European Law Journal最新文献

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 concept of the international rule of law has developed in a form distinct from, but related to, the rule of law at the domestic (or European) level. This article examines the notion of the international rule of law and then, after explaining the international system of investment protection and its dispute settlement system, sets these against the international rule of law. It concludes by looking at how the European Union's proposal for a Multilateral Investment Court would contribute to augmenting the international rule of law in the field of investment protection.

The Single Supervisory Mechanism (SSM) and Single Resolution Mechanism (SRM) form the Banking Union, which comprises EU authorities (ECB and SRB) and national authorities (NCAs and NRAs) with vast powers. Although crucial for its legitimacy, the Banking Union’s accountability is flawed, and not for the (stereo)typical reasons: accountability is a visible concept in SSM and SRM regulations, and political, administrative and judicial bodies are knowledgeable, engaged and thorough. Rather, this article posits that the SSM and SRM work very well because the legislature focused on practical details such as information flows, planning and continuity and coordination, while there has been no comparable effort to ensure the functioning of accountability tools. The result is a “system” characterised by limited access to crucial information, lack of continuity, and uncoordinated functioning. Changing this should not be hard but requires replacing blanket criticism and stereotypical views with greater attention to detail.

This paper argues that the EU legislative process should be used for taking all decisions at European level that matter, banning the various backroads of European decision-making (competence creep) that are currently legal but not legitimate. This is a silver bullet, resolving at once a range of seemingly disparate but intimately connected legitimacy problems across all areas of EU activity, that ultimately result from an incorrectly calibrated state of transnational constitutional democracy at EU level, where certain aspects are over-constitutionalised while others remain fundamentally under-constitutionalised. This is therefore the key transversal issue that the Conference on the Future of Europe and its ensuing changes should address. The paper makes various concrete proposals to this effect, including for a general legislative competence.