Rule of Law Chickens Coming Home to Roost
Ongoing assaults by Viktor Orbán’s Fidesz administration on the rule of law in Hungary have produced manifold reactions, generally of depressingly limited effectiveness. Last week, on 13 June 2024, in Case C-123/22 European Commission v Hungary, the Court ordered a record lump sum payment of €200,000,000 and a penalty payment of €1,000,000 per day of delay until an earlier 2020 Court ruling is complied with. Hungary thus received a stinging reminder that the Court of Justice is not toothless when it comes to the rule of law.
Continue reading >>
Trans Rights and Gender Recognition before the CJEU
On May 7, 2024, the Advocate General of the CJEU issued his Opinion on the Mirin case concerning the right to Legal Gender Recognition (LGR) for transgender persons. Yet, the solution offered by the AG deviates from the Court’s previous case-law on LGR, by making it about free movement rather than protection against discrimination, or fundamental rights. It also places the applicant, and those in a similar position, in an administrative situation that is defeating the very purpose of LGR – an issue that the AG himself acknowledges. A more satisfactory and ambitious alternative would instead be to frame the LGR as protected under the EU Charter.
Continue reading >>Rejecting Lip Service or Validating 1930s Family Values?
On 8th March 2024, the Irish people rejected two separate constitutional referendums on family and care in an overwhelming no vote. These amendments aimed to update a conservative and gendered ideal of family found in Article 41. The family and care referendums involved more abstract statements of directive constitutional values. The result of the referendums is a win for voter confusion, anger towards the government and the NoNo campaign. It is also a loss for political constitutionalism.
Continue reading >>
Pushing Back
The CJEU has pending before it a crucial case on the criminalisation of seeking asylum and assistance to those seeking protection. At this critical juncture, this blog post highlights a sample of important decisions in which courts, giving effect to constitutional and international legal principles, set legal limits on this form of criminalisation. These cases reflect not only the appropriate legal limits, but also acknowledge the character of irregular migration and smuggling. Rather than framing individuals as dangerous illegal migrants and exploitative smugglers, they reassert the humanity of both those in search of refuge and opportunity, and those that assist them.
Continue reading >>
Same Old, Same Old
Following the General Affairs Council on 12 December 2023, the Spanish presidency issued its conclusions on the evaluation of the Annual Rule of Law Dialogue (ARoLD). The overly positive assessment that transpires from the conclusion fails to convince, due to the continued reliance on confidentiality and the lack of any tangible standards. Moreover, the improvements suggested by the Presidency fall overwhelmingly short of addressing the issues that plague this instrument, confirming it as a weak exercise in posturing with no real stakes involved.
Continue reading >>
The Future of the Rule of Law in the EU
With systemic threats to and violations of the rule of law not subsiding, notwithstanding the expected end of backsliding in the case of Poland, the future of the rule of law in the EU is likely to be one of retrenchment accompanied by increased gaslighting to mask an increased gap between EU rhetoric and EU action. This means that the Commission’s decision to unlock € 10 bn of EU funding previously frozen on rule of law grounds to “sway Viktor Orbán on Ukraine” should not be seen as a once-off aberration but as prefiguration of a new abnormal normal.
Continue reading >>
Beating a Dead Horse
With the view of potentially revising how the EU Council’s Annual Rule of Law, the Spanish Presidency of the Council had sent out a “questionnaire for the Member States on the evaluation of the Council’s annual rule of law dialogue. The provided answers will inform conclusions to be adopted following the General Affairs Council scheduled for 12 December 2023. Following the disclosure of the MS’ answers to this questionnaire, this post will discuss the added value of this discursive and secretive tool to address systemic threats to or violations of the rule of law. I argue that the answers reveal the dialogue to be an ultimately toothless and partially incoherent exercise that relies excessively on the good faith of its participants and lacks accountability by design.
Continue reading >>Supreme Judgecraft
In R (on the application of AAA (Syria) and others) the UK Supreme Court held that the Secretary of State’s policy to remove protection seekers to Rwanda was unlawful. Rwanda is not, at present, a safe third country. There are, the Supreme Court found, “substantial grounds for believing that there is a real risk that asylum claims will not be determined properly, and that asylum seekers will in consequence be at risk of being returned directly or indirectly to their country of origin.” Should this occur “refugees will face a real risk of ill-treatment in circumstances where they should not have been returned at all.” We argue that the Supreme Court’s legal reasoning and evidential assessment are both impeccable, applying legal principles that are well-embedded in international and domestic law to very clear evidence. However, the UK government’s responses are deeply troubling, from the perspectives of refugee protection, international legality, and the rule of law in the UK.
Continue reading >>
Defeat in the Supreme Court
On 15 November 2023, the UK Supreme Court (UKSC) unanimously declared the government’s policy of removing some asylum seekers to Rwanda to process their claims unlawful. Like the Court of Appeal, it found substantial grounds for believing that asylum seekers would face a real risk of ill-treatment because of insufficient guarantees against refoulement. This post explores the origin and significance of the UKSC judgment and the legal and policy implications of the UK government’s immediate response to it.
Continue reading >>
Has Right-Wing Populism Reached Argentina?
Last Sunday, August 13, Argentina held elections to determine the candidates who will run in next October's national presidential elections. In a surprising turn of events, the far-right candidate Javier Milei, an outsider that started in politics around 2019, surged ahead in the preliminary elections, sending shockwaves through Argentina's political landscape which has traditionally favoured left-wing populism. In this blogpost, I argue that disillusionment with political establishment, extremely high inflation and crime are core reasons driving Milei’s surprise success at the ballot box.
Continue reading >>
Doing Justice to Poland’s Muzzle Law
On 5 June 2023, the Court of Justice issued its fourth infringement judgment in relation to yet another Polish piece of legislation – informally known as the muzzle law – which aimed to dissuade or punish Polish judges for applying and upholding EU rule of law requirements. As anyone with any basic understanding of EU law could have predicted, the law rushed into force by Poland’s ruling coalition in December 2019 did not survive judicial scrutiny in Luxembourg. As long as the Commission fails to demand full compliance with CJEU case law and decisively address the issue of judicial usurpers, however, just chipping away at the arbitrary disciplinary changes Polish authorities have made will always fail to solve Poland’s fundamental and systemic issues.
Continue reading >>Closure and Continuity
Trade, sovereignty, rights and freedoms, courts, and constitutional change are lenses through which we can examine how two politically, culturally, and linguistically inextricably linked common law countries have defined their diverging relationship with the EU. 50 years on the divergence is complete. The UK is now a third country, charting a future outside the EU, while Ireland remains one of 27 Member States reporting high levels of trust and support for the EU. Hence 50 years on we have both the desire for closure (for the UK) and continuity (for Ireland). In fact, we argue that closure and continuity are necessary for the relations between both states and their relationship with the EU now and in the next half century.
Continue reading >>
A Fond Embrace?
As with any relationship, significant anniversaries offer us an opportunity to take stock. Looking backwards allows us not only to appreciate how far we have come, but also, perhaps, to reflect on the direction in which we might be heading. To date, upwards of 2,200 judgments of the Irish courts have considered EU or Community law in some form. Against this context, this short contribution reflects on the reception of EU law in the Irish courts since 1973.
Continue reading >>
Constitutional Identity, Ireland and the EU
Costello v. Government of Ireland and others is one of the most significant recent Irish Supreme Court rulings concerning EU law. The case involved a member of parliament seeking to restrain the Irish government from ratifying the 2014 EU-Canada Comprehensive Economic and Trade Agreement (CETA) on grounds of alleged unconstitutionality. Costello’s most long-lasting impact is likely to be its introduction of the concept of constitutional identity into Irish constitutional jurisprudence.
Continue reading >>