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(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 275-286 | European Forum Insight of 15 July 2024 | (Table of Contents) I. Introduzione. - II. I fatti di causa, il contesto in cui il rinvio si colloca e le conclusioni dell’AG. - III. La sentenza della Corte: gli elementi di novità. - IV. Conclusioni: la valutazione positiva dell’approccio Getin Noble Bank e della sua successiva applicazione in L.G. | (Abstract) Until recently, it would have been tautological to say that the question of assessing independence did not arise when the preliminary ruling instrument was activated by a national judge: judges in the Member States were presumed to be independent. However, in the context of the rule of law backsliding, with the adoption of national laws aimed at undermining the guarantee of independence and making the judiciary subject not only to the law but also to the executive, the Court of Justice was obliged, in the Getin Noble Bank judgment, to limit this presumption in cases where there is a final judgment of a national court or of the ECHR which gives rise to a presumption of infringement of art. 19(1) TEU and art. 47 of the EU Charter. The L.G. judgment is a landmark decision, as it is the first time that the Court of Justice has overturned the “presumption of independence” on the grounds that the Polish Chamber for Extraordinary and Public Affairs cannot be considered a judicial body within the meaning of art. 267 TFEU, due to irregularities in the procedure for the appointment of its members. The aim of this Insight is twofold: firstly, to analyse the facts of the case, the context in which the reference is made, the arguments of the AG and the Court's decision, highlighting its new elements, especially in relation to ECHR jurisprudence; secondly, to examine the systemic impact of the judgment.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 179-208 | Article | (Table of Contents) I. Introduction: structuralising crisis. – II. “Crisification”: the incremental normalisation of exceptions. – III. The 2015 ”Refugee Crisis”: the suspension of governance (as a form of governance) – III.1. Relocation (and Dublin prorogation) – III.2. The Hotspot Fiasco – IV. The New Pact Reforms: generalising derogations – IV.1. Screening process: hotspots extended – IV.2. Border Procedure: hotspots normalised – V. Conclusion: reversing the rule, decreasing legality. | (Abstract) This Article problematises the role of crisis in the governance of asylum in Europe. It unveils its nature, predominance, and implications as a structural component of EU law and policy in this domain. The main point I intend to convey is that crisis, in and by itself, constitutes a system of governance producing very problematic effects. The association between (unwanted) migration and refugee flows with crisis in the European context has allowed for the exceptionalisation of rights and legal safeguards, with the pre-emption of unauthorised arrivals becoming the main concern. The danger, instability, and abnormality connected with crisis pervades law and policy, justifying mechanisms that contravene minimal rule of law standards, including due process guarantees and effective judicial protection. The incremental normalisation of exceptions has led to a position where the suspension of (rule of law-based) governance has become a form of governance. The prorogation of “normal” (rule of law-compliant) arrangements has given way to “exceptional” means of managing asylum, starting with the 2015 “refugee crisis” and the relocation-plus-hotspots scheme, which have now been streamlined as part of the New Pact on Migration and Asylum reforms. The resulting generalisation of derogations, the proliferation of legal fictions and rights negations that the envisaged amendments involve, is progressively normalising a situation of non-access to international protection in the EU, with deleterious consequences not only for asylum seekers, but for the integrity of the EU legal order and fundamental rights at large.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 69-86 | European Forum Insight of 02 May 2024 | (Table of Contents) I. Introduction. - II. Frontex under scrutiny: allegations, investigations, and the rule of law dilemma. - III. From Aleppo to the CJEU: WS et al. challenge Frontex in Court. - IV. The findings of the Court: no direct causal link. - V. Legal remedies and litigation avenues before the CJEU. - VI. In light of precedent: evolving perspectives on causation and joint liability. - VII. Consequences of WS for Frontex Accountability. - vii.1. Rapid reactions and resounding criticism. - vii.2. Unaddressed aspects: what the Court didn't say. - vii.3. Frontex Liability under the Competence Model. - VIII. Broader Consequences of WS for EU Law. - viii.1. The ecosystem of integrated administration. - viii.2. Is there space in EU law for joint liability?. - IX. Conclusion: shaping the EU joint liability landscape? | (Abstract) The Insight delves into the CJEU judgment of WS et al. v Frontex, the first action for damages against the European Border and Coast Guard Agency, Frontex, for human rights violations at the EU's external borders. Despite the prevalence of systemic violations and heightened attention to the agency's accountability, the Court, applying a stringent causality threshold, dismissed the claim, sidestepping crucial questions of positive obligations and responsibility attribution. The analysis critiques the judgment's shortcomings in causality assessment, emphasising its broader repercussions for EU law, particularly concerning liability frameworks and accountability dynamics within the new multi-actor reality of EU integrated administration. The Insight underscores the pressing need to reevaluate the existing competence model of determining liability in EU law to address its limitations and introduces the classification of these limitations as the binary of causality and the binary of jurisdiction. The CJEU’s reluctance to establish an effective framework for joint liability not only perpetuates contested accountability gaps but also risks establishing precarious areas devoid of accountability, thereby compromising the foundational principles of the Rule of Law in the European Union. The Insight concludes with a call to address these shortcomings, emphasising that rectification is not merely a matter of procedural refinement but a crucial step towards ensuring robust accountability mechanisms in EU law.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1403-1439 | Article | (Table of Contents) I. Introduction. – II. The concept of autonomy beyond a jurisdictional claim. – III. Autonomy as a source of coherence. – IV. Autonomy’s omnipresence in the case law of the Court. – IV.1. Autonomy operating visibly. – IV.2. Autonomy not explicitly mentioned but operating actively. – IV.3. Autonomy as a silent undercurrent. – V. Conclusion. | (Abstract) This Article aims to demonstrate that if there is a single vision of the jurisprudence of the Court of Justice of the European Union, it is the idea of autonomy. It portrays how autonomy, defined as an idea of a new legal order with its distinct ontological and axiological character, serves as an organizing principle ensuring the coherence of the case law. It first examines the concept of autonomy, and then investigates the presence of autonomy in the case law of the Court, arguing that it is either explicitly or implicitly always present as the undercurrent in the Court’s legal reasoning. It goes on to show the inextricable link between autonomy and the fundamental principles of the EU legal system, among them the rule of law, the protection of human rights and the effectiveness of the EU legal order. By drawing upon case law of the Court in varied areas of EU law, the Article establishes that autonomy, with its distinct character, is the most important guideline in understanding the Court’s jurisprudence, ensuring its predictability and coherence. Autonomy vitally ensures pluralism of the European Union by contributing to the integrity of the judicial process and enabling the Court to speak with one voice. Through Aristotle’s’ approach for the search of knowledge, the Article portrays that autonomy is not the end in itself, but is rather vital for realizing the goals and values of the European Union.

(Series Information) European Papers - A Journal on Law and Integration, 2024 8(3), 1143-1154 | European Forum Insight of 16 January 2024 | (Table of Contents) I. Introduction. - II. The advent of Putinism in Europe: illiberalism in Hungary and Poland. - III. Diverging approaches to the invasion of Ukraine. - IV. Challenges and opportunities: discovering the EU’s militant democracy potential?. - V. Conclusion. | (Abstract) In the past decade, Hungary and Poland have experienced a process of rule of law backsliding that threatens the state of democracy at home, and affects the decision making and legitimacy of the European Union as a whole. In the face of Russia’s war of aggression against Ukraine, the response of Hungary and Poland has been diametrically opposed, but equally damaging to the EU rule of law. The present Insight will analyse the response of these two member states to the Russian invasion, and it will argue that the war has highlighted major pitfalls in the EU’s policy toward backsliding governments, which continue to benefit from funds and veto powers, undermining the EU’s effectiveness in the process. However, a renewed fight for democracy in Europe could offer the perfect opportunity to be tough on autocrats inside and outside the Union.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 905-929 | Article | (Table of Contents) I. Introduction. – II. The EU Treaty as guidance for rule of law, democracy and fundamental rights. – II.1. Constitutionalisation of the EU values. – II.2. Guidance for the Member States. – II.3. Guidance for the EU. – II.4. Guidance for the external dimension of EU action. – III. External dimension of EU asylum and migration policy. – III.1. Democracy and institutional balance. – III.2. Fundamental rights. – III.3. Conditionality and Treaty concerns. – III.4. Principles of equality and sincere cooperation. – IV. Lessons learnt from the EU rule of law crisis? | (Abstract) This Article analyses to what extent the EU values and principles are guiding the external dimension of EU migration policies, especially the principle of democracy and fundamental rights. To illustrate this, it elaborates on the consequences of the informalization of this cooperation, and of the lack of safeguards for fundamental rights compliance. In the second part, the Article analyses the consequences of the increasing tendency to apply conditionality in the external migration cooperation, illustrated with three recent examples (Union Visa Code, post-Cotonou Agreement and trade tariff preferences). While referencing to political science research from the perspective of third countries, the Article concludes that the conditionality approach also risks undermining the principles of equality and sincere cooperation, which eventually impede the effectiveness of the external dimension on migration policies. By drawing lessons from the internal rule of law mechanisms, the EU could bring the external cooperation on migration more in line with its own values and principles enshrined in the Treaties. By doing so, it would offer the necessary safeguards for more coherence in the EU’s policies.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 243-271 | Article | (Table of Contents) I. Introduction. – II. Overturning Democracy in the Name of the Law: The Use of Creative Compliance by EU Autocratic Legalists. – III. Setting the Context: The Court’s Ruling in Transparency of Associations. – III.1. The 2017 Transparency Law. – III.2. The Court Is in Session! – IV. (Almost) New Actors, Same Old Story: State Audit Office v Civil Society. – V. Remarks Beyond the Hungarian Case: The Impact of Creative Compliance on the Effectiveness of EU Law. – VI. Conclusion. | (Abstract) In mid-April 2021, the Hungarian government announced the withdrawal of the 2017 Transparency Law. In its ruling in case C-78/18, in the context of a Commission-led infringement procedure, the Court declared such law in violation of civil society organisations (CSO) and foreign funders’ freedom of movement of capital as well as their freedom of association, right to respect for private and family life, and right to protection of personal data. Following intense months of dialogue with the European Commission, in mid-May 2021, the Hungarian Parliament repealed the law. However, at the same time, it adopted a new one on the Transparency of CSOs, which still presents the same shortcomings as the previous one and, consequently, continues to prevent CSOs from exercising their role of democracy watchdogs. This Article argues that the new law is the latest manifestation of Hungary's tendency towards autocratic legalism. By relying on a creative compliance-based approach, the Hungarian legislator proposed a law that is only in appearance in line with and based on the ruling of the Court. The Article argues that such a strategy, if winning, has the potential to spread its effects beyond the Hungarian border. It claims the Commission finds itself forced to choose between continuing the existing infringement procedure or accepting a merely formalistic implementation of the Court’s ruling, in a historical moment where the legitimacy of the Court of Justice to decide on values-related cases is more than ever questioned.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(3), 1247-1250 | Article | (Abstract) As European Union competences gradually increase, criminal law is one of the areas of EU law on which most attention is focused. At the heart of this field, criminal procedural law is made particularly interesting by its position at the intersection of two sectors that were traditionally excluded from the European Union's harmonisation competences: criminal law and procedural law. Harmonisation and the "cross-fertilisation" of criminal procedural law is happening first through the influence of technical and institutional adjustments necessary to improve communication and cooperation between judicial authorities or to accommodate new actors such as the European Public Prosecutor's Office (EPPO), second through the establishment of common (or, in any case, compatible) procedural standards as a necessary complement in order to ensure the efficiency of cooperation mechanisms. Although the agenda set in the Tampere8 and Stockholm9 programmes remains the main source of inspiration for EU interventions in criminal procedural law, the changing political landscape has led to greater importance being given to topics such as terrorism and the need to preserve the rule of law. This Special Section is the result of a conference held at the University of Nantes on 6 and 7 February 2020, titled Towards European Criminal Procedural Law. It includes most of the papers presented at the event, focusing on two main themes: the systemic requirements for a European law of criminal procedure and the different instruments and rules contributing to the emergence of this new field of European law.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(3), 1231-1246 | Article | (Table of Contents) I. Introduction: the Special Section and the MELA Project. - II. Mnemonic constitutionalism and a wider challenge of mnemocracy. - III. Mnemonic constitutionalism in Hungary. - IV. Mnemonic constitutionalism in Poland. - V. Conclusions. | (Abstract) This Article summarizes the conclusions for the Special Section on memory laws that was published by European Papers in two parts over 2020, and explores the nexus between the emerging phenomenon of mnemonic constitutionalism and democratic backsliding. It looks at their interactions through the lens of the legal governance of history and the historical policy implemented by the Central and East European (CEE) States, with Poland and Hungary as the prime subjects of consideration and analysis. The mushrooming of memory laws in CEE throughout the 2010s, which went hand-in-hand with democratic backsliding in the region, is well documented in the Special Section. Memory laws (lois mémorielles) initially emerged as a specific phenomenon within criminal law in Western Europe almost three decades ago. However, the recent wave of memory laws in CEE transcends criminal legislation and has acquired constitutional significance, which this Article analyses under the heading of mnemonic constitutionalism. After setting out an analytical framework of mnemonic constitutionalism, the Article focuses on the two specific CEE examples of Hungary and Poland. In the last decade, both countries have promulgated either constitutional (in case of Hungary) or quasi-constitutional (in case of Poland) provisions that indicate a strong turn towards mnemonic constitutionalism. The Article concludes that Fidesz (in Hungary) and PiS (in Poland) regimes perceive mnemonic constitutionalism not only as an ideological basis for the governance of historical memory but also as an ontological foundation to justify "illiberal democracies".

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 929-948 | Article | (Table of Contents) I. Introduction. - II. Differentiation: From pragmatic problem-solving to mode of governance. - II.1. Differentiated governance: The normalization of disintegration. - II.2. Getting to "a community of values and of laws". - III. The rule of law crisis: From dialogues to conditionality. - III.1 Muddling through political dialogue: From art. 7(1) TEU to annual reports. - III.2 From dialogues to budgetary conditionality: On veto threats and flexible legal frames. - IV. Differentiated governance and the sovereigntist challenge to the primacy of EU law. - V. Halting disintegration: The CJEU on the Union's legal foundations. - IV. Conclusion. | (Abstract) The EU's decade-long rule of law crisis has normalized into an everyday constitutional and political experience. The lens of differentiated governance calls for a close inquiry into the legal and political dynamics - processes, incentive structures and inter-institutional conflicts - that are consequential for the future of the Union as a "community of values and of laws". Tracing the debate on financial sanctions (budgetary conditionality) in the broader context of the rule of law crisis, this Article argues that the future of Europe hinges on attributing practical, political and legal significance to the found-ing values set forth in art. 2 TEU. Without respect for these founding values differentiated governance as a set of political or legal practices and as an academic-intellectual project has no purpose or endpoint.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 651-670 | Article | (Table of Contents) I. Introduction. - II. Autocratic legalism: a threat to the ECJ's authority. - II.1. Autocratic counter-interpretations of Union law. - II.2. An autocratic contestation of the ECJ's authority. - III. A constitutional response to a crisis of values. - III.1. A dynamic response to the formalism of autocratic legal-ism. - III.2. A flexible response to a crisis of values. - IV. Alternative responses to autocratic legalism. - IV.1. Decentralised solutions to a crisis of values. - IV.2. Administrative reasoning as a response to autocratic legalism. - V. Conclusion. | (Abstract) In recent years, the Court of Justice has become one of the most pronounced voices of opposition to illiberal projects in Europe. Its tenacity, however, has turned the Court into the target of national lawmakers who seek to undermine the authority of the Court and Union law more generally. The present investigation suggests that these attacks share recurrent features and may be qualified as "autocratic legalism". It will be argued that, above all, attacks of this nature are aimed at calling into question the authority of the European Court of Justice among national audiences. For European judges, consequently, this raises the question how to appropriately respond to such efforts. Although there may be no ideal solution in this regard, the present investigation discerns three responses in the jurisprudence of the Court and assesses these approaches in the light of the strategic objectives pursued by autocratic legalists.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 721-737 | Article | (Table of Contents) I. Introduction - II. The road to rule of law conditionality - III. How the rule of law conditionality regulation became an instrument of budget conditionality - III.1. The conditionality mechanism in Regulation 2020/2092 - III.2. Article 322(1) TFEU as the correct legal basis - III.3. Sufficiently direct link - III.4. Alleged infringement of art. 7 TEU, circumvention of art. 258 TFEU, and destabilising the institutional balance - IV. Other traces of rule of law conditionality - IV.1. References to Regulation 2020/2092 - IV.2. Applying rule of law conditionality under the Recovery and Resilience Facility - V. Conclusions. | (Abstract) During the last decade, a deterioration of the respect for the EU's common values occurred. On the EU level, various procedures and instruments have been created and applied to cope with the crisis. The latest instrument, Regulation 2020/2092, was designed to establish a rule of law conditionality mechanism but has turned out as a budget conditionality mechanism. This Article examines the evolution and nature of the conditionality mechanism in said Regulation and shows why rule of law conditionality can currently rather be located in the financial instruments breathing life into the EU Green Deal than in the so-called rule of law conditionality Regulation.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 671-695 | Article | (Table of Contents) I. Situating the topic. - II. Dealing with rule transgressions. - II.1. Instrumentalist and normative approaches. - II.2. The potential of peer reviews. - III. What is wrong with the current approaches? - III.1. The Article 7 procedure and the rule of law framework. - III.2. The budget conditionality mechanism. - III.3. The Commission Rule of Law Report. - III.4. The Council's annual Rule of Law Dialogue. - IV. The EU Rule of Law Peer Review. - IV.1. History of the initiative. - IV.2. Which institutional design for the initiative? - IV.3. Can the EU peer review address the problems of the approaches? - V. Ways ahead? | (Abstract) The possible remedies that the EU can use against backsliding on the rule of law are limited: While art. 7 TEU has been widely conceived as ineffective, the recently introduced budget conditionality may become bogged down in court cases. Softer instruments like the Commission Rule of Law Report provide observations on rule of law developments, but are in themselves unable to address transgressions. Against this background, the Council has recently introduced a peer review mechanism that may exert peer and public pressure on transgressors. However, the agreed procedures show important deficits such as lacking transparency to the outside world, limited time devoted to the re-view, and the absence of clear country-specific recommendations that could become the focus of peer and public pressure. The new procedure thus needs reform to achieve results. A comparison with peer reviews among states in other international organizations show the potential that peer reviewing holds.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 641-650 | Article | (Table of Contents) I. Protecting EU values: The state of affairs. - II. Protecting EU values: The debate. - III. The Special Section. - IV. The contributions. | (Abstract) This Article introduces the Special Section "Usual and Unusual Suspects: New Actors, Roles and Mechanisms to Protect EU Values" which collects four Articles originally presented at the NOVA workshop "EU Democracy and the Rule of Law" in June 2021. The four Articles all reflect of how the EU institutions may protect and promote the common values in the Member States, in particular in the context of the ongoing constitutional crises in Hungary and Poland, but looking also at the medium and long-term efforts the EU is called to put in place to prevent new crises and promote a stronger rule of law culture in the Member States and civil society. This Article serves to place the considerations offered in those four contributions against two backgrounds: the current and evolving state of affairs, in which democratic and rule of law questions seem to emerge more and more strongly; and the institutional and academic debate that has taken place in the last decade. We argue that the Articles of this Special Section bring an original and innovative perspective to the debate, showing that the EU response must be based on a combination of political, judicial and financial tools, and that the EU needs to both try to respond to ongoing crisis and construct a stronger toolkit for the future.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 507-525 | European Forum Insight of 25 July 2022 | (Table of Contents) I. Introduction. - II. The background. - III. The Court of Justice's judgments. - III.1. Legal basis. - III.2. The circumvention of Article 7 TEU. - III.3. Legal certainty. - IV. Bold but careful: On the Court's approach in the judgments. - IV.1. "The European Union must be able to defend those values...". - IV.2. "...within the limits of its powers as laid down by the Treaties". - V. Conclusion and the next steps. | (Abstract) In two parallel decisions delivered in February 2022, the Court of Justice has rejected the actions for annulment brought by Hungary and Poland against the new "Budgetary Conditionality Regulation". The Court has confirmed that the institutions used the correct legal basis (art. 322(1)(a) TFEU), that the Regulation does not circumvent the procedures of art. 7 TEU, and that it adequately guarantees legal certainty. The judgments of the Court use bold and explicit constitutional language, stating for example that the rule of law and art. 2 TEU values form the very identity of the Union. At the same time, the Court is much more careful when it analyses the more concrete questions on the legality of the Regulation. This shows the continuous mismatch between the constitutional relevance of the values of art. 2 TEU in the EU legal and political structure, and the concrete powers the EU and its institutions have to protect those values. Still very often, the institutions are forced to rely on indirect mechanisms to defend the values, as is the case with the Regulation under discussion, which is to be considered a budgetary tool rather than an explicit rule of law mechanism.

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(2), 1117-1121 | Editorial | (Abstract) On 6 October 2021, the Polish Constitutional Tribunal (CT) delivered its much-awaited ruling in case K 3/21. The Tribunal declared the unconstitutionality of arts 1, 2 and 19 TEU inasmuch as they require that national judges discard the Polish legislation on the organisation of the judiciary; in particular, those provisions which, in the view of the CJEU, place the Polish magistrature under strict control of the political power. However, and paradoxically, this ruling does not necessarily prelude to Poland’s decision of to withdraw from the European Union. By combining the self-referential legitimacy endorsed by the CT with the unfortunate withdrawal clause of art. 50 TEU, Poland could well retain its claim to be sovereign within the Union without having to comply with its fundamental principles and values. But how could MS react against a violation of the Treaty values apart from by fighting the symbolic battle for the art. 7 TEU procedure? To answer this question, a short reference should be made to the relation between the Union’s values and the obligations which reflect them. While art. 7 TEU provides for a special procedure to assess a systemic breach of the values of the Union, by no means does it prevent the functioning of ordinary remedies against a failure to comply with these specific obligations. Some of these rules are exclusively part of the body of European law. Others are also established by international law. The correspondence of the content of an obligation of international law with the values protected by art. 2 TEU does not, per se, prevent MS from invoking that obligation in their reciprocal relations. An action brought by the MS against Poland in their capacity of sovereign States would produce a number of beneficial effects. It would remedy the weakness of the institution-al procedures designed to ensure the implementation of the values of the Union. It would contribute to saving the soul of the Union and the fundamental rights of its citizens. It would make virtuous use of sovereignty: as a historical nemesis for the very ideology of sovereignty.

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(1), 599-619 | European Forum Insight of 9 July 2021 | (Table of Contents) I. Introduzione. - II. La politica dei visti e la sua versatilità: da strumento di controllo remoto e preventivo a preziosa pedina di scambio. - III. La disciplina dei visti: inquadramento, ratio e caratteristiche essenziali. - IV. La giurisprudenza sui visti: quadro complessivo. - IV.1. Obbligo e carattere della motivazione. - IV.2. Diritto a un ricorso (giurisdizionale) effettivo. - IV.3. Diritto a un ricorso effettivo avverso il diniego di visto emesso nel contesto di una collaborazione tra più Stati. - V. Conclusioni. | (Abstract) Third country nationals are in a "weak" position when it comes to issuing a uniform Schengen short-term visa. The EU acquis on visas, and most notably the Visa Code, is still a domain strongly marked by State sovereignty, wide margin of appreciation and scarce transparency in the decision-making process. The EU Court of Justice has tried to rebalance the situation of third country nationals who apply for a Schengen visa, by ensuring that essential guarantees are in place when such a visa is denied. Even if granting a visa entails a clear manifestation of sovereignty, the decision to refuse a visa application cannot evade basic principles of the Rule of law, such as the duty to state reasons and the right to an effective remedy. Following a contextualization of the EU visa policy, with an overview of the evolution and the main features of the visa regime, this Insight the case-law of the Court of Justice relating to the interpretation of the Visa Code, in light of the EU Charter of Fundamental Rights, and namely, its art. 47.

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(1), 101-110 | European Forum Insight of 22 April 2021 | (Table of Contents) I. Introduction. - II. The adoption of the Conditionality Regulation. - III. Preconditions of the Regulation. - IV. Procedural steps of the Regulation. - V. Substantive definitions of the Regulation. - VI. Sanctions under the Regulation. - VII. The Rule of Law in the Member States v the Rule of Law of the Institutions? - VIII. Prospects of the Conditionality Regulation. | (Abstract) In December 2020, the European Parliament and the Council adopted a new piece of legislation aimed at protecting the rule of law in the Member States of the Union - the so-called rule of law Conditionality Regulation. This contribution tracks the legislative process in the run up to the new Regulation, analyses the sub-stance and the procedure, and provides an outlook onto the future application and its obstacles. Finally, and by placing a particular emphasise on the Conclusions of the European Council in December 2020, this contribution inquires whether the European Council exceeded its remit by giving the European Commission precise instructions regarding the application of the new Regulation.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(3), 1371-1383 | European Forum Insight of 27 January 2021 | (Table of Contents) I. Introduzione. - II. Il caso e la pronuncia sul merito del ricorso. - III. La questione della giurisdizione: il ragionamento della Corte. - III.1. Segue: l'approccio della Corte ed il ruolo dello Stato di diritto. - III.2. Segue: la scelta interpretativa. - IV. Considerazioni conclusive e prospettiche. | (Abstract) In the Bank Refah Kargaran judgment (case C-134/19 P, judgment of 6 October 2020) the Court of Justice adds the action for damages against CFSP decisions to the list of legal remedies available to individuals targeted by EU restrictive measures. After a brief overview of the case, this Insight examines the reasoning of the Court related to the jurisdiction issue, in the context of previous case law (H v. Council; Rosneft), in order to point out the grounds on which the Court expands its competence and interprets Art. 275, para. 2, TFEU. Namely, the broad interpretation of the Court's jurisdiction in the field relies on the Rule of law and the effective judicial protection principles, rather than on a literal reading of the Treaties. According to the Court, these principles underpin the whole EU legal order, including CFSP, and that's why the Segi doctrine should be outdated. Against this background, the Insight tries to envisage of the next evolution of judicial control in CFSP, especially in the context of the resumed negotiations for the EU accession to the ECHR.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(2), 851-869 | Article | (Table of Contents) I. Introduction. - II. Theoretical framework: why national judges participate in judicial dialogue with the CJEU. - III. Judiciary reforms in Poland 2017-2018: a brief overview. - IV. Preliminary questions as reaction of Polish courts to the judiciary reforms. - V. Defending the rule of law or reality based self-defense? - VI. Conclusions. | (Abstract) In the course of the last two years, the Polish courts frequently resorted to the procedure of preliminary ruling requesting the Court of Justice to qualify the Polish judiciary reforms introduced by the PIS-regime in the light of the principle of judicial independence, the rule of law and effective judicial protection. Against this backdrop, one could suggest that the issue regarding the use of the preliminary ruling mechanism by national courts and the reasons that incentivise the judges to engage in dialogue with the Court of Justice have gained a novel dimension. It is the aim of this Article to discuss the relevant preliminary questions referred by the Polish courts and place them in the context of various theoretical streams that aim at explaining the reasons and motivation behind national courts' participation in judicial dialogue with the Luxembourg Court.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(2), 1045-1059 | European Forum Insight of 15 October 2020 | (Table of Contents) I. Introduction. - II. Schrems I and the background to Schrems II. - III. The judgment of the Court of Justice in Schrems II. - IV. Clarity, compromise and coming challenges. - V. Conclusion. | (Abstract) The decision in Schrems II delivered by the Court of Justice in July 2020 (judgment of 16 July 2020, case C-311/18, Data Protection Commissioner v. Facebook Ireland Ltd and Maximillian Schrems) was, in many ways, foreseeable given the scheme and recent history of the Union's privacy and data protection jurisprudence. Despite this, the decision has significant and far-reaching implications both for the protective standards afforded to personal data which are the subject of international data transfers and the role and responsibilities of data controllers where such transfers take place. More fundamentally, the decision also raises a series of further questions about the scope and reach of European data protection standards, the interpretation of the general Data Protection Regulation (GDPR) and the prospects of the United Kingdom in seeking an adequacy decision as a third country following Brexit.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(1), 161-174 | Article | (Table of Contents) I. Introduction. - II. Historical constitution. - III. Constitutional identity. - IV. Christian culture. - V. History and interpretation. - V.1. Achievements of the historical constitution. - V.2. Constitutional identity. - V.3. Christian culture. - VI. Conclusion: partisan tendencies and neutralising efforts. | (Abstract) This Article focuses on some of the rules of interpretation contained in the Fundamental Law of Hungary (Art. R), which, while not belonging to the class of "memory laws" in the strict sense, make use of certain historically charged concepts. These concepts, examined in the first part of the Article in turn, are 1) the "achievements of the historical constitution", 2) the "constitutional identity", and 3) the "Christian culture" of Hungary. It is argued that in terms of their substance, these are open to competing historical interpretations. The second part of the Article deals with the pragmatic aspect of these provisions, that is, 4) their functions in constitutional interpretation. Based on that, the conclusion summarises 5) the role and motivation of historicising concepts both from the perspective of the constitution-maker and that of constitutional lawyers.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(1), 175-189 | Article | (Table of Contents) I. The disconnection between the loci of authority and those of democratic control. - II. The competence problem in the Union. - III. Reconciling Europe with its citizens through democracy and rule of law. - IV. Scope and contents. | (Abstract) One of the main problems the Union has to cope with is the difficulty in properly articulating the relationship between authority and democratic legitimacy, in particular the disconnection between the allocation of powers to the EU and to its Member States and the forms of democratic control over their exercise in the Union. Indeed, it seems that the more EU authority expands, the more the democratic legitimacy of the Union is in trouble. In the EU the source of authority is dislocated out of the traditional forms of democratic accountability, which have been shaped domestically by centuries of constitutional history. In addition to this, the "punctiform" nature of many EU decision-making processes, starting at one level of government - regional, national or supranational - and ending up being concluded at a different level, favours this feeling of disorientation amongst European citizens. The attitude of several national governments, which tend to blame the EU for their own failures, exacerbates this problem and leads to the perception of EU institutions as not only distant, but also detached from the needs of ordinary citizens.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(1), 255-277 | Article | (Table of Contents) I. Introduction. - II. Fundamental values and the Treaties of Lisbon. - II.1. Which values, and which status or role? - II.2. The EU's limited competences to act upon, and enforce, its values. - II.3. How common and deep are the Union's values? - III. Compliance with Art. 2 TEU at the stage of accession. - IV. Enforcement of Art. 2 TEU during membership of the Union. - IV.1. The use and non-use of Art. 7 TEU. - IV.2. The Commission's Rule of Law Framework. - IV.3. The Court of Justice's increasing role. - V. Concluding remarks. | (Abstract) The Article offers a critical assessment of Art. 2 TEU, from its genesis to its implementation so far. It examines the enforcement of the Union's foundational values both in the accession stage and during EU membership. Two main weaknesses related to Art. 2 TEU are highlighted in connection with the theme of this Special Section. First, there is an asymmetry between the nature of Art. 2 TEU's values, which are foundational for the whole EU project and architecture, and the limited competences conferred upon the Union to legislate with regard to these values and to enforce their respect. Second, the EU and the Commission in particular have followed a legalistic-technocratic assessment of compliance with rule of law principles rather than endorsing a broader view of Art. 2 that combines all of its values. Under such broader view, other values like democracy, justice and solidarity could be given the same rank as the rule of law, at the time of the accession process and once membership is acquired. It is submitted that this would help the Union to connect more strongly with the citizens of the acceding countries and to reconnect with those of the Member States.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(1), 237-253 | Article | (Table of Contents) I. The paradox of the European rule of law. - II. The rule of law in the modern State and in the European legal order. - III. The genetic heritage of the rule of law in the European legal order. - IV. Technocratic legitimacy and the progressive construction of a living constitution. - V. Administrative law and constitutional law in the European legal order. - VI. Reconnecting citizens to the European institutions: the role of law in Europe. - VII. The rule of law in action from the administrative law standpoint. | (Abstract) This Article aims to outline three problematic aspects arising from the peculiar, composite nature of the European legal system considering its many asymmetries. The first element is of a cultural-historical nature, and the goal is to highlight that, in terms of scientific and methodological ascendancy, the European order came into being with a different genetic heritage from that of modern States. The second aspect concerns the relationship between economics and law and the growing process of "juridification" of economic rules. The aim is to show how this process may have altered the traditional concept of the rule of law as it has taken shape in democracies. The third part explores the idea that this may have affected the diversified and asymmetric development of administrative and constitutional law in the European legal order. It then looks at how this asymmetry may have contributed to the aforementioned disconnect between citizens and institutions. The Article concludes by arguing that the attempt to reconnect European citizens and Institutions needs to start from a non-infrastructural and non-instrumental concept of law and from a consistent balance in the relationship between administrative and constitutional law.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(1), 303-306 | Insight | (Table of Contents) I. No European sovereignty... - II. ... But a "Europeanised" (concept of) sovereignty. | (Abstract) "European sovereignty" seems at first sight to be a misnomer. The EU is not sovereign in the classical sense of the word. By contrast, it can be argued that the EU transforms national sovereignty, both in its internal and external dimension. This "Europeanisation" of Member State's sovereignty could be seen as an attempt to restore and expand the "rule of law" not only by harnessing market forces but by using them in order to promote "home-grown" legal standards. In that sense, "European sovereignty" may be a legal contradictio in terminis but it may also be the only future of sovereignty tout court.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(1), 95-106 | Article | (Table of Contents) I. Introductory remarks. - II. The governance of historical memory in Europe. - III. The rule of law. - VI. Memory governance and the rule of law. - V. Concluding remarks. | (Abstract) The legal governance of historical memory in Eastern and Central Europe has grown exponentially over the past two decades. This development runs parallel to the region's reckoning with its communist legacies at the national level, where national identity has been harnessed and sometimes instrumentalised to adopt revisionist interpretations of the past. Mnemonic governance in these States has also been heavily influenced by their proximity or membership to the European Union, which upholds the rule of law as a fundamental value. At the same time, the region's Soviet legacies have been projected by a newfound Russian assertiveness in the area, which has resulted in a phenomena known as memory wars. Those developments are accompanying the ongoing process of democratic transition in Eastern and Central European States. This introductory Article sets out the premises of the Special Section on historical memory in post-Communist Europe and the rule of law, by showing that these democratization processes are far from linear. It does so by first outlining the trajectory of memory governance in Western Europe, which has focused on the Holocaust as a foundational European narrative. It then outlines the tensions emerging between this account and the historical specificities of post-communist States which experienced different forms of totalitarianism. Finally, the introduction shows that the embrace of the rule of law in post-communist Europe in the form of the European Union project, transitional justice or democratic values has also been at odds with the region's mnemonic governance.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(1), 663-670 | European Forum Insight of 3 June 2020 | (Table of Contents) I. Advantages of soft law for crisis regulation. - II. Rule of law credentials. - III. Legal effects of COVID-19 soft law. - IV. Conclusion: the need to clarify soft law. | (Abstract) After the various recent crisis - financial, migration, Brexit, to name but a few - the mantra "the end of the EU is nigh" has somewhat become a common place. It is hardly surprising to see this repeated over and over again, while Europe got caught in the COVID-19 whirlwind - or the "eye of the storm" if you prefer more established quotes. Albeit initially a tad bit slow in mobilizing, the EU is producing measures at a competing speed. This short contribution aims at reflecting on the instruments used to achieve all these goals. And, in this regard, the conclusion is foretold, while Europe does indeed what it does best: governing through soft law. A look at selected COVID-19 emergency instruments shows that the salience of both the advantages and the drawbacks of soft law are brought to the fore by this pandemic. The current crisis should be turned into an opportunity for reform.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(1), 331-346 | European Forum Insight of 25 April 2020 | (Table of Contents) I. Introduction. - II. The broad interpretation of Art. 19 TEU. - II.1. An ideal holistic approach to judicial independence. - II.2. The broadening of the material scope of Art. 19 TEU. - III. The paradox of the limited effects of the case law on Art. 19 TEU. - III.1. An unlikely limit: denying Art. 19 TEU direct effect. - III.2. A controversial existent limit: Art. 19 TEU and case law in Minister for Justice and Equality (Défaillances du système judiciaire). - IV. Final remarks. | (Abstract) In 2019, the Court of Justice has ruled in an innovative case on the protection of the independence of Member States' judiciaries. In two judgments, delivered in June and November, the Court declared that several statutes amending the organisation of the Polish judicial system infringed the second subparagraph of Art. 19, para. 1, TEU because they did not respect judicial independence. This case law relies on two key legal arguments: an "ideal" holistic approach to judicial independence and the broadening of the material scope of Art. 19 TEU (see Court of Justice: judgment of 24 June 2019, case C-619/18, Commission v. Poland (Independence of the Supreme Court) [GC]; judgment of 5 November 2019, case C-192/18, Commission v. Poland (Independence of ordinary courts) [GC]). Both arguments may invite us to think that this case law is boundless. This Insight considers if some limits should nevertheless apply.

(Series Information) European Papers - A Journal on Law and Integration, 2019 4(3), 695-722 | Article | (Table of Contents) I. Introduction - II. Defending the budget or the rule of law? - III. Why using spending conditionality? - IV. Scheme of the proposal. - V. Addressing the legal shortcomings of the proposal. - V.1. Is the proposal compatible with the principle of conferral? - V.2 The Commission's excessive discretionary power: a challenge to the rule of law? - VI. No more "Money for nothing": is there room for solidarity? - VII. Conclusions. | (Abstract) The Article critically engages with the recent Commission's proposal for a regulation on the protection of the Union's budget in case of generalised deficiencies as regards the rule of law in the Member States (Rule of Law Conditionality). It first considers the reasons underlying the proposal and the Commission's choice to resort to spending conditionality in the context of the rule of law crisis. In the second part, it addresses two main rule of law issues arising from the draft regulation itself: on one hand, it attempts to define the boundaries of the Union's competence to establish a Rule of Law Conditionality in the management of EU funds; on the other, it highlights the broad discretionary power the Commission reserved for itself and the relative shortcomings in terms of legal certainty, transparency and non-arbitrariness. Finally, the Article focuses on the complex relation between conditionality and solidarity in the EU internal dimension and analyses the proposal from this particular perspective.

(Series Information) European Papers - A Journal on Law and Integration, 2019 4(3), 907-912 | European Forum Insight of 12 January 2020 | (Table of Contents) I. Background. - II. The national context. - III. The reference in preliminary ruling. - IV. The aftermath of the Court of Justice's judgment. - V. The response of the national court and its implications. - VI. The response of the government. - VII. Outlook for the future. | (Abstract) The Insight analyses the recent judgment of the Court of Justice in joined cases C-585/18, C-624/18 and C-625/1, A.K. v. Krajowa Rada Sądownictwa and CP, DO v. Sąd Najwyższy, hereafter A.K. and Others. The ruling has had considerable impact on the crisis of the rule of law in Poland and the note evaluates its immediate effects.

(Series Information) European Papers - A Journal on Law and Integration, 2019 4(3), 823-837 | European Forum Insight of 25 November 2019 | (Table of Contents) I. Introduction. - II. Historique de la procédure. - III. Portée du recours. - IV. Examen au fond. - IV.1. La retraite anticipée. - IV.2. Prolongation du mandat. | (Abstract) The Court of Justice recently delivered its June 2019 judgment in Commission v. Poland (24 June 2019, case C-619/18, Independence of the Supreme Court [GC]). The Court upheld the principle of effective judicial protection embodied in Art. 19 TEU, building on its previous February 2018 judgment in Associação Sindical dos Juízes Portugueses (ASJP) (judgment of 27 February 2018, case C-64/16 [GC]). In doing so, the Court of Justice consolidated the case law on Art. 19 TEU by defining the scope of that provision and stressing its fundamental role in preserving judicial independence which, in turn, is central to the rule of law enshrined among other values in Art. 2 TEU. This Insight revisits the Independence of the Supreme Court judgment and concludes by highlighting that the nomination process of Court of Justice judges warrants some transparency in order to advance the rule of law which the Court itself seeks to uphold.

(Series Information) European Papers - A Journal on Law and Integration, 2019 4(1), 19-70 | Article | (Table of Contents) I. Introduction. - II. Who trumps who? - II.1. Is EU law autonomous? - II.2. EU law and Member States' BITs. - II.3. The peculiar case of the ECT. - III. Achmea or how international investment tribunals do not understand EU law. - III.1. Why investment tribunals do not have jurisdic-tion in all intra-EU disputes? - III.2. The Advocate General's Opinion is not legally binding and preliminary ruling judgment only answers the questions asked. - III.3. Why is commercial arbitration different? - IV. Who fragments what? - IV.1. The peculiar case of the ECT again: fragmentation or integration? - IV.2. Why is intra-EU context different to extra-EU? - V. Why autonomy matters? - V.1. It matters for EU relationship with international courts. - V.2. It matters for EU integration. - V.3. It matters for practical reasons of enforcement. - VI. Conclusion. | (Abstract) In its landmark judgment in the case of Achmea (judgment of 6 March 2018, case C-284/16 [GC]), the Court of Justice adjudicated that Investor-State Dispute Settlement (ISDS) adversely affects the autonomy of EU law. Accordingly, ISDS clauses in international investment agreements that contravene Arts 267 and 344 TFEU and the principles of mutual trust and sincere cooperation enshrined in Arts. 19, para. 1, and 4, para. 3, TEU are inapplicable under EU law. However, the reasoning of the Court of Justice in Achmea did not convince international investment tribunals that they lack jurisdiction in intra-EU investment disputes. This opposition calls for clarification of the different principles underpinning the EU legal order and international investment law. This Article presents a debate between these two legal orders, which unfolds around three separate, albeit related issues: the status and applicability of the EU and the Member States' international agreements within the EU legal order; the manner in which the Achmea judgment must be interpreted and its application in the international investment law context; and the meaning and relevance of the concept of the autonomy of EU law as the key issue in defining the relationship between EU law and international investment law.

(Series Information) European Papers - A Journal on Law and Integration, 2019 4(1), 271-283 | European Forum Insight of 12 February 2019 | (Table of Contents) I. Introduzione. - II. La riforma della Corte suprema della Polonia: le immediate reazioni. - III. L'evoluzione della procedura ex art. 7, par. 1, TUE e l'apertura della pronuncia di infrazione contro la Polonia. - IV. Le pronunce cautelari della Corte di giustizia. - V. La voce della Corte e i richiami alla Polonia. - VI. Considerazioni conclusive. | (Abstract) The mechanism set up by Art. 7, para. 1, TEU has been activated against Poland on 20 December 2017. Nevertheless, Poland did not comply with the recommendations given by the European Commission, focused on the lack of judicial independence due to a recent reform that provoked the forced anticipated retirement of 27 judges sitting in the Polish Supreme Court. Consequently, the Commission launched an infringement procedure against Poland and referred this Member State to the Court of Justice, in order to protect the independence of the Polish Supreme Court (case C-619/18). With two orders given in this case, the Court of Justice highlights, as already underlined in ASJP (case C-64/16) and LM (case C-216/18 PPU), the close link between the rule of law - one of the fundamental values listed by Art. 2 TEU - and Art. 19 TEU. Moreover, the analysis aims to underline the possibility to use the infringement procedure (Art. 258 TFEU) as a powerful (and efficient) tool to protect fundamental values in the ongoing rule of law crisis.

(Series Information) European Papers - A Journal on Law and Integration, 2018 3(2), 985-992 | European Forum Insight of 20 July 2018 | (Table of Contents) I. Introduzione. - II. La sentenza Associação Sindical dos Juízes Portugueses: i fatti all'origine del rinvio. - III. Il contributo della decisione alla definizione del concetto di Stato di diritto e dei relativi obblighi in capo agli Stati membri. - IV. Osservazioni conclusive: verso un controllo giurisdizionale del rispetto dello Stato di diritto da parte degli Stati membri. | (Abstract) The judgment in the case Associação Sindical dos Juízes Portugueses (Court of Justice, judgment of 27 February 2018, case C-64/16) offers a significant contribution to the sensitive issue of the role of the Court of Justice in monitoring the respect of the rule of law by the EU Member States. The Insight focuses on the implications deriving from a paragraph of the judgment in which the Court identifies a link between the rule of law, as a common value pursuant to Art. 2 TEU, and Art. 19 TEU. The analysis aims to highlight the contribution given by the judgment in defining the concept of the rule of law within the EU legal order. Moreover, the analysis focuses on the nature and content of the obligation incumbent upon Member States to respect the rule of law, as a common value recognized in the Treaties. The last part of the Insight proposes a reflection about the role that the Court of Justice seems to define for itself in order to ensure compliance with the rule of law by the Member States, seeking to highlight potentials and criticalities.

(Series Information) European Papers - A Journal on Law and Integration, 2018 3(2), 857-873 | European Forum Insight of 25 July 2018 | (Table of Contents) I. Introduction. - II. Political dimension of the principle of mutual trust. - III. Context of the referral. - IV. The CJEU's and national courts' lack of competence to assess Member States' compliance with the rule of law. - V. The CJEU's and national courts' competence to review Member States' compliance with fundamental rights. | (Abstract) This Insight comments on the recent referral for a preliminary ruling by the Irish High Court Minister of Justice and Equality v. Celmer (judgment of 12 March 2018, no. 2017 EXT 291) in the case concerning a Polish citizen sought by the Republic of Poland pursuant to the European Arrest Warrant. The key problem relates to the question whether a violation of the principle of rule of law, as established by a Member State's court, may constitute a sufficient justification for the non-execution of the Arrest Warrant. As the judgment of the CJEU is pending, the authors present their opinion on the issue at stake. Analysing it from the perspective of the principle of mutual trust, which constitutes the foundation of the EU's Area of Freedom, Security and Justice, they argue that the conditions for the suspension of the Arrest Warrant should be interpreted in a restrictive manner and any attempt of assessing a Member State's compliance with the rule of law by the Court of Justice or other Member States' courts should be considered an ultra vires act.

(Series Information) European Papers - A Journal on Law and Integration, 2018 3(1), 395-407 | European Forum Insight of 30 May 2018 | (Table of Contents) I. Athena's dilemma. - II. The case of Associação Sindical dos Juízes Portugueses. - II.1. The facts and the preliminary reference. - II.2. The opinion of Advocate General. - II.3. The judgment of the Court. - III. Analysis: The relationship between Art. 19, para. 1, TEU and Art. 47 of the Charter. - III.1. The enforceable rule of law clause in the EU Treaties. - III.2. The objective principle of judicial independence and the subjective right to an independent judge. - IV. Enforcing the rule of law towards EU Member States. | (Abstract) This Insight comments on the recent judgment of the Court of Justice in Associação Sindical dos Juízes Portugueses (judgment of 27 February 2018, case C-64/16). The Court took advantage of this case to emphasise the potential of EU law to consolidate and defend the rule of law structures in the Member States. The Court discovered a justiciable rule of law clause in Art. 19, para. 1, TEU, which enshrines the principle of effective judicial protection before national courts. This provision makes the enforcement of rule of law standards vis-à-vis the Member States more straightforward as compared to the enforcement of Art. 47 of the Charter of Fundamental Rights of the EU. In the future, Art. 19, para. 1, TEU could be enforced by means of infringement proceedings under Art. 268 TFEU to counteract the undermining of judicial independence at the national level.

(Series Information) European Papers - A Journal on Law and Integration, 2017 2(2), 671-697 | Article | (Table of Contents) I. Introduction. - II. The legal framework. - III. Limiting the Court's jurisdiction. - IV. The Exception: judicial review of CFSP acts. - V. Grounds for and intensity of review. - VI. Conclusion. | (Abstract) This Article discusses the role of the Court of Justice in reviewing acts adopted under the Common Foreign and Security Policy (CFSP), seeking to determine to what extent the "exceptionalism" of the CFSP, its characterisation as a field of executive action largely shielded from judicial scrutiny, is an accurate assessment. The Court's role is constrained in two ways. First, although the CFSP has been integrated into the overall legal structures of EU external relations by the Lisbon Treaty, it is still subject to "specific rules and procedures" (Art. 24, para. 1, TEU) and among these specific rules are limitations on the jurisdiction of the Court of Justice. Second, is the self-restraint of the Court itself when reviewing acts adopted within the framework of external policies in which the decision-making institutions have a wide discretion; this self-restraint is not specific to the CFSP but the CFSP is a clear case of broad policy discretion. Despite these constraints we are seeing a growing number of cases in which the Court is asked to assess the legality of CFSP acts. The Article will address three main questions: 1) What is the scope of the limitation to judicial review in the CFSP? 2) What is the scope of the Treaty-based exceptions to this limitation? 3) Does the degree and intensity of judicial scrutiny of CFSP acts demonstrate a particular judicial reticence with respect to CFSP?

(Series Information) European Papers - A Journal on Law and Integration, 2016 1(3), 2499-8249 | Editorial | (Abstract) The flawed EU's attempts to enforce the rule of law, both in Hungary and Poland, dramatically underline the EU institutions' weakness. How can legal academics provide the EU with new tools to tackle these violations of the rule of law? Not only in better equipping the EU with tools to impose EU law or sanctioning recalcitrant member States. Legal academics could start from populist discourses themselves. In particular, two critiques of the EU's action must be dealt with. The first one is the absence of predictability and clarity of the EU's action. The second one is the source of EU's action: "in the name of whom" is the EU sanctioning is the question that must urgently be answered to.

(Series Information) European Papers - A Journal on Law and Integration, 2016 1(3), 1041-1053 | European Forum Insight of 9 December 2016 | (Table of Contents) I. Introduction. - II. A complete system of judicial protection, also in the sphere of the CFSP? - III. In search of the limits of the jurisdictional carve-out: in defence of the ECJ's incremental approach. - IV. Looking forward: towards a comprehensive approach. - IV.1. A reading of Art. 275 TFEU focused on the nature of the plea rather than the nature of the contested act. - IV.2. A narrow interpretation of the phrase "certain decisions as provided for by the second paragraph of Article 275 [TFEU]" in Art. 24, para. 1, TEU. - IV.3. A broad interpretation of "restrictive measures" in Art. 275 TFEU. | (Abstract) In its judgment in the case of H v. Council et al., the Grand Chamber recognised the jurisdiction of the Court of Justice of the European Union to assess the validity under EU law of a decision by the Chief of Personnel of the European Union Police Mission in Bosnia-Herzegovina (EUPM) to redeploy an Italian magistrate, seconded to the EUPM in Sarajevo, to the post of Criminal Justice Adviser in another location in that country. The question was salient in light of the jurisdictional carve-out in the sphere of the Common Foreign and Security Policy (CFSP) provided for in Art. 24, para. 1, TEU and Art. 275 TFEU. Before the Court, the parties had advanced diverging interpretations of these provisions aimed at recognising or ruling out the Court's jurisdiction. The Court took an alternative path, relying on Art. 270 TFEU on jurisdiction over staff management disputes to confirm its jurisdiction in the case at bar. This Insight contextualises the Court's ruling by pointing to the deficiencies in the system of judicial protection in the sphere of the CFSP. In addition, it argues in favour of a broad reading of the exceptions to the exclusion of the Court's jurisdiction in the sphere of the CFSP. In support of this argument, the Insight assesses the arguments in this direction advanced by the appellant and the European Commission.

(Series Information) European Papers - A Journal on Law and Integration, 2016 1(3), 1283-1288 | European Forum Highlight of 15 October 2016 | (Abstract) The European Union is facing, in the context of a globalized crisis, a challenge to its most fundamental values and principles of functioning. Polish government's has embarked in a course, since it attained power at the autumn 2015, that engenders deep tensions. Thus, for the first time, on January 16, 2016, the European Commission decided to activate the new EU Framework to strengthen the Rule of Law. A dialogue has then been engaged, whose ultimate outcome, however, still remains uncertain.

(Series Information) European Papers - A Journal on Law and Integration, 2016 1(3), 1253-1257 | European Forum Highlight of 26 September 2016 | (Abstract) In its Recommendation of 27 July 2016 on the rule of law in Poland, the European Commission set out its concerns and recommended a series of measures that the Polish authorities should take to address them. The Recommendation is a step taken in view of the first ever application of Art. 7 TEU mechanisms, which aim at preventing and sanctioning serious and persistent breaches of EU common values by Member States.