bluuebunny/crossref_metadata_2025 huggingface dataset:
Criminal Responsibility of German Soldiers in Afghanistan: The Case of Colonel Klein
Authors: von der Groeben Constantin
Published: March 2019

On 4 September 2009 an officer of the GermanBundeswehr(German Army) in Afghanistan, Colonel Georg Klein, ordered an airstrike against two gas tanker trucks hijacked by the Taliban. In this airstrike, carried out by U.S. Air Force pilots, up to 140 people were killed, among them not only members of the Taliban but also many civilians. This raises the question of criminal responsibility of German soldiers who operate in Afghanistan. TheGeneralbundesanwalt(General Public Prosecutor) investigated the case and recently decided to terminate the investigations against Colonel Klein. Despite this decision not all questions are answered. I will present a more comprehensive analysis of the case, not only commenting on the decision of theGeneralbundesanwalt, but also applying different factual hypotheses leading to a different legal assessment of the case. At the outset I will look back at the line of cases known as the “Road Block Cases,” and seek to explain how the criminal responsibility of German soldiers has been dealt with in the past.
The Scope and the Nature of Computer Crimes Statutes - A Critical Comparative Study
Authors: Kadir Rizgar Mohammed
Published: March 2019

When computer crime statutes had yet to be enacted, computer crimes were subjected to traditional criminal laws. This policy resulted in greater expense and other considerable difficulties. These problems and difficulties paved the way for the emergence of a consensus calling for legislators to intervene and enact specific computer crime legislation suited to confronting this new type of criminal activity. Many countries in the world responded by enacting new criminal legislation and many others are on their way to take similar legislative steps.

For the legislative intervention to be sound and successful two major questions should be adequately addressed; the scope of legislative intervention and the nature of computer crime legislation enacted. Regarding the first question, new criminal provisions are needed only to cover those crimes that are unique to computers themselves, other crimes in which a computer is used simply as an instrument for perpetration are either covered by existing criminal provisions or can be covered by simple amendments of said provisions. Another step that should be taken by legislators is the amendment of existing criminal laws with an aim to cover some special cases such as the cases in which the computer is used as an instrument for committing known traditional crimes, making the perpetration of such crimes easier or resulting in more dangerous consequences compared to their more traditional forms and cases in which intangible digitized property comes under threat from criminal activities.

While many countries in the world have soundly followed such a method in dealing with computer related misconducts legislatively, others have failed to do so. In some countries, the legislator has criminalized some criminal conducts that have long since been criminalized by that country's penal code. This creates conflict between criminal provisions, posing problems to prosecutors and courts alike.

Regarding the nature of computer crime statutes, the legislator is presented with two options. The first is the inclusion of the aforementioned criminal provisions in one separate code as one specific computer crime statute. The second is inserting substantive criminal provisions related to computer crimes into the existing penal law of the country. While the first method preserves the unity of substantive criminal law of the country in one code and prevents the dispersion of criminal provisions into many separate laws, the second one would, by contrast, create much-needed public awareness of computer crime.
Delphic Dictum: How Has the ICJ Contributed to the Global Rule of Law by its Ruling on Kosovo?
Authors: Howse Robert , Teitel Ruti
Published: March 2019

The most immediately striking aspect of the ICJ's recent ruling on Kosovo's unilateral declaration of independence is the divergence between what the Court actually said and how its decision is being read in the media and by political actors. Typically the Court is said to have found secession by Kosovo to be “legal” or “lawful” under international law. According to Kosovo President Fatmir Sejdiu, “The decision finally removes all doubts that countries which still do not recognize the Republic of Kosovo could have.” The angry reaction to the decision by Serbian nationalists likewise supposed that the Court had endorsed a right to secession. In fact, what the Court did was to read literally—and some would say narrowly or pedantically—the question it was asked, and thus to avoid opining on the major legal (and related policy) issues raised by the act of secession, including whether there is a right to proceed with a unilateral act of secession, and to whom such a right may or may not belong. On the literal reading, the Court was not asked, and thus it did not rule on, whether international law requires that the final status of Kosovo protect the group and individual rights of minorities, whether Kosovar Serbs or Roma. Likewise, the Court did not rule on whether Serbia or, indeed, any other State in the world community is required to recognize Kosovo as an independent State. Nor did the Court's decision address the borders of an independent Kosovo, or whether and under what circumstances force could legally be used either to impose independence or to resist it.
The Kosovo Opinion and Secession: The Sounds of Silence and Missing Links
Authors: Burri Thomas
Published: March 2019

With the request for an advisory opinion on Kosovo opportunity knocked on the doors of the International Court of Justice. The opportunity was unique for several reasons. First, the case of Kosovo was momentous. It had involved war. International armed forces had intervened to stop ethnic cleansing. Since then, the situation of Kosovo has been politically loaded. It has polarized the entire international community. Second, it is a rare occurrence that such a situation comes to the Court. The regular case, if there is such a thing, before the Court has tended to be a relatively low-profile interstate dispute. The Kosovo incidence had only come to the Court in the first place—like the case of the Wall on the West Bank, the other recent high-profile exception—because the detour via the United Nations General Assembly had been open.
Book Review: Alexander Morell's(Behavioral) Law and Economics im europäischen Wettbewerbsrecht
Authors: Podszun Rupprecht
Published: March 2019

Imagine your local supermarket invites you to get a 10% reduction on all food bills at the end of the year if you buy 90% of all food there throughout the year. Would you accept? If your supermarket is dominant in the sense of European competition law—and if it is located at the, say, Belgian-Dutch border—it may face an antitrust investigation. The rebate may turn into an exclusivity arrangement that hinders free competition for your money; welcome to the world of target rebates. The book under review deals with the handling of target rebates in European competition law. Above all, however, it is a study of the possible information to be drawn from economics and behavioral studies for the law.
The Three Levels of Citizenship within the European Union
Authors: Bauböck Rainer
Published: March 2019

European Union citizenship is derived from Member State nationality. This fact often has been considered a “birth defect” to be overcome by either disconnecting EU citizenship from Member State citizenship or by reversing the relationship in a federal model so that Member State citizenship would be derived from that of the Union. I argue in this essay that derivative citizenship in a union of states can be defended as a potentially stable and democratically attractive basic feature of the architecture of the EU polity where EU citizenship is perceived of as one layer in a multi-level model of democratic membership in a union of states such as the EU. This perspective is not a defense of the status quo, but rather allows for—or even requires—a series of reforms addressing a number of inconsistencies and democratic deficiencies in the current citizenship regime.

Most academics writing about Union citizenship tend to compare it to that which they know best: Nation State citizenship. It then comes as no surprise when they conclude that the current construction of EU citizenship is internally incoherent, externally not sufficiently inclusive, and also lacking in democratic legitimacy. To a certain degree, I agree with this criticism; however, such authors often apply the wrong standard of comparison and therefore are likely to promote faulty solutions. As the EU Treaties clearly have spelled out since the 1997 Treaty of Amsterdam, EU citizenship is complementary or additional to Member State nationality without replacing it. National citizenship is a constitutive element of EU citizenship and therefore cannot serve as an external standard of comparison.
A Common European Identity for European Citizenship?
Authors: Follesdal Andreas
Published: March 2019

Over the past two decades, authors, many of whom are included in this volume, have addressed several salient foundational issues concerning citizenship in Europe. Others in this volume address some of these issues—such as the relationship between national and European citizenship regarded as multilevel (Rainer Baubock and Ulf Bernitz), the relationship between citizenship and legal human rights (Samantha Besson), the relationship between citizenship and political rights in particular (Agustin Menendez and Jo Shaw), and citizenship and social rights (Stefano Giuboni).

This essay elaborates on the need for shared values among those who share citizenship in Europe, as either citizens of Member States engaged in multilevel governance or as Union citizens. The European crisis has increased the call for such values, and also shows that people contest these values. The issues include: What is the responsible exercise of political rights in national elections with repercussions for EU governance, how to trust authorities at all levels concerning human rights, the extent of cross-border solidarity at the risk of free-riders, and the trust that the political and legal order will remain responsive to the best interests of all affected.
The Origins, Evolution, and Political Objectives of EU Citizenship
Authors: Maas Willem
Published: March 2019

Within this collection flowing from the “European Citizenship: Twenty Years On” conference, this article has three functions: first, explain the political origins of a common supranational citizenship in Europe; second, summarize the evolution of EU citizenship by illustrating the debates about the proper relationship between human rights (for everyone) and citizenship rights (for EU citizens only) and about the relationship between national and EU citizenship (or national and EU law), debates occurring within a context of the ever-expanding scope of EU law; third, provide a new perspective on the debates about EU citizenship'sfinalité politiqueor political objectives by placing EU citizenship in a comparative perspective. The main argument of the first section is that the goal of creating European citizens has always been an essential element of the European project, rather than an afterthought accidentally introduced in the Maastricht Treaty. Hence the conference title of “Twenty Years On” is flawed; “Sixty Years On” (dating the genesis of European citizenship not to the 1990s but rather, correctly, to the 1950s) would be more appropriate. This article's second section describes the expanding scope and growth of supranational citizenship rights from workers to movers to citizens; the main idea is that this continuing expansion and growth of EU citizenship should mean the end of reverse discrimination, in which national law disadvantages those who cannot appeal to EU law but must rely on national law. The main argument of the third section is that EU citizenship is notsui generisor without precedent but rather should be seen as one manifestation of the ubiquitous tension between unity and diversity, a tension present within any political community but manifest most clearly in political systems (such as the EU and federal states) characterized by multilevel citizenship.
Citizenship in Europe and the Logic of Two-Level Political Contracts
Authors: Weale Albert
Published: March 2019

How are we to understand the state of citizenship in Europe twenty years after the implementation of the Maastricht Treaty? When answering this question, I focus particularly onsocial citizenship. Social citizenship may be understood as a form of political relationship among citizens extending to each collective protection against the financial risks associated with the life cycle, including dependency when young, ill heath, accidents, and the vulnerabilities of old age. Collective protection against these financial risks takes the form of social rights within the welfare state, including rights to income protection, access to health care, and the provision of education. Within the most economically developed European states, securing these rights has since 1945 been seen as central to the democratic legitimacy of these states, as well as an aspirational standard for democratizing societies seeking to achieve “the concrete substance civilised life” and the associated “general reduction of risk and insecurity”1 at all levels that the welfare state provides.
Which Citizenship? Whose Europe?—The Many Paradoxes of European Citizenship
Authors: Menéndez Agustín José
Published: March 2019

If you want to go in pilgrimage to the place where your constitution was born, you should go to the mountains were the resistance fighters were killed, to the prisons where they were jailed, to the fields where they were hanged. Wherever an Italian died trying to win back the freedom and dignity of our nation, there you should go, young Italians, because it was there that your constitution was born.

– Piero Calamandrei1
Why It Is High Time to Reform the Homicide Statutes
Authors: Maas Heiko
Published: March 2019

The Bremen Regional Court is located in a monumental building – theAltes Gerichtshaus(Old Courthouse). A stone slab has adorned its facade since time immemorial. It has been placed directly under the jury courtroom – where the capital crimes come to trial. The inscription on the slab reads: “Thou shalt not kill.” During the National Socialist dictatorship the ruling powers wanted to take down the slab and destroy it. But some citizens of Bremen stopped them. Instead, the commandment against killing was merely covered with a stone slab and not uncovered again until after 1945. The admonition can still be seen today at the Bremen Regional Court. This episode from Bremen's judicial history brings to light three things. First, “Thou shalt not kill” – one of the ten Biblical commandments – is the archetype for all rules associated with human coexistence. Second, the commandment did not suit the agenda of the National Socialists, who perfected the killing of human beings in their extermination camps with industrial means. Third, the people sensed intuitively that rejecting the commandment against killing was a fatal error that would lead to barbarism. That is why they made sure the commandment stayed where it was, even though it became invisible during the Nazi dictatorship.
Collective Bonapartism – Democracy in the European Crisis
Authors: Brunkhorst Hauke
Published: March 2019

My paper has two parts. In the first part I will outline an evolutionary model for analyzing the relation of democracy, cosmopolitanism and conflict. In the second part I will apply it to the case of European constitutionalization, and its failure.
Lost at Sea
Authors: Caruso Daniela
Published: March 2019

This essay aims to expand the definitional contours of the “lost generation” discussed in this special section of the German Law Journal. A reflection on the existential loss experienced by many young Europeans must also acknowledge, for the record and for reasons of relative salience, those who have literally drowned in the waters of southern Europe in their quest for a better future. Their youth has been lost in a true—not just metaphorical or metaphysical—sense. The per-day death toll reached its peak on 3 October 2013, when over three hundred bodies were retrieved off the coast of Lampedusa by Maltese and Italian rescue forces. The just-concluded summer brought another tragic surge in Mediterranean migration, including more deadly shipwrecks.
On the Constitutionality of aHauptausschuss(Main Committee) in the GermanBundestag
Authors: Thielbörger Pierre , Ackermann Tobias
Published: March 2019

Since the end of 2013, Germany has been governed by a “grand coalition” of the biggest parties—Chancellor Angela Merkel's Christian Democratic Union (CDU), together with its Bavarian sister, the Christian Social Union (CSU), and the Social Democratic Party (SPD). While one can generally call the hitherto work of the current government quite productive (regardless of any qualitative assessment), the first few months of the 18th legislature period painted a different picture: due to tough and slowly progressing negotiations over a new government, the German Parliament was paralyzed for a considerable time. After the election of 22 September 2013, in which Ms. Merkel's CDU missed an absolute majority, the constitutive session of theBundestagtook place on 22 October 2013, which was the last possible date within the thirty-day deadline as set out by Art. 39(2) of theGrundgesetz(German Basic Law). The new government, however, was elected not before 17 December 2013. In between, the newBundestogcould not effectively begin to work as the interplay with the government is an important part of the Parliament's work. Urgent business had to be left untouched. In order to end this deadlock, the factions of CDU/CSU and SPD took a unique step: they established a so-called “Main Committee” (Hauptausschuss), which was intended to serve as a preliminary body dealing with the most urgent tasks until a new government would finally be formed.
Autonomy and Effectiveness as Common Concerns: A Path to ECHR Accession After Opinion 2/13
Authors: Krenn Christoph
Published: March 2019

Opinion 2/13is a sweeping blow. After four years of negotiations, it took the Court of Justice of the European Union (CJEU or the Court) only a few paragraphs to pick to pieces the draft accession agreement on the EU's accession to the European Convention on Human Rights (ECHR), finding a conflict with the EU Treaties on ten grounds. The Court's message is clear: Accession, under the terms of the draft agreement, would risk undermining the very essence of the EU's constitutional system.
When Caveats Turn into Locks:Opinion 2/13on Accession of the European Union to the ECHR
Authors: Łazowski Adam , Wessel Ramses A.
Published: March 2019

The Court of Justice of the European Union (the Court of Justice) decided to strike again. On 18 December 2014, for the second time in history, the Court rejected the European Union's (EU) accession to the European Convention on Human Rights (ECHR). Although the judges do not seem to negate the idea as a matter of principle, they made the renegotiation of the Draft Accession Treaty very difficult, to say the least. The message sent by the Court of Justice to the Member States may have surprised some, but for many it was a rather expected development. The Court of Justice has always been a fierce defender and promoter of the autonomy of EU law. For that purpose, the procedure based on Article 218 (11) TFEU has been, among the others, the Court's greatest weapon. Over the years a clear pattern has emerged: Whenever there is a threat to the autonomy and to the Court's exclusive jurisdiction, the judges will not shy away from taking bold decisions going against the will of the Member States. For obvious reasons, theraison d'êtrebehind the Court's decision is kept secret behind the doors of the deliberation rooms at Kirchberg in Luxembourg. Still, it cannot be denied thatOpinion 2/13shows that the Court of Justice will not give up its resistance to the ECHR accession so easily. In 1996, in Opinion 2/94, the Court held that the European Community, as the law stood then, had no competence to accede to ECHR. Now that Article 6(2) TEU provides for an obligation to accede, subject to conditions laid down in Protocol No 8 to the Founding Treaties, the Court has opted for strict interpretation of the latter, which, ultimately turns the caveats laid down therein into locks. It is clear that these caveats turned into locks are something that the judges will hold on to in the future and, by the same token, they will happily pursue interpretation that is very different from what the Member States intended when negotiating the Treaty of Lisbon and the Draft Accession Agreement.
Practicing Internal Self-Determination Vis-a-Vis Vital Quests for Secession
Authors: Shikova Natalija
Published: March 2019

It would be unrealistic to reject secession from the doctrine of self-determination and limit the doctrine to the colonialism context. Nevertheless, the question is: What principles do states need follow in response to secession movements? Democratic principles are not the best—or only—options to address these requirements, but the secession doctrine's development and state practice has made such principles legally and practically relevant, according to many scholars. This Article proposes that the focus of the debate should be transferred to the internal dimension of the right to self-determination. The possibilities that can come from the realization of this aspect of the right to self-determination can be further explored. Certainly there is a very wide and flexible range of options and measures for addressing, protecting, and promoting diversity, and thus overcoming identity conflicts and providing a balance of social power. Those political arrangements, though imperfect, can help to avoid secession, thereby providing stability, harmony, and prosperity of democratic societies. But practice has shown that there are exceptional cases in which the current conditions on the ground make the application of tools for internal self-determination impractical. In these exceptional cases, internal self-determination fails to achieve the desired goal. This Article examines the legal arrangements for realization of internal self-determination through the examples of Basque Country and Scotland as vital quests for secession in countries with long democratic traditions.
Migration of European Judicial Ideas Concerning Jurisdiction Over Google on Withdrawal of Information
Authors: Kowalik-Bańczyk Krystyna , Pollicino Oreste
Published: March 2019

Google's position in the information market has caused interesting legal developments insofar as its obligations are concerned. On various grounds, courts worldwide have begun to impose injunctions on Google that require the company to withdraw the search results—in fact, information sources—that its search engines provide. This article looks at this recent phenomenon of imposing obligations on Google to withdraw some information through the lens of judicial dialogue. In particular, we analyze the “inspiring” role of the Court of Justice of the European Union (CJEU) in itsGoogle Spainjudgment. This case represents a clear migration of some ideas that might be perceived as universal. Some courts outside of Europe—such as Canada—are gaining “inspiration” from the CJEU'sGoogle Spainjudgment in order to reinforce their own decisions. The legitimacy and techniques of this process are also discussed in this article.
Tamanaha and His Critics: Transatlantic Reflections on the “Crisis” in Legal Education
Authors: Donnelly Lawrence
Published: March 2019

In this article, Lawrence Donnelly, an American born and trained attorney who is now a Lecturer & Director of Clinical Legal Education in the School of Law at the National University of Ireland, Galway, considers Professor Brian Tamanaha's seminalFailing Law Schools, a comprehensive critique of legal education in the United States. The article first thoroughly outlines and analyses the central lines of argument inFailing Law Schoolsand then evaluates the scholarship written in response to it. The article next compares and contrasts the state of play in legal education in the US with what is happening in Western Europe and posits that, for a variety of reasons, law schools on the eastern side of the Atlantic Ocean may actually be better – and more realistically – placed at present than their US counterparts. Lastly, the article urges that legal educators around the world continue an open dialogue on the “crisis” Professor Tamanaha presciently identifies in a concerted effort to ensure that law students receive the best possible training to equip them for working in legal careers that may not closely resemble those pursued by their predecessors in light of rapid globalization, ever-improving technology and consequent changes to how legal services are provided.
Trial and Error—A Critique of the New German Draft Code for a Genuine Corporate Criminal Liability
Authors: Rübenstahl Markus , Brauns Christian
Published: March 2019

The following article aims to analyze the first German draft bill concerning a corporate criminal code. The draft bill, recently introduced by the federal state of Nordrhein-Westfalen, led to a transformation of a theoretical academic discussion towards a specific proposal on potential future legislation. Firstly, the article introduces underlying reasons for the draft based on deficiencies of the current legislation. Current regulations solely provide corporate administrative responsibility for criminal offenses committed by a corporation's management (involving huge fines). Subsequently, the article reviews the content of the draft, specifically the multiplicity of proposed criminal and other penalties. The authors intend to demonstrate that the draft is often too vague or—especially with regard to penalties—simply over the top. The applicable sanctions – which may be combined- would lead to a more draconic punishment than in any other comparable legal system. Furthermore, regarding the principles of due process and strict legality the proposed procedural rules of the draft are not satisfying. After all, the proposed procedural measures to safeguard the proceedings and the rules on representation and defense counsel are deficient.
The Protection of National Constitutional Identity and the Limits of European Integration at the Occasion of theGauweilerCase
Authors: Claes Monica , Reestman Jan-Herman
Published: March 2019

This contribution revisits theBundesverfassungsgericht'sorder for reference in theGauweilercase and focuses on two aspects of that order that until now have not received much scholarly attention. The first concerns the German federal constitutional court's dissociation of constitutional identity review under the German Basic Law from national identity review under Article 4(2) TEU. While the decision on the Lisbon Treaty had suggested that the two go “hand in hand”, theBundesverfassungsgerichtnow emphasizes the “fundamental” difference between the concept of national identity under Article 4(2) TEU on the one hand and the German concept of constitutional identity on the other. The second element is the German federal constitutional court's contention that its approach toultra viresand constitutional identity review can also be found in the constitutional law of many other member states. Yet, careful analysis demonstrates that while there does indeed seem to be a trend in that direction, and several elements of the German approach can also be found in other countries, very few national courts are as adamant as theBundesverfassungsgericht, and only a handful have developed their position with the same level of detail and ardor.
Incompatible Contrasts? — Preventive Detention in Germany and the European Convention on Human Rights
Authors: Merkel Grischa
Published: March 2019

This article will give an overview of the idea and history of origins of preventive detention and the legal changes in the German Criminal Code that underlie the decision of the European Court of Human Rights (ECHR) (17 December 2009). It will attempt an outlook by considering the prospective outcome of future law suits against German legal statutes relating to preventive detention, and will also describe the present situation and current legal recommendations, including the much-discussed alternative of detention in psychiatric wards. The article will close with a brief comparative look at the related legal problems arising in countries with a criminal law which is based on the establishment of personal guilt of the offender while facing public pressure to detain persons for protective reasons.
Prosecuting Terrorism Financing in Germany: Bundesgerichtshof (German Federal Court of Justice), Judgment of 14 August 2009 — 3 StR 552/08
Authors: Safferling Christoph , Ide Timo
Published: March 2019

The German Bundesgerichtshof (Federal Court of Justice) has to frequently adjudicate cases related to terrorism. The “War on Terror” has reached the German judiciary shortly after its proclamation as a reaction to the 9/11-attacks. Ever since, German criminal law is grappling with the question of how to harmonize security interests on the one hand with individual rights and liberties on the other. The expansion of the criminal law is a real threat for the previously liberty-oriented criminal law. The court decision discussed in this case addresses a specific aspect of terrorism: the financing of terrorist activities. As there is no special law prohibiting such kind of behavior, the judges had to apply section 263 of the German Criminal Code, which deals with fraud, and combine this with sections 129 a and b of the German Criminal Code, which makes being merely a member of a criminal organization into a criminal offence. A highly sensitive field of law that is put under scrutiny by anti-terrorism measures is procedural law. As secret investigation measures through electronic surveillance become more prevalent and sophisticated, the admissibility of the evidence, which was gained mainly by intelligence, becomes more and more questionable. The court decision discussed in this paper proves the willingness of the Federal Judges in Germany to reduce individual liberty rights in order to enhance the effectiveness of criminal prosecution.
The German Stem Cell Act
Authors: Taupitz Jochen
Published: March 2019

The article describes the original Stem Cell Act, the reform discussion following its enactment and the reform of the Act adopted by the German Bundestag on 11 April 2008.
TheGäfgen Judgmentof the European Court of Human Rights: On the Consequences of the Threat of Torture for Criminal Proceedings
Authors: Ast Stephan
Published: March 2019

Whether or not the prohibition of torture allows exemptions is controversial not only in Germany but worldwide. The European Court of Human Rights (ECHR) had to answer this question in the case of Gäfgen versus Germany (App. 22978/05). The Grand Chamber of the Strasbourg court delivered its judgment on 1 June 2010. It held that the prohibition of torture (Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms) does not grant any exemptions, even if the life of another is at risk. The present case commentary agrees with this result of the judgment. The next question is even more interesting from the legal point of view: What are the legal consequences of a violation of Article 3 of the Convention, especially with regard to criminal court cases against the offender and the victim of torture? The ECHR emphasizes the necessity of the effectiveness of the protection of the fundamental rights under the Convention. As a result, it argues for a thorough investigation and deterrent punishment of the offenders on the one hand and for an extensive exclusion of evidence obtained as a consequence of torture from the proceedings against the victim of torture on the other.
The Politics of Constitutional Identity and its Legal Frame—-the Ultra Vires Decision of the German Federal Constitutional Court
Authors: Mahlmann Matthias
Published: March 2019

Since the ECJ handed down the Mangold v. Rüdiger Helm (Mangold) decision in 2005, scholars have provided sometimes quite far reaching and sharp critiques of the decision and of what they took to be its consequences for European Union law. The decision concerned several questions, but the core issue was the applicability of (then) Community (now European Union) age-based anti-discrimination law in the case of a fixed-term employment contract. The contract at issue was based on a law that allowed fixed-term contracts without demanding objective reasons justifying the limitation of the period of employment beyond the age of 52. The law is enmeshed in the political problem of including people older than 52 in the workforce without depriving them of secure working conditions. The legal issue was complicated by the fact that the transposition time of the relevant directive 2000/78/EC including the prohibition of discrimination on the ground of age had not yet expired because of a permissible extension of that time by Germany. The ECJ declared the relevant norm to be contrary to Community law and thus not applicable in the case at hand. It applied the directive in question despite the still pending time limit for transposition, arguing with the requirement under Community law that Member States refrain from taking any measures liable to seriously compromise the attainment of the result prescribed by the directive. It buttressed its argument with the duty to report about the progress made during the extended transposition time. This provision was held to imply that the Member State was not allowed to adopt measures incompatible with progressive implementation. Furthermore, the ECJ interpreted the prohibition of age discrimination as an expression of a fundamental principle of Community law: the principle of equal treatment in the field of employment and occupation. Applying a proportionality test, the court found this foundational principle to have been violated. The ECJ also underlined the broad discretion the Member States retained in the field of social and employment policies. Because the provision's only criterion for allowing fixed-term contracts without an objective reason was age, without any other consideration linked to the structure of the labor market in question or of the personal situation of the person concerned, the Court found that even in light of this broad discretion, the respective norm was not appropriate and necessary to vocationally integrating unemployed older workers, which formed the purpose of the norm.
The Territorial Challenge: From Constitutional Patriotism to Unencumbered Agonism in Bosnia and Herzegovina
Authors: Oklopcic Zoran
Published: March 2019

Constitutional patriotism is on the ascent among contemporary constitutional theories. Its objective is to re-orient the loyalty of citizens away from particularistic attachment to a Nation, and towards the Constitution. In promoting political justice, constitutional patriotism relies on citizens’ acceptance of a particular constitutional order not as an embodiment of particularistic ethnocultural, or even statist values, but rather as an expression of universal political principles. In other words, a constitutional order ought not to be seen as an instrument for a nation's political self-actualization, but rather as a framework for institutions and a repository of values that enable a diverse body of citizens to critically rework their particular traditions in light of universalist principles of political justice.
From Theory to Practice: Exploring the Relevance of the Draft Articles on the Responsibility of International Organizations (DARIO)—The Responsibility of the WTO and the UN
Authors: Gal-Or Noemi , Ryngaert Cedric
Published: March 2019

In 2002, the United Nations (UN) International Law Commission (ILC) decided to include the subject of the responsibility of international organizations (IOs) in its program of work. By 2011, the Commission adopted sixty-six draft articles with commentaries, known as the Draft Articles on the Responsibility of International Organizations (DARIO). The adoption of the DARIO represents an enterprise of revolutionary implications for public international law and the future development of both international law and global relations and governance. It may leverage the international personality of the IO to a status previously unknown, particularly when compared to the supreme international actor, the State.
We Have Not Seen the Last of the Rogue State
Authors: Roele Isobel
Published: March 2019

Viewed at a certain angle, the rogue state seems to be in almost necessary relation with the idea of rupture. As Derrida put it in his 2002 lectures onRogues, the rogue state, état voyouinfranglaise,' “is someone who rattles, who shakes things up, who agitates.” Past and present rogue states like Iran, Iraq, Libya or North Korea, are associated with the acquisition of Weapons of Mass Destruction (WMD), state sponsorship of terrorism and the violation of human rights. These entities pose both external threats to other states and internal threats to their own people. Today, the phrase ‘rogue state’ may seem to be past its sell-by-date. While the term was not coined by the G.W. Bush administration, during the eight years it was in power in the United States (US), the phrase became strongly associated with the Bush Doctrine, appearing in key security documents as well as speeches. Under the banner of ‘change’ President Obama, a Nobel Peace Laureate, has distanced himself from the policies of his predecessor. The phrase ‘rogue state’ has been expunged from the current National Security Strategy, for instance.
The Future of European Creditor Protection and Capital Maintenance from a German Perspective
Authors: Haaker Andreas
Published: March 2019

The one-sided focus on shareholders’ interests inherent in shareholder value-orientated corporate policies presupposes that there is a functioning system to protect the economic interests of the other stakeholder groups (creditors, employees, customers, suppliers, etc.). This is an important constraint on the maximization of the market value of equity, which as a target variable cannot be equated with a market price on the stock exchange, or with a short-term profit or yield target, and certainly not with a pending bonus payment sum. Conversely, the postulation that the primary focus must be on shareholders’ interests loses its validity as a guiding operational principle if neither individual contractual agreements nor protective statutory rules can safeguard a minimum level of protection for individual stakeholder groups. Given the incompleteness of contracts, it is not sufficient to refer to the possibility of self-protection in contracts—this loophole must be closed by regulations and by corporate governance.
State Immunity Against Claims Arising from War Crimes: The Judgment of the International Court of Justice inJurisdictional Immunities of the State
Authors: Bornkamm Paul Christoph
Published: March 2019

The recent judgment of the International Court of Justice (ICJ) in theCase Concerning Jurisdictional Immunities of the State(Germany v. Italy; Greece Intervening) marks the climax of a series of legal proceedings before Greek, Italian, and German courts, as well as the European Court of Human Rights (ECHR) stretching over a period of more than fifteen years. The international community had eagerly awaited the ICJ's findings on the issue at the heart of the dispute, namely the scope of state immunity before foreign courts in cases concerning claims arising from serious violations of international humanitarian law. While most expected the Court to rule in favor of Germany and to uphold state immunity in principle, it was unclear whether the Court would acknowledge the increasing erosion of immunity with respect to serious violations of human rights or international humanitarian law. To the disappointment of many, the Court took a conservative approach and rejected the idea of an emerging exception from state immunity.
Enhanced Multi-Level Protection of Human Dignity in a Globalized Context through Humanitarian Global Legal Goods
Authors: Carrillo-Santarelli Nicolás
Published: March 2019

All around the world people suffer from acts of violence committed by armed non-state actors or transnational organized criminals, from abuses attributable to corporations, or from unlawful acts of international organizations, among others. Sometimes, the power of these and other actors matches and even surpasses that of states, and the formal separation between legal systems creates gaps that can lead to the impunity of abuses attributable to such actors, resulting in a failure to address their unlawfulness.
Conference Report—Collectivity: Public Law between Group Interests and the Common Good; The Annual Meeting of Public Law Assistants in Hamburg 2012
Authors: Payandeh Mehrdad
Published: March 2019

Since 1961, research assistants, doctoral students as well as post-doctoral researchers from universities all over Germany – and meanwhile also from Austria and Switzerland – come together once a year to debate current topics of public law. Over the last decades, the annual meeting has developed into an important forum for young public law scholars; they present their ideas, get a glimpse of the world of academia, and get to know their colleagues. From March 13th to March 16th, 2012, the 52nd Assistententagung took place in Hamburg. The meeting was organized by the three law schools located in Hamburg: the University of Hamburg, one of Germany's largest universities; the Bucerius Law School Germany's first private law school; and the Helmut-Schmidt-University, one of two German universities of the Federal Armed Forces (Bundeswehr). With collectivity as the general topic of the conference, the organizers provided a rather broad but nonetheless useful framework for the thirteen presentations given over the three days. While the presentations approached the concept of collectivity from different perspectives settled in different fields of the law, the relationship between individuals and groups as well as the significance of an overarching community interest appeared as recurring themes of the discussion.
Judicial Regionalism's Thwarting of UN Security Council Chapter VII Punitive Cosmopolitanism: Measuring the Effects on International Jurisdictional Constitutionalism
Authors: Solomon Solon
Published: March 2019

Under Chapter VII the UN Security Council has the authority to legally condemn certain behaviors by enacting binding measures on both states and individuals. This has been interpreted through measures undertaken by the Security Council, such as the institution of international tribunals on an inter-state level, and the imposition of sanctions on a personal level.

Focusing on Africa and Europe, this Article aspires to demonstrate how regional actors have acted in order to undermine the UN Security Chapter VII punitive cosmopolitanism, either through the institution of regional criminal courts meant to antagonize the International Criminal Court or through judicial decisions that clearly negate the Council's sanctions regime. In order to preserve international punitive cosmopolitanism, the Article will proceed to develop how regional jurisdictional initiatives can be integrated in the general international constitutional order, in both the criminal and the civil/administrative field.
A Judicial Re-Thinking on the Delegation of Powers to European Agencies under EU Law? Comment on Case C-270/12UK v. Council and Parliament
Authors: Schiavo Gianni Lo
Published: March 2019

The case C-270/12UK v. Council and Parliamentis a much-awaited judgment addressing the problem of the delegation of powers to European agencies in the financial markets. By distancing itself from the Advocate General's conclusions, the Court of Justice upheld the legitimacy of the use of Article 114 TFEU to allow the European and Securities Market Authority to prohibit or restrict certain financial products on the market. The Court also gave greater flexibility to theMeronidoctrine and superseded theRomanodoctrine. The Court's decision is welcome, especially in light of the increasingly extensive use of European agencies to regulate and supervise the internal market.
The Idea of Early-Conflict Constitution-Making: The Conflict in Ukraine Beyond Territorial Rights and Constitutional Paradoxes
Authors: Oklopcic Zoran
Published: March 2019

Using the crisis in Ukraine and the annexation of Crimea as a foil, the aim of this article is three-fold. First, it offers an internal critique of the influential answers that normative theory and international jurisprudence provide to the paradox of constitutionalism. Second, building on critical engagement with these approaches, this article mobilizes constitutional theory to find a constructive response to the crisis in Ukraine that goes beyond the prescriptions offered either by normative theory or international jurisprudence. In doing so, it seeks to sketch a broad constitutional framework not forpostbut rather forearly-conflict constitution-making. The final aim of this article is to contribute to a richer self-understanding of constitutional theory vis-à-vis its disciplinary neighbors.
The First Preliminary Reference of the French Constitutional Court to the CJEU:Révolution de Palaisor Revolution in French Constitutional Law?
Authors: Millet François-Xavier , Perlo Nicoletta
Published: March 2019

A preliminary reference on the part of the Constitutional Council was, in several respects, not to be expected. It was debatable whether it would consider itself as a “court or tribunal” within the meaning of Article 267 of the Treaty on the Functioning of the European Union (TFEU) and, therefore, whether it would refer a case to the European Court of Justice (CJEU) at all. The French constitutional court could also have resorted to theacte clairdoctrine so as to escape from their obligation to ask for the interpretive guidance of the CJEU. However, the main reason why a reference was not awaited by legal actors lies in the limited jurisdiction of the Constitutional Council. Until the introduction in 2008 of the so-called QPC, that is,question prioritaire de constitutionnalité(the Priority Preliminary Reference mechanism on issues of constitutionality), theConseil constitutionnelhad a very limited jurisdiction compared to its European counterparts. Its main mission was to assess the conformity of parliamentary bills and treaties with the Constitution and only with the Constitution. Its review could only take placeex ante, between the adoption and the promulgation of a text. By opening the way to anex postreview of statutes with regard to the rights and freedoms guaranteed by the Constitution, the QPC brought about a major change in the French adjudication system: statutes are no longer immune from constitutional challenge once they are in force. However, treaties and other international or European commitments are no parameters of constitutional review. TheConseil constitutionnelmade this clear in 1975 and never seriously changed track, despite minor qualifications to the rule. In their seminalIVGruling on the Voluntary Interruption of Pregnancy Act, they held that it was not up to them to review the compatibility of bills with treaties, in spite of Article 55 of the Constitution. Consequently, the task of the constitutional judges does not go beyond the assessment of laws with regard to the Constitution. This is the main reason that explains why, on the face of it, theConseil constitutionnelwas unlikely to refer a case to the CJEU. Why would it seek the interpretation or ask for the review of a European text if this text is immaterial for it and if the yardstick of its examination is the Constitution and only the Constitution? Yet, it happened. For the first time, theConseilreferred a case to the CJEU on 4 April 2013. Although this is undoubtedly a major legal breakthrough, we will see in due course that this is probably more arévolution de palaisthan a true revolution in French constitutional law.