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Author Archives: Martinned

Excessive formalism: the sequel

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Following yesterday’s post on (excessive) formalism in the Van der Heijden case, there’s another case from April that suffers from the same curiosity. In Boulois v. Luxembourg, the applicant was slapped down in his attempt to get the Court to recognise his right of access to court on the grounds that the right he was […]

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Circumcision (2)

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Things got a little awkward in the comments section of my earlier circumcision post today, because commenter Jade pointed out a rather glaring, embarrassing and altogether unforgivable shortcoming in my argument. The problem doesn’t concern the ruling of the court in Cologne, but rather the constitutionality of a law that would potentially undo this judgement, […]

The Human Right to Common-Law Marriage

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In April, I wrote a little rant about that month’s CJEU and ECtHR case law. (Favour for a tweep, the – Dutch – text is here.) One of the cases that I broadsided was Van der Heijden v. the Netherlands, which I praised for “declining to introduce common-law marriage by judicial fiat. Now ignoring the […]

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Subsidiarity: A Yellow Card

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Praise Jehovah! It has finally come to pass. The national parliaments of the Member States have issued their first ever yellow card under art. 7 of Protocol (No. 2) on the Application of the Principles of Proportionality and Subsidiarity (p. 206 here). As a refresher, the article says, in the relevant parts:  2. Where reasoned […]

SGP v. The Netherlands

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The ECtHR judgement, earlier this month, in SGP v. the Netherlands is an amazing illustration of the glories of legal messiness and Dutch poldermodel lawyering. Unfortunately, though predictably, it ends with a bit of a fizz. The facts, in a nutshell: The Staatkundig Gereformeerde Partij is the most orthodoxly Christian party in the Netherlands, and also our […]

Holocaust defamation

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OK, it’s time to do some serious thinking about free speech and defamation. Who should prove what and how? Just a little bit of background, especially for the non-lawyers: I’ve been reading Deborah Lipstadt‘s book about the defamation suit brought against her by the (in)famous Holocaust-denier David Irving. He didn’t appreciate being called a Holocaust […]

Pilot retirement

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Don’t worry, it’s just a little exercise in “huh, are these two rulings consistent?” We’re lawyers, we don’t really care about the pilots, or about the air planes that might come crashing down on us if these rulings prove ill-advised. In the blue corner, we have the Grand Chamber of the European Court of Justice, which concluded, […]

A Liberal Approach to Circumcision

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I have to admit, when Max Steinbeis wrote it down in German, he gave me pause: “Wenn dieses Urteil richtig wäre, dann müssten ausgerechnet deutsche Staatsanwälte (…)  Juden verfolgen, weil sie tun, was Juden tun.” (Like Harry Mulisch already said when he was writing about the Holocaust and the Eichmann trial, sometimes quotes should simply […]

What if you didn’t even notice?

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What if the government violated your rights, and nobody noticed? What if the government violated your rights, and you didn’t even notice? If a tree falls in a forest, and there’s nobody there to hear it, did it really make a sound? The reason for these ruminations is the recent European Court for Human Rights […]

Piris (4)

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I finally got around to reading Jean-Claude Piris’ The Future of Europe, the book that was the basis for his lecture here in Florence in April. While I still don’t agree with his policy recommendation – a new Schengen-like treaty that creates further European Integration among a subset of EU Member States – there’s not […]

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