Judicial Review in the Digital Era: Safeguarding the Rule of Law Through Added Safeguards?
(2023) In Giornale di Storia Costituzionale 45(1). p.91-101- Abstract
- This article analyses the rule of law in the Digital Single Market with a particular focus on the recent Ligue des droits humains judgment (in case C-817/19), which deals with the PNR Directive (directive (EU) 2016/681). In that judgment, the CJEU essentially imposed additional safeguards on a legislative measure in an attempt to protect fundamental rights and the rule of law, rather than declaring that measure invalid. This indicates a shift in its approach to judicial review. On the one hand, this could weaken the rule of law where unfit legislation is judicially validated. On the other, the new approach might strengthen the rule of law by means of the added safeguards. This, however, raises further questions as regards legal certainty... (More)
- This article analyses the rule of law in the Digital Single Market with a particular focus on the recent Ligue des droits humains judgment (in case C-817/19), which deals with the PNR Directive (directive (EU) 2016/681). In that judgment, the CJEU essentially imposed additional safeguards on a legislative measure in an attempt to protect fundamental rights and the rule of law, rather than declaring that measure invalid. This indicates a shift in its approach to judicial review. On the one hand, this could weaken the rule of law where unfit legislation is judicially validated. On the other, the new approach might strengthen the rule of law by means of the added safeguards. This, however, raises further questions as regards legal certainty and the CJEU’s appropriation of quasi-legislative functions. As will be argued, such judicial powers may become both a blessing and a curse, in particular concerning the rather fast-paced Digital Single Market, where the legislator is often two steps behind. One potential benefit is that recent legislation in the digital field, such as the Digital Markets Act and the Digital Services Act, if legally challenged and found wanting, may be more likely to remain intact, which reduces the risk of a legislative void and legal uncertainty. (Less)
Please use this url to cite or link to this publication:
https://lup.lub.lu.se/record/454862a5-e99b-4e05-b5b0-334f30a1da84
- author
- Engel, Annegret LU
- organization
- publishing date
- 2023-07
- type
- Contribution to journal
- publication status
- published
- subject
- keywords
- Judicial review, Digital Single Market, Added safeguards, Rule of law, Fundamental rights
- in
- Giornale di Storia Costituzionale
- volume
- 45
- issue
- 1
- pages
- 91 - 101
- publisher
- Edizioni Universita Macerata
- external identifiers
-
- scopus:85176233045
- ISSN
- 1593-0793
- project
- The Application and Impact of the EU Charter of Fundamental Rights in Competition Law, the Digital Single Market and Sweden
- language
- English
- LU publication?
- yes
- id
- 454862a5-e99b-4e05-b5b0-334f30a1da84
- alternative location
- http://www.storiacostituzionale.it/doc_45/Engel_GSC_45.pdf
- date added to LUP
- 2023-07-13 22:14:39
- date last changed
- 2024-01-23 04:03:41
@article{454862a5-e99b-4e05-b5b0-334f30a1da84,
abstract = {{This article analyses the rule of law in the Digital Single Market with a particular focus on the recent Ligue des droits humains judgment (in case C-817/19), which deals with the PNR Directive (directive (EU) 2016/681). In that judgment, the CJEU essentially imposed additional safeguards on a legislative measure in an attempt to protect fundamental rights and the rule of law, rather than declaring that measure invalid. This indicates a shift in its approach to judicial review. On the one hand, this could weaken the rule of law where unfit legislation is judicially validated. On the other, the new approach might strengthen the rule of law by means of the added safeguards. This, however, raises further questions as regards legal certainty and the CJEU’s appropriation of quasi-legislative functions. As will be argued, such judicial powers may become both a blessing and a curse, in particular concerning the rather fast-paced Digital Single Market, where the legislator is often two steps behind. One potential benefit is that recent legislation in the digital field, such as the Digital Markets Act and the Digital Services Act, if legally challenged and found wanting, may be more likely to remain intact, which reduces the risk of a legislative void and legal uncertainty.}},
author = {{Engel, Annegret}},
issn = {{1593-0793}},
keywords = {{Judicial review; Digital Single Market; Added safeguards; Rule of law; Fundamental rights}},
language = {{eng}},
number = {{1}},
pages = {{91--101}},
publisher = {{Edizioni Universita Macerata}},
series = {{Giornale di Storia Costituzionale}},
title = {{Judicial Review in the Digital Era: Safeguarding the Rule of Law Through Added Safeguards?}},
url = {{https://lup.lub.lu.se/search/files/155609547/Engel_GSC_45.pdf}},
volume = {{45}},
year = {{2023}},
}