Kan EU garantera upprätthållandet av rättsstaten? : En utredning av EU:s möjligheter att skydda respekten för rättsstaten

Detta är en Uppsats för yrkesexamina på avancerad nivå från Stockholms universitet/Juridiska institutionen

Sammanfattning: The protection of the rule of law has been on the agenda in the EU during the last years because states like Poland, through legislative changes, have been dismantling the democracy and the rule of law. The legislation in Poland concerns for example, the appointment of judges, reduced retirement age for judges, and changes in the powers of the president and the minister of justice. These legislations have later on been assessed by The European Court of Justice as part of several infringement processes initiated by the EU-commission. The court has considered that these laws does not comply with the right to an independent and impartial tribunal set forth in article 19.1 TEU and article 47 in the EU-charter, which means that they are also contradictory to the values of the rule of law set up in article 2 in the TEU.  Even though the rule of law is frequently referred to in jurisprudence, there is no legal or official definition of the concept. By analyzing and examining different sources concerning the content of the rule of law, it is conceivable to find the core content of the concept. The core of the rule of law can be described by saying that it presumes that equality before the law shall be respected and decisions and judgements made by public authorities need support in legislation. Furthermore, it is of utmost importance that the right to an independent and impartial tribunal is respected and protected, which also assumes a certain degree of division of power. In order to respect the rule of law it is also important that the state respects human rights and that it is a stability of the legislation, which creates predictability. The fact that there is no legal definition of the rule of law is possibly a reason of why rule of law-issues are such complex issues to deal with. The no-definition creates space for the member states’ own interpretations, which do not always correspond with the interpretation made by the EU-institutions.  The EU-commission has been assigned the responsibility to monitor the application and interpretation of the EU-law, according to article 17.1 TEU. They have the responsibility to protect the rule of law set forth in article 2 TEU, which has been more important than ever during the last years. Besides the infringement processes, the EU-commission has several different possibilities for action against a member state that constitutes a threat to the rule of law. However, their possibilities for action are not powerful enough to contribute to the protection of the rule of law in a desirable manner, which is shown by the fact that the problem is not solved yet and that it is an ongoing dispute between the EU and the member states.

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