The judgment of the Court of Justice of the European Union in Schrems v. Data Protection Commissioner, in which the Court invalidated the EU-US Safe Harbour arrangement, is a landmark in EU data protection law. The judgment affirms the fundamental right to data protection in the context of international data transfers, defines an adequate level of data protection, and illustrates how data protection rights under EU law can apply to data processing in third countries. It also raises questions about the status of other legal bases for international data transfers under EU law, and shows that many legal disputes concerning data transfers are essentially political arguments in disguise. The Schrems judgment illustrates the tendency of EU data protection law to focus on legalistic mechanisms to protect data transfers rather than on protection in practice. The EU and the US have since agreed on a replacement for the Safe Harbour (the EU-US Privacy Shield), the validity of which will likely be tested in the Court of Justice. Regulation of data transfers needs to go beyond formalistic measures and legal fictions, in order to move from illusion to reality.

Sometimes less is more. Hence, it is not necessarily bad news if a judgment on a matter of fundamental public interest does not meet public expectations. And it certainly was not bad news that the judgment of the German Federal Constitutional Court of 12 September 2012 on the European Stability Mechanism (ESM) and the Fiscal Treaty did not meet the exaggerated public expectations that had been fuelled by an unprecedented media-hype.

One does not approach a challenge with a backward view. Rather, we take on challenges by looking forward. In scholarship, taking a forward view is known as research. Law schools define themselves by their research. Scholarly work is what garners prestige from without and solidarity from within. Without a doubt, teaching itself also ranks highly, but excellent teaching begins with proper research. The connection between research and teaching is indispensable. Teaching flourishes where students are gradually introduced to the processes of research, giving them a feeling for the excitement of scholarly work. This forms the nexus between the older and younger generations of academics, continually opening and reopening their perspectives to innovation and the undiscovered. Semper apertus reads the seal of the University of Heidelberg from 1386.

I have read in the newspapers that foreign citizens, when travelling to the United States on a Visa, will undergo a data registration and have their fingerprints taken. Not willing to submit myself to this treatment, I decided therefore to cancel my guest lectures at New York University for March 2004. At this time, I would like to provide reasons for my decision – a decision that I find necessary and unavoidable in spite of my sympathies for American students and professors with whom I have for many years felt connected both in friendship and professional life. This is a decision that I would hope to be adopted also by other European Intellectuals and Teachers.

The concept of the essence of a fundamental right—set out in Article 52(1) of the Charter of Fundamental Rights of the European Union (the “Charter”)—operates as a constant reminder that our core values as Europeans are absolute. In other words, they are not up for balancing. As the seminal judgment of the Court of Justice of the European Union (the “CJEU”) in Schrems shows, where a measure imposes a limitation on the exercise of a fundamental right that is so intense and so comprehensive that it calls into question that right as such, that measure is incompatible with the Charter, as it deprives the right at issue of its essence. This is so without the need for a balancing exercise of competing interests, because a measure that compromises the very essence of a fundamental right is automatically disproportionate. Therefore, the present contribution supports the contention that in order for the concept of essence to function in a constitutionally meaningful way, both EU and national courts should apply the “respect-for-the-essence test” before undertaking a proportionality assessment.

In December 2020, the EU institutions finally approved the new Rule of Law Conditionality Regulation after a controversial legislative process. The new Regulation allows the Commission and the Council to suspend EU funds in case of breaches to the rule of law that have negative effects on the EU budget and financial interests. This article analyses the new Regulation against the background of the rise of conditionality as a tool of EU governance. It argues, in contrast to some of the first analyses of the new Regulation, that the amendments adopted during the legislative process cannot simply be seen as a watered-down compromise, but were crucial to ensure the legality of the new instrument. At the same time, the EU’s growing reliance on conditionality continues to raise profound constitutional questions that still needs to be adequately addressed in the institutional and academic debate.

Given the remarkable consistency in Jacques Derrida's work over several decades, it is not hard to draw a line from “Force of Law: The ‘Mystical Foundation of Authority’” to his last seminars, on pardon and forgiveness. The aporias of forgiveness are analogous to those of the gift and of justice he had analyzed in detail in previous decades, as Derrida states in “To Forgive: The Unforgivable and the Imprescriptible” — to that extent his last seminars and lectures were part of the same deconstructive project on the possibility of justice. At the same time, Derrida postulates that forgiveness is an experience outside or heterogeneous to the rule of law. In considering this juncture in Derrida's work, this paper will juxtapose the logic and history of amnesty with Derrida's analysis of pardon: the latter pivots on a monotheistic heritage, a Biblical-Koranic sense that is demarcated from the former concept, that of amnesty between an ethics of forgiveness and the politics of forgetting.

Since the very conception of the European integration, there has been one core question that has attracted much attention and yet it remains contested and in a way unanswered till present. What is the legal nature of the European integration - a query about what integration stands for (the descriptive dimension), how it is to be explained and construed (the explanatory dimension) and eventually what it should stand for (the normative dimension). With the lapse of time, and as integration has evolved, various legal, political, economical and even broader intellectual streams of mutually shared beliefs, we should call them narratives, have emerged all offering their own and separate visions of what constitutes the most appropriate answer. Among them, however, the constitutional narrative has come out as a sort of master or dominant narrative whose answers have reached and persuaded the widest circle of influential stakeholders with the greatest impact on the social construction of the European integration.

A few years ago, judicial councils composed primarily of judges were viewed as a panacea for virtually all problems of court administration in Europe. The burgeoning literature on judicial councils has shown that this is not necessarily the case. This article builds on this literature, but it argues that judicial self-governance is much broader phenomenon than judicial councils and may also take different forms. Therefore, it is high time to look beyond judicial councils and to view judicial self-governance as a much more complex network of actors and bodies with different levels of participation of judges. To that end this article conceptualizes judicial self-governance and identifies crucial actors within the judiciary who may engage in judicial governance (such as judicial councils, judicial appointment commissions, promotion committees, court presidents and disciplinary panels). Subsequently, it shows that both the forms, rationales, and effects of judicial self-governance have varied across Europe. Finally, this article argues that it is necessary to take into account the liquid nature of judicial self-governance and its responsiveness to political, social, and cultural changes. Moreover, the rise of judicial self-governance is not necessarily a panacea, as it may lead to political contestation and the creation of new channels of politicization of the judiciary.

Increasingly, populists and authoritarians have discovered for themselves the notion of constitutional identity as a practical excuse to sidestep transnational legal obligations, as well as to vindicate their constitutional projects on the whole from concerns about the rule of law and other shared European values. This has led some scholars to highlight the “dangers of constitutional identity,” brandishing it as an “inherently dangerous concept,” and suggesting that the concept ought to be abandoned. This Article argues that the anti-pluralist critiques of constitutional identity, while rightly criticizing the authoritarian appropriations of constitutional identity, ultimately go too far and draw the wrong conclusions. Simply dismissing the concept of constitutional identity will not lead to the disappearance of the meanings imparted through it. The authoritarian and populist appropriations of constitutional identity must be identified and understood as abuses of the concept. By eliding constitutional identity with its abuse, the anti-pluralist critique sacrifices a more intimate understanding of the realities of constitutional identity abuse to a likely unattainable normative vision of uncontested EU law primacy. In advancing this critique, I will further outline three potential avenues for understanding constitutional identity abuse, differentiating between its substantive, generative, and relational aspects. Constitutional identity claims can be abusive by virtue of their substantive content, how they have come about, as well as how they are advanced.

Sixty years after the promulgation of the German constitution, which from the beginning was distinguished by its “visionary openness towards Europe,” the German Federal Constitutional Court reassessed the historic process of European integration. It reviewed the compatibility of the legal foundations of the European Union with the German Basic Law and provided a thorough overview. The Treaty of Lisbon and its sweeping, integrating reform of the European Union is compatible with the Basic Law, the Court's Second Senate ruled, so long as it is applied within the framework outlined by the Federal Constitutional Court. However, the Court found that the German implementation law is not consistent with the Basic Law. Accordingly, the Court made clear that Germany can continue with the ratification of the treaty only after introducing a new implementation law. The 147-page decision could be summarised in the following way: The European Union is an association of sovereign states and, hence, a secondary political area.

The increasing number of international judicial institutions, producing an ever-growing stream of decisions, has been one of the dominant features of the international legal order of the past two decades. The shift in quantity has gone hand in hand with a transformation in quality. Today, it is no longer convincing to only think of international courts in their role of settling disputes. While this function is as relevant as ever, many international judicial institutions have developed a further role in what is often called global governance. Their decisions have effects beyond individual disputes. They exceed the confines of concrete cases and bear on the general legal structures. The practice of international adjudication creates and shifts actors' normative expectations and as such develops legal normativity. Many actors use international judicial decisions in similar ways as they do formal sources of international law. To us, this role of international adjudication beyond the individual dispute is beyond dispute.

I have come to believe, over the last two decades of my consulting work outside of the United States, that the origins, growth and acceptance of clinical legal education throughout the world is the greatest single innovation in law school pedagogy – and certainly in student learning – since the “science” of the Socratic, case method was brought to Harvard by Christopher Columbus Langdell. I remember distinctly when I came to this conclusion. It was around the time of a conference held at beautiful Arrowhead Lake, in California, hosted by UCLA Law School and the University of London at the university's conference facility in the mountains of San Bernardino County, startlingly close to Los Angeles. The event was the Sixth International Clinical Conference, held in October of 2005, and it was the first truly international event in that series. Yes, it was an “international” clinical conference, and prior events had provided participants with something of an international flavor, and the event was sponsored by British and American law schools. This, however, was something new, something different.

This article examines the regulatory activity performed by the Codex Alimentarius Commission (Commission), which is the international body responsible for setting food standards and which has been the object of growing attention by lawyers. The main problem is that Codex standards, although they are not binding, strip national regulators of their discretion. This occurs because the Agreement on the Application of Sanitary and Phitosanitary Measures (SPS Agreement) and the Agreement on Technical Barriers to Trade (TBT Agreement) refer to them as relevant international standards. Furthermore, the World Trade Organization (WTO) Appellate Body has been construing its provisions in a way that makes it virtually impossible for national regulators to set higher levels of protection. From this it follows that, unless national constituencies are afforded the possibility to participate in the regulation of food safety at the outset before the Commission, when it comes down to setting national food standards national regulators are unable to fully respond to their concerns. This is all the more so if one considers that, while being undisputed that science plays a major role in the preparation of Codex standards, many issues the Commission has to address cannot be settled in strictly scientific terms. Instead, the latter enjoys a wide degree of discretion in striking a balance between fair trade and consumers' health. The political dimension surrounding the issues the Commission has to address coupled with the legal effect of Codex standards raises questions about its legitimacy. Yet any assessment of the legitimacy of the Commission is necessarily incomplete unless it takes into account the comparative performance of national regulatory authorities.

In its most recent judicature the European Court of Justice (ECJ) continued its tendency of deciding in favor of the freedom of establishment by holding that rules submitting pseudo-foreign companies to the company law of the host state were inadmissible. It clarified that a foreign company is not only to be respected as a legal entity having the right to be a party to legal proceedings, but rather has to be respected as such, i.e. as a foreign company that is subject to the company law of its state of incorporation. Any adjustment to the company law of the host state is, hence, not compatible with European law. In addition to commenting on the decision and its effects, this article points out potential for corporate restructuring in the field of codetermination.

On 12 December 2002, the European Court of Human Rights (ECHR) declared inadmissible an application filed against Greece and Germany by 257 victims and relatives of victims of Nazi war crimes committed in Greece in 1944. This decision was not only the latest of a number of ECHR decisions concerning the judicial treatment of Nazi war crimes committed during the Second World War, but it also marked the second time that the Court had to deal with the question of whether states may rely on sovereign immunity in cases concerning breaches of peremptory and non-derogable jus cogens norms.

In Karlsruhe's recent request for a preliminary ruling, an unconventional monetary policy measure of the European Central Bank (ECB) finds an unconventional judicial response. Based on its mandate to enforce the fundamental right to vote, the Federal Constitutional Court (FCC) leaves no doubt about its view that the ECB's Outright Monetary Transactions Programme (OMT Programme) violates the law of the European Union and hence the German Basic Law, unless one reads them in a rather restrictive way. But as unconventional monetary policy steps up the need for the ECB to justify the legality of its measures, so does the FCC's unconventional expansion of the scope of judicial review raise questions which the recent decision in its—generally laudable—brevity leaves underexplored. In particular, the decision does not dwell much on the issue whether it is appropriate for a court to review issues of monetary policy, and which standard of review should apply. Only Judge Gerhardt calls the majority's standard of review into question when he doubts whether the requirement for transgressions of the European Union's competences to be “manifest” is a workable criterion for defining the scope of the FCC's ultra vires control.

In this paper we are going to analyze how constitutional courts are able to extract the most meaning from a, necessarily, short text, such as a constitution, with the use of sophisticated tricks, or methods, of interpretation. Partly with the help of these methods, and partly on the basis of text-independent speculations, constitutional courts and legal scholars are able to develop a system of concepts (a Rechtsdogmatik, or its specific constitutional part, the Verfassungsdogmatik) considerably more sophisticated than the one of the actual text of the constitution in order to serve as a helping toolkit for the solution of future cases. After analyzing some preliminary issues in part A, the largest part of this study will deal with the different methods of constitutional interpretation in part B. Then, the nature of this conceptual system will be analyzed in part C, before turning to the question of styles of constitutional reasoning in part D. The analysis concentrates on the practice of European constitutional courts, though for purposes of classification and comparison, non-European practices will also be mentioned.