La vie après l'avis: Exploring the principle of mutual (yet not blind) trust

Future Direction of Travel (De Lege Ferenda)

Chapter

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Sep 2022

Markus Frischhut

Based on the previous chapters, this chapter addresses the need of an additional EU narrative, complementing and not replacing the initial narrative of safeguarding peace. This chapter also argues for an additional value of environmental protection, shifting from an anthropocentric to a more bio-centric approach. The EU has initially focussed on humans, the ECJ has recently added ‘animal welfare’ as an additional value, and following the ‘one health’ approach, this book argues for also adding environmental protection as a new EU value. The book also argues for a more communitarian Union, not replacing rights of individuals, but at the same time strengthening the sense of community. Finally, as various values mainly address the EU and/or the EU Member States, this book also suggests certain virtues (character traits that also need to be practiced), drawing on inspiration from other parts of the world.

General Introduction (De Lege Lata)

Chapter

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Sep 2022

Markus Frischhut

This chapter provides an overview of the so-called ‘hub’ of Art 2 TEU, covering the general values of the EU. It also covers the different levels affected by these values, the European Union (EU), the EU Member States, and individuals (natural and legal persons). Besides the general values (Art 2 TEU), a selection of specific values, respectively, the application of these general values in specific fields are depicted. These fields comprise healthcare, sports, digitalisation, non-financial reporting, as well as lobbying. This chapter is setting the agenda in terms of both providing a general overview, and addressing some questions to be answered in the rest of this book.

Different Scopes and Implications (De Lege Lata)

Chapter

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Sep 2022

Markus Frischhut

This chapter covers the temporal, content-related, personal, and territorial scope of these values. The temporal scope (scope ratione temporis ) addresses the historic development of EU values and addresses the ‘living instrument’ character of these values and of the Charter of Fundamental Rights. The content-related scope (scope ratione materiae ) provides a detailed overview on the various values of human dignity, democracy, the rule of law, human rights (including those of minorities), solidarity, justice, equality, including equality between women and men, non-discrimination, freedom, pluralism, and tolerance. Within each section, the following questions will be addressed: What is the legal quality of the relevant concept: A value, a (general) principle (of EU law), an objective, and/or a fundamental right? Is the relevant concept defined, or at least to some extent determined (either in the Treaties, in EU Secondary law, or in case-law)? If not determined in law, can we find some clarification in philosophical literature? Where in EU law can we trace this concept? The personal scope (scope ratione personae ), addresses the question of who is entitled and who is obliged by the various values. Finally, the territorial scope (scope ratione limitis ), addresses the situation of values both inside and outside the EU27. Finally, the implications, of values in terms of the question of their justiciability and the possibility of restrictions are covered.

Conclusion

Chapter

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Sep 2022

Markus Frischhut

In a similar way as in the book on the ‘ethical spirit of EU law’ (Frischhut, M. The ethical spirit of EU law. Springer International Publishing. https://doi.org/10.1007/978-3-030-10582-2 , 2019), this book on ‘the ethical spirit of EU values’ is summarised in 28 theses. The first fourteen theses rather depict the status quo. The other theses rather address the future direction of travel, where some of these theses can pertain to both categories. This summary structured in 28 theses shall contribute to the objective of stimulating debate on the question of EU values and their importance not only for the European Union (EU), its Member States, but also for individuals.

The Ethical Spirit of EU Values: Status Quo of the Union of Values and Future Direction of Travel

Book

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Jan 2022

Markus Frischhut

Relations

Chapter

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Sep 2022

Markus Frischhut

This chapter addresses various dimensions of relations. These comprise the relations of values to each other (for instance the question of the ranking of values), the relation to other provisions of EU law (covering both primary and secondary EU law), as well as the relation to other concepts. The latter category comprises the relation of values to economic and political objectives, as well as the relation of values to selected (legal and ethical) principles. These selected (legal and ethical) principles comprise the protection of vulnerable people, responsibility (including the question of human rights and human obligations), precaution, sustainability, as well as proportionality and balance.

Setting the Agenda

Chapter

Full-text available

Sep 2022

Markus Frischhut

This book is based on the open access book entitled ‘The Ethical Spirit of EU law’ (Springer, 2019), which was the outcome of the previous Jean Monnet Chair on ‘European integration & ethics’. The European Commission under Erasmus+ has kindly supported the previous Chair and the current Jean Monnet Chair on ‘EU Values & DIGitalisation for our CommuNITY (DIGNITY)’. In this 2019 book I have argued to fill certain gaps that occur if EU law refers to non-legal concepts such as ‘ethics’, with reference to the EU’s common values, as well as the fundamental rights, especially of the EU Charter of Fundamental Rights. The current book now continues where the previous book has ended and summarises the research output of the current Jean Monnet Chair. This chapter addresses the various objectives of this book. Which values affect which levels, the European Union (EU), the EU Member States, and individuals (objective 1)? What is the temporal, content-related, personal, and territorial scope of these values (objective 2)? What is the relationship of these values to each other, the relationship between values and fundamental rights, as well as the relationship with legal and or ethical principles (objective 3)? Finally, based on the identified status quo, the question of a possible ‘future direction of travel’ will be addressed (objective 4). This first chapter also sheds light on key terminology, such as ethics and morality, values, (general) principles of EU law, (mutual) trust, as well as soft- vs. hard-law.

Post-truth and post-trust: how to re-define trust in the judicial system and the media

Article

Full-text available

Jul 2024

Judit Bayer

This article revisits the rational and symbolic elements of assumed and earned trust, and how social and political trust is intertwined with trust in the judiciary and the media, as key control points in a democratic system. As such, they are also primary targets of populist-autocratic movements. The article enumerates how the transformation of the information environment has shattered traditional structures and opened new ways of questioning existing injustices. The result is an information landscape which is not only post-truth but also post-trust. New methods and processes of institutionalising processes of earning trust and structuring distrust have become necessary.

Mutual trust through the looking glass: The protection of children’s fundamental rights in EU return proceedings

Article

Full-text available

Dec 2022

Silvia Bartolini

The principle of mutual trust underpins EU proceedings for the return of the child following abduction. On such a basis, the courts of the Member State of refuge shall trust the courts of the Member State where the child was habitually resident immediately before the abduction being willing and capable to protect the EU fundamental rights of the child concerned. Therefore, they should not refrain from enforcing a certified judgment requiring the immediate return of the child, even in situations where there is a clear risk that the return is contrary to that child’s best interests. The purpose of this article is to demonstrate that there is a necessity – in the field of EU proceedings for the return of the child following abduction – to move beyond absolute trust, in order to ensure adequate protection of the children concerned.

The Relevance of Social and Family Ties of Third-Country Nationals: From Protection Against Expulsion to the European Arrest Warrant

Chapter

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Jul 2024

Giovanna Naddeo

Post-EU Accession to the ECHR: The Argument for Why the ECtHR Should Abandon the Bosphorus Doctrine

Article

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May 2024

Šejla Imamović

Third Country Influence on EU Law and Policy‐making: Setting the Scene

Article

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Apr 2023

This introductory article conceptualizes the notion of third country influence on European Union (EU) law and policy and proposes an analytical framework theorizing the venues and means through which third countries may gain such impact, under what conditions and with which implications for the EU's legal and political order. The article first introduces the focus on outside‐in influence in the context of European studies, generally, and EU privileged third country relations, specifically. Thereafter, an analytical framework is developed for mapping and explaining the outside‐in dynamics on EU law and policy‐making differentiating between diplomatic, governance and discursive venues; coercive versus technocratic and normative mechanisms of influence; and the legal constraints and political implications of these processes. Turning to the potential determinants of these occurrences, the article then proposes a set of hypotheses for conditions under which third countries can influence EU law and policies, before summarizing the individual contributions to this Special Issue.

A DECADE OF BALANCING WITH EU HUMAN RIGHTS PROTECTION: BETWEEN NATIONAL AND INTERNATIONAL COMPETENCES AND SOURCES Of LAW, INDIVIDUAL AND SYSTEMIC INTERESTS

Article

Full-text available

Jan 2020

The path towards establishing and advancing human rights' protection within the EU legal system seemed straightforward a decade ago. With the entry into force of the Lisbon Treaty in 2009, the Charter of Fundamental Rights of the EU became part of primary law, together with a commitment of accession to the European Convention on Human Rights. In 2010, Protocol 14 to the ECHR entered into force, allowing the EU to accede to the ECHR. A draft agreement on accession was finalized thereafter. In 2014, however, the Court of Justice of the European Union issued a negative opinion on the draft accession treaty, citing perceived threats to autonomy of EU law, competence of the EU and powers of the Court. A year earlier, in February 2013, the CJEU rendered judgments in cases Fransson and Melloni whereby it provided crucial rules for interpretation of clauses 51(1) and 53, respectively, of the Charter. The field of application of the Charter was equated with the scope of EU law. Primacy, effectiveness and unity of EU law, both primary and secondary, were prioritized over human rights and fundamental freedoms recognized by international agreements, including the ECHR, as well as by the Member States' constitutions. The realm of fundamental individual rights remains to this day the decisive grounds for asserting the core principle of EU constitutionality: the autonomy of EU law. Accession to the ECHR remains to this day a proclaimed goal of EU governing bodies, but little palpable progress is being made. Protection of fundamental rights at EU level has remained a point of contention among academics. Some question the very need for its existence, in view of constitutional guarantees by Member States and the ECHR.

KRIVIČNO PROCESNO PRAVO EU

Book

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Feb 2022

Marina Matic Boskovic

Evropska unija je nastala prevashodno kao ekonomska zajednica, u cilju uspostavljanja zajedničkog tržišta i kao takva je postojala dugi niz godina, da bi se tek u poslednje vreme, tačnije nakon Ugovora iz Lisabona iz 2007. godine moglo govoriti i o zajedničkoj ’’evropskoj borbi’’ protiv kriminaliteta. Krivično procesno pravo predstavlja još veći izazov u tom smislu, imajući u vidu da obuhvata dve oblasti u kojima EU tradicionalno nije imala nadležnost za usklađivanje propisa: krivično pravo i procesno pravo, kao i da u toj oblasti postoje velike razlike u nacionalnim propisima država članica. Strateški cilj Srbije ka pristupanju EU zahteva da se ovoj temi posveti daleko više prostora nego što joj je do sada posvećivano, što ovoj monografiji dodatno daje na značaju. U knjizi se obrađuju osnovni pojmovi i institucionalni okviri krivičnog procesnog prava i uzajamne saradnje u ovoj oblasti na nivou Evropske Unije.

Report on trust in government, politics, policy and regulatory governance

Technical Report

Full-text available

Oct 2020

This deliverable offers a systematic and comprehensive review of the literature on trust and regulation and their relations in three parts. Section 1 provides a brief overview of trust and distrust; their relationship; and antecedents (drivers) and positive and negative consequences. This second part of provides an overview of phases and processes of trust building, maintenance and repair as well as a review of how processes of distrust building or trust-reduction work. The third part suggests that the unfolding of trust relationships varies according to the type of involved actor, i.e. an individual, organisation, or system (such as regulatory regimes) and level of analysis. Section 2 moves to regulation. It reviews the main concepts of regulation and clarifies some of the most important questions around it. This should allow us, in later sections of this deliverable, to point on some of the possible directions that trust and regulation research may take. It starts with definitions and a distinction between narrow and broad approaches to regulation. It then clarifies the concept of regulatory regime; the regulatory agency, the regulatory state and regulatory capitalism. It concludes with an actor centered analysis of the regulation. Section 3 deals with trust and distrust in government. It starts with a summary of the drivers of the dis/trust relations. The main sub-section deals with reviews of the literature on trust and distrust in (a) political institutions and actors; (b) public administration; (c) among courts; (d) citizens by government and (e.) between public organizations. Section 4 brings out the critical aspects of the review. It focuses on the relations between trust and regulation and offer a new conceptualization of their relations. One that will serve as the basis for section 1.3. The first part of the section moves the discussion of the relations forward in an attempt to looking at the relations beyond the current literature by distinguishing between four types of relations: independent, competitive, substitutive and supportive. The second part of the section focuses on the relations of trust between the main actors of the regime. The third discusses the relations between trust and regulation, when they touching on explanations for the processes. The fourth revolves around on assessment of outcomes of the relations. Section 5 deals with the operationalization and measurement of trust. It deals with the ways in which trust between actors in regulatory contexts has been measured in recent scholarship. It informed by, and seeks to expand upon, the current knowledge by more specifically examining measures used in the study of regulatory contexts. It starts with a description of the systematic methodology used. It then summarizes the purely descriptive findings of the review and an overview of the number of studies on trust in regulatory regimes published in recent years. It then presents separate discussions on how trust in different kinds of actors in regulatory regimes has been measured. Section 5 closes with a reflective and critical discussion of the literature. We analyse prominent limitations and gaps in existing empirical work.

Towards a Tyranny of Values?: Principles on Defending Checks and Balances in EU Member States

Chapter

Full-text available

Jan 2021

Armin von Bogdandy

This contribution develops the framework of European reactions to the undermining of checks and balances in EU Member States . It surveys the normative setting with its various institutional options and contrasting constitutional principles and then applies these principles to the panoply of relevant instruments. The building blocks of this framework are competence , procedure , standards, and control. This should help Europe to speak with a principled voice. The contribution shows how red lines can be drawn that respect constitutional pluralism, and how any action’s legitimacy is enhanced if many institutions undertake it jointly.

Article 7: A Commentary on a Much Talked-About ‘Dead’ Provision

Chapter

Full-text available

Jan 2021

Dimitry Kochenov

The goal of this chapter is to contribute to the growing Article 7 TEU literature by showcasing the strong and weak points of this provision in the context of the on-going rule of law backsliding in Hungary and Poland threatening the very fabric of EU constitutionalism. This is done by presenting the general context of the institutional reactions to the so-called ‘reforms’ in Poland and Hungary aimed to hijack the state machinery by the political parties in charge; introducing the background of Article 7 TEU and the hopes of the drafters the provision was endowed with; to move on to the analysis of its scope and all the procedures made available through this instrument as well as the key procedural rules in place. The conclusion restates the necessity of putting our hopes in alternative instruments of combatting rule of law backsliding, outlining three possible scenarios of this, which are not (necessarily) connected to Article 7 as such.

Improving access to electronic evidence: the European normative struggle

Chapter

Full-text available

Sep 2020

Ana Gascon Marcen

This paper assesses the multiple initiatives developed currently in Europe to facilitate the cross-border access of law enforcement authorities to electronic evidence, which is every day more necessary to fight crime. It is a challenge because it is imperative to develop effective mechanisms without sacrificing the human rights safeguards. Specifically, this paper studies the European Commission proposal of European production and preservation orders, the parallel efforts of the Council of Europe on the negotiation of an Additional Protocol to the Convention on Cybercrime to facilitate the access to electronic evidence, and finally the interaction of the European Union Law with the United States Cloud Act.

A DECADE OF BALANCING WITH EU HUMAN RIGHTS PROTECTION: BETWEEN NATIONAL AND INTERNATIONAL COMPETENCES AND SOURCES OF LAW , INDIVIDUAL AND SYSTEMIC INTERESTS

Conference Paper

Full-text available

Sep 2020

The path towards establishing and advancing human rights’ protection within the EU legal system seemed straightforward a decade ago. With the entry into force of the Lisbon Treaty in 2009, the Charter of Fundamental Rights of the EU became part of primary law, together with a commitment of accession to the European Convention on Human Rights. In 2010, Protocol 14 to the ECHR entered into force, allowing the EU to accede to the ECHR. A draft agreement on accession was finalized thereafter. In 2014, however, the Court of Justice of the European Union issued a negative opinion on the draft accession treaty, citing perceived threats to autonomy of EU law, competence of the EU and powers of the Court. A year earlier, in February 2013, the CJEU rendered judgments in cases Fransson and Melloni whereby it provided crucial rules for interpretation of clauses 51(1) and 53, respectively, of the Charter. The field of application of the Charter was equated with the scope of EU law. Primacy, effectiveness and unity of EU law, both primary and secondary, were prioritized over human rights and fundamental freedoms recognized by international agreements, including the ECHR, as well as by the Member States’ constitutions. The realm of fundamental individual rights remains to this day the decisive grounds for asserting the core principle of EU constitutionality: the autonomy of EU law. Accession to the ECHR remains to this day a proclaimed goal of EU governing bodies, but little palpable progress is being made. Protection of fundamental rights at EU level has remained a point of contention among academics. Some question the very need for its existence, in view of constitutional guarantees by Member States and the ECHR. Others, however, claim that the CJEU sacrificed protection of individuals’ rights for the interest of promoting constitutionality of the EU. These critiques seem unwarranted. Article 2 TEU necessitates existence of an efficient mechanism for protection of fundamental freedoms at EU level. Historical examples of political communities built on multi-ethnic, civic model all show necessity of integrating human rights protection at the constitutional level. Constitutionality of the EU has been developing for six decades, for the most part under the guise of autonomy of EU law. It requires that primacy of fundamental rights, as guaranteed by EU law, be affirmed both vis-a-vis Member States and international treaties. However, one may not expect that fundamental rights and freedoms within the EU be protected in a uniform and efficient manner unless a system for enforcing such rights and freedoms is not put in place first.

La insoportable levedad de la confianza mutua en el espacio de libertad, seguridad y justicia

Chapter

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Apr 2020

Pablo Martin Rodriguez

Dôveruj, ale preveruj? Základné práva v kontexte vzájomnej dôvery

Conference Paper

Full-text available

May 2019

Adrián Lukáčik

[SK] Rozvíjanie akýchkoľvek spoločenských vzťahov sa nezaobíde bez dôvery. Vzťahy medzi členskými štátmi EÚ sú taktiež založené na vzájomnej dôvere, ktorá je čoraz viac zdôrazňovaná ako zásadný právny princíp. Príspevok sa zameriava na analýzu vzťahu tohto princípu k základným právam. Problematika je skúmaná prostredníctvom sumarizácie rozhodovacej činnosti Súdneho dvora a aplikáciou interdisciplinárnych teórií dôvery. Zdá sa, že nahrádzanie prirodzenej dôvery právnym mechanizmom vzájomnej dôvery vychádza z rozdielov medzi členskými štátmi pri ochrane základných práv. V takomto prípade by sa mala činnosť inštitúcií EÚ sústrediť sa na harmonizáciu minimálnych štandardov základných práv, ktorá by vyvážila nedostatok dôvery. [EN] Development of any social relations cannot exist without trust. Even relations among the EU Member States are established on mutual trust that was reiterated as a legal principle of fundamental importance. The paper focuses on analysis of relationship of mutual trust principle to fundamental rights. The issue is addressed with summary of the Court of Justice jurisprudence and application of interdisciplinary theories of trust. It seems that replacement of natural trust with legal mechanism of fundamental trust stems from discrepancies between Member States in protection of fundamental rights. In this case, the EU institutions should focus on harmonization of minimal fundamental rights standards, which would compensate the lack of trust.

Forum of necessity in family law matters within the framework of EU and international law

Article

Full-text available

Nov 2024

Poking the Bear or Waking the Sleeping Beauty? The Potential of Fundamental Rights Complaint Procedures Before the CJEU

Chapter

May 2024

The idea of an individual fundamental rights complaint before the CJEU is not new, but the respective discussions have fallen silent after the failure to adopt the Treaty establishing a Constitution for Europe in 2005. However, after constitutional courts in several Member States have claimed the right to interpret the EU Charter of Fundamental Rights, the formerly ebbing discussions are slowly getting louder again. This self-empowerment could be perceived as an attempt to obtain the predominant influence on the interpretation of the Charter. Strengthening individual legal action before the CJEU seems as an appropriate response to help maintain the delicate balance of power between national courts and the Luxembourg Court. These thoughts leads us to the following questions: Is the procedural law of the EU in need of a reform? What should such a reform look like? Do the Member States refuse their citizens elementary procedural guarantees to enforce their EU fundamental rights before an EU court—or are there justified concerns to limit the scope of individual action before the CJEU? Would major reforms awaken the sleeping potential of the Court or unleash forces beyond the control of its creators?

Positive harmonisation of national criminal law: Necessary or essential for mutual recognition?

Article

Apr 2024

Positive harmonisation of criminal law should only be a subsidiary means of implementing the principle of mutual recognition. Regarding criminal procedural law, this is laid down in Art. 67 TFEU (‘if necessary’) and in Art. 82(2) TFEU (‘to the extent necessary’). However, the effectiveness of the principle of mutual trust depends on the harmonisation of the national laws of the Member States, especially in cases when the national law of the executing State does not regulate at all aspects that may affect the nature or aggravate the sentence which is to be recognised. In this context, we will try to show that, if the alternative execution modality of a custodial sentence is not at all regulated in the national law of the executing State, its recognition and enforcement, with the consequent continuous deprivation of liberty of the sentenced person, could be considered an aggravation of the sentence and thus a violation of Article 8(4) of FD 2008/909. The paper thus highlights not only the differences between the legal frameworks of some Member States, but also how the lack of regulation on alternative execution modalities to custodial sentences or probation measures and alternative sanctions could stand in the way of reaching the purposes of Framework Decisions 2008/909 and 2008/947. On the other hand, we will show that although the framework decisions cannot have a direct effect, when applying national law, the national authorities are therefore required to interpret it, to the greatest extent possible, in light of the text and the purpose of the framework decision in order to achieve the result sought by that decision.

The Principle of Autonomy of EU Law in the Context of Investor-State Dispute Settlement: A Public Policy Norm?

Article

Jan 2024

Trajan Shipley

Greening central banking in the EU: closing the judicial accountability gap

Article

Jan 2023

The Principle of Autonomy of EU Law in the Context of Investor-State Dispute Settlement: A Public Policy Norm?

Chapter

Dec 2023

Trajan Shipley

The principle of autonomy of EU law sits at the core of the current clash between EU law and ISDS. Considering the widespread rejection by investment arbitration tribunals of the Court of Justice’s Achmea case law, this chapter examines the nature, scope and content of the principle of autonomy of EU law in the context of ISDS. It considers relevant case law of both the Court of Justice and arbitral tribunals together with literature on the nature of the EU legal order from an international law perspective and on the principle of autonomy. It also examines the possibility to claim the autonomy of EU law as a norm of public policy and the relevance of pursuing such an approach.

Building Social Solidarity Through Mutual Trust

Article

Full-text available

Sep 2023

Maribel González Pascual

Cases C-156/21 and C-152/21 established that the implementation of solidarity is based on mutual trust. This reference is of significant relevance given that trust is essential when risky decisions are made in troubled times. In this context, this article analyses whether mutual trust could be decisive to tackle unexpected challenges, such as the pandemic (or the war in Ukraine). With this goal in mind, the article dwells on the role of mutual trust in the EU. The article then examines the link between mutual trust and social solidarity in the program Next Generation EU. Finally, it inquires which kind of social solidarity might derive from mutual trust. The goal is to assess if mutual trust is a transformative principle that may trigger an impulse towards social solidarity within the EU.

Breaches of the Rule of Law in the EU: What Implications for the Principle of Mutual Trust in the Area of Freedom, Security and Justice?

Chapter

Jul 2023

Reflecting some recent tendencies, including the emergence of nationalist and illiberal forces, and the ‘states of emergency’ linked to the Covid-19 pandemic, respect for the rule of law in the EU has been challenged. While Poland and Hungary have become emblematic of this phenomenon, signals of the so-called backsliding of the rule of law are also evident in other Member States. Such breaches of the rule of law in the EU inevitably call into question the existence of mutual trust among Member States and the overall functioning of the judicial area without internal borders. This chapter intends to highlight the relationship between mutual trust and rule of law violations in the EU in light of the evolutionary jurisprudence of the Court of Justice, taking the Court’s judgement in Case C-896/19 Repubblika as a provisional closure point. The aim is to verify whether mutual trust as a structural principle of EU law emerges strengthened or completely compromised under this ‘stress test’.KeywordsAFSJCourt of JusticeEuropean arrest warrantMutual trustRule of law

First Periodic Country Report: Hungary

Article

Full-text available

May 2022

Petra Bard

Friend Zone Forever? The Essence of and Justifications for the EU's Decision‐Making Autonomy

Article

Jan 2023

Marja-Liisa Öberg

The expansion of the European Union's (EU) regulatory sphere creates conflicts of sovereignty between the EU and its member states, and third countries that lack a possibility to participate in the making of those laws and policies. The conflict is epitomised in the concept of the Union's decision‐making autonomy. Albeit stringently applied, the concept is ambiguous and undefined. This article endeavours to unfold its meaning, use and significance and examine whether its rigid nature is justified in light of the Union's aims to expand its regulatory sphere. The article argues that the ultimate rationale of decision‐making autonomy is to ensure the effectiveness of the EU legal order and to compensate for the member states' loss of sovereignty, investment and risk‐taking. Insofar as non‐member states do not demonstrate similar commitment to the EU, exclusion from decision‐making is justified to retain the privilege and attractiveness of membership.

Constitutional Identities and Traditions: A Conundrum for Comparative Lawyers

Article

Full-text available

Oct 2022

Sabrina Ragone

This paper elaborates upon a novel understanding of the interaction between constitutional traditions common to the Member States of the European Union and their domestic identity through comparative methodology. It puts forward a bottom-up understanding of identities through comparative case law, while grasping their potential contribution to the content of common traditions. It connects these issues to the ongoing discussion on the values of the EU through a circular model of mutual influence.

L'Union européenne et ses Etats membres, entre identité et souveraineté

Article

Jan 2021

Hélène Gaudin

Reflections on the Principle of Mutual Trust in EU Law and Judicial Dialogue in Europe

Chapter

Full-text available

Jun 2022

Matti Pellonpää

The principle of mutual trust plays an important role in EU law, especially in the area of freedom, security and justice. In its Opinion 2/13 on the planned EU accession to the European Convention on Human Rights (ECHR), the Court of Justice of the European Union (CJEU) considered the draft agreement to be incompatible with EU law, in particular because it did not sufficiently take into account the principle of mutual trust. This chapter examines whether the ECHR is, as suggested by Opinion 2/13, in fact incompatible with EU law and whether this creates an insurmountable obstacle to accession. The chapter argues that the case-law of the two European Courts, rather than confirming such inherent incompatibility, demonstrates a constructive judicial dialogue between them. This is a dialogue in which, in addition to the two supranational Courts, national courts, such as the German Federal Constitutional Court, have given their contribution. While the true nature of the principle of mutual trust in EU law remains subject to debate, close scrutiny reveals it as more of a rebuttable presumption than a full-fledged legal principle. Ultimately, the European and domestic courts involved are shown to have engaged in a useful judicial dialogue that has influenced the shaping of the principle of mutual trust in a manner that can be regarded as satisfactory from the point of view of both the ECHR and the EU.

(lack of) consequences of reasonable doubts on the independence of the judiciary system on cooperation in criminal matters in the EU

Article

Full-text available

Apr 2022

Dominika Czerniak

The article analyses the consequences of the violation of judicial independence in the cooperation in criminal matters. The right to an independent court is not only a fundamental value in the rule of law (Article 2 TEU, Article 19(1)), but also one of the fundamental rights (Article 47 CFR). Jeopardising the independence of the judiciary in one of the EU countries should have an impact on the possibility of cooperation in criminal matters. Leaving the standard of independence of the judiciary resulting from the ECHR jurisprudence, the article summarises the current jurisprudence of the CJEU concerning the independence of the judiciary and the impartiality of judges at two levels: general (or systemic), and in connection with the operation of the EAW. The article analyses present situation in Poland and recent judgments of the CJEU in “Polish cases” – about the problem of executing the EAW and evaluating the independence of the judiciary system in Poland.

Verfassungsaufsicht in der Europäischen Union: Eine akteurszentrierte Analyse der Rechtsstaatlichkeitskrise der Europäischen Union

Book

Full-text available

Jan 2021

Matthias Schmidt

This book offers, in five parts, an analysis of the so-called rule of law crisis in the EU. The first part focuses on the concepts that help to understand the rule of law crisis, in particular that of “systemic deficiencies in the rule of law”. In order to shine light on the complex concept of “rule of law” included in Art. 2 TEU, the author focusses on the operationalisation of the rule of law in recent CJEU jurisprudence. The second part of the book is devoted to developments in certain Member States that make up the rule of law crisis. Special attention is paid to Poland and Hungary. The third part deals with the main thesis of the book: why it is useful to conceive of the measures taken in response to the rule of law crisis as "constitutional supervision” in EU law. The merits and roots of this concept are discussed in detail. On this basis, the fourth part presents the core of the analysis: the different mechanisms of EU constitutional supervision. After introducing its different actors, the work focuses on the activities of the European Commission. The final part concludes with an outlook.

Literaturverzeichnis

Chapter

Full-text available

Jan 2021

Matthias Schmidt

This book offers, in five parts, an analysis of the so-called rule of law crisis in the EU. The first part focuses on the concepts that help to understand the rule of law crisis, in particular that of “systemic deficiencies in the rule of law”. In order to shine light on the complex concept of “rule of law” included in Art. 2 TEU, the author focusses on the operationalisation of the rule of law in recent CJEU jurisprudence. The second part of the book is devoted to developments in certain Member States that make up the rule of law crisis. Special attention is paid to Poland and Hungary. The third part deals with the main thesis of the book: why it is useful to conceive of the measures taken in response to the rule of law crisis as "constitutional supervision” in EU law. The merits and roots of this concept are discussed in detail. On this basis, the fourth part presents the core of the analysis: the different mechanisms of EU constitutional supervision. After introducing its different actors, the work focuses on the activities of the European Commission. The final part concludes with an outlook.

Jurisdiction, Forum and Enforcement of Judgements: The Challenge of Cooperation Between Courts Before and After Brexit: (Civil Enforcement and Effective Protection of Creditor’s Rights in the EU and in the UK)

Chapter

Jan 2022

Ian Forrester

It is an honour and a great pleasure for me to be here today in this wonderful library building, established in 1905 when The Kyoto School of Law and Politics took the name of “Ritsumeikan University” (At the time, the library was 357 m². Now it is approximately 23.8 larger at 8530.46 m²), which has expanded 20-fold since then!

Principe de cohérence et droit international privé de la famille européen

Thesis

Jan 2021

Lilia Aït Ahmed

L’européanisation du droit international privé de la famille, fait majeur de ces deux dernières décennies, s’est traduit par une uniformisation sans précédent des règles de compétence internationale et de conflit de lois. Son évolution se heurte toutefois à des difficultés fondamentales interrogeant la rationalité de sa construction. D’une part, les fondements de l’uniformisation font encore l’objet de critiques déterminantes. D’autre part, la technique mise en œuvre, jamais remise en cause, a rapidement échoué à réunir l’unanimité des États membres requise en la matière. À un morcellement matériel caractéristique de l’uniformisation s’adjoint alors un morcellement géographique de l’espace judiciaire européen, fluctuant au gré du texte considéré. Aussi, l’analyse du droit international privé de la famille européen à l’aune du principe méthodologique de cohérence, qui gouverne l’élaboration du droit, permet d’identifier les sources de ces difficultés et de proposer des solutions en considération des fondements de la matière et des fins poursuivies. Dans un premier temps, une comparaison avec la formation du statut personnel met en évidence la logique nouvelle qu’impose, au travers de la « libre circulation » des décisions, l’objectif de libre circulation des personnes. Reposant sur un relâchement des liens entre les individus et l’État, sa poursuite a conduit à une altération des compétences attribuées à l’Union européenne en faveur de l’uniformisation des règles, sans que cette dernière justifie son utilité au regard de la fin visée. L’analyse révèle, dans un second temps, que cette démarche traduit la vision erronée, adoptée par le législateur européen, d’un espace judiciaire uniforme. Une telle conception repose cependant sur l’assise théorique fragile d’un principe de reconnaissance mutuelle fondé sur une vision absolue contestable de la confiance mutuelle. Elle suscite dès lors de vives réactions de la part d’États membres désireux de protéger leurs conceptions nationales et remettant en cause cette confiance et la primauté du droit de l’Union qui la garantit. Un retour au droit primaire conduit à constater que, loin d’une telle approche uniformisatrice et hiérarchique dictée par l’objectif de libre circulation des personnes, c’est une vision fondamentalement pluraliste, respectueuse de la diversité des ordres juridiques des États membres et orientée vers l’accès à la justice des parties, que véhiculent les traités en matière de coopération judiciaire en matière civile, et notamment familiale. Ce constat appelle dès lors, dans une perspective bien moins intégrationniste, une réflexion renouvelée relative aux modalités de la réglementation européenne du droit international privé de la famille.

Een mogelijke proportionaliteitsanalyse binnen het principe van mutual trust, in het licht van het Europees aanhoudingsbevel

Research

Full-text available

Mar 2021

Lisa Jung

Een mogelijke proportionaliteitsanalyse binnen het principe van mutual trust, in het licht van het Europees aanhoudingsbevel; De relevantie van rechtsstatelijke deficiënties in andere lidstaten voor nationale rechters

RESILIENCE TECHNIQUES OF INTERNATIONAL COURTS IN TIMES OF RESISTANCE TO INTERNATIONAL LAW

Article

Jul 2021

International courts are increasingly called upon to adjudicate socially divisive disputes. They are therefore exposed to a heightened risk of backlash that questions their authority and impedes the implementation of their judgments. This article puts forward an analytical framework for mapping the resilience techniques used by international courts to counter this growing resistance. Case studies involve the Court of Justice of the European Union, which has been cautious in its stance regarding democratic backsliding in Hungary and Poland, and the Caribbean Court of Justice, which has engaged in legal diplomacy while adjudicating both on the land rights of indigenous groups and on Lesbian Gay Bisexual Transgender Queer and Intersex (LGBTQI) rights. It is argued that, in order to effectively avoid and mitigate backlash, international courts should deploy resilience techniques that go beyond merely exercising their judicial function. The successful deployment of resilience techniques can allow international courts to become significant actors in global governance during a time of crisis for the international liberal order.

Fundamental Rights as Constraints to and Triggers for Differentiated Integration

Article

Full-text available

Mar 2021

When looking for possible constraints on Differentiated Integration, the fundamental values of the European Union (EU) seem an obvious starting point. Both the Charter of Fundamental Rights and the values articulated in Art. 2 TEU are cross‐cutting across EU states. However, while fundamental values have acted as centralising devices in other federal settings, in an EU context marked by extensive value disagreement, they may also act as pathways for differentiation. Insofar as national constitutional orders disagree on the scope of EU rights, attempts to ground EU law in fundamental values trigger inevitable interpretive conflicts across states. This paper will use the examples of asylum and the European Arrest Warrant to demonstrate this argument: while EU law may use fundamental values as a reason to harmonise EU law across states, such values may also be invoked to question the principle of mutual trust underlying the EU legal order, thereby causing rather than limiting differentiation.

Reshuffling our understanding of fundamental rights law in Europe: an EU lawyer's research agenda

Article

Mar 2021
Eur Hum Right Law Rev

Elise Muir

The Last Soldier Standing?: Courts vs. Politicians and the Rule of Law Crisis in the New Member States of the EU In. University of Groningen Faculty of Law Research Paper No. 5/2019

Article

Full-text available

May 2019

The rule of law backsliding in Hungary and Poland revealed the EU’s significant vulnerabilities in the face of the need to uphold the values that the whole system of EU integration presumes are in place. The lessons are revealing: respecting the acquis does not guarantee continuing adherence to Article 2 TEU values; economic success in the Union does not necessarily entrench democracy and the rule of law; the tools available to preserve the rule of law are largely inadequate, as they could go against the key assumptions of the internal market. Consequently, the lack of political will to deal with the values’ crisis is not at all irrational, which makes it even more worrisome. What stands out from the grim picture is the revolutionary case law of the Court of Justice on judicial independence and mutual trust, which bridges the available infringement procedures with the outstanding problems and offers horizontal and vertical empowerment to the EU’s decentralised judiciaries – now able to intervene – while also resolving the competences conundrum through a broad reading of the principle of judicial independence as a key element of the rule of law. However inspiring, recent case law developments are insufficient, we argue, to deal with the sociological legitimacy crisis in tackling illiberal democracies plaguing the EU: autocratic legalism cannot be fought with legalism alone. Designing a long-term systemic approach to a complex re-articulation of EU values is indispensable, as enforcement is not a panacea per se.

Defending Union Values in Judicial Proceedings. On How to Turn Article 2 TEU into a Judicially Applicable Provision

Chapter

Full-text available

Jan 2021

Luke Dimitrios Spieker

This chapter centres on the question of how to address violations of EU values in judicial proceedings before the Court of Justice. Instead of relying on fundamental freedoms, EU secondary legislation or the Charter, this chapter explores a more promising path—engaging with Article 2 TEU itself. Yet this path rests on a crucial premise: the judicial applicability of the values enshrined in Article 2 TEU. Such a judicial applicability is far from self-evident and needs to be carefully construed. Based on recent jurisprudential developments, this chapter will propose ways to operationalise Article 2 TEU without curtailing its unrestricted scope of application. The judgments of Associação Sindical dos Juízes Portugueses , Minister for Justice and Equality ( L.M. ) and Commission v. Poland will be at the heart of this contribution.

The Rule of Law As a Value in the Sense of Article 2 TEU: What Does It Mean and Imply?

Chapter

Full-text available

Jan 2021

Werner Schroeder

The rule of law is a value on which the European Union is founded, and which shall be respected and observed by its Member States. This value is not merely an ethical standard but a binding legal principle that is applicable to legal disputes under Union law. The treaties, however, do not provide a definition of this principle. From a Union law perspective, it is therefore indispensable to determine the rule of law more precisely; not only is it referred to in treaty law (Article 2 TEU), but understood by Union courts as a constitutional meta-principle that informs other constitutional norms and may justify review proceedings and sanctions against Member States. The Commission Framework to strengthen the Rule of Law of 2014 does not suffice to shape a ‘Union rule of law’. It relies primarily on the case law of the Court of Justice of the European Union. Yet, this judicial concept of the rule of law is somehow restricted as it focuses almost exclusively on the role of the judicial branch in the Union’s constitutional system. Common European constitutional traditions, however, show that the core concern of the rule of law is the containment of public authority by institutional arrangements. In view of these traditions and the practice of the Union institutions, including the CJEU, consensus at the Union level might be achieved on the fact that the rule of law comprises not only strictly formal standards, but also material criteria of justice related to the juridical shaping of decision-making processes. These elements of the rule of law are intrinsically linked to fundamental rights and shall ensure that within the scope of Union law any public power is exercised in a non-arbitrary and legitimate way. To this end, the Union rule of law may not only be understood as a formal set of objective norms, but as ensuring the protection of individual rights as well.

Suspending Horizontal Solange: A Decentralized Instrument for Protecting Mutual Trust and the European Rule of Law

Chapter

Full-text available

Jan 2021

Iris Canor

Mutual trust is the basis on which the Member States’ judiciaries are expected to deal with each other in the European Union. By constitutionalizing the principle of mutual trust, the CJEU has introduced an axiological addition to the basic structure of the European Union. From a Union which concentrated on the vertical relationships between each Member State and the central Union’s institutions, the Union has turned out to be additionally preoccupied with the horizontal relationships among the Member States, which are based on what might be called a doctrine of Horizontal Solange . According to the principle of mutual trust, each Member State must presume that all other Member States are in compliance with EU law, in particular promote its values and respect European fundamental rights. This presumption, however, can be rebutted in exceptional circumstances. These exceptional circumstances are based on a two-prong test: first, the violation of the values or the fundamental rights must amount to a systemic deficiency; second, there is a need for an assessment whether the individual concerned will be the victim of this systemic deficiency. This contribution critically analyses these exceptional circumstances. Regarding the first prong, it is argued that the existence of systemic deficiencies should ideally be established by the CJEU via preliminary ruling references or via direct infringement proceedings. Alternatively, such systemic deficiencies may also be established by domestic courts in a host Member State. Regarding the second prong, it is argued that the individual test is redundant in cases where the systemic deficiency imposes challenges to the existing legal order of the Member State in question. Finally, it is argued that the suspension of mutual trust can serve as a decentralized instrument for protecting the European rule of law by pressuring the violating state to restore the rule of law.

The Assessment of Judicial Independence Following the CJEU Ruling in C-216/18 LM

Chapter

Full-text available

Jan 2021

In the LM ruling, the Court of Justice developed the Aranyosi and Căldăraru test and indicated it as the one to be applied for the assessment of judicial independence and fair trial guarantees in the context of executing European Arrest Warrants. Although serious threats to the rule of law and judicial independence in some EU countries, like Poland, have been documented over recent years, no warrant has so far been definitely rejected as a consequence of the application of the LM test, although there are cases in which the execution of warrants to Poland has been suspended. This naturally raises questions as to whether the mechanism proposed by the Court responds to the need of protecting the right to a fair trial and safeguarding judicial independence. In this contribution we evaluate the mechanism devised by the Court, taking into account the available judicial practice after the LM ruling. We point out that the almost automatic transfer of a mechanism proposed to evaluate the functioning of a prison system to that evaluating a fair trial and judicial independence has not been fully successful. The mechanism proposed by the Court reveals a number of problematic issues and proves to be insufficient and not entirely adequate to assess judicial independence and guarantees of a fair trial.

The Principle of Mutual Trust between Member States in the Area of Freedom, Security and Justice

Article

Jan 2020

Clemens Ladenburger

This study discusses, from various angles, the principle of mutual trust between Member States in the Area of Freedom, Security and Justice (AFSJ). As a starting point it refers to three emblematic cases decided by the European Court of Justice: “Aguirre Zarraga”, a child abduction case, “Jawo”, a case involving a transfer of an asylum applicant under the Dublin III regulation, and “LM”, a case concerning a European Arrest Warrant from Poland, called into question by courts in Ireland in the light of problems of judicial independence in Poland. The first section deals with the foundations and legal effects of the principle of mutual trust. Based on a fundamental distinction to be made between the AFSJ and more traditional EU law settings, it argues that the principle of mutual trust is not a freestanding legal requirement but rather a functional construction principle for the AFSJ. The second section explores several possible corollaries of mutual trust - independent authorities, common EU standards on criminal procedure and on penitentiary systems, and EU membership as such - and finds that all these are not quite as straightforward corollaries as they may appear at first sight. The decisive meta-corollary seems is respect for the rule of law. The third section looks at how EU law defines the limits to mutual trust and at the respective roles of the case law and the EU legislator in this context. It finds growing convergence between the two European Court in defining limits and proposes a heuristic distinction between retrospective and prospective settings as a guide for further interpretation. High emphasis is placed on the responsibility of the EU legislator in defining appropriate, tailor-made limits to mutual trust. Looking at the legislative reality so far, marked by various inconsistencies, there is ample room for improvement, but this will remain an arduous task as long as the notorious rule of law problems persist in some Member States. The last section is devoted to the perspective of the EU’s accession to the ECHR, in the aftermath of Opinion 2/13 in which the Court had relied inter alia on the principle of mutual trust to find the draft accession agreement as incompatible with EU primary law. The article dismisses ideas of a “disconnection clause” or of codifying the “Bosphorus presumption” to overcome the mutual trust objection of Opinion 2/13, and instead recommends a combination of a substantive clause on mutual trust and of procedural means to deal appropriately with cases on mutual trust arising in the Strasbourg Court. The final proposition is that the EU’s accession to the ECHR may be seen as a catalyst for mutual trust between EU Member States, promoting the smooth operation of legislative schemes based upon that principle, rather than as an obstacle to it.

Current Obstacles and Future Challenges of Integration in Europe

Chapter

May 2020

This book argues that the history of the EU advances in steps, starting from the founding EEC Treaty to the most recent developments, which include the Draft Accession Agreement (DAA) of the EU to the ECHR and UK-EU Withdrawal Agreement(s). Our belief is that, whist European integration proceeds through different stages and is a building block exercise, profound interconnectedness between Member States has been fostered. Yet, each country in Europe has experienced a fate of its own, which was triggered by internal political and economic crises and has fuelled Euroscepticism. The latter, rooted and framed by people’s national experiences, is an increasing sentiment. It is evident that the wave of Euroscepticism is spreading across the continent and no longer tied to small segments of society or extremist political parties. Hence, scholars argue that the EU project is exposed to greater public contestation, at time when Europe is challenged from North to South by economic and austerity measures and from East to West by migration and human rights concerns. We submit that particularly in this political and economic climate, the EU needs to rely on public support for its continued legitimacy more than ever before. This can be achieved by focusing the attention on values which are shared by individuals. Interestingly, the political climate that we are experiencing resembles the crisis of the European political order in the years between the two World Wars characterised by clashes of rival ideologies: Christianity and Islam, the social and the capitalist ideals and the emerging concept of European polity. The Second World War was a devastating event and the lessons that have been drawn are ‘that it is so difficult to appraise aggressive dictators, that democracies must maintain their unity and strength”.

La vie après l'avis: Exploring the principle of mutual (yet not blind) trust

Abstract

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