04 March 2024
Re-Imagining the European (Political) Community through Migration Law
The constant portrayal of migration as an exceptional and problematic phenomenon fuels public anxieties and makes deterrence and harshness seem like the only effective political approaches to managing global migration. By contrast, positive visions of how a society of immigration needs to look like for all members of society to benefit are scarce. Yet to counter apocalyptic scenarios, we need not only such a positive vision but also a theory of societal action that helps to realize it. This blog post offers such a vision and theory that is grounded in the normative and legal framework of the European Union. It argues that we should conceptualize the European society as an inclusive, participatory, and self-reflexive community that is based on constitutional principles as enshrined in Art. 2 TEU. To realize this vision, we must understand practices of claiming and defending human rights not as an overreach into the political latitude of the legislator but as a joint practice of (political) community-building. Continue reading >>
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11 June 2023
Doing Justice to Poland’s Muzzle Law
On 5 June 2023, the Court of Justice issued its fourth infringement judgment in relation to yet another Polish piece of legislation – informally known as the muzzle law – which aimed to dissuade or punish Polish judges for applying and upholding EU rule of law requirements. As anyone with any basic understanding of EU law could have predicted, the law rushed into force by Poland’s ruling coalition in December 2019 did not survive judicial scrutiny in Luxembourg. As long as the Commission fails to demand full compliance with CJEU case law and decisively address the issue of judicial usurpers, however, just chipping away at the arbitrary disciplinary changes Polish authorities have made will always fail to solve Poland’s fundamental and systemic issues. Continue reading >>31 January 2023
Battling the hydra in EU anti-discrimination law
Can a company refuse to conclude or renew a contract with a self-employed person because he is gay? And may contractual freedom prevail over the prohibition of discrimination in such a situation? A short answer stemming from the recent ECJ judgment in J.K. v. TP would be a resounding no. Yet, a further analysis is in order because the judgment also brings a significant shift in the ECJ’s anti-discrimination case law. Continue reading >>
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26 November 2021
The Sanctity of Preliminary References
A national supreme court must not declare a request for a preliminary ruling by a lower court unlawful on the ground that the referred questions are irrelevant and unnecessary for the original case. This has been held by the Court of Justice of the EU (CJEU) in its important decision C-564/19 IS. In addition, the CJEU held that EU law also precludes disciplinary proceedings from being brought against national judges on the ground that they made a reference for a preliminary ruling. The case also raises important questions to what extent preliminary rulings can be effective against rule-of-law decline and make up for political EU institutions’ failure to use adequate EU tools of supervision and enforcement. Continue reading >>17 November 2021
A Tale of Primacy, part III
The third act, but not the end, of the ongoing „game of Courts” between the Romanian Constitutional Court and the European Court of Justice came on 9 November 2021, with a letter by the Romanian Constitutional Court to assist the acting minister of justice with a reply to the EU Commission's concern about primacy of EU law. I will not comment again on the arguments, already developed by the Constitutional Court in its decision, but I will try to emphasize, through relevant quotes, the disregard of the rule of law requirements stated in the CJEU judgment as well as the absence of the capacity of a true dialogue with the European Court. Continue reading >>
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10 November 2021
The Multiple EU Rule of Law Crises
The European Court of Justice has recently delivered a judgment in the Pinxten case. The decision specifically concerned a question of financial misappropriation at the European Court of Auditors, but its significance goes far beyond this single case. It reveals multiple misfunctions at the top of the European Court of Auditors. Curiously, however, the judgement won't be published and has thus (against the Court’s own rules) not been translated. Most people will therefore never know about it, even though the Court of Justice gathered most exceptionally a full court to deal with this case. Continue reading >>
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