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26. Defending Checks and Balances in EU Member States

Author

von Bogdandy, Armin, Bogdanowicz, Piotr, Canor, Iris, Grabenwarter, Christoph, Taborowski, Maciej, and Schmidt, Matthias

Subjects
European Fundamental Rights and Freedoms, Treaty of the European Union, Court of Justice of the European Union, Member States, CJEU, Democracy, Rule of Law, EU Values, Constitutional Crisis, Open access, Public international law: human rights, bic Book Industry Communication::L Law::LB International law::LBB Public international law::LBBR International human rights law
Abstract

This open access book deals with Article 7 TEU measures, court proceedings, financial sanctions and the EU Rule of Law Framework to protect EU values with a particular focus on checks and balances in EU Member States. It analyses substantive standards, powers, procedures as well as the consequences and implications of the various instruments. It combines the analysis of the European level, be it the EU or the Council of Europe, with that of the national level, in particular in Hungary and Poland. The LM judgment of the European Court of Justice is made subject to detailed scrutiny.

Published
2021
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27. Intermezzo in the rule of law play: the Court of Justice’s LM case

Author

Bonelli, Matteo, von Bogdandy, Armin, Bogdanowicz, Piotr, Canor, Iris, Grabenwarter, Christoph, Taborowski, Maciej, Schmidt, Matthias, International and European Law, RS: FdR - CERiM, RS: FdR Institute MCEL, RS: FdR IC Constitutionele proces., and RS: FdR Research Group Globalization & Law Network

Subjects
050502 law, 05 social sciences, Judicial independence, European Arrest Warrant, Constitutionalism, Economic Justice, language.human_language, 0506 political science, Rule of law, Test (assessment), Political science, Constitutional crisis, 050602 political science & public administration, language, Portuguese, 0505 law, Law and economics
Abstract

In the LM case, the CJEU was called to decide on whether systemic rule of law deficiencies in Poland could lead to the suspension of EU cooperation based on mutual trust, in particular under the European Arrest Warrant system. Building on its earlier decision in Aranyosi, the Court concluded that EAWs may be suspended only after the executing authority conducts a general analysis of the situation in the country concerned and an individual assessment of the specific situation of the applicant. For some, the decision was a disappointing one, as the Court failed to take a clear stance on the Polish constitutional crisis. This chapter argues, on the other hand, that the Court reached a balanced decision: while it is true that it confirmed the strict Aranyosi test, it also sent some key messages on the crucial importance of the rule of law and judicial independence for the EU and underlined the red lines of European constitutionalism. Furthermore, a different line of cases that originated from the groundbreaking decision of the Court in the ‘Portuguese judges’ case seems much more promising for the protection of EU values. Thus, rather than a constitutional moment for the Union, LM was ultimately an intermezzo between the two main acts of the rule of law play before the Court of Justice.

Published
2021

32. [pol. translation:] Zakreślanie dozwolonych granic praworządności: Nowa definicja konstytucji na Starym Kontynencie

Author

Bogdandy, Armin, Bogdanowicz, Piotr, Canor, Iris, Schmidt, Matthias, and Taborowski, Maciej

Subjects
ddc:340, Recht und Gesellschaft, ddc:342, article
Abstract

The illiberal turn in Europe has many facets. Of particular concern are Member States in which ruling majorities uproot the independence of the judiciary. For reasons well described in the Verfassungsblog, the current focus is on Poland. Since the Polish development is emblematic for a broader trend, more is at stake than the rule of law in that Member State alone (as if that were not enough). If the Polish emblematic development is not resisted, illiberal democracies might start co-defining the European constitutional order, in particular, its rule of law-value in Article 2 TEU. Accordingly, the conventional liberal self-understanding of Europe could easily erode, with tremendous implications.

Published
2018

38. THE INFRINGEMENT PROCEDURE IN THE RULE OF LAW CRISIS: HOWTO MAKE EFFECTIVE USE OF ARTICLE 258 TFEU.

Author

SCHMIDT, MATTHIAS and BOGDANOWICZ, PIOTR

Subjects
RULE of law, EUROPEAN Union law, PATENT infringement, LAW enforcement
Abstract

The Union's rule of law crisis has worsened and has led to ample reactions from academia and EU institutions. Most notably, the situation in Poland culminated in the activation of the procedure under Article 7(1) TEU by the European Commission. This article suggests that the infringement procedure under Article 258 TFEU may yield a fully complementary, yet more effective, means alongside existing measures to address not only specific and episodic violations of EU law, but also a general situation in a Member State as a systemic deficiency in the rule of law. Conscious of suggestions made before us in this regard, we offer a reconstruction of the infringement action de lege lata by engaging, step-by-step, with the procedural and substantive hurdles to overcome in this attempt. [ABSTRACT FROM AUTHOR]

Published
2018

39. GUEST EDITORIAL.

Author

von Bogdandy, Armin, Bogdanowicz, Piotr, Canor, Iris, Taborowski, Maciej, and Schmidt, Matthias

Subjects
RULE of law, SEPARATION of powers, TREATIES, DEMOCRACY, HUMAN rights
Abstract

The article focuses on constitutional moment for the European rule of law and Member States of European Union where ruling majorities willfully uproot separation of powers. It mentions guardians of the treaties have developed it in a way that allows for a juridical assessment of Member States' activities and opinions regarding European Court of Human Rights and the European Commission for Democracy through Law. It also mentions indistinguishable from the values of democracy and human rights.

Published
2018

40. Opinia prawna na temat Traktatu o stabilności, koordynacji i zarządzaniu w Unii Gospodarczej i Walutowej.

Author

Bogdanowicz, Piotr

Subjects
TREATIES, MONETARY policy, COOPERATION, EURO
Abstract

The subject of the opinion is the Treaty, including the relationship there of with other documents devoted to economic management in the European Union (EU). In the author's opinion, the scope of the subject matter of the Treaty is not a part of the exclusive competencies of the EU. However, the use by the Member States of the so-called Schengen method while concluding the Treaty violates the principle of loyal co-operation. This principle also constitutes an obstacle to the participation of EU institutions in the process of the application of the Treaty, the use by the parties of the rule of the so-called reversed qualiied majority and the settlement by the European Court of Justice of disputes between the Member States being parties to the Treaty. [ABSTRACT FROM AUTHOR]

Published
2012

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