The Rule of Law Crisis in Europe – Historical and Procedural Aspects. Online conference 28-29 September 2021

The project Judges Assessing he Independence of Judges. Historical Foundations and Practical Procedures in Facing the Threats against the Rule of Law in Europe runs at the Faculty of Law, Lund University, Sweden, 2020-2022. Members of the research group are professor Xavier Groussot (EU law), associate professor Martin Sunnqvist (legal history) and assistant professor Lotta Maunsbach (procedural law).

Background to the project

Impartial and independent courts are cornerstones of the success of the European project. The recent renaissance of ‘illiberal states’, to use the words of Viktor Orbán in 2014, jeopardizes the application of the rule of law and risk destroying the foundations of the EU legal order. During 2018, the ECJ has developed two new lines of case law: On the one hand, the ECJ has made itself competent to rule on matters regarding the independence of the judiciary, which used to be part of the pure internal competence of the Member States. On the other hand, the ECJ has empowered national courts to realize a ‘rule of law’ check of other Member States, by assessing the independence and impartiality of the issuing judicial authorities in the context of the arrest warrant – a new task for courts of first instance.

Aim of the project

We aim at analyzing this recent evolution using a European, historical and procedural perspective. We combine a historic analysis of the development of the rule of law and similar but not identical concepts Rechtsstaat and état de droit with an analysis of the roles of the EU institutions and the procedural aspects of of a ‘fair trial’ and the mutual trust (and distrust) between courts and judiciaries in different member states. This will be a fruitful way of getting a better understanding of the strengths and weaknesses in the protection of the independence and impartiality of the judiciary in Europe.

In the two-day online conference 28-29 September 2021, we wish to discuss historical and procedural aspects relevant to our project. How do we define the ‘rule of law’ and the ‘Rechtsstaat’ that we are discussing? What is the origin of these concepts? What approaches can courts use in dealing procedurally with a rule of law crisis in another country?

The project is financed by Riksbankens Jubileumsfond and administered by the Faculty of Law, Lund University.

Programme

(With reservation for changes.)

Tuesday 28 September 2021:
I. Rule of law – the origins and the implementation of the thought that the ruler is bound by the laws
Swedish time (CEST — Central European Summer Time)

  • 14:30 Introduction
  • 14:40 Atria Larson (Saint Louis University): Liberty and the Rule of Law in the Medieval Age
  • 15:20 Marie-France Fortin (University of Ottawa): The King Can Do No Wrong – the Evolution of the Rule of Law from the Late Middle Ages up to the 21st Century
  • 16:00 – 16:10 Pause
  • 16:10 Raffaella Bianchi Riva (University of Milan): Independence of Advocates as a Requirement for Independence of Judges
  • 16:50 Martin Sunnqvist (Lund University): The Rechtsstaat in a Material and a Formal Sense
  • 17:30 – 17:40 Pause
  • 17:40 William Phelan (Trinity College, Dublin): Robert Lecourt and the Development of the Basic Principles of EU Legal Order
  • 18:20 Concluding discussion
  • 19:00 End

Wednesday 29 September 2021:
II. Procedure – how does a court assess whether another state does not adhere to the principle of the rule of law?
Swedish time (CEST — Central European Summer Time)

  • 8:30 Introduction
  • 8:40 Petra Bárd (Central European University/European University Institute): How to Deal with the LM Test?
  • 9:20 Birgit Aasa (Copenhagen university): Mutual Trust and the Rule of Law
  • 10:00 – 10:10 Pause
  • 10:10 Vincent Glerum (Rechtbank Amsterdam/University of Groningen): The Case Law of Dutch Courts Relating to the EAW and Poland
  • 10:50 Lotta Maunsbach (Lund University): Procedural Aspects on Impartial and Independent Judging. How Can a Court Decide Whether Another Court and its Judges are Impartial and Independent?
  • 11:30 Concluding discussion
  • 12:00 – 13:00 Pause

III. The current status in Hungary and Poland

  • 13:00 Viktor Vadász (Hungarian Judge, member of the National Judicial Council): The Current Situation in Hungary
  • 13:30 Dorota Zabludowska (Polish Judge, board member of the Polish Judges Association Iustitia): The Current Situation in Poland
  • 14:00 Questions and discussion

IV. How can the concept ‘rule of law’ be defined?

  • 14:30 Xavier Groussot (Lund University): The Distinction between ‘Rule of Law’ and ‘Rule by Law’. A common concept of ‘Rule of Law’ in the European Union?
  • 15:10 Theodore Konstadinides (University of Essex): The Rule of Law in the UK Post-Brexit: An Uncommon Concept of ‘Rule of Law’ outside the European Union?
  • 15:50 – 17:00 Concluding discussion on topics that have been brought forward during the conference, such as:
    • Is there a common definition of the rule of law in Europe, or what are the main differences in various definitions?
    • How can the historical development of the concepts Rechtsstaat and rule of law contribute to our understanding and to clarity?
    • How can these concepts be used as practical tools when the independence of courts and judges is to be assessed?

How to participate

The conference take place through Zoom. To participate, send an e-mail message to martin.sunnqvist@jur.lu.se

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