12 November 2019
Fundamentals on Defending European Values
In 2007, the Treaty makers ennobled the former fundamental principles of the Treaty on European Union as European values. Respect for human dignity, freedom, democracy, equality, rule of law and the protection of human rights have henceforth transcended the sphere of ‘merely’ legal matters. Today, however, this step feeds a perception of a deep crisis: when founding values appear weak or controversial, the entire house may crumble. Continue reading >>
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11 November 2019
The von der Leyen Commission and the Future of the Rule of Law
Ursula von der Leyen’s promotional tour before her election did not turn out well. She failed to point to substantive rule of law issues, rather she traced back the division between Eastern and Western European state to emotional components. This text takes a look beyond the political rhetoric and explores what the new Commission might entail for the rule of law in the EU. Continue reading >>24 October 2019
So Why Don’t We Just Call the Whole Rule of Law Thing Off, Then?
Civil society is aware of the dual standards vis-à-vis the rule of law, which emerge when one compares the Commission’s reaction to troublesome developments in Bulgaria to its policies on Poland, Hungary, and Romania. The latest CVM report on Bulgaria not only confirms this, but also leaves the impression that the Commission has given up on Bulgaria’s rule of law. Continue reading >>11 October 2019
Creating a Safe Venue of Judicial Review
On 24 September 2019, Advocate General Tanchev delivered his opinion in joined cases C-558/18 and C-563/18. It is his latest involvement in a series of cases which concern the rule of law in Poland and which is questionable from a legal as well as factual standpoint. Continue reading >>
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16 September 2019
Where Power Lies or Where Power Lied?
Tomorrow, on Tuesday 17 September, the UK Supreme Court will be asked to consider appeals from the Court of Session in Scotland, and the High Court in England on the question of whether prime minister Boris Johnson’s advice to the Queen to prorogue parliament was lawful. Such a question will oblige the court to consider foundational questions of the separation of powers and the division between law and politics. It will also have to decide whether the motives of executive decision-making can be judged against principles of parliamentary sovereignty, democracy and the rule of law. If the Supreme Court finds the advice was unlawful, an even more difficult question arises in what sort of order may be given to remedy such a legal wrong: can the court order Parliament to return to a session which has ended, or the Queen to ‘un-prorogue’? Continue reading >>
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06 September 2019
Fighting Fire with Fire
At the first sight, the likely nomination of Věra Jourova as Commissioner for rule of law and dropping Frans Timmermans out of the portfolio appears to be a significant victory for the Visegrad Group. However, considering Jourova’s track record, her nomination might be a clever, but hazardous move by Ursula von der Leyen that may deepen the cleavage among the Visegrad countries, put an end to their coordinated acting in sovereignty related issues, and cause more headache in Budapest and Warsaw than expected. Continue reading >>
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05 September 2019
The Commission’s Rule of Law Blueprint for Action: A Missed Opportunity to Fully Confront Legal Hooliganism
In its first Communication entitled “Further strengthening the Rule of Law within the Union” published on 3 April 2019, the Commission offered a useful overview of the state of play while also positively inviting all stakeholders to make concrete proposals so as to enhance the EU’s “rule of law toolbox”. A follow up Communication from July 2019 sets out multiple “concrete actions for the short and medium term”. This post will highlight the most innovative actions proposed by the Commission before highlighting what we view as the main weakness of its blueprint: a reluctance to fully accept the reality of rule of law backsliding. Continue reading >>27 August 2019
Pseudo-Legal Justice
On the morning of his thirtieth birthday, Josef K., a member of the Council of the Anti-corruption Agency of Montenegro, was dismissed of his duties, by the very same body that appointed him: the Parliament of Montenegro. This could be the first sentence of a novel written by Franz Kafka if he was with us today. While Kafka’s Josef K. was arrested and left to roam free through a court building to find a courtroom in which his destiny would be determined, Josef K. in this story is in a similarly peculiar situation: He does not know which court in Montenegro he should appeal to and present his grievances. This Kafkaesque reality is the result of a questionable interpretation of the law by Montenegro’s Supreme Court – just another piece in the demise of the country’s rule of law. Continue reading >>
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04 August 2019
On the Rule of Law Turn on Kirchberg – Part II
The times of constitutional crisis call for a more robust approach to institutions and their respective spheres of competence and expertise. Courts of law are in the business of enforcing the rule of law. The European Court of Justice must currently rely on the unwritten and implicit understandings of the constitution to fulfill its task. Continue reading >>
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03 August 2019
On the Rule of Law Turn on Kirchberg – Part I
What came to be generically known as “the rule of law crisis” in the European Union has led the European Court of Justice to add a new chapter to its own jurisprudential tradition. Since 2017, the Court has been laying the foundations for a jurisprudential paradigm shift in order to defend the integrity of the EU legal system and it can thereby rely on the functions that the EU Treaties confer upon it. Continue reading >>
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