bluuebunny/crossref_metadata_2025 huggingface dataset:
The ICJ Advisory Opinion on theAccordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovoand the International Protection of Minorities
Authors: Arp Björn
Published: March 2019

Very seldom has a judgment or advisory opinion of the International Court of Justice (ICJ) received so much media coverage as the recent Advisory Opinion on theAccordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovorendered on 22 July 2010 in response to a question posed by the General Assembly. The question had been forwarded on behalf of a request by Serbia and was phrased in the following way: “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”
A Note on the ICJ Advisory Opinion on Kosovo
Authors: Muharremi Robert
Published: March 2019

On 22 July 2010, the International Court of Justice (hereinafter the “ICJ”) delivered its advisory opinion on the accordance with international law of the unilateral declaration of independence in respect of Kosovo. The ICJ concluded that the declaration of independence dated 17 February 2008 did not violate any applicable rule of international law consisting of general international law, UNSC resolution 1244 (1999) (hereinafter the “Resolution 1244”) and the Constitutional Framework for Provisional Self-Government in Kosovo (hereinafter the “Constitutional Framework”). The ICJ delivered the advisory opinion in response to a question set out in resolution 63/3 dated 8 October 2008 of the General Assembly of the United Nations Organization (hereinafter the “General Assembly”), which asked if “the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo is in accordance with international law.”
Book Review: Chris Thomale's Leistung als Freiheit: Erfüllungsautonomie im Bereicherungsrecht
Authors: Hellwege Phillip
Published: March 2019

Chris Thomale's Leistung als Freiheit is the printed version of his Berlin doctoral thesis of 2011 (Freie Universität) which was supervised by Martin Schwab. The title of the book will most probably be meaningless or even be misleading to non-German readers: Leistung als Freiheit translates to “Performance as Freedom.” The subtitle will not be of any help to non-German readers, either: Erfüllungsautonomie im Bereicherungsrecht means “Autonomy of Performance in the Law of Unjustified Enrichment.” The subtitle points to the area of law to which the book is devoted—the law of unjustified enrichment—and within the law of unjustified enrichment, to those cases which are commonly—and not only in German law—labeled as enrichment by performance or enrichment by deliberate conferral. In German law, and also in other civil law systems, the different condictiones are joined together under this label.
Development and Status of Economic Criminal Law in Germany
Authors: Engelhart Marc
Published: March 2019

During the past decade, economic crime has been in the public focus in Germany like never before. Major cases, such as the embezzlement proceedings against former Deutsche Bank CEO Ackermann—the so-calledMannesmannproceedings—or the corruption incidents within the Siemens group, have shed more light on illegal behavior in the economic sector. These cases revived an interest in economic criminal law that had not been present since the 1980s when the first wave of economic crime regulation after the establishment of economic criminal law as an academic subject and as a central part of criminal policy had passed. This article analyzes the status and development of economic criminal law. First, it will deal with criminological aspects before turning to the forces in economic crime development. Second, it will examine the changes made in substantive, procedural, and soft law. It includes recent developments, such as the privatization of public investigations and the concept of compliance, as a means to prevent and discover criminal behavior.
The Content of European Citizenship
Authors: Eleftheriadis Pavlos
Published: March 2019

Many European Union law scholars, commentators and politicians consider the creation of European citizenship by the Treaty of Maastricht an important landmark in the process towards “ever closer union.” By marking a special relationship with the Union itself, citizenship epitomizes the growing maturity of the Union as a political community and not merely an economic project of a single market. Citizenship introduces the first elements of a political, social, and emotional bond between the peoples of Europe and their new Union. Nonetheless, the content of European citizenship remains a puzzle. The rights it grants are very different to those promised by states. When looked at in detail, it fails to match many of the most central elements of citizenship.

One of the problems in this area is that there is no single common core of citizenship rights. State citizenship in general marks a special relationship with a political community marked by a bundle of rights and duties, yet that relationship takes many forms.1 Some sociological accounts present a model of citizenship with many componentsdisaggregatedand broken down as overlapping identifications.2 Nevertheless, even these theories presuppose that the primary case of citizenship is some type of special belonging or attachment to a political community. Multiple national or other identities do not challenge the idea of a special attachment to a single set of institutions. In fact, they presuppose it. A theory of citizenship must explain the content of this special bond between the citizens and his or her political community and must explain whether or to what extent such a special bond has moral value sufficient to create moral obligations on those sharing it.3
Europe's Economic Constitution in Crisis and the Emergence of a New Constitutional Constellation
Authors: Joerges Christian
Published: March 2019

The European Union rides through troubled waters. Its original reliance on law as the object and agent of the integration project and on the “economic constitution,” which the Economic and Monetary Union (EMU)—as accomplished by the Treaty of Maastricht— expected to complete, have proven unsustainable. Following the financial and sovereign debt crises, individuals perceive the EMU, with its commitments to price stability and monetary politics, as a failed construction precisely because of its reliance on inflexible rules. The European crisis management seeks to compensate for these failures by means of regulatory machinery which disregards the European order of competences, takes power from national institutions, and burdens—in particular—Southern Europe with austerity measures; it establishes pan-European commitments to budgetary discipline and macroeconomic balancing. This abolishes the ideal of a legal ordering of the European economy, while the economic and social prospects of these efforts appear gloomy and the Union's political legitimacy becomes precarious. A fictitious debate between Carl Schmitt and Jürgen Habermas addresses the present critical constellation, where a number of Schmittian notions seem alarmingly realistic. This essay pleads for a more modest Europe committing itself to “unity in diversity,” the motto of the ill-fated Constitutional Treaty of 2003.
The Limits of Agencification in the European Union
Authors: Scholten Miroslava , van Rijsbergen Marloes
Published: March 2019

Although not explicitly regulated by the EU treaties, EU agencies not only exist but also have increased in number and power. In addition, while EU agencies may exercise very similar functions to those of the Commission, Articles 290 and 291 of the Treaty on the Functioning of the European Union (TFEU) do not list agencies among the possible authors of non-legislative acts. The existing situation raises the questions of the extent to which the ongoing agencification in the EU is legitimate and what its limits are. This article addresses these questions in the light of the old and new Treaties and case law, including the just releasedESMA-shortsellingcase. It shows that while the Lisbon Treaty made a few steps forward on the road of legitimizing EU agencies and delegating important powers to them, the scope of powers that EU agencies can have remains unclear. In this respect, the European Court of Justice's lenient approach in theESMA-shortsellingcase is unfortunate because it neither clarifies the issue nor pushes the Union Legislator and the Member States to address it. Consequently, in the absence of clear limits, further agencification is likely to persist at the risk of increasing the democratic legitimacy deficit and remaining accountability gaps.
Global Solutions, Local Damages: A Critical Study in Judicial Councils in Central and Eastern Europe
Authors: Bobek Michal , Kosař David
Published: March 2019

Judicial independence appears on most laundry lists of all bodies or institutions engaged with the rule of law. It is considered an unqualified public good. As a result, all major players engaged in legal reform and building a rule of law have diverted significant resources to this issue. For instance, the United Nations created the office of Special Rapporteur on the Independence of Judges and Lawyers in 1994. The World Bank has been investing heavily in judicial reforms in Latin America and Asia. In Europe, the Council of Europe has been pushing for judicial independence and judicial reform throughout the continent. Additionally, the European Union included judicial independence among its core requirements for the accession countries. Both organizations, the European Union and the Council of Europe, then jointly encouraged legal and judicial reforms in Central and Eastern Europe (CEE). A number of non-governmental organizations have likewise paid considerable attention to this issue.
The Reinterpretation of TFEU Article 344 inOpinion 2/13and Its Potential Consequences
Authors: Johansen Stian Øby
Published: March 2019

On 18 December 2014 the Court of Justice of the European Union (CJEU) deliveredOpinion 2/13and stunned the legal world by declaring that the Draft Agreement on the Accession of the EU to the European Convention on Human Rights (the Accession Agreement) was incompatible with the constituent treaties of the Union. Although some experts, admittedly, had been skeptical about certain aspects of Draft Accession Agreement, no one seems to have expected an opinion so critical and uncompromising. The opinion has consequently received widespread disapproval in the EU legal blogosphere.
The Nature of Corruption: An Interdisciplinary Perspective
Authors: Dimant Eugen , Schulte Thorben
Published: March 2019

In response to the many facets of corruption, many scholars have produced interdisciplinary research from both the theoretical and empirical perspective. This paper provides a comprehensive state-of-the-art survey of existing literature on corruption, utilizing these interdisciplinary insights. Specifically, we shed light on corruption research including insights from, among others, the fields of economics, psychology, and criminology. Our systematic discussion of the antecedents and effects of corruption at the micro, meso, and macro level allows us to capture the big picture of not only what drives corrupt behavior, but also its substantial ramifications.
Personal Gain or Organizational Benefits? How to Explain Active Corruption
Authors: Pohlmann Markus , Bitsch Kristina , Klinkhammer Julian
Published: March 2019

Corrupt practices in organizations are commonly explained via the rational choice of individual employees, with the benefits of deviant actors at the heart of the theoretical approach. This Article challenges the rational choice perspective with reference to cases of corruption in which the organizational benefits are crucial and personal gains negligible. The authors propose to embed the concept of “useful illegality” (Luhmann) into an institutional theory framework and develop a set of indicators for the systematic comparison of individual case studies. Exemplary analyses of two landmark cases of corporate bribery on behalf of German corporations' subsidiaries abroad (Siemens ArgentinaandMagyar Telekom) show that active corruption was neither simply a function of individual deviance, nor of personal gain. In contrast, institutional theory allows the modeling of organizational deviance as a function of unwritten rules that lend legitimacy to the deviant behavior of bribe payers. Despite plentiful opportunities in the periphery of these two multinational corporations, the few instances of personal gain were either in line with the organizational incentive structures (as inTelekom) or attributable to the loss of membership (as inSiemens). Mostly high-ranking employees, loyal to their organization, committed those crimes at high personal risks. The discussion of factors that explain why these “company men” nonetheless complied with the unwritten rules, in support of organizational benefits, leads the authors to conclude with likely consequences for effective regulation. They argue that it is the usefulness of the illegal behavior for the organization, its entrenchment in organizational cultures, and amplified adaptation problems with regard to changing institutional environments that explain what makes corrupt practices so hard to control and to regulate in a formal legal organization.
Agencificationin the United States and Germany and What the EU Might Learn From It
Authors: Chamon Merijn
Published: March 2019

In the European Union the legislature has, in the past years, established an increasing number of agencies, granting them increasingly important powers. This phenomenon of agencification is legally problematic because it does not have a legal basis in the EU Treaties. In order to better understand the challenges posed by EU agencification, this Article looks at similar agencification processes in two other federal-type polities, the U.S. and Germany. Germany is especially relevant to understanding the vertical (federal) dimension to EU agencification, while the U.S. experience can inform us about the horizontal (separation of powers) dimension. This is done by looking at three distinct issues: The question of the initial establishment of a new body at the EU (federal) level, the extent to which powers can be entrusted to such a body, and the degree to which the decisions adopted by such bodies are judicially scrutinized. The Article concludes that EU agencification poses a greater risk than agencification in Germany or the US because control is partially less well-established (compared to Germany) and because the EU polity is much less mature (compared to the U.S.).
The UN, the EU, and the Kadi Case: A New Appeal for Genuine Institutional Cooperation
Authors: Avbelj Matej , Roth-Isigkeit David
Published: March 2019

While the Kadi affair has attracted a lot of attention, this Article approaches it from a rarely used contextual theoretical perspective of resolving institutional conflicts through reflexive sincere cooperation. The argument is short and simple: The institutional relationship between the EU judiciary and the UN Security Council should have been conducted not in strategic-pragmatic terms motivated by institutional power-plays, but rather by genuine pluralist institutional cooperation. The argument is preceded by an in-depth analysis of the theoretical and concrete practical shortcomings stemming from the lack of institutional cooperation between the UN and the EU in the Kadi affair. These shortcomings were not inevitable, as the EU and the UN legal and political systems are already connected with a whole set of bridging mechanisms. These should be, however, strengthened and their use should be made more common. In order to achieve that, the Article suggests an amendment to the Statute of the Court of Justice of the EU and further improvement of the safeguards in the UN Security Council sanctioning mechanisms procedures. There is no dilemma: Enhanced institutional cooperation between the institutions of the two systems will work to their mutual advantage as well as, most importantly, maintain the rights and liberties of individuals like Kadi.
An Emerging Right to a “Gay” Family Life? The CaseOliari v. Italyin a Comparative Perspective
Authors: Ragone Sabrina , Volpe Valentina
Published: March 2019

This Article analyses, through the lens of comparative law, theOliari and others v. Italyjudgment, which was issued by the European Court of Human Rights (ECtHR) in July 2015. TheOliaricase is important for being the first judgment in which the ECtHR established the granting of legal “recognition and protection” to same-sex couples as a positive obligation for the Member States of the Council of Europe on the basis of Article 8 of the European Convention on Human Rights. In order to understand the role of judicial bodies in the progressive protection of homosexual rights, this Article combines an analysis of European case law with the national perspective. As it concerns the supranational facet, the authors illustrateOliari's reasoning and situate the case in the jurisprudence of the ECtHR. Elements of both continuity and innovation emerge from the analysis, as well as a relevant dimension of judicial dialogue supporting the incremental recognition of gay rights in Europe. As it concerns the national facet, this specific case was initially dealt with at the domestic level and was the object of judgment 138/2010 by the Italian Constitutional Court. The judgment is critically put into perspective through the examination of the jurisprudence of other European Constitutional Courts (France, Portugal and Spain) that were called on to decide similar cases in the same period. Therefore, the Article offers a comparative analysis of theOliarijudgment clarifying its relevance and speculating on the potential value of this case for the future recognition of the right to a “gay” family life in Europe.
When, if not Now? An Update on Civil Partnership in Germany
Authors: Sanders Anne E.H.
Published: March 2019

Following the article “Marriage, Same-Sex Partnership, and the German Constitution,” which was published in theGerman Law Journalin 2012 (seeAnne Sanders,Marriage, Same Sex Partnership and the Constitution, 13 German L.J. 911 [2012]), this article provides an update on recent developments in relation to same sex partnerships in Germany. The focus of this Article is case law of the German Constitutional Court from 2002 through today, but it also discusses other court decisions in relation to the rights of same sex parents. The Article concludes with an examination of a recent draft law which—if successful—will open marriage to same sex couples. While its chances for success are extremely slim, this Article argues that same sex marriage will eventually be introduced in Germany.
More Government with the People: The Crisis of Representative Democracy and Options for Reform in Germany
Authors: Pünder Hermann
Published: March 2019

Throughout the world, there is debate about how democratic systems should adapt to the demands of their increasingly emancipated citizenries. More than ever, people desire to take part in the creation of their life circumstances. The demand for participation is paired with a growing discontent with the political elites. This article looks at the challenges in the context of Germany's system of government, discussing the leading debates of democratic reform in the EU's largest member state with some incidental remarks on other countries. Specifically, the study analyzes two core components of representative democracy—the electoral process and the parliamentary decision-making procedure—and shows how they should be reformed to ensure political stability in the long run. As a measure for the analysis, the author develops a system of four preconditions, on which successful democratic government depends: Responsiveness and political leadership on the side of the elected representatives; preparedness for participation and acceptance on the part of the represented. The article shows that optimizing democracy on the basis of these pillars is not just advisable as a matter of political prudence. In fact, Germany's constitution, the Basic Law, contains a normative expectation towards the political elites that they continuously improve democracy and ensure its appropriate functioning.
“I Don't Take This Man to Be My Lawfully Wedded Husband”: Considering the Criminal Offense of “Forced Marriage” and Its Potential Impact on the Lives of Girls and Young Women with Migrant Backgrounds in Germany
Authors: Braun Kerstin
Published: March 2019

In Germany, the practice of forcing a person to marry against his or her own free will was not explicitly penalized and did not attract much political attention until the beginning of the new millennium. Since the mid-2000s, however, the German legislature has enacted a number of laws concerning forced marriage, possibly due to increased public and media interest in honor-related gender violence in immigrant communities. In 2011, the German Criminal Code (StGB) was amended to include “Forced Marriage,” thus making forcing someone to marry an offense in its own right. In light of similar recent developments criminalizing forced marriages in other European jurisdictions—such as England and Wales—this article aims to critically assess the German legislation and its potential impact on victims and offenders. First, this article considers the German criminal legislation in detail. Second, it contemplates the underlying question of whether the introduction of criminal law as a repressive measure effectively addresses the issue of forced marriage. Third, this article contemplates non-legislative measures that could contribute to affording more holistic protection. Finally, it concludes that improving the situation for victims of forced marriage in practice requires more than adopting criminal law on the matter.
One Court, Two Voices: Case Note on the First Senate's Order on the Ban on Headscarves for Teachers from 27 January 2015: Case No. 1 BvR 471/10, 1 BvR 1181/10
Authors: Leiss Johann Ruben
Published: March 2019

The First Senate of the German Constitutional Court held in its decision on 27 January 2015 on the ban of headscarves that a blanket ban on religious statements for teachers in public non-denominational schools—that does not require a sufficiently concrete threat to the peace at the schools or the state's neutrality—is unconstitutional. The Court further nullified a discriminatory clause that privileged Christian-occidental educational and cultural values and traditions vis-à-vis other religions. By doing so, Karlsruhe made a strong plea in favor of understanding the German State's neutral role in religious matters as one of openness and inclusion of a plurality of religions and worldviews, rather than that of a laizistic polity. It brought its jurisprudence in line with the United Nations Human Rights Committee's approach in similar matters. Though, arguably, the case would have required a referral to the Joint Senate of the Constitutional Court, as it marks a deviation from the Second Senate's decision from 2003, the findings of the Court on the substantive law are to be welcomed.
After the OMT Case: The Supremacy of EU Law as the Guarantee of the Equality of the Member States
Authors: Fabbrini Federico
Published: March 2019

This article analyzes the recent judgment of the European Court of Justice (ECJ) inGauweiler, answering the first preliminary reference ever by the German Constitutional Court (BVerfG), on the legality of the Outright Monetary Transaction (OMT) program of the European Central Bank (ECB). As the article explains, the ECJ rejected any possible claim of illegality of a key program devised by the ECB at the height of the Euro-crisis. However, because the BVerfG had defined the OMT program as ultra vires, and had threatened to strike it down if the ECJ did not reach the same result, the article defends the principle of the supremacy of European Union (EU) law, indicating that a possible nullification of the OMT program by the BVerfG would be clearly unlawful. To re-affirm the supremacy of EU law, the article argues that this principle is functional to ensure the equality of the member states before the law, preventing each country of the EU from cherry-picking which provisions of EU it likes or not. As the article suggests, respect of the principle of the supremacy of EU law – including by the BVerfG – is ultimately in the interest of every EU member state, including of Germany.
Conflicts of Competence Norms in EU Law and the Legal Reasoning of the ECJ
Authors: Conway Gerard
Published: March 2019

Defining competences in EU law has always been problematic, notwithstanding the inclusion since the Treaty of Maastrict of the principle of conferred powers as central to the constitutional character of the EU. Under the principle of conferral, the Union only has those powers actually conferred by the Treaties. However, the concepts of a common market or of ‘ever-closer Union’ have a conceptual scope that potentially, in effect, negates the principle of conferral. This article argues that the framework of norm conflict offers conceptual insight into the dynamics of determining and limiting EU competence. In particular, it draws on the distinction betweenlex specialisandlex generalisto understand different ways of treating competence norms in legal reasoning. Following a discussion of the concept of competence norms, this conceptual framework is applied to two case studies: (1) on the right to strike and (2) the general law of external relations.
What Principles Drive (or Should Drive) European Criminal Law?
Authors: Herlin-Karnell Ester
Published: March 2019

The entry into force of the Lisbon Treaty has changed the framework and possibilities of the development of European Union (EU) criminal law. Gone is the long-lived and awkward cross-pillar character of EU criminal law, as mainly a third pillar EU ‘intergovernmental’ issue but also partly a first (EC) pillar question. The Lisbon Treaty marks a new era for the criminal law as it brings it within the core of the EU law project. Nevertheless, Article 10 of the transitional protocol as attached to the Lisbon Treaty stipulates a five-year transition period before former third pillar instruments will be treated in the same way as EU acts. This paper will focus on two issues in particular. The first question that will be addressed concerns what EU law principles drive or decide the EU's involvement in criminal law. After having identified these principles the second question is whether they should drive it and if so what implications will it have for the criminal law in the future.
Obligation to Contract and the German General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz)
Authors: Wiemann Joachim
Published: March 2019

The German General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz, AGG) has been in force for four years now. Academic discussion has so far mainly focused on the scope of anti-discrimination provisions for non-state actors, i.e. on whether there should be private anti-discrimination legislation, what conduct the statute should prohibit, and what exceptions it should allow. In order to fully understand the effects and relevance of anti-discrimination provisions in a legal system, their remedies and sanctions have to be taken into account as well. This article focuses on the remedies provided for in the AGG and, more specifically, on obligations to contract. The issue of whether there is and whether there should be an obligation to contract has – as regards remedies – been the most controversial issue in the academic discussion so far.
Two Steps Forward, One Step Back: The 2010 Report by the UN Special Representative on Business and Human Rights
Authors: Černič Jernej Letnar
Published: March 2019

The relationship between human rights law and business has emerged in recent years as one of the most topical to be discussed and put on the agenda almost worldwide. The activities of corporations in this globalized environment have often served as the catalyst for human rights violations; due to the lack of institutional protection, some corporations are able to exploit regulatory lacunae and the lack of human rights protection. On 9 April 2010 Professor John Ruggie, the United Nations Special Representative of the Secretary General on human rights and transnational corporations and other business enterprises, submitted his fifth Report under the title “Business and Human Rights: Further steps toward the operationalization of the ‘protect, respect and remedy’ framework.” The objective of this short article is to examine his 2010 report and to establish whether this Report has contributed to clarifying standards in the field of human rights and business.
On Bridging Legal Cultures:The Italian Journal of Public Law
Authors: della Cananea Giacinto
Published: March 2019

The example of the German Law Journal has been very important for the creation of a new legal journal, the Italian Journal of Public Law. First, that example was very persuasive due to the importance of the traditional ties between the German and Italian legal cultures. Second, following that example, unlike most e-journals in the legal field in Italy, the Italian Journal of Public Law devotes considerable attention to theoretical issues. Its goal is essentially to serve as a bridge between legal cultures and this explains the choice of English as the working language. This does not imply, however, a demise of the national tradition, in particular as far as the distinctiveness of public law is concerned. Openness towards other legal cultures implies, rather, an even stronger awareness of the existence of a variety of approaches or methods, in contrast with the faith in “the” legal method, conceived in a unitary way, which characterized part of the last century.
Introduction – The German Law Journal's Human Rights Symposium (2012)
Authors: Wong Tiffany
Published: March 2019

My motivation in putting together this Human Rights Symposium for the German Law Journal (GLJ) is based on a number of events in the news this year: recent outbreaks of political protests in Libya and Egypt, on-going wars in Iraq and Afghanistan and natural disasters in Haiti and Japan, that have re-opened questions about human rights in the 21st century on a global scale.
Interest-Balancing vs. Fiduciary Duty: Two Models for National Security Law
Authors: Fox-Decent Evan , Criddle Evan J.
Published: March 2019

The metaphor of the balance has long dominated national security law and policy. As Richard Posner has explained, one side of the balance “contains individual rights, the other community safety, with the balance needing and receiving readjustment from time to time as the weights of the respective interests change. The safer we feel, the more weight we place on the interest in personal liberty; the more endangered we feel, the more weight we place on the interest in safety, while recognizing the interdependence of the two interests.” While policymakers have debated the relative weight states should give to civil liberty concerns and public security concerns in various contexts, few question the general balance metaphor that structures these debates. By all accounts, interest balancing has provided the primary model for making national security law and policy worldwide since September 11, 2001.
“Market Access” or Bust? Positioning the Principle within the Jurisprudence of Goods, Persons, Services, and Capital
Authors: Connor Tim
Published: March 2019

The Treaty on the Functioning of the European Union (TFEU) provides with respect to the free movement of goods that “[q]uantitative restrictions on imports and all measures having equivalent effect shall be prohibited.” In contrast, the TFEU provides that, with respect to the free movement of persons, services, and capital, restrictions at the national level on such rights are similarly unlawful.
Soft Law in EU Competition Law and its Judicial Reception in Member States: A Theoretical Perspective
Authors: Georgieva Zlatina
Published: March 2019

This work draws from accounts on the nature and legal effects of soft law instruments in EU and international law with the ultimate aim to construct a theoretical framework for recognition of EU competition soft law—guidelines, communications, notices, and the like—in the judicial discourse of national courts of the European Union. “Recognition” is used to encompass instances in which the national judiciary either explicitly interprets—that is, agrees or disagrees with—the content of competition soft instruments, or treats their substance in a roundabout, implicit way—without explicit reference to soft law in the judgment proper. This second option is called “the persuaded judiciary scenario.” Importantly, a foundational assumption of the current work is that courts do not transform soft law into hard law when subjecting the former to judicial interpretation/recognition.2
How to Uphold the Territorial Integrity of Ukraine
Authors: Fabry Mikulas
Published: March 2019

Russia's absorption of Crimea violated the norm of territorial integrity, which protects states against involuntary loss of territory to other states. This article addresses two different arguments on how to deal with this violation: (1) That Ukraine lost Crimea for good and that this should be acknowledged, both politically and legally, if one seeks to forestall forcible change of interstate boundaries elsewhere; and (2) that third party countermeasures against Russia can roll back its territorial gains in Ukraine, but only if they are much more materially robustthanthey have been so far. Whilemutually incompatible, the arguments raise an important issue—how to uphold international legal norms in particular situations—an issue to which scholars of international law do not pay much detailed attention. Yet doing so is important because international legal norms leave governments with wider decision-making discretion than is commonly presumed, and different ways of upholding a norm are predisposed to generate different effects, including legal effects. Having examined the two approaches, the article argues that the best way to uphold the territorial integrity of Ukraine is by staking a middle ground between them, placing emphasis on the policy of non-recognition.
Sovereignty and Crimea: How Referendum Democracy Complicates Constituent Power in Multinational Societies
Authors: Tierney Stephen
Published: March 2019

This article examines the specific issue of the referendum as an instrument in the reordering of territory, specifically in the context of the secession of Crimea from Ukraine. The article maps how in recent decades independence referendums have proliferated and considers how the Crimean situation exposes the deep pathology of uncertainty in international law and its understanding of self-determination, exposing the referendum as a dangerous outlier. The principle of democracy, present already in the context of Kosovo's unilateral independence, and which forced the hand of Canada and the UK to accommodate secessionist aspirations, is a growing feature of international legal discourse, and one which suggests that the referendum is likely to remain a potential trump card to which nationalists will appeal to overcome both constitutional impediments and the black hole of international law in the path toward statehood.
Territorial Conflict and Territorial Rights: The Crimean Question Reconsidered
Authors: Banai Ayelet
Published: March 2019

This article focuses on contemporary theories of territorial rights in political and legal philosophy and explores their implications for the case of Crimea, focusing on three main accounts of territorial rights: Liberal nationalist, Lockean, and Kantian. The article advances the legal-political account of the “people” and its territorial rights as a promising approach to theorizing the corporate agents that have potentially valid territorial rights and claims. While normative theory does not yield a single unequivocal judgment that identifies one claimant as the solely justified territorial right-holder in Crimea, the application of general principles of territorial rights theory can help identify the pertinent considerations for the case, which clarify the normative implications of each potential resolution. While no party has an absolutely just territorial claim to Crimea, this article offers a qualified defense of the existence of a distinct “Crimean people,” defined by the distinct political history of Crimea and its long-standing legacy of autonomous legal-political institutions, which may constitute a shared political project for the culturally diverse population.
International Role in State-Making in Ukraine: The Promise of a Two-Stage Constituent Process
Authors: Arato Andrew
Published: March 2019

The conflict in the Ukraine—barely placated by a fragile truce that temporarily froze its territorial fault lines—remains one of the gravest threats to both regional and international peace since the end of the Cold War. The present de facto territorial arrangements in Ukraine remain highly unstable—as well as entirely unacceptable—to at least one of the parties to the conflict. With the fate of the second Minsk Agreement in question, neither the parties involved in the conflict nor the powers that support them have been able to propose mutually-acceptable, comprehensive solutions that would significantly diminish the danger of a renewed violent confrontation. In such a situation, the wider international community could play a helpful role in achieving a lasting political settlement.
Recent Golden Share Cases in the Jurisprudence of the Court of Justice of the European Union
Authors: Szabados Tamás
Published: March 2019

In several golden share cases, the Court of Justice of the European Union (the “Court”) condemned Member States for reserving certain special rights in privatized companies for themselves. In spite of the Court's consistently strict approach in the golden share cases, the more recent golden share judgments demonstrate that the Court's practice is not free from uncertainties. In its case law, the Court seems to hesitate between the application of the freedom of establishment and the free movement of capital. Additionally, it is not entirely clear which measures are caught by provisions on the freedom of establishment and the free movement of capital.
Constitutional Review of Tax Laws and the Unconstitutionality of the German Inheritance Tax
Authors: Lepsius Oliver
Published: March 2019

Constitutional review of German tax laws has become a major area for the development of the jurisprudence of the German Federal Constitutional Court, constitutional doctrine, and theory. This Article takes a recent decision in which the German Federal Constitutional Court declared parts of the inheritance tax statute unconstitutional as an example to demonstrate why tax law in particular has become such an interesting field in constitutional jurisprudence. The case is also noteworthy for the court's new views on equal protection, its deference to parliamentary discretion, and the abolishment of the so-called consequentiality doctrine (Folgerichtigkeit) it had introduced ten years before.
A Decision on Inheritance Tax by the German Constitutional Court: A Brief Comment
Authors: Gaisbauer Helmut P. , Sedmak Clemens
Published: March 2019

In Germany, endowments and bequeathals are subject to between seven and fifty percent inheritance tax. Small and medium-sized family-run businesses are exempt from inheritance tax either partially or entirely. On 17 December 2014, Germany's Constitutional Court ruled that the present system of enabling businesses to “avoid paying” inheritance tax was in violation of the “rule of equal tax principal.” Furthermore, the inheritance tax law in its current form leaves plenty of leeway for variations in percentages of payments, which are difficult to justify. Thus, the Court ruled, existing laws are unconstitutional and must be reformed and replaced.

In this case note we argue from a socio-ethical viewpoint that inheritances taxes are in principle morally justified. One important key element of the tax system is trust. This trust can be strengthened by (1) creating sustainable laws that will stand the test of constitutional screening, (2) offering plausible justification for fiscal policies including exemptions on clear normative principles like subsidiarity, common good, freedom and simplicity, and (3) broadening the tax-paying basis without undercutting relevant human agency.
A Review of EU Regulation of Sports Nutrition: Same Game, Different Rules
Authors: Varvaštian Samvel
Published: March 2019

Today's athletes, both professionals and amateurs, use a wide range of different nutritional substances to increase training performance, improve the recovery process, burn fat, gain muscle mass, etc. Although such substances are not always thoroughly researched for their potential effect on humans, they are popular and easy to obtain. Therefore, an adequate regulatory system is needed to ensure the protection of consumers. Currently, however, there are no specific provisions with regard to sports nutrition in EU law; thus, such products are usually marketed as food supplements, fortified foods, dietetic foods, and/or foods with nutrition or health claims. This article reviews the relevant legislation with a particular emphasis on policy developments regarding sports nutrition.
Preliminary Reference and the Hungarian Constitutional Court: A Context of Non-Reference
Authors: Gárdos-Orosz Fruzsina
Published: March 2019

Jiri Zemanek, Professor at Charles University, Prague, asks what conclusions may be drawn from the current state of acceptance of the European Union (EU) law doctrine by the constitutional courts of the new Member States for their performance in the agenda of preliminary rulings. What can they learn from the experience of the old Member States? Should they follow the practice of the AustrianVerfassungsgerichtshof(Constitutional Court), which referred its first question in 1999, four years after its accession, and later repeated it several times? Or should they follow the most active Belgian Cour Constitutionnelle? Should Hungary follow the practice of the Italian Constitutional Court, Lithuania, France, Spain, or Germany? Having reviewed the case law of the Hungarian Constitutional Court and the scholarly analysis in search of the “missing links,” this study wishes to contribute to the diverse range of ideas concerning European “rule of law” integration and constitutional court contributions to it.
Review by Constitutional Courts of the Obligation of National Courts of Last Instance to Refer a Preliminary Question to the Court of Justice of the EU
Authors: Lacchi Clelia
Published: March 2019

The Constitutional Courts of a number of Member States exert a constitutional review on the obligation of national courts of last instance to make a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU).

Pursuant to Article 267(3) TFEU, national courts of last instance, namely courts or tribunals against whose decisions there is no judicial remedy under national law, are required to refer to the CJEU for a preliminary question related to the interpretation of the Treaties or the validity and interpretation of acts of European Union (EU) institutions. The CJEU specified the exceptions to this obligation inCILFIT. Indeed, national courts of last instance have a crucial role according to the devolution to national judges of the task of ensuring, in collaboration with the CJEU, the full application of EU law in all Member States and the judicial protection of individuals’ rights under EU law. With preliminary references as the keystone of the EU judicial system, the cooperation of national judges with the CJEU forms part of the EU constitutional structure in accordance with Article 19(1) TEU.
Constitutional Courts, Preliminary Rulings and the “New Form of Law”: The Adjudication of the European Stability Mechanism
Authors: Bardutzky Samo
Published: March 2019

In 2012 and 2013, we observed how the European Stability Mechanism (ESM) was adjudicated by “EU courts, plural”: a number of high courts of the Member States (among them “Kelsenian” constitutional courts as well as representatives of a more hybrid model of judicial review of constitutionality) and the European Court of Justice (CJEU) were seized by challenges to the mechanism. What attracted attention was the fact that only one court, the Supreme Court of Ireland, decided to submit a preliminary reference to the CJEU, while the other courts, as would appear from their judgments, did not even consider the option. This was a suboptimal example of judicial dialogue in the case of ESM adjudication.
Resistance to Anti-Discrimination Law in Central and Eastern Europe–a Post-Communist Legacy?
Authors: Havelková Barbara
Published: March 2019

Post-communist Central and Eastern European ('CEE') legislators and judges have been resistant to equality and antidiscrimination law. This Article argues that these negative attitudes can be explained in part by the specific trajectory that EAL has taken in CEE during and after state socialism, which has differed from Western Europe. In the UK/EU, the formal guarantees of equal treatment and prohibitions of discrimination of the 1960s and 1970s were complemented by a more substantive understanding of equality in the 1990s and 2000s. This development was reversed in CEE—substantive equality, of a certain kind, preceded rather than followed formal equality and antidiscrimination guarantees.

The State Socialist concern with equality was real, and yet the project was incomplete in several significant ways. It saw only socio-economic, but not socio-cultural inequalities (relating to dignity, identity or diversity). It was transformative with regards to class, but not other discrimination grounds, especially not gender. While equality was a constitutionally enshrined principle, there was an absence of any corresponding enforceable antidiscrimination right. Finally, the emphasis on the “natural” differences between the sexes meant that sex/gender discrimination was not recognized as conflicting with women's constitutional equality guarantees.
A Discourse Theoretical Approach to Sovereign Debt Restructuring: Towards a Democratic Financial Order
Authors: Goldmann Matthias , Steininger Silvia
Published: March 2019

This Article studies the role of law for aligning democracy with a market-based financial order. Jürgen Habermas's discourse theoretical understanding of the role of law in the welfare state establishes a structure for exploring this issue. According to this approach, law needs to be enforceable, law-making and law-application need to be institutionally separated, and public law needs to be distinguishable from private law. The contemporary practice of sovereign debt restructuring reveals some empirical and normative challenges to this understanding of the law. Based on these findings, this Article proposes several conceptual and institutional improvements that might lead to a more stable relationship between democracy and financial order. In particular, we argue that sovereign debt restructuring should tap the legitimating potential of existing transnational discourses that are characterized by cross-border cleavages in public discourse.
Public Law's Rationalization of the Legal Architecture of Money: What Might Legal Analysis of Money Become?
Authors: Feichtner Isabel
Published: March 2019

Many of the ills afflicting democratic capitalism have their source in the current legal architecture of money and finance. At the same time the reimagination of institutions of money and finance promise an avenue for reform to democratize the economy and prevent the perpetuation of austerity politics. Such institutional reimagination requires a perspective that recognizes money as an institution linking state and civil society, politics and the economy. Economics in great part eschews such a perspective and perceives of money as a medium of exchange largely independent of government and politics. Legal analysis, by contrast, should be ideally suited for the endeavor to analyse the various ways in which the institutional design of money configures political economy.