Central European Journal of Comparative Law

The Saga May Continue: On the Intricate Dialogue Between the Constitutional Court of Romania and the Court of Justice of the European Union

Károly Benke — Fri, 29 Dec 2023 00:00:00 +0000

This study tracks the evolution of the jurisprudence of the Constitutional Court of Romania (CC) vis-à-vis the complex relationship between national law and European Union (EU) law. In this study, the decisions issued by the CC were identified, examined, and grouped chronologically, and based on how the Court related to EU law, its jurisprudential evolution was periodised. This relationship is reflected in the jurisprudence of the CC and of the Court of Justice of the European Union (CJEU). If this relationship was initially one of collaboration, subsequent jurisprudential tensions arose between the two courts, especially in terms of reconciling the principle of the supremacy of the Constitution with that of the priority of application of EU law. The doctrine of counter-limits, embraced by the CC, according to the German model, has a special role to play in this equation. This study brings to fore all these aspects in an exhaustive way and tries to provide a truthful picture of how the national legal order interacts with that of the EU through the lens of the jurisprudence of both, the CC and CJEU.

The Rule of Law in Croatian Criminal Justice with a Case Study on its Breach by Tackling War Profiteering and Privatisation

Marta Dragičević Prtenjača — Fri, 29 Dec 2023 00:00:00 +0000

The rule of law, as enshrined in the Croatian Constitution, establishes the highest values of the constitutional order, including the principles of constitutionality and legality. It ensures that laws and procedures in Criminal Law are well-defined and accessible to all, and provide legal certainty. The presumption of innocence safeguards the rights of the accused and ensures fair trials. The text emphasises the importance of the separation of powers and the role of the Constitutional Court in upholding constitutionality and the principle of legality as one of the main principles of (substantive) Criminal Law. Special reference is made to the constitutional amendments and legal measures taken to address criminal offences related to privatisation and ownership transformation and the Law on Exemption from the Statute of Limitations for War Profiteering and Crimes Committed in the Process of Ownership Transformation and Privatisation, which is a unique “phenomenon” ensuing from the retroactive application of the law contrary to the principle of legality, existing only in Croatian Criminal Law. This paper explores the interplay between the rule of law and Criminal Law in Croatia, highlighting the principles and legal framework that ensure justice and the protection of individual rights in the criminal justice system.

The Challenges of the “Ever Closer Union” Concept and the Protection of the Sovereignty and Constitutional Identity of EU Member States

Tanja Karakamisheva-Jovanovska — Fri, 29 Dec 2023 00:00:00 +0000

The concept of an “ever closer Union” has been central to the European project since the Treaty of Rome in 1957. Initially focused on unity among European peoples, subsequent treaties have nuanced this idea, emphasising open and citizen-centric decision-making. This paper explores the evolving dynamics within the European Union, especially regarding the marginalisation of the European Parliament, recurring financial crises, and challenges in freedom, security, and justice. Recent geopolitical events, such as the war in Ukraine, intensified migration, and terrorist attacks within the EU, have catalysed these conflicts, prompting a renewed emphasis on national sovereignty. Against this backdrop, the paper analyses the shifts in the EU’s constitutional framework, considering the Treaty of Amsterdam's addition of transparency and proximity to citizens. The Treaty of Lisbon reaffirmed the commitment to an “ever closer Union,” aligning decisions with citizen concerns. However, crises, particularly those triggered by external events, have led to a re-evaluation of these principles. The paper contends that the EU’s responses to crises have revealed tensions between supranational integration and member states’ desire to safeguard national interests. As the Union navigates these complexities, understanding the evolving role of institutions like the European Parliament becomes crucial. By examining the interplay of sovereignty, crisis response, and institutional dynamics, this paper contributes to the broader discourse on the future trajectory of the European Union.

The Relationship of the Supreme Courts of the Slovak Republic with the Court of Justice of the European Union

Andrej Karpat — Fri, 29 Dec 2023 00:00:00 +0000

The judicial authorities of the Member States of the European Union have an important duty to ensure the full effect of EU legal norms at the national level, as they are obliged to fully apply EU law and to protect the individual rights conferred by that law. This article focuses on the relationship among the highest judicial bodies of the Slovak Republic, namely the Constitutional Court, the Supreme Court, and the Supreme Administrative Court, with the Court of Justice of the European Union, which ensures the uniform interpretation and application of Union law. In this context, this article examines the extent to which the Slovak Supreme Court uses the preliminary ruling procedure, as well as its selected decisions, to consider the extent to which the requirements of Union law can be examined, resulting from the case-law of the Court of Justice in accordance with the principle of sincere cooperation enshrined in Article 4(3) of the Treaty on the European Union. It also examines the cooperation between the general courts of the Slovak Republic and the Court of Justice of the European Union in the context of the preliminary ruling procedure, and how the Slovak constitutional order meets the requirements of Union law.

The Interaction Between the Rule of Law, Fundamental Rights, and the Supremacy of EU Law

Maja Lukić Radović — Fri, 29 Dec 2023 00:00:00 +0000

The rule of law constitutes the cornerstone of the European legal order and, consequently, the primary pillar of its constitutionality. Paired with the principle of the supremacy of EU law, affirmed by the Court of Justice of the European Communities in some of its earliest and most significant decisions, it facilitated the development of the European Union both in the legal-constitutional and political senses. The introduction of fundamental rights as a core value completed the legal-constitutional framework, enabling individual rights and freedoms to flourish. As these principles and values are based on moral grounds, cultural and historical forces, and traditions that led to their conceptualisation, the debate on their implementation, reinforcement, crisis, or even backsliding has always been active. The subject of this paper is the key internal and external aspects that influence the way the rule of law, fundamental rights, and the supremacy of EU law are understood, emphasising that their internal and external components are equally important for their universal implementation as legal and political concepts.

The “International” Rule of Law in the Polish Administrative Court’s Jurisprudence

Bartosz Majchrzak — Fri, 29 Dec 2023 00:00:00 +0000

This study analyses the jurisprudence of Polish administrative courts, referring to the concept of the “international” rule of law, and thus, to the concept interpreted by the courts based on sources of law binding on Poland adopted at the supranational level (international agreements and law created by the European Union). The following jurisprudence issues emerge: 1) international and EU legal bases for the protection of the rule of law and the resulting meaning of this concept; 2) international versus national approach to the rule of law; 3) the rule of law – principle or value; 4) normative sources (national and supranational) of the general obligation of administrative courts to implement the international rule of law; 5) the order to implement it as an element determining the jurisdiction of administrative courts and the pattern of control exercised by these courts. In this context, it was stated, inter alia, that according to the jurisprudence of administrative courts, the ‘international’ rule of law primarily implies effective judicial protection of individual rights, guaranteed by independent courts, impartial and irremovable judges who have been duly appointed.

Impact of the DSA Regulation on Very Large Online Platforms

Dominika Moravcová — Fri, 29 Dec 2023 00:00:00 +0000

The activities of large online platforms based in third countries in the internal market pose potential risks to EU users. The EU aims to ensure a safe online environment not only for consumers, but also for all users active in this ecosystem. Increased security, legal certainty, consumer protection, transparency, and several other partial aims have led to the adoption of the Digital Services Package, which includes the so-called DSA Regulation. The present article aims to identify the key impacts of the new regulation on very large online platforms that are part of the daily routine of EU citizens and to highlight the benefits it brings to regular users. There are many changes brought about by the new legislation; therefore, we decided to focus only on those that we consider the most tangible, both from the perspective of the everyday user and for the platforms per se.

Supremacy and Primacy: Hierarchical Relationships Between the Polish and EU Legal Systems and Their Guardians

Mariusz Muszyński — Fri, 29 Dec 2023 00:00:00 +0000

European Union (EU) law and Polish national law are two separate legal systems. However, they function together within the framework of the Law of the Republic of Poland, in line with the meaning of Article 8(1) of the Constitution and have legal effects within the territory of the Polish State. Also, their norms are directed at the same addresses and operate within the same Polish territory. This results in the possibility of collision, both at the levels of the binding force (dispute over the hierarchy of provisions) and the application of law (dispute over the primacy of application). Each system has instruments aimed at solving collisions. Each also has an organ (organs) guarding the system. The activity of the said organ is to guarantee internal coherence and the proper position in the event of a collision with the other system. This analysis presents relations between those systems at the normative level and among the guardians of those systems. The first case concerns the definition and explanation of the substance of legal instruments solving collisions at the level of the Constitution and EU Treaties, and the indication of existing similarities and disparities, and as a result, the indication of the spheres of potential collision. In the second context, the text discusses the legal position of the guardians of the systems, that is, in the case of national law – the position of the Constitutional Tribunal, the Supreme Court, and administrative courts, and in the case of EU law – the position of the Court of Justice of the EU (CJEU). It also indicates the field of mutual convergence and disparity, and defines the applied legal tools. The analysis embraces constitutional identity as a boundary for national concessions to the primacy of EU law.

Dialogue between the Slovenian Highest Courts and the Court of Justice of the European Union

Marko Novak — Fri, 29 Dec 2023 00:00:00 +0000

The relationship between European Union (EU) law and national Slovenian law progressed across three different stages starting from the beginning of this century to date, as discussed by EU and Slovenian legal theorists. The first one, just before Slovenia’s entry into the EU, considered the EU an international organisation and EU law a type of public international law. It was dismissed even before Slovenia joined the EU, with an amendment to the Constitution, and was succeeded by the second, supranationalist, view that required maximum restraint by national courts while dealing with EU issues. Finally, about a decade ago, the third pluralist view of EU law vis-à-vis national law emerged, calling the particularly highest national courts to enter a more critical dialogue with the Court of Justice of the European Union (CJEU). Although Slovenian theorists have been actively discussing the relationship between EU and national law before and immediately after Slovenia joined the EU, it seems that practising lawyers and judges needed time to adapt to the new law. Finally, in 2009, the first reference for a preliminary ruling was made by Slovenian courts. Soon after, the Slovenian Supreme Court made its first preliminary ruling reference and, in nearly 20 years since, proved itself to be the most frequent interlocutor with the CJEU from Slovenia. It regularly cites CJEU cases in its case laws, and demands that lower courts follow them wherever appropriate. From the highest national courts in Slovenia, the Constitutional Court joined the dialogue with the CJEU last. It has made four preliminary ruling references to the CJEU and demonstrated restraint vis-à-vis reviewing legal issues touching upon EU law. The legal culture (including public opinion) in Slovenia has predominantly been pro-EU. This applies to the internal legal culture, namely lawyers who support liberal democratic values such as the rule of law, human rights, and democracy. As long as the EU remains dedicated to these values, in such an environment, the highest Slovenian courts are not expected to show a bolder attitude vis-à-vis CJEU case law

The European Parliament Against the Background of the Rule of Law and the Standards of a Parliamentary System: Selected Issues

Grzegorz Pastuszko — Fri, 29 Dec 2023 00:00:00 +0000

The aim of this study is to show the legal status and mechanism of action of the European Parliament against the background of classical standards of the rule of law in a democratic system. This study shows the extent of the deviation of the European Parliament from these standards and highlights its special features by using historical-, theoretical-, and dogmatic-legal methods. This helps to understand what parliamentarism is built into the present concept of the rule of law, and what distinguishes it from the classically understood assumptions of a parliamentary system. Specifically, this study comprises three key issues: the nature of the subject that equips the Parliament with democratic legitimacy, the way it is situated in the mechanism of power or, finally, the extent to which it is bound by existing legal norms. This research perspective is, of course, limited in nature and deals with selected issues. The crux of the study makes the reader aware that at the level of the European Union a new type of parliament and, consequently, a new type of parliamentarism has developed, and the rule of law applicable here is clearly different from the analogous principle found in traditional states.

Judicial Reform in Serbia in Light of “the Venetian Concept” of the Rule of Law

Vladan Petrov — Fri, 29 Dec 2023 00:00:00 +0000

This paper analyses the influence of the standards of the Venice Commission in the area of the rule of law in the course of Serbian judicial reforms. The author first “sketches” the constitutional “path” of the idea of judicial independence and the rule of law in Serbia. He derives an “extract” from the “jurisprudence” of the Venice Commission in the area of the rule of law, which refers to the standards of an independent judiciary summarised in a document called the Rule of Law Checklist. The normative framework, which has been set by the constitutional amendments from 2022 and judicial laws from 2023, is a positive step on the way to building a national rule of law that will be compatible with international standards. In the coming period, Serbia will face numerous external and internal challenges. The Commission points to the relatively weak material position of judges, the lack of interest of young lawyers in applying for judicial positions, the large gap between retiring judges and young people. The Commission particularly emphasises the importance of building a legal culture. The author considers that segment essential for the success of the process that has begun. The author underlines that the international standards of the rule of law must not have absolute supremacy vis-à-vis the real needs of their adaptation to the national political, legal and social environment of the country in question. It is necessary to strive for a dynamic balance that will, in the long term, provide the conditions for the rule of law of national content that confirms the generally accepted civilisational values and achievements of the international legal community. Every step in that process must be carefully thought out and undertaken

The Rule of Law and Academic Freedom Between Personal Liberty and Public Order

Vanja-Ivan Savić — Fri, 29 Dec 2023 00:00:00 +0000

In this study, the author discusses the fundamental questions of academic freedom in terms of personal and institutional liberty and the developments that have led to the current position of academic freedom in the body of constitutional law. Academic honesty, integrity, and curiosity are at the core of this concept, which has to be protected by the state by all means possible and regulations. Simultaneously, the author outs academic freedom in the broader framework of the rule of law and explains that, as with every right, these liberties require certain responsibilities. This study also analyses situations in which academic freedom may conflict with other prevailing basic human rights, emphasising the necessity to have dialogues when academic freedom and public order collide. In such cases, balancing and proportionality are possible solutions to resolve the issue. However, this study is not a case law study and instead provides theoretical guidelines to those who seek to find ground orientation in the huge field of academic work

Human Rights Committees Recommendations and their Position Within Slovak Legal Order

Katarína Šmigová — Fri, 29 Dec 2023 00:00:00 +0000

This chapter presents and analyses the position of the Slovak Republic in relation to the decisions of various human rights committees established at the universal level and their processing within the Slovak legal framework. It explains relevant clauses of the Slovak Constitution and compares several different attitudes of selected countries and their particular views on the committees, namely, decisions of the Spanish Supreme Court and the Slovak Supreme and Constitutional Courts.

The Relationship of the Croatian Constitutional Court and Supreme Court to the Court of Justice of the European Union in National Case Law

Lucija Sokanović — Fri, 29 Dec 2023 00:00:00 +0000

After a short introduction to Croatia’s accession to the EU, this paper deals with the obligations for national courts arising from EU membership in a historical overview and the current state. Furthermore, the relationship between the Croatian Constitutional Court, the Croatian Supreme Court, and the Court of Justice of the European Union in national case law is analysed. In addition, the hierarchy of national and EU laws is questioned, as is the notion of constitutional identity. The relationship between the national constitutional courts of the EU member states, the national Supreme Court, and the CJEU is not conceived as a relation of subordination, but of communication and dialogue, the ultimate goal of which is the harmonisation of the acquis of the EU member states and legal security for all its citizens, while at the same time respecting the specificities of each member state.

Reform of the Romanian Judiciary and the Cooperation and Verification Mechanism – Considering the Practice of the Romanian Constitutional Court

Emőd Veress — Fri, 29 Dec 2023 00:00:00 +0000

Romania, an EU Member State since 1 January 2007 was subject to a Mechanism for Cooperation and Verification following the rules set forth by the European Commission’s Decision 2006/928/EC. This specific rule of law mechanism covered the functioning of the judiciary and the fight against corruption. Any method by which a Member State is monitored based on vague, subjective, and imprecisely measurable criteria is likely to cause political friction and scientific disputes. In the case of Romanian justice reform, there were more than simply disputes. The Court of Justice of the European Union (CJEU) and Romanian Constitutional Court interpreted the situation differently. Beginning from an element of justice reform in Romania – the establishment of a special prosecutorial section to investigate crimes committed by judges and prosecutors – this study proposes to analyse these differences from a strictly scientific viewpoint, while raising some fundamental issues of European integration: the transfer of sovereignty, the concept of the rule of law, constitutional identity, and the competition of the Union’s regulatory power with that of Member States, as reflected by this fundamental disagreement between the CJEU and the Constitutional Court of Romania.

Book Review: An Encyclopaedia of Diplomacy. A Hungarian Handbook of International Relations

Nóra Béres — Fri, 29 Dec 2023 00:00:00 +0000

The latest edition of the Lexicon of Diplomacy, An Encyclopaedia of Diplomacy. A Hungarian Handbook of International Relations has been published in English for the first time this year (2023) with the support of the Ministry of Foreign Affairs and Trade of Hungary. It is a unique collection of a wide range of basic concepts on diplomatic relations compiled by renowned Hungarian diplomats. This review offers a glimpse into the creation of the book and the audiences it can benefit.