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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
Hitting the Pause Button on the EU Project?
What is at stake in these elections.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
The New Transgender Ruling in Czechia
In a recent decision in the case of N.G. (Pl. ÚS 52/23), the Czech Constitutional Court (CCC) addressed the pressing issue of trans persons’ rights, more specifically the requirements for legal gender reassignment, involving (often involuntary) sterilisation and castration. When compared to the earlier decision in T.H. (Pl. ÚS 2/20), the new ruling represents a major shift. In fact, the CCC changed its legal position by 180 degrees, giving preference to protecting individual rights over deferring to the legislator’s choices.
Continue reading >>
The Autocratic Party-Structure of PiS
Political parties are the heart of every parliamentary democracy. This post aims to explore what categorises political party-structure as autocratic and postulates a reform of political parties in Poland as partially inspired by German legal solutions. Namely, the main executive body of the party must consist of at least three members elected no less frequently than every two years. Furthermore, all party members must be allowed to propose electoral candidates. Finally, decisions on party offices and electoral nominations must be carried out by a secret ballot.
Continue reading >>
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 >>
The EU Association Agreement with Andorra and San Marino
On 26 April 2024, the European Commission put forward a proposal for the Council to conclude the Association Agreement (AA) between the European Union and Andorra and San Marino. The AA with Andorra and San Marino goes another step further and introduces in an unprecedented manner the supervision and jurisdiction of the European Commission and the Court of Justice (CJEU) in the context of an association agreement. Accordingly, the Union may now have fully exhausted its association competence when it comes to the depth of integration it may offer third countries.
Continue reading >>
The Reform of the EU Fiscal Rules
The reform of European economic governance has been in the air for quite some time, but it was not until 2023 that the Commission put forward the most substantial development since the Maastricht Treaty. In April 2024, the European Parliament, along with the Council, approved all three legislative proposals. These measures strengthen European economic security by protecting the sustainability of the Union's debt. Without examining the legislations’ details, this blog post reveals a propensity within EU economic governance towards neo-protectionism of the EU’s financial interests.
Continue reading >>
Ten Commandments to Stifle Academic Freedom
Since 2010, the beginning of the populist takeover and the authoritarian transition, Hungary has gathered a lot of experience on how to dismantle academic freedom. This knowledge can be useful for other autocrats as well. But even if we don’t want to give them tips on how to repeat what happened and is happening in this country, it might still be worth reconstructing how it all took place. This can be especially useful for calculating what to expect from autocrats and preparing how to defend against them.
Continue reading >>
Overcoming Big Tech AI Merger Evasions: Innovating EU Competition Law through the AI Act
To develop AI, computing power and access to data (aka bigness) are crucial. Now, Big Tech companies appear evading EU competition law. Companies like Google and Microsoft evade the EU Merger Regulation by entering partnerships with smaller AI labs that fall short of shifting ownership but nevertheless increase the monopolistic power of Big Tech. These quasi-mergers are particularly problematic in the context of generative AI, which relies even more than many other services on incredibly vast computing power. That is a dire state from an economic as well as a more fundamental and democratic perspective, as concentrating economic might in the hands of very few companies may cause problems down the road.
Continue reading >>Long Live Nottebohm
Next year, Nottebohm will be turning 70. Only very recently, Weiler, on this blog, made the point that the argument of a genuine link – underpinning the case of the Commission against the Maltese golden passport scheme – is unconvincing and rests on a “tendentious reading of Nottebohm”. Yet, in Commission v Malta, the CJEU may well reinvigorate a European debate about the genuine links that bind us. I, for once, would argue it is high time to make the point that nationality is not just anything a State makes of it.
Continue reading >>Pushbacks From Europe’s Borders Enter the Mainstream
The Polish reckoning with the illiberal turn of the past years seemingly does not apply to the unlawful practice of pushbacks on the Poland-Belarus border. The unlawful practices, best exemplified by pushbacks, have come to be accepted in the European mainstream. The humanitarian crisis on the Poland-Belarus border and its handling by the new government, together with its rejection of the New Pact on Migration and Asylum, vividly illustrates this point.
Continue reading >>
A Proposal Towards a European Defence Union
In the context of profound (geo-)political changes, and following the Conference on the Future of Europe, the European Parliament (EP) adopted proposals for a Treaty reform for the area of defence. This blog post analyses the proposed formation of the European Defence Union (EDU) and the introduction of qualified majority voting (QMV) while concluding that the new framework would likely create contradictory outcomes and undesirably challenge the current constitutional balance.
Continue reading >>
A Non-EU Rule of Law Commission
In March, the European Parliament decided to sue the European Commission over a quid pro quo exchange of European Union funds with Hungary for support of Ukraine EU accession. This lawsuit marks a striking culmination of a years-long failure on the part of the Commission to protect the rule of law. Given frustrating delays from Brussels, this blog post proposes a non-EU accountability mechanism—a so-called Rule of Law Commission—to bolster and reinforce commitments to rule of law issues among European states.
Continue reading >>
A Rejoinder to Citizenship for Sale (Commission v Malta)
In his piece on Citizenship for Sale of 14 April 2024, Joseph Weiler criticizes the European Commission's infringement procedure against Malta's golden passport scheme. He names three reasons why the Commission should (or could) not have brought the case and the Court should not uphold it. While the present reply does not argue that the Court will necessarily find in the Commission's favour, the Commission's legal claim and strategy do not seem to be as (constitutionally) problematic as Weiler make them out to be.
Continue reading >>GDPR Overreach?
After Meta introduced this model for its social networking services Facebook and Instagram in November 2023, several national data protection authorities called on the EDPB to clarify the compatibility of this model with the GDPR. Data protection law is to be used as a lever to prohibit media companies or online service providers from offering a service that is more data-minimalist than the traditional business model. Data protection authorities are therefore faced with the question of whether the GDPR should address "social justice" concerns.
Continue reading >>
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 >>European Democracy at Stake in Battle of the EP versus Orbán
Shortly after the entry into force of the Lisbon Treaty in 2009, the European Parliament expressed its concern about the rule of law in Hungary. 14 years later, the EP still, and yet again, discusses PM Orbán’s lack of respect for the values of the Union. The forthcoming debate on 10 April will be the Parliament’s last chance to prevent the scheduled takeover of the Council-Presidency by Hungary. The EP and the European Council must prevent a self-proclaimed illiberal leader from assuming the Presidency of the Council and thus protect the democratic nature of the European Union.
Continue reading >>