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A Journal on Law and Integration, Vol. 5, 2020, No 3 European Papers A Journal on Law and Integration Vol. 5, 2020, N0 3 www.europeanpapers.eu European Papers – A Journal on Law and Integration (www.europeanpapers.eu) Editors Ségolène Barbou des Places (University Paris 1 Panthéon-Sorbonne); Enzo Cannizzaro (University of Rome “La Sapienza”); Gareth Davies (VU University Amsterdam); Adam Lazowski (University of Westminster, London); Juan Santos Vara (University of Salamanca); Daniel Thym (University of Konstanz); Ramses A. Wessel (University of Groningen). Associate Editor Nicola Napoletano (University of Rome “Unitelma Sapienza”). European Forum Editors Charlotte Beaucillon (University of Lille); Stephen Coutts (University College Cork); Stefano Montaldo (University of Turin); Benedikt Pirker (University of Fribourg). Editorial Committee Managing Editors: Giulia D’Agnone (University of Campania “Luigi Vanvitelli”); Mauro Gatti (University of Bologna); Alberto Miglio (University of Turin); Stefano Montaldo (University of Turin); Ilaria Ottaviano (University of Chieti- Pescara “G. d'Annunzio”); Luca Pantaleo (University of Cagliari); Aurora Rasi (University of Rome “La Sapienza”); Daniela Vitiello (University of Tuscia). Editorial Staff: Micol Barnabò (University of Rome “La Sapienza”); Filippo Croci (University of Milan); Sara Fattorini (University of Rome "La Sapienza"); Giulio Fedele (University of Rome "La Sapienza"); Delia Ferri (Maynooth Universi- ty); Ulyana Kohut (University of Rome “La Sapienza”); Sarah Lattanzi (University of Rome Tor Vergata); Rossella Pulvi- renti (University of Nottingham); Cristina Renghini (University of Macerata); Alessandro Rosanò (University of Turin); Stefano Saluzzo (University of Piemonte Orientale); Francesca Varvello (University of Turin); Susanna Villani (Univer- sity of Bologna). European Papers is a double-blind peer-reviewed journal. This Issue of the e-Journal (final on 3 February 2021) may be cited as indicated on the European Papers web site at Official Citation: European Papers, 2020, Vol. 5, No 3, www.europeanpapers.eu. ISSN 2499-8249 – European Papers (Online Journal) doi: 10.15166/2499-8249/0 Registration: Tribunal of Rome (Italy), No 76 of 5 April 2016. This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License. Web site Copyright © European Papers, 2020 European Papers A Journal on Law and Integration Vol. 5, 2020, No 3 Editorial Neither Representation nor Values? Or, “Europe’s Moment” – Part II p. 1101 Articles Adam Łazowski, Mind the Fog, Stand Clear of the Cliff! From the Political Declaration to the Post-Brexit EU-UK Legal Framework – Part I 1105 Daniel Thym and Jonas Bornemann, Schengen and Free Movement Law During the First Phase of the Covid-19 Pandemic: Of Symbolism, Law and Politics 1143 Historical Memory in Post-Communist Europe and the Rule of Law edited by Grażyna Baranowska and León Castellanos-Jankiewicz Mirosław Wyrzykowski, Waking up Demons: Bad Legislation for an Even Worse Case 1171 Nevenka Tromp, Misjudging the History at the ICTY: Transitional and Post- transitional Narratives About Genocide in Bosnia and Herzegovina 1191 Marina Bán, How Can States Possess History via Memorials? 1225 Uladzislau Belavusau and Aleksandra Gliszczyńska-Grabias, Epilogue: Mnemonic Constitutionalism in Central and Eastern Europe 1231 Towards European Criminal Procedural Law edited by Araceli Turmo Araceli Turmo, Towards European Criminal Procedural Law: An Introduction 1247 Julia Burchett, La Cour de justice de l’Union européenne et l’exigence d’indépen- dance de la justice 1251 1100 European Papers – A Journal on Law and Integration – Vol. 5, 2020, No 3 Tony Marguery, Confiance mutuelle, reconnaissance mutuelle et crise de valeurs: la difficile équation entre justice pénale européenne et diversité nationale p. 1271 Konstantinos Zoumpoulakis, From the Ground up: The Use of Minimum Rules in EU Procedural Criminal Law and the Question of Member States’ Discretion 1289 Ariadna H. Ochnio, Why Is a Redefinition of the Autonomous Concept of an “Issuing Judicial Authority” in European Arrest Warrant Proceedings Needed? 1305 Joos Nan and Sjarai Lestrade, Towards a European Right to Claim Innocence? 1325 Araceli Turmo, Ne bis in idem in European Law: A Difficult Exercise in Constitu- tional Pluralism 1341 European Forum Insights and Highlights 1357 Editorial Neither Representation nor Values? Or, “Europe’s Moment” – Part II Part I of this Editorial dealt with the interrelation between representation and taxation reflected in the measures adopted or envisaged by the EU institutions to face the COVID-19 pandemic. It argued that a more courageous approach in each phase of this virtuous circle could have significantly enhanced the legitimacy of the Union as an entity expressing the sentiment of the European citizenry and taking action to fulfil its com- mon interest. There is, however, another relationship which is at stake in these turbulent days. Representation also entails the existence of a set of distinctive values shared by a community, whose protection and promotion should be shared by its representatives. This conceptual scheme, simplistic as it may be, can help us understand the story of the conditionality mechanism designed to exclude EU Member States (MS) which violate the Union’s fundamental values from the financial assistance provided for by the Next Gen- eration EU (NGEU) project. As is well know, this mechanism is established by Regulation 2020/2092 of the Europe- an Parliament and of the Council, of 16 December 2020, on a general regime of condi- tionality for the protection of the Union budget. It is equally notorious that, prior to its approval, the European Council adopted, with the usual method of consensus, a declara- tion related to its implementation, incorporated in its Conclusions of the meeting of 10 and 11 December 2020. This declaration is composed of two parts. First, it directs the Commission not to implement, or to propose the implementation, of the Regulation before the adoption of guidelines to be drafted “in close consultation with the Member States”, and before the adoption of a decision of the CJEU following an action for annulment which, presuma- bly, some MS will soon lodge (para. 2, let. c). As noted by early commentators, this part of the declaration interferes with the prerogatives of the Commission to ensure the ap- plication of the law under the Treaties, conferred on it by Art. 17 TEU. Moreover, it will undermine the effectiveness of the substantive obligation to respect the rule of law, by relaxing its means of control. In a different and perhaps even more insidious way, the declaration tends to use the notions contained in the Regulation to empty it of its very essence. This logical operation European Papers www.europeanpapers.eu ISSN 2499-8249 Vol. 5, 2020, No 3, pp. 1101-1104 doi: 10.15166/2499-8249/443 (CC BY-NC-ND 4.0) 1102 Editorial unfolds along three steps. First the declaration highlights the functional link between the mechanism and its objective, namely, to protect the Union’s budget (para. 2, let. a). Sec- ond, on the basis of this assumption, it stresses the subsidiarity role of the new mecha- nism vis-à-vis other mechanisms specifically aimed to supervise the implementation of the budget (para. 2, let. d). Finally, the declaration draws the ultimate consequence of that functional link by imposing a standard of strict proportionality between the consequences produced by a possible breach of the rule of law on the financial interests of the Union and the measures to be adopted to remedy it (para. 2, let. e). This link is further enhanced by the requirement that the relevance and use of evidence demonstrating the existence of a breach of the rule of law “will be determined exclusively in light of the Regulation’s aim to protect the Union’s financial interests” (para. 2, let. h). This test appears to be a probatio diabolica; one which will presumably render inoper- ative the conditionality mechanism. If it is the case that any breach of the rule of law must be causally linked to the Union's financial interests in order to be sanctioned, the mecha- nism appears to be doomed to fail. While political regimes inspired by the principle of democracy and the rule of law have proved throughout history to be the most virtuous (or, perhaps, the least vicious), it is much more difficult to demonstrate, on the basis of the properly grounded empirical evidence, their link with mundane interests of a financial nature. By imposing a causal link between a breach of the rule of law and a damage to the financial interests of the Union, the European Council has de facto blocked the operation of the mechanism and deprived the Regulation of its effet utile. This, presumably, was the ultimate aim of the European Council when trying to square the circle: to be nominally uncompromising on the Unions’ values whilst render- ing it particularly difficult, if not even impossible, to establish their breach. The legal method used by the European Council to attain its objective deserves close at- tention. If at first sight it constitutes a faithful implementation of the principle of conferral – establishing a link between the objectives of the Union and the means designed to at- tain them – on closer inspection, it appears technically wrong and politically perverse. Regulation 2020/2092 is based on Art. 322, para. 1, let. a), which gives the EU the power to adopt “financial rules” to implement the budget and to attain the objectives laid down by Art. 310, paras 4 and 5, namely, to ensure the sound financial manage- ment and to counter fraud and any other illegal activities affecting the financial inter- ests of the Union. At first sight, the technical analysis conducted on the legal basis of Regulation 2020/2092 seems to lead to the conclusion that, in spite of the clear interferences by the European Council on the prerogatives of other Institutions of the Union – alas, a frequent occurrence – the interpretive declaration of the European Council has simply stated the obvious, namely that the mechanism of the Regulation must only pursue its objectives, according to the classic doctrine of conferred competences.
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