bluuebunny/crossref_metadata_2025 huggingface dataset:
American and European Constitutionalism Compared: A Report from the UNIDEM Conference in Göttingen, 23-24 May, 2003
Authors: Goodwin Morag , Zumbansen Peer
Published: March 2019

There is currently a considerable amount of soul-searching underway by scholars on both sides of the Atlantic. For the cosmopolitanites of the academic world, the unpleasant disagreements over policy towards Iraq between Old Europe and the New World were not only unsettling but symptomatic of a more deep-seated disagreement between (former) friends. The theme of the Unidem seminar, held at the University of Göttingen on May 23-24, 2003, can be seen as sitting nicely within a desire for an explanation for this tension. Clearly underlying the organization of the conference, choice of themes and the invitation of speakers was the organizer's desire to reach a greater understanding of the difference and similarities between constitutionalism in Europe and in the United States and the reasons for and consequences of these divergences. Thus, although the Iraqi crisis obviously took place long after the theme of the conference had been conceived (and it has to be said that Georg Nolte's conferences appear to have a habit of coming hard on the heels of related dramatic events in the real world, suggesting an almost magical foresight on his part), it should nevertheless be understood as falling within this movement.
Interpreting the Fall of a Monument
Authors: Habermas Jürgen
Published: March 2019

On April 9th, the entire world watched as American troops threw a noose round the neck of the dictator and, surrounded by jubilant throngs of Iraqis, pulled him off his pedestal. The apparently unshakeable monument tottered, and then finally fell. But before it crashed satisfyingly to the ground, there was a momentary pause before the force of gravity could overcome the statue's grotesquely unnatural, horizontal posture. Bobbing gently up and down, the massive figure clung, for one last moment, to its horror.
New Transatlantic Tension and the Kagan Phenomenon: A Primer
Authors: Smith Craig
Published: March 2019

A dark cloud appears to have settled over the northern Atlantic. With regard to fostering international security, consensus-based cooperation between Europe and the United States seems overshadowed by tension, divisiveness, and uncertainty. This must dismay anyone who believes that even-handed cooperation would yield more peaceful prosperity than uncoordinated, competitive efforts.
Rethinking Judicial Review: The Latest Decision of the Plenum of the Federal Constitutional Court
Authors: genannt Döhmann Indra Spiecker
Published: March 2019

In the past few years, almost half of the Verfassungsbeschwerden (individual constitutional complaints) brought before the Bundesverfassungsgericht (BVerfG –Federal Constitutional Court) claimed a violation of the Recht auf rechtliches Gehör (right to a hearing in court), guaranteed in Art. 103 para. 1 of the Grundgesetz (GG – German Basic Law). These constitutional complaints do not only constitute the largest number of all constitutional complaints, they are also the most successful ones: If such a violation is plausible, then the Court usually does not make use of its discretion to refuse to hear the case, but rules on the merits in favor of the complainants.
The Necessity of a New Concept for the Further Development of the Consumer Law in the EU
Authors: Micklitz Hans-W.
Published: March 2019

The above question was raised by Ewoud Hondius a few years ago in his regularly held lectures on the state of consumer law in Europe at the University of Utrecht. The European consumer programme in its basic structure dates from the years 1975 respectively 1981. It is rooted in President Kennedy's message to the consumers from the year 1962. Substantial variations cannot be recognised regarding both consumer programmes. Notifications, programmatic declarations and new impulses adopted after 1981 – the titles of the messages were changing constantly – did not alter the fundamental statement of the original programme. If President Kennedy's message is proceeded from, then it could be formulated, with some exaggeration, that European consumer law in its fundamental ideas is 40 years old.
History and Law - A German-French approximation of Historians’ and Lawyers’ Writing on the History of Law – Centre Marc Bloch, Berlin, 24 June 2003
Authors: Litzinger Heike
Published: March 2019

Originally, a number of French and German historians and legal scholars merely planned to meet in Berlin at the Centre Marc Bloch to speak - both in French and in German - about the interdisciplinary challenges that have been emerging with regard to historians working on the history of law or, legal history. Eventually, the dimensions of the envisioned meeting widened as PhD-students and fellows working at the Centre and at other institutions expressed their interest in the topic. Step by step, he initial scope was extended to grow into a full day's workshop on June 24th, 2003, attracting some twenty-five scholars of history, law and the history of art to Berlin's Schiffbauer Damm, where the Centre Marc Bloch is situated. The workshop, organized by Anne-Sophie Beau, Isabelle Deflers, Thomas Horstmann, Guillaume Mouralis and Petra Overath, convened under the title: “History and Law: a mutual approach. Assessing the Dialogue between the History of Law and the Historical Sciences”.
Inconsistencies and Consistencies in 19th Century Legal Theory+
Authors: Ogorek Regina
Published: March 2019

Historical evaluations are expected to mark a starting point and, at the end, produce a result, which then shows a “development” from the starting point. This development need not be in a straight line. It may have made detours and suffered set-backs. Altogether, however, it connects beginning and end like a red thread; it is possible to see from this the task of the historian, picking up this thread like a careful housewife, undoing knots and loops, winding up assiduously and finally presenting a tidy ball of work.
From Universalistic Law to the Law of Uncertainty: On the Decay of the Legal Order's “Totalizing Teleology” as Treated in the Methodological Discussion and its Critique from the Left+
Authors: Ladeur Karl-Heinz
Published: March 2019

The practical principle of legal certainty, in the sense of a regularity and calculability of legal practice, has a “deep structure”, which can be found in Kant's attempt at a new foundation of morality through universalistic formality. In both cases the concern is identical: to break with the dispersed local practices used to integrate norm and facts, and to execute a break which would at last give normativity a systematic independence. The existence and continuity of substantial tradition, of particular customs, should be interrupted by the pre-supposition of a law distinguished by its pure, universalistic form. The unified life-world (Lebenswelt) would thus be split into norm and norm-application, thereby founding a new meaning-givingdeductionof practice. Action could find normative meaning only through the fracturing of the continuity of life-contexts in the mirror of the generalized other.
Kelsen, Sander, and the Gegenstandsproblem of Legal Science
Authors: Kletzer Christoph
Published: March 2019

One of the main problems which has emerged in recent years in the debates of legal positivism has been a rather defensive twist in its self-understanding (i.e., its self-affirmation in terms of what it is not). Now, whereas such a negative approach does not in itself pose a problem, in the case of legal positivism it has led to a series of rearguard battles against claims stemming, on the one hand, in more general philosophic developments, and, on the other, in doctrinal legal scholarship. The result has been that some have wondered if between those conceptual and institutional demarcations, between the philosophic and the juridical departments, there actually remains anything for positivism to stand for. Is there anything it actually claims? Accordingly, a perceived dilemma of positivism has emerged along the following lines: insofar as legal positivism makes a sound claim, this claim is very weak and, by itself, not very interesting; insofar, however, as positivism tries to make a strong and interesting claim, this claim can be shown to be fundamentally misguided.
The Legal Theory of the Juridical Coup: Constituent Power Now
Authors: Corrias Luigi
Published: March 2019

In a thought-provoking article, Alec Stone Sweet put forward a problem he called the juridical Coup d'État. His work was the opening of a debate to which Neil Walker, Wojciech Sadurski and Gianluigi Palombella contributed. In a subsequent essay, Stone Sweet responded to their comments. In this article, I would like to sketch this debate and explore its significance for legal theory. It is my hypothesis that the problem of the juridical coup is closely connected with the relationship between constituent (constituting) and constituted (constitutional) power. Moreover, the juridical coup shows in an exemplary way how this relationship should be understood. Before addressing the problem in these terms (Section C), analyzing an additional example of a juridical coup in EU law (Section D) and developing my own position vis-à-vis the different contributors (Section E), in the following section, I will give an overview of the argument of Stone Sweet. Taking into account the wealth of issues raised by him, I will concentrate on those aspects of his essay that are of most interest from a legal-philosophical point of view. Thus, the first question to be answered is: What are we to understand under a Juridical Coup d'État and what is its theoretical importance?
American Liberalism and Germany's Rejection of the National Socialist Past—The 1973Roe v. WadeDecision and the 1975 GermanAbortion I Casein Historical Perspective
Authors: Lange Felix
Published: March 2019

“The right of privacy … is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.”
The EU as a Promoter of Values and the European Global Project
Authors: Herlin-Karnell Ester
Published: March 2019

The international arena is increasingly important in EU legal discourse. Using the word “global” is highly fashionable at present, but what does it mean to refer to this concept? It is not an exaggeration to claim that if “constitutionalism” is added to the picture you have a new catchphrase for understanding the EU legal architecture beyond the nation state and its interrelationship with the external sphere: “Global constitutionalism.” Much of the discussion on the normative dimension of EU powers is centered on the function of the EU as a promoter of values abroad. This is also what the Lisbon Treaty promises as set out in Article 3(5) and Article 21 in the Treaty of the European Union (TEU) by guaranteeing,inter alia, that the EU shall uphold its values in the relationship with the wider world and contribute to the protection of its citizens. As witnessed in the recent judgment on the validity of the EU's Emissions Trading System (ETS), the EU's values may sometimes spill over to the global level. In theETScase, the Court of Justice set out to make a powerful statement on the importance of environmental protection, even when such concerns extend beyond the borders of Europe. Therefore, the question of global constitutionalism in the EU seems inextricably linked to the normative question of what values the EU should promote or conversely “borrow” from the outside world.
Public Participation in Global Environmental Governance and the Equator Principles: Potential and Pitfalls
Authors: Mikadze Kirsten
Published: March 2019

Despite the increasing urgency of global environmental issues, international environmental law continues to struggle for relevancy and effectiveness. Even as legal efforts have intensified, the global environment has continued to deteriorate. In particular, state-centric, multilateral “hard law” instruments have proven an increasingly ineffectual means of regulating the global environment.
Public-Private Hybrid Governance for Electronic Payments in the European Union
Authors: Janczuk-Gorywoda Agnieszka
Published: March 2019

The aim of this contribution is to illustrate the evolution of the Single Euro Payments Area (SEPA) as a form of European hybrid governance. The hybridity of SEPA is found in the interaction between traditional hard law, soft law and privately produced rules. The public and private systems of rules – public in the form of European directives and regulations and private in the form of multilateral agreements among payment service providers (SEPA Rulebooks) – coexist and mutually shape the structure of the European payments system. These two systems of rules have formally been produced within independent rulemaking processes and by discrete rule-makers – public and private respectively. However, public actors have exercised a considerable amount of influence over the private rules. They have done so through informal yet systematized interactions with private actors and through a series of soft laws. Andvice versa, private rule-makers and privately-produced rules substantially have affected the content of public rules.
The Equator Principles: Evaluating the Exposure of Commercial Lenders to Socio-Environmental Risk
Authors: Lozinski Andrian
Published: March 2019

As a system of managing environmental and social risk in the sector of large-scale international project finance, the Equator Principles (EPs) have generated increased interest and critical engagement in the private, public, and academic spheres. Particular research in the field of transnational governance is especially concerned with assessing the degree in which private and public actors are revolutionizing the methods and procedures of governance in the wake of the decline of the welfare state, and rise of the post-regulatory state. Social scientists and legal theorists alike have begun analyzing the effects of a shift in the “emphasis of control, to a greater or lesser degree, from traditional bureaucratic mechanisms towards instruments of regulation.” Within this context, the EPs present an opportunity to analyze and assess the structure, procedures and effectiveness of a self-regulatory governance system, voluntarily established by private actors in the international project finance sector, to mitigate social and environmental risks.
Do Lenders Make Effective Regulators? An Assessment of the Equator Principles on Project Finance
Authors: Sarro Douglas
Published: March 2019

Over the past decade and a half, private sector actors have developed innumerable environmental and social standards whose stated intention is to further global public interests, such as sustainable development in less developed countries (LDCs). While some authors have welcomed these standards as a means of addressing transnational problems that governments are ill-equipped to deal with, others argue that these standards often amount to little more than a public relations exercise, with private actors producing high-minded standards on paper but failing to enforce them in practice.
Right to Resistance and Terrorism – the Example of Germany
Authors: Gesk Georg
Published: March 2019

The right to resistance against state power is very often characterized by actions against an existing legal order that is perceived as being unjust and therefore both – illegitimate and illegal. Terrorism, on the other hand, is often defined as politically motivated violence that is prosecuted by state power according to the law and although the terrorist views his actions as being justified by the perceived illegitimacy of state power, the state by itself is not willing to accept such a point of view – henceforth the prosecution. Therefore we can often find situations where both sides claim legitimacy and legality, mutually excluding each other's positions. This situation is only one of many that epitomize and exemplifies the more common problem of paradox in law: any society that aims at harmonizing conflicts through law will find itself in the not so comfortable position that the basic principle of justice – the quest for treating similar things alike – inevitably leads to cases where we have to face a direct conflict of laws. Either one law is just and therefore ought to apply, or the other, but we will not be able to apply both at the same time, since they may turn out conflicting results.
Review Essay – The Criminal Judge as Modern Inquisitor
Authors: Pawlik Michael
Published: March 2019

The term “inquisition” has had bad press for a long time. Comparably bad is the reputation of the inquisitorial system, a judicial model that dominated German criminal law enforcement until the beginning of the 19th century. A distinctive feature of inquisitorial proceedings is the eminently strong position of the inquisitor who unifies the functions of an investigator, a prosecutor, and a judge in one and the same person. Although the codes of criminal procedure in the German states – which in 1871 formed the Kaiserreich (German Empire of 1871-1918)– included detailed rules of evidence to prevent arbitrary investigations, at the beginning of the 19th century it was a common opinion that these control mechanisms were practically insufficient and that the inquisitorial system ought to be replaced by a judicial model, which would guarantee more effective protection of the defendant against unjustified conviction.
European Law as Transnational Law – Europe Has to Be Conceived as an Heterarchical Network and Not as a Superstate!
Authors: Ladeur Karl-Heinz
Published: March 2019

Due to the Europeanisation of law, and the constitutionalisation of the European Union in particular, the Habermas argument seems to be quite appealing to many. Globalisation is interpreted as having curbed the State's capability to impose norms on the transnational process of expanding markets. This evolution seems to have not only reduced the action potential of the State but, at the same time and even more importantly, it also has reduced the value of citizenship. Citizenship can no longer be the core element of the relationship between the individual and the State in the postmodern society. It cannot be constituted via a direct relationship with the State, which at the same time constitutes the realm of deliberation because the diffuse networks of transnational inter-relationships beyond the State cannot be reflected by the process of public deliberation. The space of the State is, on the one hand, too small. On the other hand, it may appear to be too big. Against this background Europe cannot be regarded as the bearer of the European acquis étatique (the acquired state).
Europe as Transnational Law – A Criminal Law for Europe: Between National Heritage and Transnational Necessities
Authors: Safferling Christoph J.M.
Published: March 2019

Criminal law is different, it is often said, from other areas of law in that it is rooted in and thus depends on national heritage to a great extent. This uniqueness is recognized by European institutions, as expressed by General Advocat Mazák in a case concerning the protection of the environment by means of criminal law:

“In many respects, criminal law stands out from other areas of law. Availing itself of the most severe and most dissuasive tool of social control – punishments – it delineates the outer limits of acceptable behaviour and in that way protects the values held dearest by the community at large. As an expression essentially of the common will, criminal penalties reflect particular social disapproval and are in that respect of a qualitatively different nature as compared with other punishments such as administrative sanctions.
Religion in the EU: Using Modified Public Reason to Define European Human Rights
Authors: Awe Brian M.
Published: March 2019

At the current stage of its evolution, the European Union (“Union” or “EU”) has reached a juncture where many leaders and scholars believe that greater integration is both desirable and necessary. Presumably, a primary method by which greater solidarity and integration can be achieved within the EU is through the public inclusion of common value-laden concepts – as defined through a dialectical process – present within comprehensive doctrines such as religion. To date, however, an effective and inclusive means for utilizing religion in this manner has yet to be formulated. In response, this article takes two prominent paradigms – Jurgen Habermas' intersubjective discourse theory and John Rawls' liberalism – to approach the problem and draws from them a new solution that, while tied to their theoretical underpinnings, is nonetheless a novel approach to achieving greater integration within the Union. Under this new framework, the process of legislatively defining human rights allows the morality common to European comprehensive doctrines – including official and unofficial religions – to bolster the Union's solidarity, legitimacy, and democracy both procedurally and substantively.
The Basic Law at 60 – Identity and Change
Authors: Grimm Dieter
Published: March 2019

The Basic Law, whose 60th anniversary we celebrate today, is not identical with the Constitution that was enacted on 23 May 1949. In the sixty years of its existence, it has been amended fifty-four times. Further amendments are under way. Many amendments concerned more than just one article. A little more than half of the 146 articles of the original text still read as they were framed in 1949. However, twenty-six of these unchanged articles are part of the “Transitional and Concluding Provisions.” A number of them were limited to one singular act of application, such as Art. 136 I (“The Bundesrat [Federal Council] shall convene for the first time on the day the Bundestag [national parliament] first convenes.”), and lost their normative value with the completion of the given act. A little less than half of the original articles, and the Preamble, have been subject to amendments; some of them several times. The forerunner is Art. 106 (apportionment of tax revenue), with six amendments. In addition, forty-seven articles have been added to the original text, some of which were repealed later.
The Basic Law at 60 – Reading the Grundgesetz
Authors: Rottleuthner Hubert
Published: March 2019

Sociology of law usually applies three basic distinctions that also can be applied to the analysis of the Grundgesetz (Basic Law or constitution).
The German Supervisory Board on its Way to Professionalism
Authors: Lieder Jan
Published: March 2019

The paper shows how the efficiency of the German supervisory board has been significantly improved in the last decade. These legal changes made the supervisory board climb to a higher position of power. In particular, the supervisory board is now significantly involved in the decision-making process on a company's overall strategic concept and on management decisions of fundamental importance. This emphasizes the future-oriented monitoring obligation of the supervisory board, which gained much more importance in the last decade. Furthermore, the new provisions increased the flow of information from the management board to the supervisory board, and they facilitated the monitoring efficiency of every single supervisory board member. In addition, several important changes improved the cooperation of supervisory board and auditors. The most recent changes strengthened the supervisory board's responsibility with regard to internal control and risk management.

The vest majority of those changes in the German supervisory board system are very welcome. However, the current regime of German codetermination as well as the excessive size of the supervisory board has to be changed. Under the important developments on the European level, the time has come to act now in this direction. The advocated concept of codetermination by consensus provides a solid basis for more flexibility in the rigid German corporate governance system. It is also desirable to further limit the size of the supervisory board to no more than twelve members. Finally, the efficiency of the corporate governance system would be improved by allowing enterprises to choose between a one-tier and a two-tier board system.
Goods, Persons, Services and Capital in the European Union: Jurisprudential Routes to Free Movement
Authors: Connor Tim
Published: March 2019

This Paper considers the jurisprudence of the Court of Justice in relation to the free movement provisions of European Community law in relation to goods, persons, services and capital within the European Union. It examines the bases used by the Court in its application of Community free movement provisions to national measures that may seek to hinder the exercise of such rights. From limited enquiry originally founded on considerations of non discrimination based on nationality, to one most recently focussed on the ‘restriction’ to the free movement right, the Paper examines the methods employed by the Court of Justice in its scrutiny of the national measure appearing to conflict with Treaty free movement rights.

The examination of the applicable free movement jurisprudence attempts to demonstrate the want of a thematically consistent underpinning within free movement case law. The Paper draws attention to the complexities and even the confusions that appear to be inherent within free movement jurisprudence and arguably evidenced within the Court's journey from ‘discrimination’ to ‘restriction’ as the basis of the enquiry with regard to the application of Treaty free movement rights. In its consideration of Case C-110/05Commission v Italy, Case C-142/05Åklagaren v. Percy Mickelsson v. Joakim Roos, recent jurisprudence with respect to the free movement of goods, the Paper notes that in the context of the ‘measure having equivalent effect’, the emphasis in the assessment of the national rule has shifted to an examination of the effect on market access, rather than a distinction based on the type of rule.
Corporate Human Rights Obligations under Stabilization Clauses
Authors: Černič Jernej Letnar
Published: March 2019

Lawyers, economists and social scientists alike have for a number of years agreed that foreign investment has the potential to act as a catalyst for the enjoyment of an individual's fundamental human rights, particularly in developing countries. This article discusses and critically analyses corporate human rights obligations and the lack thereof under stabilization clauses in foreign investment contracts. The balance of this article is devoted to exploring three main issues relating to corporate human rights obligations and stabilization clauses. First, stabilization clauses in foreign investment agreements are examined in relation to corporate obligations and responsibility for fundamental human rights. In doing so the substantive and procedural dimension of stabilization clauses is analysed. Second, using the concrete examples of the Mineral Development Agreement between Mittal Steel and the Government of Liberia Mittal Steel Agreement and of the Baku-Tblisi-Ceyhan Pipeline Project as case studies, this article considers an application of stabilization clauses in foreign investment contracts in relation to the fundamental human rights obligation of states and of corporations. Third, a proposal for reform in the form of a fundamental human rights clause is introduced. To be clear, the argument here is that the fundamental human rights obligations of investors, particularly of corporations, must be included in foreign investment agreements.
Financial Crisis and German Criminal Law: Managers' Responsibility for Highly-Speculative Trading in Obscure Asset-Backed Securities Based on American Subprime Mortgages
Authors: Krey Volker , Stenger Jan , Windgätter Oliver , Roggenfelder Thomas
Published: March 2019

“Should bankers be publicly hanged for what they have done?” During a visit to Abu Dhabi in March 2009, the author came upon this sarcastic question while reading the well-known United Arab Emirates' journal “The National.” The aforesaid question was part of an interview with Paul Koster, chief executive of the Dubai Financial Services Authority, concerning the financial crisis. He answered in the negative by saying, “There will be court cases, but public hanging is a bit extreme.” His statement has, in a way, anticipated the result of the paper at hand: There should be criminal proceedings in Germany as well; however, they should not result in draconian criminal consequences.
Core of State Sovereignty and Boundaries of European Union's Identity in theLissabon – Urteil
Authors: Lanza Elisabetta
Published: March 2019

In the 2009 judgment dealing with the Treaty of Lisbon, the German Federal Constitutional Court urges to modify a domestic statute in order to guarantee the rights of the internal rule-making power and also provides a reasoning on the role of the European Union (EU) as an international organization, the principle of sovereignty and the relations between European Institutions and Bodies and the EU Member States. According to the German Court the Treaty of Lisbon does not transform the European Union into a Federal State(Staatsverband), but into a Confederation of States(Staatenverbund).In spite of the 1993 landmark judgment, the so-called “Maastricht Urteil”, the Court steps forward and focuses also the subject-matters that necessarily have to pertain to the Member States jurisdiction, the so-called “domain reserve”. The German Federal Constitutional Court decision on the Lisbon Treaty arouses the reflection on the core of State sovereignty and on the boundaries of the EU legal system and focuses on the force of the right to vote of every citizen, the basis of democracy.

Furthermore, the decision of the German Federal Constitutional Court highlights the well-known issue of the EU's identity and the balancing between EU democracy and Member State sovereignty. In the light of the German Constitutional Court statements, the present work aims to understand which could be actually the EU's identity and how could be approached “democratic deficit” of the EU.
The Limitations of the Management Board's Directive Powers in German Stock Corporations
Authors: Böttcher Lars , Blasche Sebastian
Published: March 2019

The limitations of the management board's directive powers in German Stock Corporations are an important issue in German Corporate law. The German Stock Corporation or Aktiengesellschaft (“AG”) is the corporate organizational form most directly comparable to the publicly held corporation in the U.S. It is regulated by the German Stock Corporation Act (AktG). The defining feature of the AG is a two-tier board structure containing both a management board (Vorstand), which is in charge of managing the corporation, and a supervisory board (Aufsichtsrat), which is elected by the shareholders' meeting (Hauptversammlung) and which appoints and supervises the management board. The two boards are completely separate from each other, no overlap in membership is permitted.
A Viking We Will Go! Neo-Corporatism and Social Europe
Authors: Engle Eric
Published: March 2019

InVikingandLaval, the European Court of Justice (ECJ) adjudicated the rights of labor and capital mobility under E.U. law. Both cases strengthen the single European market through economic liberalization to generate greater prosperity for all Europeans as part of the process of European economic and political integration. Labor and capital mobility create greater prosperity for all through more rational market exchanges. Free trade is good for goods and is even better for labor. A liberalized and fully mobilized labor market results in more productivity and greater wealth in the European polity, as well as interdependence, and thereby deeper integration resulting in greater understanding and less conflict. The decisions, wrongly criticized by some as “bad for workers” are justified by the fact that they will benefit workers in Eastern Europe, consumers in Western Europe, and the Community as a whole by deepening integration. A key challenge for the European Union is to economically anchor and deepen the political restructuring of Eastern Europe by enabling the natural labor and capital movements which an open marketplace generates. Europe does this not with the failed neo-liberal model which has ravaged the wealth of the United States and squandered it in illusory booms based on consumer borrowing and deficit spending to fund war for oil. Rather, Europe is developing a neo-corporatist social model. This article uses theVikingandLavalcases as examples of this development.
“How Does it Feel to Be on Your Own?” - Mutual Recognition Agreements and Non-Discrimination in the GATS: A Third Party's Perspective
Authors: Cantore Carlo Maria
Published: March 2019

The aim of this working paper is to analyze the compatibility between two relevant provisions of the General Agreement on Trade in Services (GATS) under the World Trade Organization (WTO). The first is art. VII,Recognition, which seems to allow a Member to recognize standards of one or more Members—and not of others—without violating its GATS obligations, although this freedom should not be abused. The second is the generalNon-Discriminationprovision as of GATS art. II, since the aim of the GATS, at least as it reads in its preamble, is to provide a multilateral framework to trade liberalization in the services market on a non-discriminatory basis. Through the following pages, I will try to explain the rationale to sign Mutual Recognition Agreements (MRAs) and their impact on the GATS system. It is true that there is a general principle of transparency and openness of the MRAs, but it is necessary to get our hands dirty with the reality and understand if and how such an openness clause works.
The Promotion of the Rule of Law in the Western Balkans: The European Union's Role
Authors: Appicciafuoco Lara
Published: March 2019

The principle of the rule of law is a well-established notion at the core of modern constitutionalism and the undisputed building block of democratic governments. This principle is characterized by the breadth of its scope, the difficulty to strictly define its content, and the increasing possibility of a more or less broad interpretation. This explains the wide-ranging debate on the rule of law which has been developed over time with significant contributions from several disciplines, including philosophy, constitutional law, and international law.
Kosovo – So What? The Holding of the International Court of Justice is not the Last Word on Kosovo's Independence
Authors: Bothe Michael
Published: March 2019

At a first glance the International Court of Justice (ICJ) has given a clear negative answer to the question submitted to it by the General Assembly. According to the ICJ's advisory opinion from 22 July 2010, Kosovo's declaration of independence did not constitute a violation of international law. Yet, reading the reasons the ICJ offered in support of its holding, one soon discovers that many relevant questions have been left open.
Twenty Years of CJEU Jurisprudence on Citizenship
Authors: de Groot Prof. Dr. Gerard-René , Luk Ngo Chun
Published: March 2019

The history of the European Union has been fraught with constant friction between the sovereignty of the Member States and the supranational powers of the Union, with the Union gaining terrain in fields of law traditionally belonging to the Member States. Despite this tension, certain legal fields are steadfastly asserted as belonging to the Member States. Notably, Member States regulate the grounds of the acquisition and loss of nationality. The Treaty of Lisbon highlights that the nationality of Member States is scarcely governed by European Union law, if at all. The sole provision governing the relationship between Member State nationality and Union law, i.e., Article 20 of the Treaty on the Functioning of the European Union (TFEU) stresses the primacy of Member State nationality.

Reality, however, is often not as simple as such a cursory reading implies. European Union citizenship, once a mere complementary facet of the national citizenships, has transformed into an institution in its own right, forming a symbiotic relationship between the Member State nationality and the European Union.
Nationality and Identity Issues-A Danish Perspective
Authors: Ersb⊘ll Eva
Published: March 2019

According to the European Convention on Nationality (1997), nationality-or the term “citizenship” used as synonymous with nationality-means a legal bond between a person and a state. As such, nationality is linked to nation building. Nationality can also be defined as equal membership in a political community, and as a status to which rights and duties, participatory practices and a sense of national identity are attached. In other words, nationality constitutes an important element of a person's identity.

European Union citizenship is linked to nationality in an EU Member State. Union citizenship grants rights to the Member State nationals and may be defined as membership in a larger political community, the EU. Union citizenship is meant to foster a feeling of European identity. The third report of the Commission on Citizenship of the Union described citizenship as “both a source of legitimation of the process of European integration, by reinforcing the participation of citizens, and a fundamental factor in the creation among citizens of a sense of belonging to the European Union and of having a genuine European identity.”
European Citizenship and Social Rights in Times of Crisis
Authors: Giubboni Stefano
Published: March 2019

European citizenship celebrated its twentieth anniversary during the most difficult and uncertain moment of the Union's crisis. The real economy has now been fully saturated by the financial crisis far beyond the borders of the Euro-Mediterranean area, with devastating social effects in those countries most affected. The prolonged vertical drop of the gross domestic product in Greece—the epicenter of the crisis—has been intertwined with a dramatic and unprecedented growth of levels of unemployment and social suffering in a vortex destructive to the point of validating the perception, now widespread not only within the bewildered public opinion of that unfortunate country, that the “rescue” of the Union has been based on a cure that is worse than the disease. The recent general elections in Italy, a country key for the stability and indeed the survival of the Euro-zone, have produced a situation of fragmentation and political instability that is both unprecedented and disquieting. Among the few elements of certainty in Italy can be found a widespread Euro-skepticism, if not an openly anti-European mood, that is also unprecedented in the history of the country's public opinion, which historically is among the most favorable towards a strengthening of the integration process. With the worsening of the economic and social crisis, the very tenacious confidence in Europe as a positive “external constraint” which has supported Italy's efforts towards reforms, commencing with its admission into the Euro-zone in the latter 1990s until the most recent experience of the technocratic government headed by Mario Monti, seems to have declined. Everywhere in Europe, a sense of frustration and distrust in recent years has grown against the Union and its frantically sought capacity to respond to the crisis without finding truly effective outcomes.
A Citizenship in Movement
Authors: Everson Michelle
Published: March 2019

From its inception, the philosophical-legal vehicle of citizenship has exhibited Janus-like qualities. For Karl Marx, the “first” citizenship of the classical world was a lodestone in the edifice of the “symbolic city”; a legally-delineated status that, just as surely as it included Greeks within the unitary polis, condemned the vast mass of the classical population to servility. The particularism within an originating citizenship paradoxically survived the Enlightenment, as a result of which, the figure of thecitoyenbecame the point at which a Judaic-Christian preoccupation with the inalienable personality of man could be conceptually reconciled with the perceived need to maintain a secular community of horizontal bondage within the republican state. Exclusionary impulses similarly only hardened in an age of nationalism. Even the most inclusive of “industrial” citizenships, just as they expanded the liberating potential of socialized belonging, continued to exclude the alien from their New Jerusalem with direct reference to his lack of communitarian, contractual or “accidental” concordance with the nation.
The FRAPORT Case of the First Senate of the German Federal Constitutional Court and its Public Forum Doctrine: Case Note
Authors: Fenger Livia , Lindemann Helena
Published: March 2019

The application of constitutionally granted communication-related rights assumes the existence of public space as a basic requirement for human encounters. Mass media, such as television, internet, radio, or journals, does not completely satisfy people's general communicative needs. Instead, people need actual places where they have the opportunity to confront other individuals face to face with their opinion. Indeed, some forms of communication require a more spacious area than is owned by individuals, or can only fulfill their purpose at specific locations. Protest marches or rallies, for example, are important in raising public awareness and encouraging a broader exchange of opinions with a wider circle of recipients. Public space is the site to exchange ideas and opinions and thus the location for individuals to confront the public with political disputes, societal conflicts, and other matters. Traditionally, market places, pedestrian areas, public streets, and squares offered such sites. They are not only seen as places for consumption and means of transportation, but also as places of communication and human encounters. Hence, in this capacity, public space is the prerequisite for the actualization of the freedom of assembly and general communication-related rights, which on their part—and thereby also the existence of public forums—are the foundations of democratic decision-making and can be seen as a constituting element of a free democratic basic order.
The Future of Europol's Parliamentary Oversight: A Great Leap Forward?
Authors: Abazi Vigjilenca
Published: March 2019

Secrecy profoundly challenges democratic oversight. Law enforcement cooperation, however, requires some space for discretion and confidentiality. This classical paradox within the context of the European Union is central in the current legislative debate on Europol's revision. The reform is initiated by the Commission's proposal in March 2013 and, for the first time in its history, the European Parliament has direct power to decide over the future of the intelligence agency.

This article argues that we should not overestimate European Parliament's post-Lisbon prerogative for oversight, and particularly its access to Europol Classified Information, due to the architecture of intelligence exchange. The foundational principle of intelligence cooperation confers absolute discretion to the originators of information and Europol's “secrets” in almost all cases originate from the member states or third parties.

The article offers a new legal and empirical perspective on the tensions of secrecy and oversight in the EU, and especially in the Area of Freedom Security and Justice. It discusses the internal information structure of Europol and suggests options for more plausible oversight arrangements.
Spain and the Lost Legal Generation: Spain's Dysfunctional University System is Also to Blame
Authors: Gómez Katia Fach
Published: March 2019

For the last fifteen years I have taught final year law students at a Spanish state university on a regular basis. While it is extremely difficult to generalize about matters such as the following, I believe that the typical profile of the different groups of students I have taught over the years has been relatively homogenous in terms of quality and performance. Along with a minority of highly motivated and able students, at the beginning of every academic year the classes are mostly made up of silent students who area priorireluctant to accept individual responsibilities in the learning process. Having presented this seemingly harsh appraisal with no preamble, one of the aims of this essay is to set out a series of arguments that enable us to go beyond the glib self-righteousness of blaming the students for all their woes. In my opinion, it is the Spanish higher education system that is the mainly to blame for many of the factors currently holding law students back. The following factors contribute to this outcome.
The Norwegian Supreme Court and Strasbourg: The Case ofLillo-Stenberg and Sæther v. Norway
Authors: Bårdsen Arnfinn
Published: March 2019

This article attempts to give a brief overview as to the interplay between the Norwegian Supreme Court and the European Court of Human Rights in Strasbourg. I will do so partly on a general footing and partly connected to a couple of specific cases. In particular, I will comment on the 16 January 2014 judgment from the Strasbourg Court in the Case ofLillo-Stenberg and Sæther v. Norway.This case involved an alleged violation of the right to privacy according to Article 8 of the European Convention on Human Rights (ECHR), by publishing pictures from the wedding of a well-known couple-both performing artists-in a weekly magazine, without their consent.
Southeast Asian Hesitation: ASEAN Countries and the International Criminal Court
Authors: Schuldt Lasse
Published: March 2019

In one of his final press releases, the former United Nations Special Rapporteur on the human rights situation in Myanmar, Tomás Ojea Quintana, urged that greater attention be given to the further deterioration of the human rights situation in Rakhine State. He submitted that the discrimination and persecution against the Rohingya community in Rakhine could amount to crimes against humanity. In his final report, prior to the end of his six-year mandate, Quintana states that “extrajudicial killing, rape, and other forms of sexual violence, arbitrary detention, torture, and ill-treatment in detention, denial of due process and fair trial rights, and the forcible transfer and severe deprivation of liberty of populations has taken place on a large scale and has been directed against” the Rohingya Muslim population in Rakhine State. However, there is no sign that any of the alleged crimes are being adequately investigated by the competent domestic authorities. Furthermore, the ICC does not have jurisdiction as Myanmar is not a State Party to the Rome Statute.
Leges Sine Moribus Vanae?: On the Relationship Between Social Morality and Law in the Field of Foreign Bribery
Authors: Rink Cornelia
Published: March 2019

The relationship of social morals and laws becomes particularly crucial and problematic with regard to foreign bribery. This is because of three reasons: Foreign bribery is embedded in social actions, has a transnational character, and is mostly committed in business contexts. Therefore, the author reflects on the relationship of social morals and laws. The author argues that even though social morals and laws have to be distinguished on a conceptual level, it is wise to work towards a factual synchronicity. In this context, the author provides some suggestions for linking social morals and anti-bribery laws more closely. However, this linkage becomes especially problematic regarding extraterritorial criminal liability. Nevertheless, after a critical examination the author concludes that the reproach of moral imperialism is not substantial.