Category: Rule of Law Reflections
Rule of Law Reflections features selected publications from the re:constitution Working Paper series that address and deliberate current questions regarding democracy, the protection of fundamental rights and the rule of law in Europe. The series collects contributions from re:constitution Fellows & alumni and other members of the network connected to the programme. It includes both perspectives from academia and practice and aims to encourage debates and exchange across professional fields, disciplines and (national) borders. It is an open access format, informed by the ongoing research and experience of the authors and aiming to promote debate and commentary.
re:constitution – Exchange and Analysis on Democracy and the Rule of Law in Europe aims to inspire comprehensive discussion about and around questions of democracy, the rule of law, and the protection of fundamental rights in Europe. Funded by Stiftung Mercator and co-managed by the Forum Transregionale Studien and Democracy Reporting International, the programme awards Fellowships to early-career scholars and practitioners, offers topical analysis and builds up a growing European network of experts on the rule of law and democracy.
By Matteo Bonelli. The “constitutional backsliding” crisis in the European Union started almost fifteen years ago. Since then, EU institutions have sought to address and reverse backsliding processes in the Member States with a variety of tools, initiatives and strategies. This article argues that we are witnessing a “democratic turn” in EU initiatives to protect and promote EU values. This democratic turn complements, but does not replace, the initiatives developed in the last decade to strengthen the rule of law in the EU and the Member States, as well as the Union’s fundamental rights policy that has even earlier roots.
By Tivadar Hüttl. This article explores the intricate relationship between data protection regulations and press freedom in Europe, with a particular emphasis on the misuse of data protection laws to initiate Strategic Lawsuits Against Public Participation (SLAPPs). The Hungarian Forbes demonstrates the onerous legal obligations placed on the press and the potential for Data Protection Authorities (DPAs) to function as de facto instruments of SLAPPs.
By Stefan Szwed. National populist leaders across the EU, and in particular governments in backsliding Members States such as Hungary under Fidesz and Poland under PiS, like to proclaim themselves as true representatives of the people. They pit the principle of popular choice against the demands of the rule of law, defined among others as protection against abuses of majority rule. This exploratory research examines how ‘strongmen’ in office undermine the rule of law to not only advance their illiberal agendas, but also lower the risk of losing future ballots. Across key aspects of the process, it considers how the pair had laid foundations to game if not capture electoral competition.
By Oliver Garner. It may have seemed that the EU’s “Rule of Law crisis” was finally being resolved as 2023 commenced. For the first time since 2015, action by the EU institutions induced both Hungary and Poland to adopt legislation on the organisation of their judiciaries. The decisive factor appears to have been the use of financial pressure through the withholding of EU funds. Nevertheless, problems on a number of fronts suggest that this will not be the silver bullet to solve the values crisis.
By Viktoria Kraetzig. The copyright/free speech conflict is inherent in copyright law: copyright grants its owners a limited monopoly on a work, which is also a communication content. If third parties copy the work, they might infringe copyright while invoking their fundamental right of free speech. The conflict arises because free speech doctrine does not distinguish whether someone speaks with own or other people’s words, whether something has been said for the first, second or hundredth time: speaking is speaking. And so is copying.
By Colleen Boland. Europe faces increasing patterns of crimmigration, or the merging of criminal and migration law, discourse and practices. Refugees and asylum seekers are conflated with more general migrant populations, and are likewise subjected to these phenomena as well. This article asks how refugee or asylum seeker women experience or negotiate crimmigration rhetoric, policies and practices, particularly in light of the EU fundamental rights to asylum and non-discrimination.
By Théo Fournier. This essay argues that rule-of-law culture could be an avenue of research to address the issue of constitutional resilience of liberal democratic regimes, i.e. the capacity of liberal constitution to resist the passage of time and to remain legitimate in the eyes of the citizenry.
By Catherine Warin. This article argues that enhancing rights consciousness across societies in Europe can help make individual rights a reality and strengthen individual and collective confidence in the EU’s legal system. The author gives a brief reminder of the nature, function and value of rights in the EU legal system and discusses rights consciousness as a precondition for rights effectiveness.
By Veronica Anghel. This contribution delves into the intricate interplay between formal and informal institutions in contemporary
European political landscapes. It investigates the vital role of informal institutions in supplementing and at times
circumventing the formal rules that define the parameters of political functioning.
By Maciej Taborowski. This contribution takes a closer look at how the Court of Justice of the European Union (CJEU) has shaped the value of rule of law as the “very identity of the EU legal order”, and how it has used the rule of law to build a “shield” that serves as a defense for national judges against interference with their independence on the basis of the principle of effective judicial protection. Such a “shield” is particularly useful in those EU Member States where there is an ongoing rule of law crisis, such as Poland.
