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European Court of Justice case law on judicial independence

19-07-2021

Article 2 of the Treaty on European Union (TEU) lists the values upon which the Union is founded. According to this Article, these values are shared by the Member States and form the axiological backbone of EU law. The rule of law is listed, alongside democracy and fundamental rights, among the crucial values underpinning the Union. However, Article 2 TEU is more than just a mere declaration; it is also a source of binding obligations upon the Member States to uphold the Union's values, and therefore ...

Article 2 of the Treaty on European Union (TEU) lists the values upon which the Union is founded. According to this Article, these values are shared by the Member States and form the axiological backbone of EU law. The rule of law is listed, alongside democracy and fundamental rights, among the crucial values underpinning the Union. However, Article 2 TEU is more than just a mere declaration; it is also a source of binding obligations upon the Member States to uphold the Union's values, and therefore also the rule of law. The latter concept, despite broad discussions as to its exact content, undoubtedly entails such elements as judicial independence, understood in particular as the independence of the judiciary from other branches of government (legislative, executive). All other elements of the rule of law, such as the principle of legality, whereby government may act only on the basis of law and within its boundaries, or the principle of constitutionalism, whereby the parliament's law-making powers must be exercised within the limits of the constitution, or the existence of judicial review to enforce those principles – all depend on judicial independence as their fundamental pre-condition. Recently, however, faced with challenges to judicial independence in certain Member States (as evidenced by on-going Article 7 TEU proceedings), the European Union has started developing its own standards in this area. Examples include the Commission's rule of law framework (adopted in 2014), its two communications on the rule of law, and the annual rule of law report, the first of which was adopted in September 2020. The case law of the European Court of Justice (ECJ) plays a crucial role in this respect, and scholars point out that the Court has been the most effective EU institution with regard to safeguarding judicial independence in the Member States. The present briefing provides a concise chronological overview of the Court's recent case law on judicial independence – described by scholars as 'truly revolutionary' – starting from the 2018 Portuguese Judges case.

European Court of Justice and international agreements

15-07-2021

As a subject of public international law, the European Union (EU) concludes international agreements with other subjects of international law, i.e. international organisations and states. The EU may enter into such treaties on its own, or jointly with its Member States – depending on the area of competence (exclusive EU competence or shared competences) to which the treaty in question applies. The European Court of Justice (ECJ) enjoys specific competences with regard to the conclusion, interpretation ...

As a subject of public international law, the European Union (EU) concludes international agreements with other subjects of international law, i.e. international organisations and states. The EU may enter into such treaties on its own, or jointly with its Member States – depending on the area of competence (exclusive EU competence or shared competences) to which the treaty in question applies. The European Court of Justice (ECJ) enjoys specific competences with regard to the conclusion, interpretation and application of international treaties to which the EU is a party. The ECJ can verify the compatibility of an international agreement with the EU Treaties either ex ante or ex post. Furthermore, international treaties concluded by the EU are considered as acts of the institutions and may be subject to interpretation by the Court, especially in the preliminary reference procedure. As a rule no ECJ jurisdiction is envisaged in EU free trade agreements (FTAs), as dispute settlement is carried out through a joint committee, followed by arbitration. In certain specific cases, such as in the European Economic Area and the EU-Turkey Customs Union, the ECJ may have direct involvement in the enforcement of the agreement. The EU-UK Withdrawal Agreement and the EU-UK Trade and Cooperation Agreement (TCA), however, diverge on dispute settlement rules and the role of the ECJ. In the former, the ECJ maintained its jurisdiction during, as well as beyond, the transition period with regard to specific chapters; the ECJ also has the final word on interpreting EU law applied in virtue of the agreement. Conversely, the TCA includes a role for the Court only in regard to the United Kingdom's participation in EU programmes, and its dispute settlement rules vary throughout the agreement.

Understanding delegated and implementing acts

07-07-2021

Law-making by the executive is a phenomenon that exists not only in the European Union (EU) but also in its Member States, as well as in other Western liberal democracies. Many national legal systems differentiate between delegated legislation − adopted by the executive and having the same legal force as parliamentary legislation − and purely executive acts −aimed at implementing parliamentary legislation, but that may neither supplement nor modify it. In the EU, the distinction between delegated ...

Law-making by the executive is a phenomenon that exists not only in the European Union (EU) but also in its Member States, as well as in other Western liberal democracies. Many national legal systems differentiate between delegated legislation − adopted by the executive and having the same legal force as parliamentary legislation − and purely executive acts −aimed at implementing parliamentary legislation, but that may neither supplement nor modify it. In the EU, the distinction between delegated acts and implementing acts was introduced by the Treaty of Lisbon. The distinction, laid down in Articles 290 and 291 of the Treaty on the Functioning of the European Union (TFEU), seems clear only at first sight. Delegated acts are defined as non-legislative acts of general application, adopted by the European Commission on the basis of a delegation contained in a legislative act. They may supplement or amend the basic act, but only as to non-essential aspects of the policy area. In contrast, implementing acts are not defined as to their legal nature, but to their purpose − where uniform conditions for implementing legally binding Union acts are needed. Under no circumstances may an implementing act modify anything in the basic act. Delegated acts differ from implementing acts in particular with regard to the procedural aspects of their adoption − the former after consulting Member States' experts, but their view is not binding; the latter in the comitology procedure, where experts designated by the Member States, sitting on specialised committees, can object to a draft implementing act. In the case of delegated acts, however, the Parliament and Council can introduce, in the delegation itself, a right to object to a draft act or even to revoke the delegation altogether. Both delegated and implementing acts are subject to judicial review by the Court of Justice of the EU which controls their conformity with the basic act.

Regulating targeted and behavioural advertising in digital services. How to ensure users’ informed consent.

01-07-2021

The study addresses the regulation of targeted and behavioural advertising in the context of digital services. Marketing methods and technologies deployed in behavioural and target advertising are presented. The EU law on consent to the processing of personal data is analysed, in connection with advertising practices. Ways of improving the quality of consent are discussed as well as ways of restricting its scope as a legal basis for the processing of personal data. This study is commissioned by ...

The study addresses the regulation of targeted and behavioural advertising in the context of digital services. Marketing methods and technologies deployed in behavioural and target advertising are presented. The EU law on consent to the processing of personal data is analysed, in connection with advertising practices. Ways of improving the quality of consent are discussed as well as ways of restricting its scope as a legal basis for the processing of personal data. This study is commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the JURI Committee.

Outcome of the meetings of EU leaders, 24-25 June 2021

30-06-2021

The regular European Council meeting of 24-25 June 2021 was noteworthy on several fronts. First, there was an extensive discussion on the rule of law and European values, a topic rarely discussed at the level of EU leaders. It took place in the context of a new Hungarian law on child protection, which includes provisions considered by many as discriminatory against LGBTQI+ people. Second, following a Franco-German proposal, there was an intense debate about the EU approach to relations with Russia ...

The regular European Council meeting of 24-25 June 2021 was noteworthy on several fronts. First, there was an extensive discussion on the rule of law and European values, a topic rarely discussed at the level of EU leaders. It took place in the context of a new Hungarian law on child protection, which includes provisions considered by many as discriminatory against LGBTQI+ people. Second, following a Franco-German proposal, there was an intense debate about the EU approach to relations with Russia, with apparent disagreement on whether it is currently worthwhile engaging in high-level dialogue with the country. Among the other topics considered were coordination efforts in response to the coronavirus pandemic and economic recovery after the crisis. On migration, EU leaders quickly reviewed the situation on migration routes, mainly reiterating previous commitments. In the field of external policy, alongside Russia, EU leaders also discussed EU-Turkey relations, the situations in Belarus, Libya, Ethiopia and the Sahel, and cybersecurity. EU leaders were also presented with the 2021-22 Leaders' Agenda. In the framework of the Euro Summit, EU leaders addressed the future of the euro area, inviting the Eurogroup to continue its work towards the completion of Banking Union and to move quickly to implement the capital markets action plan.

Studies with a ‘Covid 19 angle’

23-06-2021

When the pandemic loomed over us in spring 2020, we asked experts to analyze whether it was possible to introduce a Covid angle into their studies. In many cases, it seemed prima facie a bit far-fetched. However, it soon became apparent that even in our area of work there were interesting aspects to investigate. This publication groups together the most relevant parts of the studies published so far and in which a Covid 19 angle has been presented and discussed.

When the pandemic loomed over us in spring 2020, we asked experts to analyze whether it was possible to introduce a Covid angle into their studies. In many cases, it seemed prima facie a bit far-fetched. However, it soon became apparent that even in our area of work there were interesting aspects to investigate. This publication groups together the most relevant parts of the studies published so far and in which a Covid 19 angle has been presented and discussed.

Data Governance Act

17-06-2021

Data is a key pillar of the European digital economy. To unlock its potential, the European Commission aims to build a market for personal and non-personal data that fully respects European rules and values. While the volume of data is expected to increase dramatically in the coming years, data re-use is hampered by low trust in data-sharing, conflicting economic incentives and technological obstacles. As the first of a set of measures announced in the European strategy for data, the Commission put ...

Data is a key pillar of the European digital economy. To unlock its potential, the European Commission aims to build a market for personal and non-personal data that fully respects European rules and values. While the volume of data is expected to increase dramatically in the coming years, data re-use is hampered by low trust in data-sharing, conflicting economic incentives and technological obstacles. As the first of a set of measures announced in the European strategy for data, the Commission put forward its proposed data governance act on 25 November 2020. It aims at facilitating (largely) voluntary data sharing across the EU and between sectors by strengthening mechanisms that increase data availability and foster trust in intermediaries. It establishes three principle re-use mechanisms and a horizontal coordination and steering board. While there seems to be considerable support for data governance rules, the appropriate approach remains fundamentally disputed. Issues have been raised concerning, for instance, the ineffectiveness of labelling and registration regimes to foster trust and data re-use, the uncertain interplay with other legislative acts, the onerous rules on international data transfers and the vulnerability of certain mechanisms to commercial exploitation. The co-legislators, the European Parliament and Council, are in the process of assessing whether the Commission's proposal presents an adequate response to the challenges identified and are working towards defining their respective positions.

The Use of SLAPPs to Silence Journalists, NGOs and Civil Society

14-06-2021

This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the JURI Committee, analyses legal definitions of Strategic Lawsuits Against Public Participation (SLAPP) and assesses the compatibility of anti-SLAPP legislation with EU law. It is recommended that an anti-SLAPP Directive should be adopted, and that the Brussels Ia Regulation and Rome II Regulation should be recast to limit the incidence of SLAPPs.

This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the JURI Committee, analyses legal definitions of Strategic Lawsuits Against Public Participation (SLAPP) and assesses the compatibility of anti-SLAPP legislation with EU law. It is recommended that an anti-SLAPP Directive should be adopted, and that the Brussels Ia Regulation and Rome II Regulation should be recast to limit the incidence of SLAPPs.

Externý autor

Justin BORG-BARTHET Benedetta LOBINA Magdalena ZABROCKA.

Policy Departments’ Monthly Highlights - June 2021

04-06-2021

The Monthly Highlights publication provides an overview, at a glance, of the on-going work of the policy departments, including a selection of the latest and forthcoming publications, and a list of future events.

The Monthly Highlights publication provides an overview, at a glance, of the on-going work of the policy departments, including a selection of the latest and forthcoming publications, and a list of future events.

Europeanising the elections of the European Parliament - Outlook on the implementation of Council Decision 2018/994 and harmonisation of national rules on European elections

03-06-2021

This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the AFCO Committee, looks into the main obstacles to unifying and modernising European elections in different Member States. It gives an overview of the implementation of Council Decision 2018/994 and highlights, in particular, the importance of the standardisation and harmonisation of electoral ballots as a means to properly inform voters and strengthen the European ...

This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the AFCO Committee, looks into the main obstacles to unifying and modernising European elections in different Member States. It gives an overview of the implementation of Council Decision 2018/994 and highlights, in particular, the importance of the standardisation and harmonisation of electoral ballots as a means to properly inform voters and strengthen the European party system. As a more general remark, the study concludes that the European and national political parties should further strengthen their relationship, a vital element of the European political system that can increase the transnational nature of European elections.

Externý autor

Lorenzo CICCHI

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