Thema: Europarecht

EU-Verfassungsrecht, verfassungsrechtlicher Rahmen der europäischen Integration und Mehrebenenverfassungsrecht. Umfasst EU-Institutionenrecht, Grundfreiheiten, EU-Grundrechte, verfassungsrechtliche Aspekte der EU-Mitgliedschaft und das Verhältnis zwischen EU-Recht und nationalen Verfassungsordnungen.

Did the Israeli Supreme Court Kill the Constitutional Coup?

On January 1, 2024, the Israeli Supreme Court struck down a constitutional amendment prohibiting judicial review of actions of the government, the prime minister, or any minister based on the “reasonableness” doctrine. The judgment illustrates how societal and judicial vigilance in recognizing “early warning” signals of potential “constitutional capture” may play a significant role in battling such processes. However, notwithstanding this judgment and the halting of the legislative process, the threat of democratic backsliding in Israel persists. The ongoing war has, in fact, paved the way for further anti-democratic measures, some of which were upheld by the very same Court that struck down the anti-reasonableness amendment.

9. Januar 2024

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The European Game

The long-awaited judgement of the Court of Justice of the European Union in Case C-333/21 - European Super League Company has finally arrived. There is a lot to unpack, especially with respect to developments in competition law. Constitutional lawyers will, however, find particular interest in how the Grand Chamber dismissed Advocate General Rantos’ pitch for a constitutional recognition of the European sports model based on Article 165 TFEU. This post focuses on this aspect of the European Super League judgment. It argues that while the Advocate General’s construction was rejected, the Court still used this judgement to further define its own constitutional understanding of the European sports model, as well as to solidify its role as the primary interpreter of that model.

4. Januar 2024

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Same, Same but Different?

The Commission’s decision to release a significant amount of EU money is a testament to some serious pitfalls in the mechanism, which governs the unblocking of frozen EU funds. To recall, Hungary’s endowments are blocked via two different channels, based on two different conditionality criteria, which have some overlapping points. Both prescribe reforms to preserve the independence of the judiciary, which according to the Commission’s justification has been successfully accomplished by Hungary.  The Commission has, however, never published a detailed plan that would attach a specific amount to be released to every sufficiently satisfied conditionality criterion. In this blog post, I showcase that the overlap between the two conditionality mechanisms and the absence of a robust ex-ante blueprint for releasing frozen funds make the unblocking process highly obscure. This lack of transparency both decreases the efficiency and robustness of conditionality, and increases the tendency for inter-institutional conflicts.

21. Dezember 2023

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Between Return and Protection

Last month, the ECJ responded to a preliminary reference of the Regional Court in Brno concerning Czechia’s so-called return procedure. The ECJ ruled that a third country national cannot be subject to a return decision if they applied for international protection and a first-instance decision on that application has not yet been delivered. Curiously, the ECJ thereby answered a question it had not actually been asked, while contradicting the conclusion of the Grand Chamber of the Czech Supreme Administrative Court (“SAC”), rendered shortly before. While the ECJ’s ruling will nonetheless improve some of the problems that have inhered within Czechia’s approach to international protection and return procedures, its failure to answer the referred question constitutes a missed opportunity to facilitate a productive dialogue with referring courts in an area of law where preliminary references have been exceedingly rare.

20. Dezember 2023

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One Step Forward, Two Steps Back

This blogpost unpacks some of the ‘democratic paradoxes’ that come with the ‘Defence of Democracy’ package (DoD package), which the European Commission published on Tuesday, 12th of December. While a Recommendation on promoting civic engagement and citizen participation (Civil Society Recommendation) reflects positive changes in the Commission’s conception of democracy, the ‘Directive establishing harmonised requirements in the internal market on transparency of interest representation carried out on behalf of third countries’ (Foreign Funding Directive) directly contradicts this emphasis on a more citizen-centred model and is illustrative of a broader dilemma: how to defend democracy in the EU’s multi-level constitutional space, while keeping the sensitive legal tools for doing so out of the hands of the enemies of democracy that are already – and for the time being irreversibly – on its inside.

19. Dezember 2023

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Orbán’s Veto Play – The Subsidiarity Card

Viktor Orbán is known to use veto threats in the European Council to get his way. This time, he was keen to see that after months of tense exchanges with the Commission, Hungary gets access to EU funds that had been blocked in order to achieve compliance with the rule of law and fundamental rights conditionality. So, PM Orbán saw it fit to loudly contest Ukraine’s accession and the financial aid package of 50 billion Euros. This may be PM Orbán’s strongest veto play to date.

15. Dezember 2023

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Same Old, Same Old

Following the General Affairs Council on 12 December 2023, the Spanish presidency issued its conclusions on the evaluation of the Annual Rule of Law Dialogue (ARoLD). The overly positive assessment that transpires from the conclusion fails to convince, due to the continued reliance on confidentiality and the lack of any tangible standards. Moreover, the improvements suggested by the Presidency fall overwhelmingly short of addressing the issues that plague this instrument, confirming it as a weak exercise in posturing with no real stakes involved.  

15. Dezember 2023

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Escaping Jurisdictional Blackholes

There is a lack of effective judicial protection in the field of EU Common Foreign and Security Policy. In a recent opinion, AG Ćapeta has suggested that the solution rests with asserting the possibility of establishing the non-contractual liability of the EU for breach of fundamental rights in CFSP cases, regardless of whether the measure imposes restrictions. However, the Council also has a positive duty stemming from the Charter to include a jurisdictional clause in all CFSP measures indicating the national court which has jurisdiction in those cases.

15. Dezember 2023

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The Future of the Rule of Law in the EU

With systemic threats to and violations of the rule of law not subsiding, notwithstanding the expected end of backsliding in the case of Poland, the future of the rule of law in the EU is likely to be one of retrenchment accompanied by increased gaslighting to mask an increased gap between EU rhetoric and EU action. This means that the Commission’s decision to unlock € 10 bn of EU funding previously frozen on rule of law grounds to “sway Viktor Orbán on Ukraine” should not be seen as a once-off aberration but as prefiguration of a new abnormal normal.

14. Dezember 2023

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Trick and Treat?

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Almost a year has passed since the European Union decided to block the payment of EUR 27 billion in union funds to Hungary under several instruments. Access to the largest part of the frozen funds - altogether EUR 13 billion - depends on whether Hungary complies with its undertakings to strengthen judicial independence. The government claims to have met all four of the so-called super milestones by adopting a judicial package in May 2023 and requests access to the blocked funds under Hungary’s Recovery and Resilience Fund (RRF) and ten different operative programmes. However, upon taking a closer look at the preconditions to the payments and the nature and implementation of the proposed reforms, it becomes clear that Hungary is still playing tricks to avoid compliance.

12. Dezember 2023

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