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Article

Steve Peers

Abolition of internal border controls—with corresponding harmonization of external border controls and other relevant policies (short-term visas, freedom to travel, control of irregular migration)—has become a cornerstone of the European Union’s (EU) overall integration project, being linked also to harmonisation of asylum policy, external relations issues, and policing and criminal law cooperation, including the ongoing development and extension of justice and home affairs databases such as the Schengen Information System and the Visa Information System. However, the Schengen process has been frequently contested over the past decade, first of all in the context of the Arab Spring in 2011 and subsequently due to the perceived migration crisis of 2015–2016. The EU has responded with a combination of further integration (such as more funding, more harmonization, and more power for EU bodies) along with deference to Member States regarding re-imposing border checks in order to stop flows of asylum-seekers. It may be questioned how well this strategy will work in the long term, but in the medium term it has succeeded in keeping the Schengen policy afloat in this modified form. The research in this field has concentrated on whether the Schengen system has accomplished its objectives and the possible tension between the system and human rights and data protection standards, as well as the overlapping tensions between the attempts to develop a uniform policy at EU level and the divergences in implementation and policy priorities at national level, particularly at times of crisis or intense political debate.

Article

Judicial control over the bureaucracy is a means to defend the rule of law and important principles of democratic governance. It refers to the power of the courts to consider whether the actions of public authorities respect the limits prescribed by law. Regimes of judicial control vary in legal and administrative systems. Two major traditions can be mainly distinguished. The first characterizes continental Europe. It assigns judicial review to specialized administrative courts and involves a special branch of law, that is, administrative law. The second relies on ordinary courts and characterizes the Anglo-American system of common law. The two traditions also differ regarding the role of the courts and particularly their possibility to shape rules (common law tradition) or to apply rules (continental tradition). The expansion of state activities, including economic and social regulation and welfare service provision, has blurred the old politics–administration distinction since more and more decisions are delegated by parliaments to the administration, endowing it with wide discretionary powers. These developments have added a new meaning to the implementation of the rule of law. When the content of decisions is bound by a legal rule, legal compliance is more straightforward than when there is a margin of appreciation and choice. Circumscribing administrative discretion passes first and foremost from regulating the process of decision-making. Procedural standards have indeed been an area of primary concern for courts. Increasingly, nevertheless, substantive aspects of the administrative decision-making process and even service provision come under judicial scrutiny. Its extent inevitably differs from one legal system to another. The intensity of judicial review and its impact on (a) administrative operation and (b) policy decisions raise critical questions: how is it possible to achieve a balance between managerial flexibility, efficiency, and responsibility on the one hand and legal accountability on the other? To what extent may the courts substitute their own judgment for that of policymakers and the administrative or expert opinion underlying the decision under examination? How far do they go in scrutinizing policymaking and implementation? Judicial control involves constraining as well as constructive effects on the administration. It may contribute to an institution-building process (e.g., strengthening of Weberian-type features, increasing formalization, etc.) and to the agenda-building process, and it may influence policymaking. In certain contexts, courts even tend to become political actors. The reverse side is that they may step into matters of management and policymaking for which they are not prepared or institutionally responsible. This points to potential tensions between the administration (the executive) and the judiciary but also underlines the limitations of judicial control. Delicate issues regarding the separation of powers may emerge. Furthermore, cost, delays, the degree of administrative compliance with judicial decisions, and the ability of courts to integrate into their reasoning issues of efficiency and effectiveness constitute growing challenges to judicial control.

Article

Jacques Ziller

The expression “the Lisbon Treaty” (LT) is a shortcut to the treaties upon which the European Union (EU) has been based since December 1, 2009. During the “reflection period” that lasted from June 2005 to December 2006 three options were available: remaining with the European treaties as amended by the Nice Treaty; starting new negotiations in order to adopt some changes deemed technically necessary; or trying to get “the substance” of the Constitutional Treaty (CT) of 2004 approved in the form a new treaty. Most member states and the EU institutions were in favor of the third option. The negotiations that led to the adoption of the LT in December 2007 departed from the usual treaty amendment scenarios. The content of the LT is to a large extent similar to that of the CT, as most of the novel provisions of that treaty have been taken over as they were written in the CT and introduced in the existing European Community (EC) and EU treaties. Apart from a few institutional innovations such as the Permanent President of the European Council and the new voting system in the Council, most innovations with regard to the European communities are to be found in the details. The ratification process of the LT was difficult, as it was slowed down by the necessity to hold two referenda in Ireland, and to overcome the resistance of the President of the Czech Republic, an overt Euroskeptic. The negotiations of 2007–2009 shed some light on the importance in EU policy-making and especially in treaty negotiations of the epistemic community of legal experts and, more precisely, of experts in EU law. Events in the years 2010 and 2011 led to minor treaty amendments, shaping the present content of what is usually referred to as the LT. Whether Brexit and the EP elections of 2019 will lead to important changes remains unknown.