The Systemic and the Particular in European Law
Le 17/11/2022 : De 9h15 à 17h30
When, how and why does a breach of a particular (set of) legal standard(s) by a Member State acquire a systemic dimension in European Union Law? The use of the “systemic” qualifier and of neighbouring notions such as “structural”, “general”, “generalised” or “general and persistent” is long-established in certain fields of EU law – for instance in the field of EU environment law. It is now applied to instances of non-compliance with EU law in new settings, inter alia in the field of the Area of Freedom, Security and Justice, or in the case-law of the Court of Justice of the European Union regarding breaches of the principle of judicial independence and the right to a fair trial. As this “systemic” approach to violations of EU legal standards appears to be gaining traction, the aim of this conference is to analyse its meanings and functions when used in legal texts and by courts in EU law. Moreover, the analysis will extend to the case-law of the European Court of Human Rights and that of a selection of national courts, in so far as they use similar notions to qualify violations of legal standards.
All contributions will endeavour to identify which legal criteria allow courts and enforcers of legal standards – as well as academics, albeit differently – to establish that a specific violation says something of the system considered itself, and not only of the case at hand. Will a violation be considered to have a systemic dimension in relation to the “frequency” with which a rule will be breached (as in “recurrent practices or omissions by public authorities”); its “extent” (“widespread”); its anchorage in a legal framework (as opposed to localised practice); its importance in view of the functioning of the legal order; its severity (being a threat for the “essence” of rights); its likelihood to occur because of inadequate procedures and control mechanisms (as in “high probability of occurrence in similar types of operations, which results from a serious deficiency in the effective functioning of a management and control system”)? Other criteria or a combination of criteria may apply, which need to be tracked down.
Another point of importance is to identify the consequences attached to the decision that one or several infringements of legal standards have systemic implications. Is the function of the qualifier to indicate that a threshold has been met triggering enforcement (in particular infringement actions); affecting the scale or the nature of enforcement; or leading to other consequences, such as the suspension of EU funds? Does it allow for a link to be made between the violation of one legal standard and other fundamental legal principles, such as the values listed under article 2 TEU? The ambition of the proposed collection of articles is precisely to bring clarity on such issues by relying on case studies as well as transversal approaches.
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