bluuebunny/crossref_metadata_2025 huggingface dataset:
If Derrida Had Played Football
Authors: Hutchinson Allan C.
Published: March 2019

In a candid interview in 1991, when he was 60, Jacques Derrida let the cat out of the bag. For all his academic achievements and popular acclaim, his abiding dream for himself remained that of his youth “becoming a professional footballer.” In this mere aside, Derrida revealed as much about himself as both philosopher and person (if they can be separated) as in almost all his voluminous writings, speeches, reviews, and interviews. How fitting, therefore, that this passing remark should take us from the expressive margin into the subversive heart of this man of thought and reveal him as a frustrated man of action; the philosophical life was only a consolation for a more fulfilled life as sporting hero. Yet, in so many ways, so much can be learned and understood about the Derridean oeuvre by treating its author as a footballer, as someone who plied his trade on the fields of sporting endeavour than in the classrooms and libraries of the world. Indeed, if Derrida had played football, both philosophy and life might have been the better for it. Not because he would have spared the world his philosophical interrogations, but because he might have made even more of an impression on the sensibilities and senses of his times. It is as a footballer of attacking flair, not as an intellectual of defensive legend, that I will remember Derrida best. While it is hard to imagine the suave Derrida in the garishly-coloured synthetic shirt of his favourite team with a number “7” and “Derrida” emblazoned on the back, there is a genuine excitement at the prospect of him tantalising and tormenting the opposition in his own version of “the beautiful game.” He knew that those who knew nothing of football knew nothing of life.
Populist Use of Memory and Constitutionalism: Two Comments – I
Authors: Chiantera-Stutte Patricia
Published: March 2019

The reasons for the recent rise of Eastern European populism constitute a puzzling issue in political and scientific discussions. As Paul Blokker shows, Eastern European populism can neither be seen as a mere reaction to communism, nor as the “natural” consequence of the transition from a socialist economy to a liberal market model of production. Nor is populism just another form of ethnic nationalism, developed in Eastern Europe and juxtaposed to civic nationalism. The strong dichotomy between an ethnocultural and exclusive nationalism and a civic and inclusive nationalism does not exist in these terms and is the product of a scientific bias, and not a product of empirical observation.
New Developments in Management Reporting – The Modernisation of the Annual Report
Authors: Buchheim Regine , Beiersdorf Kati
Published: March 2019

In Germany, the management report that comments on the company's business and financial position as well as its future prospects has long ago been introduced to the Handelsgesetzbuch (HGB – German Commercial Law). Ever since the European Court of Justice [ECJ] has clarified that GmbH & Co. KGs are classified as companies with limited liabilities under the 4th and 7th Directive, annual reports have to be published by an even wider range of companies.
The Spanish Constitution and the European Constitution: The Script for a Virtual Collision and Other Observations on the Principle of Primacy
Authors: García Ricardo Alonso
Published: March 2019

The following reflections, that will focus exclusively on the European primacy clause in the light of theStatement by the Constitutional Court no. 1/2004 of 13 December, in particular with regard to its scope as regards the Spanish Constitution itself, may take as a starting point the conclusion contained at the last paragraph of FJ 4 of the Statement, which states as follows:

“In the scarcely-conceivable event that in the ultimate functioning of European Union Law this Law were to result irreconcilable with the Spanish Constitution, and without the hypothetical excesses of European Law with regard to the European Constitution itself being remedied by the ordinary channels provided for in the latter, ultimately the preservation of the sovereignty of the Spanish people and of the supremacy of the Constitution as it provides for itself could lead this Court to tackle the problems that would arise in such a case, and which from the current point of view are considered to be non-existent, by way of the relevant constitutional procedures”.
National and International Developments in Risk Reporting: May the German Accounting Standard 5 Lead the Way Internationally?
Authors: Dobler Michael
Published: March 2019

In this journal, Buchheim and Beiersdorf discussed recent changes in the regulation of the management report (Lagebericht) in Germany. The German Commercial Code (HGB – Handelsgesetzbuch) requires a management report by individual entities classified as companies with limited liability in § 289 and by groups in § 315. The reporting requirements of the latter are specified by the German Accounting Standard GAS 15 on Management Reporting. The authors award the German regulation to potentially lead the way internationally.
Some Reflections on the European Society of International Law Research Forum 2005
Authors: MacDonald Euan
Published: March 2019

The recent European Society of International Law Research Forum – only the Society's second conference following the inaugural event in Florence last year – took place from the 24-26th May 2005 in stunning surroundings on the shores of Lac Lemain in the buildings of the Graduate Institute of International Studies in Geneva. Quite apart from the obvious importance of a high-level international conference under the auspices of one of the most important international law societies in the world, and the attendant quality of the speakers and other participants, the event was of real significance in that it allowed for an insight into how the new Society itself is developing, and the manner in which it will go about the task of fulfilling the objectives that it has set itself.
The German Draft Legislation On the Prevention of Discrimination in the Private Sector
Authors: Vennemann Nicola
Published: March 2019

On 3 December 2001 the German Minister of Justice, Herta Däubler-Gmelin, presented a draft of legislation aiming at the elimination of discrimination in the private sector and declared her firm determination to have the law passed before the end of this parliamentary term. Presentation of the draft legislation complied with paragraph IX.10 of the Coalition Agreement of 20 October 1998, which anticipates these efforts.
Constitutional Politics In Germany
Authors: Kommers Donald P.
Published: March 2019

A landmark in German immigration law could founder on a technical point of procedure in the Bundesrat, the legislative body in Germany that represents the states at the national level. A bill acknowledging, for the first time, that Germany is a country of immigration won a majority of votes in the popularly elected branch of the national parliament. Introduced and championed by the governing Social Democratic-Green coalition, the controversial bill survived the stiff opposition of Christian Democrats, the minority party. But Germany is a federal republic and, accordingly, this bill, like others involving vital state interests, constitutionally requires the Bundesrat's consent.
Family Matters: European Court of Human Rights Finds German Parenting Rights Decisions to be in Violation of Article 8 of the Convention
Authors: Hoss Cristina
Published: March 2019

The fourth section of the, European Court of Human Rights (ECHR) in Strasbourg, in a judgment from 26 February 2002, held that the German authorities, in a case involving the revocation of parenting rights, violated Article 8 of the European Convention on Human Rights. The circumstances of the case are compelling: the painful separation of parents and children ordered by the German authorities in the interests of the children, followed by several years of hard-fought litigation as the parents struggled to reestablish their parenting rights over their children and to restore their natural family. The Court concluded that the interference in the right of private and family life was not proportionate to the legitimate aim pursued by the German authorities.
Constitutional Court Upholds Lifetime Partnership Act
Authors: Miller Russell , Röben Volker
Published: March 2019

On 17 July 2002, the First Senate of the Bundesverfassungsgericht (Federal Constitutional Court) upheld the recently enacted Lebenspartnerschaftsgesetz (Lifetime Partnership Act). The Court found, unanimously, that the process leading to the law's enactment was constitutional. The Court further found, over three dissenting votes, that the substance of the law conforms to the Grundgesetz (GG - Basic Law).
The ‘Common European Approach', ‘International Trends', and the Evolution of Human Rights Law. A Comment on Goodwin and I v. the United Kingdom
Authors: Morawa Alexander
Published: March 2019

On 11 July 2002, the Grand Chamber of the European Court of Human Rights (Eur. Ct. H.R.) ruled unanimously in the cases of Goodwin and I v. the United Kingdom that the failure of British law to recognize gender re-assignment and to permit male to female transsexuals to marry persons of their newly opposite sex violated the applicants’ right to privacy (Article 8 ECHR) and to marry (Article 12). These two cases, apart from constituting an explicit deviation from previous constant jurisprudence, gave the Court (sitting as a Grand Chamber) an opportunity to creatively apply its longstanding interpretative principles, including the search for a ‘common European approach’ – now increasingly an ‘international trend’ –, in order to evolve human rights law. The following observations will focus on this aspect, while paying due attention to the other implications of the present cases. Finally, the two cases will be placed in the context of the current jurisprudence of the Court which, unfortunately, does not show a consistent tendency to progressively advance human rights law.
Rogue States – State Sponsors of Terrorism?
Authors: Minnerop Petra
Published: March 2019

Since 1994, the United States of America have been warning of a new threat posed by so-called ‘rogue states'. (1) Following 11th September 2001, a number of these so-called rogue states have been targeted as responsible for the attacks or as a result of fears that they are plan-ning further terrorist acts. The classification of certain states by degrading terminology by the United States not only seems to be fully justifiablevis-à-visthe realisation of an emerging danger; furthermore, it could be seen as movement within the international community to-wards the identification of states which threaten international security. Thus, it is important to look behind the terms: which states fall into the category of rogue states and what consequences could follow for public international law from such classification?
Security versus Liberty: Striking the Right Balance. A Comparison of Anti-Terror Provisions in India and the United States
Authors: Asrani Sheetal
Published: March 2019

Ahmad Omar Saeed Sheikh. A Britishborn Muslim arrested by Indian authorities in connection with the kidnapping of four British and American backpackers in Kashmir in 1994. Released in exchange for the passengers and crew of Indian Airlines flight IC 814 hijacked to Kandahar, Afghanistan on December 25, 1999. Suspected of al-Qaida links and sentenced to death by a court in Pakistan for the kidnap and murder of U.S. journalist Daniel Pearl in January 2002. India, U.S.A. and the U.K. – three countries caught up in a web of Islamic terrorist links and activities.
Death, Dignity and Discrimination: The Case of Pretty v. United Kingdom
Authors: Millns Susan
Published: March 2019

Diane Pretty died of natural causes on 11 May 2002 from motor neurone disease, a paralysing, degenerative and incurable illness. Her fight to choose the time and manner of her death assisted by her husband was a resounding legal failure. A unanimous body of judicial opinion in both the English Divisional Court and the House of Lords, followed by the European Court of Human Rights, denied that her rights under the European Convention on Human Rights had been infringed. Thus, the refusal of the Director of Public Prosecutions (DPP) to exempt Mrs. Pretty's husband from prosecution were he to undertake efforts to assist Mrs. Pretty in taking her own life was ultimately held to be lawful. At the same time, the domestic legal prohibition on assisting suicide, found in Section 2.1 of the Suicide Act of 1961 was found to be in conformity with the Convention.
Reforms of the German Criminal Code -Stock-taking and Perspectives - also from a Constitutional Point of View
Authors: Krehl Christoph
Published: March 2019

Once a major reform has been concluded, one might easily be tempted to be just glad about what has been achieved and to think that nothing more needs to be done. However, experience in Germany as regards the amendment of criminal law and law of criminal procedure has shown that “after the reform” has, at the same time, always meant “before the reform.” The history of German criminal law is the history of a never-ending reform. The reform has not only consisted in making individual corrections to the existing positive law; time and again, developments in society have posed new challenges to criminal law, which, in the course of time, have resulted in profound changes in its structure. This means that even after a reform has been concluded, there must be willingness to further shape criminal law or, as the case may be, to protect it from changes that might be brought about by new influences. German criminal law, with its more than 130 years of history, and with its almost 180 more or less profound amendments of the law, bears eloquent witness to the profound changes that criminal law can experience, in spite of individual extensive reforms, admittedly in a time of historical upheavals. The present contribution provides an outline of the history of German criminal law through the present time and tries, on the basis of this outline, to develop a forecast of the influence to which criminal law will be exposed in the future.
The Convention at Many Crossroads: Report on a Conference at the College of Europe (Bruges), 9-10 May 2003
Authors: Schütze Robert
Published: March 2019

After nearly fifty years of its existence, the European Community currently faces two constitutional challenges: In a conscious effort to bring Europe closer to its citizens and to break away from the undemocratic executive and judicial constitution-making, Europe has set up a “Constitutional Convention” in charge of constitutional soul-searching. The second project – and indeed one of no less “constitutional” significance – is, of course, the Union's enlargement that will turn it into an organization of twenty-five plus. The two projects are in many ways intertwined and can be synthesized into the phrase: “A new Constitution for a new Europe”.
Liability for Asbestos Related Disease in England and Germany
Authors: Best Richard
Published: March 2019

Newspapers abound with stories of corporate difficulties in connection with asbestos-related lawsuits. Internationally, most litigation to date has taken place in the United States, where high damages awards, comparatively liberal liability theories, and countless claims by not only the sick but also the so-called “worried well” – those who claim to have been exposed to asbestos but who have not yet contracted an asbestos-related disease – have clogged the judicial system and landed many companies in strife. Insurers have also been hit hard.
“Critical Empricism” and American Critical Legal Studies: Paradox, Program, or Pandora's Box?
Authors: Trubek David M. , Esser John
Published: March 2019

What should we make of Susan Silbey's call for socio-legal scholarship that is both critical and empirical? Do we think the law and society movement can and should develop a critique of the legal order? Can empirical research contribute to such a critique? Does the idea of a “critical sociology of law” make any sense at all?
Some Current Controversies in Critical Legal Studies
Authors: Tushnet Mark
Published: March 2019

The first few years in the development of critical legal studies (CLS) saw an ongoing discussion of an issue that was framed as “rationalism v. irrationalism”. The labels, it now appears, were misleading, for the discussion can be better understood as concerning the utility - for purposes of orienting strategic action as well as of understanding the social order - of relatively large-scale social theories in the traditions of Marx and Weber. The distinctive contribution of CLS to leftist social thought, and the embodiment of the fact that one side in the earlier discussion more or less prevailed, is its insistence that a leftist social and political theory does not need to be grounded in that sort of social theory.
The Limits of Legislative Harmonization Ten Years afterTobacco Advertising: How the Court's Case Law has become a “Drafting Guide”
Authors: Weatherill Stephen
Published: March 2019

Ten years have elapsed since the firstTobacco Advertisingjudgment, in which the Court for the first time concluded that the EU legislature had stepped beyond the limits of its competence to harmonize national laws which is granted by the Treaty. However, those subsequently seeking annulment of measures of harmonization have almost all been disappointed. This paper surveys the accumulated case law and finds that the “limits” of EU legislative competence, though of the highest constitutional significance in principle, are in practice imprecisely defined by the Treaty itself with the consequence that the legislative institutions enjoy wide discretion. The pattern has become circular: the Court presents a formula which defines the proper scope of harmonization and which sets out the control exercised by the principles of proportionality and subsidiarity, the EU legislature duly adopts the approved but reliably vague vocabulary and, provided the drafting is well-chosen, the Court has no plausible basis on which to set aside the legislative act. Case law dealing with the limits of EU competence has been converted into no more than a “drafting guide.” The paper shows how many of these deficiencies have been maintained uncritically after the reforms made by the Lisbon Treaty, even though a major part of the reform agenda initiated by the Laeken Declaration was inspired by “competence sensitivity.” Lisbon has instead put most of its reforming faith in a new recruit to competence monitoring - the national parliaments of the Member States. These new arrangements are poorly shaped at the level of detail, but the paper concludes with a largely positive assessment of the intention behind them. In particular they reveal a proper insistence on the need to supplement judicial control, which has become largely ineffective, with fresher political sensitivity to the perils of over-hasty centralization.
Book Review - David A. Strauss' The Living Constitution (2010)
Authors: Rostorotski Artour
Published: March 2019

David Strauss' The Living Constitution addresses the issues of constitutional interpretation and judicial activism in the United States. The book supports the practice of Living Constitutionalism and attempts to demonstrate its advantages over Originalism. It presents general arguments as well as accounts of landmark decisions in order to demonstrate the superiority of Living Constitutionalism. The Living Constitution also argues for common law as the all-but-exclusive method for constitutional change in the modern United States. Overall, the book presents a well-organized and concise case for Living Constitutionalism.
The Political and the Basic Law'sSozialstaatPrinciple—Perspectives from Constitutional Law and Theory
Authors: Heinig Hans Michael
Published: March 2019

The welfare state aspect is among the central characteristics of German statehood as established by the constitution. For the Basic Law's drafters, it was so indispensable that they included the mandate of a welfare state in the catalogue of constitutional principles which are to have eternal validity within the constitution and which could only be dispensed with at the cost of breaching the constitution, the cost of revolution (Article 79(3) of the Basic Law (Grundgesetzin German; hereinafter “GG”)). Article 79(3) GG codifies the distinction between constitution and constitutional provision made prominent by Carl Schmitt, whose constitutional doctrine of 1928 asserted that, while the constitutional legislature can amend an individual provision in the constitution, the constitution as a whole is not to be changed short of political action transcending the law, that is, a revolution. Article 79(3) GG takes up this idea, insulating certain features of the constitution from amendment. These features—outside all democratic reach and thus quasi depoliticized—include the inviolability of human dignity (Article 1(1) GG) and the nature of the state as a democracy, a republic, a federal state based on the rule of law, and a “social” state (Article 20(1) GG). On closer scrutiny, the principles underlying the state's structure reveal a significant difference between, on the one hand, the principles of democracy, federalism, the rule of law, and republicanism and, on the other, the principle of the welfare state. The four former features stem from long traditions in constitutional law; modern political philosophy has detailed them precisely and the Basic Law concretizes them in thorough regulations. In contrast, the political history of ideas has failed to produce a “flag-bearing” thinker for the welfare state. The establishment of the welfare state has played no significant role in constitutional history. And, on first glance, even the Basic Law seems to provide hardly any specifics as to what exactly makes up its “social” state or, in particular, what normative consequences follow from this constitutional principle. This raises the question: What actually justifies the principle of the welfare state's illustrious position among those constitutional entities endowed with highest relevance? The following discussion develops the answer: Regardless of its limited historical and theoretical traditions, the principle of theSozialstaatfinds its meaning beyond its doctrinal content in its own distinct, symbolic substance.
EU Law qua Global Governance Law? Deciphering Regulatory and Constitutional Competence Between EU Environmental Law and Global Governance
Authors: Fahey Elaine , Herlin-Karnell Ester
Published: March 2019

This special issue looks at the normative implications of EU global regulatory efforts in the area of environmental policy. The EU Environmental Emissions Trading System (EU-ETS) represents an example of successful application of EU environmental standards where global standards harmonization had failed. The intersection between EU law and global law, however, seems increasingly porous and difficult to decipher. Post-Lisbon, the EU increasingly functions like a State in its actions with the world. Nonetheless, the operation of international law internally within the EU legal order has been the subject of many distinctive constitutional periods, both prior to and after the Treaty of Lisbon. In the recent judgment of the Grand Chamber of the Court of Justice on the EU-Emissions Trading System, the Court rejected claims that the application of the EU-ETS scheme to the aviation sector, specifically US airlines, was unlawful under EU and international law. In the realm of the environment, EU environmental protection is both a value and normative aspiration. Yet what is a successful legal outcome of the adoption of ambitious and aggressive global legal regulatory frameworks in this domain? How should contemporary EU global policy and value ambitions be adjudicated in law? The case raises broader issues about the legitimacy of EU law and externalities arising from extended EU competences to positively promote EU constitutional values beyond Europe. While using this case as its starting point, this special issue sets out to look at the wider constitutional questions asked by it.
Biopolitics of Transnational Private Law – Sovereign Debt
Crises, Market Order and Human Rights
Authors: Somma Alessandro
Published: March 2019

A market economy is not a product of free economic behavior but rather, of
an order requiring the fulfillment of systemic tasks by market operators.
Their performance needs to be guided by rules imposing competition as a
political tool to functionalize their action, in such a way that market
failures can be avoided. This is not only the case for coordinated market
economies, typically making use of direct market regulations, but also for
liberal market economies, even if these latter ones prefer an indirect
regulation of economic life, by having to condition individual behavior.
Different modes of regulation may be used to stabilize the same accumulation
regime, which is understood as patterns of production and consumption
reproducible over a long period. In other words, liberal market ideology, as
well as liberalism, is anything but a theory on unlimited freedom: it “needs
freedom”, but also needs to “consume” this freedom as a condition of
historical and social possibilities for a free market economy. Even if
differences may involve the way of assuring those possibilities, the
necessity to force economic behavior into functionalizing schemes must be
seen as unavoidable.
Criminal Involvement in Terrorist Associations –– Classification and Fundamental Principles of the German Criminal Code Section 129a StGB
Authors: Kretschmer Bernhard
Published: March 2019

The shock was great when a car bomb shook the Norwegian capital of Oslo on 22 July 2011 not only destroying government buildings, but also taking eight people to their deaths. However, this was only the prelude to the horrors that unfolded almost thirty kilometers away. There, on the resort island of Utøya, sixty-nine participants of a Young Socialists summer camp were shot dead. Based on our current understanding of events, all these acts can be attributed to one single person who believed himself to be fighting an ideological battle against the supposed evil. Before the attacks, the perpetrator put his convictions into writing and sent many pages around the world via the Internet.
Terrorist Attacks Against the Natural Environment: A Phantom or a Real Danger
Authors: Heger Martin
Published: March 2019

During the last few decades scholars have discussed various different scenarios of modern terrorism. One of these scenarios –– Islamic motivated terrorism –– came to light with the attacks on the World Trade Center on 11 September 2001. Another scenario discussed involves terrorist attacks against the natural environment as part of so-called “eco-terrorism”. These attacks are either carried out using traditional weapons or the often-discussed “bioterrorism”, where biological weapons are manufactured and misused by terrorists.
Theorizing Transnational Law – Observations on a Birthday
Authors: Baer Susanne
Published: March 2019

There are many ways to theorize transnational law. As always, there is a mainstream, and there are “sidestreams.” However, it may be more interesting to consider from which direction such theories develop. Here, in appreciation of what the German Law Journal did to transnational legal conversations, I suggest to consider three directions in transnational legal studies: (1) theorizing from above; (2) theorizing from below; and (3) theorizing from inside. As you will see, much of the theories are in the German Law Journal (GLJ).
Member State Liability vs. National Procedural Autonomy: What Rules for Judicial Breach of EU Law?
Authors: Zingales Nicolo
Published: March 2019

InTraghetti del Mediterraneo SpA in Liquidation v. Italian Republic, the European Court of Justice (EG) ruled that Community law precludes the existence of two types of national rules that limit State liability: (1) rules that exclude liability for damages due to an infringement of Community law that arises out of an interpretation of legal provisions or an assessment of facts or evidence carried out by a court adjudicating at last instance, or (2) those limiting liability solely to cases of intentional fault and serious misconduct on the part of the court, if such a limitation were to lead to exclusion of the liability of the Member State in other cases where a manifest infringement of the applicable law was committed. This article, while recognizing that the ruling inTraghetti del Mediterraneois in line with previous case-law on Member States' liability for breach of EU law, casts some doubts as to whether such an invasion of an area traditionally regulated by national law is in fact desirable. It questions what the foundations are of the procedural rights conferred by European law, and, in doing so, the extent to which European law can tamper with the constitutional balance of a state. Finally, it provides some tentative solutions to the dilemma faced by Italian law following the delivery of theTraghetti del Mediterraneojudgement.
Postscript on “The Serious Consequences of Word Games”: The Signaling Game around the “Final Opportunity” for Iraq in Security Council Resolution 1441
Authors: Scott Craig
Published: March 2019

This brief essay is intended to be read as a supplement to the article “Iraq and the Serious Consequences of Word Games: Language, Violence and Responsibility in the Security Council,” which was published in the German Law Journal on 1 November 2002. The date of publication was exactly one week before the Security Council voted on Resolution 1441, the text of which was still evolving during the last week of October 2002. What follows is a narrative that traces the trajectory of the Resolution's textual language from the provisions of a 21 October US-UK draft to the final form as of Security Council Resolution 1441, adopted on 8 November 2002.
Fundamental Freedoms, Fundamental Rights, and the Scope of Free Movement Law
Authors: de Cecco Francesco
Published: March 2019

The relation between internal market freedoms (the so-called“fundamental freedoms”) and fundamental rights is a recurring question in EU law. In recent years, after rulings such asSchmidberger, Omega, Viking, andLaval, attempts to provide a framework for approaching and resolving clashes between fundamental freedoms and fundamental rights have acquired a special urgency. Less attention, however, has been devoted to capturing the different nature of fundamental freedoms and fundamental rights, and to evaluating the implications of the choice whether or not to include fundamental freedoms in the same category as fundamental rights. The dominant focus in the literature is on what happens when free movement and fundamental rights pull in different directions. Yet, the question of whether fundamental freedoms should be regarded as fundamental rights also deserves close scrutiny. It is especially important to understand the implications of this classification since the EU Charter of Fundamental Rights appears to treat some, but not all, fundamental freedoms as fundamental rights. In particular, the Charter seems to regard the free movement of persons and services as fundamental rights, but not the free movement of goods or the free movement of capital. A similar approach is exhibited in the case law: While the Court recognizes the fundamental rights character of free movement of persons, it does not appear to extend that characterization to the entirety of free movement law. This article attempts to make sense of this dichotomy by relying on an account of fundamental rights that adopts a non-instrumental focus on the right-holder. It argues that certain free movement provisions, namely the free movement of goods and capital, cannot be characterized as fundamental rights because they are inherently instrumental—they are a means to the internal market end. By contrast, the other free movement provisions appear to match the account of fundamental rights adopted here. As this article aims to show, the classification of certain, or all, fundamental freedoms as fundamental rights is a question that affects the interpretation of thescopeof the free movement provisions. Moreover, as will be seen, the question is closely related to the debate on the convergence between the free movement provisions, and on the persistence of the “wholly internal rule,” the rule that requires a cross-border connection to trigger the application of free movement law.
Data Protection in the Federal Republic of Germany and the European Union: An Unequal Playing Field
Authors: Zell Anne-Marie
Published: March 2019

With the negotiation of its Data Protection Regulation, the European Union seeks to reform an outdated set of laws that has failed to address the evolving data protection challenges inherent in new technologies such as social networks, e-commerce, cloud computing, and location-based services. This article addresses the forthcoming Data Protection Regulation as well as the current state of data protection law in the EU, with a particular focus on Germany. The first part of the article examines Germany's robust data protection framework and the EU's existing authority. The article then raises key issues related to data protection in Germany and the EU—namely, discrepancies in data protection standards and enforcement among EU Member States—as illustrated by recent, high profile cases involving household names like Facebook, Apple, Google, and Amazon. Through this analysis, the article attempts to explain how and why companies doing business in Germany, but established in other EU Member States, are subject to less stringent data protection standards than German companies. Lastly, the article synthesizes the issues in debate with regard to the draft Data Protection Regulation and offers perspectives on what the Regulation could and should mean for data protection in the EU.
Dimensions of Citizenship
Authors: Mindus Patricia
Published: March 2019

The Maastricht Treaty (the “Treaty”) first introduced the status of EU citizenship. The twentieth anniversary of the signing of the Treaty, marked in 2013, was declared the European Year of the Citizen. Union citizenship has been understood as the world's first post-national citizenship, although it is still complementary to national citizenships. EU citizens enjoy rights that have been expanded, modified, and reinterpreted in light of the EU integration process. The Court of Justice of the European Union (CJEU) has been a driving force in this process. This twentieth anniversary has provided theoccasiofor this special issue. Indeed, much has happened over the last two decades. The Maastricht Treaty entered into force on the heels of German reunification, and afterwards, a series of EU treaties followed: The Amsterdam Treaty, the Nice Charter of Fundamental Rights, the aborted constitutionalization process and the Rome Treaty in 2004, and the Treaty of Lisbon. The Euro took over former national currencies in 2002; the enlargement process led to today's twenty-eight Member States. But theratioof this special issue is based on other events as linked to the 2008 financial crisis, bailouts, the fiscal compact, and similar measures. In a nutshell, the timeliness of this volume is linked to the current financial disarray. Since prognosis presupposes diagnosis, no further words are necessary as to the importance of this task. It is (almost) self-evident that before taking action and preparing for the future, one needs to address the very first question:Nosce te ipsumor know thyself. Union citizens need to take a step back and ask what they need to be and who they want to become.
Ethics and Corruption: An Introduction to the Special Issue
Authors: Graeff Peter
Published: March 2019

Corruption necessarily involves particularistic advantages at the expense of the society as a whole. It might be, however, misleading to assume these implications area priorinegative. The moral assessment of corrupt practices depends on contemporary ethical standards, which differ from country to country and undergo change over time. As a result, some practices labeled as corrupt might become legitimate while others turn from legitimate actions to offenses. When ethical dimensions are considered, corrupt practices reveal an inherent tension between particularistic and universalistic normative standards. Particularistic standards belong to the person-specific obligations and the expectations of actors involved in corruption. These necessarily clash with universalistic standards, which are valid and applicable for everyone and are usually approved by legal provisions or codes of conduct. As a result corrupt exchanges reveal both positive social features between corruption partners—such as mutual trust—and negative societal ramifications—such as disadvantages of non-involved actors. Corrupt partners behave fairly and honestly with respect to their partners but unfairly and dishonestly with respect to anyone else.
Dark Sides of Anti-Corruption Law: A Typology and Recent Developments in German Anti-Bribery Legislation
Authors: Wolf Sebastian
Published: March 2019

This Article takes a preliminary look at some distinct, unintended effects of anti-bribery law. In an exemplary and exploratory way, it intends to examine structural socio-legal problems and dilemmas of designing and implementing legislation against corruption. Firstly, it outlines four ideal types of legal norms that are meant to combat corruption but display significant negative features. Secondly, the typology is briefly applied to selected recent developments in German federal anti-bribery legislation. The Article concludes,inter alia, that the design, implementation, and interpretation of anti-corruption law is full of functional, legal, political, and moral pitfalls.
Same-Sex Marriage and the Role of Transnational Law: Changes in the European Landscape
Authors: Fichera Massimo
Published: March 2019

This Article has a twofold aim. First, it focuses on a particular case study, which has attracted the interest of several scholars from an interdisciplinary perspective: the legalization of same-sex marriage. The Article aims to show how changes in one specific socio-cultural landscape may spill into other contexts as a result of a ripple effect. The idea is to demonstrate how the emergence of a social fact—the increasing demands made by homosexual couples for their union to be recognized in one way or another—may make the process of institutionalization natural. A legal system may sometimes be bound to recognize social facts, and transnational law may enhance this phenomenon. The second aim of the Article is to claim is that, when analyzing change, legal deterministic theories should be dismissed, as they are based upon easy assumptions that do not correspond to empirical observations. Instead, as shown by constructivist approaches, the combined effect of structure and agency in some specific circumstances contributes to social and legal change. However, constructivists perhaps underestimate the relevance of unpredictable events and the (positive or negative) influence that transnational frameworks may have in forming discourses of power. In particular, the EU and the ECtHR systems may facilitate the diffusion of ideas and norms deriving directly from the liberal paradigm that inspire them. However, the liberal paradigm is contradictory, as it does not necessarily provide an incentive for change.
Meditating the Different Concepts of Corporate Criminal Liability in England and Germany
Authors: Beck Susanne
Published: March 2019

Today's world has been deeply affected by globalization. Different cultures have deepened their knowledge of each other and are forced to create common solutions to worldwide problems. This has led to an increasing interest in comparing different nations’ approaches to common problems.
Germany's Dialogue with Strasbourg: Extrapolating theBundesverfassungsgericht'sRelationship with the European Court of Human Rights in the Preventive Detention Decision
Authors: Peters Birgit
Published: March 2019

Within the Council of Europe, the relationship between the ECtHR and the member states is crucial for the survival and effective functioning of the Court. The ECtHR is currently overwhelmed by applications, the bulk of which emanate from a relatively small number of states, notably Russia, Rumania, Turkey, and the Ukraine. The backlog of cases will soon be toppling the vertiginous mark of 160,000, the adjudication of which alone would take the Court more than six years. The sheer number of cases exemplifies the system's urgent need for reform. Lately, discussions have been heavily influenced by considerations of subsidiarity, which the earlier Interlaken Declaration-as well as the recent Brighton Conference-emphasized as the key for the future relationship between the ECtHR and member states. Discussions about the principle's proper role in the relationship between member states and the ECHR, however, are far from over. This is due to questions regarding the principle itself, as well as to the factual realities dominating in the ECtHR-national court relationship. The principle often focuses on a strict separation of competences at two different levels, the national and the international, and many understandings of that principle require that the two levels stand in a more or less hierarchical relationship. This is difficult to assume in the Council of Europe context, where, compared to the EU, neither the doctrine of direct effect nor the principle of primacy in application reigns. Moreover, Strasbourg's emphasis on subsidiarity appears to focus on the responsibility of the member states to remedy human rights violations. In line with that argument, scholars have opined that the ECHR system should focus on an approach in which the ECtHR would be involved only if there are good reasons to depart from interpretation at the national level. Nonetheless, others recently doubted the overall usefulness of such an understanding of subsidiarity, since those member states responsible for the lion's share of new applications to the ECHR often neither possess a functioning judiciary nor functioning judicial or executive institutions, in general.
Recent Developments in Austrian Asylum Law: A Race to the Bottom?
Authors: Benedek Wolfgang
Published: March 2019

The Austrian asylum policy is shifting from a showcase of support to asylum seekers to one of the most restrictive in Europe. Recent amendments to the asylum law are due to the massive influx of asylum seekers in 2015/2016 as a result of which Austria has accepted the second largest number of asylum seekers per capita in Europe. The Austrian government first responded by setting an upper limit of asylum applications from 2016 and then by creating the possibility of suspending its obligations under international and European asylum law. Both measures are legally doubtful and based on the assumption that if the upper limit is met this may threaten the maintenance of public order and the protection of internal security, which is not possible to prove. The contribution provides a legal analysis of the recent legal developments in Austrian asylum law, which are reviewed from the perspective of international and European asylum law as well as human rights. It concludes that the Austrian measures are part of a race to the bottom of European countries with the purpose of keeping refugees away. They cannot be justified from a legal perspective and create a threat to the respect for the rule of law.
The Refugee Crisis as a Challenge for Public Law: The Italian Case
Authors: Savino Mario
Published: March 2019

Since 2014, the refugee crisis has determined a sharp increase in the number of unauthorized arrivals on the Italian shores. However, contrary to what happened in other less affected European Union countries, the Italian government has not reacted with an antiimmigration policy. Rather, it has tried to reconcile the overarching imperative of a full compliance with EU norms regulating external border controls with the observance of the most compelling humanitarian obligations. The results have been mixed. Both the functionalist bias that is inherent in the administrative action and the legislative inertia during the crisis have produced a detrimental impact on the fundamental freedoms of the migrants. The Article addresses four main constitutional challenges: (1) The lack of legislative authorization for the imposition of coercive means in the context of the “hotspot approach”; (2) the deficiencies of the Italian system for the reception of asylum seekers and refugees, which became a source of destabilization of the Dublin system and the Schengen area; (3) the low level of due process protection that is guaranteed to migrants that are subject to return procedures; and (4) the problematic need to cooperate with third countries that do not adequately protect human rights. The Italian case illustrates a distinctive, yet more general trend. For member states who are geographically exposed to migration flows and whose borders overlap with the external borders of the Schengen area, developing an antiimmigration or anti-EU policy would be short-sighted and self-defeating. Those states need more—rather than less—Europe because they cannot stop the migration inflow. And they need to effectively manage it because it is the only way to keep the Schengen area alive—and not to be excluded from it.
Financial Services, the EU, and Brexit: An Uncertain Future for the City?
Authors: Moloney Niamh
Published: March 2019

The financial services industry is of central importance to the UK economy. It represents some 7% of GDP. It also generates major exports for the UK - in the region of one-third of UK financial services are exported to the EU. News reports in the immediate aftermath of the referendum result included the sharp drop in banking stocks; the overtures being made to attract UK financial business away from the City to other EU centres; and plans by leading financial institutions to move some operations away from the City. Vivid illustrations all of the importance of the Brexit vote for the City and the UK financial services industry.
Reality and Illusion in EU Data Transfer Regulation PostSchrems
Authors: Kuner Christopher
Published: March 2019

The judgment of the Court of Justice of the European Union inSchrems v. Data Protection Commissioner, in which the Court invalidated the EU-US Safe Harbour arrangement, is a landmark in EU data protection law. The judgment affirms the fundamental right to data protection in the context of international data transfers, defines an adequate level of data protection, and illustrates how data protection rights under EU law can apply to data processing in third countries. It also raises questions about the status of other legal bases for international data transfers under EU law, and shows that many legal disputes concerning data transfers are essentially political arguments in disguise. TheSchremsjudgment illustrates the tendency of EU data protection law to focus on legalistic mechanisms to protect data transfers rather than on protection in practice. The EU and the US have since agreed on a replacement for the Safe Harbour (the EU-US Privacy Shield), the validity of which will likely be tested in the Court of Justice. Regulation of data transfers needs to go beyond formalistic measures and legal fictions, in order to move from illusion to reality.