bluuebunny/crossref_metadata_2025 huggingface dataset:
The Romanian Constitutional Court and the Principle of Primacy: To Refer or Not to Refer?
Authors: Viță Viorica
Published: March 2019

This Article aims to constructively analyze the emerging constitutional dialogue between the Constitutional Court of Romania (the CCR or the Court) and the Court of Justice of the European Union (CJEU). It focuses, in particular, on the lack of a reference for a preliminary ruling from the first court, and aims to unveil the possible motives underlying this passive behavior.
Why Should Public Hearings in the Brazilian Supreme Court be Understood as an Innovative Democratic Tool in Constitutional Adjudication?
Authors: Sombra Thiago Luis
Published: March 2019

This Article engages in an empirical analysis of the counter-majoritarian role of the Brazilian Supreme Court, the Supremo Tribunal Federal (STF), in terms of its sharp contrast with the aim of attracting wider participation from civil society in public hearings. Public hearings are an important judicial tool that have recently been introduced and that may influence foreign constitutional courts. A public hearing is a procedure in which the STF can hear experts, scientists, professors, civil servants, and even ordinary citizens when a Justice Rapporteur seeks to elucidate a specific technical aspect of a case, a controversial social issue, or an issue in a field that is generally unfamiliar to the presiding judge or judges. This research aims to address the influence of these public hearings on the deliberation process of the STF based on the democratic theory of representation. First, Section B outlines the main premises of the debate, elucidated the purposes and findings of public hearings. Next, Section C presents a theoretical approach addressing deliberation and representation to explain how information obtained in public hearings might improve the STF's adjudicative process. Section D outlines the chosen criteria and methods for the empirical research; this will demonstrate that public hearings in the STF are not working as envisioned. Lastly, to offer qualitative insight, Section E carefully examines two of the eighteen public hearings analyzed. The Article concludes that the STF has much work to do in terms of rethinking and improving the functionality of public hearings.
The Limits of Law (and Democracy) in the Euro Crisis: An Approach from Systems Theory
Authors: Viellechner Lars
Published: March 2019

The Article attempts to explore the fate of law and democracy in the euro crisis from the sociological perspective of systems theory. It consecutively ascertains the performance, the relevance, and the function of the law with regard to the current practice of restructuring sovereign debt in the euro area. While novel forms of regulation such as the European Stability Mechanism attest a remarkable assertiveness of the law, they cannot effectively command economic recovery and must cede to economic imperatives for their part. Under such circumstances, the law can no longer adequately fulfill its function to counterfactually secure normative expectations. Nevertheless, the regulatory experiments in the euro crisis may not be regarded as undemocratic. Rather, the heterarchical processes of mutual observation, recognition, and contestation among the various constituencies involved, including representatives of governments, institutions of the European Union, central banks, national parliaments and peoples via referenda, as well as European and national courts, provide some substitute for the lack of elections and parliamentary decision-making at the European level.
From a Different Angle—Poland and the Mediterranean Refugee Crisis
Authors: Kowalski Michałt
Published: March 2019

This Article aims at presenting and clarifying the Polish perspective towards the Mediterranean refugee crisis. Poland has not been directly affected by this crisis so far and this makes the Polish case significantly different from the European Union Member States that are directly affected by a large influx of people seeking protection. This Article briefly presents the Polish legal framework and its origins and analyzes the particular governmental (in)actions towards the Mediterranean refugee crisis, including references to the politicized debate on the issue. Also, the specific context of a potential future Ukrainian crisis is addressed. The Article finishes with concluding remarks and suggestions to employ temporary legal measures to address large movements of refugees and migrants, as such measures deal with the specificity of such movements in the best way that can be achieved.
Brexit: An End to the End of History
Authors: Avbelj Matej
Published: March 2019

Britain has voted to withdraw from the European Union. This is a victory. For European populists. For Putin's Russia. As well as for the new world system of governance, what Victor Orban has called “illiberal democracy.” The era of the modern West, in the form that emerged out of the ashes of the WWII, is coming to an end. The West alone is to be blamed for that. As it has been hit by one crisis after the other, the West has continued to merely scratch the surface in looking for ad hoc, immediate, and almost exclusively economic solutions. The emphasis is always on the symptoms but never on the disease. In so doing, the West has turned a blind eye on a process of deep, internal transformation. The post-Brexit debate that will ensue in the following days and months will most likely stay faithful to this legacy. The discussion will remain superficial, preoccupied with economic and political questions, limited to the short-term quests of reorganizing the EU in pursuit of its long-term viability. But I want to insist that the challenge is much bigger than the future of the EU. It is about the preservation of the West, understood here as a synonym for liberal democracy and the commitment to the rule of law. We are confronted with the difficult—even terrifying question: How are we to build a new modernity on the debris of the modern post-war West in order to avoid repeating the bitter historical experiences of the pre-war Europe.
The EU Must Face the New Politics of Globalization
Authors: Dawson Mark
Published: March 2019

The world of EU law woke-up on June 24thwith a hangover. Every member of our academic community is or knows well friends and colleagues studying and teaching EU law in the UK whose futures are in question. Yet, the referendum raises a larger scientific question for EU law. As well as the technicalities of divorce and variable geometry that will deservedly receive renewed attention, there is the broader question about the kind of political reshaping of EU constitutionalism that Brexit will bring about.
Brexit, Labour Rights and Migration: Why Wisbech Matters to Brussels
Authors: Deakin Simon
Published: March 2019

In the aftermath of the Brexit referendum of 23 June 2016, the question of migration has been at the forefront of attempts to understand what happened, and in particular why working class communities in many of the regions of England, and in parts of Wales, voted predominantly for the Leave side. Polling data show a weak correlation between areas of the country that voted for Leave and high levels of inward migration from the rest of the EU. The link between immigration and Brexit is very clear in East Anglian agricultural towns like Boston and Wisbech, but otherwise is weak. South Wales and the North East of England, which also saw clear majorities for Leave, are not areas of high EU migration. Instead, they are regions that have experienced successive waves of deindustrialisation since the 1980s. The overriding issue raised by the Brexit vote, in my view, is not migration as such (although that is part of the story), but a wider phenomenon of deepening economic insecurity, and the dangerous political dynamic it has created.
Is Europe in a Crisis of Faith?
Authors: Heinig Hans Michael
Published: March 2019

The British want to leave the EU and the rest of Europe is shocked. The Europeans may have lost their faith in their common destiny. The large number of strong arguments for a membership in the Union did not convince the majority of the British voters, although those arguments have been clearly demonstrated again and again. Many political fields cannot be ploughed unilaterally. Environmental protection is a global challenge. The tough competition prevalent in the global economy will not be suspended by referendums of ageing, wealth-saturated European societies. The single European market is more resilient against global competitive pressure than an array of small domestic economies on their own. All these reasons do not seem to pervade. EU- opponents see the membership of their country as an act of self-enslavement and the Brexit as a new biblical Exodus incident. Boris Johnson – a modern Moses? The construction of Europe in this perspective is no longer a rational calculation but turns into a question of faith and it congeals into political theology.
They Do What They Want, But Do They Also Know What They Want?
Authors: Möllers Christoph
Published: March 2019

Eurosceptics of all kind feel vindicated by the Brexit. However, their reasons do not only differ, they are actually inconsistent: For leftists like the Greek Prime Minister Alexis Tsipras the vote expresses the failure of a socially unjust political order devoted to austerity and market liberalism. Considering the anti-regulatory bias of the Leave campaign and the strict austerity policy of the newly re-elected conservative majority, this seems like a rather paternalistic interpretation. Many on the left-wingers refuse to accept that there are democratic majorities for inequality. They prefer to treat the voters as the victims of a wrong consciousness instilled by politics or the media.
The Personal Implications of the Referendum Results for (German) EU Citizens Living in the UK
Authors: Mulder Jule
Published: March 2019

According the Office for National Statistics' 2014 estimate, 300,000 UK residents were born in Germany and 131,000 are German nationals. This makes them the fifth biggest group of immigrants in the UK by country of birth—preceded only by people born in India, Poland, Pakistan and the Republic of Ireland— and the twelfth largest group of immigrants in terms of nationality. Thus, although Brexit's rhetoric against immigration has not directly targeted Germans, a large number will be affected by the UK's changing relationship with the EU. Just as for other EU citizens, their future status in the UK is all but certain.
Three Nearly-Certain Conclusions We Can Draw from the Uncertainty
Authors: Schorkopf Frank
Published: March 2019

The European Union stands for the successful public ordering of “Europe.” Its goal is to shape and organize this political and economic area through law, a project involving societies of different mentalities, western democracies, old and young countries in transition, and former Great Powers. That might be ambitious enough, but pressure from outside the Union is also increasing. Alternative concepts campaign strongly to win supporters. The Union's integration agenda is plagued by obvious economic, financial, and social problems. A dissenting spirit has emerged around strongly held convictions concerning what has caused the problems and who should be held responsible. It is a dissenting spirit that, following the Brexit-referendum 23 June 2016, will have significant consequences. Now we have the first withdrawal of a Member State from the European Union.
Four Impious Points on Brexit
Authors: Somek Alexander
Published: March 2019

The Brexit referendum confronted us with a “return of the repressed.” It represents a momentous eruption of popular sovereignty. The people have spoken. Liberals cringe: “Ugh, this is the voice of unreason.”
The European Fallout
Authors: Walker Neil
Published: March 2019

I can hardly begin to express what Brexit means for Britain and Scotland. Like many, I am shocked. I am shocked in part by the result itself, and in part by the very fact that Iamshocked by the result, despite all the warning signs. Denial and wishful thinking affect us all, so before Remainers place too much blame on complacent, arrogant, elitist politicians, we should look to ourselves. They are but our mirror.
Due Process in UN Commissions of Inquiry: A Legal Analysis of the Procedures of Goldstone's Gaza Inquiry
Authors: Nesbitt Michael
Published: March 2019

Throughout its history, the United Nations has resorted to large-scale ad hoc Commissions of Inquiry (UN COIs) to investigate serious international incidents. These UN COIs have often been highly political affairs, though their tasks and goals—including most recently investigating reports of war crimes or crimes against humanity the world over—are distinctly legal in nature. The result has been a focus on both the politics of such UN COIs—including most prominently whether their mandates or their Commissioners are biased—and on the merit of their legal-criminal findings. Yet it is the processes and procedures of UN COIs, and particularly their commitment to transparent due process, that are best able to form a bulwark against both political and legal attacks. Thus, it is their processes and procedures that should be the focus of much legal-academic work; unfortunately, to date this has not tended to be the case. By analyzing perhaps the most well-known and controversial recent UN COI, the 2009United Nations Fact Finding Mission on the Gaza Conflict, and focusing on its due process and procedures rather than its politics or its correct application of international criminal or human rights law, this paper seeks to remedy this oversight. It seeks to identify the legal and procedural shortcomings—the failures of due process—of a well-resourced, well-staffed political inquiry to offer a representative example of how UN COIs tend to fall short, why they must be considered legal undertakings, and how future UN COIs might remedy these common shortcomings by focusing on the legality of their procedures.
Saving Face? The German Federal Constitutional Court DecidesGauweiler
Authors: Pliakos Asteris , Anagnostaras Georgios
Published: March 2019

The German Federal Constitutional Court has issued its long-awaited judgment in theGauweiler Case.The Court ruled that the policy decision on the Outright Monetary Transactions programme (OMT programme) does not manifestly exceed the competences attributed to the European Central Bank (ECB) and does not manifestly violate the prohibition of monetary financing of the budget, if interpreted in accordance with the preliminary ruling of the European Court of Justice (Court). This article surveys the Court's decision and offers a critical commentary on this important case.
“It Isn't True that England Is the Moon”: Comparative Constitutional Law as a Means of Constitutional Interpretation by the Courts?
Authors: Kaiser Anna-Bettina
Published: March 2019

This Article evaluates the merits and problems of comparative constitutional law as an interpretive means by the courts. It pleas for a nuanced perspective towards both agents and methods of comparative constitutional law. The Article is in favor of the use of comparative constitutional law by the courts. However, challenges as to the legitimation of comparison in court, functional limits of comparative constitutional law in the judiciary, and methodological questions remain to be solved. As far as constitutional and supreme courts are concerned, this Article argues that arguments derived from comparison should be regarded as a means of persuasive reasoning.
Norms and Narrative
Authors: von Arnauld Andreas
Published: March 2019

As a normative social practice, law mediates between the “is” and the “ought,” between prescription and description. Obviously, narratives and narration play a role in law when it comes to describing facts and events: The testimony of a witness in court, the presentation of the case in a judgment, or (semi-)fictional cases used for legal education spring to mind. In this Article, however, the focus is on the prescriptive side of law. If, in line with the definition given by Matías Martínez and Michael Scheffel, a narrative is to be understood as a “sequence of events and actions producing at the level of [literary] action an autonomous structure of meaning,” it becomes possible to identify narratives and narrative elements within legal norms and provisions. The first part of this paper will deal with grand historical —or historicizing—narratives and cast some light on how they are used to give sense and direction to the interpretation and application of, especially, constitutional principles. The second part will suggest a narratological perspective on statutory law and attempt to reconstruct the process of norm application. This Article argues that this process relies mainly on comparative methods, and that narratives mediate between the seemingly opposed spheres of law and fact. Both kinds of narratives, thegrands récitsof constitutional law and thepetits récitsof statutory law, though quite different at first sight, possess common traits. They both fit the definition of narrative just cited; they both result from a process of selection and are thus prone to exclusionary effects. Moreover, the grand narratives of constitutional law also affect statutory law, its interpretation, and its application.
Öffentlichkeitand the Law's Behind the Scenes: Theatrical and Dramatic Appearance in European and U.S. American Criminal Law
Authors: Korsten Frans-Willem
Published: March 2019

In the present situation, law'sÖffentlichkeit, or its principal “openness to the public,” needs to be distinguished from its being the object of publicity as dominated by modern media. Law's public openness has historically been dependent on, and determined by, two theatrical modes of appearance: The theatrical-proper and the dramatic. Paradoxically, in both cases the jurisdictional “openness to the public” works not only through forms of visibility but also forms of invisibility. These two theatrical modes—and their dynamic play with visibility and invisibility—have been portrayed in works of art that have influenced the way general audiences imagine the law to work. These works also correlate with the different histories and public appearances and openness of the European and the Anglo-American systems of law. Historically speaking, the European system has been more theatrically inclined, in the context of a distinctly imperial trajectory that has been dominated by the desire to stage the law and to follow correct procedure. The Anglo-American one, by contrast, is more dramatically inclined, and has followed a distinctly anti-imperial trajectory—whether anti-royal or anti-state—influenced by the desire to stage trials in which peers determine the dramatic outcome. Although both systems are basically open to the public, they both work via a dynamic of protective invisibility. Yet due to current developments, the elements of invisibility in both systems tend to predominate over the elements of visibility. This suggests that both systems are moving toward a form of legal closure that is averse to the original theatrical and dramatic appearance and openness of law.
LawasMagic. Some Thoughts on Ghosts, Non-Humans, and Shamans
Authors: Alvarez-Nakagawa Alexis
Published: March 2019

Legal metamorphoses between persons/things have been recurrent in history: Persons can become things, animals can turn into persons, and even ghosts can obtain personhood in the legal domain. Law would work then as a form of magic, a powerful instrument to create realities that, although fictional, have very real effects. Drawing on anthropology and legal scholarship, I will show the links between law and magic. In this endeavor, I examine two groups of legal cases from Argentina where people and animals respectively obtained personhood through the magic of law. First, I analyze the so-called human rights trials that are judging the crimes of the last military dictatorship (1976–1983), and I argue that these are working to restore the legal personhood of those who enforcedly disappeared. Second, I examine a series of judgments that have recently ruled—for the first time in modern legal history—that orangutans, chimps, and elephants are “nonhuman persons.” I conclude this Paper by contrasting legal magic with shamanic practices. I argue that even if these two are linked, it is possible to find in some forms of shamanism a different way of framing the relationship between persons/things that can offer an alternative (to) law.
The New German Law on Sexual Assault and Sexual Harassment
Authors: Hörnle Tatjana
Published: March 2019

In 2016, the German parliament changed the law on sexual assault and rape (Sect. 177 StGB). The new law assumes a “no-means-no”-model, while the old law required coercion as a necessary feature of rape and other forms of sexual assaults. In addition, two new offense descriptions were introduced: sexual harassment (Sect. 184i StGB) and offenses out of groups (Sect. 184j StGB). In this Article, I describe the deficiencies of the old law, the process of law reform, and the newly enacted prohibitions.
Constitutional Pluralism Is Not Dead: An Analysis of Interactions Between Constitutional Courts of Member States and the European Court of Justice
Authors: Bobić Ana
Published: March 2019

The theory of constitutional pluralism as advanced by MacCormick and Walker witnessed immense success in its attempt to explain the relationship between courts of Member States performing constitutional review and the Court of Justice. Despite its success, the theory has often been criticized for its lack of normative prescriptions and legal certainty in resolving the question of the final arbiter in the EU. It is the aim of this Article to address and move beyond these criticisms by introducing and exploring the auto-correct function necessary for the proper and balanced functioning of the pluralist system.

The auto-correct has the function of preventing an outbreak of conflict between the constitutional jurisdictions involved—in the EU judicial architecture, an awareness on the part of all the actors involved of the benefits of a pluralist setting results in conflict management and control. The auto-correct function operates as follows: in the EU as we know it, issues prone to constitutional conflict arise regularly, and both the Court of Justice and national constitutional jurisdictions are able, through their respective procedural avenues, to control the extent of the conflict. There are also two legal imperatives driving this dynamic in two opposite directions—the principle of primacy of Union law on the one hand, and the obligation to respect the national identity of Member States on the other.

As analyzing judicial behaviour shows, the application of self-restraint and mutual accommodation avoids a clash between parallel sovereignty claims on EU and national levels. In particular, national and EU law interaction demonstrates the existence of in-built conditions for the auto-correct function's application, such as the principle of EU-friendly interpretation in national constitutional law, or the national identity clause in primary EU law. The auto-correct function manifests itself and brings about a balance between the different constitutional orders only through the interaction of parallel claims to sovereignty.
What Does a Constitution Expect from Immigrants?
Authors: Volkmann Uwe
Published: March 2019

It is a long-established commonplace in any debate on immigration that immigrants should integrate into their receiving society. But integrate into what precisely? Into the labor market, into the legal order, into the political system, into a national culture whatever this might comprise? The Article tries to approach the question from the legal point of view and looks for hints or clues in the constitution which might help us with the answer. For this purpose, it explores the general theory of the constitution as it has been shaped by its professional interpreters as well as by political actors, the media and the public. The main intuition is that “constitution” is not only a written document, a text with a predefined, though maybe hidden meaning; instead, it is a social practice evolving over time and thereby reflecting the shared convictions of a political community of what is just and right. Talking about constitutional expectations toward immigrants then also tells us something about ourselves: about who we are and what kind of community we want to live in. As it turns out, we may not have a very clear idea of that.
Crafting Constitutional Identity in the Era of Migration and Financial Crises–The Case of Greece
Authors: Gamba Dimitra , Lentzis Dimosthenis
Published: March 2019

The debate on the exact meaning and content of their constitutional identity has a long history in many European countries, with national courts playing the leading role. Ten years ago, this debate was given a new boost by the Treaty on European Union (TEU), article 4 paragraph 2 of which urges the European Union to respect the constitutional identities of the Member States. The national courts in a number of Member States saw in this provision the recognition of their zealous efforts to control the ongoing expansion of EU competences and to overcome the absolute primacy of EU law over domestic constitutional law. In Greece, however, no debate on the possible use of constitutional identity as a limit to the European Union and its law had taken place—at least not until recently. Our main objective in this article is to try to explain why Greek courts, and especially the Symvoulion Epikrateias, the supreme administrative court, failed to develop and make recourse to a notion of constitutional identity, even in cases they had good reasons to do so, and to find out if—and, if yes, to what extent—the situation has changed after the outbreak of the financial and, soon after, the migration crises. The analysis of the relevant case-law will permit us to conclude that the Greek constitutional identity is currently still under construction and that it is constructed using elements from both the liberal and the exclusionist models.
Circumcision: Immigration, Religion, History, and Constitutional Identity in Germany and the U.S.
Authors: Abraham David
Published: March 2019

A four-year-old Muslim boy was brought to a local Cologne emergency room by his mother, who was concerned about minor bleeding around the site of a circumcision. A District Court there found that circumcision, notwithstanding parental consent or religious motivation, constituted a criminal bodily injury and child abuse. Ultimately, on July 19, 2012 the Bundestag resolved that “Jewish and Muslim religious life be viable in Germany,” and in December a bill was passed that legislatively overrode the ruling of the District Court and recognized circumcision as a non-punishable undertaking when undertaken for religious reasons by someone professionally trained. Two years of rancorous debate revealed a whole range of historical and contemporary fissures. This essay examines the dynamics of the debate and its various outcomes. In particular it asks whether the conflicts generated by practices like male circumcision can in immigrant societies be assimilated to prevailing religious freedom models. The key questions aired were: (1) Germany's relations with its Muslim immigrants; (2) Germany's relations with its fragile Jewish minority; (3) proper weightings of the relationship among parents, child, and state; and (4) the deference owed medical thinking. Immigrant integration, religious freedom, group rights, and the meaning of “enlightenment” all remain sharply contested.
The Interaction between International and Domestic Legal Orders: Framing the Debate according to the Post-Modern Condition of International Law
Authors: Giannattasio Arthur Roberto Capella
Published: March 2019

The interaction between international and domestic legal systems underwent a deep structural change. By means of a literature review concerned with a critical approach of International Law, this Article presents three perspectives: Modern, Imperial Post-Modern, and Deconstructive Post-Modern. Traditional international law scholarship emphasizes the first and the second trends, while this Article presents the third. While the first frames these interactions on the monism-dualism debate, the second establishes an international law prevailing unconditionally over domestic law, international human rights. The third criticizes whether it is still proper to search for ana priorisolution for this interaction. By rejecting global governance and the truly common law as alternatives to imperial post-modern international law, this Article emphasizes that legal analysis should identify, stimulate and reinforce thea posterioricustomary normative spontaneity of multitude. This Article argues that a serious post-modern international law should be guided by a radical political drive of law, foster a deconstructive interaction of different—spatial, temporal or thematic—representations of law and reject traditional hierarchical solutions and any kind of previous, single and exclusive—national or international—authority between any legal order.
Unilateral Law and Non-State Actors: Exploring a New Paradigm
Authors: Sergeev Artem
Published: March 2019

Throughout the last decades, various non-state actors have been actively engaged in different aspects of international governance. More recently, a number of academic contributions explored the extent to which international law governs non-state actors. This Article advances the argument and explores whether non-state actors have developed law making capacities. Initially grounding itself in theNuclear TestsandKosovocases of the International Court of Justice, the Article contends that non-state actors can create international rights and obligations through unilateral law-making processes. After a robust study, the Article concludes that unilateral non-state actions must meet three criteria to have legal effect as international law. First, producing such actions requires non-state actors of significant gravity. Second, other international entities must at least partly recognize these actions. Third, unilateral actions must justify their legal character with legitimate grounds. In meeting these three conditions, such unilateral actions of non-state actors produce international legal effects. As to its broader implications, the Article argues that the scope of international law has expanded to ensure that the voices of major international non-state actors are heard and reflected within the international legal order.
Ernst-Wolfgang Böckenförde's Oeuvre on Religious Freedom Applied to Recent Decisions of the European Court of Human Rights
Authors: Sacksofsky Ute
Published: March 2019

In Europe, issues concerning religious freedom are hotly debated. Many courts had to consider cases concerning infringement of religious freedom. This Article will focus on three examples: Headscarves, burqas, and crucifixes. Often, the interests of members of minority religions have lost in European courts and European constitutional courts. This is particularly true considering the decisions of the European Court of Human Rights. The European Court of Human Rights upheld bans on headscarves for students in universities and public secondary schools, as well as for teachers in public schools. The Court also accepted bans on full-body veils worn in public areas. Finally, mandatory crucifixes in public schools have been deemed to conform to the standards set by the European Convention on Human Rights. In all of these cases, the European Court of Human Rights has not adequately construed religious freedom as a strong right.

This is where the work of Ernst-Wolfgang Böckenförde comes in. Böckenförde has thoroughly discussed the proper role of religion in a democratic society. Coming from a theoretical starting point, he developed an understanding of religious freedom as a strong right. He also explained why State neutrality should be understood in terms of open neutrality. Both perspectives help to more fully explain the scope of religious freedom.
On the (De-)Fragmentation of Statehood in Europe: Reflections on Ernst-Wolfgang Böckenförde's Work on European Integration
Authors: Perju Vlad
Published: March 2019

It has become a standard critique of European integration that the upward transfer of sovereignty in market-related matters leads to the fragmentation of statehood between the supranational, European level and the largely incapacitated nation-states that retain jurisdiction over social and distributive policies. My article takes up this critique in the elaborate version of one of Germany's leading post-war constitutional theorists, Ernst-Wolfgang Böckenförde, whose approach has been influential in how German constitutionalism relates to the project of European unification. In this account, vertical integration uses law to sever economics from democratic politics, fragments the concern for the common good of citizens and undermines the unity of statehood. I contrast this account to instances of horizontal fragmentation of statehood, such as those underway in member-states such as Hungary or Poland where the nation state's constitutional structures are coming undone at the hands of authoritarian populists. The European Union's role of defending the rule of law within its constitutive states seeks to restore their normative integrity and, as such, is best understood as a role of verticalde-fragmentationof political and constitutional transformations at the domestic level. The question if statehood can be established at the European level gains greater urgency and complexity in light of these developments.
“Don't Do as I Do”—The US Response to Russian and Chinese Cyber Espionage and Public International Law
Authors: Terry Patrick C. R.
Published: March 2019

The Russian government is accused of hacking emails circulating among senior members of Hilary Clinton's campaign team to support President Trump's election in 2016. This was not the first time the United States was the target of massive cyber espionage: The Chinese government is believed to have gained sensitive information on 22.1 million US government employees through “cyber intrusions” in 2014. This Article will examine whether cyber espionage of this kind is unlawful under public international law and will conclude that it is. Specifically, such espionage can result in a violation of territorial sovereignty and will likely violate the principle of non-intervention in the internal affairs of other States. Yet, based on the controversial “clean-hands-doctrine,” past US actions in the realms of cyber espionage and intervention may well invalidate any claims it asserts against Russia or China.
Strategic Surveillance and Extraterritorial Basic Rights Protection: German Intelligence Law After Snowden
Authors: Schaller Christian
Published: March 2019

This Article examines the statutory and constitutional legal framework governing the bulk collection of communication data by the German Federal Intelligence Service (Bundesnachrichtendienst, BND). German intelligence law distinguishes between certain categories of communications depending on the nationality and location of the participants. The provisions on the surveillance of foreigners abroad are far more permissive than those applying to the monitoring of communications that involve German nationals or foreigners in Germany. This differentiation is the consequence of a narrow interpretation by the German legislator of the personal and territorial scope of the right to privacy enshrined in Article 10 of the Basic Law. While there is no doubt that German nationals enjoy protection under Article 10 wherever their privacy is affected by the actions of the German State, current intelligence legislation is based on the understanding that foreigners are entitled to such protection only while staying in Germany. It will be argued that such discrimination is difficult to reconcile with German constitutional law because Article 10 protects every natural person without regard to nationality and because the Article's applicability is not limited to the territory of the Federal Republic of Germany. This means that the BND is bound by Article 10 irrespective of whether its surveillance activities affect German nationals, foreigners in Germany, or foreigners abroad. Arguably, the level of protection in transnational constellations may be subject to certain modifications. But if basic rights protection is taken seriously, the existing fragmented legislation should be replaced by a uniform statutory regime for strategic surveillance of international communications that meets the minimum standards of Article 10 without bearing reference to a person's nationality or location.
Otto von Gierke: The Social Role of Private Law
Authors: McGaughey Ewan
Published: March 2019

Otto von Gierke wroteThe Social Role of Private Law (Die soziale Aufgabe des Privatrechts)in an age of extraordinary belief in progress and pride. In 1889, the Eiffel Tower was inaugurated, Britain's Royal Navy was required by law to outdo its next two rivals combined, and Germany was forging a massive new Civil Code (Bürgerliches Gesetzbuch). Within a year, Kaiser Wilhelm II had dismissed Otto von Bismarck: The old Iron Chancellor, who had unified a ‘Second’ Reich but no longer moved fast enough to secure a “place in the sun.” Ages of great confidence often see codes of law: Justinian'sCorpus Juris Civilisin a reunited West and Eastern Rome; theCode Civilof the Napoleonic Empire; the Penal, Contract or Trust Acts from 1860 to 1882 across the British Empire; and the US Code of 1926. A desire for legal certainty sometimes drives reform, but rarely as much a desire to display superiority. The flicker of history must be made to seem timeless, like laws seem in printed word.
EU Security Governance and Financial Crimes
Authors: Busser Els De , Herlin-Karnell Ester
Published: March 2019

This special issue aims to investigate the regulatory challenges facing the
EU with regard to security governance in the broad area of the fight against
financial crimes and by adopting a wider outlook on how to map and
understand these phenomena in their salient contexts. In recent years,
security as a key word can be witnessed as increasingly penetrating policies
on a national, international, and supranational level. This development is
also visible in EU policies, inter alia in the EU's policy concerning the
area of freedom, security, and justice (AFSJ). Coupling the word security to
the concept of governance in the somewhat thought-provoking phrase “security
governance” prominently cements its position in the entirety of processes
and mechanisms that steer people as well as corporations or markets.
Security in the EU internal context concerns to a great extent the fight
against terrorism and its financing as well as the policing of EU borders.
Security in this regard concerns the structure of EU law and how it can be
justified at the macro-level.
International Business Encounters Organized Crime: The Case of
Trafficking in Human Beings
Authors: O'Neill Maria
Published: March 2019

With increasing globalization, transnational crime in general, and human
trafficking in particular, a design of new legal framework is required in
order to effectively operationalize interstate law enforcement operations
and prosecutions. The development of a transnational criminal legal
framework—or frameworks—can build on pre-existing transnational economic
frameworks. There is also the need to extend the application of domestic law
beyond national borders to influence transnational corporate behavior.
Regulations based on reflexive law are one possible approach. Teubner's idea
of reflexive law has been informing developments in this area. This approach
uses traditional national law to inform corporate governance strategies in
order to achieve effects on the market. A few jurisdictions have already
adopted measures modeled on this approach to tackle human trafficking and
slavery-like conditions in global supply chains. Weaknesses in the
approaches adopted by the UK and the State of California have already been
identified. If strengthened, this approach could be adopted in more
jurisdictions—including the EU—and also to combat more areas of
transnational crime—such as money laundering. This paper will examine the
resulting challenges using human trafficking as a case study.
Prosecuting EU Financial Crimes: The European Public Prosecutor's Office in Comparison to the US Federal Regime
Authors: Díez Carlos Gómez-Jara , Herlin-Karnell Ester
Published: March 2019

Why is the fight against financial crimes such a central task for the EU? The EU has a strong interest to counter financial crimes and fraud against the EU budget as those crimes—so the EU legislator's claim is—hamper the trust in the market and undermine consumer confidence to engage in internal market transactions. In this Article, we aim to discuss the establishment of the European Public Prosecutor Office as a federal agent and the effects of this agent for establishing a robust EU financial crimes regime. Comparisons with the US system of US Attorneys—federal prosecutors—will be drawn to show that this institution has been quite effective at enhancing the protection of US financial market. The Article will then discuss to what extent the EU can, and should, learn from the American experience. We are particularly interested in the strong security focus in the EU and its consequences when it ventures into the area of financial crimes.
The EU's Fight Against Corporate Financial Crime: State of Affairs and Future Potential
Authors: Franssen Vanessa
Published: March 2019

Considering the European Union's efforts to tackle various forms of financial crime more effectively, especially since the financial crisis of 2008, one would expect that the Union has also been strengthening its grip on national law with respect to corporate financial crime. Instead, this Article finds that the EU approach to corporate financial crime has actually not evolved that much over the past two decades. Moreover, this Article demonstrates that EU law still fails to sufficiently take into account the specific features of corporate entities (as opposed to individuals), as well as to fully exploit the potential strengths of a criminal law approach, as opposed to an administrative or civil law approach. In the author's view, the EU should more carefully consider the objectives and strengths of different kinds of enforcement mechanisms and adopt a more coherent approach, particularly with respect to corporations. Furthermore, when it comes to corporate punishment, the EU seemingly lacks ambition and creativity. EU legal instruments focus strongly on fines while insufficiently exploring other, potentially more adequate sanctions to achieve certain punishment goals. Ultimately, this may undermine the effectiveness of the EU's fight against corporate financial crime.
Data Portability and Data Control: Lessons for an Emerging Concept in EU Law
Authors: Graef Inge , Husovec Martin , Purtova Nadezhda
Published: March 2019

The right to data portability (RtDP) introduced by Article 20 of the General Data Protection Regulation (GDPR) forms a regulatory innovation within EU law. The RtDP provides data subjects with the possibility to transfer personal data among data controllers, but has an impact beyond data protection. In particular, the RtDP facilitates the reuse of personal data that private companies hold by establishing a general-purpose control mechanism of horizontal application. Article 20 of the GDPR is agnostic about the type of use that follows from the ported data and its further diffusion. We argue that the RtDP does not fit well with the fundamental rights nature of data protection law, and should instead be seen as a new regulatory tool in EU law that aims to stimulate competition and innovation in data-driven markets.

What remains unclear is the extent to which the RtDP will be limited in its aspirations where intellectual property rights of current data holders—such as copyright, trade secrets andsui generisdatabase rights—cause the regimes to clash. In such cases, a reconciliation of the interests might particularly confine the follow-on use of ported data again to specific set of socially justifiable purposes, possibly with schemes of fair remuneration. Despite these uncertainties, the RtDP is already being replicated in other fields, namely consumer protection law and the regulation of non-personal data. Competition law can also facilitate portability of data, but only for purpose-specific goals with the aim of addressing anticompetitive behavior.

We conclude that to the extent that other regimes will try to replicate the RtDP, they should closely consider the nature of the resulting control and its breadth and impact on incentives to innovate. In any case, the creation of data portability regimes should not become an end in itself. With an increasing number of instruments, orchestrating the consistency of legal regimes within the Digital Single Market and their mutual interplay should become an equally important concern.
European Exceptionalism? — A Response to Alexander Somek'sThe Cosmopolitan Constitution
Authors: Larsen Signe Rehling
Published: March 2019

A major contemporary shift in constitutionalism is manifest in that domestic constitutions, to an unprecedented degree, submit themselves to legal regimes and agencies beyond the state. This is epitomized in national courts taking into account foreign precedent within the system of the European Convention on Human Rights and the government of the Eurozone crisis by the executive apparatus of the European Union (EU). Alexander Somek'sThe Cosmopolitan Constitutionis one of the most important monographs that endeavors to conceptualize this contemporary shift in constitutionalism. This response, however, highlights that the EU plays an uneasy role in the tale ofThe Cosmopolitan Constitution.The argument presented is that there are reasons to question the Eurocentrism that posits European post-WWII constitutional developments as the epitome of contemporary global constitutional developments. These reasons relate to the particularity of the European post-WWII political and constitutional experiences and developments. In contrast to what is maintained by Somek, this response argues that contemporary European trends in constitutionalism do not point in the direction of a universal cosmopolitanism but express a distinct European particularity.
Beyond Judicial Councils: Forms, Rationales and Impact of Judicial Self-Governance in Europe
Authors: Kosař David
Published: March 2019

A few years ago, judicial councils composed primarily of judges were viewed as a panacea for virtually all problems of court administration in Europe. The burgeoning literature on judicial councils has shown that this is not necessarily the case. This article builds on this literature, but it argues that judicial self-governance is much broader phenomenon than judicial councils and may also take different forms. Therefore, it is high time to look beyond judicial councils and to view judicial self-governance as a much more complex network of actors and bodies with different levels of participation of judges. To that end this article conceptualizes judicial self-governance and identifies crucial actors within the judiciary who may engage in judicial governance (such as judicial councils, judicial appointment commissions, promotion committees, court presidents and disciplinary panels). Subsequently, it shows that both the forms, rationales, and effects of judicial self-governance have varied across Europe. Finally, this article argues that it is necessary to take into account the liquid nature of judicial self-governance and its responsiveness to political, social, and cultural changes. Moreover, the rise of judicial self-governance is not necessarily a panacea, as it may lead to political contestation and the creation of new channels of politicization of the judiciary.