{"title":"Why the European Convention on Human Rights Still Matters","authors":"Síofra O’leary","doi":"10.1017/cel.2024.1","DOIUrl":"https://doi.org/10.1017/cel.2024.1","url":null,"abstract":"","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":"354 4","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-04-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140698182","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The primacy of EU law as framed by the Court of Justice pre-empts substantive arguments of principle that originate in other legal orders. This was accepted and acceptable to the extent that the values EU law contained were at least normatively equivalent to values originated from the other legal orders. In this contribution it is argued that this is no longer the case and that the misuse of the Rule of Law rhetoric justifying the primacy of EU law renders the EU less accountable and undermines the dialogical pluralist essence of EU constitutionalism.
{"title":"Restoring Dialogical Rule of Law in the European Union: Janus in the Mirror","authors":"D. Kochenov","doi":"10.1017/cel.2023.16","DOIUrl":"https://doi.org/10.1017/cel.2023.16","url":null,"abstract":"\u0000 The primacy of EU law as framed by the Court of Justice pre-empts substantive arguments of principle that originate in other legal orders. This was accepted and acceptable to the extent that the values EU law contained were at least normatively equivalent to values originated from the other legal orders. In this contribution it is argued that this is no longer the case and that the misuse of the Rule of Law rhetoric justifying the primacy of EU law renders the EU less accountable and undermines the dialogical pluralist essence of EU constitutionalism.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":"34 5","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-04-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140752476","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This contribution analyses the current situation of the implementation of the Rule of Law in the EU focusing on three essential aspects: the role of Article 2 of the TEU as a legal paradigm, the issue of effectiveness of secondary law to strengthen Supranational mechanisms for the defense of the Rule of Law; and the thorny issue of the primacy of EU Law in the current Era of European Integration.
{"title":"Implementing the Rule of Law in the European Union: How Long Trapped in Penelope's Spinning Wheel from Article 2 of the TEU?","authors":"Carlos J. Moreiro González","doi":"10.1017/cel.2023.17","DOIUrl":"https://doi.org/10.1017/cel.2023.17","url":null,"abstract":"\u0000 This contribution analyses the current situation of the implementation of the Rule of Law in the EU focusing on three essential aspects: the role of Article 2 of the TEU as a legal paradigm, the issue of effectiveness of secondary law to strengthen Supranational mechanisms for the defense of the Rule of Law; and the thorny issue of the primacy of EU Law in the current Era of European Integration.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":" 4","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140222276","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article provides an empirical analysis of all free movement of doctors cases decided by the CJEU. The aim of the Article is twofold: to provide a ‘characterisation’ of the type of doctors who rely on free movement law, and to make a link between their reliance on free movement law and the concept of medical professionalism. In what circumstances, and with what purpose, do doctors rely on free movement law? And does their reliance on free movement law pose a risk to medical professionalism? The analysis shows that most cases before the CJEU focussed on the expertise and qualifications of doctors. Many cases were brought by groups of doctors or medical professional associations. In most cases, the aim of the doctor's reliance on free movement law was to defend medical professionalism. Nevertheless, some recent cases show that doctors do rely on free movement law to restrict their accountability towards patients or national healthcare systems. Moreover, these cases show that arguments based on free movement law are relied on in a broader range of non-specialised courts or tribunals. This makes it important that national courts continue to engage in a dialogue with the CJEU.
{"title":"The Doctor in Free Movement Law: Expertise, Duty, and Accountability","authors":"Barend van Leeuwen","doi":"10.1017/cel.2023.13","DOIUrl":"https://doi.org/10.1017/cel.2023.13","url":null,"abstract":"This Article provides an empirical analysis of all free movement of doctors cases decided by the CJEU. The aim of the Article is twofold: to provide a ‘characterisation’ of the type of doctors who rely on free movement law, and to make a link between their reliance on free movement law and the concept of medical professionalism. In what circumstances, and with what purpose, do doctors rely on free movement law? And does their reliance on free movement law pose a risk to medical professionalism? The analysis shows that most cases before the CJEU focussed on the expertise and qualifications of doctors. Many cases were brought by groups of doctors or medical professional associations. In most cases, the aim of the doctor's reliance on free movement law was to defend medical professionalism. Nevertheless, some recent cases show that doctors do rely on free movement law to restrict their accountability towards patients or national healthcare systems. Moreover, these cases show that arguments based on free movement law are relied on in a broader range of non-specialised courts or tribunals. This makes it important that national courts continue to engage in a dialogue with the CJEU.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":"26 8","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139166075","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article interrogates the role of national constitutional courts within the Article 267 TFEU preliminary reference mechanism from both descriptive and normative angles. First, I demonstrate that although a clear majority of the constitutional courts submit references to the ECJ on a more frequent basis, differences in individual approaches remain significant. Subsequently, I argue that the core normative attractivity of the questions submitted in the course of domestic constitutional review lies in their participative and deliberative potential. Compared to ordinary courts, constitutional courts are better suited to amplify the ‘unheard’ voices of immobile EU citizens. By counterbalancing the demands of the EU's functional constitution, which is primarily based on the ideals of market capitalism, constitutional courts’ questions may contribute to the EU's capacity to generate legitimate decisions. Finally, I put my theoretical claims in context and analyse the main ways in which such deliberative potential can translate into practice.
{"title":"Constitutional Courts Asking Questions: A Deliberative Potential of Preliminary Reference Mechanism","authors":"Marek Pivoda","doi":"10.1017/cel.2023.15","DOIUrl":"https://doi.org/10.1017/cel.2023.15","url":null,"abstract":"\u0000 This Article interrogates the role of national constitutional courts within the Article 267 TFEU preliminary reference mechanism from both descriptive and normative angles. First, I demonstrate that although a clear majority of the constitutional courts submit references to the ECJ on a more frequent basis, differences in individual approaches remain significant. Subsequently, I argue that the core normative attractivity of the questions submitted in the course of domestic constitutional review lies in their participative and deliberative potential. Compared to ordinary courts, constitutional courts are better suited to amplify the ‘unheard’ voices of immobile EU citizens. By counterbalancing the demands of the EU's functional constitution, which is primarily based on the ideals of market capitalism, constitutional courts’ questions may contribute to the EU's capacity to generate legitimate decisions. Finally, I put my theoretical claims in context and analyse the main ways in which such deliberative potential can translate into practice.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":"74 9","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138956908","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article deals with selected issues of judicial protection that arise in the context of the sanctions adopted by the EU against Russia and Belarus after the 2022 invasion of Ukraine. As most cases challenging the sanctions are pending, this Article draws lessons from the previous case law on EU restrictive measures. It explores what aspects of the sanctions escape judicial review, then profiles of external (or formal) legality of the sanctions, of internal (or substantive) legality, and concludes by assessing the overall role of the Court in EU foreign affairs. The discussion shows that the case law in this area of EU administrative law converges to a great extent with other areas of EU competence, but tensions remain in how the Court may impose substantial constraints to executive discretion in the field of Common Foreign and Security Policy.
{"title":"Challenging EU Sanctions against Russia: The Role of the Court, Judicial Protection, and Common Foreign and Security Policy","authors":"L. Lonardo","doi":"10.1017/cel.2023.11","DOIUrl":"https://doi.org/10.1017/cel.2023.11","url":null,"abstract":"\u0000 This Article deals with selected issues of judicial protection that arise in the context of the sanctions adopted by the EU against Russia and Belarus after the 2022 invasion of Ukraine. As most cases challenging the sanctions are pending, this Article draws lessons from the previous case law on EU restrictive measures. It explores what aspects of the sanctions escape judicial review, then profiles of external (or formal) legality of the sanctions, of internal (or substantive) legality, and concludes by assessing the overall role of the Court in EU foreign affairs. The discussion shows that the case law in this area of EU administrative law converges to a great extent with other areas of EU competence, but tensions remain in how the Court may impose substantial constraints to executive discretion in the field of Common Foreign and Security Policy.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":"104 16","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138954099","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The EU Blocking Regulation intends to exclude the effects of extraterritorial legislation by third countries and, in particular, those of US economic sanctions, to protect the interests of economic actors in the EU. The goals of the Regulation—effective enforcement of EU law and the protection of the interests of EU economic actors—give rise to an enforcement paradox: a lack of enforcement by the Commission and the state authorities. The Bank Melli case not only demonstrates a shift in the enforcement of the Blocking Regulation to private parties but also sheds light anew on the doubts about its ability to protect private interests.
{"title":"Building Castles in the Air? The EU Blocking Regulation and the Protection of the Interests of Private Parties","authors":"Tamás Szabados","doi":"10.1017/cel.2023.14","DOIUrl":"https://doi.org/10.1017/cel.2023.14","url":null,"abstract":"\u0000 The EU Blocking Regulation intends to exclude the effects of extraterritorial legislation by third countries and, in particular, those of US economic sanctions, to protect the interests of economic actors in the EU. The goals of the Regulation—effective enforcement of EU law and the protection of the interests of EU economic actors—give rise to an enforcement paradox: a lack of enforcement by the Commission and the state authorities. The Bank Melli case not only demonstrates a shift in the enforcement of the Blocking Regulation to private parties but also sheds light anew on the doubts about its ability to protect private interests.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":" 10","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138961462","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In response to Russia's aggression against Ukraine, the EU adopted a series of unprecedented ‘massive and targeted sanctions’ against the Russian economy. Whereas the EU has clarified that its restrictive measures are not directed against Russian society, it is has stated that it seeks to ‘diminish’ the Russia economy and ‘cripple’ its ability to finance the war. Such measures recall economic warfare, where the adversary's economy is targeted in order to weaken it and, if successful, would undoubtedly have an impact on Russian people. Moreover, the sanctions have had repercussions on third states and economic operators. Applying the proportionality principle, the article finds that the restrictive measures the EU has imposed on Russia in response to its aggressive war in Ukraine are disproportionate due to their impact on third parties.
{"title":"The EU's ‘Massive and Targeted’ Sanctions in Response to Russian Aggression, a Contradiction in Terms","authors":"Alexandra Hofer","doi":"10.1017/cel.2023.9","DOIUrl":"https://doi.org/10.1017/cel.2023.9","url":null,"abstract":"\u0000 In response to Russia's aggression against Ukraine, the EU adopted a series of unprecedented ‘massive and targeted sanctions’ against the Russian economy. Whereas the EU has clarified that its restrictive measures are not directed against Russian society, it is has stated that it seeks to ‘diminish’ the Russia economy and ‘cripple’ its ability to finance the war. Such measures recall economic warfare, where the adversary's economy is targeted in order to weaken it and, if successful, would undoubtedly have an impact on Russian people. Moreover, the sanctions have had repercussions on third states and economic operators. Applying the proportionality principle, the article finds that the restrictive measures the EU has imposed on Russia in response to its aggressive war in Ukraine are disproportionate due to their impact on third parties.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":"61 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139010316","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article analyses the evolution of the public security defence to justify restrictions on free movement within the EU in the context of the energy sector. Taking the seminal 1984 Campus Oil case as the point of departure for its analysis, the Article focuses on the interplay between public security and energy security and shows two key changes in the case law of the Court of Justice of the European Union. First, it demonstrates how the scope of the public security defence in the energy sector has gradually narrowed. Second, it shows how the public security defence has developed to take into account evolving social, technological, and legal contexts in the EU energy sector. Culminating in cases like Hidroelectrica in 2020 and OPAL in 2021, analysis of the relevant case law suggests that, despite the societal dependence on energy and the ongoing geopolitical turmoil in Europe, the Court of Justice interprets exceptions from free movement in an increasingly strict manner, highlighting the primacy of internal market approaches to energy security.
{"title":"The Evolution of the Public Security Defence in EU Free Movement Law: Lessons from the Energy Sector","authors":"K. Huhta","doi":"10.1017/cel.2023.5","DOIUrl":"https://doi.org/10.1017/cel.2023.5","url":null,"abstract":"\u0000 This Article analyses the evolution of the public security defence to justify restrictions on free movement within the EU in the context of the energy sector. Taking the seminal 1984 Campus Oil case as the point of departure for its analysis, the Article focuses on the interplay between public security and energy security and shows two key changes in the case law of the Court of Justice of the European Union. First, it demonstrates how the scope of the public security defence in the energy sector has gradually narrowed. Second, it shows how the public security defence has developed to take into account evolving social, technological, and legal contexts in the EU energy sector. Culminating in cases like Hidroelectrica in 2020 and OPAL in 2021, analysis of the relevant case law suggests that, despite the societal dependence on energy and the ongoing geopolitical turmoil in Europe, the Court of Justice interprets exceptions from free movement in an increasingly strict manner, highlighting the primacy of internal market approaches to energy security.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-08-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49120144","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The aim of this Article is to show that the enforcement of Article 2 of the Treaty on European Union (‘TEU’) values vis-à-vis Member States could benefit from the application of the EU Charter of Fundamental Rights (‘CFR’) also in instances where the current interpretation of Article 51(1) CFR prevents this. This would be the case if the CFR were also applicable to purely domestic cases, eg—but not only—with regard to fundamental rights-relevant violations related to the values enshrined in Article 2 TEU. In this case, the European Court of Justice, which has already partly taken this path recently, could prevent the violation of core EU values. The most important historical challenge to those values in Europe today is the systematic dismantling of the rule of law and democracy in certain Member States. It is the very purpose of fundamental rights to provide answers to such dangers. When one speaks of the rule of law and democracy, one necessarily also means fundamental rights. This Article thus advocates an EU which perceives itself as a complete fundamental rights union. While the traditional interpretation of Article 51(1) CFR had a balanced division of competence between the EU and its Member States in mind, the disregard of Article 2 TEU values triggers a clausula rebus sic stantibus: the neat federal balance can only be upheld if both ends stick to the original promise made. It demonstrates two ways of completing the European fundamental rights union: treaty revision, on the one hand, and reinterpretation of Article 51 CFR, on the other hand. Both ways have in common that only a complete fundamental rights union can establish a system of fundamental rights protection that is uniform and thus equality-preserving in cases where national fundamental rights fail to provide sufficient protection.
本文的目的是表明，在执行《欧洲联盟条约》(“TEU”)第2条的价值观-à-vis时，成员国也可以从《欧盟基本权利宪章》(“CFR”)的适用中受益，即使目前对《欧盟基本权利宪章》第51(1)条的解释阻止了这一点。如果CFR也适用于纯粹的国内案件，例如——但不仅仅是——与基本权利有关的违反第2条TEU所载价值观的案件，情况就是如此。在这种情况下，欧洲法院(European Court of Justice)——最近已经在一定程度上采取了这条道路——可能会阻止违反欧盟核心价值观的行为。今天欧洲对这些价值观的最重要的历史性挑战是在某些会员国有系统地瓦解法治和民主。为这些危险提供答案，正是基本权利的目的所在。当谈到法治和民主时，也必然意味着基本权利。因此，本文主张建立一个将自己视为一个完整的基本权利联盟的欧盟。虽然对第51(1)条CFR的传统解释在欧盟及其成员国之间考虑了平衡的权限划分，但无视第2条TEU价值引发了一个条款的重新定义:只有当双方都坚持最初的承诺时，才能维持联邦的平衡。它展示了完成欧洲基本权利联盟的两种方式:一方面是条约修订，另一方面是对《联邦法典》第51条的重新解释。这两种方式的共同之处在于，只有一个完整的基本权利联盟，才能在国家基本权利无法提供充分保护的情况下，建立统一的、保持平等的基本权利保护制度。
{"title":"Two Ways of Completing the European Fundamental Rights Union: Amendment to vs. Reinterpretation of Article 51 of the EU Charter of Fundamental Rights","authors":"A. Jakab, Lando Kirchmair","doi":"10.1017/cel.2022.5","DOIUrl":"https://doi.org/10.1017/cel.2022.5","url":null,"abstract":"Abstract The aim of this Article is to show that the enforcement of Article 2 of the Treaty on European Union (‘TEU’) values vis-à-vis Member States could benefit from the application of the EU Charter of Fundamental Rights (‘CFR’) also in instances where the current interpretation of Article 51(1) CFR prevents this. This would be the case if the CFR were also applicable to purely domestic cases, eg—but not only—with regard to fundamental rights-relevant violations related to the values enshrined in Article 2 TEU. In this case, the European Court of Justice, which has already partly taken this path recently, could prevent the violation of core EU values. The most important historical challenge to those values in Europe today is the systematic dismantling of the rule of law and democracy in certain Member States. It is the very purpose of fundamental rights to provide answers to such dangers. When one speaks of the rule of law and democracy, one necessarily also means fundamental rights. This Article thus advocates an EU which perceives itself as a complete fundamental rights union. While the traditional interpretation of Article 51(1) CFR had a balanced division of competence between the EU and its Member States in mind, the disregard of Article 2 TEU values triggers a clausula rebus sic stantibus: the neat federal balance can only be upheld if both ends stick to the original promise made. It demonstrates two ways of completing the European fundamental rights union: treaty revision, on the one hand, and reinterpretation of Article 51 CFR, on the other hand. Both ways have in common that only a complete fundamental rights union can establish a system of fundamental rights protection that is uniform and thus equality-preserving in cases where national fundamental rights fail to provide sufficient protection.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":"24 1","pages":"239 - 261"},"PeriodicalIF":0.0,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46345873","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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