13 September 2024
Story of a Death Foretold
On 30 August 2024, the Brazilian Supreme Federal Court Justice Alexandre de Moraes suspended X (former Twitter) in Brazil. The decision follows a critical deterioration of the relationship between Elon Musk and Brazilian authorities, which became confrontational in April and hit an all-time high point of contention when the tech billionaire closed X's Brazilian office in mid-August. While Musk's attitude towards the Brazilian rule of law can be defined as delinquent, entitled, and anarchist, the Supreme Court’s decision to ban the platform in the country and establish hefty fines for any Brazilian attempting to use a VPN to access it is also controversial. Within the complexity of democratic erosion and digital policy in Brazil, the judicial expansion of power vis-à-vis the struggle against disinformation has been observed at least in the last five years, and the lack of a general legal framework regulating digital platforms supports these immediate but many times inefficient and legitimacy eroding measures. Continue reading >>
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19 August 2024
Erledigt und Pech gehabt?!
Setzt eine Fortsetzungsfeststellungsklage im Falle sich typischerweise kurzfristig erledigenden Verwaltungsakt zusätzlich einen qualifizierten Grundrechtseingriff voraus? So ist es, sagt das Bundesverwaltungsgericht. Damit wird eine eigentlich materiellrechtliche Frage in die Zulässigkeit der Klage verlagert. Es besteht das Potential den Individualinteressen der Kläger*innen nicht ausreichend gerecht zu werden. Continue reading >>
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30 July 2024
Bulgaria’s Constitutional Drama and the EU Commission’s Rose-Colored Glasses
On 26 July 2024, Bulgaria’s Constitutional Court declared a significant part of constitutional amendments enacted in December 2023 unconstitutional. These amendments were part of a rushed constitutional reform which was supposed to address persistent rule of law challenges in the country, such as the excessive powers of the Prosecutor’s Office and the politicization of the Supreme Judicial Council. The drama in Bulgaria raises concerns about why the EU Commission recognizes half-baked, ill-written constitutional reforms as progress without analysis of their substantive merit in context. Continue reading >>
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26 July 2024
A Network in Defense of the Rule of European Constitutional Law
In face of the erosion of the role of the judiciary, which is undermining the power and independence of many courts worldwide, European national courts stand in a stronger position. They benefit from the support of a robust network of actors committed to defending shared European values. Continue reading >>
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24 July 2024
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 >>
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10 July 2024
The Rule of Law and the United Nations Summit of the Future
Is the rule of law an unwritten principle for the UN system? Today, rule of law language has been gradually replaced by a new paradigm of ‘inclusivity’. The rule of law debate within the UN was centered on a thick understanding of the rule of law, highlighting substantive values rather than procedural guarantees. Absent a consented definition of the term, the rule of law was never considered to be an unwritten principle for the UN system. Continue reading >>
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28 June 2024
From Constitutional Crisis to Poisoned Chalice
The national elections to the UK Parliament in Westminster are scheduled for 4 July 2024, and are consequential for the constitution. Continue reading >>
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26 June 2024
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 >>
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24 June 2024
Toward a More Rigorous Mechanism for Resolving Legislative Conflicts
In December 2023, China’s national legislature, the Standing Committee of the National People’s Congress (NPCSC), adopted the Decision on Improving and Strengthening the System of Recording and Review, a major bill aimed at reforming “recording and review” (R&R)—China’s system of parallel processes for resolving legislative conflicts. Under R&R, an enacting body—that is, a governmental body authorized to issue documents of a legislative nature—must file its legislation with the designated reviewing body for subsequent review. Some would give more teeth to the rectification process so that enacting bodies do not abuse the latitude they enjoy. How the new measures would work in practice and whether they would achieve the intended goals, however, remain to be seen. Continue reading >>
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21 June 2024
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 >>
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