In this paper, I put forward four theses and one coda. The theses can be summarized as follows:

The paper deals with the relationship of different types of populism with authoritarianism and constitutionalism. In the first part, I try to define various approaches—Left and Right-Wing, “good” or “bad”—to populism, especially from the point of view of whether they aim at changing the liberal democratic constitutional system to an authoritarian one. The following part discusses the rhetoric of authoritarian populists, which makes this type of populism distinct from non-populist authoritarians. The paper also explores the question of whom to blame for the success of authoritarian populisms, and the final part investigates, whether the use of legal tools by an authoritarian populist to dismantle liberal constitutional democracies means that we can speak about a special populist constitutionalism. While the paper tries to find out the joint characteristics of authoritarian populism, it heavily relies on the Hungarian experiences as a kind of model approach in East-Central Europe and maybe even beyond.

This Article argues that, as far as Hungary and Poland are concerned, the use of term “illiberal constitutionalism” is justified. It also claims that, without denying that other states could also be considered illiberal democracies, Hungary and Poland display unique and distinctive features. These features include populist politics, which lead to the relativization of the rule of law and democracy principles, and human rights protection, which captured the constitution and constitutionalism by constitutionalizing populist nationalism, constitutional identity, and created new patrionalism and clientelism. All these features are supported by the ideological indoctrination of political constitutionalism. In the course of this process, formal and informal constitutional amendments are used, and a formal sense of constitutional democracy is maintained. Overturning these illiberal democracies by constitutional and legal means, at this time, seems doubtful, if not impossible.

Ten years have elapsed since the first Tobacco Advertising judgment, in which the Court for the first time concluded that the EU legislature had stepped beyond the limits of its competence to harmonize national laws which is granted by the Treaty. However, those subsequently seeking annulment of measures of harmonization have almost all been disappointed. This paper surveys the accumulated case law and finds that the “limits” of EU legislative competence, though of the highest constitutional significance in principle, are in practice imprecisely defined by the Treaty itself with the consequence that the legislative institutions enjoy wide discretion. The pattern has become circular: the Court presents a formula which defines the proper scope of harmonization and which sets out the control exercised by the principles of proportionality and subsidiarity, the EU legislature duly adopts the approved but reliably vague vocabulary and, provided the drafting is well-chosen, the Court has no plausible basis on which to set aside the legislative act. Case law dealing with the limits of EU competence has been converted into no more than a “drafting guide.” The paper shows how many of these deficiencies have been maintained uncritically after the reforms made by the Lisbon Treaty, even though a major part of the reform agenda initiated by the Laeken Declaration was inspired by “competence sensitivity.” Lisbon has instead put most of its reforming faith in a new recruit to competence monitoring - the national parliaments of the Member States. These new arrangements are poorly shaped at the level of detail, but the paper concludes with a largely positive assessment of the intention behind them. In particular they reveal a proper insistence on the need to supplement judicial control, which has become largely ineffective, with fresher political sensitivity to the perils of over-hasty centralization.

In 1931 Carl Schmitt published an article titled “the turn to the total state.” The total state that Schmitt describes is not yet a totalitarian state. Germany is still a liberal democracy and the Weimar Constitution is still the supreme law of the land. But the total state Schmitt describes is a state in which the traditional lines between the sphere in which the private law society governs itself and the sphere of state intervention, or the public domain, have been undermined. According to Schmitt, the pluralistic forces of civil society have captured the state and made it an instrument to serve their purposes. Everything is up for grabs politically. It is a state of political mobilization and deep ideological conflict, reflected in the plurality of deeply divided political parties in parliament. It is possible to distinguish between three features, which together illustrate the total prevalence of politics over law underlying “the turn to the total state.”

In response to the many facets of corruption, many scholars have produced interdisciplinary research from both the theoretical and empirical perspective. This paper provides a comprehensive state-of-the-art survey of existing literature on corruption, utilizing these interdisciplinary insights. Specifically, we shed light on corruption research including insights from, among others, the fields of economics, psychology, and criminology. Our systematic discussion of the antecedents and effects of corruption at the micro, meso, and macro level allows us to capture the big picture of not only what drives corrupt behavior, but also its substantial ramifications.

Judicial independence appears on most laundry lists of all bodies or institutions engaged with the rule of law. It is considered an unqualified public good. As a result, all major players engaged in legal reform and building a rule of law have diverted significant resources to this issue. For instance, the United Nations created the office of Special Rapporteur on the Independence of Judges and Lawyers in 1994. The World Bank has been investing heavily in judicial reforms in Latin America and Asia. In Europe, the Council of Europe has been pushing for judicial independence and judicial reform throughout the continent. Additionally, the European Union included judicial independence among its core requirements for the accession countries. Both organizations, the European Union and the Council of Europe, then jointly encouraged legal and judicial reforms in Central and Eastern Europe (CEE). A number of non-governmental organizations have likewise paid considerable attention to this issue.

In both the United States and Germany constitutional lawyers, politicians, and the attentive public speak of “dual federalism.” In the United States this means that the federal government and the states have separate political and administrative responsibilities and their own sources of revenues. In Germany, in contrast, dual federalism means that the federal government, i.e., the executive and legislative branches, are responsible for most legislation, and that the Länder (states; singular, Land) generally administer the laws (in large part through their local governments) on their own responsibility. In both federal systems “dual federalism” has been undermined if not replaced by “cooperative federalism,” generally associated with the New Deal era in the United States and the Finance Reform of 1969 in Germany. In the meantime “intergovernmental relations” has more or less replaced the concept of “cooperative federalism” in the United States, while Politikverflechtung (political/policy interconnection and coordination) is perhaps the more commonly used term in Germany today. In both cases the new terms reflect an interrelationship among federal, regional, and local levels that goes beyond mere cooperation.

The European Convention of Human Rights (ECHR) should be an instrument of development and improvement rather than an “end game” treaty which froze the state of affairs that existed 60 years ago. At the same time, evolutive interpretation should not be tantamount to arbitrary interpretation. This paper seeks to explain how the European Court of Human Rights (“ECtHR”) strikes a balance between development and stability.

In announcing the decision of the Bundesverfassungsgericht (BVerfG - Federal Constitutional Court) on the constitutionality of the Lisbon Treaty, the Presiding Justice of the Second Senate summed up the judgment by proclaiming: “Das Grundgesetz sagt ‘Ja' zum Vertrag von Lissabon.”

The Court of Justice of the European Union has arrived! Gone are the days of hagiography, when in the eyes of the academy and informed observers the Court could do no wrong. The pendulum has finally swung the other way. The judicial darling, if there is one today, is Strasbourg, not Luxembourg. Not hours had passed before the Court's 258-paragraph long Opinion 2/13 on the Draft Agreement on EU Accession to the European Convention on Human Rights was condemned as “exceptionally poor.” Critical voices have mounted steadily ever since, leading to nothing short of widespread “outrage.”

This Article, which takes into account developments up until summer 2017, evaluates the early days of regulatory engagement with blockchain technology. My analysis unfolds in three parts. First, I provide a cursory overview of the technology itself to highlight considerable uncertainties concerning its future. Regulators asked to engage with distributed ledgers are thus compelled to regulate the unknown. Second, I will introduce a typology of regulatory strategies adopted to date and highlight their respective advantages and shortcomings. Third, I will outline a number of guiding principles regulators should follow in respect of blockchain technology. I will make the argument that despite the technology's uncertain future, early regulatory engagement is warranted as a young technology is a malleable technology. As technology develops, law has to adapt. As a consequence, I put forward a number of regulatory techniques, including a process of polycentric co-regulation that relies on the regulatory potential of (blockchain) software and the adoption of a so-called “28th regime” at the EU level which may help navigate the uncertainties of blockchain development and regulation.

Although not explicitly regulated by the EU treaties, EU agencies not only exist but also have increased in number and power. In addition, while EU agencies may exercise very similar functions to those of the Commission, Articles 290 and 291 of the Treaty on the Functioning of the European Union (TFEU) do not list agencies among the possible authors of non-legislative acts. The existing situation raises the questions of the extent to which the ongoing agencification in the EU is legitimate and what its limits are. This article addresses these questions in the light of the old and new Treaties and case law, including the just released ESMA-shortselling case. It shows that while the Lisbon Treaty made a few steps forward on the road of legitimizing EU agencies and delegating important powers to them, the scope of powers that EU agencies can have remains unclear. In this respect, the European Court of Justice's lenient approach in the ESMA-shortselling case is unfortunate because it neither clarifies the issue nor pushes the Union Legislator and the Member States to address it. Consequently, in the absence of clear limits, further agencification is likely to persist at the risk of increasing the democratic legitimacy deficit and remaining accountability gaps.

The two reference cases considered here concern the compatibility with EU law of industrial disputes and collective actions against EU companies exercising their free movement rights. The Swedish case, under a reference of the Arbetsdomstolen (Swedish Labour Court) of 15 September 2005 in litigation between Laval un Partneri Ltd (hereafter ‘Laval’) v. Svenska Byggnadsarbetareförbundet, Avdelning 1 of the Svenska Byggnadsarbetareförbundet, Svenska Elektrikerförbundet (in the material that follows, ‘Bygnadds’) and others concerns the question of whether an industrial action of Swedish labour unions against a Latvian company that wanted to perform a work contract under Swedish procurement rules through the use of posted Latvian workers falls under the ‘freedom to provide service’ rules of Article 49 EC and, if this is the case, whether this action can be justified either under the posted workers directive, 96/71/EEC, or under a specific Swedish law exempting labour unions from liability in taking action against foreign-based companies (the so-called Lex Britannia; see sections E.I and H.II below).

Liberal constitutionalism is under attack from a new breed of autocrats broadly classified as populist. These populists understand the weaknesses of constitutional liberalism and attack their opponents with criticisms that take advantage of internal weaknesses of the theory. But a closer analysis of theoretical framework used by populists to substitute for constitutional liberalism reveals that they are not really committed to populism in any serious sense. Instead, they have abandoned liberalism in the quest for raw power. Focusing on Viktor Orbán of Hungary and his chief ideologist András Lánczi, this article shows how their public critique of liberalism has attempted to wrong-foot their critics and how their recipe for gaining and wielding political power is only populist to the extent that these leaders are determined to (and often succeed in) winning elections. By peeling back the cover of populist ideology to look at the theories of legitimation under which they rule, however, we can see that the new breed of autocrats aims at primarily constitutional deconstruction through the concentration of political power in one leader. This sort of challenge to liberal constitutionalism is easily countered.

“We seem to be caught in an ‘impossible interregnum': After the end of classical national sovereignty, before the beginning of a postnational sovereignty.”

Populism is Janus-faced; simultaneously facing different directions. There is not a single form of populism, but rather a variety of different forms, each with profoundly different political consequences. Despite the current hegemony of authoritarian populism, a much different sort of populism is also possible: Democratic and anti-establishment populism, which combines elements of liberal and democratic convictions. Without understanding the political economy of the populist revolt, it is difficult to understand the true roots of populism, and consequently, to devise an appropriate democratic alternative to populism.