The bewildering number of articles and books which concern or touch upon the European constitutional debate remind one, at times, of a children's orchestra in which each child plays as loud as possible (more in order to hear themselves than to make themselves heard) and without listening carefully to the parts of others. The result is, simultaneously, an inharmonious cacophony of individual instruments to the skilled listener; an encompassing and confusing wall of sound to the amateur. Refined only slightly, the crude and unoriginal analogy is not far off the mark in describing the community of scholars working in the field of European constitutionalism: it is rare to find a commentator willing to grasp the score as a whole; most choosing, instead, to focus only on their section. Interdisciplinary research seems to be just as often proclaimed as it is ignored. While it would be both undesirable and impossible to have (keeping with musical metaphor) everyone singing from the same song-sheet, an orchestra can accommodate a wide variety of sounds and parts before it descends into the sort of tuneless noise one associates with so many school orchestras.

On 17 September 2001, the Federal Court of Justice (Bundesgerichtshof) handed down a landmark decision regarding liability within corporate groups (“Konzernhaftung”) which is likely to give an entirely new direction to the law in this field. Most notably, the Court held that, in spite of the fact that the case concerned a by now classical example of a corporate “daughter” incurring serious financial losses due to management decisions taken by its corporate “mother”, resulting in the erosion of the daughter's financial basis, the Court exclaimed the statutory as well as judge made law regarding corporate liability within corporate groups as not applicable in this case. Thus casting somewhat aside a great and complex bulk of company law in form of a rather ambiguous and quite eruptively evolving law of corporate liability within corporate groups, the Court held that tort law and criminal law would be applicable to the case in point. Paradoxically, it is the Court's apparent shifting away from corporate group liability that might allow for a clearer view on the applicable company law in an area that has, for a long time, been dominated by heated debates about the Court's ambitious interpretation of the relevant norms, their reach and concrete application.

Why did the European Union (EU) leaders at the Laeken summit in December 2001 agree to a constitutional convention headed by the former French President Valéry Giscard D'Estaing to design a constitution for the EU when, according to the European Court of Justice (ECJ), the German Federal Constitutional Court, and many academic commentators, the founding treaties already form a constitution?

In a unanimous, surprising decision the Federal Constitutional Court (FCC) announced last Tuesday, 22 January 2002, that the hearing in the NPD Party Ban Case - scheduled for five days in early and late February - was suspended. The Court did not yet set a new date. The Court explained that facts had now become known to the Court that raised serious legal questions which can not be resolved in the two weeks before the scheduled hearings. Even the decision from October 1st, 2001, in which the motions by the Bundesregierung (German Federal Government), the Bundestag (Federal Par-liament) and the Bundesrat (Federal Legislative Chamber of the Länder) seeking a ban of the extremist right wing National Democratic Party (NPD) were ruled to be admissible and not evidently unfounded is called into question by the Court. The FCC had been told by a senior civil servant from the Federal Ministry of the Interior that there would be one so-called “V-Mann” among the 14 people to appear as witnesses before the FCC at the scheduled hearing. The motions to ban the NPD build upon numerous sources in order to show that the NPD seeks to undermine or abolish the “freiheitliche demokratische Grundordnung” (free democratic basic order) and therefore must be banned under Art. 21 (2) of the German Basic Law (“Grundgesetz. Among those quoted is the V-Mann, Wolfgang Frenz, a former high-ranking official of the NPD. The rather drastic reaction by the FCC to these news is explained by the significance of the information about the V-Mann, an often dubious source (infra I.) and the way this information made its way to the Court, which is a scandal in itself (infra II.). The fallout from the decision will be the subject of the closing remarks (infra III.).

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 accession of up to twelve East-European States to the European Union in the next decade is likely to change the possibilities for substantive consensus within the Union for the worse. Yet, the consensus on the means to pursue the objectives of the Union has thus far made European integration successful. Insofar as the feasibility of substantial consent between the Member States diminishes, the need to have rules and principles regulating the conflict between the relevant actors increases. These rules and principles must facilitate the creation of solutions to the new challenges that face the Union. Thus, it is essential for the Union's future that the law of the European Union offers both such rules and principles. One of the most outstanding principles which could perform this important task is the principle of loyalty as developed by the European Court of Justice (ECJ) based on Article 10 EC Treaty.

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.

Child protection practice has undergone major changes in the last decades. While traditionally welfare institutions as well as the law itself were mainly concerned with orphans and children of unmarried mothers, nowadays the practice focuses on children in need of protection because they have been neglected or abused by their parents. And yet, child protection measures have not been the focus of research, discussion and reform like other areas of the law concerned with children, for example parental custody after divorce. Recent reforms – or plans for reform – in some continental European states are not to be expected to bring substantive changes.

The parliamentary control of executive power in foreign affairs in Germany suffered two severe blows last November; one may wonder whether it will ever recover. First, on 16 November 2001, Chancellor Gerhard Schröder transformed one of the most important foreign policy debates in the Bundestag (Parliament) into a more general policy debate by combining the decision regarding the provision of German troops to the American-led, so-called “War on Terrorism” in Afghanistan with a vote of confidence with respect to his government, pursuant to Article 68 of the Grundgesetz (GG – Basic Law). With the fate of the Red/Green coalition government hinging on the vote, and the very existence of the Green Party at stake, it was not surprising that Foreign Minister Joschka Fischer (Greens), in his speech on the issue, took a tone more suited for a party convention than for a foreign and security policy debate. And although deploring that posture, most of the opposition speakers followed suit. It was a sad day for German parliamentary democracy. The failure of the Bundestag to live up to its responsibilities is even more apparent in the declarations that accompanied the vote, which show that a considerable number of members of the Bundestag voted for the government in spite of their continuing opposition to the provision of Bundeswehr (German Army) forces, the very conjunction rendered impossible by the use of Article 68. The use of this Article both quashed the existing strong parliamentary backing for the provision of German troops to the anti-terrorism effort in Afghanistan and elsewhere, and denied the Bundestag, and the German public, a serious debate about the first German military operation outside Europe since World War II, excepting the humanitarian contributions to UN missions in Cambodia, East Timor and Somalia.

It seems to be beyond any reasonable doubt that the events of 11th September 2001, and the subsequent responses thereto, will have profound and far-reaching effects on the discipline of public international law. What seems equally certain is that international lawyers in general, and particularly those schooled in the “European” approach to the discipline, will view these developments with varying degrees of gloom. In this article, however, I want to suggest that, in one small but fundamentally important area, the terrorist attacks may arguably have a positive effect on the progressive development of international legal norms.

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.

On 12 December 2001, the Grand Chamber of the European Court of Human Rights unanimously found the case Bankovic et al. vs. 17 NATO and ECHR- Member States (NATO Bombing Case) inadmissible.

On 11 July 2002, the Grand Chamber of the European Court of Human Rights (Eur. Ct. H.R.) ruled unanimously in the cases of Goodwin and I v. the United Kingdom that the failure of British law to recognize gender re-assignment and to permit male to female transsexuals to marry persons of their newly opposite sex violated the applicants’ right to privacy (Article 8 ECHR) and to marry (Article 12). These two cases, apart from constituting an explicit deviation from previous constant jurisprudence, gave the Court (sitting as a Grand Chamber) an opportunity to creatively apply its longstanding interpretative principles, including the search for a ‘common European approach’ – now increasingly an ‘international trend’ –, in order to evolve human rights law. The following observations will focus on this aspect, while paying due attention to the other implications of the present cases. Finally, the two cases will be placed in the context of the current jurisprudence of the Court which, unfortunately, does not show a consistent tendency to progressively advance human rights law.