For a long time, EU institutions have emphasized the connection between one of the most important concepts of the integration method, mutual recognition, and the presence of mutual trust between EU Member States. Only recently, the ECJ reaffirmed in its Opinion 2/13 that mutual trust is at the heart of the EU and a “fundamental premiss” of the European legal structure. But can law really restore, advance or even govern by trust? This question is crucial for the EU of today, which finds itself in the midst of a severe crisis of trust. For the EU as a community “based on the rule of law” generating trust through law might seem the natural, maybe the only politically viable response to a crisis of trust. Nevertheless, even if one agrees that the rule of law requires people to place trust in legal rules, and that courts and administrative agencies need to trust each other in order to work efficiently and consistently, how would legal rules be able to generate or promote trust? Moreover, isn't it deeply rooted in our ideas about constitutional government that democratic law must institutionalize mutual distrust rather than govern by trust? These conceptual and normative objections did not stop the European Union from pursuing the project of trust-building through law in one of the most sensitive areas of EU law, judicial cooperation in civil and criminal matters. This Article will ask whether the project to promote trust through law is a promising one, and, eventually, how to reinterpret statutory provisions and legal principles that purport to generate trust amongst their addressees.

In the aftermath of the Brexit referendum of 23 June 2016, the question of migration has been at the forefront of attempts to understand what happened, and in particular why working class communities in many of the regions of England, and in parts of Wales, voted predominantly for the Leave side. Polling data show a weak correlation between areas of the country that voted for Leave and high levels of inward migration from the rest of the EU. The link between immigration and Brexit is very clear in East Anglian agricultural towns like Boston and Wisbech, but otherwise is weak. South Wales and the North East of England, which also saw clear majorities for Leave, are not areas of high EU migration. Instead, they are regions that have experienced successive waves of deindustrialisation since the 1980s. The overriding issue raised by the Brexit vote, in my view, is not migration as such (although that is part of the story), but a wider phenomenon of deepening economic insecurity, and the dangerous political dynamic it has created.

In light of the uncertainty surrounding recent unilateral declarations of independence, this Article purports to re-visit the question of their legal nature under international law. The Article shows that the International Court of Justice's (ICJ) judgment in the Kosovo advisory opinion (hereafter referred to as the Kosovo Opinion) is of little assistance in establishing whether and to what extent such declarations fall within the ambit of international law. The Article proceeds to examine claims that unilateral declarations of independence are regulated—entirely or partly—by international law and argues that these claims are ill-founded on multiple grounds. The Article asserts that international law is legally neutral towards the claims—a proposition in accord with both the factual nature of the process of state formation in international law and with the relevant practice.

When former state president C. Wulff stood accused of having received benefits from a film producer known to him for several years, he argued: “Is a politician not entitled to have friends?” Before such background, the question of where to draw the line between social life of a public servant or politician and criminal behavior arises. Are such persons subject to permanent threat of criminal prosecution if they accept invitations etc., or is it their obligation to the general public to refrain from accepting donations from persons who have interests in their decisions, even if these persons are long known friends of the public servant?

This Article has a twofold aim. First, it focuses on a particular case study, which has attracted the interest of several scholars from an interdisciplinary perspective: the legalization of same-sex marriage. The Article aims to show how changes in one specific socio-cultural landscape may spill into other contexts as a result of a ripple effect. The idea is to demonstrate how the emergence of a social fact—the increasing demands made by homosexual couples for their union to be recognized in one way or another—may make the process of institutionalization natural. A legal system may sometimes be bound to recognize social facts, and transnational law may enhance this phenomenon. The second aim of the Article is to claim is that, when analyzing change, legal deterministic theories should be dismissed, as they are based upon easy assumptions that do not correspond to empirical observations. Instead, as shown by constructivist approaches, the combined effect of structure and agency in some specific circumstances contributes to social and legal change. However, constructivists perhaps underestimate the relevance of unpredictable events and the (positive or negative) influence that transnational frameworks may have in forming discourses of power. In particular, the EU and the ECtHR systems may facilitate the diffusion of ideas and norms deriving directly from the liberal paradigm that inspire them. However, the liberal paradigm is contradictory, as it does not necessarily provide an incentive for change.

This Article aims at presenting and clarifying the Polish perspective towards the Mediterranean refugee crisis. Poland has not been directly affected by this crisis so far and this makes the Polish case significantly different from the European Union Member States that are directly affected by a large influx of people seeking protection. This Article briefly presents the Polish legal framework and its origins and analyzes the particular governmental (in)actions towards the Mediterranean refugee crisis, including references to the politicized debate on the issue. Also, the specific context of a potential future Ukrainian crisis is addressed. The Article finishes with concluding remarks and suggestions to employ temporary legal measures to address large movements of refugees and migrants, as such measures deal with the specificity of such movements in the best way that can be achieved.

This Article engages in an empirical analysis of the counter-majoritarian role of the Brazilian Supreme Court, the Supremo Tribunal Federal (STF), in terms of its sharp contrast with the aim of attracting wider participation from civil society in public hearings. Public hearings are an important judicial tool that have recently been introduced and that may influence foreign constitutional courts. A public hearing is a procedure in which the STF can hear experts, scientists, professors, civil servants, and even ordinary citizens when a Justice Rapporteur seeks to elucidate a specific technical aspect of a case, a controversial social issue, or an issue in a field that is generally unfamiliar to the presiding judge or judges. This research aims to address the influence of these public hearings on the deliberation process of the STF based on the democratic theory of representation. First, Section B outlines the main premises of the debate, elucidated the purposes and findings of public hearings. Next, Section C presents a theoretical approach addressing deliberation and representation to explain how information obtained in public hearings might improve the STF's adjudicative process. Section D outlines the chosen criteria and methods for the empirical research; this will demonstrate that public hearings in the STF are not working as envisioned. Lastly, to offer qualitative insight, Section E carefully examines two of the eighteen public hearings analyzed. The Article concludes that the STF has much work to do in terms of rethinking and improving the functionality of public hearings.

This Article asks the fundamental question of whether the concept of a market-oriented (economic) order can be reconciled with the idea of democracy from the perspective of rational choice approaches to the law. Europe has been facing great economic challenges for the past years—sovereign debt; fiscal and monetary policy; financial market regulation; trade and investment agreements. Some observers argue that prioritizing an economic rationale in the policy response to these challenges comes at the expense of democracy by undermining its most vital preconditions (such as equality and solidarity), while their antagonists state that in fact democratic decision-making is undermining financial stability and long-term welfare of societies. This Article will establish that both positions contribute important insights and yet display too narrow a field of vision. Combining the arguments puts the cart before the horse: Democratic decision-making undermines, among other things, financial stability—and thus long-term welfare of societies—because it follows a logic that is primarily economic.

It would be unrealistic to reject secession from the doctrine of self-determination and limit the doctrine to the colonialism context. Nevertheless, the question is: What principles do states need follow in response to secession movements? Democratic principles are not the best—or only—options to address these requirements, but the secession doctrine's development and state practice has made such principles legally and practically relevant, according to many scholars. This Article proposes that the focus of the debate should be transferred to the internal dimension of the right to self-determination. The possibilities that can come from the realization of this aspect of the right to self-determination can be further explored. Certainly there is a very wide and flexible range of options and measures for addressing, protecting, and promoting diversity, and thus overcoming identity conflicts and providing a balance of social power. Those political arrangements, though imperfect, can help to avoid secession, thereby providing stability, harmony, and prosperity of democratic societies. But practice has shown that there are exceptional cases in which the current conditions on the ground make the application of tools for internal self-determination impractical. In these exceptional cases, internal self-determination fails to achieve the desired goal. This Article examines the legal arrangements for realization of internal self-determination through the examples of Basque Country and Scotland as vital quests for secession in countries with long democratic traditions.

Since 2014, the refugee crisis has determined a sharp increase in the number of unauthorized arrivals on the Italian shores. However, contrary to what happened in other less affected European Union countries, the Italian government has not reacted with an antiimmigration policy. Rather, it has tried to reconcile the overarching imperative of a full compliance with EU norms regulating external border controls with the observance of the most compelling humanitarian obligations. The results have been mixed. Both the functionalist bias that is inherent in the administrative action and the legislative inertia during the crisis have produced a detrimental impact on the fundamental freedoms of the migrants. The Article addresses four main constitutional challenges: (1) The lack of legislative authorization for the imposition of coercive means in the context of the “hotspot approach”; (2) the deficiencies of the Italian system for the reception of asylum seekers and refugees, which became a source of destabilization of the Dublin system and the Schengen area; (3) the low level of due process protection that is guaranteed to migrants that are subject to return procedures; and (4) the problematic need to cooperate with third countries that do not adequately protect human rights. The Italian case illustrates a distinctive, yet more general trend. For member states who are geographically exposed to migration flows and whose borders overlap with the external borders of the Schengen area, developing an antiimmigration or anti-EU policy would be short-sighted and self-defeating. Those states need more—rather than less—Europe because they cannot stop the migration inflow. And they need to effectively manage it because it is the only way to keep the Schengen area alive—and not to be excluded from it.

The (still) United Kingdom has voted against remaining in the EU. The divide between London City and the countryside, between young and old, between Scotland and Wales –all of this will keep this nation occupied for a long time, if it does not tear the nation apart. At the very least it will be a nation under significant tension. But what about the Continent? Recently a truculent suggestion has been making the rounds in Brussels, Paris and Berlin. In principle it would be a good thing if the English leave. This would clear the way for “more Europe.” Maybe, with a divorce, Europe will at last be free to take step toward a federal state. Some, a bit more tactfully, wonder if Brexit should not have consequences for the EU as well. Should the EU become more “social” with decidedly more transfers? Or, should competences now be returned to the Member States? Others, to the contrary, have floated the idea of a new subsidiary balance: they want to transfer additional sovereign authority and reduce the veto-opportunities for the Member States.

In response to the many facets of corruption, many scholars have produced interdisciplinary research from both the theoretical and empirical perspective. This paper provides a comprehensive state-of-the-art survey of existing literature on corruption, utilizing these interdisciplinary insights. Specifically, we shed light on corruption research including insights from, among others, the fields of economics, psychology, and criminology. Our systematic discussion of the antecedents and effects of corruption at the micro, meso, and macro level allows us to capture the big picture of not only what drives corrupt behavior, but also its substantial ramifications.

This Article engages the debate over the free movement of same-sex couples and explores what can, and should, be learned from the case law on the recognition of names. These “name cases” provide valuable lessons for both the proponents and opponents of same-sex marriage recognition. These cases show, first, that Member States are under the presumption to recognize marriages performed in other Member States. This Article also considers the importance of the national and constitutional identities of the Member States and suggests that there remains a possibility that Member States may justify the non-recognition of a marriage or deprive same-sex couples of some of the rights heterosexual married couples benefit from. The Article explores how the EU is confronted with a federal clash of values and offers some suggestions on how to solve this clash.

This Article examines the relationship between the developing European Union (EU) system of banking supervision and the theories of constitutional pluralism. It questions the remaining epistemic, explanatory, and normative value of these theories with regard to the EU system of banking supervision. The argument is broken down into three parts. First, the Article briefly describes the system of banking supervision in the European Union and the pluralist challenges that it spurs. Second, it schematically maps out the leading theories of constitutional pluralism to test, by way of their application to the field of EU banking supervision, their epistemic, explanatory, and normative value. Finally, to the extent that this value has diminished, the Article offers another pluralist theory, not a constitutional one, which could supplement the identified epistemic, explanatory, and normative gaps. This is a theory of administrative pluralism.

Environmental standards should not be a hindrance for economically relevant projects — especially in the fields of sustainability and green energy. Therefore, the Dutch legislature implemented experimental instruments in the Crisis and Recovery Act to improve the flexible application of environmental standards. They did this by allowing competent authorities to deviate from these standards. This article analyzes this Dutch approach, which can be characterized as “bending the rules.” Are these instruments legally sound and how are the relevant provisions applied in practice? Dutch government is currently working on a fundamental change of the system of environmental law with a new Environment and Planning Act. Should this new system of environmental law include a general permanent provision to deviate from environmental standards? This article provides environmental scholars with some lessons that can be learned from the Dutch Approach.

While the Dublin System was meant to create a clear and fair division of responsibilities for the examination of applications for international protection, the recent refugee crisis highlighted the extent to which normative aspirations and political realities can diverge. That said, the Dublin System does allow for a certain degree of flexibility: By exercising the discretionary right to assume responsibility under the so-called “sovereignty clause” of Article 17, paragraph 1 of the Dublin III Regulation, Member States can examine asylum applications even when they would not formally have jurisdiction for doing so according to the criteria established by the Dublin System. Germany has relied upon this right extensively during the refugee crisis. Against this backdrop, the following contribution analyzes the reasons for, and limits of, multilevel administrative discretion in the Common European Asylum System. It argues that when a Member State exercises the right to assume responsibility in a sweeping manner, i.e. in hundreds of thousands of cases, it runs the risk of overstretching the legal limits of its discretionary powers. National administrative bodies can only invoke the right to assume responsibility insofar as this does not amount to game-changing decisions by the executive or unilateral decision-making without transnational coordination – particularly when such decisions have severe transnational consequences.

Corrupt practices in organizations are commonly explained via the rational choice of individual employees, with the benefits of deviant actors at the heart of the theoretical approach. This Article challenges the rational choice perspective with reference to cases of corruption in which the organizational benefits are crucial and personal gains negligible. The authors propose to embed the concept of “useful illegality” (Luhmann) into an institutional theory framework and develop a set of indicators for the systematic comparison of individual case studies. Exemplary analyses of two landmark cases of corporate bribery on behalf of German corporations' subsidiaries abroad (Siemens Argentina and Magyar Telekom) show that active corruption was neither simply a function of individual deviance, nor of personal gain. In contrast, institutional theory allows the modeling of organizational deviance as a function of unwritten rules that lend legitimacy to the deviant behavior of bribe payers. Despite plentiful opportunities in the periphery of these two multinational corporations, the few instances of personal gain were either in line with the organizational incentive structures (as in Telekom) or attributable to the loss of membership (as in Siemens). Mostly high-ranking employees, loyal to their organization, committed those crimes at high personal risks. The discussion of factors that explain why these “company men” nonetheless complied with the unwritten rules, in support of organizational benefits, leads the authors to conclude with likely consequences for effective regulation. They argue that it is the usefulness of the illegal behavior for the organization, its entrenchment in organizational cultures, and amplified adaptation problems with regard to changing institutional environments that explain what makes corrupt practices so hard to control and to regulate in a formal legal organization.

In its present state, Article 166 StGB does not satisfactorily achieve its purpose of ensuring the effective enforcement of the ban on insulting of religious beliefs and religious communities. This is largely because of the difficulty satisfying the “disturbance of the public peace” requirement. In this paper, I first refer to the legal limits of the freedom of opinion in consideration of religion and then argue with regard to Article 166 StGB that the disturbance of peace criterion ought to be eliminated because abuse of religion, in itself, already disturbs the public peace.

400 years after Shakespeare's death, a tragedy of Shakespearian dimensions has unfolded in the United Kingdom: Brexit. One Friday morning in June 2016, staring in disbelief at the incoming news, we were asking ourselves: “Are you sure/That we are awake? It seems to me/That yet we sleep, we dream.” A look at Shakespeare's work in the context of Brexit is no lofty, purpose-free exercise. For one, Shakespeare's work is instructive for explaining British national pride, its indulgence in splendid isolation that obviously provided one of the intellectual undercurrents of the Leave campaign (though the causes for voting Leave are, of course, a lot more multifaceted). The English nation formed itself in the Elizabethan age against the background of a century of quarrels with France in what was then the recent past. The pride that the British took from their victories is nowhere better reflected than in Henry V's Crispin's day speech. A small number of English soldiers heroically resisted the French forces. “We few, we happy few, we band of brothers.” Shakespeare infused the play with a feeling of togetherness based on England's victorious fight against continental powers. It was this idea of nationhood that carried England and the whole of the United Kingdom successfully through the turmoil of the 20th century. Small wonder that some demanded compelling (economic) reasons to continue bonding with the continent.