Respect for the rule of law in the case law of the European Court of Justice: a casebook overview of key judgments since the Portuguese Judges Case

In recent years, the European Court of Justice has strengthened the rule of law as a binding value within the EU. This change is the result of several landmark rulings in the period 2018 to 2021, which should be seen in the context of the decline of the rule of law in some Member States. Professors Laurent Pech and Dimitry Kochenov unveil a profound change of the EU as a constitutional system

Monitoring and enforcement of the rule of law in the EU: rhetoric and reality

This article offers a comprehensive examination of the rationale underlying the rule of law framework adopted by the Commission in March 2014 before outlining its main features. It is argued that while the Commission’s ‘light-touch’ framework falls short of what is required to effectively address internal threats to EU values of a systemic nature, it remains preferable to the new mechanism adopted by the Council in December 2014 and which consists of holding an annual rule of law dialogue among all Member States within the Council. To make the Commission’s framework more workable and effective, which should in turn increase its ‘dissuasive potential’, a number of modest recommendations are also offered at a time where an increasing number of voices are asking the Commission to activate the first phase its new mechanism in relation to Hungary and more recently, Poland

Better late than never? On then European Commission's Rule of Law Framework and its first activation

This article first offers an overview of the European Commission's Rule of Law Framework, which was adopted in March 2014. The mechanism's potential effectiveness and the Commission's reasoning to justify its first activation against Poland in January 2016, when it has failed to do so against Hungary, are subsequently analyzed. While the Commission should be commended for seeking to address increasing rule of law backsliding at Member State level, our main submission is that reliance on the Rule of Law Framework alone, if only because of its soft and discursive nature, will not remedy a situation where systemic violations of EU values form part of a governmental plan to set up an 'illiberal' regime

The EU Rule of Law: Cutting Paths through Confusion

The Court of Justice of the European Communities (ECJ) has always been outspoken about the essence of the European Community (EC) as a Rule of Law Community. The notion of the Rule of Law entered the texts of the Treaty and arguably plays a crucial role in the Community legal order, serving as one of the fundamentals of ‘integration through law’. Yet, the analysis of numerous studies of the Rule of Law in Community context reveals that the understanding on the Rule of Law as a Community legal construct, as opposed to a notion borrowed from the legal systems of the Member States, is not receiving enough attention. Confusion persists between the Rule of Law as understood in the national contexts of the Member States and the Community concept, which presumably should be governed by EC law alone. This paper aims to bridge the gap between the obvious importance of the Community Rule of Law in the EC legal order and the country-specific vision, ascribed to the Rule of Law in each Member State, which results in a vague and even contradictory understanding of Community Rule of Law in different Member States, threatening to undermine the effectiveness and uniform application of Community Law throughout the entire territory of the Community. A substantive vision of Community Rule of Law is offered as a possible tool to be employed to this effect

Where Citizenship Law and Data Protection Law Converge

Becoming a citizen of a country is a noteworthy event. But in light of increasing concerns over the protection of personal data, states face questions regarding the necessity of formal publication of the personal data of their new citizens. A closer look at Member States' practices reveals radical discrepancies between the national approaches taken across the EU

Testing liberal norms: the public policy and public security derogations and the cracks in European Union citizenship

European Union law has curtailed the traditional discretion Member States have in ordering non-nationals to leave their territory. Although Directive 2004/28 (the Citizenship Directive) has enhanced the system of protection afforded to offending European Union citizens, it still contains a number of cracks that lead to policy incoherence and gaps in rights protection. This is evident in the first rulings on Article 28(3) of Directive 2004/38 concerning the deportation of offending EU citizens. These issues also threaten to transform European Union citizenship from a fundamental status into a thin overlay that, under pressure from national executive power, loses its effect and significance. To be sure, EU citizenship has demonstrated that community belonging does not have to be based on organic-national qualities, cultural commonalities, or individuals' conformity to national values, but the continued deportation of long-term resident Union citizens makes nationality the ultimate determinant of belonging. The subsequent discussion suggests possible remedies and makes recommendations for institutional reform

Citizenship:Contrasting Dynamics at the Interface of Integration and Constitutionalism

EUDO Citizenship ObservatoryThis paper explores the different ways in which citizenship has played a role in polity formation in the context of the European Union. It focuses on both the ‘integration’ and the ‘constitution’ dimensions. The paper thus has two substantive sections. The first addresses the role of citizenship of the Union, examining the dynamic relationship between this concept, the role of the Court of Justice, and the free movement dynamic of EU law. The second turns to citizenship in the Union, looking at some recent political developments under which concepts of citizenship, and democratic membership as a key dimension of citizenship, have been given greater prominence. One key finding of the paper is that there is a tension between citizenship of the Union, as part of the EU's ‘old’ incremental constitutionalism based on the constitutionalisation of the existing Treaties, and citizenship in the Union, where the possibilities of a ‘new’ constitutionalism based on renewed constitutional documents have yet to be fully realise

Coming full circle: Differential empowerment in the EU accession process

The EU accession process brings a profound transformation not only to candidate countries’ institutions and policies, but also to the political opportunity structure in place, creating new possibilities for previously marginalised actors. Studying the differential empowerment of NGOs throughout the Croatian accession process, this paper makes two related claims: first, differential empowerment depends crucially on domestic actors’ awareness for and ability to use new opportunities to their advantage. Second, an overreliance on EU leverage poses important temporal and substantive limits on NGO empowerment and leads to a rapid decline of their relevance in the post-accession phase. I argue that a more sustainable shift in the domestic power balance would require both the EU and domestic civil society actors to place more emphasis on fostering improved practices of civil society inclusion in domestic policymaking settings throughout the accession process

Rethinking “democratic backsliding” in Central and Eastern Europe – looking beyond Hungary and Poland

This essay introduces contributions to a special issue of East European Politics on “Rethinking democratic backsliding in Central and Eastern Europe”, which seeks to expand the study of democratic regression in CEE beyond the paradigmatic cases of Hungary and Poland. Reviewing these contributions, we identify several directions for research: 1) the need to critique “democratic backsliding”, not simply as a label, but also as an assumed regional trend; 2) a need to better integrate the role of illiberal socio-economic structures such as oligarchical structures or corrupt networks; and 3) a need to (re-)examine the trade-offs between democratic stability and democratic quality. We also note how insights developed researching post-communist regions such as Western Balkans or the post-Soviet space could usefully inform work on CEE backsliding. We conclude by calling for the study of CEE democracy to become more genuinely interdisciplinary, moving beyond some narrowly institutionalist comparative political science assumptions