EU Asylum Law in the Face of a Paradigm Shift
The contribution looks into what be be termed a paradigm shift in the field of asylum law, decisively away from a focus on the individual and towards harsh, indiscriminate measures, whenever ‘security’ so dictates.
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Reconciling National and European Constitutional Legalities
In light of the increasingly established autonomous European constitutional legality, national constitutional courts are now compelled to reconsider their roles. Through a progressive expansion of its direct applicability by national ordinary judges, the Charter of Fundamental Rights risks fostering the marginalization of national constitutional courts. I argue that the solution lies in a highly differentiated consolidation of constitutional legalities that integrates and embraces the unique roles of national constitutional courts in their respective systems of adjudication.
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Pouring New Wine into Old Wineskins
The three seemingly trivial observations that follow inform three substantive proposals regarding the protection of fundamental rights within the EU. To address the challenges faced by national constitutional courts and the CJEU, it is essential to leverage existing procedural tools within domestic legal systems. Additionally, expanding the applicability of these versatile tools and considering a structural revision of the judicial bodies may facilitate the creation of hybrid entities that could collaboratively address major issues, thereby steering constitutional developments in the EU.
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Hier spricht der Richter
Das LG Erfurt hat in zwei Entscheidungen zu den sogenannten „Dieselfällen“ der Natur Rechte zugesprochen. Dabei geht es nicht nur um die Frage, ob die Natur denn nun wirklich Rechte hat. Die Entscheidungen betreffen auch die professionelle Rolle von Richtern – einen Aspekt, den meist nur die randständige Professionssoziologie oder der juristischen Berufs-ethik behandelt. Die Entscheidungen weisen darauf hin, dass solche Fragen in Zukunft mehr Aufmerksamkeit verdienen.
Continue reading >>The right lessons from Trump 1.0
The US withdrawal from international institutions is a broader trend, not solely tied to Trump-era policies. Consequently, European governments that aim to preserve the rules-based international order should be prepared to take the lead and fill the gap left by the US exit. To pursue this strategy effectively, certain imperatives must be addressed.
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Fundamental Rights Come Off the Bench
In 2014, the European Court of Justice clearly prioritised the EU’s position on the unity and effectiveness of EU law over the protection of fundamental rights (Opinion 2/13). Ten years later, in October 2024, a judgment pitting football against the media seems to have turned the tables. In Real Madrid vs Le Monde, the Court held that excessive defamation damages may breach the freedom of the press and trigger the public policy exception. This is a significant shift, prioritising fundamental rights protection over the traditional objective of seamless judicial cooperation across the EU.
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Why the EU Charter Matters
This blog post argues that the most interesting aspect of the Charter of Fundamental Rights at the moment is its impact on remedies in national law. Almost 15 years since its entry into force, it is not unusual to meet domestic lawyers and judges who will voice doubts as to whether the Charter really matters in practice. Yet, through the right to an effective remedy under Article 47, the Charter opens up domestic law for new (or modified) remedies, thus placing national procedural autonomy under greater constraint than it was from the principles of effectiveness and equivalence.
Continue reading >>Whither, the EU Charter of Fundamental Rights
So, has the Charter come of age, now that it is nearing its quarter century, and has been binding in force for nearly 15 of those years. No longer is the Charter a “sleeping beauty”, and no longer are fundamental rights mere epiphenomena in EU law – offshoots framed in the amorphous category of “general principles of law” – creations of the EU’s earlier desire for legitimacy in its quest for greater integration. The EU Charter contains the essence of a common language, a currency that all can understand. And the EU is better with it than without it.
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The EU Charter’s Odyssey
Since its inception, the Union has grown into a tremendously powerful political actor through ever-increasing legal harmonization. This development has significantly marginalized the role of national apex courts – the lighthouses of democracy. Moreover, the globally observed trajectory of authoritarian forces is shaking EU's roots and questioning the vision of a lasting European polity. To fend off all these challenges, the Union should be centred around the hard-won humanistic freedoms and common values defined in the Charter, serving as a basis for common identification and a canvas to project shared visions of a political entity.
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A 486 Billion Dollar Investment
The Russian war of aggression against Ukraine has caused not only untold human suffering, but also immense damage to Ukraine’s physical, economic and social infrastructure. This contribution highlights the leading role of the European Union in coordinating international assistance for the reconstruction of Ukraine and its implications for the Union’s capacity to be a global player in peacebuilding and crisis management.
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On the Way to a European Defence Union
Is the EU on the path to a European Defence Union? Previously seen as militarily insignificant, the EU’s defence landscape is rapidly evolving in the wake of Russia’s invasion of Ukraine. This post explores how EU defence is changing in terms of aims, actors, and activities. It shows that the EU has left its comfort zone as a normative power to get ready for the geostrategic challenges of our time.
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The Missing Chapter
The European Commission’s Annual Rule of Law Report aims to prevent further rule of law backsliding within the EU by examining the rule of law situation in Member States. However, the report is missing an important chapter: the EU itself. On 28 October 2024, the Rule of Law Clinic (CEU Democracy Institute, Budapest), together with experts from across Europe, began bridging this gap by publishing the first report on EU adherence to rule of law standards. Without a meaningful self-assessment of its own compliance with rule of law principles, the EU weakens its credibility, particularly when addressing systemic non-compliance with EU law by Member States.
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A New European Map of Core International Crimes Accountability Spaces
For the core international crimes committed in Ukraine in the wake of the Russian war of aggression, criminal accountability remains a priority shared by, among others, Ukraine, the EU, EU member states, and the ICC. The contribution delves into the remaining uncertainty where accountability will be ensured.
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The Council of Europe as a Preferable and Viable Partner to Ukraine for Prosecuting the Crime of Aggression
Recently, plans to establish a tribunal for the crime of Aggression against Ukraine under the auspices of the Council of Europe have gained momentum. As this blogpost argues, this is a viable and also preferable option to hold the Russian leadership to account.
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Law and Governance Variations of Europe’s Geopolitical Awakening
The first contribution of the online symposium Europe’s geopolitical coming of age - adapting law and governance to harsh international realities explores the profound changes in European security and defence law following Russia’s invasion of Ukraine. The new geopolitical realities of dealing with warfare in Europe set the scene for the symposium.
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Fruchtbare Irritationen
Im August 2024 hat das LG Erfurt als erstes deutsches Gericht Rechte der Natur anerkannt. Diese können demnach in den Dieselfällen eine „schutzverstärkende“ Wirkung zugunsten der geschädigten Fahrer*innen entfalten. Das Urteil hat – auch über Deutschland hinaus – für Aufsehen und Kritik gesorgt. Am 17. Oktober hat das Gericht nun ein zweites ähnliches Urteil verkündet, das die Gelegenheit bietet, nochmals einen Blick auf die Besonderheiten der Erfurter Konstellation zu werfen. Diese Besonderheiten irritieren nicht nur die deutsche Rechtswissenschaft, sondern auch die Diskussionen über Rechte der Natur in produktiver Weise.
Continue reading >>Football at a Crossroads
The CJEU shook the world of football with its Diarra ruling on Friday, October 4. The impact of the ruling is all but a surprise for me. In a way, the FIFA transfer system was always on shaky legal grounds in terms of EU internal market law. Now, the chickens have come home to roost and key parts of the football transfer system have been brutally set aside. I aim to explain why the Diarra ruling marks a crucial turning point for football, its economy and even its identity.
Continue reading >>Unleashing Horizontal State Liability
The Common European Asylum System (CEAS) is under attack. In a recent Judgment against Hungary, the European Court of Justice has unambiguously stated that non-compliance with the rules of the CEAS undermines solidarity between Member States and strikes at the very heart of EU law. Traditional means of enforcement, however, seem insufficient to foster compliance with these rules. Against this backdrop, this blogpost argues for the unexplored avenue for enforcing the CEAS via horizontal state liability.
Continue reading >>Fundamental Rights Score a Goal
Amid the significant number of rulings delivered by the ECJ on 4 October 2024, the long-awaited judgment pitting football against the media stands out. In Real Madrid vs Le Monde, the Court held that excessive defamation damages may breach the freedom of the press and trigger the public policy exception under Brussels Ia Regulation concerning recognition and enforcement of foreign judgments. In doing so, the ECJ allowed national courts to conduct a substantive review of foreign judgments despite the principle of mutual trust, to ensure the enforcement of fundamental rights across the EU.
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Taking Locus Standi of International Actors Seriously
On October 4th 2024 the Court of Justice issued its judgement in Front Polisario II upholding the judgement in which GC annulled Council’s decision on the conclusion of the trade agreement between European Union and Morocco. In its landmark judgement the Court acknowledged the legal standing of Front Polisario – the liberation movement representing rights of the people of Western Sahara. The Court’s findings advance the flexible and adequate approach on access to EU’s courts – and for that are worth applauding.
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Bridging the CFSP Gap
The CJEU interprets its Common Foreign and Security Policy jurisdiction in light of the objectives set by the Lisbon Treaty, thereby integrating part and parcel of the CFSP into the rest of the European Union acquis. This aligns the CFSP with the general principles and constitutional rules set in the Treaty. As the Court advances the integration of CFSP jurisdiction within the broader EU legal order, the judgements of 10 September 2024 in Neves 77 Solutions and KS and KD v Council and Others serve as landmark ruling for the future of judicial review in CFSP.
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Dismissing the Genuine Link by Disregarding Constitutional Principles
The struggle over the Maltese investment citizenship scheme is probably one of the fiercest debates of EU constitutional law. The conflict revolves around the question of whether EU law contains requirements for the acquisition of Union citizenship and whether these requirements consist in a “genuine link” between the respective state and individual. The recent Opinion by AG Collins provides us with an extremely narrow and astonishingly one-sided view. In particular, he seeks to make us believe that there are no sound ways to anchor a genuine link requirement in EU law. Martijn van den Brink finds it “hard to disagree with the Advocate General”. Respectfully, I disagree.
Continue reading >>Towards Shared European Finances
The EU is once again eyeing a workaround to address an emerging challenge. A few days ago, former ECB President Mario Draghi issued a landmark report to stem the EU’s decline, calling for a massive investment of 800 billion euro annually. Draghi’s proposal is in line with an emerging post-pandemic pattern in EU policymaking. This pattern is characterized by flexible, ad-hoc measures that are implemented outside of the bloc’s treaty framework. We celebrate the boldness and effective design of this important template, even as we recognize some legal creativity necessary to carry out bold moves.
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A Political Question Doctrine for the CFSP
On 10 September 2024, the CJEU issued its judgment in the joined cases of KS and KD, addressing the scope of its jurisdiction within the Common Foreign and Security Policy. Specifically, the Court asserted its jurisdiction in so far as the harm-causing conduct did not relate to “political or strategic” choices made in the context of the CFSP. I criticize the Court’s reliance on such an ill-defined concept to delineate the boundaries of its jurisdiction and argue that removing the limitations on the CJEU’s jurisdiction within the CFSP would require a reform of the Treaties.
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The Patriots for Europe
Never in the history of the EU has a political party at Union level so ostentatiously misnamed itself as the Patriots for Europe. Their name suggests a passionate love for homeland Europe but their Manifesto reveals an unmistakable commitment to dismantle European democracy and to reduce the EU to an undemocratic organisation of illiberal states. Following the recent European Parliament elections, the Patriots for Europe has emerged as nothing less than the third largest political party. I explore the core elements of their illiberal political agenda as outlined in their Manifesto and discuss how their proposed sovereign policies, if implemented, could reverse the progressive trajectory of European (legal) integration.
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Soft Law’s Increasing Clout
The non-binding nature of soft law is rather self-evident, yet, its influence is growing, as reflected in the recent Jemerak case, decided on 5 September 2024. While the judges in Luxembourg explicitly stated that the Commission’s guidance document had no effect on their interpretation of Union law whatsoever, their decision de facto indirectly reviewed that document. I argue that the Jemerak case exemplifies the growing significance of soft law.
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First Time as Tragedy, Second Time as Farce
In December 2023 the Hungarian Parliament speedily adopted the Act on the Protection of National Sovereignty and by February 2024 the government had already designated the Sovereignty Protection Office (SPO) for its enforcement. The history repeats itself, first time as tragedy, second time as farce. The current activities of the SPO exemplify the Hungarian government’s ongoing efforts to undermine free and independent society. It is crucial for the Union and European civil society to once again act swiftly to prevent the harassment of journalists and the potential disappearance of NGOs.
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Misjudging the Football Transfer System
In 1995, the Bosman ruling put an end to transfer fees for out-of-contract players. This year, the Court of Justice of the EU (CJEU) is dealing with the Diarra case, which concerns players still under contract. The Advocate General has already given the Opinion, which suggests that the upcoming CJEU's ruling will further weaken the transfer system. I argue that both rulings focus too much on the labour market and the freedom of movement of workers and neglect the fact that the football transfer system enhances competition in consumer markets at the benefit of smaller clubs and the football fans.
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The Hungarian Treeless Treetop Walkway
In the small village of Nyírmártonfalva in northeastern Hungary, there stands a wooden treetop walkway designed for walking among the tree canopies. Yet, there are no trees around. The European Public Prosecutor’s Office initiated proceedings to investigate this allegedly fraudulent appropriation of the EU common budget. In early August 2024, the Hungarian Office of the Prosecutor General rejected EPPO's jurisdiction. Nonetheless, the EPPO has jurisdiction according to the result theory, accepted also in Hungary, due to the place where the result of an offence occurs.
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Strengthening the EU Legal Edifice for Data Transfers
GDPR provides the rulebook for international transfers of personal data from the EU and serves as the vehicle through which EU data protection law interacts with the wider world. However, the EU seems ambivalent about deciding how far it can expect third countries to adopt data protection standards similar to its own. Moreover, DPAs often fail to scrutinize data transfers to third countries that may lack the rule of law. Finally, the EU lacks a comparative methodology for assessing data protection equivalence in third countries. It is essential for the EU to elevate the public discourse so that the global significance of data transfers is recognized.
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Mainstreaming Gender in EU Arms Export Controls
With the third review of the EU Common Position on Exports of Military Technology and Equipment (EU Common Position) well underway, there is a critical opportunity to align this document with international instruments that incorporate gender considerations in the arms trade. In light of this, the post examines the increasing integration of Gender-Based Violence (GBV) within arms trade legal frameworks and calls for the EU Common Position to explicitly reference gender beyond its already present human rights considerations.
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Hungary’s Sovereignty Protection Sham
Hungary’s persistent rule of law and corruption shortcomings have led the EU to freeze EUR 27.8 billion in funding under various conditionality regimes. Prime Minister Orbán, who relies on these funds to maintain his political machinery and reward loyalists, has wielded Hungary’s veto in the Council to unlock this funding. Moreover, Hungary adopted the Act LXXXVIII of 2023 on the protection of national sovereignty (Sovereignty Law), which sets up the Sovereignty Protection Office (SPO), a state entity created to defend Hungarian sovereignty. This post examines the Sovereignty Law and calls the EU to effectively halt the SPO’s activities and prevent this model from spreading elsewhere.
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Zwei- bis Drei-Klassen-Justiz in Österreich?
Seit der „Ibiza-Affäre“ vom Mai 2019 reißt die Kette an Skandalen in Österreich nicht ab. Zuletzt sorgte die Causa Pilnacek für Aufsehen. Der dazu nun veröffentlichte Kommissionsbericht attestiert Österreichs Justizsystem gravierende Mängel, insbesondere Korruption. In der europäischen Mehrebenenjustiz ist dies letztlich ein genuin europäisches Problem. Die zutage getretenen Schwächen sind damit nicht nur Schwächen der österreichischen Rechts- und Verfassungsordnung, sondern Herausforderungen für die europäische Rechtsstaatlichkeit insgesamt.
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Restitution for Pushback Victims
Despite the trauma caused by the brutality of pushbacks, victims often attempt to return to the expelling state’s territory, driven by desperation and the search for a better life. In doing so, they risk repeated violations of their rights. This vicious circle has to be broken. As reparation for the violation of their rights, restitution allowing for their return to the territory of the state responsible for the violation should be granted. This victim-centered approach allows their primary goal of re-entry into the state territory to be achieved through legal means.
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Aristotle in the Commission
Today, the European Commission issued its fifth Annual Rule of Law Report (ARoLR). While this monitoring exercise has come a long way and has been significantly improved, the rule of law backsliding remains one of the most pressing issues of the EU. In the following I present seven recommendations how to improve the Commission’s monitoring exercise. At the core lies a differentiation between a democracy and a hybrid regime. Once a Member State qualifies as the latter, it must be treated accordingly.
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Hate Speech on and off the Field
During the EURO 2024 in Germany, the UEFA has imposed a series of sanctions on fans and two players for inappropriate comments and gestures. Albania's player Mirlind Daku was suspended by UEFA's Control, Ethics and Disciplinary Body (CEDB) for two UEFA representative team competition matches after chanting nationalist slogans. Turkey's Merih Demiral was suspended for two matches for celebrating his second goal against Austria with a "wolf salute". These sanctions can be considered justified under the standards of the European Convention on Human Rights ("ECHR"). However, in order to have an effective preventive effect, they should be accompanied by criminal investigations under national law.
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Soccer Meets Geopolitics
Two competitions are currently predominating Europe’s agenda – the UEFA Euro 2024 in Germany and the brute reality of geopolitics. While the former will decide over Europe’s next soccer champion, outcomes of the latter will arguably shape whether Europe will champion the new geopolitics of the 21st century. To win this competition, we argue that the European Union (EU) does not need a unified military force, but rather a new defense commissioner who would act as a dual security manager, bringing together the EU’s global entanglements with its economic clout to enhance the military power of its Member States.
Continue reading >>Putting the Record Straight About the Spitzenkandidaten
In the last few weeks, a great deal of nonsense has been said about the concept of the Spitzenkandidat. Some accuse the European Parliament of a power grab, subrogating the lawful role of the European Council in choosing the new Commission President. Others trivialise the role of the Parliament and doubt the democratic credentials of the process. Many believe that the candidate must always be drawn from the largest party come what may. All these assertions are wrong. The election of the Commission President is a joint endeavour between Parliament and Commission, democratically legitimate, and fully in conformity with EU law.
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Aufgeschoben ist nicht aufgehoben
Der Versuch der belgischen Ratspräsidentschaft, ein Verhandlungsmandat für die Umsetzung der umstrittenen Chatkontrolle-Verordnung zu erzielen, ist letzte Woche unter anderem am Widerstand Deutschlands gescheitert. Das sind gute Nachrichten für die Grundrechte, doch trotz der Umwälzungen durch die Europawahl ist es noch zu früh für eine Entwarnung.
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The Lighthouse of EU Law Shines on the Polish Constitutional Tribunal
Last week, legal scholars from all over the world met in Freiburg at the ConTrans conference. On the one end of the spectrum, scholars like Woijcech Sadurski advocated for a revolutionary approach, simply dismantling the current Tribunal and re-building it from scratch. On the other end stands Adam Bodnar, who stressed the importance of legality in the transition process. In my view, EU law shines a possible way ahead – it can justify disregarding the Tribunal’s decisions and empower ordinary courts to assume the Tribunal’s jurisdiction. Eventually, this would lead to a decentralised constitutional review.
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Rule of Law Chickens Coming Home to Roost
Ongoing assaults by Viktor Orbán’s Fidesz administration on the rule of law in Hungary have produced manifold reactions, generally of depressingly limited effectiveness. Last week, on 13 June 2024, in Case C-123/22 European Commission v Hungary, the Court ordered a record lump sum payment of €200,000,000 and a penalty payment of €1,000,000 per day of delay until an earlier 2020 Court ruling is complied with. Hungary thus received a stinging reminder that the Court of Justice is not toothless when it comes to the rule of law.
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Louise Weiss
When you hear the name 'Louise Weiss', you may think of the European Parliament building in Strasbourg that bears her name, or of her election to the first European Parliament and her inaugural speech. What may not come to mind is the woman Louise Weiss herself and the outstanding achievements throughout her life. This brief profile is a reminder that she should be remembered for her tireless search for peace, her tireless fight for women's rights, her endless humanitarian work and for being truly 'European'.
Continue reading >>The EPPO as a Domesticated Cat
The European Public Prosecutor’s Office (EPPO) has just celebrated the third anniversary of the start of its operations. “I am sure you will soon see [the EPPO] is anything but a ‘toothless tiger’”, said Laura Kövesi in an interview in 2021. Sadly, in Bulgaria, a country frequently shaken by scandals implicating abuses of EU funds and known for rampant corruption, the EPPO reminds of a domesticated rather than a fierce wild cat.
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Hitting the Pause Button on the EU Project?
What is at stake in these elections.
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Militant Public Administration
An unprecedented scandal surrounding a Polish governmental fund established to aid crime victims highlights the role of civil servants in authoritarian state capture. The revelations surrounding the Justice Fund show broad levels of bureaucratic acquiescence with shocking abuses of power, and only belated effort to document and report these abuses. The Polish case shows it is time for a democratically militant public administration – the new vision of civil service better prepared to fend off authoritarian encroachment from elected politicians.
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Trans Rights and Gender Recognition before the CJEU
On May 7, 2024, the Advocate General of the CJEU issued his Opinion on the Mirin case concerning the right to Legal Gender Recognition (LGR) for transgender persons. Yet, the solution offered by the AG deviates from the Court’s previous case-law on LGR, by making it about free movement rather than protection against discrimination, or fundamental rights. It also places the applicant, and those in a similar position, in an administrative situation that is defeating the very purpose of LGR – an issue that the AG himself acknowledges. A more satisfactory and ambitious alternative would instead be to frame the LGR as protected under the EU Charter.
Continue reading >>Access to Supply Chain Justice?
One of the novel features of the Corporate Sustainability Due Diligence Directive is a private law liability for damages caused upstream in the supply chain. However, liability under substantive law is worthless without procedural rules that allow for its enforcement. Within the context of supply chain liability there are at least two major procedural problems. First, victims affected by supply chain mishandlings might be unable to afford proceedings in Europe. Second, proving that a company has not exercised a sufficient level of diligence can be difficult. Art. 29 para. 3 CSDDD seeks to address those issues.
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On Rebuilding and … Keeping the Rule of Law
When I think about the challenge of rebuilding the rule of law in Poland after years filled with unimaginably lawless legal and factual acts and hateful words tearing the Polish Constitution to shreds and offering adequate recipes, the starting point is framing the discussion. A correct description of the starting point determines the route and provides the background against which one can evaluate more detailed legislative choices made along the way. The route must be determined by “fidelity to the Constitution”. Finally, our avowed destination must be framed in clear terms as restoring the meaning and respect to the basic elements of the Polish legal order. I argue that the latter must become the new narrative of lawyers, politicians and citizens alike if we are to succeed.
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Litigating the EU-Turkey Deal
Earlier this year three Dutch NGOs sued the Netherlands for approving and carrying out the EU-Turkey deal. They argue that the Dutch government should be held responsible for the dire conditions under which asylum seekers have been held under on Greek islands since the deal has been concluded, which have repeatedly been found to violate human rights. In this blog, I sketch the context of litigation surrounding the EU-Turkey deal which has driven the NGOs to sue in the Dutch national legal system and explain the promise and pitfalls of the rise of strategic litigation in the sphere of migration and asylum law.
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