[Editors’ Note: Prof. Brugger's article will appear in German Law Journal in two parts, the first in this month's issue and the second in Vol. 4, No. 1 (1 January 2003). The article originally appeared in Stocktaking in German Public Law 117 (Bullinger and Starck eds., 2002). It is republished here with the kind permission of NOMOS Verlag, Baden-Baden.]

In a recent article, Sobotka and Vermeersch chart the development of EU policy-making towards the Roma. Their analysis of EU documents and policy initiatives tells a convincing tale: Since 2007, Roma have shifted from being an external issue—connected to Enlargement conditionality—to being a high-priority on the EU's internal agenda, and from being the subjects of an approach focused on minority rights to one of social inclusion. This change in emphasis towards the Roma can be viewed in the light of a wider reorientation of the European Union, in which the primarily economic language of European integration is moderated by a shift towards viewing economic growth and social cohesion as mutually conditioning and sustaining. This is reflected in the 2020 Strategy in the language of “smart, sustainable and inclusive growth,” as well as in the notion of a “social market economy” and in the proliferation of social rights at the EU level. This reorientation has primarily been viewed to date through the lens of the increased prominence given to fundamental rights protection in the post-Lisbon Union, and the conflict that this creates with the Union's traditional fundamental freedoms. However, this shift is not exhausted by the greater emphasis on fundamental rights protection; rather, the commitment to inclusive growth has been interpreted by the Commission as requiring the integration of Roma into the economic and social orders of the Member States.

This paper discusses the role that EU competition law can play in regulating the “new self-employed”—precarious workers formally considered to be micro-enterprises. Specific attention is paid to the newest type of “new self-employed,” namely those engaged via matchmaking platforms arranging for work to be contracted on demand. Despite their unequal bargaining position, self-employed individuals are barred from collective bargaining due to the EU competition rules. This Article argues that the problem will not be solved by modifying the respective tests for “worker” and “undertaking” in EU law, or by introducing exceptions under Article 101 TFEU. This Article then adopts a regulatory approach to canvass the different legal instruments available to address exploitation concerns in the context of the Uber economy, and discusses the role that EU competition law can play in such a regime.

The concept of sensitive data has been a mainstay of data protection for a number of decades. The concept itself is used to denote several categories of data for which processing is deemed to pose a higher risk for data subjects than other forms of data. Such risks are often perceived in terms of an elevated probability of discrimination, or related harms, to vulnerable groups in society. As a result, data protection frameworks have traditionally foreseen a higher burden for the processing of sensitive data than other forms of data. The sui generis protection of sensitive data—stronger than the protection of non-sensitive personal data—can also seemingly be a necessity from a fundamental rights-based perspective, as indicated by human rights jurisprudence. This Article seeks to analyze the continued relevance of sensitive data in both contemporary and potential future contexts. Such an exercise is important for two main reasons. First, the legal regime responsible for the regulation of the use of personal data has evolved considerably since the concept of sensitive data was first used. This has been exemplified by the creation of the EU’s General Data Protection Regulation (GDPR) in Europe. It has introduced a number of requirements relating to sensitive data that are likely to represent added burdens for controllers who want to process personal data. Second, the very nature of personal data is changing. Increases in computing power, more complex algorithms, and the availability of ever more potentially complimentary data online mean that more and more data can be considered of a sensitive nature. This creates various risks going forward, including an inflation effect whereby the concept loses its value, as well as the possibility that data controllers may increasingly seek to circumvent compliance with the requirements placed upon the use of sensitive data. This Article analyzes how such developments are likely to influence the concept of sensitive data and, in particular, its ability to protect vulnerable groups from harm. The authors propose a possible interpretative solution: A hybrid approach where a purpose-based definition acquires a bigger role in deciding whether data is sensitive, combined with a context-based ‘backstop’ based on reasonable foreseeability.

“If there be any among us who wish to dissolve this union, or to change its republican form, let them stand undisturbed, as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.” The framers of the German Grundgesetz (Basic Law or Constitution) of 1949 had lost Thomas Jefferson's optimistic faith that the self-healing powers of reason would render a democratic polity immune to totalitarian temptation. The Weimar Republic had proved defenceless against the rise of a totalitarian movement, which availed itself of the democratic process as a Trojan horse in its effort to establish a brutal dictatorship.

Smoking kills. It is also very costly, which is why many governments try to change the habits of their citizens, including by changing the packaging of the products they buy. Of course, tobacco firms are pushing against such laws. They see their rights, in particular, rights to intellectual property, violated. They argue that such legislative changes take away the essence of their hard-earned IP rights and should not be permissible. They point out that the CJEU is allegedly redefining the “essence” of fundamental rights and its function in the system of limitations and developing a set of core inviolable rights.

How justified are these arguments? The absolute theory of essence says that the essence of rights cannot be interfered with or taken away, including by the legislator. The relative theory of essence, on the other hand, claims that interference with essence is just a more serious interference which is still subject to the typical proportionality analysis. Therefore, the adoption of either of these two theories has profound consequences. What might constitute the essence of intellectual property rights? When are legislators touching upon it? Is the CJEU really advancing a notion of essence that can prevent legislative changes, or at least make them very difficult? The answer to all these questions depends on our understanding of what constitutes the “essence” of intellectual property rights, and what consequences this notion has under Article 17(2) of the EU Charter of Fundamental Rights.

Lawyers are the engineers of the social sciences, and their doctors. Neither is good for reputation in interdisciplinary exchange. Social scientists often show contempt for a discipline that seems too close to reality to meet hard methodological standards, and too much concerned by pathologies that are beyond the reach of their methodological tools. As with many prejudices, there is a grain of truth in this one. But not all law is about making decisions and judgements in the face of a reality that is at best partly understood. The legal discipline has its own methodological standards. For the sake of internal clarity, it aims at parsimony. But modelling is not the legal path to methodological rigor. The legal equivalent boils down to one simple question: who asks whom for what? The law splits abstract problems into a series of cases. It reaches parsimony via the selection and sequence of cases. These hypothetical cases are like histological cuts through the social tissue. The legal discipline starts cutting at cases for which existing legal tools seem particularly wellsuited. If these cases are understood, the legal discipline then starts again with the more demanding ones. It is hoped that the sequence of cases leads to an understanding of situations that seemed inaccessible at the outset.

If you want to go in pilgrimage to the place where your constitution was born, you should go to the mountains were the resistance fighters were killed, to the prisons where they were jailed, to the fields where they were hanged. Wherever an Italian died trying to win back the freedom and dignity of our nation, there you should go, young Italians, because it was there that your constitution was born.

– Piero Calamandrei1

Home state mechanisms designed to address harms arising from overseas resource extraction have recently been considered in Canada. This paper will examine whether such mechanisms could be viewed as an example of transnational private regulatory governance, and the implications of doing so for our understanding of both public international law and transnational private regulatory governance. After first briefly unpacking the idea of transnational private regulatory governance, the paper will compare common understandings of the scope of home state jurisdiction to regulate transnational corporations under international human rights and international environmental law. Recent developments in Canadian law and policy culminating in the creation of a Corporate Social Responsibility (CSR) Counsellor for the international operations of the Canadian extractive industry will then be described. This Canadian experience will serve an example of home state-based transnational private regulatory governance.

Opinion 2/13 is a sweeping blow. After four years of negotiations, it took the Court of Justice of the European Union (CJEU or the Court) only a few paragraphs to pick to pieces the draft accession agreement on the EU's accession to the European Convention on Human Rights (ECHR), finding a conflict with the EU Treaties on ten grounds. The Court's message is clear: Accession, under the terms of the draft agreement, would risk undermining the very essence of the EU's constitutional system.

The boundaries of European integration and especially the relationship between European and German Constitutional Law have occupied the German Constitutional Court—the Bundesverfassungsgericht in Karlsruhe—time and again since its first Solange I Judgment of 1974. Practically all of these decisions—Solange II, Maastricht, Lisbon, and Honeywell to name just a few—have had a major impact not only on the national, but also on the European discourse regarding the future of the European Union. 14 January 2014 now marks the date of another “historic” decision in this sense, which, unsurprisingly, has already led to major discussions not only in Germany, but all over Europe. For the first time ever the Constitutional Court has initiated a referral to the European Court of Justice asking questions about the conformity of some of the highly disputed measures of the ECB taken to fight the crisis with Primary European Law. The reluctance of the Constitutional Court to comply with its duties under the TFEU and to accept the role of the ECJ as the final interpreter of European Law had been criticized for many years, not only after the Lisbon Decision of 2009. However, the Constitutional Court reacted to these critics in its Honeywell Decision of 2010 and, so it seemed, started to redefine its understanding of its relationship with the European judicial system. This redefining process has now found its temporary endpoint with this first referral, which therefore truly stands for a new era in the relationship between the Constitutional Court and the ECJ within the “European Network of Constitutional Courts.”

This contribution explores paradoxes of ultra vires review with specific regard to the PSPP decision of the German Federal Constitutional Court in the light of the decision’s initial reception. While some of these paradoxes are inherent in the very nature of ultra vires review, others are specific to the PSPP judgment. They relate to the underlying doctrinal and theoretical premises, to key concepts such as proportionality or the scope of judicial review, to the overall context in which the decision is embedded, and even to the community which is addressed and affected by the decision. It is the sad irony that the Federal Constitutional Court, while accusing others of manifestly exceeding their competences, does not sufficiently adhere to its own standards and increasingly risks overstretching the boundaries of its mandate under the Basic Law.

“Those with a taste for fairy tales seem to have thought that in some Aladdin's cave there is hidden the Community law in its splendour and that on a judge's appointment there descends on him knowledge of the magic words Open Sesame. Bad decisions are given when the judge has muddled the password and the wrong door opens. But we do not believe in fairy tales any more.”

Preventive detention is, together with life imprisonment, the harshest sanction in German criminal law. In the form of a “measure for improvement and security” of indeterminate duration, preventive detention potentially may be enforced until the death of the offender. Such a measure may be imposed together with a term of imprisonment on offenders regarded as dangerous and implemented after the fixed term of imprisonment has been served. The history of this provision goes back to a Nazi law against habitual criminals that was enacted in 1933 and retained after the end of the Second World War. In the context of the debate about the new criminal laws in the 1960s preventive detention was severely criticised. The result was that in 1969 both the formal and material requirements for the imposition of preventive detention were made more restrictive. This led, in turn, to it being imposed far less frequently. While in the 1960s more than 200 people were sentenced to preventive detention annually, by the early 1990s this figure was fewer than 40 a year. There was an equivalent reduction of the number of people in prison on preventive detention on a given day, from around 1500 at the beginning of the 1960s to fewer than 200 in the 1980s, that is, about 0.3 per cent of the total prison population.

At least in some subject-matter domains—most notably, social and economic rights— weak-form constitutional review may have become the predominant form of constitutional review in practice. This essay describes the obvious connections between weak-form review and political constitutionalism: Weak-form review allows the courts to bring to legislatures' attention constitutional difficulties that may have been overlooked in the process of enactment. This may occur because of the burdens of inertia and coalition-building, as identified by Rosalind Dixon, or because of unanticipatable difficulties of application in individual cases, the sort of difficulties that are central to Alon Harel's account of constitutional review as justified by a right to a hearing. Once legislatures have been so notified, they can address—or deliberatively refuse to address—the difficulties the courts have identified. Political constitutionalism provides an account of how they do so. This essay then discusses some of the political conditions that must be in place for political constitutionalism to be normatively attractive, relative to judicial constitutionalism. It concludes with some speculations about the utility of weak-form review in dealing with matters at the core of first-generation rights, such as seditious speech, after describing its utility in dealing with more “modern” problems associated with first-generation rights, such as hate speech and sexually explicit expression.

Corporate Social Responsibility (CSR) has today become the rhetoric of every Business Enterprise, especially those engaged in Natural Resource Development. This is in recognition of its intrinsic value to the business bottom line and its ability to stave off social and reputation risks that may not only affect a project's rate of return, but also subject to questioning, its ‘social licence’ to operate. But the ‘free rider’, ‘green wash’ and ‘blue wash’ problems that result from self-regulation inherent in the practical implementation of CSR initiatives, has led to questions as to whether self regulation as exemplified in the ‘soft law’ approach to CSR and transparency, is really the answer to the problem of using CSR and Transparency initiatives, to ensure that Mineral Resource Development benefits all parties on the Mineral Development Triangle. Is government regulation a better option or should industry driven self-regulation be allowed to continue? This paper reviews the above issues using examples from a few countries to show the way forward.

This Article analyses, through the lens of comparative law, the Oliari and others v. Italy judgment, which was issued by the European Court of Human Rights (ECtHR) in July 2015. The Oliari case is important for being the first judgment in which the ECtHR established the granting of legal “recognition and protection” to same-sex couples as a positive obligation for the Member States of the Council of Europe on the basis of Article 8 of the European Convention on Human Rights. In order to understand the role of judicial bodies in the progressive protection of homosexual rights, this Article combines an analysis of European case law with the national perspective. As it concerns the supranational facet, the authors illustrate Oliari's reasoning and situate the case in the jurisprudence of the ECtHR. Elements of both continuity and innovation emerge from the analysis, as well as a relevant dimension of judicial dialogue supporting the incremental recognition of gay rights in Europe. As it concerns the national facet, this specific case was initially dealt with at the domestic level and was the object of judgment 138/2010 by the Italian Constitutional Court. The judgment is critically put into perspective through the examination of the jurisprudence of other European Constitutional Courts (France, Portugal and Spain) that were called on to decide similar cases in the same period. Therefore, the Article offers a comparative analysis of the Oliari judgment clarifying its relevance and speculating on the potential value of this case for the future recognition of the right to a “gay” family life in Europe.

Almost 60 years after the surviving Nazi-leaders were tried in the first ever international criminal tribunal for mass atrocities during World War II in Nuremberg, criminal responsibility for genocide, crimes against humanity, and war crimes is perceived of as somewhat normal. Even if it is not yet an everyday event that human rights abusers are tried on an international level, the reality of the possibility of such a trial is present in the minds of the attentive public. This change was achieved over the last ten years. The establishing of the Yugoslavia-tribunal in 1993 was the turning point. Since then a number of both national and international trials held against human rights criminals has given the topic high priority. Finally the International Criminal Court (ICC) was founded and after a comparatively short time actually established and put in a position to operate. Sierra Leone relies on criminal prosecution in order to rebuild its society after a distracted and bloody civil war and a trial against Saddam Hussein seems a necessity. Many expectations are connected to criminal law and the working of the ICC. The dream of a world-wide justice, i.e. to attribute “just desert” to the offenders and to do justice to the victims, seems to have become reality. At the same time the establishing of an international criminal court is understood as a signal that will deter future offenders from committing human rights atrocities. The paper of Alexandra Kemmerer gives proof of how optimistically the EU promotes the idea of international criminal justice.

This paper deals with the role of judicial decisions in international adjudication. It is impossible to fail to notice the abundance of prior cases invoked in decisions of international tribunals and that, in order to find out what the law actually is, reference to previous cases is all but inevitable in practice. In some areas of international law, judicial or arbitral decisions have even been said to be the centre of progressive development. Nevertheless, there is an undeniable and deeply-rooted professional trepidation in many parts of the world regarding this enduring phenomenon. Even absent a fully articulated theory of adjudication or legal reasoning, the very idea of “judicial lawmaking” tends to arouse instinctive suspicion, especially when coupled with a denial of any restraining force of prior cases. Be that as it may, observations to the extent that judicial decisions are not veritable sources of international law or only binding between the parties in a particular dispute are only the beginning, and far from the end, of the present inquiry. Several interrelated and intricate questions need to be disentangled and dealt with in order to get a better grasp on what is commonly, and often rather unhelpfully, lumped together loosely under the vague label of “judicial precedent.” The paper is hence partly descriptive and partly revisionary. I do not however intend to rehash general criticisms or defences of precedent. Instead, I aim to present precedent as a general and omnipresent jurisprudential concept that enables and constrains judicial decision-making even in seemingly ordinary cases and to then showcase the specificities of one particular legal system in this respect, namely public international law. Hopefully this provides some of the methodological groundwork for other questions central to the present project, not least concerning the legitimacy of judicial lawmaking.

On its website “The EU Single Market – Fewer barriers, more opportunities”, the European Commission lists the judgments by the European Court of Justice [ECJ] dealing with the free movement of capital under Art 56 EC Treaty (ex 73b). The latest update of this list is the Court's Volkswagen decision of 23 October 2007 (Case C-112/2005), which the Commission had launched against the Federal Republic of Germany on 4 March 2005. This suit, brought under Art. 226 EC Treaty, had been long coming. That the Volkswagen statute, which effectively gave the Federal government and the Land (federal state) of Niedersachsen (Lower Saxony) a veto against majority acquisition while only holding a fifth of all shares, would come into the Commission's purview, could hardly surprise, given the Commission's activity with regard to such ‘golden share’ provisions under Portuguese, French, Belgian and English company laws. The most recent decision of the ECJ in the case of Volkswagen is of interest in more than one respect. Not only does it constitute a continuation and further accentuation of a line of argument that the Court has been unfolding over past few years with regard to the Member State provisions in conflict with the EC's guarantee of the free movement of capital as laid down in Art. 56 EC.