| List of Contributors |
|
xiii | |
| Part I: Introduction |
|
|
1 The European Union and the Rule of Law-State of Affairs and Ways of Strengthening |
|
|
3 | (34) |
|
|
|
I Point of Departure: Dangers for the Rule of Law |
|
|
3 | (1) |
|
II Function of the Rule of Law in the Law of the Union |
|
|
4 | (5) |
|
A 'Community Based on Law' Means Respect for the Law |
|
|
5 | (1) |
|
B Rule of Law and Legal Protection as Maxims in the ECJ's Jurisprudence |
|
|
5 | (1) |
|
C Rule of Law as Part of the Constitutionalisation Strategy |
|
|
6 | (3) |
|
III Rule of Law as Part of the Legal Order of the Union |
|
|
9 | (10) |
|
|
|
9 | (3) |
|
B Rule of Law as Value and Principle |
|
|
12 | (2) |
|
C Normative Character of the Rule of Law |
|
|
14 | (1) |
|
|
|
14 | (1) |
|
ii Emanation into the Union Legal Order |
|
|
15 | (1) |
|
iii Basis for the Mutual Recognition of Legal Decisions of the Member States |
|
|
16 | (1) |
|
iv Respect for the Rule of Law in the Context of the Exercise of the Public Authority of the Union |
|
|
18 | (1) |
|
IV Content of the Rule of Law |
|
|
19 | (8) |
|
A Necessity of a Determination of the Content of the Rule of Law |
|
|
19 | (2) |
|
B Doubts Regarding the Usefulness of the Concept in Legal Terms |
|
|
21 | (1) |
|
C Formal and Material Aspects of the Union Rule of Law |
|
|
22 | (3) |
|
D Essence of the Union Rule of Law |
|
|
25 | (2) |
|
V Systemic Crises of the Rule of Law in the Member States |
|
|
27 | (3) |
|
A Risks for the Union Rule of Law Arising from Systemic Crises |
|
|
28 | (1) |
|
B Consequences of a 'Systemic Deficit' for the Respect of the Rule of Law |
|
|
29 | (1) |
|
VI Procedure for the Implementation of the Rule of Law vis-a-vis the Member States |
|
|
30 | (2) |
|
VII Conclusion-Strengthening of the Rule of Law Through Cooperation |
|
|
32 | (5) |
| Part II: Core Elements of the Rule of Law |
|
|
2 Principle of Legality and the Hierarchy of Norms |
|
|
37 | (9) |
|
|
|
I Legality as the Core of the Rule of Law |
|
|
37 | (1) |
|
II Legality as a Complex Concept |
|
|
38 | (1) |
|
III Three Meanings of Legality |
|
|
39 | (3) |
|
A Legality as Compliance with the Law |
|
|
39 | (1) |
|
B Legality as Duty of the State |
|
|
40 | (1) |
|
C Legality as Dominance of Parliamentary Law |
|
|
41 | (1) |
|
IV Legality and the Quality of Law |
|
|
42 | (1) |
|
V Legality and the Hierarchy of Norms |
|
|
43 | (1) |
|
|
|
44 | (2) |
|
3 Access to Justice and Judicial Independence: Is There a Role for the EU? |
|
|
46 | (15) |
|
|
|
|
|
I Current Issues Concerning Judicial Independence |
|
|
47 | (3) |
|
II Selection and Promotion of Judges |
|
|
50 | (3) |
|
III Assignment and Transfer of Cases, Secondment of Judges |
|
|
53 | (5) |
|
IV Feasibility and Possibility of EU Activities Concerning Judicial Independence |
|
|
58 | (2) |
|
|
|
60 | (1) |
|
4 Transparency as Part of a European Rule of Law |
|
|
61 | (19) |
|
|
|
|
|
61 | (5) |
|
II Access to Documents According to the European Court of Human Rights |
|
|
66 | (10) |
|
|
|
66 | (1) |
|
B Gaskin v United Kingdom |
|
|
67 | (1) |
|
C Sdruzeni Jihoceske Matky v Czech Republic |
|
|
68 | (1) |
|
D Tdrsasdg a Szabadstigjogokert v Hungary |
|
|
69 | (2) |
|
|
|
71 | (1) |
|
F Youth Initiative for Human Rights v Serbia |
|
|
72 | (2) |
|
G Janowiec and Others v Russia |
|
|
74 | (1) |
|
H Osterreichische Vereinigung zur Erhaltung, Starkung und Schaffung Eines Wirtschaftlich Gesunden Land- und Forstwirtschaftlichen Grundbesitzes v Austria |
|
|
74 | (2) |
|
|
|
76 | (1) |
|
IV Looking Forward: Digitalisation, Internationalisation, Privatisation |
|
|
77 | (3) |
|
|
|
80 | (18) |
|
|
|
|
|
80 | (1) |
|
II Elements of Legal Certainty |
|
|
81 | (4) |
|
|
|
81 | (1) |
|
|
|
81 | (1) |
|
|
|
81 | (2) |
|
|
|
83 | (2) |
|
III Problem Areas of Legal Certainty |
|
|
85 | (10) |
|
A Legal Certainty versus Legal Delegation |
|
|
85 | (1) |
|
B Legal Certainty versus Legality |
|
|
86 | (2) |
|
C Legal Certainty versus Evolutive Interpretation |
|
|
88 | (3) |
|
D Legal Certainty versus Separation of Powers |
|
|
91 | (4) |
|
|
|
95 | (3) |
|
6 The Principle of Proportionality |
|
|
98 | (17) |
|
|
|
I Historic Roots of the Principle of Proportionality |
|
|
98 | (2) |
|
A From Hamurabbi to Common Law |
|
|
98 | (1) |
|
B Prussian Police Law of 1794 |
|
|
99 | (1) |
|
II Adoption and Generalisation in German Constitutional Law |
|
|
100 | (4) |
|
A Contributions of Scholars |
|
|
100 | (1) |
|
B Jurisprudence of the Federal Constitutional Court |
|
|
101 | (1) |
|
i The Beginning in the 1950s |
|
|
101 | (1) |
|
ii Generalisation in the 1960s and 1970s |
|
|
102 | (1) |
|
iii Extension to the Equal Protection Clause |
|
|
103 | (1) |
|
III Acknowledgement in the Jurisprudence of International Courts and other Countries |
|
|
104 | (2) |
|
A European Court of Human Rights |
|
|
104 | (1) |
|
B European Court of Justice |
|
|
105 | (1) |
|
C Other National Legal Orders |
|
|
106 | (1) |
|
IV Five Elements of the Proportionality Test |
|
|
106 | (1) |
|
V Three Different Dimensions of Proportionality |
|
|
107 | (3) |
|
A Bipolar Legal Relationships between Individuals and the State |
|
|
107 | (1) |
|
B Multipolar Legal Relationships |
|
|
107 | (1) |
|
C Competence Related Dimension |
|
|
108 | (1) |
|
i European Union (Article 5(4) TEU) |
|
|
108 | (1) |
|
ii Grundgesetz (Article 28(2) GG) |
|
|
109 | (1) |
|
|
|
110 | (5) |
|
A Standard of Scrutiny and Counter-majoritarian Difficulty |
|
|
110 | (1) |
|
|
|
111 | (4) |
| Part III: Council of Europe and European Union-Different Concepts of the Rule of Law? |
|
|
7 The Council of Europe and the Rule of Law |
|
|
115 | (20) |
|
|
|
|
|
|
|
115 | (2) |
|
II Defining the Rule of Law within Europe |
|
|
117 | (4) |
|
III Monitoring Mechanisms and Other Rule of Law Activities |
|
|
121 | (9) |
|
A European Commission for Democracy through Law (Venice Commission) |
|
|
122 | (2) |
|
B PACE Monitoring Committee |
|
|
124 | (2) |
|
C Group of States against Corruption (GRECO) |
|
|
126 | (2) |
|
D European Commission for the Efficiency of Justice (CEPEJ) |
|
|
128 | (1) |
|
E Council of Europe Commissioner for Human Rights |
|
|
128 | (2) |
|
IV Cooperation on the Rule of Law with the European Union |
|
|
130 | (3) |
|
V Concluding Observations |
|
|
133 | (2) |
|
8 The Rule of Law in the Jurisprudence of the European Court of Human Rights |
|
|
135 | (20) |
|
|
|
|
|
135 | (1) |
|
II Attempting to Define the Rule of Law |
|
|
136 | (3) |
|
III The Rule of Law in the Case Law of the European Court of Human Rights |
|
|
139 | (15) |
|
A The Rule of Law as a Fundamental Principle of a Democratic Society |
|
|
140 | (2) |
|
B Guarantees that are Inherent to the Rule of Law |
|
|
142 | (1) |
|
i The Rule of Law and Judicial Oversight |
|
|
142 | (1) |
|
ii Due Process Guarantees |
|
|
147 | (3) |
|
C The Principle of Legality Under the Convention |
|
|
150 | (1) |
|
|
|
151 | (3) |
|
|
|
154 | (1) |
|
9 The Rule of Law in the Recent Jurisprudence of the ECJ |
|
|
155 | (18) |
|
|
|
I Recent Jurisprudence of the ECJ on the Rule of Law |
|
|
156 | (6) |
|
A Effective Judicial Protection Against Restrictive Measures |
|
|
157 | (2) |
|
B Legislative Discretion and Judicial Scrutiny |
|
|
159 | (1) |
|
C Balancing Fundamental Rights |
|
|
160 | (2) |
|
II Ensuring the Respect of the Rule of Law by Member States of the European Union |
|
|
162 | (7) |
|
|
|
163 | (4) |
|
B The Role of the ECJ in Ensuring the Respect of the Rule of Law by EU Member States |
|
|
167 | (1) |
|
i Impressions of an Ongoing Integration Process |
|
|
167 | (1) |
|
ii The Recent Constitutional Evolution in Hungary under Review by the ECJ |
|
|
168 | (1) |
|
III Ensuring the Rule of Law-A Never Ending Story |
|
|
169 | (4) |
| Part IV: Mechanisms of Implementing the Rule of Law in Europe |
|
|
10 Reinforcement of the Rule of Law Oversight in the European Union: Key Options |
|
|
173 | (24) |
|
|
|
|
|
|
|
173 | (2) |
|
II Arguments in Favour of the Rule of Law Oversight |
|
|
175 | (4) |
|
A The 'What?' Question: On the Nature of the Rule of Law Problems at Issue |
|
|
175 | (2) |
|
B The 'Why?' Question: What does the EU have to do with all this? |
|
|
177 | (1) |
|
i The All-affected Principle |
|
|
177 | (1) |
|
ii The Supranational Federation Approach |
|
|
178 | (1) |
|
iii The Principle of Congruence |
|
|
179 | (1) |
|
III The Legal Basis for Reinforced EU Oversight |
|
|
179 | (7) |
|
|
|
180 | (1) |
|
B Key Options Framing the Way Forward: What About the Treaty Change? |
|
|
180 | (2) |
|
C Legal Bases Currently Available |
|
|
182 | (1) |
|
i Articles 2 TEU and 4(2), 3(1) and 13(1) TEU Read Together |
|
|
183 | (1) |
|
ii Articles 2 TEU and 19 TEU Read Together |
|
|
184 | (1) |
|
iii Articles 2 TEU and 258 TFEU Deployed Together |
|
|
184 | (1) |
|
iv Adding Article 260 TFEU |
|
|
185 | (1) |
|
|
|
186 | (8) |
|
A Key Components and Classifications of Procedures |
|
|
187 | (1) |
|
i Brand-new Procedures versus (Updated) Existing Ones |
|
|
187 | (1) |
|
ii Judicial versus Political Procedures |
|
|
188 | (1) |
|
iii Ex ante versus Ex post Procedures |
|
|
188 | (1) |
|
iv Avoiding Semblance of Change |
|
|
189 | (1) |
|
|
|
189 | (1) |
|
i Systemic Infringement Procedure |
|
|
189 | (1) |
|
ii ECJ Involvement via EU Citizenship Rights |
|
|
190 | (1) |
|
|
|
191 | (1) |
|
i Learning from the Council of Europe |
|
|
191 | (1) |
|
ii Using Existing EU Bodies |
|
|
192 | (1) |
|
iii Creating a Special New EU Organ: The Copenhagen Commission |
|
|
192 | (1) |
|
D Penalties and Sanctions |
|
|
193 | (1) |
|
|
|
193 | (1) |
|
ii Ejecting a Non-compliant Member State from the Union |
|
|
194 | (1) |
|
|
|
194 | (3) |
|
11 The EU Rule of Law Framework |
|
|
197 | (10) |
|
|
|
|
|
|
|
197 | (1) |
|
A The Concept of Rule of Law-A Common Understanding |
|
|
198 | (1) |
|
II Why has the Commission Established the EU Rule of Law Framework? |
|
|
198 | (4) |
|
A Infringement Proceedings |
|
|
199 | (1) |
|
B The Mechanisms of Article 7 TEU |
|
|
200 | (1) |
|
C The Need to Address Intermediate Situations |
|
|
201 | (1) |
|
III What are the Conceptual Components of the EU Rule of Law Framework? |
|
|
202 | (3) |
|
A The Objective of the EU Rule of Law Framework |
|
|
202 | (1) |
|
B 'National Rule of Law Safeguards' |
|
|
203 | (1) |
|
C 'Systemic Threat to the Rule of Law' |
|
|
203 | (1) |
|
|
|
204 | (1) |
|
E The Power of the Commission to Establish the Framework |
|
|
204 | (1) |
|
IV How Will the EU Rule of Law Framework Function? |
|
|
205 | (1) |
|
|
|
206 | (1) |
|
12 Global Activities and Current Initiatives in the Union to Strengthen the Rule of Law-A State of Play |
|
|
207 | (14) |
|
|
|
|
|
207 | (1) |
|
II Global and Regional Activities |
|
|
208 | (4) |
|
|
|
208 | (3) |
|
|
|
211 | (1) |
|
III Current Initiatives in the European Union |
|
|
212 | (9) |
|
A Problems and Shortcomings |
|
|
212 | (3) |
|
B The Initiative of the Irish Presidency of the Council in 2013 |
|
|
215 | (1) |
|
C The Initiative of 'Four Member States' |
|
|
216 | (1) |
|
D Approaches by the Other EU Institutions |
|
|
217 | (4) |
|
13 Managing the Rule of Law in a Heterogeneous Context: A Fundamental Rights Perspective on Ways Forward |
|
|
221 | (22) |
|
|
|
|
|
I How Much Heterogeneity can European Unity Afford? The Argument for Minimum Constitutional Cohesion |
|
|
221 | (4) |
|
II How to Look at the Rule of Law Debate? The Argument for a Fundamental Rights Perspective |
|
|
225 | (2) |
|
III How to Ensure a Rights-based Performance? The Argument for Fundamental Rights Indicators |
|
|
227 | (3) |
|
IV How to Move Beyond Sanctions: The Argument for Leading by Example and Learning from Peers |
|
|
230 | (3) |
|
V How to Make Fundamental Rights a 'Joined-up' Mission? The Argument for a Bottom-up Approach |
|
|
233 | (1) |
|
VI How to Move the Value Debate from Extreme Scenarios to Day to Day Business? The Argument for a Strategic Framework |
|
|
234 | (3) |
|
VII Who Does What? Addressing the 'Elephant in the Room' Through a Hybrid Approach with Supranational and Intergovernmental Elements |
|
|
237 | (6) |
| Part V: Institutional Implications of Implementing the Rule of Law in Europe |
|
|
14 The EU and Rule of Law-The Unavoidable Question of: Who Controls it? |
|
|
243 | (12) |
|
|
|
|
|
243 | (1) |
|
II Institutional Power Play in Organisations and in the EU |
|
|
244 | (1) |
|
III The Prelude to the Rule of Law Mechanism-The Negotiations for the Fundamental Rights Agency |
|
|
245 | (2) |
|
A The Role of the Agency in the Legislative Procedure |
|
|
246 | (1) |
|
B Remit of the Agency-Question of National Country Situations |
|
|
246 | (1) |
|
C Role of Council of Europe |
|
|
247 | (1) |
|
D Relevance for Rule of Law Discussion |
|
|
247 | (1) |
|
IV Institutional Considerations behind the Rule of Law in the EU |
|
|
247 | (6) |
|
|
|
248 | (1) |
|
|
|
249 | (1) |
|
|
|
250 | (2) |
|
D Comparison of the Concepts of the Three Principal EU Organs |
|
|
252 | (1) |
|
|
|
253 | (2) |
|
15 The Rule of Law in European Policy: A Parliamentarian's View |
|
|
255 | (10) |
|
|
|
|
|
255 | (1) |
|
II The Rule of Law in Neighbourhood Policy and External Action |
|
|
255 | (2) |
|
A Neighbourhood-policy: Western Balkans |
|
|
256 | (1) |
|
|
|
256 | (1) |
|
III The Rule of Law Within the Borders of the EU |
|
|
257 | (8) |
|
A The Need for an Administrative Law for the European Institutions |
|
|
258 | (1) |
|
B The Case of Hungary: The Article 7 Dilemma |
|
|
259 | (3) |
|
C The Future of Article 7 TEU |
|
|
262 | (3) |
|
16 The Rule of Law and the Constitutionalisation of the European Union |
|
|
265 | (26) |
|
|
|
|
|
|
|
265 | (1) |
|
II Rule of Law, the Concept and the European Union |
|
|
266 | (3) |
|
III Rule of Law and the Process of the Constitutionalisation of the European Union |
|
|
269 | (10) |
|
|
|
270 | (1) |
|
B The Rule of Law at the EU Level |
|
|
271 | (3) |
|
C The Rule of Law in the Member States |
|
|
274 | (5) |
|
IV Enforcing the Rule of Law in the EU Member States: the Dilemma |
|
|
279 | (3) |
|
V The Responsibility to Guarantee the Rule of Law in the Member States: from Institutional Struggle to Institutional Cooperation? |
|
|
282 | (6) |
|
|
|
288 | (3) |
| Index |
|
291 | |
Daugiau apie elektronines knygas