European Law Journal最新文献

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.

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.