22 July 2024
Never Again Say “Never Again”
“Never Again” is one of those slogans on which practically everyone can agree. How can one not? (Unless you belong to the flat-earth Holocaust-denial lunatic fringe). When we use “Never Again” it is, of course, a shorthand to the enormity of German National Socialism. The pledge “Never Again” is absolute in time: Never again. It is absolute in space too: “That” cannot and should not ever take place anywhere. It is universal: It bridges Left and Right, North and South, Rich and Poor. Standing at the barricades under the “Never Again” banner is both powerful and self-empowering. But herein lies its potential for abuse. What exactly is the “that” which must never happen again? Continue reading >>
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14 April 2024
Citizenship for Sale (Commission v Malta)
The Maltese “passports for sale” (Golden Passports) was big news a year or two ago but has now disappeared below the radar of public attention. Yet, the mills of justice might grind slowly, but grind they do. The case brought by the Commission against Malta is scheduled to be heard by the CJEU sometime later this year. So, Malta offers passports for sale. Quelle Horreur! I hear you sniffing with disgust and indignation. They sell their citizenship, and hoopla – automatically these new citizens, ipso facto and ipso jure are European Citizens enjoying all the rights and duties which attach to such. Continue reading >>02 October 2023
The Comeback of the Mixed Chamber
Three years ago, in the wake of the Weiss judgment of the German Federal Constitutional Court, we proposed the creation of a “Mixed Chamber” in the Court of Justice of the European Union, to rule in last instance on judicial disputes on points of Union competence. The rationale of a Chamber so composed is not obvious. After all, in a Union in which EU Law has primacy over national law, in which the autonomy of EU law is all-pervasive and where the Court of Justice is the ultimate interpreter of EU law, why should a Mixed Chamber be needed? We believe there are at least three good reasons that make a Mixed Chamber as salient as ever. Continue reading >>01 February 2023
Israel: Cry, the Beloved Country
Israel, like many other democracies today, is a deeply polarized society. The operating principle of public discourse is typically: “Art thou for us or for our adversaries” (Joshua 5:13). It is thus telling that, in the recent eruption in response to Netanyahu’s new government plan to reform the judicial system, one sees groups whom one would have never expected on the anti-government side of the current protests. Continue reading >>10 October 2020
Mirror Mirror on the Wall – Who is the Most Beautiful of All?
I have been politically aware for around, sigh, five decades. And with unerring regularity once every ten years or so, we have been treated to a kind of decennial Oktoberfest of German public hand-wringing. Very public – group therapy writ large. Sometimes it comes with the label of ‘Legitimacy Crisis’. Oftentimes it is a variation on the theme of ‘Are We Back to Weimer Times – and You Know What Followed That!’ It has all the hall marks of a ritual. Continue reading >>02 June 2020
The EU Judiciary After Weiss
The damage to the integrity of the EU’s legal order and its rule of law is done, and the toothpaste cannot be pushed back into the tube. So the pressing questions now are two: How to address and mitigate the damage, and how to prevent its repetition. We propose that in the Conference on the Future of Europe serious consideration be given to the establishment of a new appeal jurisdiction within the Court of Justice, strictly and narrowly confined to Weiss type cases, where at issue is the delineation of the jurisdictional line between the Member States and their EU. Continue reading >>04 February 2020
Wiley and the European Law Journal
We want to believe that no self-respecting scholar will allow himself or herself to be used in any way by Wiley to defeat the principled stand taken by the Editors and Boards of the ELJ. It is we, scholars of European Law, who actually give commercial value to such a journal by submitting and publishing our work in its pages. We should not be complicit in undermining the most basic values of the scholarly world. Continue reading >>
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30 August 2019
Backstop Alternatives: Examining the “We Cannot Trust the Brits” Excuse
Last week, together with two colleagues, Daniel Sarmiento and Sir Jonathan Faull, we published a plan which could avoid a no-deal Brexit. It is to one reaction, attributed in the Press to anonymous Commission sources that I wish to react. And I do not do this solely or even mainly in order to defend the viability of our particular Proposal. I do so because I fear that this same reaction of these anonymous EU officials will meet any proposal for "alternative arrangements" to be put on the table by the UK government. Continue reading >>26 August 2019
An Offer the EU and UK Cannot Refuse II: FAQ
We have received many comments and questions to our Proposal on avoiding a No-Deal Brexit. The following are the most frequently asked questions with our replies. Continue reading >>22 August 2019