The European Union’s Rule of Law Promotion in its Neighbourhood: A Structural Foreign Policy Analysis. EU Diplomacy Paper 04/2013

The promotion of the rule of law has become an important dimension of the European Union’s relations towards its neighbourhood. The rule of law is, however, a complex and multifaceted notion and the EU’s rule of law promotion policy has often been criticised for being either inefficient or self-interested. This collection of short papers offers an analysis of various case studies using the analytical framework of structural foreign policy (SFP) developed by Stephan Keukeleire. It aims to promote an original analytical perspective on the EU’s foreign policy but also to critically test and further develop the SFP analytical framework. The contributions of this collection consist of the shortened version of students’ Master’s theses written at the College of Europe during the academic year 2011-2012 in the framework of the course “The EU as a Foreign Policy Actor” taught by Stephan Keukeleire, Chairholder of the TOTAL Chair of EU Foreign Policy in the Department of EU International Relations and Diplomacy Studies.

Rule of law or rule of thumb? A new Copenhagen mechanism for the EU. CEPS Policy Brief No. 303, 20 November 2013

This Policy Brief synthesises the main research findings and policy recommendations presented in the CEPS e-book entitled The Triangular Relationship between Fundamental Rights, Democracy and Rule of Law: Towards an EU Copenhagen Mechanism” (http://www.ceps.eu/book/triangular-relationship-between-fundamental-righ...). The authors examine the ways in which the European Union could strengthen and develop its competences in the assessment of member states’ fundamental rights, democracy and rule of law commitments. They argue that a strong political impetus is needed at Union level in order to set up a new supervisory “Copenhagen Mechanism” that would effectively and periodically evaluate member states’ compliance with democratic rule of law with fundamental rights on the basis of independent academic expertise, and by ensuring a high level of democratic accountability and judicial oversight at European levels. The Policy Brief also aims at summarising CEPS’ contribution to the upcoming Conference “Assises de la Justice: Shaping Justice Policies in Europe for the Years to Come” organised by the European Commission in Brussels on 21-22 November 2013.

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.

Access to Electronic Data by Third-Country Law Enforcement Authorities, Challenges to EU Rule of Law and Fundamental Rights. Center for European Policy Studies, 2015

This study examines the challenges posed to European law by third country access to data held by private companies for the purposes of law enforcement. It pays particular attention to the implications for rule of law and fundamental rights of foreign authorities’ direct access to electronic information falling outside pre-established channels of supranational cooperation. A special focus is given to EU-US relations and the practical issues emerging in transatlantic relations covering mutual legal assistance and evidence gathering for law enforcement purposes in criminal proceedings.

An EU mechanism on Democracy, the Rule of Law and Fundamental Rights. CEPS Paper in Liberty and Security in Europe No. 91/April 2016 Thursday, 21 April 2016

The European Union is founded on a set of common principles of democracy, the rule of law, and fundamental rights, as enshrined in Article 2 of the Treaty on the European Union. Whereas future Member States are vetted for their compliance with these values before they accede to the Union, no similar method exists to supervise adherence to these foundational principles after accession. EU history proved that this ‘Copenhagen dilemma’ was far from theoretical. EU Member State governments’ adherence to foundational EU values cannot be taken for granted. Violations may happen in individual cases, or in a systemic way, which may go as far as overthrowing the rule of law. Against this background the European Parliament initiated a Legislative Own-Initiative Report on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights and proposed among others a Scoreboard on the basis of common and objective indicators by which foundational values can be measured. This Research Paper assesses the need and possibilities for the establishment of an EU Scoreboard, as well as its related social, economic, legal and political ‘costs and benefits’.

Local Actors in Donor-Funded Rule of Law Assistance in Indonesia: Owners, Partners, Agents?

Thesis (Ph.D.)--University of Washington, 2016-06

See you in Geneva? Democracy, the Rule of Law and the WTO (Working Paper 16)

This paper is a constructivist attempt to understand a global political space where states as actors (the traditional domain of international relations theory and international law) are joined by international organizations, firms, NGOs, and others. Today we know that many supposedly private or international orders (meaning sources of order other than the central institutions of the territorial state) are engaged in the regulation of large domains of collective life in a world where the sources of power are multiple, sovereignties are overlapping, and anarchy is meaningless. The paper begins with an attempt, discussed in the first section, to sort out what the rule of law might mean in the context of the WTO, where we soon see that it can only be understood by also considering the meaning of Administrative Law. Much of the debate about rule of law depends on positivist and centralist theories of “law,” whose inadequacy for my purposes leads, in the second section, to a discussion of legal pluralism and implicit law in legal theory. These approaches offer an alternative theoretical framework that respects the role of the state while not seeing it as the only source of normativity. The third section looks directly at WTO law and dispute settlement. I tr y to show that the sources and interpretations of law in the WTO and the trading system cannot be reduced to the Dispute Settlement Body. I conclude in the fourth section with some suggestions on how a WTO rule of law could be understood as democratic.

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.

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.