New Digital Assemblages in Europe: Borderline Justice

Automated systems have succeeded traditional ways of collecting and processing personal data by States. Interoperability as a system of relations between authorities exacerbates the problems of EU, national and global administration’s accountability. The paper goes beyond a discussion of how accountability has evolved for certain distinct actors, for example, Europol, to highlight the fuzziness and disconnection with accountability mechanisms that result from the collection, sharing and use of data both at the European and at the joined-up national level. The point of no return that has allegedly been reached generates significant rule of law challenges. This paper will explore the challenges for those individuals whose rights and interests are affected as they hypothetically navigate a labyrinthine underworld marked by considerable legal uncertainty, wishing to know if and where their data was processed and looking for an effective remedy against a hidden interoperable administration.

Composite Procedures and the Inevitable Sacrifice of the Rule of Law

The two recent Berlusconi and Iccrea rulings of the European Court of Justice are bound to be landmark judgments of European administrative law. The two rulings concerned composite administrative procedures in the Banking Union – i.e., administrative procedures where national and Union administrative authorities take decisions jointly, after the conclusion of procedural phases at national and Union level. What the two rulings clarified for the first time is that, whenever an EU administrative body holds the decisive decision-making power in a composite procedure, national courts are forbidden from reviewing the preparatory acts taken by national authorities. Instead, it is for the CJEU to review the entirety of the composite procedure. The problem explored in the paper is that, given that the CJEU has no jurisdiction to apply national law, there is currently no judiciary in the EU competent to review violations of national law – which represents a significant rule of law gap.

Judicial Peer-Review in the EU of Mutual (Dis)trust

The EU principle of mutual trust prescribes a broad-brush presumption of EU law compliance, quite problematic in light of the rule of law and effective judicial protection. The ECJ defines effective judicial review as the essence of the rule of law. But mutual trust precludes domestic courts from reviewing if courts of other Member States have actually complied with EU law, even if the breaches seem evident. The paper proposes that mutual trust should be conceived of only as a presumption that national courts comply with their own domestic law, given significant procedural, epistemological and cognitive limitations to domestic judges reviewing each other’s decisions relating to purely internal matters and domestic law. The paper argues that the same limitations should not prevent domestic courts and the ECJ – within the preliminary reference procedure – from reviewing if the EU law has been correctly applied by the issuing courts.

Self-made EU Specialised Courts

The debate about the legal protection of private parties at the EU level has been revolving mostly around the EU Courts. Non-judicial mechanisms proliferating at the EU level, such as the boards of appeal set up in certain agencies, have attracted much less scholarly attention. They are usually considered inferior forms of legal protection due to insufficient independence or the lack of fair trial guarantees. To verify these assumptions, this article examines the operation of the Board of Appeal of the European Chemical Agency. It argues that the practice of administrative review by the Board, despite doctrinal and conceptual distinctions, is comparable to the judicial review by the General Court, when it comes to decision-making independence, review technique, remedies, accessibility and fair trial standards. The specific role of the boards of appeal requires therefore a clearer articulation within the debate about the shape of EU judicial architecture.