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European Constitutional Law and Fundamental Rights > 1 - The Union in crisis? > Flashcards

1 - The Union in crisis? Flashcards

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1
Q

What does ‘Europe in crisis’ particularly mean now?

A

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

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2
Q

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

A

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)

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3
Q

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

A

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

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4
Q

Overview of lecture (3)

A

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

2/ significance of rule of law in EU constitutional law

  1. dvpt of concept of rule of law in CJEU’s case law (vis-a-vis EU and EU MS)
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5
Q

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

A

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

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6
Q

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

A

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

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7
Q

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

A

1/ German Rechtstaat (‘Law-State’)

2/ French Etat de droit (State of Law)

3/ Anglo-Saxon Rule of law

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8
Q

Characteristics of German Rechtstaat? (2)

A

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

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

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9
Q

Characteristics of French Etat de droit? (3)

A

1/ reaction against unlimited supremacy of parliamentary legislation

2/ protection of individual requires legislative power to be limited

3/ heightened focus on individual liberty

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10
Q

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

A

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

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11
Q

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

A

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

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12
Q

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

A

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

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13
Q

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

A

Public power is:

1/ legally circumscribed

2/ predictable

3/ exercised through clear procedural requirements

4/ reviewable by courts

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14
Q

Characteristics of substantive conceptions of rule of law?

A

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

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15
Q

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

A

1/ rule by law

2/ effective limitation of power

3/ democracy

4/ HR

5/ social justice

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16
Q

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

A

1/ public power

2/ exercised through legal instruments

17
Q

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

A

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

18
Q

What question did the EU-Turkey deal raise?

A

No rule by law?

19
Q

Characteristics of EU-Turkey deal? (2)

A

1/ informal nature of arrangement

2/ informal process leading to arrangement

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

20
Q

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

A

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

21
Q

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

A

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)

22
Q

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

A

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)

23
Q

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

A

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

24
Q

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

A

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’?

25
Q

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

A

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

26
Q

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

A

1/ Commission v. Poland (Art. 258 TFEU)

2/ Hungary v EP (Art. 263 TFEU)

3/ Repubblika (Art. 267 TFEU)

27
Q

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

A

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)

28
Q

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

A

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

29
Q

What did the ASJP case concern? (3)

A

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)

30
Q

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

A

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

31
Q

Main contribution of Repubblika case?

A

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

32
Q

Main question raised by the Hungary v EP case?

A

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

33
Q

Finding of CJEU in Hungary v EP? (2)

A

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

34
Q

What was Polish Supreme Court ruling about? (2)

A

1/ Polish law reducing retirement age of judges & allowing President to nominate judges

2/EC believed this infringed pcple of judicial independence

35
Q

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

A

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

European Constitutional Law and Fundamental Rights (10 decks)

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