Democracy and The RoL Flashcards
How is democracy expressed
Democracy within the union
Democracy in member states
What article provides founding values of the union
TEU article 2
TEU article 2
Founding values:
Democracy
RoL
Respect for human rights
human dignity
Freedom
Equality
RoL and democracy are the cornerstones of the EU
Also some overlap w fundamental rights
Democracy and the EUs legal framework
Which article provides for it
The EU is sufficiently democratic
Democracy is the basis of legitimacy of the union
Principle of conferral: Member states give some of their sovereigty to the EU
Article 10 TEU
Article 10 TEU
Citizens democratically represented through european parliament
Member states democratically represented through the european council and the council is democratically accountable to its member states and thus its citizens
How is the EU indirectly democratic?
Because the council s composed of heads of each state
Some countries democratically elect their head thus theres some type of democratic representation
Composition of European council
Which article gives effect to council
Head of member state from each country,ie. taoiseach in ireland
Article 15 TEU
Article 15 TEU
Council gives the impetus of the EU and the political direction of the Eu but does not execute legislative functions
Is the EU sufficiently democratic?
Who comments on this?
In the beginning the parliament wasnt even directly elected but then it became representation through election but it still had way less power than the council which are not elected
Varrious treaty reforms have attempted to give parliament equal adoption power to the council
Craig and De Burca p.182
Craig and de burca p182
Noted some issues with democracy in the EU
Resistant to democratic pressure
The council is not democratically elected and citizerns cannot directly vote to change its composition
Rebuttal: in some countries You democratically elect your head of state/can vote for a referendum etc so theres some element of democracy
Executive dominance
The council, not directly elected, still holds a significant more amount of power than the parliament that is
Remoteness from citizens
Citizens cant really change the EU law themselves
And this is also due to
Lakc of transparency and complexity
Difficult for citizeens to comprehend and understand functioning and issues that arise before the EU
Conclusion: EU democratic but democracy ,mostly stems from democracy in member states
Member states and democracy
Which article provides for it
Article 49 TEU
in order to join the EU the member state must uphold the values of the Eu under Article 2 TEU.
Note that these values arent just a one off thing, must continuously have respect for them
Issue: EE and RoL crisis
What defines the RoL and rules surrounding it
Name recitals and explain
RoL Condiditonality regulation 2020
Recital 6: In order to have respect for human rights and remocracy,must have respect for RoL and vice versa
RoL is the hinge of dem and fundamental rights
Recital 3:
Defines RoL
Member states must adhere to the laws and their contraints whilst having respect for democracy and fundamenta rights under the control of independent and impartial courts.
RoL Crisis in Poland
Prior government had no respect for RoL
New government wanted to rebuild RoL
Hungary
Constantly under scruitiny for lack of independence of judiciary and human rights violations
Examples
Restricitons on media and freedom of expression
Resritcions on NGOs and universisits
restricitons on LGBTQ rights
LAck of respect /poor treatment of refugees and asylum seekers
How does Eu deal with these issues
Article 7 TEU provides a mechanism
State Article 7 TEU mechanism
Council can find that theres a serious breach of values of EU
Breach mist be considered to be serious and persistent
Can choose to impose sanctions on the treaty rights of the member state,ie voting rights
NEver been used as need 4/5 majority for 1st step
Other ways to enforce the RoL
Monitoring by the Comission
Restritciton on Eu funding
Legal Proceedings
Monitoring by the Comisison
COmission looks at values within each memebr state yearly and report on access to courts, RoL and functioning of courts
Aims to stop breaches from the onset
Restriction on funding
Can restrict funding or lessen it from EU budget
Note: A breach doesnt automatically mean tha funding will be restricted
RoL Regulaion
Eu can restrict funding if the breach of the values restricts the financial management of the Eu
Legal proceedings
State 2 routes
Witholding funds
Refering the Matter to the CJEu
Witholding funds state case
Hungary v Council and Parliament
Hungary v Council and Parliament
Issue: Argument that the treaty already provided mechanisms to deal with breaches of the RoL.
Held: The court did not agree.
The values are not just a one-off requirement to meet: there must be continuous respect for the values.
Vales are so integral to the identity of the EU, shouldn’t be addressed by only a singular mechanism.
It is open to the union to create another mechanism to enforce these values as long as they are different to the Article 7 procedure.
December 2022: The Council decides to withhold around 55% of the EU Structural Funds
December 2023: They felt that there was some improvement so they released 10 billion and 20 billion remained suspended.
Reference to CJEU
State cases
Comisison v Poland
Comission v Poland - disciplinary procedure for judges
Comisison v Poland
State relevant article
TEU Article 19(1):
Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.
Comission v Poland
Facts: Poland lowered the retirement age of judges significantly.
As a result, a lot of sitting judges were removed from court.
The president had the power to selectively allow judges to stay on the court even if they surpassed the retirement age.
This posed as a huge issue in regard to judicial independence.
Argument: The commission argued that this was in breach of Article 19.
Held: The courts interpreted Article 19 teleologically.
P58: The requirement of independence forms part of the fundamental right to a fair trial.
It guarantees the right to effective judicial protection.
These are both guarantees that directly derive from EU law and are consistent with the values under TEU Article 2.
RoL must be safeguarded.
P118: Removing a large number of judges and selectively allowing certain ones to stay raises reasonable doubt as to the neutrality of these judges and their protection from external factors.
Comission v Poland - disciplinary procedure for judges
Facts: Concerned a measure implementing disciplinary procedures for judges referring cases to the CJEU.
Held: This measure by Poland was a breach of Article 267.
P222: The keystone of the judicial system established by the Treaties is the preliminary ruling procedure provided for in Article267 TFEU.
There must be mutual trust between the national courts and the courts of justice.
It is implicit in the function of the mechanism that judges be allowed to refer matters to the CJEU.
Measures that permitted judges to be subject to disciplinary proceedings because they referred a case to the CJEU were in breach of Article 267.
