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Revisiting the EU Legal System: Substantive & Procedural Loyalty for the Judicial Enforcement of the Rule of Law

Revisiting the EU Legal System: Substantive & Procedural Loyalty for the Judicial Enforcement of... Aiming to foster reflection on the role of the EU regarding the enforcement of the rule of law, this essay revisits, in a normative fashion, the Union’s legal system with references to recent and established case law and literature. It understands the judicial enforcement of the rule of law as a synonym of effective judicial protection and analyses the pluralistic system of the Union as being overarched by loyalty. It then introduces three specific components of the rule of law related to its judicial enforcement. The first concerns its material aspect: the standards of protection of rights and principles. The contribution opines that the systemic analysis of the Union excludes conflicts of standards. The second component refers to judicial control. It is argued that the related structural obligations of the Member States are enforceable by individual claims grounded on a self-standing right. The last component is organic and relates to the judge. The contribution posits that the national judge is empowered by her European mandate to enforcing the rule of law. While the technique of exceptional circumstances as part of the mechanism of the European arrest warrant confirms this position, cases of constitutional conflicts suggest the procedural deficiency. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png European Public Law Kluwer Law International

Revisiting the EU Legal System: Substantive & Procedural Loyalty for the Judicial Enforcement of the Rule of Law

European Public Law , Volume 27 (2): 20 – Jul 1, 2021

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Publisher
Kluwer Law International
Copyright
Copyright © 2021 Kluwer Law International BV, The Netherlands
ISSN
1354-3725
Publisher site
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Abstract

Aiming to foster reflection on the role of the EU regarding the enforcement of the rule of law, this essay revisits, in a normative fashion, the Union’s legal system with references to recent and established case law and literature. It understands the judicial enforcement of the rule of law as a synonym of effective judicial protection and analyses the pluralistic system of the Union as being overarched by loyalty. It then introduces three specific components of the rule of law related to its judicial enforcement. The first concerns its material aspect: the standards of protection of rights and principles. The contribution opines that the systemic analysis of the Union excludes conflicts of standards. The second component refers to judicial control. It is argued that the related structural obligations of the Member States are enforceable by individual claims grounded on a self-standing right. The last component is organic and relates to the judge. The contribution posits that the national judge is empowered by her European mandate to enforcing the rule of law. While the technique of exceptional circumstances as part of the mechanism of the European arrest warrant confirms this position, cases of constitutional conflicts suggest the procedural deficiency.

Journal

European Public LawKluwer Law International

Published: Jul 1, 2021

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