17 October 2024
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 >>
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03 October 2024
Sex Work Can’t Buy Human Rights
In a recent decision on the merits in M.A. and Others v. France, the ECtHR held that French legislation criminalizing the purchase of sexual acts did not violate the rights of 261 sex workers. The decision retreats into the Court’s traditional interpretative toolbox of European consensus and (procedural) margin of appreciation. I argue that the ECtHR decision does not only demonstrate blindness towards the rising sensitivity towards intersectional grounds of discrimination in human rights law but also contradicts recent proposals on “a human rights-based approach to sex work” promoted by several UN organs and the Council of Europe’s Commissioner for Human Rights. Continue reading >>
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29 May 2024
The Electoral Reform in New Caledonia as a Blessing in Disguise
The constitutional amendment recently examined by the French Parliament would allow French citizens, residing in New Caledonia for at least ten years, to take part in local elections. Prompted by President Macron, this electoral reform has led to massive riots in recent weeks involving supporters and opponents of independence for this territory of the French Republic. Local representatives fear that this reform will place the Kanak – the archipelago’s autochthonous people – in an even more inferior position vis-à-vis loyalist militants. Nevertheless, this reform should guarantee better representation of the population of New Caledonia and thereby guarantee the right to vote more widely, in line with the democratic principles of the French Republic. Continue reading >>29 May 2024
On Kanaks and Caldoches
Over the past week, the French electoral reform in New Caledonia precipitated into violent unrest. Although the French government lifted the state of emergency on Tuesday morning, in an attempt to initiate a process of de-escalation and to renew the dialogue with the independence movement, the reform will eventually move forward. Henceforth, France will further entrench its influence in the South Pacific and effectively deny the Kanak people to achieve their desired self-determination. Continue reading >>
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05 February 2024
Heightening the Repressive Dynamic
The new French Immigration Act was promulgated and published on 26th January 2024, the day after the Conseil Constitutionnel decision which censored 35 provisions in one of its longest decisions to date. The Conseil chose to emphasize the Constitution’s procedural requirements, while largely avoiding substantive analysis of the Act’s drastic reduction of foreigners’ rights. Indeed, it asserted the constitutionality or remained silent on many provisions that undercut foreigner’s rights. The Act as promulgated thereby constitutes the most repressive text since 1945 and heightens a migration restrictive dynamic. Continue reading >>
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11 October 2023
The French Republic’s (In)Divisibility
On Thursday 28 September 2023, French President Emmanuel Macron called, in front of the Corsican Assembly, for Corsica to be given ‘autonomy within the Republic’. The French government and Corsican elected representatives have six months to produce a text which, if approved by the Corsican Assembly, will serve as the basis for an amendment to the French Constitution. Nonetheless, the political reactivation of an old constitutional principle might get in the way. In particular, conservative parliamentarians can be expected to invoke the principle of the indivisibility of the Republic in the constitutional amendment process. Despite the principle’s long-standing presence in republican constitutional history, we argue that it cannot serve as a constitutional argument against Corsican autonomy, both because the Constitution allows amendments despite contradictory principles and because it has always tolerated a certain degree of divisibility. Continue reading >>
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01 May 2023
Gewaltenteilung vor Klimaschutz
Nach ihrem Pyrrhussieg in Sachen Rentenreform wurde der französischen Regierung Ende letzter Woche vom Verfassungsrat erneut der Rücken gestärkt. Anlass war ein Gesetzesentwurf zur Aufstockung des Militärbudgets als französische Reaktion auf den russischen Angriffskrieg. Verfassungsrechtlich ging es dabei um die Frage, wie intensiv Gesetzesfolgenabschätzungen gerichtlich zu kontrollieren sind. Ein Blick nach Paris lohnt sich auch vor dem Hintergrund des deutschen Bestrebens, einen „Klimacheck“ für Gesetze einzuführen, welcher vor ähnlichen verfassungsrechtlichen Schwierigkeiten stehen dürfte. Continue reading >>06 April 2023
Corporate Duty of Vigilance and Environment
On February 23, 2023, French bank BNP Paribas was sued before the civil tribunal in Paris for having allegedly breached its environmental duty of vigilance. In particular, deficiencies in the vigilance plan related to the allocation fundraising activities are criticized. This climate litigation, involving a French bank for the first time, could increase the liability of financial protagonists in the fight against climate change if it succeeded. Nevertheless, one may doubt that the case against BNP Paribas will prove to be successful, as previous ones – which had been introduced under the 2017 law of vigilance (LdV) – are all either pending or unsuccessful. Continue reading >>
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27 March 2023
Constitutional? Perhaps. Democratic? Not so much
The adoption of the Law on Retirement without a majority in the National Assembly has caused a huge uproar in France. The use by the executive of an article or two of the Constitution, as well as the combination thereof, is deemed constitutional until a competent organ says otherwise. And the only one who could, the Constitutional Council, will probably not say otherwise. But even if something is constitutional, that does not make it democratic. A look into the justifications given by the head of State and the head of Government stirs reflection on the relationship between the constitutional and democratic character of the proceedings. Continue reading >>
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