Article 2 of the Treaty on European Union (TEU) solemnly proclaims that the EU is founded on the respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. Yet, a growing body of case law concerning rule of law backsliding continuously reminds us of the lack of a dedicated functional mechanism to remedy this. We are left with a fragmented understanding of the founding values and a patchy framework for their enforcement: whilst there is increasing guidance on judicial independence and the rule of law, no founding value has been defined comprehensively. The legal classification of the founding values is equally unclear, as is their position in the EU’s constitutional framework. This paper makes do with what we have, to offer systematic, normative, and substantive clarifications on Article 2 TEU. Systematically, it places the founding values in the constitutional context of the EU’s and Member States’ legal orders and discusses their autonomy, interpretation, and function. Normatively, this paper objects to the direct enforcement of the founding values by reference to their constitutional significance and over-constitutionalization. Substantively, it favors the indirect enforcement of the founding values and explores the connections between Article 2 TEU and other Treaty provisions.

The “hungry judge” effect, as presented by a famous study, is a common point of reference to underline human bias in judicial decision-making. This is particularly pronounced in the literature on “artificial intelligence” (AI) in law. Here, the effect is invoked to counter concerns about bias in automated decision-aids and to motivate their use. However, the validity of the “hungry judge” effect is doubtful. In our context, this is problematic for, at least, two reasons. First, shaky evidence leads to a misconstruction of the problem that may warrant an AI intervention. Second, painting the justice system worse than it actually is becomes a dangerous argumentative strategy, as it undermines institutional trust. Against this background, this article revisits the original “hungry judge” study and argues that it cannot be relied on as an argument in the AI discourse or beyond. The case of “hungry judges” demonstrates the lure of narratives, the dangers of “problem gerrymandering,” and, ultimately, the need for a careful reception of social science.

The established view in textbooks and legal commentary is that the Court’s case law should be viewed as a coherent whole. In this article, we ask whether European human rights law is as unified and European as is often presumed. Based on a citation network of all Chamber judgments from 1998–2018, we argue that the practice of the Court is to some extent split in different strands of case law, where the Court reuses particular factual and legal arguments against the same state without applying those as precedent against other states. We quantify this phenomenon and exemplify it qualitatively. Our data also suggests that the trend is declining. We explain this by the introduction of the Pilot Judgement procedure and an increasing bureaucratization of the Registry, aligning the citation practices of the Court’s five sections. The article situates itself within a broader debate about both legal pluralism and the principle of subsidiarity inherent to the European human rights system and proposals to bring the Court “closer” to the contracting states. We introduce a new and more diversified view on the Court’s practice, understanding it as perhaps less homogenous than has hitherto been thought.

Quantitative approaches are gaining popularity in German legal research. The analysis of large corpora of legal text may be supported by text mining methods. In this study, we employ topic modeling—which aims at retrieving the “topics” of a corpus—to identify words related to certain areas of law present in the case law of the German Federal Constitutional Court (FCC). This information is then evaluated by legal experts and used to show significant content-related differences between the two most frequent types of proceedings before the FCC. Technical and somewhat unstable areas of law, such as tax law, social law, and civil service law, are significantly overrepresented in referrals for judicial review, whereas areas of law characterized by well-developed case law and judicial doctrine appear substantially more often in constitutional complaints. This insight may come as a surprise due to the fact that the Court’s material scope of review is identical in both types of proceedings. Our considerations do not, however, seem to apply to private law. Though we recognize the methodological and epistemological concerns regarding the heuristic nature of topic modeling, this study exemplifies its productive use in complementing, rather than replacing, more traditional techniques of analysis in legal studies.

This essay is an outcome of the pandemic, which in 2020 pushed me to reorient a sabbatical to studies of German legal culture. It combines an autobiographical background in Germany in the 1950s and 1960s with a longstanding interest in legal history, legal pluralism, legal culture, and gender and law. These fields are addressed from different angles, which demonstrate considerable changes of political and legal systems and cultures in German (speaking) areas. Within the last half century, a culture of silence and shame has attempted to come to terms with a patriarchal past, while also combining political cultures and economies from two parts of Germany, which merged a generation ago, and are still very diverse.

Against the backdrop of an evolving landscape describing data driven research, this article discusses the role of data protection laws in shaping a free flow of research data. In particular, the analysis inquires whether European data protection law hampers or encourages data-driven research. The analysis critically challenges the shared belief that the more severe data protection regime laid down by the European legislator adversely affects data flows and with that data-driven research. This is contrary to what occurs in the United States, where the more fragmented and less developed data protection framework facilitates data flows and related innovation patterns. We show how research objectives through data re-usability have been very recently given primary importance in the GDPR, where they find a formidable ally enabling the re-usability of public data by businesses and of private data by public institutions, for either public interest-related research purposes or commercially oriented innovation purposes. We argue that the GDPR differently promotes research-valuable data flows in consistency with an emerging principle of free movement of personal data. In order to ground this statement, our analysis links to this principle three-directional research regimes emerging from the GDPR.

This article examines the history of technological policing in Germany from the 1970s to today. Combining perspectives from intellectual history and legal theory, it explores the ideas and practices of Horst Herold, former President of the German Federal Criminal Police Agency. Herold’s thought was both deeply influenced by cybernetics, a form of techno-utopian thought developed during World War II as well as the basis on which technological policing was first put to the test in Germany. The article illustrates Herold’s hopes for a cybernetic transformation of police, law, and society. It locates Herold’s cybernetic legal theory within a broader context of shifting legal paradigms of German public law towards the so-called preventive state in the 1970s and 80s. Crucially, an anti-legal affect is revealed to lie at the center of Herold’s ideas. His concept of cybernetics ultimately serves to supplant the rule of law. In the concluding part, the article assesses Herold’s legacy and attempts to both critique it and point towards a productive way forward by invoking modern, second-order order cybernetics. The article argues—perhaps counterintuitively—that Herold’s ultimate failure was not adapting cybernetics but rather not staying with it all the way, supplanting its weaknesses, and drawing on its strengths.

Within the criminal justice system, there is always a balancing act between two conflicting tenets: incarcerating the prisoners as a preventive measure, on the one hand, and, on the other, aiming to rehabilitate them. Without a proper transition, it is possible that prisoners will reoffend upon release. German legislation allows corrections officers to grant relaxed terms of imprisonment to prisoners who have proved themselves suitable. However, on June 7, 2018, corrections officers were essentially deprived of this power when the Regional Court of Limburg convicted two corrections officers of negligent killing after a prisoner, to whom they had granted relaxed terms of imprisonment, killed someone during one of his periods of release. In the immediate wake of this controversial judgment, corrections officers throughout Germany were seemingly left with two options: either to remain conscientious and attempt to rehabilitate the prisoners with the underlying risk of being subject to prosecution themselves, or to ensure their own “safety”, thereby jeopardizing prisoners’ crime-free futures. This article provides an overview regarding negligently committed offenses under German law, analyzes what led the trial court to this radical decision, and assesses why the final appeal court overruled the Regional Court’s decision.

Criminal offenses committed by legal persons or associations of individuals can only be punished in Germany with a regulatory fine under the German Act on Regulatory Offenses (Gesetz über Ordnungswidrigkeiten; OWiG). As the current governing parties (2017–2021)—the CDU, the CSU and the SPD—did not deem this to be an appropriate response to corporate misconduct, the Act to Strengthen the Integrity in the Economy (Gesetz zur Stärkung der Integrität in der Wirtschaft) was set to introduce the Corporate Sanctions Act (Verbandssanktionengesetz; VerSanG), which would have provided a new framework for the punishment of unlawful corporate actions. This legislative project, however, collapsed in the summer of 2021 following years of work. After a brief introduction to the development of corporate criminal liability in Germany, this article outlines the current legal situation under the OWiG before presenting the development and the main contents of the Government Draft of the VerSanG. Subsequently, a more in-depth review of specific—particularly controversial—regulations is provided, which addresses and analyzes the criticism that has been voiced with regard to these provisions. Lastly, the failure of the draft bill, the prospective developments, and the continuing relevance of the Government Draft are considered.

The judgment rendered by the Court of Justice of the European Union (CJEU) on May 27, 2019, deemed Germany’s prosecution service (Staatsanwaltschaft) legally incompetent for the purpose of issuing European arrest warrants (EAW) due to its lack of institutional independence. As a consequence, the question of how the German criminal prosecution system differs from the approaches taken by other European countries issuing European arrest warrants arises and raises the question of whether the German prosecution service truly is insufficiently independent in this respect. Debates amongst legal scholars have ensued in the wake of the CJEU’s judgment—the Court not yet having proffered any solutions regarding the re-establishment of the institutional independence—and this article shall discuss the lack of independence and acquaint the reader with possible solutions.

On February 26, 2020, the German Federal Constitutional Court (BVerfG) declared—for the first time in its history—a criminal prohibitory law (strafrechtliche Verbotsnorm) from the German Criminal Code null and void.1 The provision in question—Section 217 of the German Criminal Code—dealt with the controversial issue of assisted suicide. This case study will briefly examine the previous regulation pertaining to assisted suicide in Germany under Section 217, before scrutinizing its subsequent unconstitutionality as a consequence of the BVerfG’s landmark decision. In order to do so, this article will explore the legal background of the decision, the fundamental rights which were held to have been infringed by Section 217, and propose potential ways of regulating assisted suicide in Germany in the future.

The German legal system and, in particular, German criminal procedure have been severely affected by the Corona Virus pandemic. The Konzentrationsmaxime, the maxim that the main hearing should be consolidated into as short a timeframe as possible in order to expedite proceedings, the Unmittelbarkeitsgrundsatz, the principle that witnesses must be present in person, and the Öffentlichkeitsgrundsatz, the principle that the oral proceedings in criminal litigation should be open to the public in order to guarantee transparency, have all been called into question. The requirement to consolidate the main hearing can no longer be guaranteed due to unavoidable interruptions in the trials in accordance with the newly established Section 10 of the Introductory Law to Germany’s Criminal Procedure Code (Einführungsgesetz zur Strafprozeßordnung; EGStPO) which aims to minimize the risk of infection. Wide-ranging curfews have been imposed so that the general public can no longer leave their homes to attend a court hearing as a spectator. The Beschleunigungsgrundsatz, the principle of expedited criminal proceedings, is being challenged by longer periods of pre-trial detention due to trials having to be suspended in the face of the pandemic. One further obstacle is the measures implemented in order to impede infections with the disease within the period of pre-trial detention whilst other hygiene measures, such as the requirement to wear a face mask in the courtroom, could well clash with the newly established ban on facial concealment (Verhüllungsverbot). In this article, the problems mentioned above are examined in more detail in order to provide an overview of the situation involving criminal proceedings in a Germany firmly in the grip of COVID-19. In addition, the situation reignites previous discussions on the further digitalization of criminal proceedings – this time as a solution for the ongoing threat of infection.