The Catalan territorial conflict is stuck. No clear solutions are on the table after the elections of December 21st. Catalans and Spaniards are failing so far to find solutions to the problem. But it is our European common problem and our common responsibility to try to help them. More specifically, EU institutions should be doing much more of what they have done so far. I blame them for their passivity in the last couple of months.
On Wednesday, the European Commission reacted to the continuing deterioration of the rule of law situation in Poland. The remaining question, of course, is why this argument has been used in the context of 7(1) as opposed of 7(2) given that the situation on the ground in Poland is clearly – in the view of the Commission, the Venice Commission and countless other actors – one of clear and persistent breach of values, as opposed to a threat thereof. The explanation might lie beyond the simple difficulty of the procedural requirements related to the sanctioning stage.
The EU-Turkey deal on the return of refugees is one of the most controversial policy steps taken by the EU in recent years. The EU General Court chose to sidestep the difficult legal questions raised by the deal by dismissing these cases, ruling it had no jurisdiction to review the deal on the ground that the Statement was not an act of Union institutions, but that of Member States. Will the CJEU use this opportunity to set the record straight by establishing who had the competence to conclude the EU-Turkey deal?
The recent CJEU judgment in M.A.S., M.B. (hereinafter Taricco II) raises more questions than it answers on when Member States can apply higher standards of rights in criminal proceedings. Previous case law, i.e. Taricco I and Melloni, pervaded the primacy of EU law, but from Jeremy F. we also know that Member States enjoy a margin of discretion to apply their own standards of fundamental rights protection, where the rules at stake – an appeal suspending the execution of a European arrest warrant – have not been harmonised by EU law. In Jeremy F., it concerned a limited discretion; Member ... continue reading
Heute hat der Rat der EU das so genannte PESCO-Projekt beschlossen. Es soll wesentlich zur Errichtung einer europäischen Verteidigungsunion beitragen. Es ist rundweg zum Staunen, wie sich nach all den kritischen europapolitischen Grundsatzdiskussionen der vergangenen Jahre bei der Militär- und Rüstungsintegration offenbar die Fehler der Vergangenheit wiederholen. Es ist das technokratisch-funktionalistische Europa, das hier voranschreitet, und nicht das demokratische Europa, das aus der offenen Diskussion der europäischen Bürgerschaft entsteht.
The Taricco II judgement handed down by the CJEU on 5 December 2017 is a telling and worrying example of a weakly reasoned court decision and the high price at which such weakness comes. It is a judgement that disregards legally problematic questions, seemingly subordinating argumentative consistency to the constraints of legal policy in a climate increasingly critical towards EU law and institutions. The (potential) collateral damage of this approach is considerable.
Northern Ireland will have a ,hard Brexit' as any other part of the UK and, at the same time, be subject to a ,regulatory alignment' with the Republic of Ireland and, hence, the EU. Such is the elegance of this solution, that one might be tempted to mistake it for a genuine policy innovation. In fact, using a made up name for something that you are already doing and calling it ‘new’ has a long pedigree and has been used aplenty.
As Mauro Cappelletti perceptively wrote in 1986, ‘unlike the American Supreme Court and the European Constitutional Courts, the Court of Justice has almost no powers that are not ultimately derived from its own prestige, intellectual and moral force of its opinions’. In other terms, the Court of Justice (‘ECJ’) cannot take obedience to its judgments by Member States and the respective authorities as granted or constitutionally-mandated since, in Weiler’s words, this is a voluntary obedience which goes hand in hand with the exercise of constitutional tolerance in the Member States. In other words, there is a time for the enforcement of the radical primacy of EU law as in Melloni and Taricco I, and a time for internalizing the counterlimits, as in the Taricco II decision (M.A.S. and M.B. case) handed down today by the ECJ.
Ist die deutsche Praxis, besonders gefährliche Straftäter auch nach verbüßter Strafe weiter in Haft zu halten, mit der EMRK vereinbar? Seit 2009 steht diese Frage im Raum. Jetzt wird die Große Kammer des EGMR im Fall Ilnseher noch einmal ganz grundlegend überprüfen, ob sie der jetzigen deutschen Regelung tatsächlich eine konventionsrechtliche Unbedenklichkeitsbescheinigung ausstellen kann.
The wait for those of us looking for much needed answers to understand what direction and coherence the Grand Chamber of the European Court of Human Rights would give to its nascent Article 18 case law (also known as ‘bad faith’ case law) has ended. A verdict has been reached in Merabashvili v. Georgia Grand Chamber judgment of the European Court of Human Rights. In a climate of retreat from human rights law and standards under the guise of domestic legalism, answers to the questions of what it means to violate the Convention in bad faith, how we prove it and what responses we owe to bad faith human rights violations have become pressing and urgent. The Grand Chamber gave us answers to the first two questions and passed on the third.
13. September 2025
Giovanni Capoccia
12. September 2025
Anne Peters
12. September 2025
Anne Peters