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.

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.

This paper deals with the role of judicial decisions in international adjudication. It is impossible to fail to notice the abundance of prior cases invoked in decisions of international tribunals and that, in order to find out what the law actually is, reference to previous cases is all but inevitable in practice. In some areas of international law, judicial or arbitral decisions have even been said to be the centre of progressive development. Nevertheless, there is an undeniable and deeply-rooted professional trepidation in many parts of the world regarding this enduring phenomenon. Even absent a fully articulated theory of adjudication or legal reasoning, the very idea of “judicial lawmaking” tends to arouse instinctive suspicion, especially when coupled with a denial of any restraining force of prior cases. Be that as it may, observations to the extent that judicial decisions are not veritable sources of international law or only binding between the parties in a particular dispute are only the beginning, and far from the end, of the present inquiry. Several interrelated and intricate questions need to be disentangled and dealt with in order to get a better grasp on what is commonly, and often rather unhelpfully, lumped together loosely under the vague label of “judicial precedent.” The paper is hence partly descriptive and partly revisionary. I do not however intend to rehash general criticisms or defences of precedent. Instead, I aim to present precedent as a general and omnipresent jurisprudential concept that enables and constrains judicial decision-making even in seemingly ordinary cases and to then showcase the specificities of one particular legal system in this respect, namely public international law. Hopefully this provides some of the methodological groundwork for other questions central to the present project, not least concerning the legitimacy of judicial lawmaking.

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.

On its website “The EU Single Market – Fewer barriers, more opportunities”, the European Commission lists the judgments by the European Court of Justice [ECJ] dealing with the free movement of capital under Art 56 EC Treaty (ex 73b). The latest update of this list is the Court's Volkswagen decision of 23 October 2007 (Case C-112/2005), which the Commission had launched against the Federal Republic of Germany on 4 March 2005. This suit, brought under Art. 226 EC Treaty, had been long coming. That the Volkswagen statute, which effectively gave the Federal government and the Land (federal state) of Niedersachsen (Lower Saxony) a veto against majority acquisition while only holding a fifth of all shares, would come into the Commission's purview, could hardly surprise, given the Commission's activity with regard to such ‘golden share’ provisions under Portuguese, French, Belgian and English company laws. The most recent decision of the ECJ in the case of Volkswagen is of interest in more than one respect. Not only does it constitute a continuation and further accentuation of a line of argument that the Court has been unfolding over past few years with regard to the Member State provisions in conflict with the EC's guarantee of the free movement of capital as laid down in Art. 56 EC.

This Article analyses, through the lens of comparative law, the Oliari and others v. Italy judgment, which was issued by the European Court of Human Rights (ECtHR) in July 2015. The Oliari case is important for being the first judgment in which the ECtHR established the granting of legal “recognition and protection” to same-sex couples as a positive obligation for the Member States of the Council of Europe on the basis of Article 8 of the European Convention on Human Rights. In order to understand the role of judicial bodies in the progressive protection of homosexual rights, this Article combines an analysis of European case law with the national perspective. As it concerns the supranational facet, the authors illustrate Oliari's reasoning and situate the case in the jurisprudence of the ECtHR. Elements of both continuity and innovation emerge from the analysis, as well as a relevant dimension of judicial dialogue supporting the incremental recognition of gay rights in Europe. As it concerns the national facet, this specific case was initially dealt with at the domestic level and was the object of judgment 138/2010 by the Italian Constitutional Court. The judgment is critically put into perspective through the examination of the jurisprudence of other European Constitutional Courts (France, Portugal and Spain) that were called on to decide similar cases in the same period. Therefore, the Article offers a comparative analysis of the Oliari judgment clarifying its relevance and speculating on the potential value of this case for the future recognition of the right to a “gay” family life in Europe.

Almost 60 years after the surviving Nazi-leaders were tried in the first ever international criminal tribunal for mass atrocities during World War II in Nuremberg, criminal responsibility for genocide, crimes against humanity, and war crimes is perceived of as somewhat normal. Even if it is not yet an everyday event that human rights abusers are tried on an international level, the reality of the possibility of such a trial is present in the minds of the attentive public. This change was achieved over the last ten years. The establishing of the Yugoslavia-tribunal in 1993 was the turning point. Since then a number of both national and international trials held against human rights criminals has given the topic high priority. Finally the International Criminal Court (ICC) was founded and after a comparatively short time actually established and put in a position to operate. Sierra Leone relies on criminal prosecution in order to rebuild its society after a distracted and bloody civil war and a trial against Saddam Hussein seems a necessity. Many expectations are connected to criminal law and the working of the ICC. The dream of a world-wide justice, i.e. to attribute “just desert” to the offenders and to do justice to the victims, seems to have become reality. At the same time the establishing of an international criminal court is understood as a signal that will deter future offenders from committing human rights atrocities. The paper of Alexandra Kemmerer gives proof of how optimistically the EU promotes the idea of international criminal justice.

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.”

The aim of this article is to analyze the European approach to the protection of trafficking victims and evaluate its potential for success. In light of the Italian experience, I will try to demonstrate that the protection offered by European law is too narrow, and therefore bound to be ineffective. I also endeavor to show that offering protection to all trafficked persons, independent of their willingness to cooperate with the justice authorities, is necessary in order to protect the victims human rights, and also to ensure the full implementation of criminal law.

The German Federal Constitutional Court has issued its long-awaited judgment in the Gauweiler Case. The Court ruled that the policy decision on the Outright Monetary Transactions programme (OMT programme) does not manifestly exceed the competences attributed to the European Central Bank (ECB) and does not manifestly violate the prohibition of monetary financing of the budget, if interpreted in accordance with the preliminary ruling of the European Court of Justice (Court). This article surveys the Court's decision and offers a critical commentary on this important case.

Just over a year ago, in the Spring of 2000, a Government Commission entitled \“Corporate Governance - Unternehmensführung (corporate management) - Unternehmenskontrolle (corporate control) - Modernisierung des Aktienrechts (Modernization of corporate law) and consisting of a group of selected lawyers and business practioners from the banking and insurance industry, took up the task of engaging in an in-depth analysis of the structure and challenges of \“German corporate governance.\” The Commission\'s work has drawn to an end and its 300 page report was presented to the public on July 10, 2001. It is German Law Journal\'s privilege to provide its readers with the first-hand insights of the Chair of the Commission, Professor Theodor Baums of the University of Frankfurt\'s Institute of Banking Law. In his discussion with GLJ, Professor Baums addressed specifics of the Commission\'s Report as well as the heritage of and the future prospects for German corporate and capital market law.

The last three decades have brought important changes to the Romanian judicial system, especially concerning the struggle for independence and autonomy within the separation of powers equation. The internal and external context – i.e. the transition to democracy, after 1989, and the intention to join the European Union – determined an orientation towards the “Euro-Model” of judicial self-government. This has not come without difficulties and perils, both from the inside and from the outside. The article provides a comprehensive analysis of the Romanian system of judicial self-government in the context of these perils and emphasizes the link between the attempts to reinforce judicial independence and the anti-corruption fight, required by the supervision mechanism under which Romania has been placed at the moment of the EU accession. The increase in the number and intensity of such perils in the recent period has coincided with an increase in the number of high-level political corruption cases that have resulted in convictions. The article also discusses recent changes in the laws of the judiciary, which still are, partially, under parliamentary scrutiny, but which have raised serious concerns at the European level, as regards the progress made by Romania in achieving the objectives included in the Cooperation and Verification Mechanism.

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.

The Convention for the Protection of the World Cultural and Natural Heritage (World Heritage Convention), which entered into force on 17 December 1975, established a complex governance regime at the international level. The rationale behind the establishment of this regime was the international communities' realization that the world contained natural and cultural sites which were so unique and outstanding that they should by no means become embroiled in the onslaught of human material progress. It was argued that these sites must be protected and conserved for posterity since they, irrespective of the territory in which they were located, belonged to all peoples and, thus, formed part of the common heritage of mankind. Although the United Nations Educational, Scientific and Cultural Organization (UNESCO) regime for the protection of World Heritage is seemingly afforded with weak instruments, such as the inscription of properties on the World Heritage List or on the List of World Heritage in Danger, its activities increasingly play a role, not least in national administrative procedures. The cases of Yellowstone National Park in the United States, Cologne Cathedral and Dresden Elbe Valley in Germany, and Kakadu National Park in Australia are only a few examples in this regard.

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.

This paper argues that the third pillar, despite the ECJ's landmark ruling of Pupino (which extended communautaire reasoning to the third pillar terrain) is and remains different from the supranational sphere. In so doing, the paper asks whether a consistent approach to EU law can be derived from the orthodoxy of EC law by focussing on the recent judgments of Advocaten voor der Wereld and Dell'Orto.

In a recent article, Sobotka and Vermeersch chart the development of EU policy-making towards the Roma. Their analysis of EU documents and policy initiatives tells a convincing tale: Since 2007, Roma have shifted from being an external issue—connected to Enlargement conditionality—to being a high-priority on the EU's internal agenda, and from being the subjects of an approach focused on minority rights to one of social inclusion. This change in emphasis towards the Roma can be viewed in the light of a wider reorientation of the European Union, in which the primarily economic language of European integration is moderated by a shift towards viewing economic growth and social cohesion as mutually conditioning and sustaining. This is reflected in the 2020 Strategy in the language of “smart, sustainable and inclusive growth,” as well as in the notion of a “social market economy” and in the proliferation of social rights at the EU level. This reorientation has primarily been viewed to date through the lens of the increased prominence given to fundamental rights protection in the post-Lisbon Union, and the conflict that this creates with the Union's traditional fundamental freedoms. However, this shift is not exhausted by the greater emphasis on fundamental rights protection; rather, the commitment to inclusive growth has been interpreted by the Commission as requiring the integration of Roma into the economic and social orders of the Member States.

The reference from the Irish Supreme Court seeking a preliminary ruling in the Pringle case concerns the compatibility of the Treaty establishing the European Stability Mechanism (hereinafter ESM Treaty or ESMT) with European Union (EU) law. The Irish Supreme Court was concerned with the legal significance of Council Decision 2011/199, which amended the Treaty on the Functioning of the European Union (TFEU) by inserting a third paragraph in Art 136 TFEU. The new Art 136(3) provides that the Member States whose currency is the euro, may establish a mechanism such as the European Stability Mechanism (ESM) so long as that mechanism is only activated when indispensable to safeguarding the stability of the euro area as a whole, and only if the financial assistance is made subject to strict conditionality. But, because Decision 2011/199 has not yet been ratified by all Member States, the TFEU has not yet been amended. The ESMT nevertheless entered into force at the end of September 2012, and the ESMT commenced its operations in December 2012.

[Editors’ Note: Prof. Brugger's article will appear in German Law Journal in two parts, the first in this month's issue and the second in Vol. 4, No. 1 (1 January 2003). The article originally appeared in Stocktaking in German Public Law 117 (Bullinger and Starck eds., 2002). It is republished here with the kind permission of NOMOS Verlag, Baden-Baden.]

This paper discusses the role that EU competition law can play in regulating the “new self-employed”—precarious workers formally considered to be micro-enterprises. Specific attention is paid to the newest type of “new self-employed,” namely those engaged via matchmaking platforms arranging for work to be contracted on demand. Despite their unequal bargaining position, self-employed individuals are barred from collective bargaining due to the EU competition rules. This Article argues that the problem will not be solved by modifying the respective tests for “worker” and “undertaking” in EU law, or by introducing exceptions under Article 101 TFEU. This Article then adopts a regulatory approach to canvass the different legal instruments available to address exploitation concerns in the context of the Uber economy, and discusses the role that EU competition law can play in such a regime.