Von Bogdandy Research Articles

The Rule of Law Conditionality Under Regulation No 2092/2020\u2014Is it all About the Money?

Some say that the Union is built by moving from crisis to crisis. Crises in the last decade which affected the Union and its citizens concerned, inter alia, public finance (the financial crisis, 2008), migration (2014), public health (the COVID-19 pandemic, 2020) and the rule of law crisis (2018). This paper focus on the latter. It has been noted that some Member States have been happy to receive the benefits of EU membership, specifically the financial ones, while their commitment to European values, including the rule of law (Article 2 TEU), has been lacking. Since many instruments applied by EU institutions to improve this situation have proved rather insufficient, halting transfers of EU funds to these recalcitrant Member States has been touted as the way that might solve this crisis. Accordingly, a draft regulation was put on the table that authorised the EU institutions to suspend EU funds if a Member State is found to be in breach of the rule of law. This draft aimed to make the transfer of EU funds to the Member States conditional upon their continuous respect for the rule of law (and therefore became known as ‘the rule of law conditionality’). This paper comments on this draft as first proposed by the Commission in 2018 (Proposal for a regulation of the European Parliament and of the Council on the protection of the Union budget in the event of generalized gaps in the rule of law in the Member States [COM (2018) 324 final).], amended in 2019 by the European Parliament [European Parliament legislative resolution of 4 April 2019 on the proposal for a regulation of the European Parliament and of the Council on the protection of the Union's budget in case of generalised deficiencies as regards the rule of law in the Member States (COM(2018)0324–C8-0178/2018–2018/0136(COD)); https://www.europarl.europa.eu/RegData/seance_pleniere/textes_adoptes/provisoire/2019/04-04/0349/P8_TA-PROV(2019)0349_EN.pdf. A draft version of these provisions was presented in von Bogdandy and Łacny (Suspension of EU funds for breaching the rule of law - µ a dose of tough love needed? European Policy Analysis 2020, No 2, p. 1–15, https://sieps.se/en/publications/2020/suspension-of-eu-funds/, 2020).], and finally adopted by the European Parliament and the Council as Regulation (EU, Euratom) 2020/2092 of 16 December 2020 on a general regime of conditionality for the protection of the Union budget [Hungary and Poland voted against it and it is expected that its validity will be challenged before the CJEU via an action for annulment (Article 263 TFEU).] (henceforth called ‘Regulation 2020/2092′). This Regulation, containing 29 recitals in the preamble and 10 articles, entered into force on 1 January 2021 (Article 10 Regulation 2020/2092.). In the conclusions of the European Council meeting in December 2020 it was however accepted that it will be applied only in relation to budgetary commitments starting under the new Multiannual Financial Framework (MFF) 2021–2027, including Next Generation EU [Conclusions of the European Council meeting, 10 and 11 December 2020, para I (2) (k) https://www.consilium.europa.eu/media/47296/1011-12-20-euco-conclusions-en.pdf.]. This paper provides the legal characteristics of rule of law conditionality established under Regulation 2020/2092 and aims to determine whether financial incentives can restore compliance with the rule of law in Member States. Or in other words, is it all about the money?

German Legal Hegemony?

Time and again, the German discourse on European legal matters has facilitated the charge that it attempts to create a German-dominated space, even after World War II. Armin von Bogdandy and Verfassungsblog have asked a number of eminent scholars and practitioners of constitutional and EU law in Europe and beyond to share their thoughts on whether or not German legal hegemony is, in fact, a matter of concern in contemporary EU law, and, if so, what could and should be done about it. The symposium has been published first and can still be accessed on the Verfassungsblog (https://verfassungsblog.de/category/debates/german-legal-hegemony-debates/).

The Perils of Passivity in the Rule of Law Crisis: A Response to von Bogdandy

The Perils of Passivity in the Rule of Law Crisis: A Response to von Bogdandy

From a Community of Law to a Union of Values. A. von Bogdandy and P. Sonnevend (eds.), Constitutional Crisis in the European Constitutional Area - Theory, Law and Politics in Hungary and Romania (Hart Publishing 2015) C. Closa and D. Kochenov (eds.), Reinforcing Rule of Law Oversight in the European Union (Cambridge University Press 2016) A. Jakab and D. Kochenov

From a Community of Law to a Union of Values - A. von Bogdandy and P. Sonnevend (eds.), Constitutional Crisis in the European Constitutional Area - Theory, Law and Politics in Hungary and Romania (Hart Publishing 2015) - C. Closa and D. Kochenov (eds.), Reinforcing Rule of Law Oversight in the European Union (Cambridge University Press 2016) - A. Jakab and D. Kochenov (eds.), The Enforcement of EU Law and Values - Ensuring Member States’ Compliance (Oxford University Press 2017) - Volume 13 Issue 4

Book Review: Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics in Hungary and Romania, edited by Armin von Bogdandy and Pál Sonnevend. (Oxford: Hart Publi

Book Review: <i>Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics in Hungary and Romania</i>, edited by Armin von Bogdandy and Pál Sonnevend. (Oxford: Hart Publi

In Nobody's Name: A Checks and Balances Approach to International Judicial Independence

In Whose Name?, Armin von Bogdandy and Ingo Venzke have singled out one of the most pressing challenges in current debates regarding international courts: the source of their legitimacy. Given the current structure and limits of international law, instead of expecting international courts to speak in the name of peoples and citizens, this paper contends that international courts should speak in nobody’s name and shifts the focus to judicial independence as a necessary (but not sufficient) condition for the legitimacy of international adjudication. It is argued that judicial independence cannot be understood in terms of the courts’ insularity and appropriate constraining mechanisms ought to be put in place. At first, we reflect upon the differences between domestic and international courts in framing a notion of judicial independence adequate for the international sphere. Thereafter, we flesh out the notion of judicial interdependence and map the actors that might provide appropriate constraints following a checks and balance approach to the institutional design of international courts.

Armin von Bogdandy and Pál Sonnevend (eds.): Constitutional Crisis in the European Constitutional Area. Theory, Law and Politics in Hungary and Romania

Knižní recenze / Book review.

International ‘Dialogue’ among Courts in Light of Democracy

In our globalized world, courts have come to adopt roles that differ significantly from those typically held in the past. Some have pointed out that courts also create a kind of ‘network’ on the international level. The word ‘network’ here refers to the interaction among courts inter alia mutual in reference to their precedents. Some call this international ‘dialogue’. However, it remains unclear what the role of this network of courts or international dialogue among courts is in our globalized legal system. Furthermore, we cannot overlook the fact that in the United States strong criticism has been levied against reference to foreign or international law and precedents in light of democracy. This teaches us we must take democratic legitimacy into account. For that reason, in this essay we examine the functions and limits of international dialogue among courts mainly in light of democracy. In addition, we discuss the dialogue between not only domestic courts but also international courts. Prof. von Bogdandy insists international courts exercise a kind of public authority and this requires a certain democratic legitimization. We submit the importance of transparency, public participants and systematic interpretation of international law. Here we also try to justify the reference to foreign or international judgments by domestic courts. To that end, we introduce several ways/methods of justification, but find in Condorcet’s Jury Theorem the greatest potential. This theorem offers the possibility of both justifying and limiting the transnational references to judgments by not only domestic courts but also international ones.

On Policing Article 2 TEU Compliance Reverse Solange and Systemic Infringements Analyzed

At this stage of development of EU integration the problems emanating from the ‘crisis of values’ and the poor enforceability of Article 2 TEU have come to the fore in Hungary and elsewhere. The Union is apparently powerless to ensure that it is indeed composed of democratic states based on the rule of law as the Treaties state. The crucial issue for the successful development of EU law in this context is to find an efficient and expedient way to remedy this situation. While a number of scholarly proposals of how to do this have been tabled (besides the Commission’s own ‘pre-Article 7 procedure’ communication), two among them stand out. This paper provides a systemic critical analysis of the two, most detailed and potentially far-reaching scholarly proposals currently available. The focus is on the ‘Reverse Solange’ proposal by Armin von Bogdandy et al. and on the ‘systemic infringement’ proposal by Kim Lane Scheppele. While both proposals for dealing with the crisis of the Rule of Law are of importance, as they provide valuable starting points in thinking about what to do at this troubling moment of EU integration history, neither of the two is likely to solve the crisis. Placing them in the context of numerous other options which are currently discussed is of key importance for solving the Union’s problems and bringing Hungary and eventual other deviant Member States back on track now and also in the future.

Book Review: International Judicial Lawmaking: On Public Authority and Democratic Legitimation in Global Governance by Armin von Bogdandy and Ingo Venzke

"Book review: International Judicial Lawmaking: On Public Authority and Democratic Legitimation in Global Governance. By Armin von Bogdandy and Ingo Venzke. Heidelberg, Springer, 2012. 509 pp. £85.50 (hardcover)." published on 01 Jan 2013 by Edward Elgar Publishing Ltd.

Von Bogdandy’s ‘Reverse Solange’: Some Criticism of an Important Proposal

This brief contribution appeared in the Verfassungsblog in February 2012 in reaction to an important article published by Armin von Bogdandy et al. in 49 CMLRev., 2012, 489. While the approach taken by von Bogdandy is very fascinating and innovative, it can also be criticized on a number of grounds, including, inter alia, the presumption that Solange was good enough to be worth copying, that an approach designed for giving up power is likely to be effective in the context of acquiring new jurisdiction, and that abstract human rights protection at the most general level will actually change the situation where concrete rights are violated on the ground. The rich article by von Bogdandy et al. is an important starting point for a fundamental debate on the scope of the EU’s human rights jurisdiction which is long overdue and is becoming particularly acute in the light of the recent case-law of the CJEU, where the Court is using EU citizenship rights to claim jurisdiction and activate EU law in the fields previously deemed to be outwith EU’s reach.

Book Review: Principles of European Constitutional Law, edited by Armin von Bogdandy and Jürgen Bast. (Oxford and München: Hart Publishing and Verlag CH Beck, 2010)

Book Review: <i>Principles of European Constitutional Law</i>, edited by Armin von Bogdandy and Jürgen Bast. (Oxford and München: Hart Publishing and Verlag CH Beck, 2010)

Armin von Bogdandy and Jurgen Bast (eds). Principles of European Constitutional Law

After the entry into force of the Lisbon treaty on 1 December 2010, and right in the middle of the European response to the recent financial and economic crisis, the review of the second edition of Armin von Bogdandy's and Jurgen Bast's Principles of European Constitutional Law appears to be a timely and anything but anachronistic or cynical enterprise. The European effort to combat the financial crisis and set up a joint framework to regulate the banking sector shows the constant need for research on the �founding principles of the polity� and the sources of its legitimacy (at 1). And indeed, the second edition of the book, too, provides a thorough examination of the main themes underlying a more closely connected Europe. After the largely positive reviews of the first edition, 1 there is still some room for critical reflection, evaluation, and praise of the second. The editors have not given up on the idea of marketing the book as a textbook (at 3, 5); they remark that the volume is not intended as an introduction to the topic, but rather a reflection on the theoretical and doctrinal fundamentals within the current research (at 6). The book certainly lives up to this aim, although the editors� characterization of it as a textbook needs to be revisited. The tome numbers 806 pages, and thus it is suitable as selective further reading for students, but not as an introductory book on the topic. The authors have taken previous critique seriously and significantly revised and restructured the book (at 5). Yet, its overall approach to the topic of European constitutional law remains unchanged. The editors, in particular von Bogdandy in his first chapter on �Founding Principles�, present the idea of a European constitutional law from the theoretical perspective of �doctrinal� constructivism, and the �

Lawmaking by the International Court of Justice—Factors of Success

The process of norm evolution and development in international law has been highly debated in recent international law and international relations scholarship. However, the debate focuses primarily on states or non-state actors as the agents responsible for shaping international law. In contrast, the role of the judiciary is often neglected in the debate. It is an open secret, though, that courts are not merely Montesquieu'sbouche de la loi, impartial arbiters, who apply and interpret exogenous norms. Armin von Bogdandy and Ingo Venzke have already pointed out that decisions for concrete cases can hardly be derived from abstract legal concepts by the mere exercise of logical deduction. Instead, the application of legal provisions often involves the development of the applied norm itself. This not only applies in the domestic setting, but is also valid in the international arena. This contribution will deal specifically with lawmaking by the International Court of Justice (ICJ).

The Indelible Science of Law

This short essay, which is essentially a comment on a recent article by Armin von Bogdandy (see footnote 5), discusses why the understanding of Public law qua legal science persists in mainland Europe. The essay argues that this is to be welcomed.

On the past and future of European constitutional scholarship

This comment takes issue with three claims made by Armin von Bogdandy about the role of “doctrinal constructivism” as it relates to the European public law tradition. First, the rise of constitutional law as a subdiscipline of law is not plausibly explained by the adoption of a conceptually focused positivist method. Its successful institutionalization within the law faculties has depended, first and foremost, on the establishment of a relatively stable constitutional settlement. The nature of that settlement, rather than the virtues intrinsic to any particular methodology, is the most influential factor in determining what kind of methodology becomes dominant. Second, it is probably misleading to characterize mainstream contemporary European legal scholarship as doctrinal constructivism. If the varieties of legal scholarship that count as mainstream in Europe today have a common core, it consists of a rejection of the reductivism that has classified law and legal scholarship as either formal/conceptual, moral, or empirical/factual. European legal scholarship seeks, for the most part, to integrate the formal, empirical, and moral dimensions of the law into a distinctively legal point of view. In that sense, it has always been-even in Germany-far more open to interdisciplinary and theoretical work than von Bogdandy's account suggests. Third, while he correctly describes an interesting and deep difference between contemporary European and American cultures of legal scholarship and teaching-a difference that is apparent to anyone who has experienced both-von Bogdandy has overlooked the salutary effect of American elite law school culture on European scholarship. It has encouraged European scholars to overcome the residual habits of a conceptually focused positivist complacency and more widely reembrace the study of law as a theoretically ambitious, internally multidisciplinary exercise.

Preface: The role of constitutional scholarship in comparative perspective: An exchange among Armin von Bogdandy, Robert Post, Mattias Kumm, and Alexander Somek

Preface: The role of constitutional scholarship in comparative perspective: An exchange among Armin von Bogdandy, Robert Post, Mattias Kumm, and Alexander Somek

The Enforcement Authority of International Institutions

One of the most striking features of international institutional law that emerges from the several cases studies collected in this issue is that enforcement authority is now vested in international institutions alongside the more familiar types of public authority almost as a matter of course. Enforcement of international law by international institutions needs to be distinguished from other closely related concepts of public authority that are in turn the subject of closer studies collected in this issues. As discussed by von Bogdandy, Dann and Goldmann, international institutions often dispose of an implementation authority which in turn is subject to a branch of international institutional law. The responsibilities and indeed the authority of international institutions do not stop at the mere implementation of their legal base. However, enforcement involves a categorically different exercise of public authority. It concerns the interaction with another subject of law. Insofar as enforcement essentially empowers an international institution to confront States it deeply interferes with the sovereign's conduct, and its very existence may seem counterintuitive.

Book Review: Principles of European Constitutional Law, edited by Armin von Bogdandy and Jürgen Bast. (Oxford: Hart Publishing, 2006)

Book Review: <i>Principles of European Constitutional Law</i>, edited by Armin von Bogdandy and Jürgen Bast. (Oxford: Hart Publishing, 2006)

Global Administrative Law: Preface

The essays collected in this Issue were discussed during a seminar on Global Administrative Law, held on June 10-11, 2005 in Viterbo, at the Political Science Faculty of Tuscia University. These studies have been carried out within the research project on Lo spazio giuridico globale headed by Sabino Cassese and financed by the Ministere dell'istruzione, dell'UniversitA e della ricerca and the research units set up by the University of Rome La Sapienza, the University of Siena, the University Tuscia, Viterbo, the University of Urbino Carlo Bo, and by the Istituto di ricerche sulla pubblica amministrazione (IRPA), which contributed to organise the seminar. The contributions were introduced by senior discussants: those of Martina Conticelli and Luisa Perrotti by Giacinto della Cananea (Cosmos and taxis: the role of governance and networks of global organizations), those of Chiara Martini and Mario Savino by Bernardo G. Mattarella (Beyond multilevelism: member States' participation in international organizations); those of Maurizia De Bellis and Hilde Caroli Casavola by Marco D'Alberti (Globalizing standards: overlaps and coexistence); those of Alessandra Battaglia, Marta D'Auria and Maria Rita Circi, by Stefano Battini (Global limits upon national regulators: input and mediation by supranational and non-State actors). Beside the mentioned scholars, the following experts took part in the discussion: Jean-Bernard Auby, Francesca Bignami, Sabino Cassese, Edoardo Chili, Mario P. Chili, Maria Rosaria Ferrarese, Benedict Kingsbury, Nico Krisch, Giulio Napolitano, Luis Ortega, Nicoletta Rangone, Aldo Sandulli, Richard B. Stewart, Luisa Torchia, Giulio Vesperini, and Armin von Bogdandy. This Special Issue does not report the opinions of all those who have intervened: however, they have been taken into account by the authors in the final draft of the proceedings. The Italian version of all the essays collected is published in 'Diritto e amministrazioni nello spazio giuridico globale', edited by S. Cassese and M. Conticelli, in Quaderni della Rivista trimestrale di diritto pubblico, Milano, 2006. Copyright © 2006 The Berkeley Electronic Press. All rights reserved.