On 7 February 2006, a chamber of the European Court of Human Rights gave judgment in the much awaited ‘Ostrava case’, which challenged the placing of disproportionate numbers of Romani children in ‘special schools’ for the learning impaired in the Czech Republic. This practice, widespread across Central and Eastern Europe, amounts in effect to racial segregation and denies Romani children access to a standard of education comparable to their non-Romani peers. The Ostrava case, taking eight months to assemble and seven years to reach judgment day in Strasbourg, represented the centre-piece of the litigation strategy of the Romani rights movement. The decision of the Strasbourg Court to ignore the evidence of indirect racial discrimination by a 6-1 majority represents not only a setback for those working for the improvement of the situation of the Roma – widely acknowledged as the most disadvantaged, discriminated and marginalised group in Europe – but also for the crystallisation of non-discrimination norms in Europe.

The European Commission's White Paper on European Governance has attracted numerous critical comments. Some scholars seem to suggest that the whole project was over ambitious and doomed to failure from the outset, since the Commission could not complete the project without calling into question its own functional self understanding. Broadly speaking, most of the comments in the White Paper draw attention to the neglect of what is considered the European Union's core problem, that is the presumed lack of democratic legitimacy.

The concept of rupture straddles the space between revolution and reform, anarchy and order—a paradoxical term to demarcate, on the one hand, the possibility of a complete falling away of one systematization, without necessarily initiating some new regime, and on the other hand, the conditions of improvement and renewal, an opportunity of reassessment, and quite often re-entrenchment. Thus, rupture is not necessarily the same as speaking about revolution, or even emancipation for that matter, because it does not necessitate any giving up of a certain system of ideas or authority, at least not in any longstanding sense. To put it bluntly, it is neither progressive nor reactionary, but in some sense, perhaps best understood, and I will expand on this shortly, as simply the very conditions of establishing and/or maintaining any symbolic order (by which I mean the albeit uneasy synthesis of political, social, economic, religious relationships that constitute what ends up getting called a ‘system’ or ‘order'). Rupture is a strategy, in other words, of both understanding and political action, but which itself carries no necessary affiliation with any ideological disposition. We might say, therefore, to speak of rupture is to enlist a set of concerns, disagreements, traditions, ideas, and so on, that are useful when attempting not just to describe a situation, but to move towards some political decision as a group, though what exactly that would be is open to contestation.

This special issue aims to investigate the regulatory challenges facing the EU with regard to security governance in the broad area of the fight against financial crimes and by adopting a wider outlook on how to map and understand these phenomena in their salient contexts. In recent years, security as a key word can be witnessed as increasingly penetrating policies on a national, international, and supranational level. This development is also visible in EU policies, inter alia in the EU's policy concerning the area of freedom, security, and justice (AFSJ). Coupling the word security to the concept of governance in the somewhat thought-provoking phrase “security governance” prominently cements its position in the entirety of processes and mechanisms that steer people as well as corporations or markets. Security in the EU internal context concerns to a great extent the fight against terrorism and its financing as well as the policing of EU borders. Security in this regard concerns the structure of EU law and how it can be justified at the macro-level.

Of all anti-terror-laws adopted in Germany in the last thirty years, one of the most famous measures is certainly the so-called Kontaktsperregesetz, an Act introducing the possibility of incommunicado detention in the case of imminent terrorist threats. It is the prime example of how far reactive legislation can go, under the pretext to fight terrorism. This form of incommunicado detention was adopted in 1977, by introducing a new section (section 4, Sections 31–38) to the Introductory Act to the Judicature Act (Einführungsgesetz zum Gerichtsverfassungsgesetz, hereinafter EGGVG). The provisions were enacted in response to a particular terrorist incident, and have not been applied since. Surprisingly enough, in April 2006, a seemingly new provision was added to this regime (Section 38a EGGVG), however, as we will later see, this regulation is in fact not new, but has only changed its systematic position within the enormous legislative forest of Germany, and, at the same time, its legal nature (from transitory to permanent). Section 38a EGGVG extends the scope of application of incommunicado detention considerably, by allowing it to be used not only in terrorist cases, but also for other forms of criminal organizations like mafia. It thus increases the possibility of prisoners to be absolutely isolated from other inmates, family, friends, and even from their defense counsels, for up to thirty days; a period which can be prolonged for an indefinite period of time, provided that certain requirements are met.

This Article argues that distributional concerns constitute the heart of environmental regulation; they are not restricted to pre-policy values or post-policy effects that need to dealt with. On the contrary, they characterize the selection of environmental policies, and their properties. Different interests, preferences, and values with respect to a policy instrument can be made commensurable using the language of distribution. The centrality of distribution as an organizing principle may be elusive on account of it being too vaguely construed or too narrowly defined. This necessitates the articulation of a typology of distributional concerns. To this end, it is suggested that the distribution of benefits and burdens, distribution of responsibility, distribution of membership and distribution of capabilities could be useful categories to develop and assess environmental regulation. This framework is then applied to an unsuspecting candidate, the European Union Emissions Trading Scheme (EU ETS).

The European Council of Lisbon (December 2000) formally adopted the Open Method of Coordination (OMC) as a means to implement the Lisbon Strategy, a package of policies aimed at promoting economic and social innovations in the member states. The Open Method of Coordination is a means of governance based on the cooperation of member states. The formal introduction of the OMC, based on policy coordination at European level in order to induce change in national policies, triggered a lively scholarly debate on the role of new modes of governance in the EU. New modes of governance are roughly defined as non-hierarchical forms of political steering that rely on policy coordination among a multitude of institutional actors and across government levels. Scholars have coined a variety of terms to capture the characteristics of these governance modes, such as soft modes of governance, network governance, multilevel governance, experimental governance or, as we call it here and elsewhere, innovative governance. Despite the wide variety of terms, scholars hold several assumptions in common. Thus, most scholars assume that new modes of governance have only recently emerged. Furthermore, they assume that such modes of governance particularly emerge in policy areas where the Union lacks competences, while some form of common action is needed. Finally, many scholars take it for granted that non–hierarchical modes of governance result in weak impacts.

Following a three-year investigation, on August 30, 2016, the European Commission (EC) released its decision in the Ireland-Apple State aid case. The EC found that Ireland had breached the Treaty on the Functioning of the European Union because the manner in which Ireland had determined the tax payable by two Apple subsidiaries was not consistent with the arm's length principle and/or it was not based on objective criteria. This meant that Ireland had selectively favored Apple and provided the firm with State aid. The EC decision provides an example of how aggressive multinational enterprise (MNE) tax minimization is anti-competitive. The Ireland-Apple case also provides an illustration of how a lack of transparency and incoherency in MNE definition contribute to aggressive MNE tax minimization. States' reactions to the EC decision are further telling because they show how MNE tax minimization engages the self-interest of States. This suggests that efforts to combat aggressive MNE tax minimization, such as the OECD's Base Erosion and Profit-Shifting Action Plan, face complex State motivations in effecting change on the international level. Profit haven States have the most to lose if MNE tax minimization is effectively addressed. In addition, MNE home States may be at times loath to support changes to the system which favors “their” MNEs at the expense of other States' tax revenues. It is as if some home States view MNEs as their privateers, with such MNEs operating internationally under the tacit approval of their home States to aggressively avoid paying taxes to other countries. Home State leadership may be mistaken in thinking that MNE tax minimization is in their favor because MNEs are largely free agents and aggressive MNE tax minimization is dearly costing nearly all states.

“A harmonious society needs a stronger legal system that wields greater authority.”

“He,” the Chinese character for harmony, is now in everyone's mind when thinking about contemporary China. Harmony and other ‘Confucian values’ seem to have penetrated all spheres of Chinese society, from the Communist Party's elite to business leaders and academics. But Confucius is both used and abused: quoting the philosopher at the start of the Olympic Games Opening Ceremony in a kitsch historical extravaganza featuring 3,000 men dressed up as his disciples does not clarify the true political meaning of an increasingly ideologically eclectic regime. On the contrary, it leads, to borrow Claude Lefort's term, to further “complications.” Thus, the interest in the idea of a ‘socialist harmonious society’ stems less from what it holds aloft than from what it hides.

For some months now and with special intensity in the past few weeks, a battle over legal process – what may or may not the United States do militarily in Iraq without new authorization from the UN Security Council, and at what stage and under what conditions should a Council resolution give such authorization? – has simultaneously become a battle over what words in a resolution will be sufficient to count as implicit authorization. The current diplomatic discourse around a new Iraq resolution is focussing on one or more “hidden triggers” in the draft text presented by the US on October 21.

Despite the shock provoked by the Snowden revelations, mass surveillance is still a reality in the EU. However, over the past few years, it has been possible to observe a gradual constitutionalization of these practices. This Article maps the ongoing process of progressively defining the constitutional limits and societal affordances of mass surveillance in the EU by focusing on the three main actors who contribute to it. First, this Article presents civil society as the propeller of this trend. Civil society not only advocated for a ban on general surveillance systems in the aftermath of the Snowden revelations, but also promoted a series of strategic litigations to challenge state surveillance practices at national and EU levels. Second, it analyses CJEU case law as the main constitutionalizing engine of this process. The Court pragmatically ascertained that an absolute prohibition of mass surveillance did not appear to be a realistic solution and put significant effort into actively defining the legal boundaries of these practices by striving to find an equilibrium between Member State interests and citizens’ fundamental rights. Third, it considers the approaches taken by national legislators to be a slowing factor. States are still reluctant to incorporate the constitutional standards progressively developed by courts despite the now significant body of judicially created parameters in the field.

This article explores the debiasing role of the mediator in the setting of international disputes. Starting from the rational choice theory, this article examines the choices that international disputants must weigh when deciding how to proceed with their conflict. International actors are assumed to be rational and negotiate settlements that are beneficial to them. Their alternatives to a negotiated settlement include both adjudication and continuation of the conflict. Puzzlingly, despite the advantages of negotiated settlements, many international disputes are not resolved in the form of a settlement. Instead, States seem to prolong conflicts or follow costlier routes of formal adjudication. Behavioral Law and Economics insights on the biases of disputants partly explain this phenomenon. The article contributes to the behavioral discussion by examining two separate categories of biases, i.e., biases when deciding to enter negotiation and biases during negotiation. Following that, it suggests that the specific characteristics of the process of mediation and of the mediator, in particular, can act as debiasing instruments. The article concludes with normative suggestions for wider incorporation of mediation within the international dispute settlement setting.

This Article evaluates the merits and problems of comparative constitutional law as an interpretive means by the courts. It pleas for a nuanced perspective towards both agents and methods of comparative constitutional law. The Article is in favor of the use of comparative constitutional law by the courts. However, challenges as to the legitimation of comparison in court, functional limits of comparative constitutional law in the judiciary, and methodological questions remain to be solved. As far as constitutional and supreme courts are concerned, this Article argues that arguments derived from comparison should be regarded as a means of persuasive reasoning.