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Table of Contents: I. Introduction: the low-intensity constitutionalism of the EU and its meaning for agencies. – II. The rule of law and its implication in the EU legal order: effective judicial protection. – II.1. Rule of law and effective judicial protection. – II.2. The rule of law and its meaning for agencies. – III. The rule of law and democratic backsliding of illiberal Member States. – III.1. The rule of law crisis in the EU: overview and countermeasures. – III.2. Effective judicial protection at the intersection of the rule of law backsliding in Hungary: the case law on reception conditions and detention of protection-seekers. – IV. Two weights and two measures? The “fading legality” at the external borders of the EU and the role of the European Commission. – V. One, none, or a hundred thousand? Searching for a (coherent) approach in the case law of the Court of Justice. – V.1. The decisions on the EU – Turkey deal: denialism fed by realpolitik? – V.2. Exploring the limits of effective judicial protection within the EU: the litigation against Frontex. – VI. Conclusions: the difficult emergence of a rule of law for EU agencies, between self-restraint and fading European constitutionalism.
Abstract: This Article expands the rule of law crisis narrative to the EU administrative layer. It starts by introducing the context where the agencies have developed; it continues with an operationalization of the rule of law for agencies; in the next section, it places the evolution of the agencies against the background of the low-intensity constitutionalism of the EU legal order and its meaning. It unpacks this concept into the right to effective judicial protection, which is assessed in its constitutional potential in the case law on the Hungarian rule of law; it further continues with an assessment of the case law concerning the instruments of the external dimension of migration and border management, focusing on the deference shown by the CJEU. The thesis argued in this Article disputes the idea of the consolidation of a coherent approach toward rule of law issues, especially when migration-related policies are concerned. The Article concludes with a claim that an effort of constitutional coherence is necessary to support the embedding of the agencies into a more robust rule of law framework.
Keywords: Frontex – rule of law – judicial review – right to an effective remedy – Commission – Court of Justice.
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European Papers, Vol. 9, 2024, No 2, pp. 593-620
ISSN 2499-8249 - doi: 10.15166/2499-8249/772
* Tenure-track Assistant Professor in EU Law, University of Insubria, luisa.marin@uninsubria.it