|Dear Readers and Friends,
We hope you had an energizing summer before campus starts buzzing again for the new semester.
If summer felt too short to you, we are excited to have an intellectual energizer on offer: Our latest special issue is devoted to a conceptual tension that runs through many legal fields—and that our guest editors identify as a key register for European law: the relation between an individual case, doctrine or breach and a possible systemic dimension.
Across different fields of EU law, the Court of Justice of the European Union prominently resorts to the language of ‘systemic’ (or ‘general’) violations to trigger certain legal consequences. Despite the centrality and manifest political implications of such a category of ‘systemic’ violations, its exact contours, origins, and blind spots have barely been analyzed so far. Does the ‘systemic’ dimension result, for instance, from recurrent breaches, from a certain severity of breaches, from a high likelihood of such breaches, or from a threat to key ordering ideas of a given field of law? How does the qualification of certain breaches as ‘systemic’ play out in the institutional framework of the EU? Can it prove valuable conceptually beyond the European legal context?
In this Special Issue ‘The Systemic and the Particular in European Law’, our guest editors Robin Gadbled and Cecilia Rizcallah not only convincingly argue how much these categories matter and give structure to legal and political dynamics in Europe. In eight contributions, a wonderful lineup of authors shows the transversal nature and peculiar dynamics of the particular vs. systemic in different fields of European law. Many thanks to editors and authors alike for working through summer to bring this together!
Here is what you will find:
In their introduction, Robin Gadbled and Cecilia Rizcallah illustrate the burgeoning use of the category of ‘systemic’ breaches in European Law, expose the research gap surrounding it, and give an overview of possible conceptualizations and practical ramifications.
Mariolina Eliantonio explores systemic breaches of environmental law, the area of EU law that first gave rise to the concept in the CJEU’s Irish Waste case. Systemic breaches of environmental law often lead to scientifically loaded questions that need to find their place in the procedural repertoire of EU law.
Leandro Macano turns to EU criminal law and more concretely to the regime of the European Arrest Warrant (EAW) to trace a latent law of the systemic and the particular in this field and analyze its implications on relations between Member States and conflicting EU values.
Lilian Tsourdi and Cathryn Costello examine the concept of systemic fundamental rights violations in EU asylum law. Those violations challenge the principle of mutual trust among EU Member States and expose broader rule of law issues in national systems and the Common European Asylum System (CEAS). The authors find that the CEAS itself can generate systemic human rights violations, raising concerns about the EU’s commitment to fundamental rights and the rule of law in asylum matters.
Mathieu Leloup argues that the systemic criterion bears untapped potential in the case law on judicial independence under Article 19(1)(2) of the Treaty on the European Union. The Court of Justice of the European Union should limit the finding of a violation of this provision to issues that have a systemic impact on the functioning of the domestic Judiciary—a proposal that seeks to balance judicial independence with respect for Member States’ judiciary autonomy.
Luca Prete assesses how infringement proceedings under Articles 258 to 260 TFEU have dealt with ‘systemic’ breaches of EU law by the Member States’ authorities. While the Commission’s approach prioritizes systemic breaches of EU law, including widespread violations and structural deficiencies, the practice remains heterogeneous.
Robin Gadbled’s contribution explores the definition of ‘systemic’ irregularities or breaches of EU law in relation to the protection of the EU budget. Gadbled proposes to qualify as ‘system deficiencies’ when those Member States’ systems which are designed to protect EU financial interests are deficient. Imposing financial consequences in such scenarios affects the legal and constitutional relationship between the EU and its Member States.
Koen Lemmens and Sébastien Van Drooghenbroeck discuss the European Court of Human Rights’ judicial policies to prioritize remedying structural problems, especially in dealing with its large backlog of cases. For a Court whose jurisdiction has both individual and constitutional elements, this suggests a preference of a constitutional role in the Convention system.
Cecilia Rizcallah concludes the Special Issue with an analysis of the systemic equivalence test and the related presumption of equivalent protection in European Human Rights Law. While central to the managing of human rights cases in a multi-layered landscape, the systemic assessment is currently poorly conceptualized, entailing risks for the protection of fundamental rights in Europe.
We hope you find this collection as stimulating as we do—it leaves us convinced that the category of the ‘systemic’ can shape debates and jurisprudence in European Law in the years to come.
Lastly: Mark your calendars for a grand GLJ anniversary next year as we celebrate 25 years of open access to comparative, European, and international law, and 5 years of collaboration with Cambridge University Press. September 20-21, 2024 in Berlin—details to follow soon!
As always, happy reading,
Klaas Hendrik Eller
on behalf of the GLJ Editors-in-Chief