scholarly journals Values and objectives of the EU in light of Opinion 1/17: ‘Trade for all’, above all

2020 ◽  
Vol 4 (1) ◽  
Author(s):  
Ivana Damjanovic ◽  
Nicolas de Sadeleer
Keyword(s):  
Rule Of Law ◽  
Trade Agreement ◽  
Fundamental Rights ◽  
Equal Treatment ◽  
European Convention ◽  
Court System ◽  
Eu Law ◽  
The European Union ◽  
The Rule Of Law ◽  
The Eu

In Opinion 1/17 the Court of Justice of the European Union (CJEU) ruled that the new Investment Court System (ICS) in the Canada–EU Comprehensive Economic and Trade Agreement (CETA) is compatible with the EU constitutional framework. This article examines the CJEU’s analysis of the ICS in its Opinion through the prism of EU values and objectives. Given the judicial nature of the ICS, the article unfolds around the concept of the rule of law. The scope and the content of this core EU value are considered under both EU law and the European Convention on Human Rights (ECHR). In particular, the ICS is analysed in light of the two core rule-of-law requirements: equal treatment and the independence of courts, enshrined in Articles 20 and 47 of the Charter of Fundamental Rights (CFR). Importantly, in Opinion 1/17 the CJEU for the first time applied Article 47 CFR to a court outside the EU judicial system. While the CJEU ruled that the ICS complies with the CFR rule-of-law criteria, this article argues that it nevertheless falls short of the rule-of-law standards required for judicial bodies under EU law. The article demonstrates that the CJEU prioritises free and fair trade as the CETA’s core objective, rather than the rule of law, and endorses the ICS as the conditio sine qua non of guaranteeing such trade. The Court’s findings have wider consequences for the rule of law in international law as the EU continues to pursue the establishment of a Multilateral Investment Court (MIC).

scholarly journals The independence and impartiality of the hybrid CETA Investment Court System: Reflections in the aftermath of Opinion 1/17

2020 ◽  
Author(s):  
Maria Fanou
Keyword(s):  
Rule Of Law ◽  
Trade Agreement ◽  
Judicial Independence ◽  
Court System ◽  
Eu Law ◽  
The Rule Of Law ◽  
Court Of Justice ◽  
The Right ◽  
Right Of Access ◽  
The Eu

In its recent Opinion 1/17, the Court of Justice of the EU (CJEU) examined the compatibility of an external judicial body, the Investment Court System (ICS) under the EU–Canada Comprehensive and Economic Trade Agreement (CETA), with EU law. At a time when judicial independence has arisen as one of the main challenges for the rule of law in the EU, this article discusses the Court’s findings in relation to the compatibility of the ICS with the right of access to an independent and impartial tribunal.

scholarly journals Rights and Powers in the European Union: Towards a Charter that is Fully Applicable to the Member States?

2020 ◽  
pp. 1-22
Author(s):  
Aida TORRES PÉREZ
Keyword(s):  
Rule Of Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Member States ◽  
The Rule Of Law ◽  
Rights Protection ◽  
Scope Of Application ◽  
Judicial Protection ◽  
Eu Fundamental Rights ◽  
The Eu

Abstract This contribution will tackle a central question for the architecture of fundamental rights protection in the EU: can we envision a Charter that fully applies to the Member States, even beyond the limits of its scope of application? To improve our understanding of the boundaries of the Charter and the potential for further expansion, I will examine the legal avenues through which the CJEU has extended the scope of application of EU fundamental rights in fields of state powers. While the latent pull of citizenship towards a more expansive application of the Charter has not been fully realized, the principle of effective judicial protection (Article 19(1) TEU) has recently shown potential for protection under EU law beyond the boundaries of the Charter. As will be argued, effective judicial protection may well become a doorway for full application of the Charter to the Member States. While such an outcome might currently seem politically unsound, I contend that a progressive case-by-case expansion of the applicability of the Charter to the Member States would be welcome from the standpoint of a robust notion of the rule of law in the EU.

scholarly journals Hungary and the Indirect Protection of EU Fundamental Rights and the Rule of Law

2013 ◽  
Vol 14 (10) ◽  
pp. 1959-1979 ◽  
Author(s):  
Mark Dawson ◽  
Elise Muir
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Central Place ◽  
Fundamental Rights ◽  
The European Union ◽  
Far Right ◽  
The Rule Of Law ◽  
Fundamental Values ◽  
Eu Fundamental Rights ◽  
The Eu

According to Article 2 of the Treaty on European Union, the European Union is a political and economic union founded on a respect for fundamental rights and the rule of law, referred to hereafter as EU fundamental values. The central place of this commitment in the EU Treaties suggests a founding assumption: That the EU is a Union of states who themselves see human rights and the rule of law as irrevocable parts of their political and legal order. Reminiscent of the entry of Jorg Haider's far-right Freedom Party into the Austrian government in 2000, the events of 2012 have done much to shake that assumption; questioning both how interwoven the rule of law tradition is across the present-day EU, and the role the EU ought to play in policing potential violations of fundamental rights carried out via the constitutional frameworks of its Member States. Much attention in this field, much like the focus of this paper, has been placed on events in one state in particular: Hungary.

scholarly journals An Old Procedure with new Solutions for the Rule of Law Crisis

2019 ◽  
Vol 2 (2) ◽  
pp. 1-19
Author(s):  
Franziska-Marie Laura Hilpert
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Separation Of Powers ◽  
Fundamental Rights ◽  
The European Union ◽  
Enforcement Mechanism ◽  
The Rule Of Law ◽  
Strategic Approach ◽  
Small Things ◽  
The Eu

Suggested citation:  Franziska-Marie Laura Hilpert, 'An Old Procedure with new Solutions for the Rule of Law Crisis' (2019) 2(2) NJEL 1. While commentators for the past years, have highlighted that there is no effective enforcement mechanism after accession for the values of the European Union which are enshrined in Article 2 TEU, the Juncker Commission has announced in 2017 that it will be ‘bigger and more ambitious on big things, and smaller and more modest on small things’ thus applying a more strategic approach to enforcement in terms of handling infringements. This Article thus analyses two cases brought by the Juncker Commission after 2017 and on their bases seeks to show that the infringement procedure, when applied strategically, is and remains an effective enforcement mechanism even for the values enshrined in Article 2 TEU in the ‘rule of law crisis’. Thus, by way of analysis of the case C-619/18 Commission v Poland and its comparison with similar cases which have not been as effective, it is shown how the infringement procedure can prevent the enforcement of the most controversial provisions regarding the judiciary in Hungary and Poland and ensure the separation of powers, which is essential for the rule of law. Moreover, by comparison of the Commission’s request and the decision of the Court of Justice of the European Union in C-235/17 Commission v Hungary it is shown how the Charter could become a significant legal instrument in the Commissions infringement policy towards Member States that are undermining fundamental rights and the rule of law. This Article thereby aims to contribute to the discussion on how to effectively enforce the values of the EU enshrined in Article 2 TEU through an existing enforcement mechanism.

scholarly journals Ascertaining the ‘Guarantee of Guarantees’: Recent Developments Regarding the Infringement Procedure in the EU’s Rule of Law Crisis

2021 ◽  
pp. 207-236
Author(s):  
Matthias Schmidt ◽  
Piotr Bogdanowicz
Keyword(s):  
Rule Of Law ◽  
Critical Assessment ◽  
Fundamental Rights ◽  
Close Reading ◽  
Eu Law ◽  
The Rule Of Law ◽  
Recent Developments ◽  
Charter Of Fundamental Rights ◽  
The Common ◽  
The Eu

AbstractThis chapter builds on an assessment of infringement proceedings in the EU rule of law crisis that we previously published in the Common Market Law Review. We offer a close reading of two recent prominent infringement cases by the European Commission against Poland (cases C-619/18 and C-192/18). Noteworthy advancements in EU law made with them are in particular a clarification on the parallel use of Articles 7 TEU and 258 TFEU, the use of both interim relief and an expedited procedure prior to the judgment, and, as regards the merits, further substance for the functioning of Articles 19 TEU and 47 of the EU Charter of Fundamental Rights regarding the operationalisation of the rule of law in EU law. We offer a critical assessment of the Court’s findings and contextualise in light of two Commission communications on the rule of law published in 2019.

9. Fundamental rights in the EU

2020 ◽  
pp. 240-268
Author(s):  
Sylvia de Mars
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
Eu Law ◽  
The European Union ◽  
Council Of Europe ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
Human Rights Act ◽  
The Eu

This chapter traces the development of EU law-based fundamental rights, from early Court of Justice of the European Union (CJEU) case law up to the Charter of Fundamental Rights. It considers the EU's relationship with the Council of Europe, focusing on how the CJEU and the European Court of Human Rights (ECtHR) attempt to avoid conflicting interpretations of overlapping rights, and whether the EU can in fact sign up to the European Convention on Human Rights (ECHR). It is important to remember that the ECtHR and the ECHR are not part of EU law. The ECHR is an international human rights treaty administered by the Council of Europe. It is applied and interpreted by the ECtHR, and is transcribed into UK law in the form of the Human Rights Act 1998. The EU, meanwhile, has the Charter of Fundamental Rights as its human rights ‘treaty’. The chapter then looks at the relationship between the CJEU and the ECtHR, and examines post-Brexit fundamental rights.

scholarly journals Courting Asylum: How Asylum Claimants in Greece are Using Judicial Power to Combat neo-Refoulement and the EU-Turkey Safe Third Country Agreement

2019 ◽  
Vol 9 (2) ◽  
Author(s):  
Ender McDuff
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Case Law ◽  
Judicial Power ◽  
Appellate Court ◽  
Court System ◽  
The European Union ◽  
The Rule Of Law ◽  
Global North ◽  
The Eu

The international refugee regime is marked by a widening gap between the constitutional democratic values of countries in the global north and the practices employed by their state executives. While states have committed to the rights of refugees by joining the 1951 Refugee Convention, they have simultaneously subverted the rule of law in the name of security by instituting practices that externalize asylum: neo-refoulement. The purpose of this article is to examine the extent to which judicial power can be used to combat executive practices of neo-refoulement. This article considers asylum claims heard in the Greek appellate court system pertaining to the safe third country agreement between the European Union and Turkey. The article concludes that, under a system of coequal institutions, judicial power and case law harbour the potential for necessitating the consideration of all individual asylum cases effectively disarming practices of neo-refoulement.

scholarly journals EU Values Are Law, after All: Enforcing EU Values through Systemic Infringement Actions by the European Commission and the Member States of the European Union

2021 ◽  
Author(s):  
Kim Lane Scheppele ◽  
Dimitry Vladimirovich Kochenov ◽  
Barbara Grabowska-Moroz
Keyword(s):  
European Union ◽  
Member State ◽  
Rule Of Law ◽  
Eu Law ◽  
The European Union ◽  
Basic Principles ◽  
Member States ◽  
The Rule Of Law ◽  
Court Of Justice ◽  
The Eu

Abstract Although compliance with the founding values is presumed in its law, the Union is now confronted with persistent disregard of these values in two Member States. If it ceases to be a union of Rule-of-Law-abiding democracies, the European Union (EU) is unthinkable. Purely political mechanisms to safeguard the Rule of Law, such as those in Article 7 Treaty of European Union (TEU), do not work. Worse still, their existence has disguised the fact that the violations of the values of Article 2 TEU are also violations of EU law. The legal mechanisms tried thus far, however, do not work either. The fundamental jurisprudence on judicial independence and irremovability under Article 19(1) TEU is a good start, but it has been unable to change the situation on the ground. Despite ten years of EU attempts at reining in Rule of Law violations and even as backsliding Member States have lost cases at the Court of Justice, illiberal regimes inside the EU have become more consolidated: the EU has been losing through winning. More creative work is needed to find ways to enforce the values of Article 2 TEU more effectively. Taking this insight, we propose to turn the EU into a militant democracy, able to defend its basic principles, by using the traditional tools for the enforcement of EU law in a novel manner. We demonstrate how the familiar infringement actions—both under Article 258 and 259 TFEU—can be adapted as instruments for enforcing EU values by bundling a set of specific violations into a single general infringement action to show how a pattern of unlawful activity rises to the level of being a systemic violation. A systemic violation, because of its general and pervasive nature, in itself threatens basic values above and beyond violations of individual provisions of the acquis. Certified by the Court of Justice, a systemic violation of EU law should call for systemic compliance that would require the Member State to undo the effects of its attacks on the values of Article 2. The use of Article 260 Treaty on the Functioning of the EU (TFEU) to deduct fines from EU funds due to be received by the troubled Member State would provide additional incentives for systemic compliance. We illustrate this proposed militant democratic structure by explaining and critiquing what the Commission and Court together have done to reign in the governments of Hungary and Poland so far and then showing how they can do better.

CJEU Opinion 1/17: Keeping International Investment Law and EU Law Strictly Apart

2019 ◽  
Vol 4 (1) ◽  
pp. 240-259
Author(s):  
Nikos Lavranos
Keyword(s):  
Financial Burden ◽  
Trade Agreement ◽  
International Investment ◽  
Court System ◽  
Eu Law ◽  
The European Union ◽  
International Investment Law ◽  
Investment Protection ◽  
Investment Law ◽  
The Eu

With Opinion 1/17, the Court of Justice of the European Union (CJEU) approved the Investment Court System (ICS) contained in the Comprehensive Economic Trade Agreement (CETA) between the EU and Canada. This means that the EU can proceed with the ratification process of the investment protection part of CETA and the other free trade agreements it has concluded, and which contain a similar ICS. However, as the author illustrates, the approval of the ICS is conditioned by a complete isolation of EU law from international investment law. More specifically, the CJEU made clear that the ceta tribunals operate outside the EU legal order and have no power to interpret or apply EU law. At the same time, the CJEU highlighted the importance that the ceta Parties adopt supplemental rules for reducing the financial burden for access to the ICS for small and medium-sized enterprises (SMES). Additionally, the CJEU rejected the currently existing possibility that binding joint interpretations of the ceta Parties could have retroactive effect. In sum, the approval of the ICS by the CJEU enables the European Commission to continue to develop the multilateral investment court (MIC) within the uncitral Working Group iii as long as it follows the blueprint of the CETA ICS.

scholarly journals Austerity on the loose in Portugal: European judicial restraint in times of crisis

2016 ◽  
Vol 8 (3) ◽  
pp. E-105-E-132 ◽  
Author(s):  
Francisco Pereira Coutinho
Keyword(s):  
Fundamental Rights ◽  
Official Journal ◽  
Social Rights ◽  
Eu Law ◽  
The European Union ◽  
The Rule Of Law ◽  
Court Of Justice ◽  
Lower Courts ◽  
Charter Of Fundamental Rights ◽  
The Eu

Abstract The international bailout granted to Portugal between 2011 and 2014 was conditional on the adoption by the Portuguese State of austerity measures included in a memorandum of understanding (MoU) signed by the European Commission on behalf of the European Union (EU) and the Member States. The MoU was never published in an official journal or even translated into the Portuguese language. Its implementation caused a significant decrease in the level of protection of social rights. The compatibility of the MoU with core principles of the rule of law and with the EU’s social Constitution was never tested in court. A systemic failure in the jurisdictional system of the EU immunized the MoU to any judicial challenge. At the apex of the system, the Court of Justice of the EU declined to answer preliminary references submitted by Portuguese lower courts that questioned the compatibility with the Charter of Fundamental Rights of the EU of national budgetary measures that implemented the MoU. At the bottom, Portuguese courts either failed to properly identify the EU law acts that were the source of national austerity measures or disregarded their role as common EU law courts of ordinary jurisdiction when they bypassed the opportunity to refer a question for a preliminary ruling of the Court of Justice challenging the validity of the MoU.

Sign in / Sign up

Export Citation Format

Share Document