In December 2020, the EU institutions finally approved the new Rule of Law Conditionality Regulation after a controversial legislative process. The new Regulation allows the Commission and the Council to suspend EU funds in case of breaches to the rule of law that have negative effects on the EU budget and financial interests. This article analyses the new Regulation against the background of the rise of conditionality as a tool of EU governance. It argues, in contrast to some of the first analyses of the new Regulation, that the amendments adopted during the legislative process cannot simply be seen as a watered-down compromise, but were crucial to ensure the legality of the new instrument. At the same time, the EU’s growing reliance on conditionality continues to raise profound constitutional questions that still needs to be adequately addressed in the institutional and academic debate.

Amidst the first wave of the coronavirus pandemic, the German Federal Constitutional Court rendered a little-noticed, but potentially far-reaching decision regarding European integration. When it declared the law ratifying the Unitary Patent Court Agreement unconstitutional, it did so because it is a treaty “supplementing or being otherwise closely tied to the EU”, in other words, a satellite treaty, inter-se agreement, or more generally: an international law agreement furthering European integration outside the EU law framework. This commonly used integration technique is therefore going to be a lot more difficult in future whenever Germany is involved. At the same time, the court order gives all German citizens a far-reaching right to have laws ratifying such treaties checked before the Constitutional Court, which is a significant extension compared to its earlier case-law. In future cases of disagreement, EU Member States may have to find different ways to proceed than resorting to international law, such as using the enhanced cooperation mechanism.

In 2020, Germany’s Federal Constitutional Court made a groundbreaking decision on foreign surveillance by the Federal Intelligence Service, the Bundesnachrichtendienst (BND). The Court’s first central finding was that the protection of fundamental rights is not limited to German territory. In addition, the ruling declared unconstitutional the regulations governing the transfer of information to foreign intelligence services. The ruling will therefore also have consequences for the cooperation of intelligence services, making it relevant abroad as well. In the ruling, the Court focused primarily on the role of human rights and ruled that the BND must check whether its cooperation partners respect human rights. The German parliament was given the task of implementing the Court’s demands. The law adopted in response to the Court’s demands came into force at the start of 2022. This article analyzes the ruling and the new law, and addresses the question what concrete requirements must be placed on the BND’s cooperation with foreign intelligence services.

The number and diversity of the European Supervisory Authorities’ (ESAs) soft law acts continue to grow. The recent reform of the ESAs’ founding regulations added two new instruments to their toolbox, “questions & answers” (Q&A) and “no action letters,” both invented and already used by the ESAs in their supervisory practices. The reformed regulations continue to encourage the ESAs to pursue their tasks by developing new instruments and convergence tools. The article assesses the ESAs’ rulemaking and regulatory innovation from a broad governance perspective, asking what type of procedural controls and review mechanisms would best facilitate beneficial forms of regulatory innovation while also controlling its excesses. It is argued that the main shortcoming of the present regime is not the lack of adequate procedural controls so much as the incomplete system of legal remedies. Flexibility should be preserved, but more credible judicial controls are needed to check the ability of soft law to bypass legislative processes.

This paper addresses the specific challenges arising from the monetization of political speech on social media, and propose a normative argument to extend consumer disclosures to political speech. Political speech enjoys the highest degree of protection by national constitutions as well as supranational and international charters. Unlike commercial speech which usuallyenjoy less constitutional protection, political speech is the foundation of constitutional democracies. The blurring line between political and commercial speech introduces a new layer of complexity in tackling hidden political advertising. Indeed, political speech is likely to attract commercial speech inside a broader scope of protection with the result that potential limitations of this kind of speech would be required to pass a very strict test through the balance with other constitutional safeguards or legitimate interests according to the criteria of necessity, legitimacy and proportionality. This could also question the scope of other regulation designed to govern commercial speech like advertising. To this end, the paper compares regulatory and judicial interpretations adopted in Europe and the United States, and is structured as follows. In the first part, we explore the content monetization business models (including influencer marketing) used on social media, and we identify three types of influencer ‘personas’ who are prone to engage in political speech. The second part looks into the constitutional differences between commercial and political speech across the Atlantic. The third part provides the normative argument at the intersection between consumer law and freedom of expression, and the fourth part concludes.

This article discusses the troubled relationship between contemporary advertising technology (adtech) systems, in particular systems of real-time bidding (RTB, also known as programmatic advertising) underpinning much behavioral targeting on the web and through mobile applications. This article analyzes the extent to which practices of RTB are compatible with the requirements regarding a legal basis for processing, transparency, and security in European data protection law.

We first introduce the technologies at play through explaining and analyzing the systems deployed online today. Following that, we turn to the law. Rather than analyze RTB against every provision of the General Data Protection Regulation (GDPR), we consider RTB in the context of the GDPR’s requirement of a legal basis for processing and the GDPR’s transparency and security requirements. We show, first, that the GDPR requires prior consent of the internet user for RTB, as other legal bases are not appropriate. Second, we show that it is difficult—and perhaps impossible—for website publishers and RTB companies to meet the GDPR’s transparency requirements. Third, RTB incentivizes insecure data processing. We conclude that, in concept and in practice, RTB is structurally difficult to reconcile with European data protection law. Therefore, intervention by regulators is necessary.

The new European economic governance has made the creation or reform of independent fiscal institutions (IFIs) compulsory, in particular for Eurozone countries. While these institutions have been subject to extensive investigation by the economic literature, a constitutional analysis of their prospective and actual impact on national legal systems is lacking. In fact, depending on their design and powers, they could alter the ordinary inter-institutional dynamics on budgetary decisions. IFIs could redress the marginalization of parliaments in budgetary procedures in so far as they are able to offer reliable and independent information from the executive, and should mechanisms of “comply or explain” be put in place. By contrast, in the event an IFI operates within the executive branch and is not autonomous in the exercise of its mandate, parliamentary accountability could be further jeopardized. IFIs could also affect democratic rule-making over the budget, should their technocratic determinations be able to replace those of the budgetary authorities. Through a comparative constitutional analysis and based on selected case studies—France, Italy, Spain, and the Netherlands—the article aims to assess the constitutional impact of IFIs on parliaments and on the problem of information asymmetry on the budget.