In recent years, the CJEU has impressively brought to bear the protection of the fundamental rights to privacy and protection of personal data as contained in the CFREU. The Court’s decisions in the Digital Rights, Schrems, Tele2, and PNR cases have reshaped the political and legal landscape in Europe and beyond. By restricting the powers of the governments of EU Member States and annulling legislative acts enacted by the EU legislator, the decisions had, and continue to have, effects well beyond the respective individual cases. Despite their strong impact on privacy and data protection across Europe, however, these landmark decisions reveal a number of flaws and inconsistencies in the conceptualization of the rights to privacy and protection of personal data as endorsed and interpreted by the CJEU. This Article identifies and discusses some of the shortcomings revealed in the recent CJEU privacy and data protection landmark decisions and proposes to the CJEU a strategy aimed at resolving these shortcomings going forward.

In the constitutional shaping of the concept of essence of fundamental rights, the case law of the Court of Justice of the EU (“CJEU” or “the Court”) in the field of privacy and data protection plays a crucial role. The Court’s interpretation of this notion had a considerable impact not only jon perception of the essence in other fields of law, but also on the constitutional doctrine more generally. This Article focuses on specificities of the notion of essence of fundamental rights to privacy and the protection of personal data from Articles 7 and 8 of the Charter of Fundamental Rights of the EU. After a general analysis, situating this notion into the framework of multi-level protection of fundamental rights in Europe, the Article addresses further interpretative challenges relating to the essence in the Court’s case law. At the core of the analysis are the Schrems and Digital Rights Ireland cases, where the CJEU developed, for the first time, the modalities of the breach of essence of fundamental rights to privacy and data protection and laid down constitutional foundations for interpretation of this notion. Further jurisprudence, including the Tele2 Sverige and Opinion 1/15 cases, is analyzed as an example of fine-tuning of the CJEU’s approach towards the normative understanding of this concept. Against this backdrop, the Article elaborates on the importance of insights in the fields of privacy and data protection for the general constitutional understanding of the concept of essence and proposes a generalized method for determination of infringement of essence in fundamental rights jurisprudence.

Most contemporary constitutionalists exhibit a highly critical attitude toward populism, seeing it as one of the main reasons for the “erosion” of liberal democratic institutions in a growing number of countries around the world. Other constitutional theorists, who are less hostile to the populist phenomenon, remain open to the prospect of a genuinely populist constitution. Irrespective of their differences, both camps take the existence of populism—itself a highly contested concept—for granted. In challenging this implicit consensus in constitutional theory about the actual existence of some observer-independent “populism,” this essay proceeds from two assumptions. One: like all political concepts, populism is a concept which, irrespective of the intentions of those who articulate it, has polemical implications. Two: like all polemical concepts, populism is a concept that must be “staged”. What that means are, again, two things. First, populism is staged because its meaning emerges against the backdrop of dramatized scenes that confront us with concrete political actors, impersonal technological tendencies, important historical events, elusive cultural atmospheres and broader socioeconomic landscapes. In most constitutionally relevant depictions of those scenes, populism emerges as a grave, if not yet existential, threat to liberal democracy. Which brings us to the second sense in which populism ought to be understood as “staged”: not just as an abstract concept propped up by concrete imaginings of protagonists, events, tendencies, and challeneges, but as a stage-prop: a polemical device whose function is itself dramatizing. Portrayed as a “regime,” painted in dark colours, and situated in opposition to liberal democracy, populism is a figure whose role is to make the face of liberal democracy look more appealing. If so, there is no reason not to look at populism as a rhetorical distraction from other, potentially more fruitful questions such as: What are the actual institutional features of liberal democracy—not as some abstract template of legitimate government —but as a specific, historically mutable, socio-economic and psycho-social regulatory regime? In what sense do such regimes have a “constitution”? In whose interest are constitutional theories that remain indifferent to those regimes’ realities? Offering a fresh look at how liberalist critics of populism project this “ideology” or “regime” on a stage on which it appears as a threat to liberal democracy, this article offers a vantage point from which to begin systematically confronting these questions.

The article considers populism not as common ideology but as a common strategy for implementing various distinct ideologies. Constitutional democracy and populist strategy are inherently connected. Populist strategies develop a specific rhetoric which takes root in the features of constitutional democracy. The populist rhetoric manipulates the rule-of-law and the majoritarian pillars of constitutional democracy by convincing a fictional majority that constitutional democracy gives rise to a tyranny of minorities. Populism in action represents the second facet of the populist strategy. It corresponds to a specific constitutional strategy of legal and constitutional reforms aiming at disrupting constitutional democracy. After exposing my theoretical assumption, I move to a comparative study of two countries, France and Hungary, selected according to the most different cases approach. I analyze first how Viktor Orban based his constitutional strategy on a progressive deconstruction of the post-communist legacy. I study then how Marine le Pen’s strategy consisted of a comprehensive reform of the French semi-presidential system via referendum. I finally conclude by recalling the essential role academics have to play in the fight against populism. My last point is a provocation, what if calling populism by its real diversity (fascism, racism and antisemitism) was the most efficient way to fight them?

Over the years, judgments by the European Court of Justice (“ECJ”) have been—sometimes heavily—criticized. While the recent reforms to the EU’s judicial system have addressed the high caseload of the General Court of the European Union (“GC”), the perceived lack of quality of the ECJ’s judgments in preliminary rulings procedures remains an issue. This Article will outline in what way these judgments are criticized and try to examine the root causes of the criticism. It goes on to argue that subject matter specialization is an adequate answer to this criticism and examines how subject matter specialization can be introduced into the European Union (“EU”) judicial system.

This Article explores the contemporary governance of religious diversity in the United States and Germany through the case study of religious education in public schools. The United States and Germany have two very different approaches to teaching religion: The subject does not exist at all in American public schools, while in Germany, confessional religious education is explicitly mandated by the Federal Constitution and is still an integral part of the curriculum in the vast majority of Länder. Yet, both countries have recently been confronted with similar challenges—a growing diversification and politicization of religious identities—which have forced them to rethink the place and role traditionally given to faith in the sphere of public education. The Article thus examines how, and to what extent, the American and German historical models of religious education—and thereby, more broadly, the public governance of religion in both countries—have been transformed by the changes in their religio-political landscapes.

In this Article, the author presents and explains the current normative framework in EU law about the exclusion from refugee status based on the premise that a person is not deserving of refugee status. This article is directed at clarifying the present content of the legislation in force and the caselaw of the Court of Justice of the European Union that further elaborates on this issue. The Commission’s recent proposal for new legislation is also scrutinized, in order to present a possible evolution of the exclusion provision.

This contribution examines the developing contours of the essence of the fundamental right to an effective remedy and to a fair trial in the light of salient case-law of the Court of Justice of the European Union. It is divided into three main parts. The first part provides an overview of the meaning of the essence of fundamental rights in EU law and the scope of the inquiry in relation to Article 47 of the Charter of the Fundamental Rights of the European Union (“the Charter”). The second part evaluates the essence of the fundamental right to an effective remedy and to a fair trial in connection with justified limitations that may be placed on its exercise as provided for in Article 52(1) of the Charter within the framework of the EU system of fundamental rights protection, which in turn implicates the relationship with the Court’s case-law on national procedural autonomy, equivalence, and effectiveness. The third part delves into the essence of the fundamental right to an effective remedy and to a fair trial within the framework of the EU system of judicial protection, as illustrated by the Court’s case-law in several areas, including standing for individuals in direct actions before the EU courts, judicial independence, and restrictive measures in the Common Foreign and Security Policy. Through this analysis, the author argues that, while much awaits further refinement, certain recent developments in the Court’s case–law indicate that the essence of the fundamental right to an effective remedy and to a fair trial can play a meaningful role in the EU system of fundamental rights protection and the EU system of judicial protection more broadly, and thus the best may be yet to come as that case-law progresses in the future.

This Article explores whether and how contemporary constitutionalism may have triggered or facilitated populism and its illiberal agenda. In particular, it focuses on some of the legal doctrines that have characterized the growth of transnational and supranational judicial fora, contrasting them with populism in Europe. The Article first sketches the role of courts in shaping contemporary transnationalism and supranationalism in Europe. Then, it analyzes the role that the ideals of progress and equality have played in the judicialization of pan-European legal culture. Finally, it ponders the consequences of the constitutionalization process of European law for the role of democratically accountable institutions.

In Article 7, paragraph 3, the German Constitution provides that religious education shall be a part of the curriculum of public school. This is one of the three approaches of dealing with religious education existing today. Originally, religious education as a regular subject at public schools in Germany was only offered by the two Christian Churches—Catholic and Protestant. As the number of Christians decreased and the number of Muslims increased, the demand for Islamic religious education at public schools grew. Therefore, the question arose whether the constitutional law concerning religion is capable of facing the new challenges of religious diversity. This Article tries to answer this question with regard to the introduction of Islamic religious education as a measure of adaptiveness. In the first step, the requirements of Article 7, paragraph 3 of the Constitution posed to religious education will be outlined in order to be able to examine in the second step whether Islamic religious education may be introduced at public schools as a regular subject. In this regard, the issue of the qualification of an umbrella association as a religious society and the constitutionality of the advisory board model will be discussed.

This Article criticizes two trends on the Brazilian literature of communitarian law: A mental exercise that can only be termed as an “EU analogy” and a need to evoke the Congress of Panama of 1826 as the origin of Mercosur. As odd as it may seem, those trends are somewhat connected. Comparisons between the European Union and Mercosur abound in scholarly works, and they became so popular that a more simplified version of this comparison came into being. When explaining the current dilemma that Mercosur faces—or any other predicament as well—Brazilian scholars often tend to provide only one solution consisting in a vague reference to the supranational character of the European Union. This reference appears out of context and solves any problem. A trend so common as the EU analogy exemplifies that some Brazilian experts on communitarian law have also assumed an idealized version of our neighbors’ take on the Latin America integration. Apparently, Mercosur dates back to the Congress of Panama of 1826 and Simón Bolívar’s ideals on Latin American integration. The story faces several historical obstacles and yet has spread so rapidly that it has acquired the stature of a true myth. This work presents these two inclinations and contends that one relies on the other. Rather than providing an accurate explanation, as one would expect on a scientific text, they justify a certain concealed intent. This Article employs an inductive method of approach and relies on primary sources to explain the foundational myth so to prevent historical misconceptions.

Contemporary discussions of populism elide important distinctions between the ways in which populist leaders and movements respond to the failures of elites to follow through on the promises associated with international social welfare constitutionalism. After laying out the political economy of populisms’ origins, this Article describes the relation between populisms and varieties of liberalism, and specifically the relation between populisms and judicial independence understood as a “veto point” occupied by the elites that populists challenge. It then distinguishes left-wing populisms’ acceptance of the social welfare commitments of late twentieth century liberalism and its rejection of some settled constitutional arrangements that, in populists’ views, obstruct the accomplishment of those commitments. It concludes with a description of the core ethnonationalism of right-wing populism, which sometimes contingently appears in left-wing populisms but is not one the latter’s core components.

The law on state-church relations is no longer exclusively a national concern of the EU Member States. Despite supposedly strict neutrality clauses in the primary law of the EU and rigid statements—inter alia—by the German Federal Constitutional Court, it is safe to assume the formation of a supranational EU law on religion, which also touches upon the status of the churches and religious associations. This becomes obvious when state-church relations in Europe are reconstructed as a double conflict of laws that comprises interlocked conflicts between ecclesiastical law and worldly law, as well as between EU law and national law. Within the triangular relationship of these different legal spheres, EU law steers state-church relations towards the non-discrimination principle. The controversy in German law on religion between the proponents of a collective, institutionalist understanding (classic “Staatskirchenrecht”) and advocates of a rather fundamental rights-centered, individualist reading of the Constitution (“Religionsverfassungsrecht”) hence needs to be reconsidered. EU law calls for including yet a third paradigm into the debate: Equality.

The concept of the “essence”—as well as the related concepts of “substance” or “core”—of fundamental rights is absent from the text of the European Convention on Human Rights (ECHR), but regularly appears in the case law of the European Court of Human Rights (ECtHR) since the Belgian Linguistic case of 1968. Yet, fifty years after its explicit emergence in the Convention’s legal order, it must be observed that a clear understanding of this concept and of its practical utility is still lacking. Indeed, the idea of the essence of fundamental rights has never been clearly defined in its case law, which remains essentially pragmatic and unprincipled in this field. This Article will therefore attempt to remedy this shortcoming by sketching out the different functions assigned to the concepts of the essence, substance, and core of rights in the ECtHR’s case law. It is postulated that the concepts of the essence, substance, and core of fundamental rights are invoked for three different types of purposes. First, the concepts of the essence, substance, and core are—apparently at least—used by the ECtHR to fix the “limit on the limits,” for example, the inalienable part of fundamental rights safeguarded from any possible restriction. Second, this concept has been a vehicle for expanding the Convention’s sphere of protection for the purposes of guaranteeing its effectiveness. Third, the concepts of the essence, substance, and core of fundamental rights also constitute a “reviewing tool” used by the Court to determine the intensity of the States’ obligations on the basis of a prioritization among a series of values at stake. Although these three different functions can be identified on paper, the practical usefulness, workability, and desirability of the concepts of the essence, substance, and core will be questioned.

Once a year, the German-speaking public law assistants meet to discuss recent developments in their working areas. This year, the anniversary of several enactments of constitutions, such as the Grundgesetz, suggested to discuss issues with regard to the role of constitutions for the democratic state, constitutional change, and the relevance of constitutions for societal cohabitation. During the lively discussions, one could observe a trend towards interdisciplinary research in the work of young public law scholars.

Populism is Janus-faced; simultaneously facing different directions. There is not a single form of populism, but rather a variety of different forms, each with profoundly different political consequences. Despite the current hegemony of authoritarian populism, a much different sort of populism is also possible: Democratic and anti-establishment populism, which combines elements of liberal and democratic convictions. Without understanding the political economy of the populist revolt, it is difficult to understand the true roots of populism, and consequently, to devise an appropriate democratic alternative to populism.

Populist political movements claim to be democratic in expressing what the people want, against the political establishment. These claims are misconceived to begin with in presupposing a definitive unitary people. Nonetheless, constitutional democracies face a special challenge to resist these claims in principle because they are unmistakably democratic sounding claims; they purport to empower popular will so that the people can rule themselves. Populist movements can be successful at the ballot box and push political culture in antidemocratic directions through democratic means, all the while claiming democratic legitimacy. The very processes of democracy are under threat. Traditionally, political winners are not motivated to change the system that saw them elected; populists are different in this regard. The populist challenge prompts a revisit of the debate about the democratic legitimacy of judges being empowered to displace the decisions of elected legislative assemblies (the constitutional review debate). An underdeveloped aspect of the constitutional review debate was the scope for courts to intervene specifically in political processes to correct them when they have gone awry and to help prevent them going awry in the first place. Judicial intervention is costly in democratic terms, and yet democracy has to be protected. This Article analyzes the search for a balance between popular will shaping democratic processes and judicially managed constitutional limitations on popular will shaping those processes. The recommended judicial role is styled as courts protecting—not perfecting—democracy, and it is a John Hart Ely-inspired modification of a separation of powers defense of constitutional review. In addressing the populist challenge, courts can, in principle, try to be a step ahead in anticipating and, where they can, slowing degradation of democracy and thereby helping to prevent it.