On March 5, 2003, the Council of the European Union (hereafter the ‘Council’) submitted a request for an opinion to the European Court of Justice pursuant to Article 300 (6) EC. This request was intended to clarify whether the Community had an exclusive or shared competence to conclude a new convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters intended to replace the existing Lugano Convention (hereafter the ‘new Lugano Convention’ or the ‘envisaged agreement’).

This Article starts from two premises. The first is that power—particularly regulatory power—is increasingly exercised across and between jurisdictions, in particular as a result of the intertwining of economies via trade. The well-being of those involved in the production and trade in goods and services is determined by rules made in multiple jurisdictions, not just their own. Concern about the environmental and social impact of economic activity is a particular reason for jurisdictions to try and impose norms upon each other. The second premise is that the essence of constitutionalism is constitutional values and principles rather than particular institutional forms. Such forms are contingent and instrumental, in the service of the values and principles. Many of those constitutional values and principles are concerned with the exercise of power (e.g., accountability, due process, and non-oppression).

Given the scope of authority the United Nations has assumed in order to perform functions of territorial administration both in East Timor and Kosovo, it is, as one commentator remarked, rather surprising that the issue of the legitimacy of the internationalisation of state structures through post-conflict governance has inspired little debate. There are myriad reasons for the erosion of political authority in a territory temporarily administered by the international community – corruption, local obstructionism and internal divisions, failure to promote government transparency, a tenuous link between civil administration and the military command structure, the operation of (inter)national networks of patronage, and general incompetence, to name a few. This article analyses some of the inherent tensions involved in international institution-building. It introduces the variety of actors operating in an internationalised territory as the quest for legitimacy creates tensions between them, and portrays the dynamics that unfold in a process in which notions of legitimacy are subject to institutional contestation.

The paper shows how the efficiency of the German supervisory board has been significantly improved in the last decade. These legal changes made the supervisory board climb to a higher position of power. In particular, the supervisory board is now significantly involved in the decision-making process on a company's overall strategic concept and on management decisions of fundamental importance. This emphasizes the future-oriented monitoring obligation of the supervisory board, which gained much more importance in the last decade. Furthermore, the new provisions increased the flow of information from the management board to the supervisory board, and they facilitated the monitoring efficiency of every single supervisory board member. In addition, several important changes improved the cooperation of supervisory board and auditors. The most recent changes strengthened the supervisory board's responsibility with regard to internal control and risk management.

The vest majority of those changes in the German supervisory board system are very welcome. However, the current regime of German codetermination as well as the excessive size of the supervisory board has to be changed. Under the important developments on the European level, the time has come to act now in this direction. The advocated concept of codetermination by consensus provides a solid basis for more flexibility in the rigid German corporate governance system. It is also desirable to further limit the size of the supervisory board to no more than twelve members. Finally, the efficiency of the corporate governance system would be improved by allowing enterprises to choose between a one-tier and a two-tier board system.

Only a few European integration experts know that Jean Monnet, one of the masterminds of the European Coal and Steel Community, strongly preferred the European Atomic Energy Community to the European Economic Community in the 1950s and 1960s. From his point of view, sectoral and technical cooperation in the field of nuclear energy seemed to be much more promising in order to foster European integration than cross-sectoral economic integration. Monnet and others believed that nuclear energy could, inter alia, solve all energy supply problems, would revolutionize research and technical development, and could contribute to unifying the peoples of Europe in a few decades. However, nuclear energy in general and Euratom in particular have belied these expectations.

This Article studies the role of law for aligning democracy with a market-based financial order. Jürgen Habermas's discourse theoretical understanding of the role of law in the welfare state establishes a structure for exploring this issue. According to this approach, law needs to be enforceable, law-making and law-application need to be institutionally separated, and public law needs to be distinguishable from private law. The contemporary practice of sovereign debt restructuring reveals some empirical and normative challenges to this understanding of the law. Based on these findings, this Article proposes several conceptual and institutional improvements that might lead to a more stable relationship between democracy and financial order. In particular, we argue that sovereign debt restructuring should tap the legitimating potential of existing transnational discourses that are characterized by cross-border cleavages in public discourse.

On November 29, 1967, Commune I member Fritz Teufel had to face his second day in a West Berlin courtroom. Teufel was charged with breaching the public peace for allegedly hurling stones at policemen during a demonstration against the visit of the Shah of Persia on June 2, 1967– the same event during which West German police officer Karl-Heinz Kurras killed twenty-six-year-old student Benno Ohnesorg with a shot to the head. When the judge entered the courtroom that day in late November, Teufel sat in the same spot in which only one week before Kurras had been acquitted of involuntary manslaughter for his actions on June 2. As everybody stood up, Teufel alone remained in his seat, leisurely browsing through the day's newspaper. Only after the judge repeatedly urged him to stand up, stop his defiant behavior, and pay his respects to the court did Teufel slowly rise to his feet and utter a seemingly spontaneous and sardonic remark, which became a rallying cry for the mocking and disrespectful attitude of the student movement against West German authorities: “Well, if it's gonna help establish the truth…” (Naja, wenn's der Wahrheitsfindung dient).

The doctrine of legitimate expectation was authoritatively accepted as part of South African administrative law in the landmark case of Administrator, Transvaal v Traub in 1989. In that case Chief Justice Corbett extended the scope of application of the rules of natural justice, specifically the audi principle, beyond the traditional “liberty, property and existing rights” formula to cases where something less than an existing right, a legitimate expectation, required a fair procedure to be followed. This acceptance followed the trend in other Commonwealth jurisdictions to extend the application of the rules of natural justice and hence afford greater procedural protection to individuals affected by administrative decisions. Although Chief Justice Corbett expressly stated that the content of the expectation may be substantive or procedural in nature, the protection of that expectation, if found to be legitimate, was exclusively procedural. Since the Traub decision, the doctrine of legitimate expectation has been deeply entrenched in South African administrative law to extend the scope of procedural rights afforded individuals affected by administrative action. It is now an established principle of South African administrative law that a person, who has a legitimate expectation, flowing from an express promise by an administrator or a regular administrative practice, has a right to be heard before administrative action affecting that expectation is taken. The doctrine, has however, by and large, remained one that provides procedural protection in South Africa. In a number of recent decisions by South African courts, ranging from the High Court to the Supreme Court of Appeal and the Constitutional Court, there have been increasing calls for the application of legitimate expectations beyond procedural claims.

In recent years, the CJEU has impressively brought to bear the protection of the fundamental rights to privacy and protection of personal data as contained in the CFREU. The Court’s decisions in the Digital Rights, Schrems, Tele2, and PNR cases have reshaped the political and legal landscape in Europe and beyond. By restricting the powers of the governments of EU Member States and annulling legislative acts enacted by the EU legislator, the decisions had, and continue to have, effects well beyond the respective individual cases. Despite their strong impact on privacy and data protection across Europe, however, these landmark decisions reveal a number of flaws and inconsistencies in the conceptualization of the rights to privacy and protection of personal data as endorsed and interpreted by the CJEU. This Article identifies and discusses some of the shortcomings revealed in the recent CJEU privacy and data protection landmark decisions and proposes to the CJEU a strategy aimed at resolving these shortcomings going forward.

The invasive but highly profitable snow crab has made its way into the waters of the High Arctic, precipitating a direct confrontation between the EU and Norway over the interpretation of the 1920 Svalbard Treaty. Norway claims the Treaty does not apply due to its strict interpretation of the Treaty's terms, which pertain only to the archipelago's terra firm and territorial sea. The EU claims the Treaty's equal access and non-discrimination provisions follow the evolution of the international law of the sea, and make the living (and mineral) resources of Svalbard's surrounding continental shelf and waters open to all states parties to the Treaty. The dispute has gone on for decades, but this Article maintains, through a review of Norway's increasingly isolated legal and political stance that time is out of joint for Norway and its long-term appropriative design and strategy to territorialize this area of the High North.

This Article explores both theoretically and historically the core features of authoritarian adjudication. It attempts to offer an ideal type of what could mean a full assertion of authoritarianism in the context of adjudication. It aims to do so by first highlighting the value of insights that critical legal history can bring to the current discussion of populism. Second, it explores the paradigm of the exception that it aims to revise and ground in a historical analysis of the interwar period. Third, it considers the intellectual and practical lines of continuity between current reactions to the pandemic and the historical role of the military in modernity by drawing on the example of Romania. In a final part, it provides a reflection on the confusion between law, politics, and military concerns as a specific feature of modern authoritarianism.

The European Union’s new regulatory agenda targeting online platforms such as social media has been presented as a progressive watershed moment after a long period of regulatory restraint. The attempt to construct an internal market lends legal competence to the two centerpieces of this agenda—the Digital Services Act (DSA) and the Digital Markets Act (DMA). This Article analyzes the Union’s attempts to govern online platforms as a part of internal market construction. After examining the underlying aims of the internal market, the Article proceeds to analyze how those aims have been operationalized in existing EU electronic commerce law and more recently in the DSA and DMA proposals. The Article argues that the Union regulatory agenda is not particularly transformative. While the DSA and DMA introduce many novel regulatory mechanisms with an equalizing potential, they also remain faithfully committed to the aims and pre-existing mechanisms of internal market construction that have enabled the rise of platform corporations in the first place. Thus, the proposals risk reproducing and legitimizing various inequalities in the European digital economy. The article seeks to connect alternative visions of platforms with the re-imagination of internal market construction.

On May 3rd, 2002 the Court of First Instance (CFI) issued its ruling in the case Jégo-Quéré. According to its press release published at the same day, the CFI had undergone the task to “redefine the rules governing individual access to the Community courts” recognizing, thus, “the need to ensure effective protection of legal rights for European citizens and businesses.”

Article 2 of the Treaty on European Union (TEU) solemnly proclaims that the EU is founded on the respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. Yet, a growing body of case law concerning rule of law backsliding continuously reminds us of the lack of a dedicated functional mechanism to remedy this. We are left with a fragmented understanding of the founding values and a patchy framework for their enforcement: whilst there is increasing guidance on judicial independence and the rule of law, no founding value has been defined comprehensively. The legal classification of the founding values is equally unclear, as is their position in the EU’s constitutional framework. This paper makes do with what we have, to offer systematic, normative, and substantive clarifications on Article 2 TEU. Systematically, it places the founding values in the constitutional context of the EU’s and Member States’ legal orders and discusses their autonomy, interpretation, and function. Normatively, this paper objects to the direct enforcement of the founding values by reference to their constitutional significance and over-constitutionalization. Substantively, it favors the indirect enforcement of the founding values and explores the connections between Article 2 TEU and other Treaty provisions.

Recent events in the United States have highlighted the fact that American police resort to force, including deadly force, much more often than in many other Western countries. This Article describes how the current regulatory regime may ignore or even facilitate these aggressive police actions. The law governing police use of force in the United States derives in large part from the Fourth Amendment to the United States Constitution, which prohibits unreasonable searches and seizures. As construed by the United States Supreme Court, the Fourth Amendment provides police wide leeway in using deadly force, making custodial arrests, and stopping and frisking individuals. While state and local police departments can develop more restrictive rules, they often do not. Additionally, the remedies for violations of these rules are weak. The predominant remedy is exclusion of evidence, the impact of which falls primarily on the prosecutor and in any event only has a deterrent effect when evidence is sought. Civil and criminal sanctions have been significantly limited by the Supreme Court, particularly through the doctrine of qualified immunity (applied to individual officers) and the policy or custom defense (applied to municipalities). This minimal regulatory regime is one reason police-citizen encounters in the United States so often result in death or serious bodily harm to citizens, in particular those who are Black. The Article ends with a number of reform proposals.

Perpetuating Britain’s controversial administration of the Chagos Archipelago (BIOT – British Indian Ocean Territory) raises questions about the UK’s commitment to the rules-based order and international law. This interdisciplinary article examines British administration of the Chagos Archipelago by taking a legal-international relations perspective. It provides an overview to the rules-based order concept and its relation with international law, briefly examines the Territory’s history, and outlines how BIOT violates the principles enshrined in the rules-based order concept, specifically promotion of self-determination, prohibition of forced displacement and respect for international institutions. This study is significant due to its timing – set in a period of increased international pressure on the United Kingdom to cede sovereignty of the Chagos Archipelago to Mauritius – and also significant in a period of increased rules-based order strain throughout the Indo-Pacific. This article argues that, despite Britain’s assertion that it is a champion of the rules-based order, of which international law is a component, continued British administration of the Chagos Archipelago is in contravention of both. In an era of rules-based order strain, British BIOT policy provides fertile ground to criticisms of its foreign policy and international law selectivity and double standards.

From its inception, the academic study of EU administrative law has relied heavily on doctrinal categories, concepts and principles, borrowed from the administrative law of the Member States. It has largely preferred research agendas such as the Europeanisation of national administrative law or the development of common European principles derived from national administrative laws. Legal doctrine has also engaged in the critique of EU administrative law when it fails to account for the normative standards that national administrative law must usually observe. Whereas all these constitute important research agendas, they reproduce in particularly acute terms a familiar paradox. While the existence of a European administration and administrative law beyond the state cannot be seriously disputed today, legal doctrine tends to consider them, implicitly or explicitly, from the perspective of the administrative law of the nation-state. The so-called “touch of stateness” has had a firm grip on EU administrative law, even though it includes unique aspects that lack any precedent in national laws. The article considers, and proposes a methodological approach to address, the ways in which preconceptions and normative expectations originating in national law have conditioned, and indeed prevented, the deeper doctrinal development of EU administrative law.

This article assesses how the bounded rationality of the public, planning authorities, and experts distorts the environmental assessment (EA) process and how the international law on EAs could overcome such distortions. Data was gathered through the analysis of relevant law and policy documents, as well as authoritative court texts. This article concludes that the current international law on EAs does not sufficiently take behavioral insights into account. Several ways as to how insights on bounded rationality could be incorporated into the international law on EAs are discussed.

On 10 December 2018, the Court of Justice (CJEU) delivered the Wightman judgment and recognized the unilateral revocability of the notification ex Art. 50 Treaty on European Union (TEU). This article offers a critical analysis of the decision by insisting above all on the national background of the ruling and the political risks stemming from the decision. The article is structured as follows. Firstly, it analyses the legal questions of the Scottish case, which constituted the ground for the admissibility of the preliminary ruling and showed the perils for the exercise of national sovereign rights embedded in the lack of clarity on revocation options. It thus reconstructs the critical aspects of the preliminary ruling of the CJEU. Subsequently, the article examines the implications of the ruling for the EU legal order. On the one hand, the analysis considers the conception of the EU membership by comparing the approach of the CJEU and that of Advocate General Campos Sánchez Bordona in Wightman.

A common language is indispensible for reaching and maintaining understanding in all inter-subject relations, including international relations. One element of today's common language in the field of international trade in goods is the Harmonized Commodity Description and Coding System (the Harmonized System/HS) which is maintained by the World Customs Organization (WCO). The HS provides for a common vocabulary by classifying all traded goods according to a nomenclature. This common vocabulary facilitates, and avoids misunderstandings in, communications about products. It thus reduces transaction costs and consequently is of eminent economic importance for today's globalized trade relations. Take for example WTO tariff negotiations with respect to chocolate: While one party might assume that the product commonly referred to as white chocolate is included in the negotiations on chocolate, the other trading partner might assume that it is excluded for the reason that it does not contain cocoa and thus does not qualify as chocolate. Reference during the negotiations to specific positions of the HS nomenclature reduces the probability of such misunderstandings. If during the exemplary tariff negotiations parties would refer to the HS heading Chocolate no party could later claim that the negotiated tariff should also apply to white chocolate since the HS classifies the product which is commonly referred to as white chocolate under the heading Sugar Confectionary (and there under a specific sub-position) whereas chocolate containing cocoa is classified under the heading Chocolate. The vocabulary of the Harmonized System is a point of reference for many legal norms which relate to international trade in goods – in my example the legal obligation to comply with the negotiated tariff concession (Art. II GATT) and not to discriminate against like products (Art. I, III GATT). While the HS provides the vocabulary, these norms provide the grammar of a common language of international trade.