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Defending Checks and Balances in EU Member States : Taking Stock of Europe's Actions.

Bibliographic Details
Main Author: von Bogdandy, Armin.
Other Authors: Bogdanowicz, Piotr., Canor, Iris., Grabenwarter, Christoph., Taborowski, Maciej., Schmidt, Matthias.
Format: eBook
Language:English
Published: Berlin, Heidelberg : Springer Berlin / Heidelberg, 2021.
Edition:1st ed.
Series:Beiträge Zum Ausländischen öffentlichen Recht und Völkerrecht Series
Subjects:
Electronic books.
Online Access:Click to View
Table of Contents:
  • Defending Checks and Balances in EU Member States
  • Preface
  • Contents
  • Part I: Understanding the Development in EU Member States
  • Not on Bread Alone Doth Man Liveth (Deut. 8:3
  • Mat 4:4): Some Iconoclastic Views on Populism, Democracy, the Rule of Law and t...
  • 1 Populism
  • 2 What of the Disillusionment with Liberal Democracy?
  • 3 Poland
  • Reference
  • Constitutional Crisis in Poland 2015-2016 in the Light of the Rule of Law Principle
  • 1 Introduction
  • 2 Facts and Law
  • 3 Controversies Concerning Three Constitutional Judges
  • 4 The Rule of Law and the Principle of Legality
  • 5 Constitutional Tribunalś Scope of Competence
  • 6 Legal Effects of the K 34/15 Judgment
  • 7 May the Constitutional Tribunal Bypass an Act of Parliament?
  • 8 Presumption of Legality of Acts Issued by State Bodies
  • 9 Closing Remarks. The Crisis of Procedures
  • References
  • Hungaryś Latest Experiences with Article 2 TEU: The Need for `Informed ́EU Sanctions
  • 1 Introduction
  • 2 The Big Picture: Targeted Legislation and Constitutional Malfunctions
  • 2.1 Lex Friends and Lex Enemies
  • 2.1.1 Turning the Data Protection Ombudsman into an Authority Influenced by the Government
  • 2.1.2 Sending Judges into Retirement
  • 2.1.3 Labelling Foreign Funded NGOs
  • 2.1.4 Targeting the `Soros University ́
  • 2.1.5 `Stopping Soros ́(and Migration)
  • 2.1.6 The System of Lex Friends and Lex Enemies: The Fundamental Challenge to the Rule of Law in Hungary
  • 2.2 Unrestrained Constitutional Amendments
  • 2.3 The Constitutional Court: Still a Counterbalance or, Already an Ally of the Government?
  • 2.3.1 Filling the Court with Fidesz-Loyalist Judges
  • 2.3.2 Limiting Constitutional Review in Important Cases
  • 2.3.3 New Strategies of the Constitutional Court: Shifting Away from the Control of the Legislative.
  • 3 Why Infringement Procedures Are Ineffective in the Case of Hungary
  • 3.1 CJEU Judgments Being Fully or Partly Ignored
  • 3.2 Infringement Cases Regarding the NGO Law and the Lex CEU
  • 4 Making a Try with Article 7: The Sargentini Report on Hungary
  • 4.1 Getting Lost in Details, Missing the Bigger Picture
  • 4.2 Limited Political Relevance
  • 5 How to Take `Informed ́Measures in Defence of the Unionś Values?
  • 5.1 Measuring, Buying or Monitoring the Rule of Law?
  • 5.2 How to Indicate Overlapping Systemic Rule of Law Deficiencies?
  • 6 Conclusion
  • References
  • Part II: European Action
  • Towards a Tyranny of Values?
  • 1 What Is at Stake
  • 2 The Principles in Abstract
  • 2.1 Options
  • 2.2 Grounds Against Defending the Unionś Values
  • 2.3 Grounds in Favour of Defending the Unionś Values
  • 3 The Principles Applied
  • 3.1 The Toolbox
  • 3.2 Questions of Competence
  • 3.2.1 Article 7 TEU in the Order of Competences
  • 3.2.2 Instruments of Secondary Law
  • 3.2.3 The Justiciability of the Values
  • 3.3 Procedure
  • 3.4 Material Standards
  • 3.4.1 Red Lines
  • 3.4.2 The Comprehensive and Collective Assessment
  • 3.4.3 On the Concreteness of the Risk
  • 3.5 Control
  • 4 Towards a Tyranny of Values?
  • References
  • The Rule of Law As a Value in the Sense of Article 2 TEU: What Does It Mean and Imply?
  • 1 Dangers for the Rule of Law in the Union
  • 2 Origins As a Principle of Union Constitutional Law
  • 3 No Homogeneity as Regards the Rule of Law in the Union
  • 4 Normative Character of the Union Rule of Law
  • 4.1 Rule of Law As Value and Principle
  • 4.2 Binding Legal Norm
  • 4.3 Operational Legal Norm
  • 5 The Rule of Law As a Legal Concept
  • 5.1 Determining the Content of the Rule of Law
  • 5.2 The European Tradition of the Rule of Law
  • 5.3 Formal and Material Aspects of the Rule of Law
  • 6 The Rule of Law in the Unionś Practice.
  • 6.1 Rule of Law As Described in the Commission Framework
  • 6.2 Rule of Law in the Case Law of the CJEU
  • 7 Essence of the Union Rule of Law
  • References
  • Article 7: A Commentary on a Much Talked-About `Dead ́Provision
  • 1 Introduction
  • 2 A Brief Context of Coping with Rule of Law Backsliding
  • 3 Background of Art. 7 TEU
  • 4 The Scope of Application of Art. 7 TEU
  • 4.1 Clear Risk of a Serious Breach (Procedure No. 1)
  • 4.2 Stating the Existence of a Serious Breach (Procedure No. 2)
  • 4.3 Suspension of Rights and Revocation of Sanctions (Procedure No. 3)
  • 4.4 Procedural Requirements Specific to Article 7 TEU
  • 5 (Utopian) Scenarios for the Future: No Room for Art. 7
  • 5.1 Thinking Short-Term: Scenario No. 1: Cutting the Funds
  • 5.2 Thinking Mid-Term: Scenario No. 2: Overwhelming Ad Hoc Political Pressure
  • 5.3 Thinking Long-Term: Scenario No. 3: A Multi-Speed Union
  • 6 A Realistic Scenario for the Future: No Room for Art. 7
  • References
  • The Responsibility of Courts in Maintaining the Rule of Law: Two Tales of Consequential Judicial Self-Restraint
  • 1 Introduction
  • 2 Narrowing the Charterś Applicability: Article 51 (1) CFR
  • 2.1 Siragusa, Hernndez: Context and Consequences
  • 2.2 Consequences of the Restrictive Interpretation of 51 (1) CFR Until 2017 in Hungary
  • 2.2.1 The Media Law
  • 2.2.2 The Forced Retirement of Justices
  • 2.2.3 The Removal of the Data Protection Commissioner
  • 2.3 Article 19 (1) TEU as a Partial Supplement for a Broad Interpretation of Article 51 (1)
  • 2.4 Revival of ERT?
  • 3 Unused Means to Control the Constitution Making Power
  • 3.1 The Convolution of Pouvoir Constituant and Pouvoir Constitué
  • 3.2 Limits of the Constitution Making Power
  • 3.2.1 Constitutional Identity
  • 3.2.2 International Law as a Standard of Interpretation of Constitutional Provisions.
  • 3.2.3 International Law as a Standard of Legality of the Constitution
  • 3.3 The European Convention on Human Rights as a Standard of Review by the Constitutional Court
  • 4 Conclusions
  • References
  • Suspending Horizontal Solange: A Decentralized Instrument for Protecting Mutual Trust and the European Rule of Law
  • 1 Introduction
  • 2 Mutual Trust: The Path Towards Becoming a Founding Constitutional Principle of the EU
  • 2.1 Mutual Trust: Initial Steps
  • 2.2 Mutual Trust: A Horizontal Principle of Cooperation Among the Member States ́Judiciaries
  • 2.3 Mutual Trust: A Constitutional Principle
  • 3 The Rule of Law and the Jurisprudence of the CJEU
  • 4 Mutual Trust and Its Exceptions
  • 4.1 Political Versus Judicial Determination
  • 4.2 Judicial Determination of Systemic Deficiencies
  • 4.2.1 Substantive Matters
  • 4.2.2 Institutional Aspects
  • 4.3 Individual Examination
  • 4.4 A Horizontal Solange Doctrine
  • 5 Conclusion
  • References
  • Books and Journals
  • Ascertaining the `Guarantee of Guarantees:́ Recent Developments Regarding the Infringement Procedure in the EUś Rule of Law C...
  • 1 Introduction
  • 2 The Rule of Law Crisis in Court: The Commission Infringement Cases Against Poland
  • 2.1 The `Independence of the Supreme Court Case:́ C-619/18
  • 2.1.1 Combined Interim Relief and Expedited Procedure
  • 2.1.1.1 Procedural Novelties
  • 2.1.1.2 The Application for Interim Relief and the Courtś Two Subsequent Orders
  • 2.1.1.3 The Application to Expedite the Procedure
  • 2.1.2 Opinion
  • 2.1.3 Judgment
  • 2.2 The `Case on the Independence of the Ordinary Courts:́ C-192/18
  • 2.2.1 Opinion
  • 2.2.2 Judgment
  • 3 Context of the Judgments: The Commission Communications of April and July 2019
  • 4 Conclusions
  • References (Primary Sources, Links and Jurisprudence Omitted).
  • Defending Union Values in Judicial Proceedings. On How to Turn Article 2 TEU into a Judicially Applicable Provision
  • 1 Introduction
  • 2 Uncertainties Surrounding the Judicial Application of Article 2 TEU
  • 2.1 Nature: Do Article 2 TEU Values Have Any Legal Effect?
  • 2.2 Direct Effect: Are Article 2 TEU Values Directly Applicable?
  • 2.3 Jurisdiction: Does the Court Have Competence to Review the Member States ́Value Compliance?
  • 3 Turning Article 2 TEU into a Judicially Applicable Provision
  • 3.1 The Groundbreaking Judgment in ASJP
  • 3.2 First Rationale: Securing the Functioning of the EUś Judicial System
  • 3.3 Second Rationale: Operationalizing the Values in Article 2 TEU
  • 4 Anticipating Objections and Advancing Rejoinders
  • 4.1 Framing Possible Objections
  • 4.2 Methodologically Unsound?
  • 4.3 Pretext for a Power Grab?
  • 5 Conclusion
  • References
  • Suspension of EU Funds Paid to Member States Breaching the Rule of Law: Is the Commissionś Proposal Legal?
  • 1 Introduction
  • 2 Conditionality Mechanism in EU Law
  • 2.1 The Conditionality Mechanism in EU Internal and External Relations
  • 2.2 The Financial Conditionality Mechanisms in EU Secondary Law on EU Funds
  • 3 The Conditionality Mechanism Applied for Breaches of the Rule of Law
  • 3.1 The Notion of `the Rule of Law ́
  • 3.2 The Notion `Generalised Deficiency As Regards the Rule of Law in a Member State ́
  • 3.2.1 The Principle of Sound Financial Management (Article 317 TFEU)
  • 3.2.2 Protection of the Financial Interests of the Union (Article 325 TFEU)
  • 3.2.3 Types of Generalised Deficiency As Regards the Rule of Law
  • 4 Measures Applied Under the Conditionality Mechanism
  • 5 The Procedure for Adoption of a Decision Applying the Conditionality Mechanism
  • 5.1 Initiation of the Procedure
  • 5.2 Who Adopts the Decision?
  • 5.3 Voting in the Council by Reverse QMV.
  • 5.4 Decision Lifting the Measures.

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