The second decision of the German Federal Constitutional Court on the Islamic headscarf declares a general ban on headscarf to be unconstitutional and, in particular, a violation of freedom of religion. This case note examines whether this decision is an ill-conceived weakening of a religiously neutral state or, to the contrary, an encouraging manifestation of a liberal constitutional order that takes its aspirations in a highly contested area of law seriously.

The First Senate of the German Constitutional Court held in its decision on 27 January 2015 on the ban of headscarves that a blanket ban on religious statements for teachers in public non-denominational schools—that does not require a sufficiently concrete threat to the peace at the schools or the state's neutrality—is unconstitutional. The Court further nullified a discriminatory clause that privileged Christian-occidental educational and cultural values and traditions vis-à-vis other religions. By doing so, Karlsruhe made a strong plea in favor of understanding the German State's neutral role in religious matters as one of openness and inclusion of a plurality of religions and worldviews, rather than that of a laizistic polity. It brought its jurisprudence in line with the United Nations Human Rights Committee's approach in similar matters. Though, arguably, the case would have required a referral to the Joint Senate of the Constitutional Court, as it marks a deviation from the Second Senate's decision from 2003, the findings of the Court on the substantive law are to be welcomed.

A preliminary reference on the part of the Constitutional Council was, in several respects, not to be expected. It was debatable whether it would consider itself as a “court or tribunal” within the meaning of Article 267 of the Treaty on the Functioning of the European Union (TFEU) and, therefore, whether it would refer a case to the European Court of Justice (CJEU) at all. The French constitutional court could also have resorted to the acte clair doctrine so as to escape from their obligation to ask for the interpretive guidance of the CJEU. However, the main reason why a reference was not awaited by legal actors lies in the limited jurisdiction of the Constitutional Council. Until the introduction in 2008 of the so-called QPC, that is, question prioritaire de constitutionnalité (the Priority Preliminary Reference mechanism on issues of constitutionality), the Conseil constitutionnel had a very limited jurisdiction compared to its European counterparts. Its main mission was to assess the conformity of parliamentary bills and treaties with the Constitution and only with the Constitution. Its review could only take place ex ante, between the adoption and the promulgation of a text. By opening the way to an ex post review of statutes with regard to the rights and freedoms guaranteed by the Constitution, the QPC brought about a major change in the French adjudication system: statutes are no longer immune from constitutional challenge once they are in force. However, treaties and other international or European commitments are no parameters of constitutional review. The Conseil constitutionnel made this clear in 1975 and never seriously changed track, despite minor qualifications to the rule. In their seminal IVG ruling on the Voluntary Interruption of Pregnancy Act, they held that it was not up to them to review the compatibility of bills with treaties, in spite of Article 55 of the Constitution. Consequently, the task of the constitutional judges does not go beyond the assessment of laws with regard to the Constitution. This is the main reason that explains why, on the face of it, the Conseil constitutionnel was unlikely to refer a case to the CJEU. Why would it seek the interpretation or ask for the review of a European text if this text is immaterial for it and if the yardstick of its examination is the Constitution and only the Constitution? Yet, it happened. For the first time, the Conseil referred a case to the CJEU on 4 April 2013. Although this is undoubtedly a major legal breakthrough, we will see in due course that this is probably more a révolution de palais than a true revolution in French constitutional law.

This contribution discusses National Parliaments’ subsidiarity objections raised in the context of the Early Warning Mechanism (EWM) to the European Public Prosecutor Office proposal, and the European Commission response to them. It argues that National Parliaments raised important points, on how does subsidiarity apply respectively, when the wording of the Treaty grants the Council the option to act, as opposed to an obligation to act; on how to assess the inefficiency of the national level; on how does subsidiarity apply in a geographically fragmented context, and on the legitimacy for the EU to regulate non cross-border behaviors. It criticizes the Commission's hasty dismissal of all National Parliaments’ objections, and its decision to leave the proposal's text untouched. It further argues that the Commission's interpreted the EWM as an arena where to test the political feasibility of the proposal, as it had occurred in the past, rather than as a proper subsidiarity policing mechanism. It finally provides some observation on how this interpretation of the EWM has negative implications to terms of subsidiarity policing, of understanding the substance of the principle, and of input legitimacy.

This article examines the specific issue of the referendum as an instrument in the reordering of territory, specifically in the context of the secession of Crimea from Ukraine. The article maps how in recent decades independence referendums have proliferated and considers how the Crimean situation exposes the deep pathology of uncertainty in international law and its understanding of self-determination, exposing the referendum as a dangerous outlier. The principle of democracy, present already in the context of Kosovo's unilateral independence, and which forced the hand of Canada and the UK to accommodate secessionist aspirations, is a growing feature of international legal discourse, and one which suggests that the referendum is likely to remain a potential trump card to which nationalists will appeal to overcome both constitutional impediments and the black hole of international law in the path toward statehood.

The Court of Justice of the European Union (the Court of Justice) decided to strike again. On 18 December 2014, for the second time in history, the Court rejected the European Union's (EU) accession to the European Convention on Human Rights (ECHR). Although the judges do not seem to negate the idea as a matter of principle, they made the renegotiation of the Draft Accession Treaty very difficult, to say the least. The message sent by the Court of Justice to the Member States may have surprised some, but for many it was a rather expected development. The Court of Justice has always been a fierce defender and promoter of the autonomy of EU law. For that purpose, the procedure based on Article 218 (11) TFEU has been, among the others, the Court's greatest weapon. Over the years a clear pattern has emerged: Whenever there is a threat to the autonomy and to the Court's exclusive jurisdiction, the judges will not shy away from taking bold decisions going against the will of the Member States. For obvious reasons, the raison d'être behind the Court's decision is kept secret behind the doors of the deliberation rooms at Kirchberg in Luxembourg. Still, it cannot be denied that Opinion 2/13 shows that the Court of Justice will not give up its resistance to the ECHR accession so easily. In 1996, in Opinion 2/94, the Court held that the European Community, as the law stood then, had no competence to accede to ECHR. Now that Article 6(2) TEU provides for an obligation to accede, subject to conditions laid down in Protocol No 8 to the Founding Treaties, the Court has opted for strict interpretation of the latter, which, ultimately turns the caveats laid down therein into locks. It is clear that these caveats turned into locks are something that the judges will hold on to in the future and, by the same token, they will happily pursue interpretation that is very different from what the Member States intended when negotiating the Treaty of Lisbon and the Draft Accession Agreement.

This contribution revisits the Bundesverfassungsgericht's order for reference in the Gauweiler case and focuses on two aspects of that order that until now have not received much scholarly attention. The first concerns the German federal constitutional court's dissociation of constitutional identity review under the German Basic Law from national identity review under Article 4(2) TEU. While the decision on the Lisbon Treaty had suggested that the two go “hand in hand”, the Bundesverfassungsgericht now emphasizes the “fundamental” difference between the concept of national identity under Article 4(2) TEU on the one hand and the German concept of constitutional identity on the other. The second element is the German federal constitutional court's contention that its approach to ultra vires and constitutional identity review can also be found in the constitutional law of many other member states. Yet, careful analysis demonstrates that while there does indeed seem to be a trend in that direction, and several elements of the German approach can also be found in other countries, very few national courts are as adamant as the Bundesverfassungsgericht, and only a handful have developed their position with the same level of detail and ardor.

This article will evaluate whether, and to what extent, preventive measures in the fight against money laundering may limit fundamental freedoms and human rights within the European Union (“EU”). It will analyze two judgments rendered by the European Court of Justice (“ECJ”) and one judgment rendered by the European Court of Human Rights (“ECtHR”). In these three cases, the courts were asked to investigate the compatibility of specific Anti-Money Laundering (“AML”) preventive measures with the freedom to provide services enshrined in the Treaty on the Functioning of the European Union (“TFEU”) and human rights. Considering the gravity of the phenomenon, AML measures have gradually emerged as a “European general interest.” The Fourth EU Anti-Money Laundering Directive, which has been recently adopted, displays this compelling need.

Just before Christmas 2014, the Court of Justice of the European Union (CJEU or the Court) gave its long-awaited ruling on the European Union's accession to the European Convention on Human Rights (ECHR). This ruling, Opinion 2/13, is a complex judgment that raises many legal questions. This case comment sets out: A summary of the ruling; an assessment of the consequences of the ruling; and an initial critique of the Court's reasoning. On the latter point, the Court's ruling is fundamentally flawed. In short, the Court is seeking to protect the basic elements of EU law by disregarding the fundamental values upon which the Union was founded.

This article reflects on the protection of territorial integrity in the Ukrainian constitution, especially on its provision of unamendability, against the backdrop of the 2014 Crimean crisis. At the general level, we examine whether constitutional theory can offer answers when confronted with the apparent inefficacy of a constitutional claim to eternity. More specifically, we focus on what the Ukrainian case can teach us about the implications of designating territorial integrity or indivisibility of a state as an eternal/unamendable constitutional principle. Building on insights from the Crimean crisis, we argue that the unamendable protection of territorial integrity is an especially ineffective type of eternity clause because it is subject to both the internal threat of secession and the external risk of forceful annexation, The preservative promise of unamendable territorial integrity is severely curtailed by this double vulnerability, even when backed by a constitutional court with far-reaching powers of judicial review. Territorial integrity as an eternal constitutional principle then remains merely aspirational. Moreover, we argue that the act of entrenching territorial protection as an unamendable principle is in clear tension with the idea of popular sovereignty and with mechanisms for expressing popular will.

So far, the German Constitutional Court (Bundesverfassungsgericht, henceforth: BVerfG) has only made a single preliminary reference to the (now) Court of Justice of the European Union (CJEU), despite frequent rulings on matters connected with European Union (EU) Law. Its apparent reluctance seemed odd considering the atmosphere of dialogue and cooperation which prevails between the non-constitutional courts and the EU courts. This situation might, however, have changed with the preliminary reference from January 2014, proving predictions on the perceived “most powerful constitutional court” and its relationship to the EU partly wrong. The legal effects of its preliminary reference on the interpretation of Articles 119, 123, 127 ff. of the Treaty on the Functioning of the European Union (TFEU) and the validity of Outright Monetary Transactions (OMT) by the European Central Bank (ECB) under EU Law are as yet unclear; although the Opinion of the Advocate General Cruz Villalón was delivered in the beginning of 2015, which did not confirm the doubts expressed by the BVerfG about the conformity of the OMT programme with EU law. Nonetheless, the interpretative scheme and the normative questions as to the reluctance of the BVerfG remain the same after this single referral and offer explanations as to why the BVerfG had for nearly sixty years not referred a question to the former European Court of Justice (ECJ).

Quite unsurprisingly, the CJEU has held that the ECB's OMT program does not violate EU law. In accordance with this holding, I argue in the first part of this note that the OMT program does not transgress the ECB's mandate under the Treaty, which is often interpreted too narrowly, in particular by German legal scholars. Furthermore, I argue that a violation of the prohibition of monetary financing of the member States as enshrined in article 123, para 1 TFEU cannot be inferred from the ECB's announcement of a program, which has never been implemented. In any case, there is clearly no manifest and grave transgression of EU competences which, according to the German Federal Constitutional Court's (FCC) Honeywell doctrine, is required for an ultra vires finding. The second part of this note shows that the FCC's doctrine regarding transgressions of competences by EU organs (ultra vires review) is not only unconvincing as a matter of principle but also and worse (as on premises we can always reasonably disagree) not consistently applied to the OMT program. The note also objects to the Court's somewhat trendy blending of ultra vires and constitutional identity review of EU law through which it increasingly conceals its approach of applying the so-called constitutional constraints of European integration to the EU organs' conduct. The forthcoming FCC judgment is therefore less important as regards the quite foreseeable finding on the lawfulness of the OMT program but – hopefully – of vital importance as it might embody a more coherent relaunch of the FCC's standards of judicial review with regard to EU law.

The judgment of the Court of Justice of the European Union (CJEU) on the European Central Bank's (ECB) 2012 announcement of future Outright Monetary Transactions (OMT) comes as no surprise. It had not been expected that the CJEU would interpret the European Economic and Monetary Union's (EMU) Treaty provisions the way the FCC had “suggested.” Neither had it seemed conceivable that the CJEU would reject the FCC's request for a preliminary ruling holding that a legally non-binding assessment of the EU action's lawfulness could not be requested under Article 267 TFEU. The judgment had nevertheless been awaited for with tension for two reasons: First, in the vigorous and in part very critical debate about the ECB's competences under the TFEU and its alleged ultra vires action a judgment by the CJEU was necessary to settle the fundamental European law issues at stake. This is all the more important with regard to the ECB's current Expanded Asset Purchase Program (EAPP) as well as its interconnection with the European Stability Mechanism's (ESM) financial assistance programs. The CJEU's holdings on the ECB's competences within the EMU framework are discussed in the first part of this note regarding the distinction between monetary and economic policy (infra section A.I.) and the interpretation of Article 123, paragraph 1 TFEU which prohibits monetary financing of the member States by the ECB (infra section A.II.). Second, it was clear that the judgment would shape the new stage in the changing and sometimes explosive on-off relationship between the CJEU and the FCC, the stage entered into by Karlsruhe's first ever request for a preliminary ruling. The FCC had fortified its ultra vires doctrine and clearly indicated its readiness not to follow the CJEU but to insist on the notorious “last word” of the German Constitution instead. Thus, the second part of this note discusses the constitutional legal premises of the FCC's approach and the procedural and substantial manner in which the FCC tries to scrutinize the ECB's OMT program (infra sections B.I. and B.II.). In this context, possible scenarios for the upcoming judgment (infra section C.I.) and consequences for European multi-level constitutionalism (infra section C.II.) will be discussed.

The recent crisis involving the territory of Crimea has been characterized both as a case of wrongful annexation and as one of rightful secession. Territory and competing territorial claims lie at the heart of the normative questions of secession and annexation. Any normative theory of secession or of annexation must therefore address their territorial aspect: It must explain why one agent rather than another has a valid claim to the disputed territory. One of the most interesting, yet controversial, normative accounts of secession has been offered by choice theorists of secession. Choice theorists adopt a rather permissive stance, based on the normative significance of political self-determination. Choice theories, however, have been widely criticized for failing to provide a satisfactory account of what legitimates the seceding group's territorial claim. This article argues that it is possible to remedy choice theories’ failure to address the question of territorial justification adequately. To do so, this article offers a two-tier account of territory that is grounded in the normative significance of self-determination. It defends this account of territory by showing that it is implied by our normative condemnation of annexation. It argues that the same reasons that warrant opposition to annexation provide support for secession, In closing, this article revisits the case of Crimea in light of its two-tier account of territory, and considers what role international law and institutions might play in addressing this type of situation.

Today's athletes, both professionals and amateurs, use a wide range of different nutritional substances to increase training performance, improve the recovery process, burn fat, gain muscle mass, etc. Although such substances are not always thoroughly researched for their potential effect on humans, they are popular and easy to obtain. Therefore, an adequate regulatory system is needed to ensure the protection of consumers. Currently, however, there are no specific provisions with regard to sports nutrition in EU law; thus, such products are usually marketed as food supplements, fortified foods, dietetic foods, and/or foods with nutrition or health claims. This article reviews the relevant legislation with a particular emphasis on policy developments regarding sports nutrition.

The purpose of the preliminary reference procedure is to ensure a uniform application and interpretation of Community law across all the Member States, including European fundamental rights as enshrined in the Charter of Fundamental Rights of the European Union. The entry into force of the Charter has reinforced the authority of the Court of Justice of the European Union (CJEU) in the field of fundamental rights adjudication. But the Charter may also be a new source of conflicts between the jurisdiction of the CJEU and the jurisdiction of national constitutional courts. Indeed, compliance with the indirect rulings over national law contained in the CJEU decisions became something logical for the national ordinary courts from the beginning of the integration process, but it was not the same for national constitutional courts. Most of them have always disliked the idea of asking for the CJEU's opinion on a conflict of law involving national constitutional provisions. The CJEU succeeded in establishing a legal doctrine through principles of Community law—supremacy and direct effect being the pioneers—that meant a material constitutionalization of the European Union (EU) law system. And for the national constitutional courts, such an understanding of EU law made a rival of the CJEU.

At the start of his paper Keeping Their Heads Above Water? European Law in the House of Lords, Anthony Arnull reports a judgment delivered by Lord Denning in 1979, in the early days of the process of the United Kingdom's European integration. It stated as follows:

Lord Denning made a similar remark in his judgment in Bulmer v. Bollinger, which was a pivotal case in the dialogue between the United Kingdom (UK) and European systems.

This article focuses on contemporary theories of territorial rights in political and legal philosophy and explores their implications for the case of Crimea, focusing on three main accounts of territorial rights: Liberal nationalist, Lockean, and Kantian. The article advances the legal-political account of the “people” and its territorial rights as a promising approach to theorizing the corporate agents that have potentially valid territorial rights and claims. While normative theory does not yield a single unequivocal judgment that identifies one claimant as the solely justified territorial right-holder in Crimea, the application of general principles of territorial rights theory can help identify the pertinent considerations for the case, which clarify the normative implications of each potential resolution. While no party has an absolutely just territorial claim to Crimea, this article offers a qualified defense of the existence of a distinct “Crimean people,” defined by the distinct political history of Crimea and its long-standing legacy of autonomous legal-political institutions, which may constitute a shared political project for the culturally diverse population.

This article analyzes the recent judgment of the European Court of Justice (ECJ) in Gauweiler, answering the first preliminary reference ever by the German Constitutional Court (BVerfG), on the legality of the Outright Monetary Transaction (OMT) program of the European Central Bank (ECB). As the article explains, the ECJ rejected any possible claim of illegality of a key program devised by the ECB at the height of the Euro-crisis. However, because the BVerfG had defined the OMT program as ultra vires, and had threatened to strike it down if the ECJ did not reach the same result, the article defends the principle of the supremacy of European Union (EU) law, indicating that a possible nullification of the OMT program by the BVerfG would be clearly unlawful. To re-affirm the supremacy of EU law, the article argues that this principle is functional to ensure the equality of the member states before the law, preventing each country of the EU from cherry-picking which provisions of EU it likes or not. As the article suggests, respect of the principle of the supremacy of EU law – including by the BVerfG – is ultimately in the interest of every EU member state, including of Germany.