In the European Union the legislature has, in the past years, established an increasing number of agencies, granting them increasingly important powers. This phenomenon of agencification is legally problematic because it does not have a legal basis in the EU Treaties. In order to better understand the challenges posed by EU agencification, this Article looks at similar agencification processes in two other federal-type polities, the U.S. and Germany. Germany is especially relevant to understanding the vertical (federal) dimension to EU agencification, while the U.S. experience can inform us about the horizontal (separation of powers) dimension. This is done by looking at three distinct issues: The question of the initial establishment of a new body at the EU (federal) level, the extent to which powers can be entrusted to such a body, and the degree to which the decisions adopted by such bodies are judicially scrutinized. The Article concludes that EU agencification poses a greater risk than agencification in Germany or the US because control is partially less well-established (compared to Germany) and because the EU polity is much less mature (compared to the U.S.).

The so-called refugee crisis has triggered a broad and divisive political discussion about overrun national borders, crumbling state sovereignty, and the disintegration of democratic governance resulting from an alleged disregard for the law by the German Federal Government. Many critics have advanced arguments that are nothing more than hot-tempered polemics based on blunt legal or theoretical misconceptions. Nonetheless, it is obvious that external boundaries played—and will continue to play—a pivotal role in managing the inflow of migrants into the European Union, which is surrounded by areas of political instability, authoritarianism, poverty, civil war, and religious extremism. This Article addresses the function of territorial borders for a liberal democracy from the perspective of constitutional theory. It demonstrates that effectively controlled outer boundaries are an adequate democratic answer to an instable, fragmented, and fragile world, while avoiding the pitfalls of defining political and social membership by substantive and inescapable criteria, such as ethnicity.

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.

The outbreak of the financial and economic crisis in 2008 had a severe impact on the member states of the European Union. Countries like Greece had to ask the Troika (the European Commission, the European Central Bank and the International Monetary Fund) for financial aid. In return, they were obliged to reduce public spending and, as a result, national social security systems were drastically reformed. Furthermore, the EU has exercised its competences to supervise national budgets more extensively, even for countries not applying for financial aid through the Country Specific Recommendations under the European Semester. Like the decisions providing financial support, these recommendations also touch upon member states' social security systems. Moreover, the actions of the EU seem to generate a tension between the social rights provisions in (inter)national human rights instruments and the EU economic monitoring process, hence creating a possible deficit at the level of the EU. The five collective complaints against Greece under the framework of the European Social Charter (Council of Europe) illustrate this tension. This Article investigates this tension further and provides insights in possible ways to close the gap between (inter)national social rights provisions and the EU economic monitoring process by looking at the right to social security in the EU legal order. In doing so, this Article scrutinizes the judicial safeguards available at EU level, namely the right to social security in the Charter of Fundamental Rights (CFEU) and the role of general principles of Union's law for the protection of fundamental rights. It will become clear that a lot of uncertainty still remains regarding the content and scope of the right to social security in the CFEU, as well as the enforceability of this provision in the EU economic monitoring process.

Germany is the country of legal methodology. No other country saw such an intense academic discourse on the question of what jurists are able, allowed, and supposed to do when interpreting and applying the law. This German peculiarity is tightly linked to the history of the German Civil Code (BGB). Carefully worded and systematically precise, this codification had the potential to significantly limit judicial freedom; thus, its advent marked the beginning of the German methodological debates. The following Article examines this relationship, starting with the year 1874 (when preliminary work on the Civil Code began) and continuing with an analysis of the five political systems during which the BGB was in force: the German Empire (1900–1914), the Weimar Republic (1918–1933), the National Socialist period (1933–1945), the GDR (1949–1989), and the Federal Republic (1949–today). With the exception of the GDR, the methodological debates consistently show attempts to enable judges to adapt the law to real life conditions, or to political ideas in conflict with the BGB, without formally moving beyond extant law. At the roots of 20th century methodological debates, one can thus discern a profound mistrust of German legal academia with regard to both the legislature and the judiciary. Jurists had no confidence in the BGB, which was criticized for being inflexible, outdated, and politically unsound. They did not trust in the freedom of judges either, trying instead to somehow bind them, be it to “life,” “reality,” “justice,” “sense of justice,” “national order,” or “Christian Natural Law.” It was not until 1958 that the Federal Constitutional Court was entrusted with the task of dynamically shaping the guiding values of society, thus forcing both the legislator and the courts to adapt the BGB to these principles. As a consequence, the heyday of German methodological debates surrounding the BGB slowly came to an end.

Britain has voted to withdraw from the European Union. This is a victory. For European populists. For Putin's Russia. As well as for the new world system of governance, what Victor Orban has called “illiberal democracy.” The era of the modern West, in the form that emerged out of the ashes of the WWII, is coming to an end. The West alone is to be blamed for that. As it has been hit by one crisis after the other, the West has continued to merely scratch the surface in looking for ad hoc, immediate, and almost exclusively economic solutions. The emphasis is always on the symptoms but never on the disease. In so doing, the West has turned a blind eye on a process of deep, internal transformation. The post-Brexit debate that will ensue in the following days and months will most likely stay faithful to this legacy. The discussion will remain superficial, preoccupied with economic and political questions, limited to the short-term quests of reorganizing the EU in pursuit of its long-term viability. But I want to insist that the challenge is much bigger than the future of the EU. It is about the preservation of the West, understood here as a synonym for liberal democracy and the commitment to the rule of law. We are confronted with the difficult—even terrifying question: How are we to build a new modernity on the debris of the modern post-war West in order to avoid repeating the bitter historical experiences of the pre-war Europe.

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.

While the Kadi affair has attracted a lot of attention, this Article approaches it from a rarely used contextual theoretical perspective of resolving institutional conflicts through reflexive sincere cooperation. The argument is short and simple: The institutional relationship between the EU judiciary and the UN Security Council should have been conducted not in strategic-pragmatic terms motivated by institutional power-plays, but rather by genuine pluralist institutional cooperation. The argument is preceded by an in-depth analysis of the theoretical and concrete practical shortcomings stemming from the lack of institutional cooperation between the UN and the EU in the Kadi affair. These shortcomings were not inevitable, as the EU and the UN legal and political systems are already connected with a whole set of bridging mechanisms. These should be, however, strengthened and their use should be made more common. In order to achieve that, the Article suggests an amendment to the Statute of the Court of Justice of the EU and further improvement of the safeguards in the UN Security Council sanctioning mechanisms procedures. There is no dilemma: Enhanced institutional cooperation between the institutions of the two systems will work to their mutual advantage as well as, most importantly, maintain the rights and liberties of individuals like Kadi.

What does Brexit mean for the European Union? One can try to predict the consequences, but one can also ask what messages the vote reveals, what it tells us about the state of integration. Is Europe a market, a project of identity-building, or one of political integration? What does Brexit tell us about each of these?

The European Union (EU) Member States have experienced the recent refugee protection crisis in the EU as a de-facto loss of control over their borders. They find themselves unable to subject entry into their territory to a sovereign decision. In response, the Member States have sought to regain full sovereignty over matters of forced migration, both unilaterally and cooperatively, seeking to govern a phenomenon—forced migration—that by definition defies governance. Unilateral measures include forced migration caps and a search for ways to circumvent responsibility under the Dublin system. Cooperative efforts by EU Member States include the search for ways to more effectively govern forced migration at the EU level and beyond. Supranational EU efforts include the introduction of an internal relocation scheme and support for Italy and Greece in processing asylum claims in so-called “hotspots.” Beyond the EU, Member States are seeking to externalize protection responsibility to third world countries under international agreements, in particular, by returning asylum seekers to Turkey. This Article outlines the unilateral and cooperative governance efforts undertaken and shows that states' sovereign decisions over migration are significantly limited in the case of forced migrants, both by EU law and by international law.

This Article takes a preliminary look at some distinct, unintended effects of anti-bribery law. In an exemplary and exploratory way, it intends to examine structural socio-legal problems and dilemmas of designing and implementing legislation against corruption. Firstly, it outlines four ideal types of legal norms that are meant to combat corruption but display significant negative features. Secondly, the typology is briefly applied to selected recent developments in German federal anti-bribery legislation. The Article concludes, inter alia, that the design, implementation, and interpretation of anti-corruption law is full of functional, legal, political, and moral pitfalls.

Google's position in the information market has caused interesting legal developments insofar as its obligations are concerned. On various grounds, courts worldwide have begun to impose injunctions on Google that require the company to withdraw the search results—in fact, information sources—that its search engines provide. This article looks at this recent phenomenon of imposing obligations on Google to withdraw some information through the lens of judicial dialogue. In particular, we analyze the “inspiring” role of the Court of Justice of the European Union (CJEU) in its Google Spain judgment. This case represents a clear migration of some ideas that might be perceived as universal. Some courts outside of Europe—such as Canada—are gaining “inspiration” from the CJEU's Google Spain judgment in order to reinforce their own decisions. The legitimacy and techniques of this process are also discussed in this article.

Today, the 1989 Revolution in East Germany is recognized and celebrated as the event that abolished the German Democratic Republic (GDR) and brought about German unification. What is mostly overlooked, however, is that these are not the Revolution's only and, from the perspective of constitutional law, not even its most important achievements. More important with respect to understanding constitutional lawmaking in Germany is that the 1989 Revolution did not lead to an unconditional adoption of West German constitutional law in the new East German states. Instead, the Revolution had its own constitutional agenda, which went beyond the West German Basic Law and was transferred to unified Germany where it then needed to be integrated into the existing West German constitutional order. The Article reinterprets the 1989 Revolution and shows how a revolutionary popular movement in the GDR developed its own constitutional agenda, which first found legal manifestation in GDR legislation, and then was transferred to unified Germany through the Unification Treaty and the new state constitutions.

The Article attempts to explore the fate of law and democracy in the euro crisis from the sociological perspective of systems theory. It consecutively ascertains the performance, the relevance, and the function of the law with regard to the current practice of restructuring sovereign debt in the euro area. While novel forms of regulation such as the European Stability Mechanism attest a remarkable assertiveness of the law, they cannot effectively command economic recovery and must cede to economic imperatives for their part. Under such circumstances, the law can no longer adequately fulfill its function to counterfactually secure normative expectations. Nevertheless, the regulatory experiments in the euro crisis may not be regarded as undemocratic. Rather, the heterarchical processes of mutual observation, recognition, and contestation among the various constituencies involved, including representatives of governments, institutions of the European Union, central banks, national parliaments and peoples via referenda, as well as European and national courts, provide some substitute for the lack of elections and parliamentary decision-making at the European level.

The world of EU law woke-up on June 24th with a hangover. Every member of our academic community is or knows well friends and colleagues studying and teaching EU law in the UK whose futures are in question. Yet, the referendum raises a larger scientific question for EU law. As well as the technicalities of divorce and variable geometry that will deservedly receive renewed attention, there is the broader question about the kind of political reshaping of EU constitutionalism that Brexit will bring about.

The Austrian asylum policy is shifting from a showcase of support to asylum seekers to one of the most restrictive in Europe. Recent amendments to the asylum law are due to the massive influx of asylum seekers in 2015/2016 as a result of which Austria has accepted the second largest number of asylum seekers per capita in Europe. The Austrian government first responded by setting an upper limit of asylum applications from 2016 and then by creating the possibility of suspending its obligations under international and European asylum law. Both measures are legally doubtful and based on the assumption that if the upper limit is met this may threaten the maintenance of public order and the protection of internal security, which is not possible to prove. The contribution provides a legal analysis of the recent legal developments in Austrian asylum law, which are reviewed from the perspective of international and European asylum law as well as human rights. It concludes that the Austrian measures are part of a race to the bottom of European countries with the purpose of keeping refugees away. They cannot be justified from a legal perspective and create a threat to the respect for the rule of law.

Post-communist Central and Eastern European ('CEE') legislators and judges have been resistant to equality and antidiscrimination law. This Article argues that these negative attitudes can be explained in part by the specific trajectory that EAL has taken in CEE during and after state socialism, which has differed from Western Europe. In the UK/EU, the formal guarantees of equal treatment and prohibitions of discrimination of the 1960s and 1970s were complemented by a more substantive understanding of equality in the 1990s and 2000s. This development was reversed in CEE—substantive equality, of a certain kind, preceded rather than followed formal equality and antidiscrimination guarantees.

The State Socialist concern with equality was real, and yet the project was incomplete in several significant ways. It saw only socio-economic, but not socio-cultural inequalities (relating to dignity, identity or diversity). It was transformative with regards to class, but not other discrimination grounds, especially not gender. While equality was a constitutionally enshrined principle, there was an absence of any corresponding enforceable antidiscrimination right. Finally, the emphasis on the “natural” differences between the sexes meant that sex/gender discrimination was not recognized as conflicting with women's constitutional equality guarantees.

The relationship of social morals and laws becomes particularly crucial and problematic with regard to foreign bribery. This is because of three reasons: Foreign bribery is embedded in social actions, has a transnational character, and is mostly committed in business contexts. Therefore, the author reflects on the relationship of social morals and laws. The author argues that even though social morals and laws have to be distinguished on a conceptual level, it is wise to work towards a factual synchronicity. In this context, the author provides some suggestions for linking social morals and anti-bribery laws more closely. However, this linkage becomes especially problematic regarding extraterritorial criminal liability. Nevertheless, after a critical examination the author concludes that the reproach of moral imperialism is not substantial.

The aim of this Article is to re-conceptualize the debate about the (theoretical) relationship between international and national law, which has been debated for centuries. Generally, the floor is divided between dualism as developed by Heinrich Triepel and monism developed mainly by Hans Kelsen. In the light of new developments since their inception, I argue that these theories can no longer comprehensively explain the relationship between international or European Union (EU) and national law. Yet, the Article is based on the conviction that a common denominator of international and national law is elementary (i.e. here “the law creators' circle,” in German, “Die Theorie des Rechtserzeugerkreises,” in short “TREK”) in order to solve possible norm conflicts between different but overlapping legal orders. Therefore, pluralism is also limited in my eyes because it does not offer a satisfying prescriptive account. This common legal framework, however, must not be understood as the “constitutionalization” of international (or EU law) either, as this easily implies too many substantial values, which are not (yet) a common reality.