Volume 16, Issue 3

Whether national (constitutional) courts are entitled to exercise ultra-vires review of the decisions of the European Court of Justice is not only a controversial question, but also one of the most emotive issues in European and constitutional law. This article questions firstly the general and often emotional criticism of national ultra-vires review in general and answers the fundamental question whether national ultra-vires review represents a threat or rather an asset to the rule of law at a national, European and international level. It argues that a national ultra-vires review is an important instrument to supervise the international judiciary provided that it is not abusive of the law. Secondly, the article analyses the PSPP Judgment and the Polish ultra-vires decision of October 21, 2021. It concludes that only the ultra-vires review of the German Constitutional Court meets the requirements for a rule of law based control. The final argument is that a rule of law based ultra-vires review should be seen as a crucial piece of the puzzle in the current process of delimiting vertical authority.

The Owl of Minerva only spreads its wings at dusk. This Hegelian realization might also apply to the last days of Donald Trump in office which brought about many a precedent in the relationship not only between the then President of the United States and its constitution but also between him and his main means of communication: Twitter. The president’s tumultuous communication surrounding the transition of power climaxed in an angry mob storming the Capitol in a vain attempt to – dependent on whose narrative one credits – either restore or abolish democracy. Twitter’s subsequent decision to ban Trump from using its services for arguably inciting or at least condoning the insurrection quickly led to heated discussions rooted in the issue of the allocation of power within contemporary societies. At the core of these discussions lie two central elements: freedom and the (legitimate) power to restrict it. One side argued that the platform operators had infringed Trump’s freedom of speech. In contrast, the other side claimed that abridging Trump’s ability to communicate whatever came to his mind was an inevitable step to protect the American constitutional order and thus liberal democracy. Meanwhile, attention has gradually been focused on the larger underlying issues. One common aspect is that both positions seem to presuppose a concept of freedom that is all too formalistic. On a more abstract level, the events also boil down to a clash of two separate claims to power: Social media operators opposing the head of state’s claim to do as he wishes. Thus, the paper aspires to analyze the sources of legitimacy for the actions taken by platform operators and their respective counterparts. The analysis is based on Hegel’s Philosophy of Right. In particular, Hegel’s understanding of freedom, the ideal state and of possible legitimate sources for universal rules shall be put to use. The first point of contact in Hegel’s Philosophy of Right is his view of the head of state, his relation to the law, especially to the constitution, and to his constituents. Against this backdrop, it shall be determined how power is distributed in Hegel’s state. Then, an attempt shall be made to transfer the underlying ideas and considerations to the power structure and the legitimizing factors as they are laid down in the US Constitution. Furthermore, the paper examines the state’s possibilities to react to possibly problematic behavior of the head of state. The focus will be placed on the possibility of holding them accountable for actions directed against the state itself or its constitutional order. Particularly against the backdrop of the questionable efficacy of impeachment procedures in deeply divided nations, the question arises as to whether private actors can legitimately intervene. Concretely, whether social media operators may legitimately bar heads of state from using their platforms in order to protect the state, the legal system or democracy.

The Covid-19 pandemic has given cause for serious restrictions of fundamental liberty rights. In the legal doctrine of fundamental rights, the classical tool for the assessment of the material constitutionality of interferences with fundamental rights is the principle of proportionality. Indeed, the material determinant of the principle of proportionality is the intensity of the intervention in the fundamental right. One preliminary question, however, is often underestimated: the question as to the constitutional status of the interests protected or promoted by the intervening measures. After outlining the structure of the principle of proportionality, this article investigates the constitutional status that the interests protected by Covid-19 measures might have: is the protection of people’s health merely a legitimate purpose or a right? Finally, this article shows, with recourse to decisions of the German and Brazilian Constitutional Courts, the implications that different classifications have for the principle of proportionality.