1 - The Union in crisis?

Question 1

What does ‘Europe in crisis’ particularly mean now?

Answer 1

Rule of law backsliding (Poland, Hungary, etc.)

Question 2

What does the topic of ‘Europe in crisis’ give the opportunity to talk about? (3)

Answer 2

1/ core values of the EU (Art. 2 TEU)

2/ fundamental rights (e.g. right to fair trial by independent court, Art. 47 CFR)

3/ existing legal avenues to enforce rule of law (e.g. Art. 7 TEU, procedure for MS compliance with core values)

Question 3

How can the rule of law be perceived with respect to the EU? (3)

Answer 3

1/ raison d’être of the EU

2/ law is the goal itself

3/ EU is peace project => rule of law replaces rule of force

Question 4

Overview of lecture (3)

Answer 4

1/ concept of rule of law in legal theory (different meanings)

2/ significance of rule of law in EU constitutional law

3. dvpt of concept of rule of law in CJEU’s case law (vis-a-vis EU and EU MS)

Question 5

What is the rule of law within the EU? Illustration? (2)

Answer 5

1/ a founding principle of EU law

2/ see Art. 49 TEU (State wishing to become member must respect & commit to promote values of EU

Question 6

Characteristics of the rule of law in legal theory? (4)

Answer 6

1/ variation across legal cultures

2/ but also similarities that dvped in late 19th/early 20th century

3/ there are some important ideas in common

4/ formal v. substantive conceptions

Question 7

What are some different theories on the rule of law across legal cultures? (3)

Answer 7

1/ German Rechtstaat (‘Law-State’)

2/ French Etat de droit (State of Law)

3/ Anglo-Saxon Rule of law

Question 8

Characteristics of German Rechtstaat? (2)

Answer 8

1/ State is origin of the law and limited by it

2/ RoL = self-limitation of the State through law

Question 9

Characteristics of French Etat de droit? (3)

Answer 9

1/ reaction against unlimited supremacy of parliamentary legislation

2/ protection of individual requires legislative power to be limited

3/ heightened focus on individual liberty

Question 10

Characteristics of Anglo-Saxon Rule of law? (4)

Answer 10

1/ no strong tradition of concept of State

2/absolute supremacy of law of the land

3/ equal subjection of all social classes

4/ private citizens & Crown’s servants equally subjected to common law

Question 11

What are some of the similarities in legal theories on the rule of law? (2)

Answer 11

1/ strong influence of ideals of liberalism => protection of individual against expansive powers of gvt

2/ particular concern with protecting individuals against arbitrary use of power

Question 12

What are the important ideas that legal cultures acquainted with the rule of law have in common? (4)

Answer 12

1/ use of law to make power limited

2/ law foreseeable by its subjects

3/ law exists to prevent it from being exercised arbitrarily

4/ recourse to independent and accessible courts

Question 13

Characteristics of formal conceptions of rule of law? (4)

Answer 13

Public power is:

1/ legally circumscribed

2/ predictable

3/ exercised through clear procedural requirements

4/ reviewable by courts

Question 14

Characteristics of substantive conceptions of rule of law?

Answer 14

In addition, public power must conform to substantive standards of democracy and HR

Question 15

Evolution from formal to substantive conceptions of rule of law? (5)

Answer 15

1/ rule by law

2/ effective limitation of power

3/ democracy

4/ HR

5/ social justice

Question 16

What does the term ‘rule by law’ mean? (2)

Answer 16

1/ public power

2/ exercised through legal instruments

Question 17

What is the relevance of legal forms (legislation, judgment, decree, order etc.) for the rule of law? (3)

Answer 17

1/ they help us know what opinions of officials or formal binding decisions are

2/ this helps individuals to plan and behave accordingly

3/ they thus provide some margin of self-determination and liberty

Question 18

What question did the EU-Turkey deal raise?

Answer 18

No rule by law?

Question 19

Characteristics of EU-Turkey deal? (2)

Answer 19

1/ informal nature of arrangement

2/ informal process leading to arrangement

=> is it binding measure of an EU institution? a political statement?

Question 20

Contributions of ‘NF’ case (2017)? (3)

Answer 20

1/ found arrangement was concluded by representatives of MS in their capacity of Heads of State or Gvt

2/ therefore, no judicial review by CJEU possible

3/ independently of nature of statement (political statement v. measure producing binding legal effects), EU-Turkey statement cannot be regarded as measure adopted by the European Council

Question 21

What is the historic position of the CJEU regarding the role of the rule of law in EU integration? (3)

Answer 21

1/ integrity of EU law is essential for integrity of EU (Hauer, 1979)

2/ thus, only EU law can rule the EU (VGL, Costa v ENEL)

3/ leading to rule of law as a ‘supra-constitutional’ pcple in EU law (Les Verts, 1986)

Question 22

What are some sub-pcples of the rule of law? (7)

Answer 22

1/ legality (Hoechst, 1989)

2/ protection of legitimate expectations (Algera, 1958)

3/ legal certainty

4/ proportionality

5/ judicial review

6/ right to a good administration (e.g. Max.mobil, 2002)

7/ right to an effective judicial protection (e.g. Heylens, 1987)

Question 23

Why does there seem to be a backsliding of the rule of law in some EU MS? (4)

Answer 23

1/ neoliberal/austerity policies after European debt crisis (2009)

2/ effects of globalisation of trade on distribution of income

3/ reaction to cultural progressive changes

4/ EU paradoxically supports survival of authoritarian member gvts

Question 24

Various instruments relevant with respect to rule of law in EU MS? (4)

Answer 24

1/ Rule of Law structured dialogue (2014)

2/ Art. 49 TEU (accession)

3/ Arts. 47 CFR and 19(1) TEU

4/ the ‘power of the purse’?

Question 25

Main contribution of ASJP (Portuguese Judges' Union) case (2018)? (4)

Answer 25

1/ explanation of Art. 19(1) TEU 2/ distinction btwn 'fields covered by EU law' (Art. 19(1) TEU) and 'implementing EU law' (Art. 51(1) CFR) 3/ courts potentially applying EU law must comply with rule of law requirements, even beyond scope of EU law 4/ justification: guarantee of independence is required not only at EU level but also at MS level

Question 26

What are cases making up the post ASJP case law and the legal avenues they explore? (3)

Answer 26

1/ Commission v. Poland (Art. 258 TFEU) 2/ Hungary v EP (Art. 263 TFEU) 3/ Repubblika (Art. 267 TFEU)

Question 27

Considerations surrounding the rule of law and the 'power of the purse'? (3)

Answer 27

1/ controversy on the matter 2/ is this a détournement de pouvoir? 3/ see Regulation 2092/2020 (direct link btwn proper distribution of funds and upholding rule of law)

Question 28

What are the 4 legitimate grounds for judicial review in the EU?

Answer 28

See Art. 263(2)TFEU 1/ lack of competence 2/ infringement of an essential procedural requirement 3/ infringement of the Treaties or any rule of law relating to their application 4/ misuse of powers

Question 29

What did the ASJP case concern? (3)

Answer 29

1/ the compatibility of Portuguese law with principle of judicial independence under EU law 2/ important aspect is the admissibility of the case 3/ if national courts are not independent and impartial, this leads to the whole EU judicial system failing to uphold rule of law standards (as they continuously interpret and apply EU law)

Question 30

When does CFR apply? Why couldn’t it in ASJP? (2)

Answer 30

1/ to EU institutions whenever they act and when MS are implementing EU law (Art. 51(1) CFR) 2/ not possible to rely on this Article in ASJP bc no EU legal document was being implemented by PT gvt

Question 31

Main contribution of Repubblika case?

Answer 31

MS can never go below the status of rule of law existing at the time it acceded to the EU

Question 32

Main question raised by the Hungary v EP case?

Answer 32

Is the CJEU competent to review the legality of an EP 'resolution'?

Question 33

Finding of CJEU in Hungary v EP? (2)

Answer 33

1/ Art. 267 TFEU isn't applicable => application of Art. 263 TFEU 2/ for CJEU to review legality of EP's resolution, necessary to prove it has legal effects vis-à-vis third parties

Question 34

What was Polish Supreme Court ruling about? (2)

Answer 34

1/ Polish law reducing retirement age of judges & allowing President to nominate judges 2/EC believed this infringed pcple of judicial independence

Question 35

Argument Poland against EC and finding CJEU in Polish Supreme Court ruling? (2)

Answer 35

1/ POL: organisation of justice within MS is for them to decide (beyond EU competences) 2/ CJEU: rejects argument POL as national courts interpret and apply EU law => they must be independent to ensure EU judicial system functions