European Judicial Systems as a Challenge for Democracy: (3 European Integration and Democracy Series)

'The role of the European judiciary in the process of European integration cannot be overestimated. The achievements of European integration after the second world war are usually analyzed from the perspective of political decisions that were made, initially, by the Founding Fathers and, subsequently, by the political leaders of the European countries. However, in the public debate we very often forget how much we owe to the two supreme jurisdictions of Europe, that is the Court of Justice of the European Union and the European Court of Human Rights. The continuing extension of the competences of the European Union, especially in the field of economic and monetary policy, calls for a new assessment of the nature of the decision-making process at the European level.'-- From the foreword by Prof. Maciej Szpunar, Advocate General at the Court of Justice of the European Union'The European judiciary i.e. the Court of Justice of the European Union (CJEU), the European Court of Human Rights (ECtHR) and national courts interpreting and applying European law sensu largo have shaped [the process of European integration] actively, alongside the Founding Fathers, European nations, European states and their citizens. The involvement of the judiciary raises its own wide range of questions concerning the very nature of democracy. Much ink has already been spilled over issues such as democratic legitimacy, subsidiarity and accountability, the rule of law or judicial activism.[...] seventeen scholars from across Europe [...] share their views on the European judiciary as a challenge for democracy. The various contributions to the present volume are split into two parts. The first provides ten chapters on the judicial systems of the European Union (EU), discussing, inter alia, recognition of democratic principles in the case law of the CJEU, contribution thereof to the democratisation of the Union and reception of EU law in the Member States. The second part discusses the judicial means to protect human rights in Europe, consisting of three chapters devoted to the promise of advisory opinions of the ECtHR as well as to democratic standards for voting and for fair trial.'-- From the preface by the Editors'[...] the editors, authors and the publisher of this volume decided to take a closer look at the relation between democracy and activities of something that might be called ''European judicial systems''. And what is intriguing these systems are perceived here as a challenge for democracy.[...] This book does not exhaust all problems and issues for European judicial systems confronted with the very notion of democracy; there are simply too many of them. But it comes with a fresh look on perhaps the most pertinent ones, like the issue of the legal creativity of judges in both Luxembourg and Strasbourg. It was worth waiting for this volume.'-- Prof. Dr. Paul De Hert, Free University Brussels and Tilburg University

Table of Contents:
Foreword by Prof. Maciej Szpunar Preface List of Abbreviations PART ONE. THE COURT OF JUSTICE OF THE EUROPEAN UNION1. Democracy in Constitutional Politics of European Courts: An Overview of Selected IssuesBogusia Puchalska 1. Introduction 2. The ECJ and national courts: power struggle or cooperation? 2.1. European Court of Justice: its own master? 2.2. The main tenets of ECJ's constitutional politics 2.3. The enduring attraction of the concept of sovereignty in relationsbetween the ECJ and NCs 2.4. Beyond 'sovereignty': power struggle, or power-posturing? 3. The supremacy of EU economic policy 3.1. What is the model of economic policy entrenched in the Treaties? 3.2. The ECJ and the EU's 'democratic deficit' 3.3. Entrenchment of the EU economic policy, TTIP, and the role of the courts 3.3.1. Democratic deficit of economic policy and the courts a. Investor-state dispute settlement 4. Conclusions Bibliography 2. The Institutional Balance as CJEU's Contribution to Democracy in the Union: Selected IssuesTomasz Dubowski 1. Introduction 2. The CJEU and the traces of institutional balance in the Treaties 3. Institutional balance as a general principle of EU (EC) law? The Court's role 4. Institutional balance and democracy in the EU - visible links 5. Conclusion Bibliography 3. From Judicial Dialogue Towards Constitutional Spill-Over? The Economic Analysis of Preliminary Reference Procedure and the Application of the EU Charter of Fundamental RightsMariusz J. Golecki 1. Introduction 2. Constitutional courts and the preliminary reference procedure: judicial dialogue and judicial spill-over 3. Towards an economic analysis of breach of the EU Charter of Fundamental Rights by the national constitutional court 4. Tentative conclusion Bibliography 4. Towards the Democratization of the EU? Strengthening prerogatives of the European Parliament in the case law of the Court of Justice of the European UnionAgnieszka Piekutowska 1. Introduction 2. The defence of the prerogatives of the European Parliament before the CJEU. Pre-Lisbon case-law . 3. Post-Lisbon judgments of the CJEU on the EP's prerogatives 4. Conclusion Bibliography 5. Democratic Values in the Court of Justice Adjudication on the Private Enforcement of the European Union Competition LawFranciszek Strzyczkowski 1. Introduction 2. The influence of the American experience on private enforcement of the European antitrust law 3. The importance of the reform of the EU competition law enforcement 3.1. Towards fostering private damages actions - proposals of the European Commission 4. The position of the European Courts 5. Locus standi to claim damages under European Union competition law 6. Concluding remarks Bibliography 6. Judicial Control of Monetary and Fiscal Decisions in theEuropean UnionFilip Krepelka 1. Introduction 2. Traditional and emerging roles of judiciary 3. Rules and institutions for monetary and fiscal policy 4. A single currency for the integration in the European Union 5. Original legal framework for the euro 6. Onset of the debt crisis and its causes 7. Alleviation of the crisis and prevention of its escalation8. Political consequences of the crisis 9. Legal aspects of remedies and reinterpretation of rules 10. Judicial involvement in the crisis 11. Conclusions Bibliography 7. How CJEU's "Privacy Spring" Construed the Human Rights Shield in the Digital AgeGabriela Zanfir 1. Introduction 2. The relationship between individuals and the state in the digital world: Digital Rights Ireland 2.1. Preliminary observation: there is a wide societal interest in protecting human rights against the bulk collection and retention of metadata 2.2. Bulk retention of metadata touches on the freedom of expression, not only on privacy 2.3. Clarification on the differences in content between Articles 7 and 8 of the Charter 2.4. Requirements for data retention legislation to comply with fundamental rights 3. The relationship between individuals and private bodies in the digitalworld: Google v. Spain 3.1. Internet search engines are data controllers and their activity involves processing of personal data 3.2. "Global" territorial scope of Directive 95/46/EC3.3. The right to erasure applies when the processing does not comply with the provisions of Directive 95/46/EC 3.4. Criteria for the balance of rights 4. Conclusion Bibliography 8. The Supremacy of the EU Law as Interpreted by the Polish Constitutional TribunalElzbieta Kuzelewska and Dariusz Kuzelewski 1. Introduction 2. Specificity of the constitutional review in Poland 3. The primacy of the EU law over national law 4. The principle of supremacy in the light of the Polish Constitutional Tribunal's judicature 5. Conclusions Bibliography 9. Reception of EU Law in Polish Courts - A Case of "Teddy Bear" LawIzabela Krasnicka 1. Introduction 2. The principle of supremacy, the principle of direct effect and the principle of indirect effect of EU law 3. "Working time" under the Polish law and EU law 4. Czeslaw Mis' arguments in the light of the ECJ case law 5. Arguments of the Polish courts 6. The final decision and its consequences 7. Closing remarks Bibliography 10. Enforcing Europe's Foundational Values in Central and Eastern Europe: A Case in PointTine Carmeliet and Georgia Christina Kosmidou1. Introduction 2. Shortcomings of the EU's institutional framework 2.1. Article 7 TEU 2.1.1. Procedural obstacles 2.1.2. Substantive obstacles 2.1.3. Conclusion 2.2. Legal creativity to protect the European foundational values 2.2.1. Infringement actions by the European Commission 2.2.2. Social pressure and issue linkage 3. Policy recommendations 3.1. In search for a definition of liberal democracy 3.2. A stronger role for the CJEU 4. Concluding observations Bibliography PART TWO. THE EUROPEAN COURT OF HUMAN RIGHTS11. Protocol 16 to the ECHR: A Convenient Tool for Judicial Dialogue and Better Domestic Implementation of the Convention?Wladyslaw Jozwicki 1. Introduction 2. Protocol 16 - background 3. The new advisory opinion mechanism - basic characteristics3. Protocol 16 and the chances it opens 3.1. A step towards enhancing domestic implementation of the ECHR 3.2. A step towards more harmonious and up-to-date interpretation of the Convention 4. Protocol 16 and its drawbacks 4.1. ECtHR - victim of its success revisited? 4.2. The optional and nonbinding character of the AOs and some practical concerns 4.3. Protocol 16 and the EU 5. Conclusion Bibliography 12. The EU's Parliamentary Representation in the Light of the StrasbourgCourt's Sejdic and Zornic Standards: Is there Tendency for a New Parliamentary Order in the EU?Fisnik Korenica and Dren Doli 1. Introduction 2. EU's constitutional architecture with regard to parliamentary representation 3. A note on the concept of parliamentary representation in the light of Sejdic and Zornic: European Parliament of the EU people or European Parliament of the EU Member States peoples 4. Thresholds on EU Parliament and 'regressive proportionality' model of electoral system: is there an objective system of electoral criteria? 5. Concluding remarks and a general forthcoming outlook Bibliography 13. The European Concept of a Fair Trial and the Legal Admissibility of Assessors in the Polish Judicial SystemKarol Pachnik and Jakub Krajewski 1. Introduction 2. The position of an assessor in Polish common courts 3. Standards of a fair trial 4. Amending the organisation of courts 5. Regulations on assessors in Polish administrative courts - possible solutions 6. Conclusion Bibliography

About the Author :
Elzbieta Kuzelewska is Associate Professor at the Faculty of Law, University of Bialystok, Poland, where since October 2019 she holds a position of Vice-Dean for Science. She is a Chair of the Centre for Direct Democracy Studies (CDDS) at the Faculty of Law, University of Bialystok, she holds a master's degree in law and a PhD degree and a habilitation in political science. Her research fields include constitutional law, direct democracy, European integration and contemporary political systems. She has been teaching in several European universities within the Erasmus+ programme as well as other bilateral agreements, and she has held visiting positions at Michigan State University School of Law (September 2018), among others. She is Co-Editor-in-Chief of European Integration and Democracy Series, published by Intersentia Cambridge. Dr Dariusz (Darek) Kloza is a senior researcher at the Human Rights Centre (HRC) at Ghent University. His expertise concentrates on international fundamental rights law, especially the fundamental rights to privacy and personal data protection.He earned a PhD in Law from the Vrije Universiteit Brussel (VUB; 2019) with a thesis on the concept of impact assessment in European privacy and personal data protection law. He holds an LL.M. in Law and Technology (2010) from the Tilburg Institute for Law, Technology, and Society (TILT) at Tilburg University (with distinction) and a master's degree in law from the University of Bialystok (2008), including a student exchange at the University of Copenhagen (2007-08).Previously, he was a researcher at the Research Group on Law, Science, Technology and Society (LSTS; 2011-21) at the VUB, where he co-founded the Brussels Laboratory for Data Protection & Privacy Impact Assessments (d.pia.lab). He held in parallel a part-time research position at Peace Research Institute Oslo (PRIO; 2015-17) and visiting fellowships, among others, at Bond University (Australia; 2016).He also freelances at the Centre for Direct Democracy Studies (CDDS) at the University of Bialystok (Poland), where he is co-editor of the 'European Integration and Democracy' Series (Intersentia). Izabela Krasnicka - lecturer at the Faculty of Law, University of Bialystok, Poland and a member of the Centre for Direct Democracy Studies. She holds a PhD degree in law and her main research areas include public international law (air law), constitutional legal system of the United States in comparative perspective with the European Union as well as legal education. Franciszek Strzyczkowski - lecturer at the Faculty of Law and Administration, University of Ldz, Department of Theory and Philosophy of Law, he holds both PhD and LL.M. degrees in law. His main research interest focuses on constitutionalization theories of the European integration, international public law and comparative constitutional law.