmark Urgenda case, European social movements and legal networks have increasingly turned to courts to compel governments to more ambitious mitigation policies. The rapid proliferation of Urgenda-like cases in the most diverse European jurisdictions, makes a compelling case to investigate the motivations and goals animating European climate litigators, especially when facing high legal barriers. While timely legal analyses of high-profile climate litigation abound in the literature, an emerging body of research has focused on the genesis of climate cases , their strategies, and societal impacts. To contribute to this latter thread, the article investigates how legal barriers and considerations, and social movements' motivations and goals, have shaped a diverse range of legal strategies in high-profile climate lawsuits inspired by Urgenda in Europe. The article shows that courts might turn into very different arenas to pursue social change, in which actors elect cautious or daring strategies, depending on the legal system and tradition they refer to, but also their vision and objectives.

The transnational movement of climate activists is resorting increasingly often to acts of civil disobedience. Upon being prosecuted for those acts, climate activists across various jurisdictions are starting to plead the general criminal law defence of necessity. The present article takes the cases in which that defence was pleaded before Swiss courts as a case study to analyse the legal questions raised by the ‘climate necessity defence’, conceptualised as an instance of climate litigation. The article hence situates the Swiss cases within a broader framework, trying to draw interpretive insights from international environmental law and climate science, as well as the transnational case-law on the climate necessity defence. The article's overarching submission is that a broad interpretation of the defence, tending towards accepting its applicability, is more in line with the current legal thinking on environmental matters than a restrictive interpretation rejecting a priori climate necessity claims.