18 October 2023
At a Snail’s Pace
By 1 April 2018, member states had to transpose an EU Directive on ‘the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings’. Bulgaria has not fully transposed it to this day, and consistently undermines it. Now, finally, the Commission has launched infringement proceecings. Preceding the announcement, the Commission rejected Rasosveta Vassileva's reasoned complaints on the same issue, as late as 2022. Her odyssey is a concerning tale on how EU institutions handle citizen alerts. Continue reading >>
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13 June 2023
Enforcing Democracy
On the 8th of June, the Commission announced the opening of an infringement procedure against Poland in relation to the so-called ‘Lex Tusk’ or ‘anti-Tusk’ law. The principle of democracy is the first alleged violation specified by the Commission, based on Articles 2 and 10 TEU. Although proposed back in 2020 by observers of the Rule of Law crisis (see here and here), using this combination of articles to protect democracy is an unprecedented step by the institution. In a way, this follows the successful actions brought against Poland based on Articles 2 and 19 TEU (with ‘successful’ referring to the Court upholding the Commission’s complaints). It also recalls similarities with the Commission’s decision to invoke Article 2 TEU as a stand-alone provision in the infringement proceedings against Hungary’s ‘anti-LGBTQ’ law. The Commission is now testing out the legal waters to see if Article 10 TEU can be the trigger for ‘democracy’ in the same way Article 19 TEU is the trigger for ‘rule of law’. Continue reading >>
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08 July 2021
Taking the Law Seriously?
One might wonder whether the Commission’s attack on its “friends” in Germany is designed simply to detract attention away from its impotence in the face of growingly-explicit authoritarianism in the Orbán and Kaczyński orbits. We might dismiss the matter with a wry smile were it not for that fact that the Commission is also attacking honest efforts to solve the rule of law dilemmas posed by the original sin of the construction of Economic Union, as well as the well-meaning judicial search for solution to the impossible supremacy-sovereignty conundrum. The PSPP Judgment is far from perfect and has unleashed sometimes rough controversies; however, the tacit approval given to the Commission by so many in their silence about the new proceedings can surely only act to shore up authoritarian egos, concomitantly foreclosing creative judicial responses to our on-going European dilemma of how to maintain and strengthen the rule of law in integration. Continue reading >>
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18 June 2021
Ultra Vires Control and European Democracy
On 9 June 2021, the European Commission filed infringement proceedings against the Federal Republic of Germany. Though the infringement procedure has been welcomed by some scholars as a necessary reaction of the Commission, I argue that initiating the infringement procedure is politically unwise, legally questionable, and ultimately unfounded. Continue reading >>04 December 2020
Sue and Let Sue
On member states taking member states to court, and other topical rule of law affairs Continue reading >>
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04 December 2020
LawRules #11: We need to talk about the European Court of Justice
The European Court of Justice has been in the middle of the European rule of law crisis for the last couple of years – and it has called out rule of law violations especially in Hungary and Poland multiple times. But the Court can’t defend the rule of law in the European Union on its own, and it needs institutional partners in this struggle. For example, it needs someone to file cases and to follow up on the Court's orders. Does the European Commission do enough on their part? Who is the guardian of the Treaties – the Commission, the Court, none of the two? The European Council is able to decide on sanctions against member states using the procedure of Article 7 TEU. But that tool has not been effective so far. Does that mean that we witness the juridification of a political conflict that puts too much of a burden on the Court? Continue reading >>
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21 October 2020
A Draft is no Infringement
In the last few weeks, little more has been said about the infringement action launched by the Commission against the UK at the beginning of October for failure to fulfil obligations under EU law in relation to the Withdrawal Agreement. However, not only has this not gone away, but the recent ratcheting up of ‘no deal’ tensions means that a claim may soon be made on the so-called insurance policy (the controversial clauses in the UK Internal Market Bill), turning the threatened breach into an actual one. After the Bill becomes law, and assuming that the controversial clauses remain, a minister may use those clauses to pass a statutory instrument, for example, forbidding any checks to be carried out on goods travelling from Great Britain into Northern Ireland. Some would argue that the threat is bad enough and itself justifies an infringement action. That may be so. However, the Commission’s action is still premature. Continue reading >>
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08 October 2020
Finally: The CJEU Defends Academic Freedom
The CJEU’s judgment against Hungary in the CEU case is the first major judicial pronouncement by a European court on the institutional dimension of academic freedom as a fundamental human right. Infringement action has become the surprise weapon in the Commission’s rule of law toolbox. The initial surprise is a thing of the past: over the years the Hungarian government has built some defenses of its own, using familiar components of the European constitutional architecture in service of illiberal democracy. Continue reading >>22 June 2020
Defending the Open Society against its Enemies
On 18 June 2020, in the case of Commission v Hungary (Transparency of associations), the Grand Chamber of the Court of Justice held that Hungarian authorities “introduced discriminatory and unjustified restrictions on foreign donations to civil society organisations” when it adopted a new legislation on NGO in 2017. How will the Hungarian government react? Six potential scenarios can be outlined from not doing anything (scenario 1) – an unlikely option due to the threat of pecuniary sanctions – to full and good faith compliance with the judgment resulting in the total repeal of the Lex NGO (scenario 6) – equally unlikely. Between these two, four additional ones may be foreseen. Continue reading >>
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29 April 2020