As a reaction to the killing and beheading of two soldiers in the Syrian Civil War, the German Federal Court of Justice (BGH) set a milestone in the interpretation of § 8(1) no. 9 of the German Code of Crimes against International Law (VStGB). The judges confirmed the conviction of a young German citizen with Syrian roots, Aria L., who had been tried and convicted before the Higher Regional Court of Frankfurt am Main (Oberlandesgericht (OLG) Frankfurt am Main). Within the certiorari, the BGH reviewed whether the statute conformed with the principle of legality found within the Grundgesetz (GG), Germany’s constitution. The Court held that the corpse of a person killed is protected from desecration under humanitarian law pursuant to § 8(1) no. 9 VStGB, the equivalent to Article 8(2)(b)(xxi) and (3)(ii) of the Rome Statute for the International Criminal Court (ICC). Reviewing this particular decision, it was determined that under the circumstances of a non-international armed conflict, beheading someone, placing the head on a metal rod, and taking pictures afterward in order to upload them onto social media is gravely humiliating and degrading. The head is incomparably the part of the body that identifies a person. Furthermore, it is irrelevant whether the perpetrator had any physical influence over the person. In addition, war crimes can be committed in a non-international conflict, which should, however, be treated equally as an international conflict. This outcome triggered diverse reactions amongst legal scholars, especially due to the extension of the understanding of a “person” who is to be protected under humanitarian law.

This article covers the recent trends in climate change litigation in India, capturing the peculiarities of the Indian judicial system that lend it the will, ability, and credibility to accommodate emerging principles of climate change laws within the law of the land. While tracing the historical underpinnings of judicial activism, environmental considerations, and strength of democratic institutions, this Article discusses some of the current developments in climate change case law in the country. Finally, in showcasing an increasing and immersive trend towards the inculcation of international principles of environmental law, this article establishes the dichotomy between an active judicial system applying international environmental principles at the domestic level and the roadblocks in terms of climate litigation in the recent times.

Today’s central banks wield extraordinary powers, both monetary and regulatory, and with a capacity to substitute for elected governments tempted to pass the buck. Debates about central banking’s powers and legitimacy barely touch, however, on whether and how monetary independence fits with the values that drive constitutionalism. It turns out that, for modern economies using fiat money, independence is a corollary of the higher level separation of (fiscal) powers between the legislative and executive branches. Even though independence is necessary, it needs to be carefully constrained by a “money-credit constitution.” Those general arguments, applicable in liberal democracies, do not carry across cleanly to the euro area. A principled case can be made for the ECB’s mandate being specially tight, but that is in tension with its de facto role as the emergency economic actor for the euro area. Facing up to that will be necessary sooner or later.

Corruption necessarily involves particularistic advantages at the expense of the society as a whole. It might be, however, misleading to assume these implications are a priori negative. The moral assessment of corrupt practices depends on contemporary ethical standards, which differ from country to country and undergo change over time. As a result, some practices labeled as corrupt might become legitimate while others turn from legitimate actions to offenses. When ethical dimensions are considered, corrupt practices reveal an inherent tension between particularistic and universalistic normative standards. Particularistic standards belong to the person-specific obligations and the expectations of actors involved in corruption. These necessarily clash with universalistic standards, which are valid and applicable for everyone and are usually approved by legal provisions or codes of conduct. As a result corrupt exchanges reveal both positive social features between corruption partners—such as mutual trust—and negative societal ramifications—such as disadvantages of non-involved actors. Corrupt partners behave fairly and honestly with respect to their partners but unfairly and dishonestly with respect to anyone else.

On 8 March 2011, the Grand Chamber of the European Court of Justice issued a significant ruling regarding the interpretation and scope of the concept of European Union citizenship. In an eagerly anticipated judgment, the Court held that Article 20 of the Treaty on the Functioning of the European Union (“TFEU”) confers a right of residence and a right to obtain a work permit upon the parents of a minor dependent European Union citizen who has never left the Member State of his or her nationality. The ruling is notable for having redefined the “internal situation” rule and extended the reach of the primary law provisions on Union citizenship beyond Directive 2004/38/EC. Yet, some of the potential implications of Zambrano have been qualified by the Court's subsequent rulings in McCarthy and Dereci. In those cases, the Court restricted the scope for EU citizens who have never exercised their free movement rights to rely on EU law in order to derive rights of residence for their third-country-national family members in their country of nationality. Moreover, the brevity of the Zambrano judgment indicates substantial disagreement amongst the judges and has the effect of leaving a number of issues unclear. What are the precise limitations to relying on Article 20 TFEU in a situation that falls outside the scope of Article 2004/38/EC? How does the ruling impact the ongoing discussions on reverse discrimination and the protection of fundamental rights in the E.U.? After briefly describing the factual and legal background of the case, the opinion of Advocate General Sharpston, and the Court's judgment, we will discuss the questions raised above before considering the potential implications of the ruling for Member States' migration and nationality laws.

Nations compete for investment capital, and the assurances investors seek as they decide to provide that capital are universal. Motivated by the growing appetite for a global benchmark of corporate behaviour, this paper examines the relationship between the measured quality of corporate governance at the firm level and national competitiveness. It begins by analyzing the perceived quality of institutions in the 23 largest capital markets. Hypothesizing that good corporate governance at the company level may compensate for perceived weaknesses in the institutional framework, the paper then focuses on the pilot governance index developed by the Financial Times and ISS and compares it with new survey evidence from the World Economic Forum's Global Competitiveness Report. Finally, the paper discusses corporate governance in the EU accession countries and the extent to which the quality of governance has affected the mode of entry for foreign investment.

The present paper concerns procedural guarantees in immigration proceedings, thus addressing the broader question of the role of the general principles of EU law in respect of administrative decision-making. The main assertion is that certain requirements of procedural due process are recognized in EU law as fundamental rights. They must therefore be observed by Member State authorities when decisions significantly affecting the legal position of a person are taken, provided that the decision is at least partly determined by EU law. The relevant immigration proceedings involve measures related to the termination of residence as well as decisions related to denial or loss of a particular legal status. In effect, the actual scope of application of the EU's administrative fundamental rights is determined by the actual scope of activity of the European legislator. The author concludes that even a relatively ‘shallow’ harmonization of laws can lead to a ‘deep’ reshaping of the domestic legal order, by becoming a Trojan Horse for fundamental rights heretofore alien to some national immigration regimes.

North Carolina has, like most American states, played its (not always positive) part in the struggle against what Clinton, back in 1997 when the U.S. had more domestic concerns on its mind, called “America's constant curse”. But racial discrimination is not, of course, simply America's curse. Europe, for all its self-righteousness of late, has certainly not escaped it. Despite the prevalence of racial discrimination right across the geographic expression of Europe, this paper shall concentrate on a particular set of countries – those termed Central and Eastern Europe – and on a particular group – the Roma, widely acknowledged as the most marginalised and discriminated in Europe today.

Shocking news for police and intelligence agencies in Germany: the search for inland sleepers following the terrorist attacks in 2001 on the World Trade Centre in New York and the Pentagon was unconstitutional. Preventive data screening is incompatible with the fundamental right of informational self-determination according to Article 2 (I) in connection with Article 1 (I) of the Grundgesetz (GG - Basic Law). Since the ruling of the Bundesverfassungsgericht (BverfG - Federal Constitutional Court) of 4 April, 2006 (1 BvR 518/02), such numerous acquisition of data is not permitted unless a concrete threat to important objects of legal protection is existent.

Lawmaking by judicial institutions requires legitimation. As international courts gradually play an ever more significant part in the shaping of international law, they share with any other lawmaker the need for a convincing basis of legitimacy. In the case of international courts, however, this need has to be addressed by taking into account their special function: that is, to review decisions made by other lawmakers (mainly domestic). The question of the legitimacy of judicial institutions is thus crucially connected with the standard they apply in reviewing such decisions.

In the recent discussion on Internet law and regulation it has often been argued that technical standards have a significant impact on the variety and diversity of the Net's communication flows. This Article extends this argument, focusing on the ability to constrain Net communication through “code” and “architecture” imposed by network technology, i.e., by a source of rule-formation and rule-making beyond the traditional law of nation-states. Although I am generally sympathetic to the position that a novel “Lex Informatica” poses new legal and political challenges for nation-states, it should, however, be clear from the outset that the attention for “code” and “architecture” is something different to a paraphrase of the ever-expanding role of technology in modern society. This has to be emphasized because the discourse of “the technological”, which was already a prominent subject in the anti-modernist debate during the Weimar Republic, still casts a shadow on the contemporary legal discussion about the role of technical standards on the Internet. Lawrence Lessig, for example, confronted with a strict anti-governmentalism of cyber-libertarians in the mid-nineties, argues in Code and other Laws of Cyberspace that the Internet is regulated by “code”, i.e. “the software and hardware that make Cyberspace what it is”. “Code” itself is embedded in an environment of economic power and corresponding political interests. In a nutshell Lessig paints a picture in which the Internet is developing towards an intolerable density of control by powerful coalitions of technical experts and economic enterprises. This view may be convincing in some respects, but with his accent on “code”, Lessig comes very close to the anti-modernist reaction to the growing significance of film and radio in the early 20th century, inasmuch as both strands are based on the misconception of a technological superstructure steering the (media) world and its further evolution.

The German Federal Constitutional Court’s ruling of May 5, 2020 on the ECB’s Public Sector Purchase Programme (PSPP) stated, for the first time ever, that some decisions by European institutions are not covered by the competence allocations of the European Treaties and cannot therefore take effect in Germany. This article argues that the judgment came as no surprise, as it is consistent with the principle of conferral of powers. According to this principle the EU and its institutions can only act within the limits of their competences. The German Basic Law prohibits any transfer of sovereign rights whose exercise would confer sua sponte additional competences to the supranational level. Against this background, the Federal Constitutional Court judgment does not seek to limit the ECB’s scope for appraisal and evaluation in the exercise of its monetary policy mandate. It focuses rather on the conditions which legitimize the ECB’s leeway. The issue in this case is not the applicability of the proportionality principle as a criterion governing the delimitation of powers, but the different reference points for the assessment of proportionality. In this regard the CJEU had failed to discuss whether monetary policy and the effects on economic policy are proportionate by themselves. Hence, in constitutional terms, the CJEU’s interpretation was found to be “arbitrary”, since the German Constitutional Court defined arbitrariness as jurisprudence that “in a reasonable reading … [appears] unintelligible and clearly untenable.” In other words, it is “simply not comprehensible.” Despite the harsh words of the German Constitutional Court, the authors argue that the judgement in the end can help to create a European legal culture that will strengthen the European Union in the long term if, in future, the CJEU engages more constructively with criticisms from Member State courts.

Until recently, throughout the European Union's integration process, public order and internal security matters have been marked by a concern and respect for the national sovereignty of the EU Member States. Member States enjoyed their respective regulatory autonomy, as public order and internal security matters were dealt with at the EU level merely on the basis of the internal market logic. This is particularly evident in Articles 45(3) and 52 of the Treaty on the Functioning of the European Union (TFEU). These Articles establish the exceptions of public policy and public security as grounds that may be invoked by the Member States to limit the fundamental right to free movement. These grounds have been primarily viewed as deriving from impediments to the creation of the common market.

This Article addresses the pressing issues surrounding the use of automated systems in public decision-making, specifically focusing on migration, asylum, and mobility. Drawing on empirical data, this Article examines the potential and limitations of the General Data Protection Regulation and the Artificial Intelligence Act in effectively addressing the challenges posed by automated decision-making (ADM). The Article argues that the current legal definitions and categorizations of ADM fail to capture the complexity and diversity of real-life applications where automated systems assist human decision-makers rather than replace them entirely. To bridge the gap between ADM in law and practice, this Article proposes to move beyond the concept of “automated decisions” and complement the legal protection in the GDPR and AI Act with a taxonomy that can inform a fundamental rights analysis. This taxonomy enhances our understanding of ADM and allows to identify the fundamental rights at stake and the sector-specific legislation applicable to ADM. The Article calls for empirical observations and input from experts in other areas of public law to enrich and refine the proposed taxonomy, thus ensuring clearer conceptual frameworks to safeguard individuals in our increasingly algorithmic society.

On 25 July 2002, the Court rejected the proposals of AG Jacobs and the CFI to reconsider its traditional case law on private applicants’ standing to challenge generally applicable EC acts according to Article 230 para. 4 EC. This rejection hardly came as a surprise. However, the Court's motivation for the ‘restauration’ of its traditional approach is interesting. In substance, the Court held that the Member States are responsible for both the existence and the elimination of lacunae in the EC system of judicial remedies.

The development of media law in recent years is – following a brief stage of calm in the course of establishing the ‘dual broadcasting system' – being affected by new dynamism sparked particularly by the rise of the Internet. The increasing multiplicity of forms and possibilities of communication, in particular of ‘hybrid' coupling of elements of individual and mass communication (e.g. individual exchange of pieces of music by a generally accessible procedure such as Napster and Gnutella, Internet discussion groups among people who do not know each other, Video-on-Demand etc.) has brought broadcasting regulation within a ‘positive order' oriented towards ‘pluralism' under pressure. New hybrid services can no longer be sharply distinguished from broadcasting, nor simply classified with traditional individual communication. The content too may be disseminated in various contexts: for instance, the same film may be disseminated as a full programme, a side programme or part of a media service. Can the difference in context then justify, say, differentiation of legal requirements relating to advertising?

The relationship between EU law and German constitutional law, and the respective dialogue between the ECJ and the German Federal Constitutional Court (FCC), have considerably shaped the EU integration process by creating fields of tension and demarcating possible legal boundaries. The decisions of the German Federal Constitutional Court and the European Court of Justice concerning the European Stability Mechanism are only the most recent examples of this phenomenon. These developments have, of course, spilled over to other EU Member States. The German constitutional bases of, and limits to, EU integration—especially as articulated in the relevant decisions of the German Federal Constitutional Court—have therefore become a field of particular interest for EU and public lawyers. This article gives an up-to-date overview of relevant constitutional rules, court decisions, and the academic debate in Germany. It does so by systematically distinguishing between an analysis of the German constitutional foundations of EU integration (section B.), constitutional limits to the further transfer of powers to the EU through amendments of EU primary law (section C.I.), and the constitutional confines for the legal effects of EU secondary law in Germany (section C.II.).

There appears to be a widespread perception, particularly among developing states, that international institutions continue to be disproportionately influenced by a small group of powerful states that played a dominant role in their creation and design. In recent years this has led to a growing acceptance among international legal scholars that the future legitimacy and credibility of international tribunals will be critically tied to the extent to which they are viewed as independent.

Social order is the telos of law and politics. This study will present Jürgen Habermas' thought on this topic as one of the most important of the last forty years. By collocating it within the broader discussion on social order, we will highlight the potential, but also some problems of his universalistic proposal in light of challenges at the outset of the 21st century. This article argues that Habermas' communicative paradigm provides a conceptual framework for a universal public law protecting peace and human rights in an effective and legitimate way. It can be understood as a regulative idea, guiding transformative work of scholars, politicians and lawyers, rather than as a theoretical instrument that conceptualises international law in its current institutional setting.

In Western capitalist societies, the three postwar decades witnessed a strong interconnection between income taxation and democracy. On the one hand, the democratically representative political process constituted a precondition for the legitimacy of taxation. On the other hand, redistributive income taxation enhanced conditions for equal democratic participation by allocating resources and equalizing political power among citizens. The asymmetric European integration that has advanced transnationalization of cross-border market order but preserved income taxation under national political authority has established fiscal interdependence between Member States of the EU and exposed them to transnational regulatory effects. As a result, Member States’ performance to uphold the symbiosis between democracy and taxation has eroded. While this has led some to call for further integration of taxes beyond the nation state, others have remained skeptical about the democratic legitimacy of Europeanized taxation. This Article argues that the Europeanization of income taxation would help to reconstruct the conditions under which the symbiosis between income taxation and democracy is restored, although this requires the notion of democratic community to be reinterpreted according to the standards that cannot be equated with nation-based boundaries of a political community.