This chapter examines what appears to be a rather ‘blind spot’ in EU law scholarship, namely the legal protection against factual conduct by the EU. In doing so, the chapter engages firstly with some conceptual clarifications of the term ‘factual conduct’ and provides illustrations of EU factual conduct potentially infringing fundamental rights. Secondly, the chapter looks at the system of legal protection available against fundamental rights breaches by EU factual conduct. It examines for this purpose judicial as well as non-judicial remedies and legal review mechanisms as enshrined in the EU Founding Treaties, CJEU jurisprudence, and in relevant EU secondary legislation. Third, the chapter ends with an assessment of the overall system of legal protection against fundamental rights breaches through factual conduct by the EU. It reveals strengths, gaps and challenges, and it suggests some solutions for improvement, in particular in the form of enhancing the array of EU administrative mechanisms and remedies with judicially reviewable outcomes.

Chapter 6 is devoted to the functioning of the EAEU Court and its ability to fulfil its aim of ensuring uniform application of EAEU law, and eventual aptitude to ensure the formation and continued existence of the autonomous legal order. The Court relies significantly on EU case-law as its main source of inspiration, making references to it and at times adopting similar doctrines. Some basic judicial remedies available in the EAEU are similar to those in the EU, however the focus is on the remedies that are absent while of paramount importance for legal order autonomy. Thus, the chapter reviews the special case of preliminary ruling as a mechanism ensuring uniform application and interpretation of law throughout the organization, and in the absence thereof, looks for a substitute. It reviews some other limitations that the Court has suffered and explores the reasons for that, including the analysis of some highly controversial decisions of the Court. It also addresses the issue of exclusive jurisdiction of the Court. It is argued that these challenges are the hardest to overcome. Nevertheless, it is demonstrated that there are ways out and that certain treaty-imposed limitations are virtually impossible to uphold in practice.

This chapter discusses procedural rights as protected by the European Convention on Human Rights, other Council of Europe instruments, in EU law and in international instruments. Attention is paid to topics like the right to access to a court, the independence and impartiality of courts, effective legal remedies, the right to a fair trial and procedural guarantees in criminal proceedings. In the final section, a short comparison between the different instruments is made.

This chapter argues that the particular variety of populism in effect in Italy that has been labelled PopSovism is interesting to comparative lawyers for many reasons. The chapter explains that in the Italian case, restrictions of migrants’ rights represent a form of democratic decay in populist time. This phenomenon was particularly evident during the first Conte government, when Italy became the first European country in which two self-styled populist forces formed a coalition government, but its roots can be found even earlier. Italian populism has ancient roots and restrictions of migrants’ rights preceded and continued after the populist wave. At the same time, the nativist approach to migrants should not be seen as the only manifestation of democratic decay in Italy, which is broader in nature. As a consequence, resilience through legislative reforms is not likely to be forthcoming. More success can be expected if resilience is pursued through judicial remedies both at national and international level.

Courts are political institutions. And judges do not operate in an institutional or ideological vacuum, as they are shaped by the social, political, and economic struggles that take place within their political systems. Where the strategic environment confers discretion on the courts, the judges can construct a constitutional identity for their jurisdiction distinct from their government’s vision and redefine the polity’s place in the world. And this constitutional convergence in East Asia will endure so long as the political system in each jurisdiction remains fragmented, the courts continue to be independent and judges choose to align their local jurisprudence with Western human rights law.

Hong Kong, Taiwan, and South Korea have the only courts in Asia that regularly use a structured four-stage Proportionality Analysis system to invalidate laws. They also have the only courts in Asia that routinely apply innovative constitutional remedies such as Suspension Orders and Remedial Interpretation to rectify constitutionally flawed legislation. This book explores the constitutional convergence in East Asia and explains its limits.