12 January 2026
When Caution is Justified
Little CJEU case law has been as fiercely criticised as that relating to the right to be free from religious discrimination. However, the CJEU recently found a sympathiser in Ronan McCrea. He argues that the approach is one of “justifiable caution”. Despite my disagreements with him, I believe that we must take McCrea’s position seriously to be able to develop a more fine-grained view of when caution is warranted. At the same time, I still firmly believe that the case law on religious clothing reveals deeply troubling attitudes toward Muslim women that have no place under anti-discrimination law. Continue reading >>
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27 June 2025
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 >>05 May 2025
Why bother with legal reasoning?
Hindsight can make one look naive. Following the Opinion of Advocate General Collins in Commission v Malta, I argued that ‘the rhetorical battle over citizenship by investment has been won by the EU institutions’ but that ‘emotions and rhetoric alone should not decide legal battles’. Of course, I should have known better: the central dogma on which a large lineage of EU citizenship cases rests – that EU citizenship is destined to be the fundamental status of nationals – is a rhetorical device without basis in EU law. And once again, in the Commission v Malta ruling of 29 April 2025, on whether Malta was in breach of its obligations under EU law by maintaining and promoting a citizenship by investment (CBI) scheme, the Court prioritised rhetoric and political expediency over solid legal argumentation. Continue reading >>09 October 2024
Concise, Clear, and Convincing
While the rhetorical battle over citizenship by investment has been won by the EU institutions, its legal success is still up for debate. Last week Advocate General Collins delivered his much-anticipated Opinion in Commission v Malta, proposing that the Court dismisses the Commission’s challenge in a concise, clear, and, as I will explain, convincing legal opinion. Continue reading >>
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07 May 2024
3½ Myths about EU law on Citizenship for Sale
The sale of national and European Union citizenship understandably remains highly controversial. It seems arbitrary, perhaps even abject, to grant nationality in exchange for a monetary investment, when most people must wait years and overcome considerable hurdles before they can naturalize. As evidenced by three recent posts on the Verfassungsblog by Joseph H.H. Weiler, Merijn Chamon, and Lorin-Johannes Wagner, this question continues to divide EU law scholars. It is also a question that is still plagued by several myths about how EU law and, relatedly, international law, apply to CBI practices. This post discusses 3½ such myths. Continue reading >>
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07 June 2023
An Inconvenient Constraint
On 1 July 2024, Hungary is set to take over the Presidency of the Council of Ministers. The European Parliament and the Meijers Committee issued reports questioning whether Hungary should be blocked from doing that. These proposals raise questions of political feasibility, however, especially as one may doubt if a Hungarian Council Presidency can do much practical damage to the EU. In addition, they also raise questions of legal feasibility. A logical prerequisite for preventing Hungary from holding the Presidency as long as it breaches the rule of law is that doing so is consistent with the EU’s own rule of law. I doubt it is. Continue reading >>09 December 2022
An early Christmas Gift from Karlsruhe?
The 6 December Karlsruhe ruling on the constitutional complaints against the ‘Act Ratifying the EU Own Resources Decision’ will be received by many as a Saint Nicholas present. This time, the Federal Constitutional Court avoided the head-on collision with the EU it caused with its PSPP judgment two and a half years ago. Instead, it opted for a seemingly constructive assessment of the EU’s pandemic recovery instrument. In particular, it found that the ORD did not manifestly exceed the competences conferred on the EU – i.e., it was not ultra vires – and did not affect the constitutional identity of the Basic Law. While the ruling is not as constraining as some might have feared, it does not give card blanche for a more permanent EU fiscal capacity. Continue reading >>
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25 February 2022
Claiming “We are out but I am in” post-Brexit
It is not often that the European Court of Justice (ECJ) is presented with a case in which the law is so crystal clear, and so overwhelmingly contrary to the applicant’s claims, as in Préfet du Gers. The central question of the case is weather British nationals retain their EU citizenship and EU citizenship rights after Brexit. Given how straightforward the Treaties and the case-law are on this matter, it is unsurprising that AG Collins answered this question in the negative in a well-argued and straightforward Opinion. Continue reading >>
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20 July 2021
Pride or Prejudice?
The joined cases IX v Wabe and MH Müller Handels GmbH offered the CJEU a second chance to heed the arguments raised against Achbita and reconsider its decision. Hopes that the Court would be willing to revise Achbita diminished significantly after AG Rantos’s disappointing Opinion in the case. Last week's decision in IX v Wabe to largely uphold Achbita was then also unsurprising, but nevertheless disappointing. Continue reading >>01 March 2021