The Role of European Law in Addressing Global Challenges: Between De-politicization and Incrementalism

The Commission's, the ECB's, and independent regulatory authorities' powers granted during the financial crisis are increasingly being challenged in front of the CJEU. What standard of review is the Court applying to the measures resulting from such powers? As they often include complex economic assessments, it could be expected that the Court carries out only a limited review, due to the need to respect the decision-maker‘s technical discretion. Areas such as risk regulation and competition law, however, have witnessed an evolution of the space granted to technical discretion, leading to a stricter scrutiny of complex technical assessments. The paper sets out to investigate whether this is the case also in the EMU. It inquires how technical discretion is framed by the Court, on what grounds such discretion is granted to the administration and whether the Court‘s approach to complex assessment in the context of the EMU is following a similar trajectory of enhanced judicial control.

The abolition of border controls in the Schengen area is considered as a key area of European integration. This area of integration is in a dismal state. Member states reintroduced controls, first, as response to the migration crisis in 2015 and subsequently to the Covid-19 pandemic. Neither of the two grand theories of European integration – intergovernmentalism and neofunctionalism – can adequately explain the current state of the Schengen area. This article enquires into recent case law on border controls before the Court of Justice of the EU. It seeks to show that judicial disputes on border controls in the Schengen area result in a politicization of the reasons for abolishing border controls and that this shift occurs by legal incrementalism, i.e. by linking different grand narratives about the nature of internal borders in the EU to technical legal norms governing, inter alia, time limits.

Legal scholarship views the separation between law and politics as a source of legitimacy of judicial decision making (Lenaerts, 2019). This links judicialization of disputes with their de-politicization. In European studies, de-politicization has been the main narrative explaining the relative success of ‘integration through law‘ (Burley & Mattli, 1993). In light of an increased polarization trend of European politics, we have observed limits to the power of the European Court of Justice to de-politicize disputes “by the mere force of law“ (Blauberger & Martinsen, 2020). This paper investigates the question of politicization of disputes before the ECJ could be viewed as a double movement – de-politicizing them on the micro-level of individual cases and re-embedding in the EU-level political debates through an incremental approach in a line of cases in a particular domain. The question is analyzed based on the jurisprudence regarding democratic backsliding in Hungary and Poland.

The EU is often perceived as either doing too much, or not doing enough. Questions about (limits to) EU powers and the principle of conferral are central to these debates. Increasingly, the EU legislator navigates these debates through legislative proposals that combine a number of Treaty provisions and through what the European Commission suggest can be seen as ‘complementary‘ legislating, i.e. a means to strengthen existing EU legislation by adopting rules about the enforcement of EU law. This paper will focus on the recently adopted Directive 2019/1937 on the protection of persons who report breaches of Union law to map and critically examine how major shifts in EU policy may occur through incremental legal changes. In the face of growing contestation of EU law the paper asks whether strengthening EU law, and in particular its enforcement, through such means may fall short of the intended goal and rather increase backlashes to European project.

In recent years, a number of countries in Central and Eastern Europe (CEE) have issued controversial memory laws and judgements featuring nationalistic historical narratives and putting democratic standards under pressure. This signals a broader shift towards anti-liberal discourse, hate speech, the rise of far-right and populist movements and a greater interference with academic freedom. The recent memory politics in CEE and beyond has largely been driven by dystopian visions of the past, which memory laws have been certifying as legitimate and obligatory for social reproduction through school curricula, street renaming, monuments, commemoration dates and criminal sanctions against denialist and revisionist accounts. On their surface, these visions are compatible with democracy and seek to build the idealized – utopian – present and future. However, in portraying the past as exclusively dystopian, the risk of undermining democracy increases.