The Eclipse Of The Legality Principle In The European Union

Legality is a traditional normative concept to regulate the relationship between those in power and those subjected to that power. The principle of legality protects the citizen against the arbitrary use of power, or, more precisely, it demands a legal basis (which itself must be of a certain standard) to legitimize State action. Is legality under siege in Europe? The authors contributing to this provocative and important book answer this question in the affirmative. Twenty-one outstanding European legal scholars expose a spectrum of ways in which the traditional legality principle is under pressure because of the creation of new legal orders, including that of the EU, and the interaction between these new orders and that of the State, combined with such factors as expertise driven governance, difficulties of international organizations to meet their objectives due to a lack of adequate powers, and lack of parliamentary control. The question of whether the main functions of legality - legitimating, attributing and regulating the exercise of public authority - are still fulfilled in the context of the overlapping, interacting, and mutually dependent legal orders of the EU, the ECHR, and the Member States is at the background of all the essays in this volume. Recognizing that legality, if it is to survive, demands rigorous reconsideration of its scope and application, the authors interrogate not only such fundamental democratic issues as who has legitimate power to perform legislative acts and through these to exercise of public power over citizens, but also such urgent European problems as the following: ; the use of the precautionary principle in EU decision-making; the scope of the principle that the exercise of public authority must rest on an act of Parliament; the extent to which the EU can provide a legal basis for action of Member State authorities in the absence of such a basis within Member State legal orders; the constitutional position of independent 'regulators'; the requirements that ECJ and ECHR case law impose on the exercise of public authority; whether legislative results are coherent in the sensitive area of equal treatment; transparency, legal certainty, enforceability, and implementation of EC Directives in the field of workers' involvement; new instruments as the Open Method of Coordination and the involvement of social partners in decision-making; the de facto harmonization of national criminal justice systems; and the prominent role of the EU in the field of data protection. There can be little doubt that the issue of legality and to whom it applies - in a world in which the role of the modern State is changing profoundly - is a crucial one. It is highly important in the context of the ongoing discussion on the meaning of democracy and citizenship. This volume, with its clear message that reconsidering legality demands taking serious issue with the uncertainty engendered by the processes of globalization, will resonate profoundly among practitioners and policymakers in this time of momentous change.

This book takes a wide-ranging approach to tackle the complex question of the current state of constitutional democracy in the EU. It brings together a broad set of academics and practitioners with legal and political perspectives to focus on both topical and perennial issues concerning constitutional democracy (including safeguarding the rule of law and respect for fundamental rights) in theory and practice, primarily at EU level but also with due regard to national and global developments. This approach underlines that rather than a single problématique to be analysed and resolved, we are presently facing a kaleidoscopic spectrum of related challenges that influence each other in elusive, multifaceted ways. Critical Reflections on Constitutional Democracy in the European Union offers a rich analysis of the issues as well as concrete policy recommendations, which will appeal to scholars and practitioners, students and interested citizens alike. It provides a meaningful contribution to the array of existing scholarship and debate by proposing original elements of analysis, challenging often-made assumptions, destabilising settled understandings and proposing fundamental reforms. Overall, the collection injects a set of fresh critical perspectives on this fundamental issue that is as contemporary as it is eternal.

The Law of the European Union is a complete reference work on all aspects of the law of the European Union, including the institutional framework, the Internal Market, Economic and Monetary Union and external policy and action. Completely revised and updated, with many newly written chapters, this fifth edition of the most thorough resource in its field provides the most comprehensive and systematic account available of the law of the European Union (EU). Written by a new team of experts in their respective areas of European law, its coverage incorporates and embraces many current, controversial, and emerging issues and provides detailed attention to historical development and legislative history of EU law. Topics that are constantly debated in European legal analysis and practice are touched on in ways that are both fundamental and enlightening, including the following: .powers and functions of the EU law institutions and relationship among them; .the principles of equality, loyalty, subsidiarity, and proportionality; .free movement of persons, goods, services, and capital; .mechanisms of constitutional change – treaty revisions, accession treaties, withdrawal agreements; .budgetary principles and procedures; .State aid rules; .effect of Union law in national legal systems; .coexistence of EU, European Convention of Human Rights (ECHR), and national fundamental rights law; .migration and asylum law; .liability of Member States for damage suffered by individuals; .competition law – cartels, abuse of dominant position, merger control; .social policy, equal pay, and equal treatment; .environmental policy, consumer protection, public health, cultural policy, education, and tourism; .nature of EU citizenship, its acquisition, and loss; and .law and policy of the EU’s external relations. The fifth edition embraces many new, ongoing, and emerging European legal issues. As in the previous editions, the presentation is notable for its attention to how the law relates to economic and political realities and how the various policy areas interact with each other and with the institutional framework. The many practitioners and scholars who have relied on the predecessors of this definitive work for years will welcome this extensively revised and updated edition. Those coming to the field for the first time will instantly recognize that they are in the presence of a masterwork that can always be turned to with profit and that helps in understanding the rationale underlying any EU law provision or principle.

Although Article 23(5) of EU Regulation 1/2003 provides that competition law fines ‘shall not be of a criminal law nature’, this has not prevented certain criminal law principles from finding their way into European Union (EU) competition law procedures. Even more significantly, the deterrent effect of competition law fines has led courts in the Netherlands and the United Kingdom (UK), as well as the European Court of Human Rights, to conclude that competition law proceedings can lead to a criminal charge. This book offers the first book-length study of whether courts do indeed apply criminal law principles in competition law proceedings and, if so, how these principles are adapted to the needs and characteristics of competition law. Focusing on competition law developments (both legislative and judicial) over a period of twenty years in three jurisdictions – the Netherlands, the UK and the EU – the author compares how each of the following (criminal law) principles has emerged and been interpreted in each jurisdiction’s proceedings: freedom from self-incrimination; non bis in idem; burden and standard of proof; legality and legal certainty; and proportionality of sanctions. The author offers proposals involving both legislative and judicial actions, with examples of judges invoking criminal law principles to develop an appropriate level of safeguards in competition law proceedings. The book shows that criminal law can provide a rich source of inspiration for the judiciary on the appropriate level of legal safeguards in competition law proceedings. As such, it provides an important source of information and guidance for lawyers and judges dealing with competition law matters. "The work is well argued and well researched. Indeed, it is almost encyclopaedic in its use and citation of case law and secondary material....This book provides a valuable resource for anyone (whether as advocate, investigator, adjudicator or academic researcher) who wishes to understand how these criminal law principles are used in, and to protect those subject to, administrative law-based competition investigations.” Bruce Wardhaugh (Lecturer at the University of Manchester) Common Market Law Review, 2021, vol 58, issue 1, page 236

Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms

This is a book about the internal dimension of the rule of law in the European Union (EU). The EU is a community based on law which adheres to and promotes a set of common values between the Member States. The preservation of these values (such as legality, legal certainty, prohibition of arbitrariness, respect for fundamental rights) is pivotal to the success of European integration and the well-being of the individuals within it. Yet, the EU rule of law suffers from an imposter syndrome and has been the subject of criticism: ie that it is only part of the EU agenda in order to legitimise sweeping new powers and policies, and that it plays little or no role in promoting a culture of compliance for either deviant EU Institutions or for Member States. This book will examine whether the EU rule of law deserves those criticisms. It will offer an analytical guide to the EU rule of law by conceptualising it and locating it within the sources of EU law. It will then ask whether the EU is based on the rule of law - a question which is answered in the affirmative, but one which has to be considered in the context of compliance and the overall effectiveness of the EU enforcement acquis. It is argued that while the EU means well in its aim to preserve unity in an increasingly diversified Europe, the extent to which it can pave the way to a better world (based on a transnational rule of law concept akin to good governance and improvement of citizens' lives) is dependent on the commitment of all European integration stakeholders to the EU project.

This book provides an analysis of key approaches to rule of law oversight in the EU and identifies deeper theoretical problems.

Seeking Asylum in the European Union provides critical analyses of selected problems that scholars and policy-makers will have to address in the ‘second phase’ of the Common European Asylum System: the comprehensive recast of European asylum legislation completed in 2013. With a foreword by Professor Hélène Lambert.