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- Lehrstuhl für Volkswirtschaftslehre, insbesondere Wirtschafts- und Verkehrspolitik (Univ.-Prof. Dr. Dr. h.c. Andreas Knorr) (181)
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- Seniorprofessur für Verwaltungswissenschaft, Politik und Recht im Bereich von Umwelt und Energie (Univ.-Prof. Dr. Eberhard Bohne) (27)
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Legal acts performed by EU Member States applying Union law come within the scope of the Convention and can give rise to adjudication by the ECtHR. A long series of judgments illus-trate the ECtHR’s approach regarding the application of Union law by the courts of EU Mem-ber States. The Convention and Union law are not two autonomous systems separated by a watertight fence. Both European Courts should therefore adopt a wholistic approach in this area, because only a wholistic view takes full account of the legal reality which is one of inter-action and intertwining. The ECtHR makes abundant use of EU law sources, thereby always explicitly referring to them. Three different categories of cases can be identified in how the CJEU goes about the Convention in its case-law.
Rafał Lemkin (1900-1959): A life-long story of engagement in the development of human rights law
(2023)
This blog post aims to provide a brief overview of the life and work of Rafał Lemkin by ex-ploring his participation in the interwar and post-war international dialogue. It demonstrates a variety of means, including academic activities (research, publications, conferences), as well as diplomacy and personal relationships, which Lemkin used to disseminate his ideas and research. Despite having limited resources and being a refugee for much of his life, Lemkin drew upon his linguistic abilities and showed himself to be an extraordinary “constant negotiator”. His varied work experience, gained in the early stages of his career in Lviv and Warsaw, likely aided him in developing an inclusive perspective on law and human rights that later informed his ground-breaking work on genocide.
Trade relations face unprecedented challenges, which has led to an increased politicisation and contestation of trade rules. In response, the EU has changed its trade policy under the motto ‘Open Strategic Autonomy’ towards a more as-sertive policy. The EU seeks to signifi-cantly expand its room of manoeuvre and to gain more autonomy by strengthening the en-forcement of its trade rights and by ensuring more effectively, including unilaterally, a level playing field. This re-orientation engenders several new or amended trade policy instru-ments, but meets with reservations as the renewed politicisation of EU trade policy will have internal consequences and raise demands for more democratic accountability of the Euro-pean Commission. The new policy instruments will enlarge its leeway in trade policy. The future of the EU's multilateral, rule- instead of power-oriented political stance becomes unclear, which might undermine its negotiation posi-tion in WTO reform and collide with the EU's respect for international law. The tensions of the EU's new hybrid approach with its international commitments even more fuel demands for increased accountability of the Commission as a safeguard against employing the new powers for protectionism and disrespect to international law. The contribution analyses the need for increased Commis-sion accountability in the redirected trade policy.
The purpose of this chapter is to delineate and analyse current adjustments of Public Private Partnerships (PPP) in Germany in the context of the COVID-19 pandemic. Based on current data and official material, road infrastructure PPP was analysed, as demand for transporta-tion services is highly sensitive to fluctuations of overall economic activity. Accordingly, they do not only offer a good illustration of the challenges encountered by PPP operators in gene-ral but also – as road infrastructure PPP in Germany exist in different designs – important lessons may be learned with respect to their respective resilience in extraordinarily adverse economic conditions. One finding from the COVID-19 pandemic in Germany is that the case for public–private partnerships (PPP) become more compelling, also as an integral element of a large-scale reform package to massively improve the resilience of public service delivery to citizens and companies alike. Another important insight from the pandemic and the politico-administrative countermeasures is that massive pressure – both financial and in terms of the workload on the human resources employed – has been placed upon existing PPP, especially in critical infrastructures. The principal reasons are unforeseen or unexpected changes in user behaviour, affecting demand, and more difficult access to funding. These new insights demonstrate the relevance of anticipation of such events in the PPP contract, and the role of preparation for practitioners on both the private as well as the public side. Moreover, the findings provide leeway for further research on how the public administration, in particular in a federal multilevel system, can strengthen knowledge management and information exchange between single entities and stakeholders, and the role of PPP units as potential gatekeeper within this system.
Influence of "hard" law on national policies still is a central topic in Europeanisation research. One aspect often overlooked is the impact of "soft" law instruments such as the "Open Method of Coordination" (OMC). Through the OMC all member states agree on common goals and exchange "best practices" to improve policy coordination in a certain area without the obligation (how) to design policies. OMC impacts in individual member states have been studied extensively, yet a comparative perspective explaining their variance is lacking. This study by Niclas Beinborn tries to fill this gap by analysing the different impacts of a recent OMC: the European Youth Strategy 2010 (EUYS). His analysis is twofold: in a first step he applies theory-driven fuzzy-set QCA to a novel dataset depicting the variance of national activities around the EUYS. As causalities remain unclear, in a second step he presents an innovative analysis framework encompassing two dimensions - national motivation and relative openness to implement non-binding EU law - to define ideal types of OMC adaptation. Case studies on the EUYS in Germany and Ireland proof the potential of this framework to explain why and how OMCs work (differently).
This book explores how migrants and refugees can revitalise peripheral regions and commu-nities economically. The extent to which migrants stimulate the economic activities of these regions through labour market participation, entrepreneurship, innovation and consumption is examined theoretically and empirically for the EU as a whole, as well as through empirical case studies that highlight the impact of migration at macro, company, and individual levels. A particular focus is given to the economic consequences of Third Country Nationals to places beyond the cities, i.e. the peripheral and remote regions of Europe. This book aims to provide insight into the role of migrations in low productive and labour-intensive regions. The authors provide innovative policy recommendations to stimulate the positive economic con-sequences of immigration to places beyond the cities. It will be of interest to students, re-searchers, and policymakers working within labour economics and migration and integration policies.
The notion of civil service in Europe: establishing an analytical framework for comparative study
(2022)
The aim of this paper is to create an analytical framework for comparative study (FÖV project “The Transformation of the Civil Service in Europe”). It explores the scope and denotation of the terms “civil service” and “civil servant”. Its main argument is that a comparative legal ana-lysis should distinguish the notions of public service and civil service. Public service concerns a type of professional activity related to the exercise of all public power (legislative, executive and judicial). Civil servants are officials employed by the executive; they have special duties and responsibilities and are often subject to specific requirements. The employment regime is not decisive for the status of civil servant, due to the fact that government officials in Europe are employed both under public or private (labour) law. Nonetheless, they should enjoy stability of employment and exercise their competencies on a regular basis, not ad hoc.
The picture regarding the protection of fundamental rights in Europe today increasingly looks like a patchwork, due to a lack of coordination at different levels. Developments reinforcing that picture include the emergence of different methodologies for the application of funda-mental rights, Constitution-based challenges to European law by national Supreme Courts, codifications of existing case-law and the creation of so-called « hybrid » institutions. The resulting complexity is a challenge for domestic courts, a threat to the confidence of citizens and detrimental to the fundamental rights themselves, their special role and authority being gradually eroded by a general relativism. EU-accession could have an anti-patchwork effect and represent a chance for a general coordination of fundamental rights in Europe. Beyond making the Convention binding upon the EU, it would also have a pan-European (re)structu-ring effect by confirming the Convention as the minimum benchmark providing both the bedrock and the framework for any other national or European fundamental rights as well as for the necessary judicial dialogue on the latter. Good progress has been achieved since the resumption of negotiations for EU-accession, justifying cautious optimism as to the possibility to find adequate solutions to the outstanding issues.
‘Killer Flying Robots Are Here. What Do We Do Now?’, ‘A Military Drone With A Mind Of Its Own Was Used In Combat, U.N. Says’ and ‘Possible First Use of AI-Armed Drones Triggers Alarm Bells’ – these are just some headlines to a report issued by the UN Panel of Experts on Libya. What caught the international attention was the panel’s description of the following scene in Libya’s civil war: ‘[Forces] were […] hunted down and remotely engaged by the un-manned combat aerial vehicles or the lethal autonomous weapons systems such as the STM Kargu-2 […]. The lethal autonomous weapons systems were programmed to attack targets without requiring data connectivity between the operator and the munition: in effect, a true “fire, forget and find” capability.’
However, the disruptive potential of AI is not limited to out-of-control killer drones or the military context in general – nor does it only have a negative potential. AI and its global trade promote international development and technological innovation, thereby improving lives. Therefore, the efforts to build a legal and policy framework to harness AI’s benefits and thwart its dangers is in full swing. States, the European Union, international organizations, NGOs, and scholars alike come up with ways of achieving that end. The approaches to the issue are manifold. However, most focus either on instating rules on the development of AI, for instance, how to ensure AI is built ethically or on its use, ie, banning its use in lethal auto-nomous weapon systems (LAWS). Whereas all these efforts are important, a further layer of protection has not gained much traction: regulating AI’s global trade so that responsible actors can use it to benefit humankind while preventing it from ending up in the hands of irresponsible actors.
The legal instrument to achieve this end is international export control law. It aims to mitiga-te the risks to international peace and security associated with the proliferation of sensitive items to irresponsible actors while avoiding unreasonable restrictions on global trade, eco-nomic development, and technological innovation. However, the international export control law is not yet suited to fulfill its promise regarding AI. The dual use nature of AI poses signifi-cant risks to international peace and security. Nevertheless, only in limited circumstances applies international export control law to the transfer of AI applications and technology, leaving a gap in the international export control framework. Until this gap is closed, inter-national human rights due diligence might provide fallback protection to address the issue
of mitigating the risks associated with the proliferation of dual use AI.
Academia and practitioners agree that the local level is crucial for EU cohesion. However, further conceptual and empirical development is needed. The paper introduces an under-standing of European cohesion consisting of a horizontal and a vertical dimension, covering individuals' relationships with each other and the polity. We review the predominantly nation-state-focused, interdisciplinary literature on support for the European Union (vertical dimension) and societal Europeanization (horizontal dimension) through a 'local lens', arguing in favour of combining the two dimensions in one framework of cohesion. We derive empirical expectations about the role of local agency for European cohesion and operationa-lise European cohesion, thus designing a coherent framework for analysing the local foundations of European cohesion.
To contribute to the laudable objectives regarding Export Controls the EU – US Trade and Technology Council has set, a multi-disciplinary network of independent experts from research institutes, think tanks, and policy advisory bodies, has joined forces and drafted the following priorities for action.
A further elaboration of the actions recommended below will be performed by the members of this international network in the weeks and months to come, as Working Group 7 of the EU – US Trade and Technology Council will proceed in its work.
Can parliament govern the transport transition? How the German Bundestag scrutinizes rail projects
(2022)
The paper aims to elucidate to what extent the German Parliament exerts control over rail planning. Parliament has the budgetary right, but information asymmetries vis-à-vis the railway company Deutsche Bahn and the Ministry of Transport make parliamentary control difficult.
Recently, Germany has instituted a parliamentary review process that allows the Parliament to take up concerns by the public affected by rail projects. We use the principal-agent theory to model this new institution. Parliament delegates rail planning to the Deutsche Bahn, while the Federal Railway Authority serves as a budget watchdog, and parliament uses input from public participation as a deck-stacking procedure. The paper first situates the institutional innovations—the new parliamentary oversight procedure—against the former logic of rail-way planning. Second, based on the documentation of parliamentary oversight, we analyze for which demands by the affected public the Parliament uses its power to change rail projects.
The paper showed that public participation matters. The German Parliament introduced expensive changes to rail projects. In particular, demands that had been voiced in well-institutionalized public participation (that is, when municipalities, regional associations, etc., were engaged in long-term institutionalized dialogues with the Deutsche Bahn) were more likely to be addressed. An Extra budget was then allocated to, for example, noise-regulating measures.
To sum up, the German Parliament uses information gained in public participation in com-bination with its budget rights to exert control over railway planning for conflictual projects. Thus, Parliament takes a more active role in railway planning. Whether this also leads to more acceptance for rail projects, is an open question.
This chapter analyses the impact of the Internet and the shift in communication processes on the States’ obligations emerging from the European Convention on Human Rights (ECHR). It claims that the environment created by the Internet is different from the traditional one; that is, it substantially empowers a range of private actors such as social media and other Internet platforms. That is why in the light of the actual development of the ECHR’s standards, both the strict distinction between positive and negative State’s obligations, and an overall prefe-rence for the latter are anachronistic. This chapter claims that it is crucial to keep developing European minimal safeguards in horizontal online relations when human rights violation is a result of a State’s non-compliance with the positive duty. Against this backdrop, this chapter centers around the influence of the Internet on the exercise and protection of selected human rights and the changing nature of communication processes, as well as the game-changing shift caused by the growing power of private actors. It also includes a detailed analysis of the scope and content of positive State’s obligations emerging from the use of the Internet, focusing on substantive obligations (i.e., the legal framework and the allocation of responsibilities), as well as on the issue of the public guarantees for online pluralism and procedural obligations (the duty to provide responses to allegations concerning online ill-treatment inflicted by private individuals).
Two different States licensed exports of intrusion tools and related items to a third State. That State then used it to spy on human rights defenders, lawyers, journalists, activists, opposition politicians, and dissidents. While one of the licensing States is a member of the Wassenaar Arrangement, the other is not but had declared to follow it unilaterally. The legal analysis considers the attribution of the relevant acts and omissions by the States and examines possible breaches of international export control law and international human rights law.
This chapter focuses on the impact of specific “administrative styles,” understood as the everyday routines of the organization, on the reform patterns in international organizations. Consolidators are hence primarily driven by positional rather than policy interests. Entre-preneurs combine the latter two types; they develop administrative routines that entail intensive bureaucratic advocacy in policy-making and a strong orientation toward institu-tional consolidation to strengthen the administration’s position. In contrast, the picture should be completely different for consolidators. Given consolidators’ dominant motivation to secure their institutional status and legitimacy, organizational reforms will to a far greater degree reveal patterns of emulation of dominant reform paradigms and reform ideas in their organizational environment. Public sector organizations adopted these reports from the private sector as a form of communication with external and internal stakeholders. Most reforms have been identified within the area of organizational reforms, for example, institutional adjustments of the directorates.
Health data are sensitive data and must therefore be protected from unauthorised access. However, exchanging individual patient information is crucial for coordinating treatment between different medical professions and for the statutory health insurance schemes. Digitalisation of health data will facilitate all these processes. To promote EU-wide mobility of patients, the European Commission has proposed the establishment of a European Health Data Space. It is intended to trigger technological development in the member states, given that to date digitalisation has been used to different extents throughout the union. It is not guaranteed that patients in all member states will have access to their health data and thus be able to receive treatment or fill prescriptions within the single market. At the same time, the common experiences in the SARS-CoV2-pandemic made clear that there is a vital need for using patient data as a tool for monitoring health threats and for improving the coordination of both preparedness and response measures in times of health crisis.
On Track or Off The Rails?
(2022)
The call for a transport transition has reached political and mainstream attention in Germany during the first decades of the 21st century. A shift from car-based individual transport to rail-based modes of transportation (operated by electricity) is seen as an important building block of a more sustainable transport system and as such also integrated in official sustain-ability strategies. Among other measures, this demands a new focus in transport infrastruc-ture planning. Planning being a task primarily fulfilled by executive and administrative actors, ministerial bureaucracies assume a crucial role in this transition process. Their propensity (or not) to produce outputs that mirror a transition orientation sets the course for or against a modal shift. The preparation of the currently valid Federal Transport Infrastructure Plan (Bundesverkehrswegeplan, BVWP) allows a comparative view into decision-making processes on transport projects for different transport modes.
The BVWP is a national transport strategy outlining which transport infrastructure is sup-posed to be built throughout the next fifteen years. It has no legal character and is the first step within a wider planning framework. Projects newly included in this master plan are usually still in a very early pre-planning stage. Nevertheless, inclusion in the BVWP is an important first step to secure potential federal funding for road, railway and waterway projects.
Even though the BVWP is a national transport strategy, the first steps of its preparation are taken on the sub-national level, as the German Länder prominently propose road projects and take part in proposing other infrastructure projects as well. This presents an opportunity to compare the processes in and outputs of sub-national ministerial bureaucracies when proposing infrastructure projects for different transport modes. Such an analysis provides insights into some determinants of transition-friendly decision-making and improves the understanding of how process characteristics shape ministerial outputs.
This study finds its theoretical framework in actor-centred institutionalism and draws to-gether politics- as well as bureaucracy-centred perspectives in a delegation argument. I follow the argument that ministerial outputs are first and foremost shaped by ministers' programmatic positions. However, I challenge the view that the balance between ministerial and bureaucratic influence would be determined by the salience of the topic at hand in such a way that politicians would take care of their positions being duly executed when the re-spective topic is salient, and bureaucrats being more influential with non-salient topics. Instead, I argue that salient topics require more complex decision-making processes, i. e. processes that involve a greater variety of actors - rather than simply pushing through po-litical preferences - in order to ensure broadly accepted solutions that are in fact imple-mentable. Outputs of complex processes, in turn, are harder to predict.
Building on document analysis and expert interviews with members of the sub-national ministerial bureaucracies, this thesis analyses how decision-making processes within bu-reaucracies shape policy outputs in transport infrastructure planning. Sub-national decision-making processes on which projects to propose for the BVWP 2030 serve as cases. These decision-making processes might either favour the car-dominated status-quo or a shift to-wards more rail-centred mobility, thereby hindering or furthering an overall move towards a systemic change in mobility and transport, referred to as transport transition - without this necessarily being the intention of the actors themselves.
The analysis involves two steps. In a first analytical step, a content analysis serves to struc-ture the material and condense it into categories. I start with some theory-led concepts and then inductively develop sub-categories that capture the procedural steps pointed out in the material. In a second step, Qualitative Comparative Analysis will be employed to distinguish combinations of programmatic, procedural as well as capacity-related characteristics, that are sufficient for arriving at a less car-centred output.
The results address pathways towards a transition-oriented output as well as determinants for the set-up of complex intra-ministerial decision-making processes. They support the view that programmatic positions of ministers can indeed shape ministerial outcomes in the direc-tion of a transport transition. Independently of programmatic positions, decision-making processes that are complex in the above-mentioned sense might also work positively to that end. However, none of these conditions is sufficient on its own. They both only work in con-junction with a transition-friendly behaviour of the respective sub-national ministries towards expectations on higher levels within the multi-level framework. At times, this means that Länder might deliberately act against federal expectations even where the implementation of their decision depends on the federal level. Administrative capacity in sub-national ministries and the salience of the topic for the respective minister shape how ministries design their decision-making processes. Where capacity allows it, complex processes are set up when the topic is perceived as salient. The relevance of capacity in this context points to the impor-tance of a well-resourced bureaucracy for legitimacy-related purposes like setting up and carrying through public participation schemes.
The Competence Centre Youth-Check’s brought together different actors in the field of Regulatory Impact Assessment (RIA) for young people in Berlin on 09 May 2022 in the International Conference “Regulatory Impact Assessment for the Young Generation”. In this documentation the ComYC presents the results of the conference.
Administrative justice and the rule of law have often been in tension. However, they have converged over time as the scope of administrative justice and the conceptions of the rule of law have shifted. This chapter starts with the historical connections between administrative justice and the rule of law. It then maps ways in which the rule of law is expressed when ad-ministrative justice is embedded within administrative organization and when it is organized as a system external to the administration. This approach highlights the diversity of technical solutions to recurring questions across three major administrative systems (namely England, France, and the United States). This analysis also leads to highlighting two new challenges for the rule of law: first, how the rule of law responds to various forms of increasing administra-tive repression, and second, how the rule of law responds to globalization at a time when no coherent global administrative justice system exists.
This contribution investigates the German response to the COVID-19 pandemic. The analysis highlights the measures taken by the German government in cooperation with subnational units to mitigate the spread of infections, as well as the efforts made to stem the economic consequences of the containment measures. The emergency situation turned out to be a real stress test for the German legal system, and a serious challenge for democratic institutions
The constitutions of the Lander contain similar provisions for the issue of Rechtsverordnun-gen based on Land legal acts. There are only a few rules on the procedure of the adoption of Rechtsverordnungen in the Grundgesetz and the land constitutions. The aim is to enable social groups to settle, under their own responsibility, the matters that concern them. The power to enact Satzungen is, thus, directly linked to the idea of self-government, which ex-plains the importance of Satzungen at local level. The principle of subsidiarity of the constitu-tional complaint as a criterion which may lead to the inadmissibility of a constitutional com-plaint directly challenging a legislative act also has an impact on the interpretation of proce-dural law applicable to regular courts. It has already been said that the BVerfG gives a clear priority to constitutional complaints challenging a judicial decision which leads to an indirect constitutional review of a legal act on which the decision is based via Article 100(1) GG.
This thesis explores the principles of administrative punishment under the European Con-vention of Human Rights (ECHR). Administrative punishment, for its part, is gaining popularity across European legal systems because it is a flexible, speedy and cost-efficient option. More precisely, it allows public authorities to inflict punishment without having to undergo a judi-cial action. The procedural safeguards that the concerned individual can expect are accor-dingly lower. However, whilst at the national and European Union levels the academic atten-tion grew in line with the gradual expansion of the use of administrative punishment, the same cannot be said regarding the legal framework of the Council of Europe (‘CoE’). Compre-hensive scholarly works on the subject matter are still missing and only a few authors are researching administrative sanctions within this framework more profoundly, i.e., in a cross-cutting manner.
This is regrettable because nowadays, one can speak of a rich and congruent body of admini-strative punishment under the CoE’s law. Not only has the European Court of Human Rights (ECtHR) admitted administrative sanctions within its remit since the famous Engel case in 1976, but it also interprets all relevant terms found in the letter of ECHR such as ‘criminal charge’, ‘penal procedure’, and ‘penalty’ autonomously and in harmony with one another. Autonomous interpretation of these key terms by using Engel criteria means that administra-tive sanctions can, and often are, put under scrutiny (as long as they bear ‘punitive’ and ‘de-terrent’ hallmarks). All in all, the following normative sources can be said to comprise the ius puniendi administrativus within the legal framework of the CoE: First, Article 6 ECHR, which ensures the procedural protection for administrative sanctioning by enshrining the right to a fair trial and its various components, i.e., by laying down a range of participatory and defence rights, as well as the possibility to have access to judicial review and the presumption of inno-cence. Secondly, Article 4 of Protocol No. 7 to the ECHR, which stipulates ne bis in idem prin-ciple precluding double jeopardy. Thirdly, Article 7 ECHR is essential in giving substantive pro-tection to the subject-matter, and lays down the requirement of legality including regulatory quality, non-retroactive application of administrative sanctions, and no punishment without personal liability. Finally, Recommendation No. R (91) 1 of the Committee of Ministers to the Members States on administrative sanctions of 13 February 1991 as a ‘soft’ yet authoritative legal act creates boundaries for acceptable administrative sanctioning. All of these normative sources form the backbone of the research.
This thesis intends to fill the aforementioned academic gap and contribute to the legal scho-larship. It furthermore aspires to be a useful source for practitioners working within the field of public law who are empowered to regulate on or impose administrative sanctions. For this reason, the following research questions are tackled: What is a sanction? What purposes does it serve in a legal system? What is an administrative sanction in particular? What are its role and idiosyncratic features? What aims does it follow? How can it be differentiated from other types of public admonition, i.e., from criminal law measures? How do the CoE and the ECtHR conceptualize an administrative sanction? What guarantees stipulated by the ECHR are applicable to these sanctions? To what extent do they apply? Are there any limitations? If so, then what are the implications thereof on the individual rights? Is the current level of pro-tection in the field of administrative punishment regarding fundamental rights sufficient?
The thesis has furthermore sought to verify the following hypothesis: “The ECtHR acknowled-ges certain minimum requirements stemming from the ECHR from which the administrative authorities imposing a punitive administrative measure upon the individual, cannot deviate”. The hypothesis was drafted similarly to the wording of Article 6 (3) ECHR, which, together with other paragraphs of this Article, enlists fundamental individual guarantees for (any kind of) punishment (“Everyone charged with a criminal offence has the following minimum rights […]”).
A digital public administration is crucial for providing citizens (especially in times of crisis) with effective access to administrative services. Political leaders in Germany agreed on this principle during the global COVID-19 pandemic. However, the implementation of the Online Access Act - the main German law on administrative digitalisation - and of the Single Digital Gateway Regulation (EU) 2018/1724 has raised considerable (legal) problems. This article therefore not only looks at the current implementation status of the two pieces of legislation, but in particular identifies three challenges for the digital transformation of public adminis-tration in Germany: federalism, legal fragmentation and register modernisation.
Dark patterns steer users into taking decisions they would not have made otherwise. They are widespread in ‘cookie banners’ where they nudge or otherwise lead users into ‘consen-ting’ to intensive and controversial processing of personal data, such as online tracking and behavioural targeting. The prevalence of dark patterns in the privacy context is not only due to an enforcement deficit. It is also due to a lack of legal provisions that effectively implement the principles of privacy by design and by default. The legislator should address privacy dark patterns by ensuring meaningful choice of data subjects.
Decentralized Nations
(2022)
Herr Kolain hielt diesen Vortrag über Zoom auf Einladung der Stipendiatinnen und Stipendiaten der Studienstiftung des deutschen Volkes am 29. September 2022 an der Humboldt Universität Berlin.
The world of 2022 is globally and digitally connected and disrupted by manifold crises. Questions of power, participation and cooperation arise with particular urgency – and the young generation is asking and searching for clear, effective and participatory solutions. How will we collectively find the best way towards social and climate justice and, ultimately, inner and outer peace?
While internet platforms have taken a dominating influence on how “the internet” is used, there is an ongoing debate on decentralization of the digital world. The idea behind distri-buted systems and computing is to remove powerful intermediaries, make data flows transparent and strengthen the position of the individual. Tackling authoritarian tendencies with the separation of powers and a vivid civil society, is also the core idea of modern democracies. The idea of subsidiarity and federalism is to make political decisions at the lowest possible level.
The presentation focusses on the overarching question: How should digital statehood be structured, both on a constitutional and a technical level? It combines general thoughts on the future of statehood and sovereignty with an analysis of current technology trends, such as blockchain or AI.
The Union legislator has recently amended the Aarhus Regulation with the aim of bringing it more in line with the requirements the Aarhus Convention lays down. EU State aid decisions, however, remain excluded from its scope. This exclusion raises questions that form the object of this contribution. The article argues that the arguments presented to justify the continued exclusion of State aid review are not convincing. By not complying with the re-commendations of the ACCC, the EU is in clear violation of international law. Therefore, the article deliberates over the necessary changes and possible exemptions for a sound im-plementation of the Aarhus Convention against the procedural specificities of State aid review, considering also the Commission´s recently presented options, which contain a number of problematic aspects.
This article takes the proliferation of EU soft law instruments in the management of the COVID-19 pandemic as an opportunity to analyse their effects and challenges to democracy and rule of law in the EU posed by the use of EU soft law in the implementation of EU law. A proposal will be made for a general legal framework on the adoption of administrative EU soft law in order to address them. Enhancing the legitimacy of EU governance requires a general legal framework that introduces minimum procedural, transparency and participa-tory safeguards and foresees looser rules for urgent soft measures. The article thus makes an original contribution by reconsidering the debate about EU soft law in the context of COVID-19 soft law with a view to its salience for domestic implementation of EU law and by developing core elements of a general legal framework.
This introductory article makes the case for studying joint institutional frameworks (JIFs) in EU bilateral agreements and provides an overview of the remaining contributions to the sympo-sium. In doing so, it addresses contemporary policy developments and theoretical debates in political science and international institutional law. It considers the rationale, design, perfor-mance as well as legitimacy of JIFs both in general and, in particular, in the EU's contractual bilateral relations. By mapping out the variety of JIFs in distinct geographical and regulatory contexts, the article develops an overarching argument about the ‘transversal’ nature of such structural frameworks, focusing on the most prevalent structural principles and rules, joint bodies and special procedures, including those not covered in detail in the other contribu-tions to this symposium.
Ex Officio Third Country Subsidies' Review: Similarities with and Differences to State Aid Procedure
(2022)
In May 2021 the European Commission tabled a draft Third Country Subsidies Regulation which stands between trade and competition policy. This new instrument establishes a review of third country subsidies with a view to addressing the competition distortion resulting from foreign subsidies granted to undertakings economically active in the EU internal market. As the new tool complements EU State aid scrutiny with a view to foreign subsidies, the present contribution compares the general procedures and provisions of the new regulation with EU State aid law. It will be shown that despite many similarities with State aid law, considerable differences remain which can be explained by looking at the different procedural and substantive context.
Democratization of good global governance: The EU's role in the Parliamentarization of trade policy
(2022)
The quest for good governance in trade relations occurs against the backdrop of an increa-sing politicization of trade policy. In the new reality of global value chains and servitisation, regulating trade goes far beyond technical issues of reducing entrance barriers, border measures and tariffs, but becomes a comprehensive endeavour of scrutinizing and policing behind-the-border political issues. Therefore, a call for raising the legitimacy of trade policy formulation and implementation rises. Hence, parliamentarisation of trade policy is ever more necessary. The EU's constitutional development and its practice in trade policy is a good example for more parliamentary involvement, which strengthens trade policy's legi-timacy, transparency, and public awareness. Thus, the EU indeed is, despite all weaknesses,
a pacemaker and hence good global actor to the benefit of democratisation of global trade governance, being an essential factor of good governance.
Wolfgang Weiss’ contribution on “Constitutional Challenges to EU Administrative Soft Law During the Covid-19 Pandemic and Some Proposed Remedies” Studies how during the Covid-19 pandemic, as EU member states struggled to deal with the pandemic, EU officials increasingly resorted to so-called “soft law” to provide guidance to member states. He concludes that, while there are benefits to using EU soft law for crisis management and domestic implementation of EU, he raises concerns regarding their challenges for democratic legitimacy and the rule of law. He contends that these challenges should be addressed by a legislative enactment that sets forth a general framework for the adoption of EU soft law, core elements of which should be stipulations of subsidiarity vis-a-vis executive rulemaking and minimum procedural, transparency and justification requirements for the adoption of Commission soft law. Their domestic effects and reviewability should be clarified as well.
The TCA (EU-UK Trade and Copperation Agreement) establishes a very comprehensive institutional framework with Partnership Council and diverse Committees having partly substantial decision-making powers for the development of the TCA. These considerable public functions prompt legitimacy concerns as to their democratic control, which this article explores in detail. It will be shown that the exercise of public powers by TCA treaty bodies meets with a sobering legal situation regarding democratic control mechanisms over treaty body decision-making at different levels. Thus, from a constitutional perspective, the legal and legitimate transfer of powers requires additional safeguards as to their democratic legitimacy. Solutions for better control of treaty body decisions by parliaments must be developed at several levels simultaneously.
PURPOSE: The management of cross-border natural resources has been the focus of re-search in different disciplines. Nonetheless, beyond theoretical insights, empirical evidence of successful cross-border management or governance of natural resources is still limited, even in the European Union (EU), where a range of instruments are provided to foster cross-border cooperation between its Member States. This is where our paper departs, providing evidence from an example of cross-border cooperation between two Member States of the EU, Austria, and Slovenia, adding to the analytical framework to identify the drivers of successful cross-border cooperation.
METHODOLOGY: Drawing from the example of the European Grouping of Territorial Cooperation (EGTC) Geopark Karawanken we evaluate the success factors and limits for transboundary cooperation encompassing different forms of cooperation. Furthermore, based on empirical evidence of workshops with local, regional, and national stakeholders, we investigate the potential of the EGTC organizational framework to provide for the successful cross-border management of water resources within the Geopark area.
The links between innovativeness as a driver of economic performance, and the determi-nants of innovativeness have been investigated by management scholars and economists
for decades, focusing mostly on “hard factors” as investment in research and development, or education. Focusing on a relatively neglected, but in times of globalization even more important aspect, the influence of cultural characteristics on innovativeness, we apply different econometric models to test for links between cultural tightness and looseness on the one hand, and national innovativeness on the other hand. We find that cultural tightness — in the sense of homogenous and intolerant societies — has a negative link to national innovativeness, while cultural looseness — in the sense of tolerant and diverse societies — displays a positive link to national innovativeness.
Persons who have been forced to leave their country of origin due of urgent threats to life and limb have a right to protection by their country of residence. This protection necessarily has to include social benefits ensuring an adequate standard of living. This article shows how the social rights of refugees and other forced migrants are regulated in European Union law.
Europeanisation situates local governments in a constantly changing environment, bringing challenges, opportunities, and constraints. These circumstances raise the question, how
local authorities adapt to the process of European integration, face its challenges, and use
its diverse opportunity structures. The article explores four dimensions, through which Europeanisation hits the ground of local government: downloading, uploading, dissemi-nation, and horizontal networking. It examines the distribution of different types of Europe-related activities at the local level using data from a survey sent to all 396 independent cities, towns, and municipalities in the German state of North Rhine-Westphalia. Our empirical analysis provides an overview of the most and least frequent Europe-related activities within the different types of local authorities. The findings of our multivariate analysis shows that next to the direct affectedness by Europeanisation, the municipalities’ capacities in terms of financial and institutional resources have a major influence on their efforts towards Europe.
The contribution investigates the impact of COVID-19 on long overdue reforms of German healthcare. The pandemic revealed some major shortcomings in patient care and elicited calls for new legislative solutions, more effective use of resources and a reduction of hospital expenditure.
The proposals discussed here clash with the “stability” which is a major feature of the German legal system.
This article asks how and why United Nations organizations reform their administrative structure and processes over time. It explores whether we can observe a convergence towards a coherent administrative model in the United Nations system. Like in most nation states, reform discussions according to models like New Public Management or post-New Public Management have permeated international public administrations. Against this background, the question of administrative convergence discussed for national administra-tive systems also arises for United Nations international public administrations. On the one hand, similar challenges, common reform ‘fashions’ and an increasing exchange within the United Nations system make convergence likely. Yet, on the other hand, distinct tasks, administrative styles and path dependencies might support divergent reform trajectories. This question of convergence is addressed by measuring the frequency, direction and rationales for reforms, using a sample of four international public administrations from the United Nations’ specialized agencies (the Food and Agriculture Organization, International Labour Organization, International Monetary Fund and World Bank). We find that conver-gence depends on the area of reform (human resources or organizational matters are more harmonized than others) and time (some international public administrations are faster or earlier than others).
Policies to promote high participation in Higher Educations (HE) systems aim to deliver social justice and economic development through widening participation of under-represented groups. Degrees of Success provides a critical test of this through examination of participa-tion and success of learners progressing to HE with a vocational background.
Employing an original conceptual framework that combines the ideas of Basil Bernstein and Pierre Bourdieu the authors analyse the various transitional frictions experienced by learners with VET backgrounds on their journeys into and through the HE system. The findings indi-cate that including students with vocational qualifications does lead to widening participation but that their modes of participation may not provide fair access and outcomes. In part this is due to the epistemic incompatibilities between higher and vocational education which remain unresolved despite constant VET qualification reform.
This book, therefore, extends the debate about widening participation beyond metaphors of barriers to access to consider the epistemic and pedagogical challenges of increasing student heterogeneity in high participation HE systems. The analysis and policy suggestions therefore have relevance for all seeking to support students' HE learning journeys, and policy makers concerned with how best to utilise HE systems as means of furthering social mobility and justice.
The Covid-19 pandemic is a multi-faceted crisis that challenges not only the health systems and other policy sub-systems in the single Member States, but also the European Union’s ability to provide policy responses that address the transnational nature of pandemic control as a union-wide ‘public good’ that affects health and social policies, border control and security as well as topics related to the single market. Thus, the pandemic constitutes a veritable capacity test for the EU integration project.
This article attempts to take stock of the Union’s early reaction to the first wave of the Covid-19 outbreak. After an introduction and a short note on the scope and methodology of the analysis a theoretical framework is developed. Scrutinising the pertinent literature on crisis management, we reflect the traditional hypothesis that in times of crisis the centre becomes more relevant against the background of the EU crisis management system, and discuss the role of informality in particular during the time of crisis. Against this backdrop, empirical evidence from interviews with EU officials and documents in selected policy fields (health and emergency management, digitalisation, and economic recovery) are analysed, before a discussion and conclusion complete the study.
Is academic freedom threatened? The book examines current challenges to academic freedom in Europe, focusing mainly on Italy and Germany.
The cases discussed demonstrate that research and teaching are under pressure in Euro-pean democracies: in Hungary and Poland due to political constraints, in other countries due to societal expectations. Considering different interrelated aspects, the four parts of the book explore many real and potential threats to universities, scientific institutions and researchers, ranging from the European dimension of freedom of the arts and sciences to comparative analysis of emerging challenges to academic freedom against the backdrop of the COVID-19 pandemic. They highlight threats to university autonomy from the economic orientation of university governance, which emphasizes efficiency, competition, and external evaluation, and from new rules concerning trigger warnings, speech restrictions, and ethics commissions.
Detailed study of these complex threats is intended to stimulate scholarly reflection and elicit serious discussion at European and national level. The volume contributes to the search for a new role of universities and scientific institutions and is addressed to academics and political stakeholders.
Universities in Germany and other countries have recently undergone comprehensive reforms: they are expected to contribute to social development through exchange with external actors. These exchanges are commonly termed “third mission”. In this context knowledge and technology transfer can prove to be particularly critical to academic freedom, because market logic and economically rational behaviour may lead to goals in conflict with the institutional logic of scientific communities.
Academic freedom is currently under pressure. The most obvious cases in Europe are those of Hungary and Poland, where the state interferes directly in core academic issues by chan-ging the laws. More generally, research and teaching are at risk in European democracies. Except in Hungary and Poland, this is not only due to political constraints: society itself seems to have lost its trust in science. Scientific results are declared “fake news” and students and lecturers are not allowed to discuss social, gender or integration issues (keyword: “trigger warning”). Such threats to research and teaching curb scientific autonomy directly and indirectly.
For centuries, export control regulations have accompanied the development of new weapon technologies. The revelations of the ‘Pegasus Project’ have put the question of whether and how to regulate the export of the new technology ‘cyberweapons’ in the limelight: Is the current international export control law up to the challenge of sufficiently regulating the proliferation of ‘cyberweapons’ or does it need an update? To answer this question, the blog post will, first, turn to the definition and relevance of ‘cyberweapons’. Secondly, international export control law is introduced as a possible measure to mitigate the risks posed by ‘cyberweapons’ against the backdrop of regulating the use of ‘cyberweapons’ or establishing a moratorium on its trade. Third, the blog post will assess the export of ‘cyberweapons’ in general and the export of Pegasus in particular within the current international export control framework. The current framework seems to touch upon partial aspects of the trade with ‘cyberweapons’. However, it stands to fear that it is not up to the task of sufficiently curtailing the proliferation of ‘cyberweapons’ and the associated risks, as it especially leaves the underlying problem of the trade with zero-day vulnerabilities untouched.
Education plays a key role in knowledge society, since, from a meritocratic perspective, it opens up fair opportunities for well-paid jobs, thereby increasing social mobility and well-being more generally. In order to foster their economic competitiveness, cities are therefore encouraged to engage in knowledge-based urban development by trying to provide good schools and world-class universities to attract the “creative class.” However, meritocracy is a “myth,” as access to educational opportunities is itself socially biased. With the example of Heidelberg, a so-called “knowledge pearl,” we show how knowledge-institutions, such as the university, may shape socioenvironmental contexts in ways conducive to spatially selective access to—and use of—educational opportunities. Instead of reducing social polarization, knowledge-institutions may instead (re-)produce inequalities.
Digital technologies often have a dual-use nature, which means they can be used for both civil and military purposes. For instance, object recognition software can be used for auto-nomous civil driving or for autonomous targeting within armed drones. Thus, their uncon-trolled proliferation may pose risks to international peace and security. Generally, export controls aim to mitigate these risks while avoiding unreasonable restrictions on global trade and development. The novelty of digital dual-use items and the dynamics of their transfer pose new challenges for the international export control system and raise critical legal questions under international law. Does international law hold export control rules that sufficiently address the broad spectrum of relevant digital dual-use items and their rapid technological advancement? Furthermore, how do these rules treat the digital transfer of such items?
The presentation aims to answer these questions by, first, carving out the relevant inter-national export control rules. Secondly, the application of these rules to the digital dual-use items and their international transfer is analyzed. Finally, to the extent that the applicability is affirmed, the presentation will examine the international export control law’s requirements to the international transfer of digital dual-use items.
It has become a truism that the Internet gives a range of private actors, such as social media, substantial power. They are thus able to control the communication processes, hold considerable authority over shaping opinions, and become the arbiters of free speech. That is why legal scholars and policymakers are searching for legal tools that would ensure a fair balance between the conflicting rights of these two groups of private actors (platforms and their users).
The aim of this presentation would be to reconsider the relationship between individuals and online platforms, analyze how horizontal online conflicts may be resolved (giving examples of some national legislation and EU proposal concerning digital services), and answer the question if the discretion of the platforms can be limited in order to protect rights and freedoms. The theoretical framework of the analysis would be the doctrine of the State’s positive obligations, as established in the current European Court of Human Rights case law.
The main argument would be that it is necessary to strengthen the public supervision over Internet platforms, in particular the way they resolve horizontal conflicts. The possibility of limiting their discretion, in order to provide individual protection, does not mean however creating the unlimited right of access to the platform in order to express any opinion or view (freedom of forum).
Since the Treaty of Lisbon, trade policy has become an explicit part of the EU's external policy and integrated into the general framework of the EU´s external policy, but must also be in conformity with internal policies. Thus, trade policy is subject to a requirement of multiple coherence. Beyond constitutional obligations, other drivers work for the inclusion of non-genuine commercial policy objectives in trade policy, such as the orientation of contemporary trade politics towards the behind the border issues of national regulation, so that trade policy became closely intertwined with domestic regulatory policy. Therefore the actors primarily responsible for legislation, i.e. parliaments, advocate for their extended participation in determining trade policy, and rightly so for reasons of transparency, control and political inclusiveness. Parliaments thus become actors of respect for and positive consideration of non-commercial policy objectives in trade policy, which applies as well to the European Parliament (EP). Hence, an institutional design of policy formulation cycles and decision-making in EU trade policy that strives for better coherence of trade concerns with NTPOs must focus on strengthening the influence of the EP and improve its participatory rights in decision-making and its control and monitoring mechanisms. Consequently, the present paper derives proposals for improving EP´s monitoring mechanisms for the benefit of non-trade policy objectives (NTPOs) in trade policy from an analysis of weaknesses in the negotiation and implementation stage of trade policy.
The article introduces a research project carried out at the German Research Institute of Public Administration and the German University of Administrative Sciences Speyer. It examines the development, content and effectiveness of the written and unwritten standards of good administration drawn up within the framework of the Council of Europe (CoE).
Proportionality in English Administrative Law: Resistance and Strategy in Relational Dynamics
(2021)
Proportionality is at the centre of heated debates in English administrative law. It has been adopted for matters pertaining to European law and the European Convention on Human Rights, but its use in other areas parts of English administrative law is highly contentious. While some arguments in favour or against applying proportionality in England are similar to those exchanged in relation to other legal systems (such as tensions between increased objectivity in judicial control over administrative action vs. the desirability of more limited control), other arguments are more specific to English administrative law. To understand the challenges encountered by proportionality in English administrative law, this paper adopts a contextual analysis, putting the emphasis on the relational dynamics framing the interactions between the main actors involved in the proportionality test. Paradoxically, this perspective rehabilitates the analysis of the legal techniques behind transplants such as proportionality: indeed, transplants are vehicles for legal changes in ways that go beyond the circulation of ideas across the world. Instead of being merely superficial and rhetorical, transplants engage deeply with the whole gamut of institutions and actors in a legal system, calling on them to rearticulate their implied and explicit relationships.
Public Finance
(2021)
Electoral disinformation has become one of the most challenging problems for democratic states. All of them are facing the phenomenon of - both online and offline - dissemination of false information during pre-electoral period, which is harmful for individual and collective rights. As a consequence, some European countries adopted special measures, including summary judicial proceedings in order to declare that information or materials used in elec-tioneering are false and to prohibit its further dissemination. There are already three rulings of the ECtHR concerning this expeditious judicial examination provided in the Polish law. In December 2018 France passed complex regulation against manipulation of information that include similar mechanisms. This article, basing on the ECtHR’s case law and some national experiences, attempts to define the minimal European standard for measures targeted at electoral disinformation, especially judicial summary proceeding. It contains the analysis of the notion of electoral disinformation, defines the state’s positive obligations in this sphere, and indicates mayor challenges for the legal framework. The principal argument is that summary judicial proceedings – if adequately designed – cannot be questioned from the Convention standpoint and provide a partial solution to the problem of electoral dis-information.
The hybrid EPPO structure is operating under a hybrid set of fundamental rights, thus calling into question the well-established principle of the single set of norms applicable throughout criminal proceedings. Moreover, the system is characterized by a distortion of the commonly applied logical link between liability for violations of fundamental rights and control over the actions entailing those violations. EU Member States risk being held accountable under the Convention for actions on behalf of the EPPO which they did not fully control and which were subject to a different corpus of fundamental rights. The EU, for its part, takes the risk of seeing EPPO prosecutions being invalidated by domestic courts applying a Convention protection level which may be higher than the Union level. The only way to minimize the impact of these distortions is for the EU to become a Contracting Party to the Convention, along with its own Member States. This would do away with the ambivalence of the legal framework characterizing the protection of fundamental rights under the EPPO Regulation. It would also contribute to a better implementation of the principles of the rule of law and procedural fairness, advocated by the Regulation itself. Such a move would seem all the more important in light of the fact that if the EPPO proves successful, its competence might be extended in the future to other areas.
The history of German public procurement law is a history of attempts by the German legislator to implement the EU public procurement directives on judicial protection, namely Directive 89/665/EEC of 21 December 1989, as minimally as possible. Paradoxically, the history of German procurement law is also the history of an increased spreading of the model of judicial review in ‘competitive award procedures’ underlying Directive 89/665/EEC
to other administrative procedures.
Here, one can discern mutual fertilization of the discussions on the minimal standards for judicial protection foreseen in Directive 89/665/EEC, as well as a parallel discussion on mini-mal standards (directly derived from the German constitution) for judicial review in competi-tive award procedures concerning the recruitment of public officials.
On this basis, one may discern trends in German case law, administrative practice, and scho-larship towards developing judicial review systems in competitive award procedures for pub-lic procurement beyond the thresholds set by the EU directives. This is relevant for privati-zations, gambling licences, and procedures to grant the right to use public spaces, to name only a few. However, these trends encounter difficulties because the German General Administrative Court Procedure Act and other relevant legislation are not tailored to com-petitive award procedures. This article will analyse these different trends and suggest explanations for them.
The notion of civil service in Europe: establishing an analytical framework for comparative study
(2021)
Comparative study of the employment regimes of public officials in European countries requires an appropriate analytical framework, including definitions. This blog entry explores the meaning and scope of terms “civil service” and “civil servant”. It argues that a civil servant is an employee of the executive power, who has special duties and responsibilities, and should often meet specific requirements.
On the way to the customer
(2021)
The notices of Deutsche Rentenversicherung are changing their face. In order to ensure that everybody insured as well as pensioners can better understand the decisions of Deutsche Rentenversicherung, the notices are becoming more comprehensible, clearer and more personal. The poster presentation describes the journey of an interdisciplinary team of Deutsche Rentenversicherung and the most important milestones along the way.
Article 9 (Social Aims)
(2021)
The landmark judgment in the case of Bivolaru and Moldovan v. France, which concerned the execution of a European arrest warrant, provides a good illustration of the effects of the Con-vention liability of EU Member States for their implementation of EU law. These effects touch on such notions as cooperation, trust, complementarity, autonomy and responsibility. The two European courts have been cooperating towards some convergence of the standards applicable to the handling of EAWs. The Bosphorus presumption and its application in Bivo-laru and Moldovan show the amount of trust placed by the Strasbourg Court in the EU pro-tection of fundamental rights in this area. To the extent that their standards of protection coincide, the Luxembourg and Strasbourg jurisdictions are complementary. However, the two protection systems remain autonomous, notably as regards the methodology applied to fundamental rights. Ultimately, the EU Member States engage their Convention responsibility for the execution by their domestic courts of any EAWs.
This open access book presents a topical, comprehensive and differentiated analysis of Germany's public administration and reforms. It provides an overview on key elements of German public administration at the federal, Länder and local levels of government as well
as on current reform activities of the public sector. It examines the key institutional features of German public administration; the changing relationships between public administration, society and the private sector; the administrative reforms at different levels of the federal system and numerous sectors; and new challenges and modernization approaches like digi-talization, Open Government and Better Regulation. Each chapter offers a combination of descriptive information and problem-oriented analysis, presenting key topical issues in Germany which are relevant to an international readership.
The present contribution analyses the Opinion 1/17 of the CJEU on CETA, which, in a surprisingly uncritical view of conceivable conflicts between the competences of the CETA Investment Tribunal on the one hand and those of the CJEU on the other hand, did not raise any objections. In first reactions, this opinion was welcomed as an extension of the EU's room for manoeuvre in investment protection. The investment court system under CETA, however, is only compatible with EU law to a certain extent, which the Court made clear in the text of the opinion, and the restrictions are likely to confine the leeway for EU external contractual relations. Due to their fundamental importance, these restrictions, derived by the CJEU from the autonomy of the Union legal order form the core subject of this contribution. In what follows, the new emphasis in the CETA opinion on the external autonomy of Union law will be analyzed first (II). Subsequently, the considerations of the CJEU on the delimitation of its competences from those of the CETA Tribunal will be critically examined. The rather superficial analysis of the CJEU in the CETA opinion is in contrast to its approach in earlier decisions as it misjudges problems and therefore only superficially leads to a clear delimitation of competences (III.). An exploration of the last part of the CJEU's autonomy analysis will follow, in which the CJEU tries to respond to the criticism of regulatory chill (IV). Here, by referring to the unhindered operation of the EU institutions in accordance with their constitutional framework, the CJEU identifies the new restrictions for investment protection mechanisms just mentioned, which takes back the previous comprehensive affirmation of jurisdiction of the CETA Tribunal in one point and which raises many questions about its concrete significance, consequence, and scope of application.
The outbreak of the Covid-19 pandemic in early 2020 and its consequences constitute a veritable capacity test for the European Union, challenging not only the single Member States, but also the European Union’s ability to provide policy responses that address pandemic control as a union-wide “public good” in different dimensions related to inter alia public health, but also the freedom of movement or the single market.
Against this backdrop, this article attempts to take stock of the Union’s early reactions to the first wave of the Covid-19 outbreak. After a brief introduction, we reflect on crisis manage-ment theories, power distribution in the EU, and the EU’s institutionalised crisis reaction capacity. Subsequently, crisis reaction in selected policy areas in the European Union is analysed, before we finish with a concluding section. We find some evidence for the pace-making function of the Franco-German tandem in the form of informal, decentralised action, as well as for a relative weak performance of institutionalised crisis management mecha-nisms on the EU level, but instead a centralisation towards the centre in the form of the European Commission.
The lecture explains how some of the well-established institutions of constitutional law are being questioned. It explains also how the experience of the XX-century atrocities and the emergence of the authoritarian regimes in Europe impacted on the State Theory, Political Science and Constitutionalism.
Electoral Disinformation and Summary Judicial Proceedings: Is the Polish Experience Relevant?
(2021)
In Poland special summary (24-hour) judicial proceedings against electoral disinformation were introduced in 1998. Although it has been successfully used to declare that information disseminated during an electoral campaign is false, it has not attracted much attention and
is generally absent from the current legal scholarship and international reports on electoral disinformation.
Against this backdrop, the post aims to critically analyze the Polish regulatory model con-cerning summary judicial proceedings. The implications of these mechanisms become even more complex when we consider that in mid-2019 the European Court of Human Rights found Poland for the third time in breach of the right to freedom of expression (Article 10 of the European Convention on Human Rights) for having convicted the applicant in these extraordinary 24 -hour judicial proceedings.