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International and European Norms on the Rule of Law from the Perspective of the Republic of Serbia
Abstract
This paper examines international and European norms concerning the principle of the rule of law and its implications for the Republic of Serbia’s legal order. There is no universally accepted definition of the rule of law, but some common elements can be found in international legislative acts and jurisprudence. The European Union and Council of Europe have substantial legislation on this issue; with their courts’ jurisprudence, they have a significant influence on their Member States’ comprehension of the rule of law principle. The Republic of Serbia has embraced the principle in its Constitution and developed it in its legislation. It will also accept and include European interpretations of the rule of law in its legislation and judicial and administrative practice by joining the European Union.
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jats:p>The rule of law as one of the core constitutional values of the EU legal order – The rule of law in the case law of the Court of Justice of the European Union – Jurisdiction of the Court on the basis of a combined reading of Articles 2 and 19 TEU – Protecting the rule of law in the Common Foreign and Security Policy – Protecting the rule of law in the member states in order to safeguard the structure and functioning of the EU legal order – Limits to the scope of application of EU law</jats:p
New Horizons for the Rule of Law Within the EU - Volume 21 Issue 1 - Koen Lenaerts
In May 2014 the Legal Service of the Council delivered an opinion on the European Commission's Rule of Law Framework, stating the Commission's new mechanism was unlawful. This article sets out a critical analysis of this opinion, and questions whether the annual rule of law dialogue announced by the Council in December 2014 is a feasible response. Hungary is used as a case study to highlight the total failure of the Council to take any action whatsoever in the face of the grave and systemic abuses of human rights committed by the government of that country since 2010; and Poland where an autocratic regime has been in place since the autumn of 2015 is also mentioned. This is contrasted with the efforts of the majority of the Members of the European Parliament to tackle the acute challenge and with the Commission's action on specific breaches. A co-ordinated strategy is sorely needed.
The article offers a succinct conceptual and analytical framework for approaching the 'great rule of law debate' currently unfolding in the EU (European Union) and the contending positions of the various EU institutions embroiled in it. It addresses the challenge of conceptualization imbued in the notion of the rule of law, and critically examines the definition of the concept provided by the EC (European Commission). It then demonstrates that over the course of modern European integration, the rule of law emerged as a central dimension in four distinct core areas of EC/EU identity and activity. Should the contemporary crisis of foundational values persist or deepen, each of the four is expected to be adversely affected. Finally, the article explores the emerging 'rule of law turn' in the EU. © 2016 University Association for Contemporary European Studies and John Wiley & Sons Ltd.
After being initially drafted in 2001 by an expert body - the International Commission on Intervention and State Sovereignty - the "responsibility to protect" (R2P) doctrine has eventually found its way into the 2005 UN World Summit Outcome document, thereby replacing a morally controversial doctrine of "humanitarian intervention". The paper aims, first, to point out how these two doctrines are different ethical projects. Second, recognizing that it is safer to say that the doctrine has not become a principle of law, this paper tries to situate it within the prevalent value of the international rule of law. It does so by exploring two somewhat contrasting conceptions - one more substantive in nature, which takes individuals as ultimate beneficiaries of this value, and the other, more formal in nature, which puts states in the forefront. The R2P case shows, however, that neither of them can be advanced to the full extent. © 2015 The Author. Published by Oxford University Press. All rights reserved.
This article offers a comprehensive examination of the rationale underlying the rule of law framework adopted by the Commission in March 2014 before outlining its main features. It is argued that while the Commission’s ‘light-touch’ framework falls short of what is required to effectively address internal threats to EU values of a systemic nature, it remains preferable to the new mechanism adopted by the Council in December 2014 and which consists of holding an annual rule of law dialogue among all Member States within the Council. To make the Commission’s framework more workable and effective, which should in turn increase its ‘dissuasive potential’, a number of modest recommendations are also offered at a time where an increasing number of voices are asking the Commission to activate the first phase its new mechanism in relation to Hungary and more recently, Poland.
Pursuant to the same logic that prevailed when Jean Monnet and Robert Schuman reached out to Germany after the end of World War II, and in keeping with the promise made in the Preamble of the founding treaty, the EU now reached out to Central and Eastern Europe after the end of the Cold War and offered integration. In recognition of the difficulties for the EU on the one side of absorbing a large number of countries without jeopardizing the functioning of the institutions, and the difficulties for the Central and Eastern European Countries ("CEECs") on the other side of transforming themselves into modern democracies with rule of law and functioning market economies, a number of pre-conditions for accession and a number of support schemes for the transformation were established. The present Article analyzes those pre-conditions that were supposed to promote the development of rule of law, as well as those schemes that were intended to support this development. It concludes that first, the concept of “rule of law,” although often quoted, is poorly defined and understood and this is an obstacle for countries aspiring to build a system based on rule of law. Second, Western support for the transformation in Central and Eastern Europe was and continues to be a combination of trial and error with a lack of appreciation of historic precedent and lessons.
A year after the publication of Dicey's LAW OF THE CONSTITUTION, William Gladstone was reading it aloud in the House of Commons, citing it as authority. It remains, to this day, a starting point for the study of the English Constitution and comparative constitutional law. THE LAW OF THE CONSTITUTION elucidates the guiding principles of the modern constitution of England: the legislative sovereignty of Parliament, the rule of law, and the binding force of unwritten conventions. Dicey's goal was "to provide students with a manual which may impress these leading principles on their minds, and thus may enable them to study with benefit in Blackstone's Commentaries and other treatises of the like nature those legal topics which, taken together, make up the constitutional law of England."
This article examines the development and particular nature of the rule of law in the European Union against the background of the wider legal and political theoretical debate on the principle. It hence analyses the case law of the Court of Justice of the EU and the Treaty revisions on the rule of law. It argues that the principle has developed greatly since the first mention of it in the case law of the Court and contends that the principle has a particular focus in the EU on judicial protection in light of human rights. Nonetheless it is hard to apply the dichotomies running through the debates in legal and political theory to the development of the principle in the EU; an idiosyncratic mix of features seems to emerge. Moreover, this article also takes the case study of the external dimension of migration control to assess the current challenges to the rule of law in the EU. It thereby uncovers ways of working in the EU that are hard to reconcile with the rule of law requirements.
International law gains a growing importance for any national legislation. Far from being only scattered rules of law, we can talk, at this moment, of an international law system, which though has its limitations, yet succeeds to set up a precise framework on the national legislations, specially in areas such as environmental law, criminal law and human rights.
Regulation 1/2003 granted the European Commission generous enforcement powers which attribute a wide discretion to the Commission and, consequently, could be misused in different ways. Effective judicial review is essential for the prevention of such potential misuse of powers and for the protection of the rule of law. From this perspective the recent Alrosa case appears particularly important, as it reveals how the EU judicature approaches to the Commission's extended discretion in the post-modernisation EU competition law regime. This article analyses Alrosa and its potential implications from a systemic rule of law perspective. The article finds that particularly the manifest disproportionality standard followed in this case falls short of protecting the rule of law. As a solution, it is argued that measures should be adopted to reduce the information asymmetries that the courts suffer from, so that they could perform effective judicial review without encroaching on the Commission's discretion.
This article examines the substance and scope of this constitutional principle before subjecting the EU’s constitutional framework to 'a rule of law audit.' It will first be shown that the EU constitutional principle of the rule of law is, to paraphrase Lord Bingham, no meaningless verbiage. Not only has the rule of law unsurprisingly become one of the defining principles undergirding the Union’s constitutional system, but the EU courts have correctly understood it as a multifaceted legal principle, with formal and substantive elements, and whose normative impact should not be underestimated. The fact that the EU rule of law is no hollow slogan, however, does not necessarily imply that there is no gap between rhetoric and practice. Adopting the Court of Justice’s understanding of the rule of law as a benchmark, this article will propose that the post-Maastricht Union’s constitutional framework illustrated a serious ‘rule of law deficit’ that has been considerably remedied by a set of long-awaited reforms contained in the 2007 Lisbon Treaty.
Abstract: The rule of law is one amongst a number of principles that are together regarded as under-girding the EU polity and common to the EU Member States. This paper first asserts that the rule of law can be accurately described as a “common principle.” A series of “shared traits” are outlined with respect to the three dominant constitutional traditions in Europe (England, Germany and France) and it is argued that these shared traits are sufficiently robust to amount to an identifiable common denominator. The meaning, scope of application and normative impact of the rule of law in the EU’s constitutional framework is then explored in light of these shared traits. An attempt at distinguishing between the conventional and distinctive features of the EU rule of law is made. This paper suggests that similarly to national experiences, the EU rule of law has progressively and rightfully become a dominant organizational paradigm, a multifaceted legal principle with formal and substantive elements which nonetheless lacks “full” justiciability. However, the EU rule of law also presents distinctive features which reflect the EU’s original constitutional nature.
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