Articles for category: Focus

A ›Complete‹ System of Legal Remedies?

In practice, Member States and the EU increasingly rely on informal instruments for cooperation with third countries, especially in the area of migration control, with important implications for the rule of law. The choice for informality becomes particularly problematic when it affects the legal situation of irregular migrants, including refugees because it makes it very difficult for them to challenge these instruments in front of EU courts. This blog post explores the effects of EU’s recourse to informality on the judicial protection of the rights of irregular migrants by using the EU-Turkey Statement as an example. The Statement, also known as the EU-Turkey ‘deal’, raises serious doubts as to whether the EU legal order indeed provides for the promised ‘complete’ system of legal remedies.

30. September 2020

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The »Contamination« of EU Law by Informalization?

The examples in this post demonstrate that the EU is an autonomous international actor independent from its Member States, but it is tied up internally by its institutional procedures and restrained by its attributed powers. This governance system requires complex and time-consuming negotiations within the Union and with its international partners, which might end up in Court (Singapore, CETA Opinions) or delay ratification (Istanbul Convention). The EU’s painful practice concerning treaty-making (with complicated rules, extensive case law and long negotiations of often comprehensive mixed agreements) is clearly not fit for purpose in times of crisis.

29. September 2020

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Parallel Paths that Need to Cross?

The questions raised by the use of soft deals - and soft law more generally - in the Area of Freedom Security and Justice (‘AFSJ’) are numerous and complex. This post focusses on the justification behind the use of soft deals in the field of readmission, in order to develop two reflections: First, in a legal system founded on the rule of law, recourse to soft deals to elude constitutional constraints is questionable tout court. And secondly, if certain constitutional constraints can arguably be side-lined through the use of soft deals, in the name of flexibility and speed, others must necessarily remain operative and frame the conduct of EU institutions. In the author’s view, at least those Treaty principles that govern EU institutional action independently on the legally binding nature of its outcome remain relevant. Among these, a prominent role in framing the use of soft deals can be attributed to the principle of institutional balance, enshrined in Art. 13(2) TEU.

29. September 2020

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The External Dimension of EU Migration and Asylum Policy

This online symposium is being held just before the ACES-Asser conference on ‘Migration deals and their damaging effects’, which will take place online on 8-9 October. The conference and the contributions in this symposium aim to examine the legal and policy implications of the increased informalisation of the EU’s external action in the field of migration and asylum. The use of informal instruments in EU external relations is nothing new. At the same time, the increasing recourse to such instruments in the past few years has been a growing cause of concern over their potential detrimental effects on the rights of migrants and refugees, the EU’s institutional balance, the rule of law, as well as the global regime for protection of refugees.

28. September 2020

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The Italian Government Enforces Gender Parity in Regional Elections

On 23 July 2020, the Italian government formally warned Apulia that if the region did not introduce gender parity election rules by 28 July 2020, it would do so in its place. Apulia failed to adopt a regional statute in that time frame. Thus, on 31 July 2020, the Italian government adopted Decree Law 86/2020 which essentially introduced a mechanism of “double gender preference” for the regional Parliament elections to be held on 20-21 September 2020. What is clear is that this summer’s events around the Apulia election are yet another example of the “irresistible rise of gender quotas in Europe”, where Germany increasingly stands out as the proverbial exception.

24. August 2020

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Parity Laws in Germany

Recently, the Thüringian State Constitutional Court struck down a new law requiring parity with regard to party lists for state elections in response to a challenge brought by the populist far-right Alternative for Deutschland. Many of the AfD’s and the male-dominated court’s arguments against the law are common worldwide in debates about quotas. In an increasing number of democracies around the globe, however, quotas have not only survived constitutional challenges but have come to be seen as an essential mechanism for achieving political equality. Empirical research has determined many common concerns about quotas are unfounded. Here I provide some responses to the AfD’s and the Court’s worries about the law, drawn from the extensive political science literature on gender quotas.

30. Juli 2020

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Electoral Quotas for Women

Electoral quotas for women (‘EQW’) have become a world trend, raising questions about their constitutionality in different legal systems. This short piece attempts to summarize some of the main issues involved in this debate and the courts’ approach to it. The text concludes by offering some general criteria to assess the constitutionality of EQW.

27. Juli 2020

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Mexico as an example of Gender Parity in Parliaments?

I would like to participate in the debate on gender parity in Parliaments with the experience of Mexico. Mexico for the first time in its history has 48,2% of women in the Deputies Chamber and 49,2% in the Senate. The parity achieved in the Mexican Congress was the result of successive legislative and constitutional reforms which were supported by the Supreme Court of Justice.

26. Juli 2020

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Von Auslegung, Abwägung und Abwegen

Das Urteil des Thüringer Verfassungsgerichtshofs vom 15. Juli 2020 zum sogenannten Paritätsgesetz sorgt derzeit für viel Kritik. Auch wenn diese oft eher politischer als rechtlicher Natur ist, zeigen nicht zuletzt die zwei Sondervoten der Richterin Licht und des Richters Petermann sowie der Richterin Heßelmann, dass es sich auch in juristischer Hinsicht um ein besonders streitbares Urteil handelt. Beide Sondervoten monieren unter anderem das Fehlen einer Güterabwägung. Es stellt sich damit die Frage inwieweit das Urteil in dogmatischer Hinsicht überzeugen kann

24. Juli 2020

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Gender Quotas and the Injuries to Electoral Freedom

Last week’s decision by the Thuringia state constitutional court to invalidate parity legislation destabilizes a widespread understanding of the German constitutional law of sex equality as seen from outside. Because Article 3.2 of the German Basic Law (GG) since 1994 has explicitly stated that “the state shall promote the actual implementation of equal rights for women and men, and eradicating disadvantages that now exist,” it was long assumed by jurists and scholars throughout the world that gender parity measures to overcome women’s disadvantage or underrepresentation in positions of power were permitted, if not encouraged, by German constitutional law. By invalidating the parity legislation, the Thuringia constitutional court calls this understanding into question.

22. Juli 2020

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