European Law Journal最新文献

This contribution assesses representation in the EU through the lens of demoicracy, focusing on how the demos and the demoi are represented and how this interacts with the executive-legislative balance and party politics. As the Belgian polity is a living case for the EU but often as flawed as the latter when it comes to democratic standards of representation, we examine whether and how reform proposals for the Belgian polity can inspire future reforms at EU level. We demonstrate that the direction demoicracies should head for when strengthening democratic representation should include a balanced representation of the demos and demoi via a bicameral system, a polity-wide constituency to represent the demos, involvement of the legislatives of the constituent units at the encompassing level, and a specific role for polity-wide parties.

The article holistically discusses the alleged new EU return system which the Pact on Migration and Asylum heralds. Absent any impact assessment accompanying the key draft legislative measures and any implementation report regarding the existing legislative instruments following the 2015 refugee-protection crisis, it provides both a substantial and a formal assessment of the proposed reform. A substantial analysis reveals that the two main objectives of the EU return system, namely effectiveness and human rights compliance, are pitted against each other to the detriment of human rights compliance and that effectiveness is questionably narrowed to return rate. Looking at the key components of the return system under the Pact and taking into account past interinstitutional negotiations in the field, it shows that the draft proposals are not conducive to fulfilling these objectives. From a formal standpoint, the article questions the weight of the Commission's proposals on the future outcome of the current negotiations based on their lack of legitimacy.

In a European Union of states and citizens, the budget of the Union continues to function principally as a budget between states. Despite various attempts over the decades to introduce reforms aimed at strengthening the connection with citizens, the budgetary system has shown itself to be resistant to change. However, the landmark agreements of 2020 on the new multiannual financial framework (MFF) 2021–2027, own resources and recovery plan (Next Generation EU [NGEU]) packages potentially open up new possibilities to move beyond the logic of juste retour and promote a more positive vision of European budgetary integration, founded on solidarity between states and citizens and coordinated action at all levels of governance. Building on the developments of 2020, this contribution assesses how the Conference on the Future of Europe might explore options to further strengthen the profile of the Union budget as a ‘budget of citizens’, as well as a ‘budget of states’.

Discussions pertaining to advancing strategic policies and democracy in the EU cannot afford to disregard a fundamental institutional dilemma of the EU's political system, the conflict between intense interdependence and power sharing in a multilevel polity for one, and autonomy of governments as a condition for democratic legitimacy of power for another. Conceiving the EU as a federal democracy draws attention to this dilemma. This concept suggests democracy-preserving modes of governance instead of coercive coordination (policy adjustment to competition in the common market, joint decision-making among governments, central regulation by law and court decisions), which so far predominate in most relevant policy fields. It also calls for procedures to cope with issues of distributive justice stemming from territorial disparities in resources and burdens. The article conceptualises these challenges and outlines feasible steps to advance federal democracy in the EU.

The debate on the rule of law in the EU is mainly taking place from an EU law point of view, stemming from the analysis of CJEU judgments and its interpretation of general principles and primary EU law. This article argues that only by comprehending the global context of rise of populism and delegitimation of the judiciary may we realise the risks that national judges and the CJEU started to take when they entered the stage of this discussion. An overview is made of the global trend of delegitimation of the judiciary, referring to the example of Poland. The author then analyses how the CJEU and national courts, while defending the rule of law, are also mutually contributing to their own protection against external threats, and why that dialogue is essential to keep the debate juridical, as a way of avoiding what the author identifies as the “populist trap to the judiciary”.

This article demonstrates that the role of the European Commission in the area of asylum policy is characterised by an imbalance between politicisation and rationality. Politicisation of the role of the Commission is especially visible in its proposals for border procedures in the New Pact on Migration and Asylum. We show that the efficiency and effectiveness of these proposals are not supported by evidence or a thorough assessment of past EU action, as required by Better Regulation. The result is that they fail to address the structural problems that exist with regard to the implementation and application of EU law at external borders. The broken balance between politicisation and rationality in the legislative process leads to a prioritisation of security over freedom and justice. We argue that it needs to be compensated by a stronger role of the judiciary.

Differentiation has become a central topic of debate in the EU. Generally, it is considered a positive device for advancing integration in crucial policies, letting the unwilling states opt out from the new regimes. However, the debate has not sufficiently acknowledged that policy differentiation has been made possible by governance differentiation. It was the 1992 Maastricht Treaty's decision to inaugurate an intergovernmental regime for core state power policies, distinct from the supranational regime regulating single market policies, that allowed differentiation to flourish. Differentiation and intergovernmentalism are thus inter-connected. During multiple crises of the last decade, intergovernmental governance has shown its undemocratic effects, thus soliciting a critical reappraisal of the differentiation logic. The federalisation of the EU appears a more promising alternative strategy for advancing integration and, at the same time, meeting the democratic expectations of the EU.

This article discusses the implications of elements of the New Pact on Migration and Asylum from the perspective of fragmentation of “asylum seeker” status. Different parts of the legislative package tabled by the European Commission in September 2020 call into question the EU law view of asylum seekers as a single, indivisible category of protected persons. The retreat of EU law at external borders, on the one hand, leads to the creation of a “hollow asylum seeker” status, while the multidimensional expansion of border procedures and corollary deprivation of liberty risks defeating hard-fought safeguards on procedural presumptions and detention. Conversely, the enactment of a “privileged asylum seeker” status through the newly introduced “immediate protection” regime appears to be a measure with pragmatic potential for needed solutions and decisive EU steps towards group refugee status determination, albeit formulated in such a way as to exacerbate fragmentation and complexity.

The future skills and labour workforce shortages, together with the demographic challenges, and the economic impact of the COVID-19 sanitary crisis will increase the EU's need for highly skilled migration. In this comment, we argue that a successful reform of the EU Blue Card scheme should include more flexible eligibility criteria, process facilitations and generous intra-EU mobility provisions not only for business travel, but also for short-term work and, in some cases, for movement to a second Member State for employment purposes. Parallel national schemes should be allowed for those that do not qualify for the EU Blue Card scheme. Without these essential changes the administrative cost and time invested into reforming the current schemes at EU and national level will not bring about the expected positive impact on EU's attractiveness for highly skilled third-country nationals.