DEBATE
All Debates on Verfassungsblog
Verfassungsblog hosts online symposia on topical events and developments in legislation and jurisdiction and puts cutting-edge scholarship up for discussion. Our aim is to create a lively and multi-faceted constitutionalist public sphere in Europe and beyond. Since 2011 high-profile issues of public interest in constitutional law and politics have been at the center of controversial debates on Verfassungsblog on a regular basis, including the constitutional decline in EU member states like Hungary, the regional separatism in Scotland and Catalonia, European constitutional courts and their fraught relationships et.al.
23 December 2025
Macht und Entscheidung im Publikationswesen
Der freie Zugang zu Publikationsmöglichkeiten und zur Rezeption wissenschaftlicher Erkenntnisse – wie ihn das Modell des Diamond Open Access im Kern vorsieht – sollte Leitprinzip bei Förderentscheidungen sein. Bislang ist das aufgrund vielfältiger Interessenlagen nur eingeschränkt möglich. Die maßgeblichen Akteure verfügen aber schon jetzt über Entscheidungsräume, um Förderentscheidungen stärker an DOA-Prinzipien zu orientieren. Perspektivisch kann ein gemeinsames und zielgerichtetes Handeln einen echten Wandel im Publikationswesen bewirken. Continue reading >>Open Access Done Right
Diamond Open Access is the latest big thing in academic publishing, promising salvation from a rigged system. But a flashy label alone will not save us if we are not willing to address deep-rooted and newly emerging problems of a system that has largely failed in terms of quality, power, and trust. Continue reading >>22 December 2025
Amal Clooney (née Alamuddin)
Amal Clooney is an international human rights lawyer known for representing victims of mass atrocities, journalists prosecuted for their reporting, survivors of genocide and sexual violence, political prisoners, and marginalised communities. Through strategic litigation before international, national, and regional courts, as well as through the Clooney Foundation for Justice and the Oxford Institute of Technology and Justice, her work is dedicated to expanding access to justice. Continue reading >>Exclusive Does Not Mean Exhaustive
“[The author] shall […] provide the publisher with the exclusive right of reproduction and distribution (publishing right).” – This provision, set out in § 8 of the German Publishers’ Rights Act outlines the common practice for publishing an article in a journal, not only in Germany, but in many other countries too. What appears to mark the end of the author’s control over their article, is arguably just the beginning. Continue reading >>Schöpfung in der Wissenschaft
Der Staat ist verpflichtet, die Wissenschaftsfreiheit zu schützen und die Idee einer freien Wissenschaft aktiv zu fördern. Ein effektives Urheberrecht ist dabei ein zentrales Instrument: Es sichert die konkreten Ergebnisse schöpferischer Arbeit vor unkontrollierter Nutzung, gewährleistet Anerkennung der Forschenden und eröffnet Möglichkeiten der wirtschaftlichen Verwertung. Dabei wirft die wissenschaftliche Praxis komplexe Fragen auf: Können Forschungsdaten überhaupt urheberrechtlichen Schutz genießen? Wem „gehört“ eine wissenschaftliche Publikation? Und wer entscheidet, ob und wie Forschungsergebnisse veröffentlicht werden? Continue reading >>Egenberger
The Egenberger decision is not only about church labour law, but touches on fundamental issues of national and European constitutional law. By integrating the requirements of EU law while maintaining domestic specificities, the decision provides a valuable example of how to manage different layers of fundamental rights. Nevertheless, the Egenberger decision carries an element of surprise. The FCC performed a Solange test, elaborating on the question of whether the relevant European standard falls short of the minimum standard required under German law and therefore justifies an exception to the primacy of EU law. Continue reading >>The Fragility of Proportionality Review
The latest decision in Egenberger illustrates both the importance of the EU framework for protecting against discrimination on the grounds of religion, and at the same time its fragility. Since the CJEU decision, two German courts have taken turns at assessing the proportionality of the Church’s refusal to employ Ms Egenberger, with different results. The fact that two courts could consider the same facts and reach opposite conclusions without either seeming to have misapplied the law shows how flexible the law can be. Continue reading >>21 December 2025
Winning by Losing
Up to now, religious communities in Germany could require religious affiliation for almost all kinds of employment. Following the CJEU’s intervention, the FCC in November 2025 changed this decades-long practice and thus accorded greater constitutional weight to equality and non-discrimination vis-à-vis religious self-determination. Yet it did more than that: it also reinforced the protection of religious freedom itself. Finally, the decision affirmed the supremacy of EU law in times of fundamental challenges to the transnational rule of law. Egenberger thus constitutes a substantial, well-justified, fundamental-rights-friendly, and welcome shift. Continue reading >>Article 17 TFEU as a Gateway to National Sovereignty Creep
The jurisprudence of the CJEU on Article 17 TFEU and the EU’s duty to respect the status of churches and religions under national law has changed significantly over time. Early case law reflected a narrow interpretation of Article 17 TFEU, emphasizing strong protection of religious freedom. More recent decisions demonstrate a broader reading which goes hand in hand with a wide margin of appreciation. With the latter, the CJEU effectively adopts a low level of scrutiny, thereby stepping back and giving way to the vindications of national sovereignty. Continue reading >>20 December 2025
The Battle over the Sacred and the Profane
Struggles around sexual and reproductive rights pit more liberally, progressive-oriented or “frontlash” actors against other, including non-liberal, often radical-conservative “backlash” organizations. In the actions of the latter, religion is an explicit and core dimension. This struggle is about a political and religious backlash to a largely secular, progressive cultural and human rights revolution. It confronts opposing sides of (transnational) civil society, who both make moral, “sacred” claims, while profaning the opponent. Continue reading >>Beyond Religious Freedom
In contemporary Europe, the protection of religious minorities continues to rest predominantly on the constitutional architecture of religious freedom and non-discrimination. Yet this framework often proves insufficient to capture the specific vulnerabilities and identity-based claims of minority communities. Protecting minorities therefore demands recognising the specific forms of vulnerability produced by their social and constitutional position. Continue reading >>19 December 2025
Rechnungshof statt Redaktionsschluss
Journale wie aus dem Jahr 1665, Preise wie bei MrBeast-Meet&Greets, Datenschutz wie bei Facebook, Verlässlichkeit wie bei TikTok-Lifehacks: Warum es höchste Zeit war, dass die EU die Wissenschaft befreit. Wenn man sie denn lässt. Continue reading >>Compulsion to Freedom
On 11 December 2025, the Austrian National Council adopted a headscarf ban for students under 14 in the name of protecting children’s freedom of development and fulfillment. A first attempt of banning headscarves in 2019 was overturned by the Constitutional Court. The legislator has to a large extent taken the requirements of the Constitutional Court into account. However, two crucial aspects have been overlooked: the resulting stigmatisation and the underlying patriarchal structures. Continue reading >>State-Approved Information
As the infrastructures for creating, replicating, and disseminating information have increased significantly since the advent of the World Wide Web, the tools used by nationalist governments to control those infrastructures have expanded and evolved to keep pace with technological change. Nationalist governments seek control of knowledge infrastructures both to promote their supporters and beliefs and to erase positions and people who they fear. The United States (US) provides an especially stark example of how rapidly a nationalist government can gain political control of knowledge infrastructures to advance its preferred beliefs and silence opposing views. Continue reading >>Lifting the Veil? Oops, They Did it Again
From September 2026 onwards, girls up to the age of 14 will be prohibited from wearing Islamic headscarves in Austrian public and private schools. The girls’ freedom of religion, as well as the principle of equality and neutrality, pose significant obstacles to the constitutionality of such a selective restriction. However, in view of many reports from teachers and sociologists stating that the autonomy and determination of many girls’ identities in schools are increasingly threatened by societal forces, the Constitutional Court might reassess its jurisprudence and adapt it accordingly. Continue reading >>18 December 2025
The Revolution Will Not Be Institutionalized
The academic publishing system is expensive and generates staggering profits for a few enterprises, while they outsource a considerable amount of the work to the scientific community. Despite ever-growing criticism, there appears to be no alternative to those commercial structures, but measured against the nearly 400-year history of modern scientific publishing, they are quite new and only emerged after the Second World War. Continue reading >>The Revolution Will Not Be Institutionalized
Das wissenschaftliche Publikationssystem ist teuer und beschert einigen Unternehmen schwindelerregende Profite, während sie einen beträchtlichen Teil der Arbeit an die Wissenschaft auslagern. Trotz stetig wachsender Kritik erscheinen die kommerziellen Strukturen als alternativlos, aber gemessen an der fast 400-jährigen Geschichte des wissenschaftlichen Publizierens sind sie recht neu und haben sich erst nach dem Zweiten Weltkrieg herausgebildet. Continue reading >>Headscarves and the Wrong Balance
To date, the CJEU has decided 6 cases concerning women who wanted to wear a headscarf at work. All judgments suggest that considerations of neutrality can trump religious freedom. Although the CJEU made some general and abstract comments about the importance of freedom of religion, it did not really address what the bans, in practice, meant for the individual women involved, neither did engage with the possibility that these neutrality rules could constitute sex, race and/or intersectional discrimination. The CJEU thus provide little protection for the rights of headscarf wearing Muslim women. Continue reading >>Playing with Fire
The Court of Justice’s narrow understanding of religious freedom under EU law is playing with fire. In the name of anti-discrimination and neutrality, it risks undermining religious freedom in ways that are particularly detrimental to Muslim minorities. At the same time, the Court proceeds as if European constitutional systems were roughly homogeneous, disregarding the profound diversity of church–state relations. This double-blind spot makes the CJEU’s approach not only normatively troubling, but structurally ill-suited to the realities it seeks to address. Continue reading >>17 December 2025
Justifiable Caution
Religion in the workplace brings together two areas of law in which the CJEU has taken markedly different approaches. This has left the Court torn between following its assertive approach in relation to discrimination in the workplace and its deferential approach in relation to religion’s role in society. This sets wide but meaningful boundaries on Member State autonomy regarding religion’s place in their societies. While this caution has been heavily criticised, in the context of the rapid and unprecedented religious change in Europe, it is the most prudent and politically sustainable approach for the time being. Continue reading >>In Good Faith
Debates over the role of religion in contemporary European constitutional orders have increasingly shifted from the national to the European level, placing EU law and the jurisprudence of the Court of Justice under sharper scrutiny. In our view, despite imperfections in the CJEU’s case law, the external and differentiated role of the Court and of EU law can challenge claims of self-referential sufficiency. EU law provides a mirror and necessitates a dialogue in which these convictions are tested and, where necessary, redefined. Continue reading >>12 December 2025
Afterword
This post synthesises key insights from the AFAR symposium on fairness and AI in asylum, migration and border management. While EU policy frames fairness as a core requirement of trustworthy AI, contributors show how discrimination, opacity, privatisation and weak procedural safeguards undermine that promise. Examining risks from biased data to secrecy in high-risk systems, the post highlights structural obstacles to fair decision-making and calls for sustained oversight, participatory governance, and research grounded in the lived experiences of those most affected. Continue reading >>09 December 2025
Seventy-Five Years of the European Convention on Human Rights
Seventy-five years ago, Europe made a bold promise: That the dignity of every individual would be safeguarded by law. And that an independent court would hold us to that promise. Today, as we close our discussions, we face two truths: First, the extraordinary resilience of that promise. And second, the magnitude of the challenges still before us. Continue reading >>Happy 75th Anniversary to the ECHR
It is not very often that I get invitations to big birthday parties for human rights conventions, so it was an immense honour to deliver the concluding remarks at this event that examined the 75 years of the Convention from transnational and global perspectives in the presence of so many who breathe life to this Convention across Europe and the Presidents of the Inter-American Court of Human Rights and the African Court of Human and Peoples Rights. This birthday party has personal importance for me. I am, after all, alongside hundreds of thousands of others across the Council of Europe, a child of this Convention. Continue reading >>Human Rights and Digital Border Governance
OHCHR’s forthcoming guidance on human rights-based digital border governance consolidates legal standards for data-intensive migration and border control. This contribution identifies where such guidance can help, and where a significant shift in current State practice is needed: clear legal basis and safeguards for intrusive practices, data sharing and interoperability, oversight of algorithmic systems, human rights impact assessment, and the use of security and emergency regimes that dilute rights protections. Each area is framed by the need to ensure legality, necessity and proportionality, non-discrimination, and effective remedy. Continue reading >>08 December 2025
Privatised Digital Borders
Digitisation and the growing reliance on private intermediaries are transforming visa systems from paper-based procedures into opaque digital-commercial infrastructures. Drawing on findings from the AFAR project, this contribution shows how automation, outsourcing, and fragmented accountability reshape rights protection in migration governance. Using visa applications as a case study, it argues that existing regulatory frameworks remain insufficient and calls for new methods of scrutiny — including participatory, co-designed approaches that centre migrants’ perspectives and reimagine transparency, oversight, and responsibility in digital border regimes. Continue reading >>Automating International Human Rights Adjudication in Strasbourg and Beyond
The future lies in the adoption and refinement of semi-automated tools – AI and algorithms that issue recommendations that human decision-makers are free to accept, reject, or modify – supported by robust institutional oversight and explainability. Full automation of decisions, especially those pertaining to treaty violations, is never appropriate. As automation tools continue to evolve, we expect that more fundamental changes to the process of international human rights adjudication – including at the ECtHR –may ultimately be required. Continue reading >>Artificial Intelligence and Human Rights Courts
The adoption of AI in Human Rights Courts' operations offers opportunities for improvement in terms of efficiency and access, but it also poses significant challenges. When implementing these tools, Human Rights Court must ensure that they do not compromise the very rights they are tasked to protect. At the same time, Human Rights Court will increasingly engage with cases involving AI, and they will need to develop greater awareness of the complex implications of technology for human rights. Continue reading >>AI and Human Rights at the European Court of Human Rights
The development of a legal framework for the use of AI is still at an early stage. Moving forward, it is necessary to take into account both the inherent features of the technology and the rights that come under pressure by our use of it. The approach of the European Court of Human Rights (ECtHR) will have to be on a case-by-case basis, building on the Convention’s transversal values, applying existing jurisprudence as a stepping stone and making wise use of the “living instrument doctrine”. Continue reading >>07 December 2025
