This Article, which takes into account developments up until summer 2017, evaluates the early days of regulatory engagement with blockchain technology. My analysis unfolds in three parts. First, I provide a cursory overview of the technology itself to highlight considerable uncertainties concerning its future. Regulators asked to engage with distributed ledgers are thus compelled to regulate the unknown. Second, I will introduce a typology of regulatory strategies adopted to date and highlight their respective advantages and shortcomings. Third, I will outline a number of guiding principles regulators should follow in respect of blockchain technology. I will make the argument that despite the technology's uncertain future, early regulatory engagement is warranted as a young technology is a malleable technology. As technology develops, law has to adapt. As a consequence, I put forward a number of regulatory techniques, including a process of polycentric co-regulation that relies on the regulatory potential of (blockchain) software and the adoption of a so-called “28th regime” at the EU level which may help navigate the uncertainties of blockchain development and regulation.

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.

Contemporary democracies may confront several instances of exceptions that co-exist with constitutional institutions; they are never free from any risks. This Article relies on recent Brazilian judicial experiences in order to present and highlight how courts and judges, from within the institutional structure, can act as elite actors that endanger the constitutional system, giving it the characteristics of unstable constitutionalism. By presenting the recent political and juridical facts that drove Brazil to constitutional crisis, the work brings not only judicial rulings but also the institutional and corporative structure that served as the main methods of avoiding the judicial reforms that could have led to a true transition from dictatorship to democracy. The conclusion is that the Brazilian courts blocked effective transitional constitutionalism in Brazil, making room for the current unstable constitutionalism.

The recent reforms of the Polish Judiciary have sparked a lively debate in Europe on the importance of judicial independence. This Article deals with the new Polish system of selecting and appointing judges and critically assesses it in the light of European standards for judicial appointments. It then compares the new Polish system to the German system of selecting judges, which has been advanced as a point of reference for the reform by the Polish government. Finally, the Article reconsiders and challenges some of the established concepts of German constitutional law as to the selection of judges and judicial legitimacy.

The Article was closed on September 2, 2017 and accepted for publication. Subsequent developments could be included until March 15, 2018. The authors would like to thank Judge Thomas Guddat and the Deutsch-Polnische Richtervereinigung (Association of German and Polish Judges) for providing valuable details on the reforms in Poland.

The Article revisits the German Federal Constitutional Court's NPD decision and the concept of militant democracy regarding party bans in German constitutional law. It argues that the Court's new definition of the free democratic basic order approximates its jurisprudence to the standards developed by the European Court of Human Rights. The Article also compares the German and European standards for party bans. It assesses the respective required risks for democracy that a party needs to pose in order to justify a party ban. In this respect, it is argued that the German standard—though elevated—still falls short of the threshold under European human rights law. Finally, the NPD's anti-constitutional—but not unconstitutional—character is examined, and a recent constitutional amendment to exclude extremist political parties from party financing is evaluated.

The Nazi regime had loyal judges who willingly transformed the liberal German law into an instrument of oppression, discrimination and genocide. This was achieved without substantially interfering with the operation of the courts and without applying disciplinary measures on the judges. But, not all judges were congenial servants of the regime—some resisted in their capacity as judges. Based on case-studies and existing literature, this Article distinguishes between two different lines of judicial opposition to those in power: Between opposition taking place in the open and opposition in secret, and between opposition within what is accepted by those in power as being within the law and opposition that is in breach of the law. The Article then seeks to explain the deference the regime gave to judicial by employing institutional theory and the concept of path dependence. Germany was deeply embedded in the Western legal tradition of emphasis on law as an autonomous institution with an independent judiciary.

This Article presents the Decameron, by Giovanni Boccaccio, as a classic writing of universal literature that contains anticipations and fundamental innovations of the political categories of modernity: Contractualism, constituent power, constitutional deliberation, rhetoric, and the relation with Fortuna. The argument is developed in three parts: Initially, the legal and European dimension of the Decameron are summarized; then the discussion focuses on legal issues and institutional characters narrated in the novels; finally, the introduction of the work is analyzed, in which both the political-constitutional theme of the new beginning of the community and the collective archetype of the plague are interpreted as metaphors for the state of exception.

Article 50 of the Treaty on European Union was originally viewed by national constitutional courts as an important provision for upholding state sovereignty. The German Constitutional Court emphasized the provision in its reconciliation of the Lisbon Treaty with state sovereignty. The Czech and Latvian Constitutional Courts saw Article 50 as creating a balanced process for the exercise of the sovereign right to withdraw from the European Union. Prior to the Brexit referendum, there was little doubt in the literature that an Article 50 agreement could address the entirety of the future relationship between a withdrawing member state and the European Union. Since the Brexit referendum, the European Union has taken an increasingly narrow view of Article 50. This, combined with interpretations of other Treaty provisions, have both created significant disadvantages to the withdrawing member state. If—above and beyond natural imbalances in bargaining power—EU Law creates a position of inequality between the withdrawing member state and the EU in negotiations, then the pooled-sovereignty model of the European Union is called into doubt. Article 50 cannot simultaneously be viewed as upholding state sovereignty, whilst being exit-hostile to any state that uses the provision.

This Article examines the statutory and constitutional legal framework governing the bulk collection of communication data by the German Federal Intelligence Service (Bundesnachrichtendienst, BND). German intelligence law distinguishes between certain categories of communications depending on the nationality and location of the participants. The provisions on the surveillance of foreigners abroad are far more permissive than those applying to the monitoring of communications that involve German nationals or foreigners in Germany. This differentiation is the consequence of a narrow interpretation by the German legislator of the personal and territorial scope of the right to privacy enshrined in Article 10 of the Basic Law. While there is no doubt that German nationals enjoy protection under Article 10 wherever their privacy is affected by the actions of the German State, current intelligence legislation is based on the understanding that foreigners are entitled to such protection only while staying in Germany. It will be argued that such discrimination is difficult to reconcile with German constitutional law because Article 10 protects every natural person without regard to nationality and because the Article's applicability is not limited to the territory of the Federal Republic of Germany. This means that the BND is bound by Article 10 irrespective of whether its surveillance activities affect German nationals, foreigners in Germany, or foreigners abroad. Arguably, the level of protection in transnational constellations may be subject to certain modifications. But if basic rights protection is taken seriously, the existing fragmented legislation should be replaced by a uniform statutory regime for strategic surveillance of international communications that meets the minimum standards of Article 10 without bearing reference to a person's nationality or location.

This paper analyzes the compatibility of intra-EU bilateral investment treaties—intra-EU BITs—with EU law. The status and validity of intra-EU BITs gave rise to a heated debate in Europe, which culminated in the CJEU's recent controversial judgment in Achmea. This Article demonstrates that although the CJEU approached intra-EU BITs from the angle of federalism—where they are both redundant and illegitimate—the reality is that EU law does not provide for the kind of protection afforded by BITs. The paper gives both a positivist and a critical assessment of the Achmea ruling. It argues that the judgment should be construed in the context of the underlying facts and, hence, notwithstanding the CJEU's apparently anti-arbitration attitude, its holding is rather narrow. It gives an alternative theory on intra-EU BITs' fit in the EU internal market—based on European reality—showing that the complete invalidation of intra-EU BITs is flawed because the overlap between BITs and EU law is merely partial: BITs address a subject EU law does not. This Article's central argument is that intra-EU BITs accelerate the internal market and, hence, their suppression does not lead the European integration further, but holds it back. Finally, this Article argues that the prevailing pattern of investment protection is a global scheme that cannot be arrested through regional unilateralism as essayed by the CJEU.

Otto von Gierke wrote The Social Role of Private Law (Die soziale Aufgabe des Privatrechts) in an age of extraordinary belief in progress and pride. In 1889, the Eiffel Tower was inaugurated, Britain's Royal Navy was required by law to outdo its next two rivals combined, and Germany was forging a massive new Civil Code (Bürgerliches Gesetzbuch). Within a year, Kaiser Wilhelm II had dismissed Otto von Bismarck: The old Iron Chancellor, who had unified a ‘Second’ Reich but no longer moved fast enough to secure a “place in the sun.” Ages of great confidence often see codes of law: Justinian's Corpus Juris Civilis in a reunited West and Eastern Rome; the Code Civil of the Napoleonic Empire; the Penal, Contract or Trust Acts from 1860 to 1882 across the British Empire; and the US Code of 1926. A desire for legal certainty sometimes drives reform, but rarely as much a desire to display superiority. The flicker of history must be made to seem timeless, like laws seem in printed word.