Conference Agenda

While the European Union’s (EU) response to the Rule of Law (RoL) crisis garners considerable attention, few studies have explored its interactions with international bodies in enforcing the RoL. This study investigates the European Commission’s recurrent appeal to the Venice Commission’s (VC) authority and opinions in RoL enforcement documents. The Commission’s use of VC expertise presents a puzzling phenomenon given its previous scepticism towards the jurisdiction of the Council of Europe (CoE) and its tendency to avert losses of competencies. To explain this puzzle, we propose that the Commission might be (1) compensating for incomplete monitoring capabilities and limited access to information while minimising institutional costs. Alternatively, it also might be attempting to enhance its legitimacy amid contested assertions of RoL enforcement by (2.1) responding to Council demands concerning the use of sources and/or (2.2) showcasing adherence to expertise-based problem-solving and impartiality. Empirically, we test these hypotheses through qualitative content analysis of semi-structured interviews with Commission and VC officials involved in developing RoL-related documents.

Democratic backsliding within individual member states represent a long-standing and systemic issue for the EU. This article provides a novel insight into associated EU policy action by investigating what kinds of expertise is relevant – and why – for policymakers when they evaluate normative concepts such as the ‘rule of law’ and ‘democracy’ against EU standards and member state governance practices. The article utilises a mixed-methods approach with the use of surveys and semi-structured interviews with EP policymakers as well as document analysis to assess individual perceptions about the relative importance of expertise sources within related EP activities. The article specifically focuses on perceptions about the expertise used regarding the own-initiative EP resolution which started the Article 7 process against Hungary in 2018. The findings demonstrate that expertise from NGOs, party groups, international organisations and committee secretariats were the most important for policymakers. Against this background, policymaker approaches to the GAL-TAN divide, intra-/inter-group politics and levels of inter-personal trust were key determinants in shaping how expertise sources are perceived and used in EP rule of law processes. The findings also illuminate how the mandate of institutional neutrality simultaneously elevates and imposes limits on the relative importance of EP administrative expertise within policymaking.

Theory says that effectiveness of EU law shields us, the EU citizens, from national laws or judicial interpretation of national laws (let’s call them ‘practices’) that make it impossible or excessively difficult for us to exercise rights recognized by EU law.

However, effectiveness of EU law is no longer (it never was, really) just a principle governing the relationship between EU and national legal systems. Effectiveness is nowadays the tool used by most courts, including the ECJ, to bring common sense to legal disputes when national legislation or practices lead to senseless results.

One clear example of that can be found in antitrust litigation. All EU individuals, companies and administrative bodies have been damaged, at some point, by an antitrust infringement. We shall insist: all of them. And all of them have the right to be fully indemnified for these damages, according to EU law.

Then, why almost nobody is indemnified for these damages?

This is due to the fact that national rules governing the way a victim of a cartel or another antitrust misconduct is indemnified make it almost impossible to actually obtain a compensation for the damages suffered. In other words, they are against effectiveness of EU law. Hence why almost all antitrust behaviors are worth it. Hence why they keep occurring.

If there is any hope to revert this situation, we may find it in effectiveness and in how the ECJ and domestic courts keep broadening this concept, lowering the standard of what is considered ‘impossible or excessively difficult for the sake of a framework where anyone harmed by an antitrust conduct, which, again, includes each and every EU citizen, has real chances of being indemnified. A framework where, therefore, cartelizing is no longer worth it and all consumers, companies and public bodies enjoy the benefits of true competition.

As we will develop in our contribution, more and more practitioners have found in effectiveness a real tool to overcome laws or practices that threaten the effective application of EU law. This trend has led to an increasing number of national and ECJ case law regarding the interpretation of effectiveness, which needs to be deeply analyzed to really understand how effectiveness works nowadays and to maybe find some clues about what is to about to come in the following years.