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Bailouts, the legal status of Memoranda of Understanding, and the scope of application of the EU Charter: Florescu
... Although this represents clear progress in terms of regional rights protection, the CJEU has not been particularly active in terms of directly applying the solidarity rights protected by the EU Charter. For example, following the 2008 economic crisis, the possibility was raised of examining the austerity measures proposed by the European Commission, the European Central Bank, and the International Monetary Fund, but the CJEU did not consider that ESCR protected by the EU Charter should be applied in these cases (Markakis and Dermine, 2018;Poulou, 2017). Furthermore, there have been no cases in which EU institutions have been required to apply the Charter extraterritorially to their actions in third countries (Moreno-Lax and Costello, 2014). ...
... While on the merits the ECJ ruled against the Romanian judges, the Court found itself competent to interpret an MoU between the EU and Romania and the national austerity measures in question to constitute an implementation of that MoU, triggering the applicability of the Charter. As others have observed (Dermine & Markakis, 2018), this was a notable departure from the previously dismissive ECJ case law on national austerity measures. ...
We study the conditions under which the European Court of Justice (ECJ) expanded the European Union's reach into issues of national judicial independence. The ECJ's 2018 ruling in a case known as Portuguese Judges contained a far-reaching constitutional interpretation that had a transformative impact on the European Union's rule of law crisis. We conduct a theoretically guided investigation into both the domestic origins and the judicial outcome in the Portuguese Judges case. We show how the ECJ, with implicit support from the majority of the Member States, strategically exploited suitable characteristics of an inconspicuous case to produce a landmark ruling that enabled unprecedented enforcement action against democratic backsliding in Poland and Hungary.
... While international law generally posits that obligations derived from treaties and custom override contractual or similar obligations, the practice 11 of international financial institutions (IFIs), such as the World Bank Group or the European Central Bank (ECB), and supporting states is that states must honour their contractual obligations. In fact, in the case of the Greek debt-restructuring process, the various creditors and guarantors, such as the EC Commission, Eurogroup, the International Monetary Fund (IMF) and the ECB, contracted with Greece either through memoranda of understanding (MoU) (Markakis and Dermine, 2018) or private contracts and were at pains to show that they were acting outside the framework of EU law or general international law. 12 It is interesting to note that, while all these institutions maintained since 2010 that MoU were not binding, it was only in 2018 that the Court of Justice of the European Union (CJEU) accepted in Florescu that MoU entered into by EU institutions in the implementation of EU law were in fact 'mandatory'. ...
This short paper intends to set out a general theory underpinning the process of contractualisation of public international law. In doing so, it explains that this has chiefly been engineered through the establishment of a third sphere of regulation – in addition to the spheres of domestic law(s) and international law – namely transnational law. Both private actors and states operate through this sphere, chiefly because of its flexibility, decreased transaction costs and access to capital (which is scarce in the other two spheres). These benefits of transacting in the transnational-law sphere and the contractualisation of pertinent relationships come at a cost. Such a cost, from the perspective of human rights and parliamentary sovereignty, is explored by reference to two case-studies. The second of these, on the outsourcing of indigenous land rights, is predicated on the research and observations offered by Bhatt (2020).
The past decade has seen the rise of the semi-authoritarian regimes within the European Union. EU law scholars are rightfully concerned that, in the absence of a meaningful response, this leads to an existential crisis for the Union, as these regimes threaten respect for the Union’s foundational values. The Union did respond to what it has framed as a rule of law crisis by means of a constitutional transformation, asserting Union power to protect judicial independence within the Member States even in areas previously thought beyond the reach of Union law. This paper contends that the Union’s response to the authoritarian threat is flawed for its legalist faith in law and courts. In institutional terms, it was the Court of Justice of the European Union, rather than the Union’s political branches, that took the lead in this transformation. In substantive terms, the Union has transformed its constitutional framework to protect the organisational infrastructure of the judiciary, but it failed to do the same in response to various other strategies in the authoritarian playbook. By framing the authoritarian threat as, above all else, a threat to the judiciary, the Union’s response contributes to the reification of political debate at Union level and risks the alienation of the European polity.
A contribution to legal theories of accountability, this book offers pioneering research on the position of the individual in the EU's Economic and Monetary Union. Its premise is that the EU's response to the financial crisis placed undue emphasis on equality of Member States, to the detriment of political equality of citizens. As a remedy, this book reimagines legal accountability as the vehicle for achieving the common interest, by presenting a novel understanding of the relationship between solidarity and equality. Institutionally, the author argues that, by carrying out intensive review of the duty to state reasons, courts can ensure that decision-makers act in the common interest. The book explores judicial review in financial assistance, the monetary policy mechanisms of the European Central Bank, and the Single Supervisory Mechanism. Looking into the future, it tests its theoretical and normative propositions on the newly established Next Generation EU. This title is also available as Open Access on Cambridge Core.
This book bridges the study of European constitutionalism with the study of 'fiscal federalism' – the subfield of public economics concerned with structuring public finances between different levels of government in federal states. On one axis, this book delves into European Union and Member State constitutional law from all EU Member States in order to investigate and identify the existence of permanent constitutional boundaries that will impinge upon the selection of proposed models for EU fiscal federalism. On the second axis, this book engages the study of fiscal federalism in order to determine which institutional configurations known to that field remain legally and economically implementable within those boundaries. It provides a far-reaching investigation of which models of fiscal federalism are compatible with the constitutional boundaries of the European legal order.
The Eurozone and the European Union have recently been confronted with a number of existential threats. The sovereign debt crisis and the COVID-19 pandemic have forced European decisionmakers to pass important reforms which have radically transformed the nature and scope of the Union's powers in the field of economic and fiscal policy. As the new economic governance of the Eurozone emerges as the main driver of integration in today's Europe, this book seeks to assess the solidity of the constitutional foundations supporting that system, and its compliance with the Union's core founding value: the rule of law. Using competence allocation, regulatory quality, access to external review and fundamental rights sustainability as analytical benchmarks, this book argues that the recent metamorphosis of Eurozone economic governance has not been accompanied by a parallel strengthening of its constitutional settlement, leading to a problematic misalignment between the Union's action and its governing principles.
Initially, this chapter describes the broader context of the necessary Economic and Social Europe reconfiguration process, the assumption that the EU youth generation was harder hit by the 2008 financial crisis and that the social dimension of their Eurozenship has been more substantially eroded in comparison with other age groups. Against this specific background, the European Pillar of Social Rights (EPSR) potential youth-specific significance is briefly analyzed and critically evaluated in terms of increased employability and self-esteem. Taking into consideration the relevant broadly supported ESPR positive assessment which, however, does not espouse its supposedly panacean virtues and the recently adopted or ongoing initiatives at the EU level, new specific proposals are submitted for its implementation. They regard the youth-oriented European Unemployment Benefit Scheme (EUBS) modification and the controversial sub-minimum youth wages. In this chapter, it is subsequently argued that the implementation of an effective youth outlook on EPSR, although conditional upon several political, financial as well as legal parameters and faced with multiple challenges, remains a realistic possibility and expectation.
In risposta alla crisi finanziaria del 2008, l’Ue ha adottato una nuova governance economica (NGE). In risposta alla pandemia di Covid-19, la Nge è destinata a cambiare di nuovo. Per capire la risposta dell’Ue all’attuale crisi pandemica, tuttavia, dobbiamo prima capire la Nge, che questo articolo dun- que analizza, in particolare per quanto riguarda il suo impatto sulle politiche del lavoro. Proponiamo quindi un’analisi approfondita delle prescrizioni di policy emesse tra il 2009 e il 2019 nell’ambito della Nge in materia di politica salariale, protezione dell’occupazione e contrattazione collettiva, in particolare quelle dirette a quattro paesi (Germania, Italia, Irlanda e Romania). In contrasto con i sostenitori della cosiddetta «tesi della socializzazione», la nostra conclusione principale è che nell’ulti- mo decennio gli interventi dell’Ue in queste tre aree delle relazioni industriali hanno continuato a esse- re dominati da un’agenda di liberalizzazione che mercifica il lavoro, anche se in misura diversa al- l’interno della disomogenea economia politica europea. Tuttavia, la nostra analisi permette anche di individuare alcune contraddizioni che potrebbero fornire delle opportunità di mobilitazione ai movi- menti sindacali e sociali europei.
In response to the 2008 financial crisis, the EU adopted a new economic governance regime. In re- sponse to the Covid pandemic, NEG is set to change again. To understand the EU’s response to the current pandemic crisis, however, we must first understand NEG. This article therefore analyses NEG and its relevance for labour politics. It does so through an in-depth analysis of NEG prescriptions on wage, employment protection and collective bargaining policy in Germany, Italy, Ireland and Romania between 2009 and 2019. In contrast to supporters of the «socialization thesis», our main conclusion is that over the last decade the EU’s interventions in these three industrial relations policy areas continued to be dominated by a liberalization agenda that is commodifying labour, albeit to a different degree across the uneven European political economy. Even so, our contextualised analysis also enables us to detect contradictions that could provide European labour movements with opportunities to pursue countervailing action.
This paper analyses the difficulties encountered by the Court of Justice in exercising judicial control over austerity measures. Two factors complicate the task of the Court of Justice. First, the difficulty of the courts to rule on the validity of the economic policies of the political institutions. Second, the fact that the financial assistance mechanisms for the Eurozone countries were created outside the framework of EU law and the Member States rescues were organised by means of the adoption of hybrid legal acts of varied legal nature. The case law of the Court of Justices (Mallis, Ledra, etc.) is scrutinised taking into account these two factors.
In the LM case, the CJEU was called to decide on whether systemic rule of law deficiencies in Poland could lead to the suspension of EU cooperation based on mutual trust, in particular under the European Arrest Warrant system. Building on its earlier decision in Aranyosi , the Court concluded that EAWs may be suspended only after the executing authority conducts a general analysis of the situation in the country concerned and an individual assessment of the specific situation of the applicant. For some, the decision was a disappointing one, as the Court failed to take a clear stance on the Polish constitutional crisis. This chapter argues, on the other hand, that the Court reached a balanced decision: while it is true that it confirmed the strict Aranyosi test, it also sent some key messages on the crucial importance of the rule of law and judicial independence for the EU and underlined the red lines of European constitutionalism. Furthermore, a different line of cases that originated from the groundbreaking decision of the Court in the ‘Portuguese judges’ case seems much more promising for the protection of EU values. Thus, rather than a constitutional moment for the Union, LM was ultimately an intermezzo between the two main acts of the rule of law play before the Court of Justice.
This contribution will tackle a central question for the architecture of fundamental rights protection in the EU: can we envision a Charter that fully applies to the Member States, even beyond the limits of its scope of application? To improve our understanding of the boundaries of the Charter and the potential for further expansion, I will examine the legal avenues through which the CJEU has extended the scope of application of EU fundamental rights in fields of state powers. While the latent pull of citizenship towards a more expansive application of the Charter has not been fully realized, the principle of effective judicial protection (Article 19(1) TEU) has recently shown potential for protection under EU law beyond the boundaries of the Charter. As will be argued, effective judicial protection may well become a doorway for full application of the Charter to the Member States. While such an outcome might currently seem politically unsound, I contend that a progressive case-by-case expansion of the applicability of the Charter to the Member States would be welcome from the standpoint of a robust notion of the rule of law in the EU.
According to the generally accepted understanding, judicial activism arises when a court behaves improperly, straying beyond the limits of the judicial function and acting like a legislature.
It is convincing that in the great majority of the cases the Court of Justice of the European Union fulfils the roles assigned to it by the founding treaties of the European Union without any excess, but there are decisions which may be characterized as activist, be they necessary or useful for the proper functioning of the European legal system, and there are decisions (refusing or avoiding to decide) which may be qualified as manifestations of judicial passivism.
Judicial passivism is defined in the narrow sense of the term, i.e., when the court clearly refuses or avoids to decide the case before it, or does not answer the question legitimately referred to it. In the jurisprudence of the CJEU, such cases arise when the Court systematically waits for the withdrawal of the action, exceeds the reasonable time of the proceedings, or does not answer the question raised in the preliminary ruling procedure by the national court. The inadmissibility of questions referred by national courts may be perceived as passivism when the qualification of ‘not a court or tribunal’ in the sense of Article 267 TFEU is questionable, or when the scope of the EU Charter of Fundamental Rights is defined too narrowly. Cases may arise – at least in theory – in which the Court, while it would be in a position to act, defers the question to the EU or the Member State’s legislator or to the national judge to decide, with the not entirely convincing qualification of the act under scrutiny in annulment proceedings as ‘not an act for the Article 263 TFEU’. The label ‘judicial passivism in a broad sense of the term’ is used when the Court sticks to its position in a questionable manner (conservatism as passivism), steps back from its earlier position, narrowing the scope of EU law expressly or implicitly overruling its former decision, or it introduces new conditions with the same result (retreat).
It has been demonstrated that the Court systematically opposed the Member States, the Commission and the parties in the main proceedings, arguing in favour of inadmissibility of referrals for preliminary questions − the Court avoided, in a large number of cases, the temptation of judicial passivism. On the other hand, the Court’s increased rigour in the preliminary ruling procedures is detectable in recent years. The Court took a less benevolent approach towards the qualification of the referring body as ‘court or tribunal’; the questions proved to be ‘hypothetical’ more often than before, and more importantly, the lack of sufficient information regarding the factual and regulatory context led more easily to inadmissibility.
The driving forces behind the passivism of the Courts of the European Union are the ‘reasonableness’ of the judiciary in a time of crisis of the European integration, self-defence against the overburden of case-law and against unnecessary pressure from the public, in order to maintain the health of the management of justice and a certain ‘path-dependence’ as far as the traditional theoretical foundations of European integration are concerned.
Polycentricity in the European Union - edited by Josephine van Zeben April 2019
Judicial serendipity: how Portuguese judges came to the rescue of the Polish judiciary - Volume 14 Issue 3 - Matteo Bonelli, Monica Claes
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