The Triangular Relationship between Fundamental Rights, Democracy and the Rule of Law in the EU: Towards an EU Copenhagen Mechanism. CEPS Paperbacks. November 2013

This study examines the protection of fundamental rights, democracy and rule of law in the European Union, and the challenges that arise in reflecting on ways to strengthen EU competences in these contested terrains. It provides a ���state of play��� and critical account of EU-level policy and legal mechanisms assessing the relationship between rule of law, democracy and fundamental rights in the member states of the Union. The cross-cutting challenges affecting their uses, effective implementation and practical operability constitute a central point of the analysis. The study argues that the relationship between rule of law, democracy and fundamental rights is co-constitutive. Any future rule of law-related policy discussion in the EU should start from an understanding of the triangular relationship between these dimensions from the perspective of ���democratic rule of law with fundamental rights���, i.e. the legally based rule of a democratic state that delivers fundamental rights. The three criteria are inherently and indivisibly interconnected, and interdependent on each of the others, and they cannot be separated without inflicting profound damage to the whole and changing its essential shape and configuration.

Pol��ticas de conte��do local: crescimento econ��mico e rule of law

As chamadas Pol��ticas de Conte��do Local (���PCLs���) fazem parte de um grupo de pol��ticas desenvolvimentistas adotadas em todo o mundo com o objetivo de maximizar os benef��cios sociais e econ��micos decorrentes de determinadas atividades econ��micas. Neste trabalho, analisaram-se, principalmente, as PCLs relativas �� extra����o e produ����o de petr��leo e g��s. O instituto �� juridicamente pol��mico, uma vez que, al��m de ser dif��cil de definir, �� instrumentalizado por diversos atos normativos diferentes. Tal situa����o agrava-se com o fato de que o desenho de cada PCL pode sugerir ou impor diversas medidas de implementa����o diferentes, com impactos nas diferentes ��reas do Direito. Considerando este cen��rio, aponta-se que o principal objetivo deste trabalho �� a an��lise de transplantes ao nosso ordenamento jur��dico de PCLs bem-sucedidas em ordenamentos jur��dicos estrangeiros. Para isso, demonstrou-se, em um primeiro momento, que o instituto das PCLs deve ser reinterpretado �� luz da Constitui����o vigente. Isso porque as PCLs foram criadas em uma ��poca em que a escola desenvolvimentista principal era a keynesiana, que foi substitu��da atualmente pela escola do Rule of Law. Embora nosso ordenamento jur��dico tenha acompanhado essa evolu����o (atrav��s de Emendas Constitucionais e ado����o de determinadas leis), as PCLs n��o acompanharam e, por isso, precisam sofrer essa releitura. Nesse sentido, extra��ram-se da Lei quatro elementos principais que as PCLs devem preencher para estar em conson��ncia com o Rule of Law: (A) Benef��cios aos Consumidores Finais; (B) Sustentabilidade; (C) Transetorialidade; e (D) Amplia����o do Mercado de Trabalho. Em sequ��ncia, classificaram-se as diversas PCLs mapeadas, exemplificando cada uma. Ao longo da classifica����o, apontaram-se tr��s crit��rios que facilitam a identifica����o das maiores dificuldades jur��dicas em cada transplante: (A) Canal; (B) Natureza; e (C) Instrumento. Por fim, quatro PCLs estrangeiras bem-sucedidas foram escolhidas para uma an��lise mais aprofundada: a Kazakhstan Contract Agency, no Cazaquist��o, a Petro Arctic Supplier Asssociation, na Noruega, o Australian Industry Participation Plan na Austr��lia e o Nigerian Oil & Gas Content Industry Development Act, na Nig��ria. Para cada uma, �� dedicada uma an��lise especial. As an��lises s��o seguidas pela Conclus��o.

In Search for the European solidarity: The rule of law within the European Union in the framework of constitutional pluralism

The dissertation examines the rule of law within the European Union in the theoretical framework of constitutional pluralism. The leading lines of constitutional pluralism are examined with relation to the traditional and prevailing, monistic and hierarchical conceptions on how to perceive legal orders in Europe. The theoretical part offers also historical perspective by highlighting some of the turning points for the Union constitutional legal order in the framework of European integration. The concept of rule of law is examined in legal terms and its meaning to the Union constitutional constellation as a constitutional principle and a common value is observed. The realization of the rule of law at supranational and national level is explored with a view to discover that recent developments in some of the Member States give rise to concern about the viability of the rule of law within the European Union. It is recognized that the inobservance of the rule of law at national level causes a threat to the supranational constitutional legal order. The relationship between the supranational and national legal orders is significant in this respect and therefore particularly the interaction between the Court of Justice of the European Union (hereinafter the ECJ) and the Member States��� (constitutional/supreme) courts takes focus. It is observed that functioning dialogue between the supranational and national courts based on mutual respect and judicial deference is an important prerequisite for the realization of the rule of law within Europe. In order to afford a concrete example, a recent case C-62/14 Gauweiler v Deutscher Bundestag is introduced and analysed in relation to the notorious relationship between the Federal Constitutional Court of Germany and the ECJ. The implications of the ECJ���s decision in Gauweiler v Deutscher Bundestag is assessed with reference to some of the pressing issues of constitutionalism within Europe and some institutional aspects are also brought forward. Lastly, the feasibility of constitutional pluralism as a theoretical setting is measured against the legal reality of today���s Europe and its many constitutions. The hierarchical idea of one ultimate source of power, stemming from the traditional approaches to legal systems, is then assessed with relation to the requirement of the realization of the rule of law within the European Union from the supranational and national point of view.

Casual but Smart: The Court���s new clothes in the Area of Freedom Security and Justice (AFSJ) after the Lisbon Treaty. Research Papers in Law, 2/2008

Introduction. Unintended as it was, the European Court of Justice (ECJ, the Court, the Court of the EU) has played an extremely important role in the construction of the Area of Freedom Security and Justice (AFSJ). The AFSJ was set up by the Treaty of Amsterdam in 1997 and only entered into force in May 1999. The fact that this is a new field of EU competence, poses afresh all the fundamental questions ��� both political and legal ��� triggered by European integration, namely in terms of: a) distribution of powers between the Union and its Member States, b) attribution of competences between the various EU Institutions, c) direct effect and supremacy of EU rules, d) scope of competence of the ECJ, and e) extent of the protection given to fundamental rights. The above questions have prompted judicial solutions which take into account both the extremely sensible fields of law upon which the AFSJ is anchored, and the EU���s highly inconvenient three-pillar institutional framework.1 The ECJ is the body whose institutional role is to benefit most from this upcoming ���depilarisation���, possibly more than that of the European Parliament. This structure is on the verge of being abandoned, provided the Treaty of Lisbon enters into force.2 However spectacular this formal boost of the Court���s competence, the changes in real terms are not going to be that dramatic. This apparent contradiction is explained, to a large extent, by the fact that the Court has in many ways ���provoked���, or even ���anticipated���, the depilarisation of its own jurisdictional role, already under the existing three-pillar structure. Simply put, under the new ��� post Treaty of Lisbon ��� regime, the Court will have full jurisdiction over all AFSJ matters, as those are going to be fully integrated in what is now the first pillar. Some limitations will continue to apply, however, while a special AFSJ procedure will be institutionalised. Indeed, if we look into the new Treaty we may identify general modifications to the Court���s structure and jurisdiction affecting the AFSJ (section 2), modifications in the field of the AFSJ stemming from the abolition of the pillar structure (section 3) and, finally, some rules specifically applicable to the AFSJ (section 4).

Democratic governance and the rule of law : lessons from Colombia /

"Colombia has experienced conflict for decades. In the 1990s it was a paradigm of the failing state, beset with all manner of troubles: terrorism, kidnapping, murder, drug trafficking, corruption, an economic downturn of major scope, general lawlessness, and brain drain. Today the country is much safer, and the agents of violence are clearly on the defensive. Nonetheless, much work lies ahead to secure the democratic system. Security and the rule of law are fundamental to the task. As the monopoly over the legitimate use of force is established, democratic governance also needs the architecture of law: ministry of justice, courts, legislative scrutiny, law enforcement agencies, regulatory bodies, public defenders, police, correctional system, legal statutes, contracts, university level academic education to train lawyers, judges, and investigators, along with engagement with civil society to promote a culture of lawfulness. Security without the rule of law puts a society at risk of falling into a Hobbesian hell."--P. v.

Whose Mare? Rule of law challenges in the field of European border surveillance in the Mediterranean. CEPS Liberty and Security in Europe No. 79/January 2015

This paper examines key developments in the field of European border surveillance in the Mediterranean. By asking, ���Whose Mare?���, we focus on rule of law challenges stemming from these developments in a post-Lisbon EU. The developments examined are the Italian Navy-led Mare Nostrum operation, the debates over European ���exit strategies��� for this operation and the ensuing launch of the Frontex Triton joint operation (JO). The recently adopted Regulation on Frontex sea border surveillance operations is also presented as a key development to understand the rule of law challenges. Moreover, the adoption of the European Union Maritime Security Strategy (MSS) and the development of several maritime surveillance systems in the EU highlight that a wide range of actors seeks authority over this field.

Corruption, income, and rule of law: empirical evidence from developing and developed economies

This article presents an empirical analysis based on cross-country data concerned with two points regarding corruption: (i) its effects on income; and (ii) how to mitigate corruption. The findings can be highlighted in two points. Firstly the idea that corruption is intrinsically connected with income is confirmed. Secondly, the traditional argument that an increase in rule of law represents a good strategy in the fight against corruption is valid for developing countries. Furthermore, this study reveals that the search for increasing the human development index represents a rule of thumb for high levels of income and to control corruption.