European Papers (Jul 2022)
Constitutional Language and Constitutional Limits: The Court of Justice Dismisses the Challenges to the Budgetary Conditionality Regulation
Abstract
(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 507-525 | European Forum Insight of 25 July 2022 | (Table of Contents) I. Introduction. - II. The background. - III. The Court of Justice's judgments. - III.1. Legal basis. - III.2. The circumvention of Article 7 TEU. - III.3. Legal certainty. - IV. Bold but careful: On the Court's approach in the judgments. - IV.1. "The European Union must be able to defend those values...". - IV.2. "...within the limits of its powers as laid down by the Treaties". - V. Conclusion and the next steps. | (Abstract) In two parallel decisions delivered in February 2022, the Court of Justice has rejected the actions for annulment brought by Hungary and Poland against the new "Budgetary Conditionality Regulation". The Court has confirmed that the institutions used the correct legal basis (art. 322(1)(a) TFEU), that the Regulation does not circumvent the procedures of art. 7 TEU, and that it adequately guarantees legal certainty. The judgments of the Court use bold and explicit constitutional language, stating for example that the rule of law and art. 2 TEU values form the very identity of the Union. At the same time, the Court is much more careful when it analyses the more concrete questions on the legality of the Regulation. This shows the continuous mismatch between the constitutional relevance of the values of art. 2 TEU in the EU legal and political structure, and the concrete powers the EU and its institutions have to protect those values. Still very often, the institutions are forced to rely on indirect mechanisms to defend the values, as is the case with the Regulation under discussion, which is to be considered a budgetary tool rather than an explicit rule of law mechanism.
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