Strengthening the Resilience of the Rule of Law through Democracy
For almost a decade now, the European Union (EU) has been struggling with the erosion of the rule of law in some of its Member States. The IEP explored the various pillars of the rule of law resilience, culminating in the recent RESILIO report. Unsurprisingly, the independent judiciary and effective public administration prove to be key for the functioning of the rule of law. To remain resilient, the rule of law needs a solid democratic political culture anchored in a robust civil society, independent media, and a sound public debate. Henceforth, a long-term investment in democracy is the best way to strengthen the resilience of the rule of law.
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Die Sperrklausel ist keine Lösung
Es ist fraglich, ob es tatsächlich die Anzahl kleiner Parteien im Europaparlament ist, die dessen Handlungsfähigkeit gefährdet. Eher geht die Gefahr wohl von der zunehmenden Anzahl an rechtsextremen und antieuropäischen Abgeordneten aus, die es sich zum Wahlziel gemacht haben, eine Sperrminorität zu erreichen und damit das Europaparlament zu blockieren – und die nicht notwendigerweise aus kleinen Parteien stammen. Um die Handlungsfähigkeit des Parlaments zu sichern, sollten sich Politiker:innen darauf konzentrieren, Wählerstimmen für eine stabile pro-europäische Mehrheit zurückzugewinnen.
Continue reading >>The Spitzenkandidaten Practice in the Spotlight
Ten years have lapsed since the first successful attempt to launch the Spitzenkandidaten practice in 2014. With the European political parties midway through selecting their lead candidates once again, the upcoming European elections raise questions about the constitutional nature of this informal practice. The following comment aims to enquire what consequences, given the evolving dynamics of the practice, can be attached to a potential failure to designate a Spitzenkandidat. In particular, I argue that only if the SK process evolves into a constitutional customary rule, it is possible to conceive a duty upon the European Council to consider appointing the leading candidate from the party winning the elections of the European Parliament.
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The Kovačević Case Revisited
On 20 March 2023 the Council of the European Union gave Bosnia and Hercegovina green light to start accession negotiations. However, despite this political endorsement, BiH must fulfill the conditionality criteria, including a series of six judgments by the ECtHR relating to the predetermined ethnic keys. The last case, Kovačević v. BiH, was referred to the Grand Chamber in December 2023. If the Court follows its previous case law, this should force the mono-ethnic political parties and their leaders as well as the EU institutions to insist on de-blocking the constitutional impasse for any realistic steps towards European integration.
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Silence is Golden, but not Mandatory
Last week, European Commissioner Breton received a slap on the wrist from the commission’s officials. After he (politically unwise) criticized the process of electing Ursula von der Leyen as the EPP’s leading candidate on X (formally Twitter), the Commission’s Secretary General did not mince his words in reminding him of his obligations under EU law and the potential sanctions for violating them. In this post, I argue that one cannot construe the duties of the Members of the Commission as a prohibition of political expressions of any kind.
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Inquiring into the Technicalities of EU Law
It may sound trivial, but I argue that the technicalities of EU law have been neglected and that an in-depth inquiry is lacking. To see why such an inquiry might be interesting, we must go beyond the traditional understanding of legal technicalities and see them as protagonists in their own right. We need to focus on lawyers’ knowledge practices and to inquire into the transformative power of legal technicalities.
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A Critical Assessment of How We ‘Speak’ EU Law
Although EU law touches on several profound and complex ontologies of ways of living and being in the European polity, these meanings are usually not reflected in how lawyers and legal scholars ‘speak’ EU law. The reason for this is that EU law is formulated in a strikingly abstract and univocal way, leaving little room for an in-depth consideration of the different interpretations of the law by reference to the various values and conceptions of the individual and social institutions that it underlies.
Continue reading >>The Janus-Faced Culture of EU Law
Can there be a cultural study of EU law? The notion of legal culture is notoriously tricky. It is both omnipresent and yet seemingly ungraspable. Can we nevertheless hope to dispel the mystery of legal culture, and seize this notion as an object of study? And can it provide a method to improve our understanding of EU law?
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How to Avoid Another Botched EU Enlargement by Sticking to the Rules
Is the European Union once again about to duck the challenge of constitutional reform? Even the imperative of Ukraine’s accession does not impel the EU to strengthen its governance. The European Parliament has made formal proposals to change the treaty from unanimity to QMV. The Commission equivocates. The European Council simply sits on the dossier, looking for excuse after excuse. Worse, a new idea is being floated in Brussels that mixes bad law with bad politics. The ruse is to use Article 49 TEU, the accession clause, instead of Article 48. I explain here why this approach will neither help Ukraine nor salvage the Union’s self-respect.
Continue reading >>Studying Migrations and Borders from a Pluridisciplinary Perspective
I chose for years to consider migrations and borders from a pluridisciplinary perspective. Such a pluridisciplinary approach reveals to be demanding: it needs both to be developed with discipline, and to be opened to wanderings. You have to accept to be confronted with personal controversies, to be faced with internal discourse on the method.
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Europe’s Judicial Narratives
Through the representations of Europe that it conjures up and conveys, the European Court of Justice significantly influences the EU’s self-perceived identity. In that sense, it contributes to the shaping of a European polity, i.e. a European political community united by shared representations about its history and identity.
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The Triumph of EU Law in Context?
Whereas law-in-context analyses of Community law were relatively rare in the early 1990s, they seemed to flourish from that point onwards. Unsurprisingly, even “mainstream” journals, such as the Common Market Law Review, now strive to attract pieces that combine legal analysis with social, political or economic insights. Does that mean that we are all “contextualists” now? Not in my view.
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Colonialism and EU Law
In 1957, when the Treaty of Rome was signed and founded what later became the European Union (EU), four out of six of the original Member States were colonial powers. An important methodological question for EU law research is how this historical fact has affected the development of EU law. I argue that answering the question of how Europe’s centuries long history of colonialism has shaped EU law is not just a historical exercise but also a starting point for an examination of EU law of today.
Continue reading >>For a Postcolonial reading of the EU
The use of the terms 'decolonial', 'postcolonial' and 'race' has become fashionable, particularly in Anglo-American legal scholarship. However few legal scholars in recent years have ventured into postcolonial approaches to European Union law. I will argue that one cannot understand the history and law of the European Union if one fails to understand and acknowledge colonialism.
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EU Law Through the State Lens
The conceptual apparatus that frames our knowledge of EU administrative law today has its origins in the legal scholarship that established a new field in the turn of the 1980s and during the 1990s. This scholarly field owes much of its uncontested existence to a series of major handbooks, which systematized materials that hitherto had been sparse and scattered, first in German, then in English and later still in French. Revisiting the past may provide some clues as to the role legal scholars can and should have in a period in which we may be witnessing an epochal transition in Europe.
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Establishing Law in Context
Law in Context (LIC) was a revolution in EU law studies. It began in the 1980s and ‘90s and its effects continue today. This blogpost sketches selected basic landmarks. Inevitably it is a personal perspective, because if the short history of LIC shows anything, it is that there are almost as many views of ‘context’ as there are LIC scholars. To fully understand the LIC movement, it is essential to consider it in context; furthermore, despite changes in context, LIC remains pertinent today.
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The Fall of The Great Paywall for EU Harmonised Standards
In case C-588/21 P, the CJEU dismantled a foundational axiom of the European Standardisation System: the paywall of harmonised standards. The Court confirmed that harmonised standards are an integral part of EU law, mandating their free accessibility. In this commentary, I posit that the Court’s decision imposes a proactive publication obligation and challenges the existing copyright protection afforded to harmonised standards.
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EU Law and Legal Theory
European law is a very strange creature. It is something that has been created, produced, mostly by jurisprudence and doctrine, and this makes European law especially challenging and interesting for scholars, because it has been, in many respects, a product of scholars. How should we approach the study of European law? How could we approach in a sensible way the study of European law?
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Reconnecting EU Legal Studies to European Societies
EU legal studies suffer from a disconnect with social reality. If we need a method, it is one that allows us to reconnect with European societies as a bustle of unsettled forms of life, from both an existential and social perspective. Departing from classic institutional and constitutional approaches to EU law, while endorsing the critical turn in the EU legal studies, I will argue in favour of a new “anti-transcendental” perspective.
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FIFA Transfer System Rules in front of the Court
The governance of professional football is facing turbulent times. After three verdicts on 21 December 2023 (ESL, RAFC and ISU), the next case potentially sanctioning football governance is already well underway. In the pending Diarra case (C-650/22), the validity of the FIFA transfer system is at stake. Transfers are among the bread and butter of daily football practice. Any flaw in the transfer system will affect the whole industry. This blog post explores Diarra from a competition law perspective.
Continue reading >>Becoming a (Critical) EU Law Scholar Today
Turning the existential crisis of Europe into critical knowledge, called for by Loïc Azoulai, requires – among other things – critical scholars. The question is, however, whether the present conditions allow for such people to emerge. I discuss only four of the many obstacles that critical scholarship faces today and conclude with a call for something that might be called “critical scholarship about legal scholarship”.
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Controversies over Methods in EU Law
Methodological issues pervade contemporary debates in EU law. There are many reasons for this. Some are specific to the subject matter of EU law itself. The multiple crises that the European Union is experiencing lead EU law scholars to question their classical conception of EU law: a law of integration that should more or less naturally lead to a constitutional or federal order. These crises may also lead scholars to question their relationship with the European institutions, which have been central to the development of the core concepts of EU law and of EU law as a disciplinary field.
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The Sovereign Protection Office as the Tip of the Iceberg
In December 2023, the Hungarian Parliament passed a law establishing a Sovereign Protection Office—a state administration which now possesses unfettered access to personal data to find and sanction supposed foreign agents among the Hungarian populace. This office operates at will and without oversight, offers no avenue for legal redress, and wields prison time upwards of three years. In recent weeks, the European Commission launched an infringement proceeding over the law, and the European Parliament called on the European Council to consider Article 7(2) procedures.
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Shortcomings of the AI Act
After the much-awaited vote of the 13th March 2024 by the European Parliament, it is time to begin evaluating the state of fundamental rights in light of the AI Act. In this blog post, three areas of potential inconsistencies and risks are examined: differentiation of provider and deployer, biometrics used in real-time and post-factum, and the standards of biometric recognition in the areas of immigration.
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Mehr Transparenz, aber vorläufig keine weitreichende Entlastung
Am 27. Februar hat das Europäische Parlament nun einer Reform der Zuständigkeiten des EuGH zugestimmt. Die vorgeschlagenen Änderungen der Satzung (EuGH-Satzung nF) sollen einerseits die Arbeitsbelastung des EuGH vermindern und andererseits der Transparenz der Verfahren dienen. Letzteres stellt einen entscheidenden Beitrag zur Offenheit des Gerichtshofs dar. Ob die Reform allerdings zu einer echten, langfristigen Entlastung des EuGH führen wird, lässt sich angesichts der geringen Anzahl erfasster Verfahren sowie der vorgelagerten „Triage“-Entscheidung beim Gerichtshof bezweifeln.
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European Nuclear Weapons
After Donald Trump’s announcement to withhold US military support in case of an attack on a NATO member by Russia under certain circumstances, a discussion has been sparked on whether Europe itself should have their own nuclear weapons for nuclear deterrence. However, given the progress in the legal framework of nuclear non-proliferation and nuclear disarmament, European nuclear weapons would violate international law.
Continue reading >>EU’s Involvement in the Renewal of the Spanish Council of the Judiciary
The growing political polarization of Western liberal democracies often leads to situations of political deadlock that require the intervention of an external authority capable of untangling the knot. After the second (fruitless) meeting held today between Commissioner Reynders and representatives of the Spanish government and the main opposition party, there is no simple solution in sight to an issue of the renewal of the Spanish Council of the Judiciary with significant implications for the immediate future of the Spanish political scenario. In this blog, I argue that underneath all the technical layers of legal order invoked under the generic defence of the rule of law, there are political and democratic debates for which the EU may play an important yet uncertain and questionable role.
Continue reading >>In Search of a Methodical Approach to Seat Apportionment in the European Parliament
The European Parliament is once again trying to tackle the problem of how to apportion its seats between member states. In one of those rare Treaty instances, Parliament is obliged to initiate this procedure itself [Article 14(2) TEU]. It has so far failed in this obligation, and finding a decent solution still proves difficult. However, on 14 February 2024, the Parliament’s Constitutional Affairs Committee (AFCO) organised a workshop to consider three alternative formulae, all of which respect the principle of degressive proportionality. The blog outlines these proposals and explicates the challenges of the search for a methodical approach to seat apportionment in the European Parliament.
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Nachhaltig nicht-nachhaltig
Im Rahmen der Energiewende wächst der europäische Bedarf nach Rohstoffen. Zahlreiche der für die Energiewende benötigten Rohstoffe befinden sich auf den Gebieten indigener Völker, was häufig zu Konflikten führt. Vor diesem Hintergrund ist es erstaunlich, dass das geplante Abkommen zwischen der EU und den Mercosur-Staaten keine Vorschriften bezüglich Beteiligung und Schutz indigener Völker beinhaltet. Ein Verweis auf solche Vorschriften, insbesondere aus der ILO-Konvention 169, wäre völkerrechtlich geboten und trüge dazu bei, die Konflikte und Widersprüche des Nachhaltigkeitsbegriffs aushandelbar zu machen.
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Bricolage, Bullshit, and Bustle
On 15 December 2023, the Swiss Federal Council (Government) announced that it intended to start formal negotiations with the EU on the conclusion of a Framework Agreement (FA) 2.0. Five existing and two new treaties between the EU and Switzerland are to be subject to dynamic alignment and institutionalised, i.e. provided with a monitoring and judicial mechanism. The project, which is practically fixed in the decisive questions by a “Common Understanding” (“CU”) between the two parties, is based on a triple B approach: in substance, it consists of unsuccessful bricolage, the foundations were laid by bullshit, and because elections and a change of the Commission are imminent in the EU, bustle is supposedly of the essence. The CU summarizes what the Parties have informally agreed on.
Continue reading >>Unpacking the Critical Raw Materials Act
The recently adopted Critical Raw Materials Act (CRMA) is framed as a milestone for the EU Green Industrial Plan and the twin green and digital transitions. In the context of emerging green industrial policies and the resurgence of the state as an economic actor, the Act encapsulates the EU’s attempt to instrumentalise markets for public objectives. Yet, the bid to generate tailored and specific market outcomes is undercut by the Act’s primary strategy of adjusting risks and returns for ultimately volatile, profit-driven private initiative. At the same time, the Act’s focus on domestic green growth, even if read charitably, remains myopic to the global challenge of climate change and perpetuates existing patterns of core-periphery extractivism.
Continue reading >>Germany Blocks Europe-Wide Protection of Women Against Violence
Gender-based violence has dramatically increased in the European Union (EU) in recent years. In particular women are widely affected by rape. On 8 March 2022, the Commission presented a Draft Directive for comprehensive, effective and enforceable protection against gender-based violence in all EU Member States. The main point of contention in the negotiations, which could ultimately prevent the adoption of the Draft Directive, is the introduction of the common definition of the criminal offence of rape. The Directive aims to harmonize across Europe the definition of rape as a violation of the consent-based sexual act. Yet, twelve Member States, with Germany and France at the forefront, are not convinced that the EU has a sufficient legal base to regulate that issue. This article highlights the arguments for a common regulation of the criminal offence of rape in the EU under Art. 83 (1) TFEU against the doubts raised by the German Federal Ministry of Justice.
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To Hell, on a White Horse
Slovakia voted on the final day of September 2023. The electoral rhetoric, results and subsequent coalition-building give grounds to expect illiberal constitutional changes. More attention is needed towards the Constitutional Court’s capacity to resist such illiberalization, as Slovakia may join Hungary in a revamped illiberal Visegrad alliance.
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The Great Yes or the Great No
As we gear up for the most consequential elections in Poland since 1989, the situation on the ground after 8 years of the paranoid polarizing and no-holds-barred politics, forces all those concerned about the future, to ask where Poland is heading. On 14 October 2023, we must understand that POLEXIT is much more than a mere dispute over institutions, rule of law, judicial independence, etc. What is at stake now is incomparably greater. It is the defense of a certain way of life, values and belonging to a community of law and values, a civic Poland in Europe and Europe in civic Poland and finally of “Me and You” as part of Europe.
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