Smoking kills. It is also very costly, which is why many governments try to change the habits of their citizens, including by changing the packaging of the products they buy. Of course, tobacco firms are pushing against such laws. They see their rights, in particular, rights to intellectual property, violated. They argue that such legislative changes take away the essence of their hard-earned IP rights and should not be permissible. They point out that the CJEU is allegedly redefining the “essence” of fundamental rights and its function in the system of limitations and developing a set of core inviolable rights.

How justified are these arguments? The absolute theory of essence says that the essence of rights cannot be interfered with or taken away, including by the legislator. The relative theory of essence, on the other hand, claims that interference with essence is just a more serious interference which is still subject to the typical proportionality analysis. Therefore, the adoption of either of these two theories has profound consequences. What might constitute the essence of intellectual property rights? When are legislators touching upon it? Is the CJEU really advancing a notion of essence that can prevent legislative changes, or at least make them very difficult? The answer to all these questions depends on our understanding of what constitutes the “essence” of intellectual property rights, and what consequences this notion has under Article 17(2) of the EU Charter of Fundamental Rights.

A number of recent voices in contemporary political and legal philosophy have suggested that something is wrong with international humanitarian relief and human rights advocacy. Such a critique no longer seems to be motivated by ideologies of Social Darwinism or by beliefs in the unconditional primacy of a raison d'État over the needs and rights of individuals. Rather, it derives from a perspective that sees humanitarian activism as an ill-conceived, often merely compensatory gesture.

This Article comparatively analyses how the prohibition of refoulement is interpreted by United Nations Treaty Bodies (UNTBs) in their individual decision-making, where we suggest they act as “soft courts.” It asks whether UNTBs break ranks with or follow the interpretations of non-refoulement of the European Court of Human Rights. This investigation is warranted because non-refoulement is the single most salient issue that has attracted individual views from UNTBs since 1990. Moreover, our European focus is warranted as nearly half of the cases concern states that are also parties to the European Convention on Human Rights. Based on a multi-dimensional analysis of non-refoulement across an original dataset of over 500 UNTB non-refoulement cases, decided between 1990–2020, as well as pertinent UNTB General Comments, the Article finds that whilst UNTBs, at times, do adopt a more progressive position than their “harder” regional counterpart, there are also instances where they closely follow the interpretations of the European Court of Human Rights and, on occasion, adopt a more restrictive position. This analysis complicates the view that soft courts are likely to be more progressive interpreters than hard courts. It further shows that variations in the interpretation of non-refoulement in a crowded field of international interpreters present risks for evasion of accountability, whereby domestic authorities in Europe may favor the more convenient interpretation, particularly in environments hostile to non-refoulement.

A foreign jurist, on looking into the German literature on constitutional law, will soon and suddenly be struck by a peculiarity of this scholarship: the unusually strong emphasis on a marginal area of constitutional law, namely, the state of emergency. The inquiry is, of course, well-known in other countries, but the passion for, and the theoretical effort expended on, this marginal area is unique to Germany.

However, this disinterest on the part of other constitutional lawyers, and the recent decline in interest on Germany's part, could yet change, turning the marginal area into a highly current issue. Combating terrorism raises questions for which the German patterns of argumentation, fine-tuned in the academic debate on the law of state of emergency, may provide a useful framework for discussion. The questions arising in the context of the struggle against terrorism test the limits of positive regulations in extreme situations, leading ultimately to the same underlying dilemma as the law on state of emergency, though with different terminology. In this sense, the constellation of legal issues involved in combating terrorism could be considered as the law on state of emergency “incognito.” However, the various argumentative patterns for law on state of emergency have not yet been directly transferred into the very timely legal discourse on counterterrorism (and no such attempt is made here), but such a transfer of argumentation suggests itself. As such, the topic has a “potential currency,” even if traditional issues of state of emergency themselves no longer count among the most current issues.

The Hungarian judiciary has reacted to the political change of recent years in a twofold way. Some judges have resisted political pressure and decided cases according to the law and their conscience, while others, showing the signs of judicial populism, have deferred to the interests of the government. The paper explains the relationship between this twofold behavior and the bureaucratic tradition of the Hungarian justice system. The conclusion is that the bureaucratic model of organization has certain features that can make judges more resistant to political pressure, while other elements of the model can lead to judicial deference. Nonetheless, these latter elements are not necessary components of the ‘Weberian’ justice system.

“I believe there is no trade-off to be made between human rights and terrorism. Upholding human rights is not at odds with battling terrorism: on the contrary, the moral vision of human rights – the deep respect for the dignity of each person – is among our most powerful weapons against it.”

People of Turkish ethnicity constitute Germany’s largest immigrant group but only a small percentage have naturalized as German citizens This article explores the historical foundation of Turkish migration to Germany and the legislative attempts made by both Germany and Turkey to accommodate these people with one foot in each country. It argues that only by abandoning its long-held prejudice against dual citizenship can Germany increase the naturalization rate of all foreigners in its country, not just those from Turkey.

One of the consequences of the method the International Court of Justice employs to draft its pronouncements is that, at times, its reasoning is less candid than one might desire. The Court's advisory opinion on the Legal consequences of the construction of a wall in the Occupied Palestinian Territory of 9 July 2004 provides a clear example. To reach unanimity, or near unanimity, on the points decided, one can only assume that the judges bargained hard over the discursive normative component of the Opinion.

In its judgment of 18 July 2005, the Second Senate of the Federal Constitutional Court (FCC) declared the European Arrest Warrant Act (Europäisches Haftbefehlsgesetz – hereafter called the EAWA) of 21 July 2004 unconstitutional and void.

However, the result of total nullity of the EAWA, as well as certain points of the Court's reasoning were not undisputed within the senate, which becomes obvious with the dissenting opinions of the judges Broß, Lübbe-Wolff and Gerhardt. Beyond these judges, the ruling faced scholars’ criticism as well.

This special section tells the story of Covid-19 through the lens of national responses, serious concerns about unprecedented human rights limitations and infringements, and the respective role of courts in public health emergencies. It compiles perspectives on disease control developments in Brazil, Italy, Poland, Taiwan, the U.S., and the EU to explore various aspects of judicial review protecting, or failing to protect, human rights. It offers insights from states and regions which have experienced high pandemic rates or may attract attention for not treating human rights as a priority. Amidst the crisis of multilateralism and the World Health Organization (WHO) authority, and the fact that public health is typically a national power, the Articles focus on the state-level analyses to inspire comparative findings and further research. The section also draws on diversity and transdisciplinarity. The contributions are authored by scholars specializing in wide-ranging areas of law, including constitutional, health, private, and human rights law, as well as in political philosophy and public health. This text introduces the special section by offering a broader picture of the human rights’ problématique in times of pandemics.

This paper addresses the specific challenges arising from the monetization of political speech on social media, and propose a normative argument to extend consumer disclosures to political speech. Political speech enjoys the highest degree of protection by national constitutions as well as supranational and international charters. Unlike commercial speech which usuallyenjoy less constitutional protection, political speech is the foundation of constitutional democracies. The blurring line between political and commercial speech introduces a new layer of complexity in tackling hidden political advertising. Indeed, political speech is likely to attract commercial speech inside a broader scope of protection with the result that potential limitations of this kind of speech would be required to pass a very strict test through the balance with other constitutional safeguards or legitimate interests according to the criteria of necessity, legitimacy and proportionality. This could also question the scope of other regulation designed to govern commercial speech like advertising. To this end, the paper compares regulatory and judicial interpretations adopted in Europe and the United States, and is structured as follows. In the first part, we explore the content monetization business models (including influencer marketing) used on social media, and we identify three types of influencer ‘personas’ who are prone to engage in political speech. The second part looks into the constitutional differences between commercial and political speech across the Atlantic. The third part provides the normative argument at the intersection between consumer law and freedom of expression, and the fourth part concludes.

Despite never-ending discussion and innumerable reforms, the German system of legal education still has as its objective the so-called Einheitsjurist. This being a German specialty, it is almost impossible to find an English expression for it. One might try the translation “uniform jurist.” To qualify as an Einheitsjurist, every law student must go through the same legal education no matter which of the classical juridical professions he or she wants to pursue. To be admitted to the Bar, the same formal qualification is required as for the admission to the Bench. In both cases you have to pass the “second state exam.”

Globalization and the rules it generates confront legal scholarship with a number of intricate issues. One of these lies at the core of a hypothesis which has been debated for some time in the literature. According to this hypothesis, the legal vacuum left by nation states in the institutional organization of cross-border commerce has been filled by a variety of private governance mechanisms, with the result that regulatory responsibility has been taken over by private or hybrid actors. Testing this proposition requires analytical tools capable of discriminating between private ordering and public law-making. The private, or hybrid, governance regimes that would seem to be the hallmark of what is slowly emerging as global law are a Byzantine mixture of legal and social norms. Because of this, the foremost problem to be solved is that of deciding where to draw the line between legal and non-legal norms. Only if there are unequivocal criteria for distinguishing between law and non-law does it become possible to comprehend how hybrid regimes arise and evolve within the globalization process and, thus, to determine whether private actors have in fact assumed regulatory responsibility.

The above question was raised by Ewoud Hondius a few years ago in his regularly held lectures on the state of consumer law in Europe at the University of Utrecht. The European consumer programme in its basic structure dates from the years 1975 respectively 1981. It is rooted in President Kennedy's message to the consumers from the year 1962. Substantial variations cannot be recognised regarding both consumer programmes. Notifications, programmatic declarations and new impulses adopted after 1981 – the titles of the messages were changing constantly – did not alter the fundamental statement of the original programme. If President Kennedy's message is proceeded from, then it could be formulated, with some exaggeration, that European consumer law in its fundamental ideas is 40 years old.

Within this collection flowing from the “European Citizenship: Twenty Years On” conference, this article has three functions: first, explain the political origins of a common supranational citizenship in Europe; second, summarize the evolution of EU citizenship by illustrating the debates about the proper relationship between human rights (for everyone) and citizenship rights (for EU citizens only) and about the relationship between national and EU citizenship (or national and EU law), debates occurring within a context of the ever-expanding scope of EU law; third, provide a new perspective on the debates about EU citizenship's finalité politique or political objectives by placing EU citizenship in a comparative perspective. The main argument of the first section is that the goal of creating European citizens has always been an essential element of the European project, rather than an afterthought accidentally introduced in the Maastricht Treaty. Hence the conference title of “Twenty Years On” is flawed; “Sixty Years On” (dating the genesis of European citizenship not to the 1990s but rather, correctly, to the 1950s) would be more appropriate. This article's second section describes the expanding scope and growth of supranational citizenship rights from workers to movers to citizens; the main idea is that this continuing expansion and growth of EU citizenship should mean the end of reverse discrimination, in which national law disadvantages those who cannot appeal to EU law but must rely on national law. The main argument of the third section is that EU citizenship is not sui generis or without precedent but rather should be seen as one manifestation of the ubiquitous tension between unity and diversity, a tension present within any political community but manifest most clearly in political systems (such as the EU and federal states) characterized by multilevel citizenship.

Populism is a particular type of constitutional pathology; a brand of groupthink in which a leader establishes a direct connection with the people and, by virtue of this connection, is able to govern outside the established constitutional processes of the state. This Article reflects on the interaction between populism and political parties. It argues that one of the roles of political parties is to act as a medium between political elites and the people; a medium that can, or should, enable the people to exercise control over this elite through their membership of parties. Populism therefore presents a threat to the proper operation of political parties, and the proper operation of political parties correspondingly threatens populism.

This Article begins by reflecting on the nature of populism. It does not pretend to provide a complete account of that phenomenon, but rather aspires to identify one strand of populist rule: A particular type of connection between the leader and her people. Second, the paper reflects on the constitutional role of political parties. Whilst political parties have often been treated critically in British constitutional scholarship, it will be argued that they are essential to the success of the democratic process: Modern representative democracy cannot function in their absence. Finally, these two sections of the paper will be drawn together: One explanation for the rise of populism is the weakness of political parties, and one way of combating, or mitigating, populism is for the state, and the citizenry, to support and facilitate parties. This Article suggests a correlation between the decline of political parties and the rise of populism, but it cautiously avoids making claims of causation. It could be that the decline of political parties leads to the rise of populism, as voters who are faced with a choice of superannuated parties turn, instead, to charismatic individuals. Or it could be that the rise of populism leads to the decline of political parties, as voters develop a direct relationship with leaders and, as a result, cease to engage with each other within the context of parties. Or, perhaps, these interactions might occur together, forming a feedback loop, with the decline of parties leading to the rise of populism which, in turn, hastens party decay.

Cybersecurity in the financial sector is a dynamic and evolving policy field with unique challenges and specific characteristics. While it has recently received a lot of attention from disciplines like Economics and Politics, legal literature on this topic, especially with regard to EU law, still lags behind. This is surprising, given that cybersecurity in the EU is characterized by complex governance structures, a variety of legal sources, and a wide range of different rule makers and involved actors, and given that only a clear legal framework with efficient institutions at both EU and Member State level can provide for a safe digital environment. The purpose of this Article, therefore, is twofold: On the one hand, it aims to introduce the legal aspects of cybersecurity in the financial sector while taking stock of existing cybersecurity schemes, including their strengths and weaknesses from a legal perspective. On the other hand, it will set out key elements that cybersecurity regulation in the financial sector must respect in order to be effective and come up with reform proposals to make the EU financial sector more cybersecure.

During the rule of law backsliding crisis in Poland since late 2015, Civil Society Organizations (CSOs) have been active in the struggles to defend judicial independence. CSOs cooperate closely with judges and support their ‘judicial resistance’. This Article has three main objectives: describe and analyze the relationship between judges and CSOs; show the evolution — both continuity and discontinuity in their relations over time; assess whether CSOs’ activities are of any practical significance and therefore worth attention. The CSO-judicial relationship is analyzed for three periods: 1976–1989, the years before the transformation of Poland from a ‘people’s republic’ to a democracy; 1989–2015, the time of building liberal democracy and the rule of law; 2015–2020, the time of defending the rule of law from a populist attack.

Drawing on sources including years of participant observation providing unique and insider knowledge, the author analyzes the activities and outputs of CSOs and judges focusing on their interactions and cooperation. The author argues that CSOs play a significant role in the struggle for the rule of law and judicial independence. This Article demonstrates that CSOs’ current engagement and input is not an extraordinary, ad hoc phenomenon, but rather one that arose from the previous interactions between the judiciary and civil society. The author argues that what we witness in Poland is an unprecedented phenomenon, both in the character of the relationship between judges and CSOs, and the scale and diversity of their cooperation. At the same time, the author claims that CSOs are underappreciated, including by academia, their work is taken for granted, and their role in the legal complex can be seen as a partly lost opportunity. If noticed, appreciated, and supported CSOs activities and their role could be more meaningful.

The first part of this paper examines the nature and form of the political constitution, and argues that traditional approaches to its scope and purpose are too narrow in focus: The political constitution is about enabling and empowering government, as well as containing and constraining it; it is also predicated upon a body of core and indeterminate political freedoms (albeit frequently submerged and often displaced). The second part of the paper examines three contestable assumptions about what some claim to be a move from a political to a legal constitution. The first relates to the widespread (but flawed) ideological understanding of the political constitution; the second relates to the capacity of the “legal” to resist capture by the “political;” and the third relates to the effectiveness of the legal to protect political freedom. An attempt is made throughout unusually to illustrate argument with evidence, in this instance about the resilient political constitution.

The recent trend in East Central European jurisprudence is that courts apply an ethnocultural understanding of identity, thereby putting European integration in peril. Although the EU is clearly committed to shared values and principles, Article 4(2) of the Treaty on European Union emphasizes that “the Union shall respect the national identities of the Member States.” Due to the recent migration flow in Europe, the Member States are currently attempting to (re)define themselves and offer a legal definition of identity. East Central European Member States, by labelling ethnocultural national identity as constitutional identity, apply Article 4(2) as a means of derogating from some of their obligations under EU law. Despite the vast literature available on national identity and its role in EU law, little attention has been paid to the recently emerging trend of judicial reinvention of identity in East Central Europe. This is what this Article offers. It focuses on the Visegrád Group, which consists of the Czech Republic, Hungary, Poland, and Slovakia. The Visegrád countries (V4) are united in their views on rejecting migrant relocation quotas in the EU and define their exclusionary constitutional identities accordingly. The main subject of the Article is the relevant case law of the V4 constitutional courts. These courts have the authoritative role in enforcing nation-state policies based upon ethnocultural considerations. The Article provides a comparative-analytical description of the judicial interpretations of constitutional identity in these countries based on which we can better understand the recent East Central European trend of disintegration.