In the last decades, an increasing number of EU institutions and agencies have been given the power to conduct administrative inspections. While the legal literature has traditionally focused on the Commission’s inspection powers in competition proceedings, the European Anti-Fraud Office (OLAF), the European Central Bank (ECB), the European Securities and Markets Authority (ESMA), the European Aviation Safety Agency (EASA), and the European Fisheries Control Agency (EFCA) are also entrusted with such powers. The Commission has also been granted inspection powers in the field of Food Safety. Inspection powers can have a crucial impact on the fundamental right of the inviolability of the home, recognized by the Court of Justice as a general principle of EU law, and protected under Article 8 of the European Convention of Human Rights (ECHR) and Article 7 of the EU Charter of Fundamental Rights (ECFR). This Article argues that the current remedies do not fulfill all the criteria set forth by the Strasbourg Court for ex post judicial control vis-à vis inspections to be full and effective, in particular when these powers are used in the context of composite procedures, and suggests remedies to improve the system of review, in order to effectively protect fundamental rights.

This article explores the use of the systemic criterion in the European Court of Justice’s (ECJ) case law on judicial independence under Article 19(1)(2) Treaty on European Union (TEU). It starts from the observation that ever since the Portuguese Judges judgment, the case law has moved towards a more abstract and general assessment of issues of judicial independence. Yet, despite that evolution, the Court—perhaps surprisingly—only rarely uses the systemic criterion in its judgments. There are only two strands of case law to be found, neither of which tell us much about how the Court understands the notion of “systemic” in this field. This article argues that this criterion nevertheless has an important role to play in the case law on judicial independence and that the Court should explicitly limit the finding of a violation of Article 19(1)(2) TEU to those issues that have a systemic impact on the functioning of the domestic judiciary. By limiting the effects of Article 19(1)(2) TEU in such a way, the Court would strike a balance between the protection of the independence of the domestic judiciary, which is crucial for the proper functioning of the European Union (EU), and respect for the autonomy of the Member States as to the organization of their judiciary.

Diane Pretty died of natural causes on 11 May 2002 from motor neurone disease, a paralysing, degenerative and incurable illness. Her fight to choose the time and manner of her death assisted by her husband was a resounding legal failure. A unanimous body of judicial opinion in both the English Divisional Court and the House of Lords, followed by the European Court of Human Rights, denied that her rights under the European Convention on Human Rights had been infringed. Thus, the refusal of the Director of Public Prosecutions (DPP) to exempt Mrs. Pretty's husband from prosecution were he to undertake efforts to assist Mrs. Pretty in taking her own life was ultimately held to be lawful. At the same time, the domestic legal prohibition on assisting suicide, found in Section 2.1 of the Suicide Act of 1961 was found to be in conformity with the Convention.

Thanks to Chancellor Gerhard Schröder's decision to ask the German Bundestag (Federal Parliament) for a vote of confidence on 1 July 2005, and following on the Federal President's dissolution of the Parliament on 21 July 2005 in response thereto, the Bundesverfassungsgericht (BVerfG – Federal Constitutional Court) was pressed into service to finally decide whether federal elections should go forward nearly a year ahead of schedule. With the Court's affirmative decision of 25 August 2005, Germany now finds itself in a turbulent national election campaign.

One of the reasons for introducing a “Union” citizenship in the 1993 Maastricht Treaty was to provide a direct channel between the citizens of the Member States and the EU. In contrast to many other international organizations, the role of the individual has been central to the European project since its inception. In its famous 1962 judgment given in Van Gend en Loos,1 the Court of Justice of the European Union (CJEU) underscored the importance of the “vigilance of individuals concerned” seeking to protect their European rights in the new legal order through judicial control.2 The right to directly vote on the representatives of the European Parliament had already been introduced in the 1970s. The citizens of the Member States were thus equipped with two classic forms of political participation even prior to the introduction of Union citizenship: law making and the legal adjudication of individual cases. Nonetheless, whether these channels are sufficient to guarantee the citizens effective democratic means to influence legislation and exercise control of EU institutions in the rather complex multilevel legal system of the EU has been continuously debated.

Germany is currently in a deep structural crises which has been furthered by the combination of ongoing economic stagnation and a desolate situation of state finances. That these circumstances are due to—according to a widespread opinion—not just the failure of political leadership in the Federation and Länder during the last decades, but also, and especially, the German system of federalism in its current form, is anything but evident. It has become commonplace to hear that the German federal state is in the throes of a serious legitimacy crises and is in need of fundamental structural reform, if the current federation is to have any future. Advocates of reform claim the process needs to result in a widespread disentanglement of powers, so that responsibility can once again be clearly attributed to its proper bearers. Meanwhile, criticism continuously takes on an ever stronger tone: Germany is supposedly to have fallen into the “trap of federalism”. As Klaus von Dohnanyi stated: “If, as in our German Bund-Länder-consensus-system of the so-called ‘cooperative federalism', one level can always interfere with the other level even into details—and that is now the case in almost every aspect— immobility and stagnation, irresponsibility and chaos appear. It would have been better, if we had chosen a centralistic organization. Centralism is better than halfhearted decentralism. A well-lead central state is better than an undecided federalism.”

It is now almost two decades since the German Constitutional Court proclaimed in Maastricht its capacity to review whether the Union institutions respect the limits of their conferred competences and to pronounce inapplicable at national level all legal instruments adopted by them in transgression of these boundaries. This ultra vires doctrine inspired the case law of several other constitutional courts, which announced their intention to operate in exceptional circumstances as an ultima ratio against the violation by the Union institutions of the principle of conferral. The German Constitutional Court itself emphatically reaffirmed on various occasions its role as the ultimate protector of constitutionality against the ultra vires introduction and interpretation of Union law, most prominently in its eminent Lisbon ruling. Until recently though, there was no actual precedent of a national court proclaiming a Union act as ultra vires. Even when a constitutional court reviewed the contested act on ultra vires grounds, it eventually concluded that it complied with the principle of conferred powers.

Values define an important link between law and culture. Giving consideration to the title of the German Law Journal's Tenth Anniversary Symposium, “The Transnationalization of Legal Cultures,” I will address how European law has affected the transnationalization of values.

Much attention has been given to a series of decisions by the U.S. Supreme Court regarding the effects of the decisions of the International Court of Justice interpreting the Vienna Convention on Consular Relations. On 19 September, 2006, the German Bundesverfassungsgericht (BVerfG - German Federal Constitutional Court), has made its first judgment on the issue. The decision is significant for international law and even more specifically for U.S. jurists: Its outcome differs significantly from the U.S. Supreme Court decisions.

In the last few years, several cases raising a very similar issue have been brought before the European Court of Human Rights (ECHR): all these disputes are centred around the identity of a certain group which the applicants claim to defend, while the State contests either the mere existence of this group as distinct from the rest of the population, or the terms used by the applicants to describe it. Two of these cases – Sidiropoulos and others v. Greece and Gorzelik and others v. Poland – bear upon the refusal of national Courts to register an association created to promote a ‘minority culture’ – the ‘Macedonian’ one in the first instance, the culture of the ‘Silesian national minority’ in the second. The Greek government argues that ‘Macedonians’ do not constitute a distinct ethnic group, and that the claiming of a separate ‘Macedonian identity’ is an attack against Greek symbols and history, if not against the territorial integrity of Greece. In the Polish case, registration was refused on the ground that the association wrongly alleged that the ‘Silesians’ constitute a ‘national minority', while, according to domestic Courts, they are ‘only’ an ‘ethnic group'. The other cases concern measures or sanctions imposed on the applicants because of the stance they took with respect to a particular community: the conviction of a Greek MP for having used the term ‘Turks’ during the electoral campaign to address the Muslim population of Western Thrace in Greece (Ahmet Sadik v. Greece); the dissolution of political parties in Turkey for having stated in their programme that ‘Kurds’ constitute a ‘minority', a ‘people’ or a ‘nation’ (Unified Communist Party of Turkey (TBKP) and others v. Turkey; Socialist Party of Turkey and others v. Turkey; Party of Freedom and Democracy (Özdep) v. Turkey); finally a prohibition on organising public meetings issued against an association promoting the alleged ‘Macedonian’ culture and history in Bulgaria (Stankov and the United Macedonian Organisation Ilinden v. Bulgaria).

The Federal Republic of Germany is a state that shows a strong support for culture of any kind. While it is not explicitly stated anywhere in the Grundgesetz (Basic Law), it can be argued that very few nations regard the promotion of the arts, sciences and education as a public undertaking to the extent that Germany does. The federal structure of the German constitution is reflected in the allocation of governmental tasks between the federal government and the individual federal states, or Länder. Under this structure, the Länder bear the primary responsibility for cultural matters. However, contrary to widely-held belief, the Basic Law also grants the federal government a range of legislative, administrative and financial powers with respect to cultural matters. Although when taken together these do not add up to a comprehensive promotional authority of the federal government in the cultural sector, due to numerous individual empowerments, the federal government is without doubt in a position to take an active role in cultural affairs to a significant extent.

The amended German Act against restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen – GWB) has been in force since 1 July 2005. After a long and controversial debate, including a mediation procedure between the Bundestag (Lower House of the German Federal Parliament) and the Bundesrat (Upper House of the German Federal Parliament), and two and a half years after the adoption of Regulation No. 1/2003 in December 2002 the 7th Amendment to the Law against restraints of Competition was finally adopted in June 2005. Interestingly, the delay in passing the 7th Amendment – more than one year after Regulation No.1 came in force – was not so much caused by the fundamental changes that had become necessary in the light of Regulation No. 1. Rather, it was caused by those changes which did not become part of it: the proposed reform of merger control in the newspaper industry. Nonetheless, the latest amendment of the German competition law brought a greater number of fundamental changes than the six previous amendments adopted between 1958 and 1998. More specifically, the 7th Amendment abolished numerous specialties of the German antitrust law, which had been cultivated during previous decades. At the same time, it pointed to the increasing “Europeanization” (or, in other words, the decreasing relevance) of the national competition law that primarily covers the rules regarding anti-competitive agreements, decisions and concerted practices and is likely to extend to other areas in the future, such as unilateral conduct and merger control.

Post-communist Central and Eastern European ('CEE') legislators and judges have been resistant to equality and antidiscrimination law. This Article argues that these negative attitudes can be explained in part by the specific trajectory that EAL has taken in CEE during and after state socialism, which has differed from Western Europe. In the UK/EU, the formal guarantees of equal treatment and prohibitions of discrimination of the 1960s and 1970s were complemented by a more substantive understanding of equality in the 1990s and 2000s. This development was reversed in CEE—substantive equality, of a certain kind, preceded rather than followed formal equality and antidiscrimination guarantees.

The State Socialist concern with equality was real, and yet the project was incomplete in several significant ways. It saw only socio-economic, but not socio-cultural inequalities (relating to dignity, identity or diversity). It was transformative with regards to class, but not other discrimination grounds, especially not gender. While equality was a constitutionally enshrined principle, there was an absence of any corresponding enforceable antidiscrimination right. Finally, the emphasis on the “natural” differences between the sexes meant that sex/gender discrimination was not recognized as conflicting with women's constitutional equality guarantees.

Secrecy profoundly challenges democratic oversight. Law enforcement cooperation, however, requires some space for discretion and confidentiality. This classical paradox within the context of the European Union is central in the current legislative debate on Europol's revision. The reform is initiated by the Commission's proposal in March 2013 and, for the first time in its history, the European Parliament has direct power to decide over the future of the intelligence agency.

This article argues that we should not overestimate European Parliament's post-Lisbon prerogative for oversight, and particularly its access to Europol Classified Information, due to the architecture of intelligence exchange. The foundational principle of intelligence cooperation confers absolute discretion to the originators of information and Europol's “secrets” in almost all cases originate from the member states or third parties.

The article offers a new legal and empirical perspective on the tensions of secrecy and oversight in the EU, and especially in the Area of Freedom Security and Justice. It discusses the internal information structure of Europol and suggests options for more plausible oversight arrangements.

Article 6 of the TEU states that the EU Charter of Fundamental Rights “shall have the same legal value as the Treaties.” This Article investigates the Charter's real status in the EU legal order. To this end, the Charter's force will be analyzed relative to EU institutions, the Member States, and individuals. The resulting picture will enable consideration of the Charter's place in the EU hierarchy of norms, as well as the question of its primacy and direct effect.

On 4 September 2009 an officer of the German Bundeswehr (German Army) in Afghanistan, Colonel Georg Klein, ordered an airstrike against two gas tanker trucks hijacked by the Taliban. In this airstrike, carried out by U.S. Air Force pilots, up to 140 people were killed, among them not only members of the Taliban but also many civilians. This raises the question of criminal responsibility of German soldiers who operate in Afghanistan. The Generalbundesanwalt (General Public Prosecutor) investigated the case and recently decided to terminate the investigations against Colonel Klein. Despite this decision not all questions are answered. I will present a more comprehensive analysis of the case, not only commenting on the decision of the Generalbundesanwalt, but also applying different factual hypotheses leading to a different legal assessment of the case. At the outset I will look back at the line of cases known as the “Road Block Cases,” and seek to explain how the criminal responsibility of German soldiers has been dealt with in the past.

Markets need a complex set of institutions in order to work properly. Within a state, the national legal order with its legal rules, courts, and enforcement agencies have the task of fulfilling this role. Besides safeguarding property rights, the national legal order encompasses (1) the facilitating of market transactions by offering enabling (facilitative) law (as legal standard solutions) and helping private parties to enforce contracts within the domain of freedom of contract, and (2) the regulation of market transactions for solving or mitigating market failures problems and achieving other policy objectives. A comparable consistent legal system is missing on the international level for ensuring the working of global markets and the governance of cross-border transactions. However, the dynamic process of globalization has brought about the development of a number of new institutional solutions for solving these problems. The most prominent issue is the regulation of international markets (“global governance”). This article, however, will focus on the evolution of institutions for the enforcement of contracts for cross-border transactions between firms. Although there have always been institutional solutions for the governance of cross-border contracts (lex mercatoria), in recent years, a number of new governance solutions for the enforcement of cross-border transactions have emerged (“transnational commercial law”). The increasing use of choice of law, private governance instead of private law (provided by states), and private arbitration instead of public courts are the most important characteristics of this development. This also includes hybrids as new combinations between private and public solutions for the governance of cross-border contracts. Therefore, the process of globalization is accompanied and enabled by a complex process of institutional evolution.

The Austrian asylum policy is shifting from a showcase of support to asylum seekers to one of the most restrictive in Europe. Recent amendments to the asylum law are due to the massive influx of asylum seekers in 2015/2016 as a result of which Austria has accepted the second largest number of asylum seekers per capita in Europe. The Austrian government first responded by setting an upper limit of asylum applications from 2016 and then by creating the possibility of suspending its obligations under international and European asylum law. Both measures are legally doubtful and based on the assumption that if the upper limit is met this may threaten the maintenance of public order and the protection of internal security, which is not possible to prove. The contribution provides a legal analysis of the recent legal developments in Austrian asylum law, which are reviewed from the perspective of international and European asylum law as well as human rights. It concludes that the Austrian measures are part of a race to the bottom of European countries with the purpose of keeping refugees away. They cannot be justified from a legal perspective and create a threat to the respect for the rule of law.

In the study of comparative law and legal systems, a problem of focus and perspective presents itself. Comparative scholars often examine the “important” cases decided by appellate courts of foreign nations and the writings of their most important scholars. In Anglo-American nations, jurists are taught in law school, and then in the practice of law to look for authoritative texts, which are often the words of appellate court judges who set precedent. The results of these searches for the authoritative, both in national as well as comparative legal research, may be that scholars do not give enough attention to the average and the pedestrian, but rather focus upon the exceptional, the appellate, the influential and the newsworthy.

The Association of Transnational Law Schools [ATLAS] is a consortium of seven law schools from four continents that launched an annual academic summer program, called the Agora, for doctoral students this past July 2008. As the name of the consortium would suggest, the program focused on transnational law. The Agora is one of several multi-school initiatives aimed at furthering the study of the globalizing legal environment. The Agora both reflects and furthers a trend in legal scholarship, and as a consequence legal education, toward a focus on a set of interrelated concerns, which include globalization, international governance, transnational law, comparative legal studies, legal transplantation and the apparent conceptual challenges that these pose. In important respects these new conceptual challenges have a long pedigree in questions about the scope of legal pedagogy and theory. The pedagogical controversy is rooted in questions about the purpose of legal education, namely, whether it is trade training and should focus on practical legal skills, or whether it should be conceived of as broader than this. Intimately connected to this pedagogical controversy is a legal-theoretical controversy about the scope of legal theory (and thus the nature of law and its investigation). Does the word “law” designate the organizational instruments of state power, or should we think of “law” as referring to a more diverse set of social-organizational systems that may have greater or less affinity and connection with state law?