Over the summer of 2012, the pending verdict of the German Federal Constitutional Court (FCC) was a topic of much speculation not only in Germany and in the European Union (EU), but also on the international level. Christine Lagarde, the managing director of the International Monetary Fund (IMF) was quoted as threatening to leave a meeting, were she to hear again “Bundesverfassungsgericht.” That decisions of a German non-majoritarian institution have such transnational repercussions while being guided by German laws and national considerations is nothing new. The Bundesbank's D-Mark rule was comparable and effectively pushed the introduction of the euro along. But also previous landmark rulings of the FCC on European integration raised cross-border attention, given that the Constitutional Court has the final say on German politics, and the biggest member state and economy of the EU can hardly be ignored. Moreover, being one of the most powerful constitutional courts in Europe, and certainly the one whose judgments receive most attention, rulings of the FCC are not only often cited but may also serve as a role model for other constitutional courts. Protest coming from this angle may therefore multiply.

Sometimes less is more. Hence, it is not necessarily bad news if a judgment on a matter of fundamental public interest does not meet public expectations. And it certainly was not bad news that the judgment of the German Federal Constitutional Court of 12 September 2012 on the European Stability Mechanism (ESM) and the Fiscal Treaty did not meet the exaggerated public expectations that had been fuelled by an unprecedented media-hype.

As in its first leading Euro-Case (“Greece Bailout”) one year ago, the Second Senate of the Federal Constitutional Court (FCC) once again decided on the fate of Europe's bailout. The Court's ESM ruling on September 12, 2012, clears the path for the next steps in a fast-moving “rescue” situation. This time for the ratification of three international agreements: The insertion of Article 136(3) TFEU, the new Treaty establishing the European Stability Mechanism (ESM Treaty), and the new Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (Fiscal Compact).

The relationship between EU law and German constitutional law, and the respective dialogue between the ECJ and the German Federal Constitutional Court (FCC), have considerably shaped the EU integration process by creating fields of tension and demarcating possible legal boundaries. The decisions of the German Federal Constitutional Court and the European Court of Justice concerning the European Stability Mechanism are only the most recent examples of this phenomenon. These developments have, of course, spilled over to other EU Member States. The German constitutional bases of, and limits to, EU integration—especially as articulated in the relevant decisions of the German Federal Constitutional Court—have therefore become a field of particular interest for EU and public lawyers. This article gives an up-to-date overview of relevant constitutional rules, court decisions, and the academic debate in Germany. It does so by systematically distinguishing between an analysis of the German constitutional foundations of EU integration (section B.), constitutional limits to the further transfer of powers to the EU through amendments of EU primary law (section C.I.), and the constitutional confines for the legal effects of EU secondary law in Germany (section C.II.).

On 27 November 2012, the European Court of Justice (“the Court”) rendered its judgment in the Pringle case. Sitting as a plenum, which is extremely rare, the Court did what had been expected. Just as the Bundesverfassungsgericht (German Federal Constitutional Court or BVerfG) had done two months earlier, it gave the go-ahead for the euro area's permanent emergency instrument, the European Stability Mechanism (“ESM”). With this decision, the possibility of granting assistance to financially distressed euro area Member States has now been secured for the future.

The reference from the Irish Supreme Court seeking a preliminary ruling in the Pringle case concerns the compatibility of the Treaty establishing the European Stability Mechanism (hereinafter ESM Treaty or ESMT) with European Union (EU) law. The Irish Supreme Court was concerned with the legal significance of Council Decision 2011/199, which amended the Treaty on the Functioning of the European Union (TFEU) by inserting a third paragraph in Art 136 TFEU. The new Art 136(3) provides that the Member States whose currency is the euro, may establish a mechanism such as the European Stability Mechanism (ESM) so long as that mechanism is only activated when indispensable to safeguarding the stability of the euro area as a whole, and only if the financial assistance is made subject to strict conditionality. But, because Decision 2011/199 has not yet been ratified by all Member States, the TFEU has not yet been amended. The ESMT nevertheless entered into force at the end of September 2012, and the ESMT commenced its operations in December 2012.

This paper makes the claim that the legal framework governing the European Stability Mechanism (ESM) is contradictory, conceptually incoherent and may be characterized as a circumvention of Union law. It is further claimed that such circumvention, and the resulting establishment of a significant permanent institution outside and beyond the scope of the Union legal order, represents a challenge to European democracy and to the principle of respect for the rule of law.

In light of the persisting economic crisis, momentum has been building in the European Union to embark, once again, on a path towards a more differentiated integration. The calls in favor of the so-called two-speed Europe have sounded increasingly loud and have come from diverse, but highly influential corners of European socio-political life. Against this backdrop, and with an eye to the historical experience with differentiated integration in the EU, this article examines the following: Just how plausible the emergence of a more differentiated Union actually is at this time; if plausible, what form such differentiated Union could take; and whether this development is normatively attractive or not.

To shape a legitimate electoral system is a tremendous challenge for any parliamentary body. It cannot evade the responsibility of enacting the requisite statutory rules since no other State organ has the authority to make determinations which are substantially of a constitutional character. How, and under what conditions, citizens choose their representatives pertains to the key issues in a democratic system. But it is a truism to state that a parliament is not a homogeneous body; it is normally composed of different groups with highly divergent interests. Groups representing large political parties tend to favor a majoritarian electoral system, following with greater or slighter variations the British model of first past the post where the highest number of ballots in a given constituency determines the winner of the seat in issue, even though the candidate may have obtained only a relative plurality. Smaller parties, on the other hand, put their preferences on proportional representation, which ensures them a share of the seats corresponding to their share of the vote. To their regret, parties supported only by a low fraction of the electorate cannot, which is self-evident, impose their preferred option, having to wait for pressure to build up in the general public to promote their concerns. Thus, parliaments are neither neutral nor objective when they make determinations in electoral matters.

This Article focuses on the Ziebell judgment, in which the European Court of Justice rejected the analogous application of the protection against expulsion for Union citizens to Turkish citizens covered by the Association Agreement. The judgment is placed in the context of the opinion of the Advocate General, the pre-Ziebell judgments of the Court, and judgments of German courts regarding the expulsion of Turkish citizens. On the one hand, against the background of previous case-law of the Court, the judgment might be seen as a setback. On the other hand, the Court's reference to the Long-Term Residents Directive also provides for new interpretative possibilities. Next to the applicability of the directive and the advantages and disadvantages for Turkish nationals triggered by this shift, the interpretative possibilities are discussed in light of fundamental rights and the stand-still obligation anchored in Association Council Decision 1/80.

The U.S. & German Bench and Bar Gathering, “A New Bridge Across the Atlantic,” held in Washington, DC, in May 2012, was aptly timed to discuss the developments in German and American patent law. The Federal Circuit Bar Association and the Patentanwaltskammer (German Patent Lawyers Association) brought distinguished judges and attorneys from their respective countries to discuss the current state of the two patent systems. This involved consideration of where the two systems might be converging and why the two countries have had dissimilar litigation patterns. Particularly with respect to the latter of these inquiries, much of the debate throughout the conference focused on the differences in litigation discovery and procedural rules. The conference highlighted the fact that, at the most fundamental level, these differences are a product of differing perceptions of how justice should be administered. A brief overview comparing patent litigation in Germany and the United States will help frame this report.

Regulation EC No. 1007/2009 of the European Parliament and of the Council of 16 September 2009 banned the placement of seal products in the EU market. The measure has been very controversial, triggering a strong reaction, both from neighboring exporting States, in particular Canada and Norway, and from indigenous people living in the Arctic region. Seal hunting represents a traditional practice carried out for the purpose of personal consumption of seal meat, as well as for commercial trade of related by-products by the indigenous communities (mainly Inuit) living in the Northern Pole.

We are living in a world in which the moral legitimacy of cultures, religions, ideologies, and the practices of states, international organizations, and even corporations is being measured against human rights norms. The moral significance of and practical respect for human rights has grown so much that human rights have been described as a global religion, and a new standard for civilization. International trade, a popular and much debated issue of our time, is one of those phenomena that is currently being measured against the standards of human rights. Leading experts remain divided about whether global trade is good or bad for human rights. There are those who are utterly convinced that the world trade regime has a mutual basis with human rights and see potential in the growth of one as a positive sign for the other. There are also those who, on the other hand, are equally convinced that human rights and international trade regimes are in a relationship of enmity.