The intense engagement of populists with constitutionalism—a phenomenon originally related to experiences in Latin America—is increasingly evident in some of the new European Union member states. But the populist phenomenon is clearly not confined to more recently established democracies. Populist constitutionalism stands for a number of distinctive tendencies in constitutional politics and practices which frequently are in tension with—and may even threaten—fundamental values, human rights, representative democracy, and the rule of law. The relation between populism and constitutionalism is, however, not necessarily one of anti-thesis, but rather manifests itself in distinctive ways, depending on specific contexts and variations. In this special issue, we argue that populist constitutionalism is best analyzed in a comparative, and historically and contextually attuned manner. The special issue wants to contribute to understandings of populist constitutionalism, which are both theoretically more robust and able to comparatively reflect on a diversity of “really existing” cases. The various contributions discuss central dimensions to the populist phenomenon. These pertain in particular to: (a) The varieties of populist engagement with constitutionalism; (b) a deeper understanding of the populist mindset; (c) the position-taking and reaction of constitutional scholars to populism; (d) the complex relation and overlap of populism with illiberalism and authoritarianism; and (e) the central nature of constituent power in populist projects.

The European Convention of Human Rights (ECHR) is as much a political as it is a legal document. The European Court of Human Rights (ECtHR) constantly walks the delicate tight rope between vindicating human rights and respecting the sovereignty of contracting states. This balancing act is particularly sensitive when a situation of “exceptional and imminent danger” exists. In such instances of national security the state may need to act in a manner beyond the parameters of normalcy in order to neutralize the threat and protect both itself and its citizens. Article 15 of the ECHR therefore allows states to derogate from its obligations under the convention when a state of emergency is declared. On foot of a notice of derogation, a state has more discretion and flexibility to act accordingly to respond to a threat without being constrained by its obligations under the treaty. However, it is also in these conditions that human rights are at their most vulnerable as the state's response may encroach severely on individuals' rights and the liberal-democratic order of the state.

The evolution of the protection of fundamental rights in Europe is on the brink of entering a new phase, with the imminent accession of the European Union (EU) to the European Convention on Human Rights (ECHR). Assuming no unforeseen obstacles arise, the EU will soon become the 48th HCP to the Convention, and the first non-state signatory. This is a unique situation with clear legal and political consequences. Pre-accession negotiations between the Council of Europe and the EU have effectively concluded. The CDDH Informal Working Group on the Accession of the European Union to the Convention (CCDH-UE), established under the aegis of the Council of Europe's Steering Committee on Human Rights (le Comité Directeur pour les Droits de l'Homme (CDDH)), met regularly from July 2010 until June 2011, tabling the Draft Legal Instruments on the Accession of the European Union to the European Convention on Human Rights (Draft Accession Agreement) on 30 June 2011.

After the EU Enlargement of 2004, the law courts of the new Member States now fulfill a twofold role of applying both national and European law. The application of European law also entails the duty of judges to construe their own domestic law as close as possible with EU law, and, if that is not possible, the duty arises to set aside the domestic law found to be incompatible with European law. In consequence, developments in the next decade will test judges’ capacity for properly applying European law and this process will inevitably present a serious challenge to the Central European judicial systems. While evaluations can first be made no sooner than a few years after the EU Enlargement, there are important indications that can suggest the probable outcome of that challenge. This article briefly outlines the application of European law in those countries prior to EU Enlargement and then deals with the important factors which are likely to influence its future application in the new Member States.

One of the novelties brought about by the new General Data Protection Regulation (GDPR) is a strengthening of the concept of consent. For instance, although the freely given stipulation existed in the old framework—the Data Protection Directive 95/46/EC—the changes introduced by the GDPR arguably imply that access to services may no longer depend on data subject consent. In reality however, data subjects often find themselves confronted with standard privacy policies and take-it-or-leave-it offers. Against this background, this Article aims to examine the alignment of the respective data protection and privacy, consumer protection, and competition law policy agendas through the lens of pre-formulated declarations of consent. The Article aims to delineate the role of each area with specific reference to the GDPR and ePrivacy Directive, the Unfair Terms Directive, the Consumer Rights Directive, and the Digital Content Directive (Compromise), in addition to market dominance. Competition law analysis is explored vis-à-vis whether it could offer indicators of when a clear imbalance in controller-data subject relations may occur in the context of the requirement for consent to be freely given, as per its definition in the GDPR. This complements the data protection and consumer protection analysis which focuses on the specific reference to the Unfair Terms Directive in Recital 42 GDPR, stating that pre-formulated declarations of consent should not contain unfair terms.

While International Law becomes more and more specialized, a tendency towards Fragmentation becomes visible: more and more sub-regimes of International Law emerge, leading to an increased number of rules. With the creation of more sub-regimes, cases are becoming more likely in which more than one sub-regime is involved and the question arises, which sub-regime's rules take precedence. Recent examples for such collisions of regimes include the relation between Free Trade and the Protection of the Environment in the Yellowfin-Tuna Case between the United States and Mexico which was settled only in January 2002, the Tadic-Nicaragua Debate and the Swordfish Case between the European Community and Chile, including the need for some form of internal order or hierarchy within International Law.

Challenging the assumption of perfect legal knowledge, this Article employs social psychology to better understand how individuals make decisions about legal compliance under imperfect information conditions. It adapts the informational aspects of “social influence conception of criminal deterrence” to regulatory compliance at large. However, it conceptualizes social influence as more than just “visible deterrence.” Social Psychology helps us to understand who, how many, and what kind of behaviors constitute adequate social proof to guide an individual’s decision on compliance. Additionally, the interaction of social proof and legal compliance is considered within a dynamic framework in relation to specific rules and across the system. Within this framework, compliance/non-compliance cascades across different rules and can create a perception about legal compliance at large, which in turn guides initial expectations with respect to new laws. Over time, this can create high/low compliance equilibriums within which societies operate. Understanding this informational role that social influence plays in legal compliance can further our understanding of what motivates compliance, the potency of the expressive functions of law in societies operating within different compliance equilibriums, and inform policy discussions on how to improve compliance—both voluntary and through sanction/incentives.

In the constitutional shaping of the concept of essence of fundamental rights, the case law of the Court of Justice of the EU (“CJEU” or “the Court”) in the field of privacy and data protection plays a crucial role. The Court’s interpretation of this notion had a considerable impact not only jon perception of the essence in other fields of law, but also on the constitutional doctrine more generally. This Article focuses on specificities of the notion of essence of fundamental rights to privacy and the protection of personal data from Articles 7 and 8 of the Charter of Fundamental Rights of the EU. After a general analysis, situating this notion into the framework of multi-level protection of fundamental rights in Europe, the Article addresses further interpretative challenges relating to the essence in the Court’s case law. At the core of the analysis are the Schrems and Digital Rights Ireland cases, where the CJEU developed, for the first time, the modalities of the breach of essence of fundamental rights to privacy and data protection and laid down constitutional foundations for interpretation of this notion. Further jurisprudence, including the Tele2 Sverige and Opinion 1/15 cases, is analyzed as an example of fine-tuning of the CJEU’s approach towards the normative understanding of this concept. Against this backdrop, the Article elaborates on the importance of insights in the fields of privacy and data protection for the general constitutional understanding of the concept of essence and proposes a generalized method for determination of infringement of essence in fundamental rights jurisprudence.

According to Article 2 of the Treaty on European Union, the European Union is a political and economic union founded on a respect for fundamental rights and the rule of law, referred to hereafter as EU fundamental values. The central place of this commitment in the EU Treaties suggests a founding assumption: That the EU is a Union of states who themselves see human rights and the rule of law as irrevocable parts of their political and legal order. Reminiscent of the entry of Jorg Haider's far-right Freedom Party into the Austrian government in 2000, the events of 2012 have done much to shake that assumption; questioning both how interwoven the rule of law tradition is across the present-day EU, and the role the EU ought to play in policing potential violations of fundamental rights carried out via the constitutional frameworks of its Member States. Much attention in this field, much like the focus of this paper, has been placed on events in one state in particular: Hungary.

The European Union rides through troubled waters. Its original reliance on law as the object and agent of the integration project and on the “economic constitution,” which the Economic and Monetary Union (EMU)—as accomplished by the Treaty of Maastricht— expected to complete, have proven unsustainable. Following the financial and sovereign debt crises, individuals perceive the EMU, with its commitments to price stability and monetary politics, as a failed construction precisely because of its reliance on inflexible rules. The European crisis management seeks to compensate for these failures by means of regulatory machinery which disregards the European order of competences, takes power from national institutions, and burdens—in particular—Southern Europe with austerity measures; it establishes pan-European commitments to budgetary discipline and macroeconomic balancing. This abolishes the ideal of a legal ordering of the European economy, while the economic and social prospects of these efforts appear gloomy and the Union's political legitimacy becomes precarious. A fictitious debate between Carl Schmitt and Jürgen Habermas addresses the present critical constellation, where a number of Schmittian notions seem alarmingly realistic. This essay pleads for a more modest Europe committing itself to “unity in diversity,” the motto of the ill-fated Constitutional Treaty of 2003.

Under German law, people with disabilities are entitled to help and assistance in order to avert, eliminate or improve their disability. The general goal is to overcome, as much as possible, the disability's effects and to enable the disabled to participate in all areas of society, especially in the labor market and in community life. The Federal Government is obliged to a barrier-free design and construction of public buildings, streets, etc. and to provide barrier-free access to communication, especially in the field of administrative Internet sites, official forms and notifications. In the area of public transportation, all facilities and means of transportation (bus, train, aircraft) are also required to be barrier-free. The same applies to restaurants.

Judicial lawmaking in the GATT/WTO context has for some time drawn considerable attention. Some are inclined to show a sense of existentialist anxiety in view of the fact that legal practice does not neatly live up to the orthodox doctrinal order of things. Others see judicial lawmaking as (theoretically or practically) inevitable and tend to readily embrace it as a way of overcoming defunct political processes. Whatever its normative appraisal, as a matter of fact adjudicatory practice has developed some of trade law's cardinal norms. The rise and increasing sophistication of adjudication in the GATT/WTO context has also gone hand in hand with a surge of authority on the part of adjudicators and a larger overall detachment of the law from politico-legislative politics.

Online dispute resolution (“ODR”) can be conceived as a means to achieve some of the most powerful legal ideals of the Western legal tradition. Among these are:

(1) Legal Certainty: In making individual plans, decisions, and choices everyone is entitled to know what the law is in advance. Therefore, laws shall be public, written in everyday language, and shall not be changed too often. The application of laws shall be a simple operation (legal syllogism) so that citizens do not need attorneys, and judges are just la bouche de la loi (Montesquieu).

The Basic Law, whose 60th anniversary we celebrate today, is not identical with the Constitution that was enacted on 23 May 1949. In the sixty years of its existence, it has been amended fifty-four times. Further amendments are under way. Many amendments concerned more than just one article. A little more than half of the 146 articles of the original text still read as they were framed in 1949. However, twenty-six of these unchanged articles are part of the “Transitional and Concluding Provisions.” A number of them were limited to one singular act of application, such as Art. 136 I (“The Bundesrat [Federal Council] shall convene for the first time on the day the Bundestag [national parliament] first convenes.”), and lost their normative value with the completion of the given act. A little less than half of the original articles, and the Preamble, have been subject to amendments; some of them several times. The forerunner is Art. 106 (apportionment of tax revenue), with six amendments. In addition, forty-seven articles have been added to the original text, some of which were repealed later.

The Financial Times billed the Mannesmann trial, which began on January 21, 2004 and where final arguments by the prosecution and by the defense are scheduled for June 30, July 8 and 14, 2004 before the Regional Court (Landgericht) in Düsseldorf, as the “biggest criminal trial in German corporate history.” The backdrop for the trial was the January 2000 hostile takeover of Mannesmann AG, the once massive German telecommunications and engineering company that employed over 130,000 people. Vodafone Airtouch, the British telecommunications giant, had initially offered €101 billion for Mannesmann but only succeeded in their takeover by sweetening the price to €178 billion. Consequently, the Mannesmann takeover is still the largest the world has ever seen. The six defendants include towering figures in corporate Germany, most notably Josef Ackermann, the current chief executive of Germany's largest bank, Deutsche Bank and former member of Mannesmann's supervisory board (Aufsichtsrat). The enormity of the companies and personalities involved stretched the trial's magnitude beyond the confines of this single takeover. Reporting for their global business audience, the Financial Times conflated the trial to an indictment of Germany's entire system of capitalism. “What is on trial here is the free market itself,” wrote Wolfgang Munchau, their continental European business columnist.

This article discusses the troubled relationship between contemporary advertising technology (adtech) systems, in particular systems of real-time bidding (RTB, also known as programmatic advertising) underpinning much behavioral targeting on the web and through mobile applications. This article analyzes the extent to which practices of RTB are compatible with the requirements regarding a legal basis for processing, transparency, and security in European data protection law.

We first introduce the technologies at play through explaining and analyzing the systems deployed online today. Following that, we turn to the law. Rather than analyze RTB against every provision of the General Data Protection Regulation (GDPR), we consider RTB in the context of the GDPR’s requirement of a legal basis for processing and the GDPR’s transparency and security requirements. We show, first, that the GDPR requires prior consent of the internet user for RTB, as other legal bases are not appropriate. Second, we show that it is difficult—and perhaps impossible—for website publishers and RTB companies to meet the GDPR’s transparency requirements. Third, RTB incentivizes insecure data processing. We conclude that, in concept and in practice, RTB is structurally difficult to reconcile with European data protection law. Therefore, intervention by regulators is necessary.

Although over the last thirty years an increasing number of scientific articles and books with diverse approaches have been published on the practice of constitutional adjudication, several methodological problems still prevail. The main deficiency of the systematic empirical research on constitutional adjudication consist in an unsophisticated dichotomous approach that separates the merely positive and negative decisions of constitutional courts, i.e. decisions that concluded in declaring the constitutionality or unconstitutionality of a given legislative act. This approach has been deeply inconsistent with the worldwide practice of constitutional adjudication, since the latter shows a widespread differentiation of judicial decisions over the last thirty years. In this study, we have elaborated a more sophisticated methodology for systematically mapping the manifold reality of constitutional adjudication, and measuring the strength of judicial decisions. In order to fit the research to reality, we have elaborated a scale to measure the strength of judicial decisions. This scale seems to be an appropriate tool to answer the main descriptive research question of our project: to what extent have decisions of constitutional courts constrained the legislative's room for maneuver? The present methodological paper focuses on the problem how to measure the strength of judicial decisions vis-à-vis the legislation and shows, by means of the first results of a pilot project, how this new methodology might be applied.

Just one day after the attacks of September 11, 2001, the German minister of the interior, Otto Schily (SPD), demanded a new security concept. Immediately the existing security laws and precautions were placed under special scrutiny in search for any sorts of deficiencies. The results of these reviews were two legislative initiatives, termed “security packages” or “anti-terror packages,” which changed or altered numerous existing statutes. The new security laws contain a number of infringements into fundamental civil rights and liberties. The legislative process thus had to raise the issue of the relationship between security and civil liberties and weigh the balance between the protection of individual rights and collective security. This, however, does not constitute a new challenge for the German legislature. The collision of security interests with individual civil liberties has caused a legal problem in Germany for some time. September 11 might constitute a political watershed, but in the context of civil liberties in Germany, this date does not represent an important mark. The current measures have to be understood within the context of an at least thirty-year-long period of continuous weighing between security and freedom.

With the request for an advisory opinion on Kosovo opportunity knocked on the doors of the International Court of Justice. The opportunity was unique for several reasons. First, the case of Kosovo was momentous. It had involved war. International armed forces had intervened to stop ethnic cleansing. Since then, the situation of Kosovo has been politically loaded. It has polarized the entire international community. Second, it is a rare occurrence that such a situation comes to the Court. The regular case, if there is such a thing, before the Court has tended to be a relatively low-profile interstate dispute. The Kosovo incidence had only come to the Court in the first place—like the case of the Wall on the West Bank, the other recent high-profile exception—because the detour via the United Nations General Assembly had been open.

While the introductory contribution addressed the questions and definitions of our research into judicial lawmaking, this concluding chapter discusses strategies regarding the justification of international judicial lawmaking that our introduction sought to capture and that the volume set out to present. How can one square such lawmaking with the principle of democracy? A first response could be to negate the phenomenon. If there were no such thing as judicial lawmaking, there would evidently be no need for its justification. This response, though unconvincing, merits attention all the same because, according to the traditional and still widespread view of international dispute settlement, international decisions flow from the consent of the state parties to the dispute, both from the consensual basis of the applicable law and from consent-based jurisdiction. If state parties are democratic, then the presence of their consent should solve any legitimate question as long as the courts only fulfill their task of dispute settlement properly. This explains the emphasis that traditional schools of thought place on the cognitive paradigm and on the principle that judges are limited to applying the law to the dispute at hand.