Given the debate at the seventy-second Conference of the Association of German Jurists (Deutscher Juristentag) in September 2018 on whether German sentencing needs reform, this Article will explore this very question in greater detail. In this regard, this Article will present various empirical studies in order to demonstrate that notable inconsistencies in German sentencing practice exist. This Article will then point out that broad statutory sentencing ranges, along with fairly vague sentencing guidance, are among the main causes of these disparities. Subsequently, this Article will examine several mechanisms that selected foreign jurisdictions—namely the U.S., the U.K., and Australia—have put in place in order to enhance consistency in their sentencing practices. Three mechanisms of sentencing guidance will be distinguished here: First, formal sentencing guidelines; second, guideline judgments; and third, sentencing advisory bodies as they operate in some Australian states. This Article will compare these mechanisms and assess their merits and drawbacks. Based on this comparative study, this Article will look at how to improve consistency in German sentencing practice. In this respect, this Article will present three steps that German criminal law reform should follow, including a better sentencing framework, the strategic gathering of sentencing data, and the implementation of a flexible sentencing guidelines regime.

In a long-awaited judgment, the German Constitutional Court in 2013 upheld the constitutionality of the 2009 German law authorizing the negotiation of criminal judgments between the court and the parties. The German version of plea bargaining, which had grown from the grassroots of criminal law practice, was later accepted by the Federal Court of Justice and written into § 257c of the Code of Criminal Procedure (StPO) in 2009. In light of these developments, a verdict of unconstitutionality by the Federal Constitutional Court was the final hope of those who opposed the replacement of the search for truth with a system of negotiation. The Court deflated these hopes, but at the same time refrained from giving an unconditional stamp of approval to the burgeoning practice of negotiating judgments. The Court attempted to rein in that practice by giving the statute a literal reading, emphasizing the limitations it places on negotiations, and strictly prohibiting any consensual disposition outside the statutory framework.

The Constitutional Courts of a number of Member States exert a constitutional review on the obligation of national courts of last instance to make a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU).

Pursuant to Article 267(3) TFEU, national courts of last instance, namely courts or tribunals against whose decisions there is no judicial remedy under national law, are required to refer to the CJEU for a preliminary question related to the interpretation of the Treaties or the validity and interpretation of acts of European Union (EU) institutions. The CJEU specified the exceptions to this obligation in CILFIT. Indeed, national courts of last instance have a crucial role according to the devolution to national judges of the task of ensuring, in collaboration with the CJEU, the full application of EU law in all Member States and the judicial protection of individuals’ rights under EU law. With preliminary references as the keystone of the EU judicial system, the cooperation of national judges with the CJEU forms part of the EU constitutional structure in accordance with Article 19(1) TEU.

In the aftermath of the Brexit referendum of 23 June 2016, the question of migration has been at the forefront of attempts to understand what happened, and in particular why working class communities in many of the regions of England, and in parts of Wales, voted predominantly for the Leave side. Polling data show a weak correlation between areas of the country that voted for Leave and high levels of inward migration from the rest of the EU. The link between immigration and Brexit is very clear in East Anglian agricultural towns like Boston and Wisbech, but otherwise is weak. South Wales and the North East of England, which also saw clear majorities for Leave, are not areas of high EU migration. Instead, they are regions that have experienced successive waves of deindustrialisation since the 1980s. The overriding issue raised by the Brexit vote, in my view, is not migration as such (although that is part of the story), but a wider phenomenon of deepening economic insecurity, and the dangerous political dynamic it has created.

This paper maps judicial self-government in Czechia and argues that although Czechia is sometimes perceived as a black sheep of Europe for not introducing any form of judicial council into its judicial system, there is in fact a substantial amount of judicial self-government exercised by several bodies, the most important being the court presidents, and it is therefore a mistake to conflate judicial self-government with judicial councils. The most notable changes to judicial self-government are then introduced and their impact on values crucial for the functioning of the judiciary assessed. And, as the judicial self-government in Czechia is primarily exercised by court presidents, the narrative of changes to judicial self-government and their impact is presented as a narrative of changes affecting court presidents and of their effects on the wider legal, social and political fields. The dominance of court presidents, built in part on informal powers, is a mixed blessing however, as it can have both positive and negative impact on the crucial values and may prove rather fragile in the future.

The identity of the European Union has, for some years now, been the topic of many debates. The recent enlargement of the Union has stirred this debate and has not appeased it. There are various key topics that inspire the discussion, which included, for example, conceptions of citizenship. The following remarks will offer a sketch of some of the issues that come to the fore in this respect. Of particular interest here are the connections between the process of the constitutionalisation of Europe and the question of the desirability, or even necessity, of a homogenous European identity. I will first name some exemplary concrete problems that are connected with questions of politics of identity. I will then undertake a short illustrative look into the history of ideas to trace back some of the lines of thought that are relevant in the discussion. Finally, I want to suggest a possible normative perspective of how to proceed.

When the International Court of Justice (ICJ) released its advisory opinion regarding the legality of Kosovo's unilateral declaration of independence (UDI) on 22 July 2010, Serbia was not the only State to express its dissatisfaction with the outcome. The broader significance of the ICJ's finding that Kosovo's UDI in 2008 did not violate international law has profound relevance for other States. The United States and its allies claim that Kosovo's situation is unique and does not serve as precedent, but other nations facing separatist movements within their own borders may have reason to be concerned.

This Article has a twofold aim. First, it focuses on a particular case study, which has attracted the interest of several scholars from an interdisciplinary perspective: the legalization of same-sex marriage. The Article aims to show how changes in one specific socio-cultural landscape may spill into other contexts as a result of a ripple effect. The idea is to demonstrate how the emergence of a social fact—the increasing demands made by homosexual couples for their union to be recognized in one way or another—may make the process of institutionalization natural. A legal system may sometimes be bound to recognize social facts, and transnational law may enhance this phenomenon. The second aim of the Article is to claim is that, when analyzing change, legal deterministic theories should be dismissed, as they are based upon easy assumptions that do not correspond to empirical observations. Instead, as shown by constructivist approaches, the combined effect of structure and agency in some specific circumstances contributes to social and legal change. However, constructivists perhaps underestimate the relevance of unpredictable events and the (positive or negative) influence that transnational frameworks may have in forming discourses of power. In particular, the EU and the ECtHR systems may facilitate the diffusion of ideas and norms deriving directly from the liberal paradigm that inspire them. However, the liberal paradigm is contradictory, as it does not necessarily provide an incentive for change.

The relationship between the Court of Justice of the European Union (henceforth: Luxembourg Court) and the European Court of Human Rights (henceforth: Strasbourg Court) has been one of the prevailing issues in the human rights debate in Europe. The main crater in the relationship between the two courts is the fact that Strasbourg could not call directly into responsibility the Luxembourg Court due to the fact that EU is not a party in the ECHR, whereas the Luxembourg Court is not likely to obey a Strasbourg ruling without having any international legal obligation to do so. This situation has thus far led to many observations that have called for the accession of the EU to the ECHR, a step that would legalize the relationship between the EU and the Council of Europe, offering critics of human rights an assurance that the EU's human rights regime will become externally controlled by a specialized human rights court.

As pointed out by the Federal Constitutional Court, a specific determination of the appropriateness of hate speech prohibitions can be based only on the circumstances of individual cases. Some particularly prominent cases are now reviewed.

This article does not envisage an overwhelming goal to present a detailed X-ray of the recently much-discussed ECJ decisions in the field of social law, namely Laval and Viking. One could find several very profound papers whose authors thoroughly explore the various issues at stake, including the trade unions strategies in the frame of the EC Law, the role of the Posted Workers Directive, a horizontal direct effect in the context of the service-providing, the negotiation of wages and the Scandinavian social model. Therefore, the goal of this piece is to put Laval into the macroflora of a wider context, inherent to the effects of the post-enlargement labour conflict and its implications for the fundamentalization of social rights in the Union.

The current contribution focuses on the oversight over international institutions, which is used as a synonym for the accountability of such entities. It departs from the principle that all entities exercising public authority have to account for the exercise thereof. The growing power of international institutions in areas that were formerly regulated domestically, along with the growing impact of their conduct on (the rights of) States and non-State actors alike, has thus far not been matched by a shift in accountability relationships beyond those applicable within the confines of the territorial State. Understandably therefore the calls for the accountability of international institutions have increased in recent years, as it is seen as essential for ensuring their credibility and for securing control over public power.

This Article illustrates the functional and conceptual variances of law in different contexts. Whereas legal actors on the international level might normatively aim for law to have a similar effect to that of domestic law, the way in which international and supranational law can fulfill these potential functions is different. Accordingly, this Article argues that an awareness of the particularities and challenges that the potential functions of law encounter in the international and supranational context is needed. Moreover, it suggests an analytical lens to conceptually frame and locate current developments, offering a broader perspective on—or even an element of explication for—the apparent crisis that law is currently facing on the international and supranational scale. After describing the potential functions of law on an abstract scale and grouping them into analytical categories, the Article uses these categories as a lens in order to assess in which way international law can fulfill these potential functions, where priorities regarding certain functions might differ, and where some aspects of these functions are challenged when law is made and applied in the international and supranational sphere.

Article 52(1) of the EU Charter of Fundamental Rights lays down respect for the essence of right as one of the requirements that limitations on rights must respect. This provision is not innovative, as it formalizes into EU law the distinction between “core” and “periphery” of rights present in many national constitutions and in the ECJ and ECtHR case law. Nonetheless, the express reference to essence has given unprecedented resonance to that concept. Essence as the “limit of limits” has a Janus-like character. On the one hand, it pronounces that every fundamental right bears a minimum content which is ringfenced from interference by public and private actors. On the other hand, it stresses the malleability of rights and their social function. The core/periphery dichotomy reflects a balancing act moored in European legal tradition whose symbolism outperforms its utility as a judicial tool. This Article examines the essence clause of the Charter in light of the ECJ case law and the constitutional traditions of the Member States and assesses its role in the framework of fundamental rights protection in EU law. The Article first attempts a classification of rights limitations clauses in national constitutions, following which it discusses the interpretation of essence by the Spanish and the Italian Constitutional Courts. The Article then engages with a theoretical discussion of the concept of essence and examines the case law of the ECJ. Lastly, it looks at the limitations of the concept as a rights protection instrument in EU law.

While the European Union (EU) has been finding itself increasingly involved in providing security in its “near abroad,” the proposal of a “Stabilisation and Association Process for Countries of South-Eastern Europe” has marked the commencement of a nearly all-encompassing commitment to progress in the countries of the Western Balkans. In this context, Kosovo—for which the European perspective of the Western Balkans has been declared open—provides a text book example covering all aspects of external assistance as well as security and defense policies. Among the latter, the European Union Rule of Law Mission in the territory of Kosovo (EULEX Kosovo) is indeed characterized by a number of extraordinary factors and circumstances. It is not only EULEX Kosovo's unparalleled European and local staff size or its partly executive mandate that set this EU mission apart from other civilian missions of the Common Security and Defense Policy (CSDP) which have thus far been deployed to the Western Balkans. Unsurprisingly, the complexity of the mission has generated difficulty in comprehending its deployment, mandate and implementation. Yet, against the backdrop of the 2003 Security Strategy which makes the credibility of the EU's foreign policy dependent on its achievements in the Balkans, a clear understanding of EULEX Kosovo appears paramount.

The primacy of Community law over national law of the EC/EU Member States was recognized as one of the constitutive principles of the Community legal order as early as before the signing of the Treaty establishing a Constitution for Europe on 29 October 2004. The primacy principle together with the principles of direct effect and of uniform applicability are believed to constitute not only the foundation of effectiveness of the Community legal order but also play the role of the pillars of the unofficial European Constitution. The primacy principle is even seen as the embodiment of actual transfer of constitutional power to Europe.

According to Article 48 of the Treaty on the European Union (TEU), the founding treaties of the Union can only be amended through a three-step procedure. First, the Council calls an Intergovernmental Conference (IGC), after having consulted the European Parliament (EP) and the Commission. Second, within the framework of the IGC, representatives of the governments of the Member States negotiate and sign the amendments to the treaties by common accord. Third, the agreement is submitted to national ratification procedures. When all three steps are concluded, each Member State having ratified the amendments to the treaty, the changes enter into force.

In 2016, the UN's General Assembly called for the negotiation of a Global Compact on Safe, Orderly, and Regulation Migration to be adopted in 2018. The consultations began at the start of 2017 and the negotiations began six months later. Yet, it is uncertain what a Global Compact on Migration should include and what it should look like. What should be the key objectives of a Global Compact for Safe, Orderly and Regular Migration? In this Article I examine the issue which the UN seeks to address through an analysis of the three problems: Unsafe migration, disorderly migration, and irregular migration.

The thesis that, after September 11, 2001, there were categorical differences between Europe and the U.S. in their approaches to the dangers of terrorism, rests essentially on the claim that “Old Europe's” constitutional pacifism has failed. In this view, the global pax americana has a Hobbesian commitment to military power, and this is said to be the form adequate to realize the universal concept of peace. In principle, this is not an especially original notion. Robert Kagan, who nevertheless helped it gain a certain prominence, is merely the intellectual beneficiary of a series of classical theorists of realpolitik who agreed that conflicts could, “at the end of the day,” only be settled politically and not legally. Ironically, the prophets of this thesis were confessed Old Europeans. Carl Schmitt as well as Hans Morgenthau laid the cornerstone of these forms of cosmography, insisting that, on a global level, it is not law that rules but the free interplay of state-forces.

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).