12 November 2018
Never Missing an Opportunity to Miss an Opportunity: The Council Legal Service Opinion on the Commission’s EU budget-related rule of law mechanism
Regrettably, we need to add the Council’s Legal Service to the list of key EU actors that seem intent on ignoring the existential threat to the Union posed by the spreading rule of law rot amongst EU member governments. In a (non-public) opinion on the proposed regulation of the Commission to create rule of law conditionality in the multi-annual financial framework adopted on 25 October 2018, the CLS indeed put forward multiple unpersuasive legal arguments to claim that the Commission’s proposal cannot be adopted. With this opinion, the CLS is advising the Council to actually prevent other institutions of the EU from doing their job to uphold and defend the set of common values on which the EU is based. Continue reading >>
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10 September 2018
How to Stop Funding Autocracy in the EU
The EU finds itself in the perverse situation of providing some of the largest transfers of funds precisely to those governments who most prominently thumb their nose at its democratic and rule-of-law norms. The legal debate about this misses the fact that the EU already has a sufficient legal basis to suspend the flow of funds to states in which rule-of-law norms are systematically violated. The real problem to date has not been the lack of adequate legal tools, but the lack of political will on the part of the European Commission to use the tools that already exist. Continue reading >>28 July 2018
Rule of Law Retail and Rule of Law Wholesale: The ECJ’s (Alarming) “Celmer” Decision
A craving for the rule of law can be satisfied in two ways. You can invoke it legally through a case-by-case checking of its presence in any particular instance (though of course, retail assessment means you’re at the mercy of the court near you) or you can better guarantee a steady and plentiful delivery by contracting wholesale, thus providing a legal constraint on the supplier’s ability to deviate. This week’s decision of the European Court of Justice in the “Celmer” case (Case C-216/18 PPU, Minister for Justice and Equality v LM) tells us that the rule of law is now available retail in the European Union, but it is not now – and probably can never be – available wholesale. Continue reading >>
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10 March 2018
Is There A Better Way Forward?
Poland and Hungary have governments that are systematically undermining constitutional checks on the power of their leaders and deliberately turning all state institutions into arms of the party. Those cases demand that the EU’s full powers be urgently directed to averting a full-blown autocracy within the EU. What can be done? Continue reading >>
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09 March 2018
Didn’t the EU Learn That These Rule-of-Law Interventions Don’t Work?
When Hungary first starting doing down the path to autocracy after 2010, EU officials were quick to recall the “failed” case of Austria in 1999. Didn’t the EU learn from its experience? Continue reading >>
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08 March 2018
Why Poland and not Hungary?
According to Frans Timmermans, speaking on 17 September 2017, “the situation in Hungary is not comparable to the situation in Poland” implying that Poland is far worse off than Hungary in the rule of law department. But is that true? Continue reading >>07 March 2018
Was the Commission Right to Activate pre-Article 7 and Article 7(1) Procedures Against Poland?
Despite the Commission’s best and repeated efforts, the rule of law situation in Poland has indeed been going from bad to worse under the stewardship of Poland’s de facto leader and its “Law and Justice” governing party. Continue reading >>06 March 2018
Is Article 7 Really the EU’s “Nuclear Option”?
Why have some EU officials called Article 7 the EU’s “nuclear option” – and is Article 7 really that powerful? Continue reading >>05 March 2018
Does the Commission have the Competence to Monitor Compliance?
Does the Commission have the competence under the Treaties to monitor compliance with the rule of law in countries suspected of rule of law backsliding, even in the event of a breach in an area where the Member States act autonomously? Continue reading >>04 March 2018