Table of Contents: Defending Checks and Balances in EU Member States :

Defending Checks and Balances in EU Member States : : Taking Stock of Europe's Actions.

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Bibliographic Details
Superior document:	Beiträge Zum Ausländischen öffentlichen Recht und Völkerrecht Series ; v.298
:	von Bogdandy, Armin.
TeilnehmendeR:	Bogdanowicz, Piotr. Canor, Iris. Grabenwarter, Christoph. Taborowski, Maciej. Schmidt, Matthias.
Place / Publishing House:	Berlin, Heidelberg : : Springer Berlin / Heidelberg,, 2021. ©2021.
Year of Publication:	2021
Edition:	1st ed.
Language:	English
Series:	Beiträge Zum Ausländischen öffentlichen Recht und Völkerrecht Series
Online Access:	https://ebookcentral.proquest.com/lib/oeawat/detail.action?docID=6451167
Physical Description:	1 online resource (478 pages)
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Table of Contents:

Defending Checks and Balances in EU Member States
Preface
Contents
Part I: Understanding the Development in EU Member States
Not on Bread Alone Doth Man Liveth (Deut. 8:3
Mat 4:4): Some Iconoclastic Views on Populism, Democracy, the Rule of Law and t...
1 Populism
2 What of the Disillusionment with Liberal Democracy?
3 Poland
Reference
Constitutional Crisis in Poland 2015-2016 in the Light of the Rule of Law Principle
1 Introduction
2 Facts and Law
3 Controversies Concerning Three Constitutional Judges
4 The Rule of Law and the Principle of Legality
5 Constitutional Tribunalś Scope of Competence
6 Legal Effects of the K 34/15 Judgment
7 May the Constitutional Tribunal Bypass an Act of Parliament?
8 Presumption of Legality of Acts Issued by State Bodies
9 Closing Remarks. The Crisis of Procedures
References
Hungaryś Latest Experiences with Article 2 TEU: The Need for `Informed ́EU Sanctions
1 Introduction
2 The Big Picture: Targeted Legislation and Constitutional Malfunctions
2.1 Lex Friends and Lex Enemies
2.1.1 Turning the Data Protection Ombudsman into an Authority Influenced by the Government
2.1.2 Sending Judges into Retirement
2.1.3 Labelling Foreign Funded NGOs
2.1.4 Targeting the `Soros University ́-- 2.1.5 `Stopping Soros ́(and Migration)
2.1.6 The System of Lex Friends and Lex Enemies: The Fundamental Challenge to the Rule of Law in Hungary
2.2 Unrestrained Constitutional Amendments
2.3 The Constitutional Court: Still a Counterbalance or, Already an Ally of the Government?
2.3.1 Filling the Court with Fidesz-Loyalist Judges
2.3.2 Limiting Constitutional Review in Important Cases
2.3.3 New Strategies of the Constitutional Court: Shifting Away from the Control of the Legislative.
3 Why Infringement Procedures Are Ineffective in the Case of Hungary
3.1 CJEU Judgments Being Fully or Partly Ignored
3.2 Infringement Cases Regarding the NGO Law and the Lex CEU
4 Making a Try with Article 7: The Sargentini Report on Hungary
4.1 Getting Lost in Details, Missing the Bigger Picture
4.2 Limited Political Relevance
5 How to Take `Informed ́Measures in Defence of the Unionś Values?
5.1 Measuring, Buying or Monitoring the Rule of Law?
5.2 How to Indicate Overlapping Systemic Rule of Law Deficiencies?
6 Conclusion
References
Part II: European Action
Towards a Tyranny of Values?
1 What Is at Stake
2 The Principles in Abstract
2.1 Options
2.2 Grounds Against Defending the Unionś Values
2.3 Grounds in Favour of Defending the Unionś Values
3 The Principles Applied
3.1 The Toolbox
3.2 Questions of Competence
3.2.1 Article 7 TEU in the Order of Competences
3.2.2 Instruments of Secondary Law
3.2.3 The Justiciability of the Values
3.3 Procedure
3.4 Material Standards
3.4.1 Red Lines
3.4.2 The Comprehensive and Collective Assessment
3.4.3 On the Concreteness of the Risk
3.5 Control
4 Towards a Tyranny of Values?
References
The Rule of Law As a Value in the Sense of Article 2 TEU: What Does It Mean and Imply?
1 Dangers for the Rule of Law in the Union
2 Origins As a Principle of Union Constitutional Law
3 No Homogeneity as Regards the Rule of Law in the Union
4 Normative Character of the Union Rule of Law
4.1 Rule of Law As Value and Principle
4.2 Binding Legal Norm
4.3 Operational Legal Norm
5 The Rule of Law As a Legal Concept
5.1 Determining the Content of the Rule of Law
5.2 The European Tradition of the Rule of Law
5.3 Formal and Material Aspects of the Rule of Law
6 The Rule of Law in the Unionś Practice.
6.1 Rule of Law As Described in the Commission Framework
6.2 Rule of Law in the Case Law of the CJEU
7 Essence of the Union Rule of Law
References
Article 7: A Commentary on a Much Talked-About `Dead ́Provision
1 Introduction
2 A Brief Context of Coping with Rule of Law Backsliding
3 Background of Art. 7 TEU
4 The Scope of Application of Art. 7 TEU
4.1 Clear Risk of a Serious Breach (Procedure No. 1)
4.2 Stating the Existence of a Serious Breach (Procedure No. 2)
4.3 Suspension of Rights and Revocation of Sanctions (Procedure No. 3)
4.4 Procedural Requirements Specific to Article 7 TEU
5 (Utopian) Scenarios for the Future: No Room for Art. 7
5.1 Thinking Short-Term: Scenario No. 1: Cutting the Funds
5.2 Thinking Mid-Term: Scenario No. 2: Overwhelming Ad Hoc Political Pressure
5.3 Thinking Long-Term: Scenario No. 3: A Multi-Speed Union
6 A Realistic Scenario for the Future: No Room for Art. 7
References
The Responsibility of Courts in Maintaining the Rule of Law: Two Tales of Consequential Judicial Self-Restraint
1 Introduction
2 Narrowing the Charterś Applicability: Article 51 (1) CFR
2.1 Siragusa, Hernndez: Context and Consequences
2.2 Consequences of the Restrictive Interpretation of 51 (1) CFR Until 2017 in Hungary
2.2.1 The Media Law
2.2.2 The Forced Retirement of Justices
2.2.3 The Removal of the Data Protection Commissioner
2.3 Article 19 (1) TEU as a Partial Supplement for a Broad Interpretation of Article 51 (1)
2.4 Revival of ERT?
3 Unused Means to Control the Constitution Making Power
3.1 The Convolution of Pouvoir Constituant and Pouvoir Constitué
3.2 Limits of the Constitution Making Power
3.2.1 Constitutional Identity
3.2.2 International Law as a Standard of Interpretation of Constitutional Provisions.
3.2.3 International Law as a Standard of Legality of the Constitution
3.3 The European Convention on Human Rights as a Standard of Review by the Constitutional Court
4 Conclusions
References
Suspending Horizontal Solange: A Decentralized Instrument for Protecting Mutual Trust and the European Rule of Law
1 Introduction
2 Mutual Trust: The Path Towards Becoming a Founding Constitutional Principle of the EU
2.1 Mutual Trust: Initial Steps
2.2 Mutual Trust: A Horizontal Principle of Cooperation Among the Member States ́Judiciaries
2.3 Mutual Trust: A Constitutional Principle
3 The Rule of Law and the Jurisprudence of the CJEU
4 Mutual Trust and Its Exceptions
4.1 Political Versus Judicial Determination
4.2 Judicial Determination of Systemic Deficiencies
4.2.1 Substantive Matters
4.2.2 Institutional Aspects
4.3 Individual Examination
4.4 A Horizontal Solange Doctrine
5 Conclusion
References
Books and Journals
Ascertaining the `Guarantee of Guarantees:́ Recent Developments Regarding the Infringement Procedure in the EUś Rule of Law C...
1 Introduction
2 The Rule of Law Crisis in Court: The Commission Infringement Cases Against Poland
2.1 The `Independence of the Supreme Court Case:́ C-619/18
2.1.1 Combined Interim Relief and Expedited Procedure
2.1.1.1 Procedural Novelties
2.1.1.2 The Application for Interim Relief and the Courtś Two Subsequent Orders
2.1.1.3 The Application to Expedite the Procedure
2.1.2 Opinion
2.1.3 Judgment
2.2 The `Case on the Independence of the Ordinary Courts:́ C-192/18
2.2.1 Opinion
2.2.2 Judgment
3 Context of the Judgments: The Commission Communications of April and July 2019
4 Conclusions
References (Primary Sources, Links and Jurisprudence Omitted).
Defending Union Values in Judicial Proceedings. On How to Turn Article 2 TEU into a Judicially Applicable Provision
1 Introduction
2 Uncertainties Surrounding the Judicial Application of Article 2 TEU
2.1 Nature: Do Article 2 TEU Values Have Any Legal Effect?
2.2 Direct Effect: Are Article 2 TEU Values Directly Applicable?
2.3 Jurisdiction: Does the Court Have Competence to Review the Member States ́Value Compliance?
3 Turning Article 2 TEU into a Judicially Applicable Provision
3.1 The Groundbreaking Judgment in ASJP
3.2 First Rationale: Securing the Functioning of the EUś Judicial System
3.3 Second Rationale: Operationalizing the Values in Article 2 TEU
4 Anticipating Objections and Advancing Rejoinders
4.1 Framing Possible Objections
4.2 Methodologically Unsound?
4.3 Pretext for a Power Grab?
5 Conclusion
References
Suspension of EU Funds Paid to Member States Breaching the Rule of Law: Is the Commissionś Proposal Legal?
1 Introduction
2 Conditionality Mechanism in EU Law
2.1 The Conditionality Mechanism in EU Internal and External Relations
2.2 The Financial Conditionality Mechanisms in EU Secondary Law on EU Funds
3 The Conditionality Mechanism Applied for Breaches of the Rule of Law
3.1 The Notion of `the Rule of Law ́-- 3.2 The Notion `Generalised Deficiency As Regards the Rule of Law in a Member State ́-- 3.2.1 The Principle of Sound Financial Management (Article 317 TFEU)
3.2.2 Protection of the Financial Interests of the Union (Article 325 TFEU)
3.2.3 Types of Generalised Deficiency As Regards the Rule of Law
4 Measures Applied Under the Conditionality Mechanism
5 The Procedure for Adoption of a Decision Applying the Conditionality Mechanism
5.1 Initiation of the Procedure
5.2 Who Adopts the Decision?
5.3 Voting in the Council by Reverse QMV.
5.4 Decision Lifting the Measures.

Defending Checks and Balances in EU Member States : : Taking Stock of Europe's Actions.

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