The EU’s limited powers do not enable its institutions to effectively intervene in cases where Member State actions threaten fundamental values. The recent controversies emerging from some Member States’ human rights and rule of law backsliding turned this question to one of the core issues of the European project, calling for effective fundamental rights protection in the EU without suppressing national constitutional identities. Though EU law’s approach, at least at first glance, might appear to be idiosyncratic, it is far from unprecedented and, as far as multilevel constitutionalism is concerned, EU law may draw on the experiences of various regimes where centralized human rights protection and national or state constitutional identities coexist. This Article analyzes the current European approach as to the application of the federal bill of rights to states from a comparative perspective and explores the constitutional and jurisprudential patterns addressing the question of inquiry in a multilevel constitutional architecture. The Article analyzes the subject from a doctrinal, ontological, textual-conceptual, and institutional perspective with the aim of contributing to the current European debate with a new comparative perspective and fostering EU constitutional development with structural patterns. It submits that the currently prevailing paradigm of “scope” should be replaced or complemented with the paradigm of “core standards” and proposes a doctrine of European incorporation, arguing that the diagonally applicable rule of law and human rights requirements should be incorporated via Article 2 TEU to make them judicially applicable.

In December 2018, the Euro Summit endorsed the Term Sheet on the European Stability Mechanism (ESM) reform prepared by the Eurogroup. In this context, the Euro Summit did not acknowledge the proposal of the European Commission to transform the ESM into the European Monetary Fund (EMF), but simply gave the Eurogroup a mandate to draft the relevant amendments to the ESM Treaty and submit them to the European Council of June 2019. Nonetheless, the justifications for the incorporation of the ESM into the body of the European Treaties continue to be valid and may come back into play. In this respect, it is worth highlighting two flaws that have emerged in the proposed transformation of the ESM into the EMF. First, the ESM Treaty does not contain any rule about extinction and transfer of functions. Second, the Commission’s proposal did not clarify what status the EMF would have enjoyed in the EU legal framework.

This Article comparatively analyses how the prohibition of refoulement is interpreted by United Nations Treaty Bodies (UNTBs) in their individual decision-making, where we suggest they act as “soft courts.” It asks whether UNTBs break ranks with or follow the interpretations of non-refoulement of the European Court of Human Rights. This investigation is warranted because non-refoulement is the single most salient issue that has attracted individual views from UNTBs since 1990. Moreover, our European focus is warranted as nearly half of the cases concern states that are also parties to the European Convention on Human Rights. Based on a multi-dimensional analysis of non-refoulement across an original dataset of over 500 UNTB non-refoulement cases, decided between 1990–2020, as well as pertinent UNTB General Comments, the Article finds that whilst UNTBs, at times, do adopt a more progressive position than their “harder” regional counterpart, there are also instances where they closely follow the interpretations of the European Court of Human Rights and, on occasion, adopt a more restrictive position. This analysis complicates the view that soft courts are likely to be more progressive interpreters than hard courts. It further shows that variations in the interpretation of non-refoulement in a crowded field of international interpreters present risks for evasion of accountability, whereby domestic authorities in Europe may favor the more convenient interpretation, particularly in environments hostile to non-refoulement.

The ruling of the German Federal Constitutional Court in the Right to be forgotten II case is an example of constitutional pluralism in action. It demonstrates how a pluralist-minded court can elevate itself from and above the constitutional confines of its own legal order. By integrating the material standards of another legal order in its own review of constitutionality a national constitutional court contributes directly to the strengthening of the fundamental rights of individuals against the national authorities within the overall system of European legal order.

Robert Alexy is one of the most prominent proponents of proportionality in international legal scholarship. His theory has two dimensions. On the one hand, it is a normative defense of balancing. On the other hand, it seeks to provide a reconstruction of the case law of the German Federal Constitutional Court. This Article focuses on the reconstructive part of his theory. It argues that his reconstruction of the jurisprudence of the German Constitutional Court is only partly accurate. In particular, it does not provide a suitable reconstruction of the decisions in which the Court finds a statute to be inconsistent with the constitution. For this reason, the normative critique of Alexy’s theory does not necessarily translate into a critique of the jurisprudence of the German Constitutional Court’s application of proportionality or even the proportionality doctrine itself. Instead, it targets only one specific interpretation of proportionality.

Cultures of legal and socio-legal scholarship, like legal cultures themselves, are shaped by their respective historical, cultural, economic, and socio-political context. Socio-legal—or law and society—studies are thus pursued and taught differently in different parts of the world. This Article suggests making socio-legal studies the object of comparative research, so as to understand and explain commonalities, differences, and context dependencies in socio-legal scholarship and teaching in different countries. Such comparative endeavors help to translate between different academic languages and to critically reflect upon one’s own research methods and system of legal education. They prove useful for scholars planning research in other parts of the world or engaging in cross-country collaborative research projects, and for research institutions and policymakers involved in reforming research funding and legal education. But how do we go about comparing socio-legal studies? More specifically, why, what, and how do we compare, and what are the challenges that we may face when pursuing such comparative endeavors? This Article gives an overview of potential research questions that a comparison between socio-legal studies may address, the sources that comparativists may draw on, the methods such a comparative endeavor may use to collect and analyze data, and the challenges researchers may face when attempting to compare socio-legal studies in different parts of the world.

Constitutional courts play an essential role in authoritatively interpreting constitutions. Oftentimes they go beyond the constitutional text by inventing so-called judge-made law. Their authority to interpret the text covers not only substantive parts but also the clause authorizing their jurisdiction. Such power, namely the power to interpret the limits of their jurisdiction, is often used to intervene in the interpretation of the constitution more vigorously than explicitly authorized. One example is the invention, designation, and development of the advisory jurisdiction by the Constitutional Court of the Republic of Kosovo. On that basis, the Court has, for almost ten years of its existence, pronounced on numerous fundamental issues relating to the governing system, power maps, and entitlements on political authority. The Court developed its advisory jurisdiction in a rather unpredictable and impulsive fashion; however, it steadily revealed its willingness to engage with interpretations that sought to resolve high-stakes issues. Such braveness also had a credibility cost for the Court. The year 2018 marked a major shift in the Court’s interpretation of its own jurisdiction to “advise.” In the Central Election Commission case, it abandoned its previous precedent and commenced a passive, restrained attitude in engaging with the constitutional interpretation on the basis of case or controversy. This Article analyzes the Court’s path and change of course in this cycle.

According to Regulation 1049/2001, which creates the EU’s public access to documents regime, all EU documents should hypothetically be publicly accessible, except for those that fall within explicitly protected interests. A number of these exceptions to disclosure, however, function such that documents covered by them do not have to be disclosed if their release would harm a protected interest unless there is an “overriding public interest in disclosure” exists in the circumstances. The purpose of this Article is to offer a critical examination of this concept of the overriding public interest as interpreted by the Court of Justice of the European Union (CJEU). In the first part, the notion of the public interest generally is discussed from a theoretical perspective. Following this, a thorough analysis of case law concerning the overriding public interest is presented. Finally, this Article presents a critical commentary of the CJEU’s understanding of the concept. This Article essentially seeks to argue, inter alia, that the CJEU’s interpretation has resulted in democratically unaccountable bureaucrats of the EU effectively becoming the sole arbiters of the existence and content of the overriding public interest in disclosure under Regulation 1049/2001, a situation that is fundamentally unsatisfactory.

Gender in socio-legal teaching and research in Germany is a story of impediments, hindrances, and of singleperson initiatives—my personal history being a part of this. But it is also a story of influences upon the impulse and inspiration to undertake socio-legal work. My Article is therefore influenced by (feminist) standpoint theory (Harding 1991). Germany has had a very conservative family culture and, over the past decades, many of the legal regulations that infringed upon women have had to be adapted, in what was quite a tedious political process, to comply with the German Constitution’s gender equality clause. Only in the past decade has gender awareness in law faculties increased and gained acceptance, usually as a result of greater focus on diversity issues, and anti-discrimination legislation. Obstacles have resulted from a lack of cooperation between the actors in social sciences and law, as well as in academia and gender equality practice, and a lack of understanding between more conservative and more progressive women. Socio-legal research was, and is, needed to deliver empirical evidence and provide theoretical foundations for cultural and legal changes as societies progress towards gender equality. Socio-legal teaching is needed to alert lawyers to necessary change, to enable them to undertake informed critique, and to prepare them to act. There are, however, marked deficits in socio-legal teaching and research on gender. In spite of an increased political acceptance, gender equality is still mainly a women’s project.

The Common European Asylum System constitutes one of the principal areas in which the fundamental rights of individuals are essentially placed in competition with the core principle of mutual confidence and the need to preserve the effectiveness of EU law. That competitive relationship becomes particularly evident when applicants for international protection rely on alleged violations of their fundamental rights in order to contest their transfer to the Member State that is normally responsible for examining their asylum request according to the criteria of the Dublin III Regulation. The balancing process that needs to be carried out in this respect and the measure of the monitoring obligation that EU law imposes on the receiving Member State regarding the protection of the fundamental rights of asylum seekers are well exemplified by the preliminary ruling in Jawo. That case provides additional clarification regarding the circumstances in which the protection of fundamental rights may introduce exceptions to the principle of mutual trust. At the same time, it illustrates the inherent tensions that exist between the protection of fundamental rights and the application of the principle of mutual confidence.

Available accounts on jurisdiction, effective control, and the reach of human rights protections fail to provide a coherent construction that is principled and applicable across the board, within and beyond territorial borders. The “functional jurisdiction” model posited herein resolves these incongruities by looking at the normative foundation of sovereign authority overall, predicated on an exercise of “public powers” through which State functions are discharged, taking the form of policy delivery and/or operational action, whether inland or offshore, and which translates into “situational” control. Using the pending case of S.S. and Others v. Italy as an illustration, the article focuses on the sovereign-authority nexus that unites a specific state with a specific individual in a specific situation, triggering human rights obligations even through mechanisms of “contactless control” exercised via remote management techniques and/or through a proxy third actor. The role of extraterritorial operations, qua complex mechanisms of governance that implement broader policies with a planning, rollout and post-implementation phase, is central to this re-conceptualization, as is also the understanding that what makes control “effective” is its capacity to determine the material course of events and the resulting position in which those affected find themselves upon execution of the measure(s) concerned.

The relationship between the Court of Justice and the Bundesverfassungsgericht is perhaps one of the most explored relationships in all of EU’s legal history. In attempting to understand and operationalize the uncertainty surrounding the positioning between EU and national constitutional orders, they have in some respects followed the footsteps of a typical life-long love story: in the early years of European integration, both courts appeared to be in denial of any romance, and entered into a conflict over the question of the final arbiter; they subsequently turned to flirting by moving away from an institutionally based conflict towards finding a common substantive ground; which resulted in finally abandoning the competition for domination, but rather embracing mutual respect and a heterarchical relationship. This brief piece follows these developments in fundamental rights review that for now end with the second German decision concerning the right to be forgotten.

The mainstream democratic critique of EU law rejects the argument that standard EU citizenship rights have a democracy-enhancing effect within the EU Member States. This Article shows how the democratic critique can benefit from a critique of critique that is missing in the discussion on the democratic effects of EU law. From this perspective, the Article makes an original contribution to critical EU legal studies at three levels. First, the critique of essentialist binary oppositions revisits what is political in the interests protected under EU citizenship rights. Second, the Article demonstrates how an Arendtian theory of political judgment counteracts the mainstream democratic critique in assessing the effects of EU citizenship law on democratic politics. Finally, reopening the question of what the conditions for democracy are translates into a methodological argument that rejectionist critique must yield to a more developed critical methodology in EU legal studies.

This Article focuses on the overlap and interaction between the doctrine of proportionality and the doctrines used to assess the constitutionality of state violations of the right to equality. The Article has three main contributions to comparative constitutional literature. First, the Article pinpoints the difficulty that arises when courts try to apply the doctrine of proportionality on claimed violations of the right to equality. Analytically, as shown in this Article, the overlap and interaction between these two doctrines is problematic because they are both relational measures between means and ends. Second, this Article categorizes two models adopted by courts in the application of proportionality in the context of the violation of the right to equality. Third, this Article points out that the choice of the model used by each court is relevant to the ongoing discourse on the advantages and disadvantages of proportionality.

The Right to Be Forgotten II crystallizes one lesson from Europe’s rights revolution: persons should be able to call on some kind of right to protect their important interests whenever those interests are threatened under the law. Which rights instrument should be deployed, and by what court, become secondary concerns. The decision doubtless involves some self-aggrandizement by the German Federal Constitutional Court (GFCC), which asserts for itself a new role in protecting European fundamental rights, but it is no criticism of the Right to Be Forgotten II to say that it advances the GFCC’s role in European governance, so long as the decision also makes sense in the context of the European and German law. I argue that it does, for a specific reason. The Right to Be Forgotten II represents a sensible approach to managing the complex pluralism of the legal environment in which Germany and other EU member states find themselves.

In all the applications before the ECtHR concerning migration at sea, a preliminary, yet seminal, question is whether the applicants were within the jurisdiction of the respondent State, in terms of Article 1 of the European Convention on Human Rights (ECHR). This question becomes even more apposite in contemporary situations of remote interception or search and rescue operations. In addressing the matter of jurisdiction in such cases, the law of the sea becomes of significant importance. This Article argues that as the International Tribunal of the Law of the Sea (ITLOS) has often taken into account human rights considerations, similarly, the European Court of Human Rights should read into the term “jurisdiction” under Article 1 of ECHR law of the sea considerations. Far from resurrecting Banković and the strict “general international law” notion of jurisdiction under ECHR, this Article only intends to shed some light on when a State would be considered as exercising such “authority and control over persons” in the maritime domain. In so doing, this Article will focus only on the potential application of the ECHR to the most common practices of States vis-à-vis migration on the high seas, namely interception and rescue operations.

This Article examines changes in dissent patterns that occurred on the Polish Constitutional Tribunal during a period of intense constitutional and political change in Poland. An analysis of these dissents shows judges only rarely used this opportunity to express the traditional differences of opinion on law or policy. Instead, judges on the Tribunal increasingly used dissents in an altogether new form – as a way to broadcast allegations of legal and procedural violations that occurred within the court’s operation itself. More troublingly, some judges also used their dissents to advance distinctly political narratives and overtly attempt to de-legitimize the court’s announced decisions. Ultimately, these dissents show that constitutional judges may not be immune to participating in the larger social and constitutional battles within society. In fact, these dissent patterns suggest that, in a more fragmented and polarized era of politics, judges can and have made use of the dissent as a way to broadcast distinctly political messages.