In a remarkable decision the Federal Constitutional Court has declared a prominent provision of a new German anti-terrorism law unconstitutional and void. The decision attracted wide attention for its treatment of constitutional questions of human life and dignity as well as the constitutional limitations of so-called “security statutes.”

Available accounts on jurisdiction, effective control, and the reach of human rights protections fail to provide a coherent construction that is principled and applicable across the board, within and beyond territorial borders. The “functional jurisdiction” model posited herein resolves these incongruities by looking at the normative foundation of sovereign authority overall, predicated on an exercise of “public powers” through which State functions are discharged, taking the form of policy delivery and/or operational action, whether inland or offshore, and which translates into “situational” control. Using the pending case of S.S. and Others v. Italy as an illustration, the article focuses on the sovereign-authority nexus that unites a specific state with a specific individual in a specific situation, triggering human rights obligations even through mechanisms of “contactless control” exercised via remote management techniques and/or through a proxy third actor. The role of extraterritorial operations, qua complex mechanisms of governance that implement broader policies with a planning, rollout and post-implementation phase, is central to this re-conceptualization, as is also the understanding that what makes control “effective” is its capacity to determine the material course of events and the resulting position in which those affected find themselves upon execution of the measure(s) concerned.

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.

The current global financial crisis has necessitated a questioning of some of the fundamental theories and assumptions, particularly the free-market theory, on which regulation of business enterprises, including multinational corporations (MNCs), have been based. Specifically, in the area of corporate social responsibility (CSR), this paper explores two crucial issues. The first is the implication for our understanding of the obligations of corporations to CSR in light of the scale of impacts on ordinary citizens, and their role in bailing out failed banks which owed them no direct legal obligations. The second is the continued reliance on a voluntary framework for CSR. Just as the financial crisis resulted from the largely unregulated nature of global financial institutions, this paper demonstrates, through various country examples in the resources sector, that the unregulated nature of CSR obligations on MNCs has had dire effects, comparable to that of the financial crisis, on populations. If corporations have, through personal greed and irresponsibility, evidently failed to effectively regulate themselves even in their core areas of business necessary for their own survival, how much less do we expect of effective self-regulation in the area of CSR?

This article explores the challenges of the extraterritorial application of the right to be forgotten and, more broadly, of EU data protection law in light of the recent case law of the ECJ. The paper explains that there are good arguments for the EU to apply its high data protection standards outside its borders, but that such an extraterritorial application faces challenges, as it may clash with duties of international comity, legal diversity, or contrasting rulings delivered by courts in other jurisdictions. As the article points out from a comparative perspective, the protection of privacy in the digital age increasingly exposes a tension between efforts by legal systems to impose their high standards of data protection outside their borders – a dynamic which could be regarded as ‘imperialist’ – and claims by other legal systems to assert their own power over data – a dynamic which one could name ‘sovereigntist’. As the article suggests, navigating between the Scylla of imperialism and the Charybdis of sovereigntism will not be an easy task. In this context, greater convergence in the data protection framework of liberal democratic systems worldwide appears as the preferable path to secure privacy in the digital age.

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.

The issue of “constitutional identity” is a topic the relevance of which emerges in contemporary constitutional democracies in the context of constitutional changes. It has already attracted multilayered approaches, but its legal conceptualization is still underexposed. Based on regional European jurisprudence and doctrinal works, “constitutional identity” in a legal context is suggested to be viewed as the “identity of the constitution.” The identity of the constitution is found among provisions of constitutional texts and related jurisprudence that specifically and exclusively feature a status that was constituted during the constitution-making process and shaped by either formal or informal constitutional amendments. The legally applicable “identity of the constitution” comprises those articles that can be employed vis-à-vis EU law and unconstitutional amendments, and which are arguably intended to be applied in the face of international human rights obligations. It is posited that Germany and Hungary exemplify the “confrontational with EU law model,” while the model that emerged in the jurisprudence of the Italian Constitutional Court should be called the “cooperative model with embedded identity.” Today, it seems that the very content of the identity of the constitution of a particular Member State may be shaped and preserved through an active and cooperative dialogue between the supranational and national courts, if there is an inclination to find uniqueness in a community based on common legal traditions and values—Germany and Italy. Another way of determining the content of “constitutional identity” is to fiercely try to demonstrate that uniqueness. This is what Hungary seems to be engaged in, and that is why it may be proposed to call the Hungarian model a model of confrontational individualistic detachment.

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.

The recent decision by the German Constitutional Court in Neubauer et al. versus Germany has been attracting considerable attention around the globe. The Court ordered the German legislature to correct and to significantly tighten up existing climate law provisions, to increase the ambition of these provisions, and to strengthen future mitigation pathways. Several commentators have hailed it as an example of what is possible when the judiciary steps in to fill gaps in global climate governance as a result of governments failing to act or acting inadequately. In this article, I explore the extent to which the Court in Karlsruhe has innovatively managed to embrace a holistic planetary view of climate science, climate change impacts, planetary justice, planetary stewardship, earth system vulnerability, and global climate law, within the context of a human-dominated geological epoch, to guide its reasoning and findings. My proposal is that courts will have to increasingly follow a planetary perspective that is grounded in the Anthropocene context when adjudicating matters related to global disruptors such as climate change. This decision offers a first, and important, example of a promising new paradigm that I term planetary climate litigation.

The case law of the Court of Justice of the European Union (CJEU) is one of the most important sources of European Union law. However, case law's role in EU law is not uniform. By empirically studying how the Court uses its own case law as a source of law, we explore the correlation between, on the one hand, the characteristics of a CJEU case—type of action, actors involved, and area of law—and, on the other hand, the judgment's “embeddedness” in previous case law and value as a precedent in subsequent cases. Using this approach, we test, confirm, and debunk existing scholarship concerning the role of CJEU case law as a source of EU law. We offer the following conclusions: that CJEU case law cannot be treated as a single entity; that only a limited number of factors reliably affect a judgment's persuasive or precedential power; that the Court's use of its own case law as a source of law is particularly limited in successful infringement proceedings; that case law is particularly important in preliminary references—especially those concerning fundamental freedoms and competition law; and that initiating Member State and the number of observations affects the behavior of the Court.

In light of the persisting economic crisis, momentum has been building in the European Union to embark, once again, on a path towards a more differentiated integration. The calls in favor of the so-called two-speed Europe have sounded increasingly loud and have come from diverse, but highly influential corners of European socio-political life. Against this backdrop, and with an eye to the historical experience with differentiated integration in the EU, this article examines the following: Just how plausible the emergence of a more differentiated Union actually is at this time; if plausible, what form such differentiated Union could take; and whether this development is normatively attractive or not.

What song the Syrens sang, or what name Achilles assumed when he hid himself among the women, although puzzling questions are not beyond all conjecture.

What is so fundamental in terms of the protection of human rights in Europe that it requires the same standards for all countries and what, by contrast, would be better dealt with by each State's organs in line with verbigratia Michael Walzer's-related notion of “thick morality”?. Where should the line be drawn between unity and diversity notwithstanding the resulting risk of human rights cultural relativism associated to the latter?. On what grounds could the axiomatic universality of human rights possibly be connoted in a continent which prides itself on possessing the most developed regional system for the protection of human rights world-wide in view of the resulting risk of legal contagion to other systems for the protection of human rights and, even, to general international law that such a practice can trigger?. At the end of the day, these are the sort of questions that the study of the margin-of- appreciation doctrine raises. The Trojan Horse-like character of the Strasbourg's judge-made margin-of-appreciation doctrine within the European human rights protection system has long since bothered human rights lawyers. Cases of reliance on this review doctrine have been generally criticised as denials of justice for individuals, abdications by the Court of its duty of adjudication in difficult or sensitive issues or as a judicial diluting technique of the strict conditions laid down in the European Convention of Human Rights. This line of criticism, aimed at what from the viewpoint of some occupants of the bench is seen as “a well established and legitimate part of the convention's jurisprudence”, has been reinforced by the entry of 21 new Eastern and Central European contracting parties to the Council of Europe following the 1989-1991 events. With a current membership of 46 States, all of which have ratified the 1950 Rome Convention, it is further feared that the doctrine will increasingly become an open door for abusive limitations in the exercise of human rights in states who traditionally leaned towards human rights cultural relativism. Against this background, I will briefly look into the technical criteria used by Strasbourg's judicial interpreters to factually implement this “much maligned notion” or, as one commentator has put it, this “manière pseudo-technique d'évoquer le pouvoir discrétionnaire que les organes de Strasbourg ont estimé reconnu aux Etats par la Convention dans certains cas”. I will, secondly, provide a basic overview of the general doctrinal positions one can adopt regarding this long debated question.

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.

Few books have attained the influence and impact of Martti Koskenniemi's From Apology to Utopia (FATU); fewer still could have made anything like such an impact with a publication run and consequent distribution as small as FATU's. Thus, as has undoubtedly been said before, and will undoubtedly be repeated subsequently, Cambridge University Press must be congratulated on their decision to publish a new edition, with a far larger print run, and wider distribution.

Botnia S.A./Metsä-Botnia Oy's construction of the Orion pulp mill in Uruguay raised concerns regarding violations of national, regional, and international law with regard to social and environmental protection. On 18 April 2006, the Center for Human Rights and Environment (CEDHA), an Argentinean non-governmental organisation, submitted to Finland's National Contact Point (NCP) a “specific instance” regarding the possible non-compliance of Botnia S.A. (a Finnish enterprise) with the OECD Guidelines for Multinational Enterprises (OECD Guidelines for MNEs, Guidelines) when building the envisaged pulp mill in Uruguay. According to the Center for Human Rights and Environment, Botnia S.A. violated the OECD Guidelines for MNEs especially with respect to Chapter II “General Policies”, Chapter III “Disclosure”, Chapter V “Environment” and Chapter VI “Bribery”. Specific instances concerned with related issues were filed by the Center for Human Rights and Environment with the Swedish and Norwegian NCPs against Nordea, a leading financial services group of the Nordic and Baltic Sea area, for possible financing of Botnia S.A.'s pulp mill project and against the Finnish state bank Finnvera for providing export guarantees to Botnia S.A. Other fora that have in the meantime become involved in the issue are the International Court of Justice and member institutions of the World Bank Group, the International Finance Corporation and the Multilateral Investment Guarantee Agency.

This paper makes the claim that the legal framework governing the European Stability Mechanism (ESM) is contradictory, conceptually incoherent and may be characterized as a circumvention of Union law. It is further claimed that such circumvention, and the resulting establishment of a significant permanent institution outside and beyond the scope of the Union legal order, represents a challenge to European democracy and to the principle of respect for the rule of law.

In the literature on emergent populism and nationalism in post-communist Eastern Europe, two main assumptions regarding the origins of the phenomenon can be distinguished. One line of argumentation holds that the unexpected resurgence of populism and nationalism after the collapse of the communist regimes is a direct result of the ‘valley of tears’ that characterizes the post-communist transformation from a communist, centrally planned system, to a democratic, market society. The ‘social costs’ of the transition and the still ‘incomplete’ nature of modernization make a large number of ‘modernization losers’ susceptible to mobilization by populist movements. The emergence of populist, nationalist movements should be understood as a radical form of protest against the degradation of the quality of life and widespread social dislocation and unemployment. A second explanation for the phenomenon is that populism and its naturalist, exclusivist portrayal of the nation is the result of the re-emergence of deeply, culturally ingrained perception of social belonging, and of the foundations of the polity, in which the social whole is considered prior to the individual, and in which local culture is valued differently from Western culture. In this explanation, the structural difference between Eastern and Western Europe is emphasized, a difference that can only be overcome by the former adopting the political model of the latter.

In the legal literature on European integration there is a rather stereotyped tendency to constantly discover new elements of rupture with the past. In the legal domain, at every step we are confronted with some revolutionary novelty arising from European institutions and practices; on a regular basis, we face innovations which are said to mark significant developments in respect of the traditional forms of international governance as well as in respect of the traditional forms of national federalism. The vast literature on the interpretative criteria adopted by the European Court of Justice (hereafter the “ECJ”) only partially escapes this tendency. Surely the experience of European legal integration does not lack revolutionary ruptures and, also from the viewpoint of legal argumentation, it is true that the interaction between jurists coming from different legal experiences has produced some novelties: for example, an increasing hybridization and crossover effect (“Europeanisation”) between patterns of legal reasoning which are characteristic of different national legal cultures. However, this phenomenon has been largely tempered by the typically French syllogistic judicial style of ECJ's rulings. Moreover, despite the novelties identified, the literature on Community law interpretation cannot deny the apparent fact that the interpretative criteria and, more generally, the legal argumentation techniques of the ECJ are essentially the same ones which are familiar to the national legal contexts. It would be surprising if this were not the case, since the judges of the ECJ are trained within the national legal systems and the judgments of the Court are generally expected to be implemented by the national courts. Their grounds must thus be perceived as being legally sound, and not merely political or evocative.

On April 9th, the entire world watched as American troops threw a noose round the neck of the dictator and, surrounded by jubilant throngs of Iraqis, pulled him off his pedestal. The apparently unshakeable monument tottered, and then finally fell. But before it crashed satisfyingly to the ground, there was a momentary pause before the force of gravity could overcome the statue's grotesquely unnatural, horizontal posture. Bobbing gently up and down, the massive figure clung, for one last moment, to its horror.

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.