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Constitutional Awakening of Values
On 5 June 2025, AG Ćapeta delivered her opinion in case C-769/22, raising a pivotal question for the EU’s constitutional future: Can Article 2 TEU serve as a standalone provision in infringement proceedings? While the issue has sparked debate – including on this blog – this post defends the Opinion as a constitutionally coherent and necessary step to safeguard the Union’s foundational values. It argues that AG Ćapeta’s approach is firmly rooted in existing case law and offers a compelling legal framework to address democratic backsliding. The post focuses on her use of the “good society” concept and the proposed “negation of values” test, examining their normative grounding and practical significance within EU law.
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The European Union’s Fantastical Constitution
Recently, von Bogdandy and Spieker decided to boldly go where not even they had dared to go before. To overcome the possible Hungarian veto on prolonging EU sanctions against Russia, they propose that the explicit requirement in Article 31(1) TEU for such decisions to be taken by the Council acting unanimously should be overcome on the basis of Article 2 TEU. In their view, a Hungarian veto against further sanctions would violate the value of solidarity and the Hungarian vote should therefore not count. We argue that this would launch us into a whole new, and in our view, dangerous galaxy.
Continue reading >>“Wavering Between Hope and Despair”
Reflections From Within German International Law Scholarship
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„Schwanken zwischen Hoffnung und Verzweiflung“
Innenansichten aus der deutschen Völkerrechtslehre
Continue reading >>Rethinking Article 2 TEU
The recent Opinion of Advocate General (AG) Ćapeta in Case C 769/22 European Commission v Hungary marks a key moment in the evolving case law on Article 2 TEU. The case concerns Hungary’s controversial 2021 legislation restricting access to content portraying or promoting LGBTI identities. This analysis traces how recent ECJ rulings have prepared the ground for this development and examines the Opinion’s implications for the future enforcement of the EU’s constitutional identity.
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A Constitutional Settlement Is Poland’s Only Hope
In Poland, the narrow defeat of liberal Warsaw Mayor Rafał Trzaskowski by the ultra-conservative Karol Nawrocki in the June 1st presidential election marked a turning point. The possibility of restoring the pre-2015 constitutional order has effectively vanished. But this does not mean Polish democracy is doomed. Poland’s European partners must recognize the dramatic shift Polish voters delivered. Rather than fixating on the formal legality—or illegality—of the dizzying array of judicial reforms and counter-reforms enacted since 2015, the time has come to encourage all sides to pursue a national constitutional settlement. This new framework must address not only judicial independence but also the deeper social and political polarization now defining Polish life.
Continue reading >>Beyond Legal Restoration
A recently published proposal by former Constitutional Court judge Béla Pokol suggests introducing a new emergency regime designed to defend Hungary’s illiberal system against potential re-democratization efforts by a future government. Together with international criticism of Poland’s judicial reform in its process of democratic renewal, this provokes a profound reckoning: traditional legal formalism may no longer serve the needs of constitutional recovery. It is time for a post-formalist approach to democratic reconstruction.
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Delegitimierung als Strategie
Nach den Eilentscheidungen des Berliner Verwaltungsgerichts, das die Zurückweisung von drei Asylsuchenden an der deutsch-polnischen Grenze für rechtswidrig erklärte, wurden die drei beteiligten Richterinnen und Richter Ziel heftiger Diffamierungen und Bedrohungen im Netz. Dies mag zunächst nur wie polemische Kritik erscheinen, die – wie alle populistische Rhetorik – auf „das Volk“ rekurriert, das einer vermeintlich korrupten Elite gegenübersteht. Bei genauerer Betrachtung zeigt sich jedoch, dass Angriffe dieser Art Teil systematischer Bestrebungen sind, die Legitimität der unabhängigen Justiz zu untergraben.
Continue reading >>Die Qualen des amerikanischen Föderalismus
Eine historische Perspektive auf den Konflikt in Los Angeles
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The Agonies of American Federalism
Understanding the Los Angeles Conflict in a Historical Frame
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Overcoming the Hungarian Veto
A Russian victory over Ukraine would make a military confrontation with Europe more likely. To prevent this, the Union must prolong the Russian sanctions, including the freezing of 200 billion EUR in central bank assets. The prolongation of these sanctions requires a unanimous decision pursuant to Article 31(1) TEU. Hungary threatens to obstruct this decision. We propose a way to end Hungary's obstruction. It requires no grand actions, only a few interpretative steps and a narrow political consensus.
Continue reading >>Anatomy of a Liberal Fall
In Poland, just one week ago, Karol Nawrocki – a virtually unknown, PiS-backed candidate with a murky past – surprisingly defeated Rafał Trzaskowski, deputy leader of the centrist Civic Platform and mayor of Warsaw. How could such a random figure triumph over an experienced and popular politician? In this commentary, I argue that Trzaskowski’s defeat was no accident, but the latest chapter in a longer political story – one shaped by public frustration, broken promises, the emptiness of Polish liberalism, and anti-elitist sentiment present in the society.
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What Nawrocki’s Victory Means for Europe
On June 1st, Polish voters rendered a fateful decision in the presidential election. Karol Nawrocki narrowly defeated Rafał Trzaskowski, the pro-European mayor of Warsaw. Nawrocki’s victory carries profound implications for Poland’s domestic trajectory. Moreover, despite what some commentators have argued, the new president might also well pose a threat for the European Union.
Continue reading >>Migrant “Instrumentalisation” before the ICJ
On 19 May, Lithuania introduced proceedings against Belarus before the International Court of Justice for the alleged smuggling of migrants. Lithuania claims that Belarus violated provisions of the Protocol against the Smuggling of Migrants by Land, Sea and Air, which supplements the UN Convention against Transnational Organized Crime. This blog will detail several difficulties with Lithuania’s argument which seeks to collapse key differences between migrant smuggling and the practice of migrant “instrumentalisation”.
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Populism over Principle
As EU officials arrive in Sofia to celebrate Bulgaria’s readiness for euro adoption, nationalist-fueled protests erupt in the streets. The tensions were triggered by President Rumen Radev’s unexpected call for a referendum on whether the country should join the euro on 1 January 2026 – despite Bulgaria having met all convergence criteria after years of effort. Far from a genuine democratic impulse, the move appears to be a populist gamble, trading legal commitments and European credibility for short-term political gain.
Continue reading >>A Tarnished Institution from Its Start
June 1st was a historical day for Mexico. The Mexican people – or, more precisely, around 13% of the electorate – went to the ballots to democratically elect their judges for the first time. The newly elected 2681 public officials, which will be announced in the following weeks, will serve in the local and federal judiciary, including the Supreme Court, and solve all types of disputes. While MORENA promises that the amendment will grant Mexico a reinvigorated judicial branch, it is instead getting a newly elected judiciary whose legitimacy has been tarnished from its very start.
Continue reading >>What Are Human Rights For?
The Danish-Italian public letter to the European Court of Human Rights from 22 May 2025 must be understood in the context of two decades of “crises” in the European human rights regime. None of it is new or unprecedented. What makes it truly troubling, however, is the changed geopolitical context and the focus on migrants and asylum seekers as the most vulnerable.
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Peace at What Price?
In recent months, a growing number of voices – from political figures such as U.S. President Donald Trump and Slovak Prime Minister Robert Fico to various public opinion polls – have suggested that a resolution to the war in Ukraine may require Kyiv to cede some of its territory to Russia. These arguments, now gaining renewed attention as peace talks have begun, frame territorial concessions as a pragmatic step toward ending the conflict. Ceding Ukrainian land under these conditions, however, would reward historical revisionism as a geopolitical strategy and set a dangerous precedent in international law.
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Georgia’s Foreign Agent Law 2.0
Tolga Şirin recently argued for activating interim measures under Rule 39 of the European Court of Human Rights in cases of political prosecution, such as that of Istanbul’s mayor İmamoğlu. This argument gains renewed urgency in light of Georgia’s proposed foreign agent law. Indeed, as civil society organizations (CSOs) face the threat of criminal sanctions under “Foreign Agent Law 2.0”, Rule 39 could become their last remaining remedy.
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The German Rule of Law Is Getting Lost in Islamabad
Law, Order, and the Federal Admission Programme for Afghanistan
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Der deutsche Rechtsstaat geht in Islamabad verloren
Recht, Ordnung und das Bundesaufnahmeprogramm Afghanistan
Continue reading >>Poland’s Polarised Presidency
The first round of Poland’s presidential election has produced an inconclusive but politically charged outcome. With no candidate achieving an absolute majority, the second round will determine who succeeds Andrzej Duda in the Presidential Palace. This election marks yet another critical moment for Poland. In the short term, its outcome will be pivotal for the current government to deliver on promises concerning the rule of law, the judiciary, and more. In the longer term, winning the presidential race is a strategic stepping stone towards consolidating or reclaiming power.
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A Threat to the Core
On May 13, 2025, just before midnight, a FIDESZ deputy tabled a new bill before the Hungarian Parliament. The bill seeks to enhance “sovereignty protection measures” by introducing sweeping transparency instruments targeting foreign-funded interference in Hungarian public life. These restrictions purposefully shrink civic space further, roll back protections of fundamental rights and impair the functioning of constitutional democracy in a retrogressive fashion. When adopted, Hungary’s constitutional order will fundamentally regress from the state that existed at the time of its accession to the European Union.
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Mirroring Society’s Struggles
The Court of Justice of the EU (CJEU) stands as a central institution in the European legal and political landscape. Its judgments not only shape the trajectory of European integration but also reveal deeper EU Law Stories – ideological clashes, conflicting narratives and distributive consequences with the subtle emergence of winners and losers in each case. Yet, these dimensions often remain hidden behind the opaque language of the increasingly lengthy rulings and traditional doctrinal analysis.
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The Silent Engine of European Citizenship
In its ruling on 29 April 2025 in Case C-181/23 Commission v Malta, the Grand Chamber held that Malta’s investor citizenship scheme, which grants Maltese nationality in exchange for predetermined payments or investments, was contrary to EU law. Although the judgment has been criticised (perhaps not without reason) for its lack of doctrinal foundation, it does demonstrate that the EU principle of mutual trust has constitutional character and is normatively capable of challenging national administrative mechanisms, such as the Maltese naturalisation scheme, that are incompatible with the values in Art. 2 TEU.
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Harvard Under Attack
Since Donald Trump took office as the 47th President of the United States of America, hardly a week has gone by without academic institutions coming under attack. The U.S. government is now claiming that Harvard - and other universities - are violating Title VI of the Civil Rights Act by serving as “breeding grounds for anti-Semitism”. This raises numerous constitutional questions.
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(de) la Tour fait le cavalier
On 3 April 2025, AG de la Tour handed down his Opinion in C-713/23, Wojewoda Mazowiecki, a case concerning the recognition and transcription of same-sex marriage contracted in another Member State between two nationals of the State where recognition was sought. The Opinion states that Member States where same-sex marriage is not permitted must recognise a family bond lawfully established in another Member State. Yet, akin to a knight’s leap in chess, the Opinion sidestepped the question of marriage transcription with a reasoning that does not seem entirely convincing.
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In the Name of Primacy
In 1973, Pierre Pescatore noted that “[P]rimacy is an ‘existential requirement’ of EU law”. The Opinion of AG Spielmann in Case C-448/23 (Commission v. Poland), delivered on 11 March 2025, opens with this harsh observation. His difficult task is to frame in legal terms the two essentially political rulings delivered by the Polish Constitutional Tribunal in 2021, where – notoriously – the “captured” domestic court refused to adhere to the most basic principles governing the relationship between national and EU law. This requires adjustments in the current vocabulary of the Luxembourg judges.
Continue reading >>Tackling the Union’s “Orbán Problem” Now
The EU is facing an “Orbán problem”. That much is clear. The Hungarian government not only pursues an illiberal domestic agenda that violates the Union’s values in Article 2 TEU, but also cultivates close ties with autocratic regimes abroad, particularly with Russia. The Hungarian government consistently uses its veto powers to block Ukrainian military aid and dilute sanctions against Russia. The Commission should submit a new proposal under Article 7(2) TEU focusing on breaches of solidarity and threats to the Union’s security.
Continue reading >>Enforcing the Law of Democracy
It was a political bombshell. On Monday, 31 March 2025, Marine Le Pen, leader of the far-right party Rassemblement National (National Rally) in France, was convicted of misappropriation of public funds in the so-called “parliamentary assistants” case. The judgment is marked by an unusual degree of judicial creativity, particularly in its underlying conception of democracy, which may be understood through the lens of militant democracy. Although it does not constitute a political judgment in the traditional, partisan sense, its constitutional and symbolic significance is substantial—and the backlash it has provoked against the judiciary is a cause for concern.
Continue reading >>The Trump Administration’s Attack on Knowledge Institutions
Time for courage – and resistance
Continue reading >>Stopping Autocratic Legalism in America – Before It Is Too Late
President Donald Trump’s recent speech to the Department of Justice was meant as a declaration of war against lawyers. His words made clear that the most effective way to consolidate autocracy is by systematically dismantling the independent centers of power that support a healthy democracy, including the independent public prosecutor. As the Executive Orders targeting law firms underscore: the entire legal profession is next. This is no coincidence.
Continue reading >>Walking Out on Hungary
As the EU steps up its efforts to fund the defence of Europe, Hungary sticks to its policy of undermining those efforts whenever it can. Given that a Member State cannot be expelled from the EU, the Member States should simultaneously withdraw from the EU Treaties under Article 50 TEU and concurrently sign up to new EU Treaties without Hungary. Only this way could the EU effectively stand up to Russia, introduce important Treaty changes, and finally overcome tolerating Putin’s allies within the EU. Perhaps the Hungarian people would eventually join as well.
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Restoring Polish Judicial Independence
Restoring the Polish rule of law without doing more damage to it is a vexing challenge. Building Back Better becomes even more complex when the current president – part of the autocratic Law and Justice (PiS) party, which lost the previous elections – refuses to sign off on any law. Yet few would have expected the Venice Commission (VC), of all institutions, to make things even more complicated. This contribution first tracks the state of play in Poland following the VC Opinions of October 2024 and December 2024. Given the central role of the VC’s thinking in Polish efforts to find a way out, it then goes on to critique the Opinions on legal and strategic grounds before proposing an alternative route.
Continue reading >>“A Catalyst for European Identity”
Five Questions to Aurore Gaillet
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Anonymity and Surveillance, Creativity and Copyright
The emergence of digital networks over the past decades has presented a problem for copyright exploiters. Thus, they resorted to strategic enforcement targeting individual users. However, the users would often remain anonymous due to the lack of access to traffic data revealing their identity. But the decision in La Quadrature du Net II – permitting retention and disclosure of traffic data for minor offences – has the adverse effect: it incentivises enforcement strategies targeting users and requiring platforms to hand over such data.
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“A Constitutional Ghost From the Past”
Five Questions to Florian Meinel
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Judges Under Stress and the Duty to Resist
The Trump administration is engaged in a battle over the “mode of rule” of the American society. Although the battle is not primarily directed against the courts, judges may quickly get involved. Many see them as a primary defense of the liberal order. Proponents of the attacks on the established order argue that the judges overstep their mandate if they curb the power of the presidency. Elon Musk has even called for impeachment and removal of troublesome judges. Is there anything US judges can learn from the experience of their German colleagues in the 1930’s?
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A PR Stunt Over Accountability
In the previous Law and Justice administration, the Public Prosecutor’s Office (PPO) had been significantly compromised. Under the Prosecutor General Ziobro, it systemically pursued political and business opponents, quashed dissent, and silenced critical voices. Well over a year has passed since these dark times have officially ended. Poland’s new government has promised to bring justice to the victims and assure accountability for the prosecutors. The Open Dialogue Foundation has analysed the nation-wide audit of the PPO’s cases and concluded – the reality is disappointing.
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The End of NATO As We Know It
It is frighteningly easy to picture a situation in which President Trump steps off a plane and declares: “I have a paper signed by Mister Putin, there will be peace for our time.” When Neville Chamberlain declared “peace for our time” on 30 September 1938, the world was at war only one year later. Should Russia choose to test the true value of Article 5 NATO-Treaty, this would be the ultimate test for NATO. Europe needs to get serious about acquiring its own nuclear deterrent, entirely independent of the USA.
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Paying Judges Properly
On 22 February, several thousand marched in Budapest for an independent judiciary, including fair pay for judges. Three days later, the CJEU issued a decision in Joined Cases C‑146/23 and C‑374/23, setting out the EU law criteria for judges’ remuneration. The decision sets general minimum criteria for the remuneration of judges to guarantee their independence and is highly relevant for Hungary, where the salary pathway for judges is not set by law, it is not judicially enforceable, and the entire system lacks foreseeability.
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Funding Europe’s Defence
History is on the move. In just a couple of weeks, Europe has seen its security architecture tested as never before since World War II. Now, the European Union must demonstrate its ability to take control of its own destiny and turn the vision of a common European defence into reality. With ReArm Europe, the Union wants to “meet the moment” and affirm that it is “ready to assume its responsibilities”. While the plan represents a crucial first step towards strengthening European defence, it does not introduce any groundbreaking measures. Its predominant reliance on national defence spending constitutes an important limitation.
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From the EU-Belarus Border to Strasbourg
On 12 February 2025 the ECtHR considered for the first time the interpretation of the Convention in the context of so-called ‘migrant instrumentalisation’ or ‘hybrid attacks’, allegedly orchestrated by the Belarusian regime after the EU imposed sanctions on Minsk. This contribution critically reviews the key arguments of the respondent governments with respect to the interpretation of Art. 3 ECHR and Art. 4 Prot. 4 ECHR and considers the relationship between the two in the particular context.
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The Dismissal of the Romanian Prosecutors Annulment Action
In the latest chapter of the EU rule of law saga, the General Court dismissed an annulment action lodged by an association of Romanian prosecutors, which challenged the termination of the Cooperation and Verification Mechanism in 2023, due to lack of direct concern. We argue that a too-narrow view of the issue does not reflect the rule of law situation in the country, including open non-compliance with the CJEU’s own rulings, and leads to several undesired consequences.
Continue reading >>A Power Grab Is Not a Constitutional Theory
Lawyers love legal theories. President Trump’s unprecedented executive actions have reignited interest in theories about the U.S. Constitution, especially conservative ones. Is he working with an extreme conception of the unified executive theory, a strong version of “originalist” or even “post-originalist” legal reasoning, or will the “political question doctrine” dominate? These debates are fascinating, but they strike me as pointless. Why? Because Trump’s supporters are not deploying them in good faith. Rather, these theories are being used as rhetorical maneuvers to dress up a power grab in theoretical garb.
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