Germany's blanket data retention law is illegal, EU top court says
reuters.comOur data retention laws get overturned all the time. Usually already by our constitutional courts. Sadly our politicians don’t care much and don’t get punished, so they just try it again and again and again and usually it’s in effect for a while before the courts give judgement.
I really can’t explain where Politikverdrossenheit (political apathy) comes from.
edit: The last sentence is sarcasm
Seems like we've had basically the exact same case in Denmark. A law gets overturned by the ECJ and they just make another law that's slightly different. Then they say there's a certain "process risk" regarding the law which basically means it might not be compatible with EU law at all. Pisses me off.
Out of curiosity, doesn't Germany have the equivalent of a constitutional watchdog? For example in Estonia, the president fills this role (as do some other constitutions, but the president is a good example in this context). The president is otherwise a purely ceremonial figurehead in Estonia, but one functional role they fill is that before any new bill becomes law, they have to sign off on it and declare it's constitutional. If they find it not to be, they can send it back to the parliament (or to the highest national court, depending on the circumstances).
We do, pretty much the same as your situation. However, it doesn't happen very often that the Bundespräsident actually does this. Their role is almost purely ceremonial and I could count the cases on one hand where they used this power. Some legal professionals argue, that this check is basically a ceremonial one as well.
If one thing I've learned the past decade, it is that "ceremonial" functions can be disrupted by people who don't respect the precedent.
Can you give an example where this has been the case? That a ceremonial monarch or executive is now an active participant in government?
One striking example is the "ceremonial" activity that, in the US, the Vice President counts the electors votes to certify the election for the next President. This was interrupted in 2021 by ne'er-do-wells who thought they would overthrow a legitimate election, having been fed a lot of baloney from a lot of sources.
In both the example above and this example, what was taken as "ceremonial" (especially since the advent of much, much better forms of communication than what was available the 1790s) was still the the lawful course. Our systems of government are held together by the belief in and affinity to perform duty according to precedent.
The former Prime Minister of Australia had the Governor General (a largely ceremonial role) secretly swear him in to multiple ministries without the knowledge of the incumbent minister, the parliament or the public. The Governor General didn’t publicise these appointments. The PM then used his new ministerial powers a couple of times.
The convention expected was the GG would announce these appointments, he didn’t and put out a statement when it was found out that literally said “oh yeah not my job sorry you thought it was”
https://www.gg.gov.au/about-governor-general/media/statement...
Politics in the Lucky Country are really mind-boggling sometimes.
That book came out 60 years ago and is still spot on.
https://www.sueddeutsche.de/politik/hintergrund-bundespraesi...
A list of seven rejected laws. I think there was one more in the last decade.
An oversight mechanism doesn't have to be used often in order to be effective - even if it's not used, the fact that it is there acts as a check and balance because then others don't try to submit outrageous things which will be rejected.
Next to the Bundespräsident who plays the same role as yours, we even have a whole court dedicated to it, the Bundesverfassungsgericht. And occasionally they do indeed good work.
> I really can’t explain where Politikverdrossenheit (political apathy) comes from.
I understand... it's simple... someone does something bad, nothing happens to them... bad thing again... nothing happens... people protest... nothing happens... bad thing again.. nothing happens...
If this was some other timeline, and people brought guillotines out every couple of years and "dealt with" the "bad" politicians in "the french way", politicians themselves would be calling for jail sentances, because they'd atleast be alive in there.
Otherwise, i live in a different country, and the political situation is the same.
The reason we don’t guillotine people is because Robespierre guillotined everyone and now we know that murdering people politically is an addictive substance.
Also let’s be clear, the reign of terror was an absolute shit show in every since of the word as was killing the king. 30 years of war just to have another monarchy to overthrow isn’t exactly a great move.
This only happens in France but without guillotines: strikes + yellow gillet protests. The Germans are too well behaved to do anything or the political process is much too civilised to employ any form of civil disobedience.
I think it also has something to do with that our (German) media is not as radicalised. And Germans don't like facebook, so there's probably less options/danger also to radicalise through social media. And usually the poor are not as poor as in other countries. But we will see what happens this winter.
Don't worry. Today's newspapers reports that our fine ministerin is already looking to find and exploit loopholes in the judgement and will try to implement as much as possible [1].
It's a shame. We tend to criticize EU for a million valid reasons, but once in a while when they do something right, our government first reflex is to just ignore it.
[1] (German) https://www.zeit.de/politik/deutschland/2022-09/vorratsdaten...
The coalition she's part of already said that they are against indiscriminate data retention, so I'd say the chances of her getting her will are slim.
Though if the next cabinet in a few years includes the CDU (christian democrats), they'll try again.
From 51:25 in this BBC documentary [0] you're introduced to Horst Herold [1] the President of the BKA (Federal police) who instigated the creation of the Suchsystem Inpol sowie Analysen [2] to catch the Baader Meinhoff gang by trawling citizens data. Until the violence of the Baader Meinhoff gang, there was sufficient popular sentiment including in politics, against any Federal use of power as prohibited by the constitution. This was effectively reversed with the assassination of Alfred Herrhausen [3] using a enfilade of shaped charges to slice through his armoured limousine. Herold created the first European data dragnet to identify anyone who profiled similarly to his quarry. The gang were apprehended only using indirect evidence ,[edit: of their whereabouts]. Violence and the ensuing police reactions disheartened and suppressed opposition to Federal government enforcement.
[0] https://www.bbc.co.uk/iplayer/episode/p093wy1r/cant-get-you-... ,
[1] https://en.m.wikipedia.org/wiki/Horst_Herold ,
Don't forget the part Peter Urbach played as agent provocateur in the Red Army Faction.
https://en.m.wikipedia.org/wiki/Peter_Urbach
Or later the Celle Hole
It comes from fundamental constraints on signal propagation, socially reinforced bias towards abstaining or following anyone who sounds like they have expertise, confict aversion, the huge overhead involved with actually becoming known enough by people to get past change aversion, and a general willingness to accept that the emperor is far away even though in today's world they aren't.
We're literally living in a time where "global" namespace changes are made willy nilly by people who don't even spend the time reading everything they may have an effect on by doing them, which is just accepted as being "impossible".
Further, the only people with the time/resources to engage in politics in a tangible way are pgobably the most disconnected people from the way of life for the polises they are shaping.
Human beings are ruthless energy optimizers (biological constraint), and the cognitive load of actually productive political engagement is absurdly high. Thus, people with literally anything else to do avoid it, or find it pointless, leaving only those so bereft of anything else to do to be the most impactful on that arena. Which in turn creates more for the disengaged to have to do to keep them from getting in the way...
It's a vicious cycle.
Political apathy comes from the political party that would most benefit from low turnout.
If you are disappointed with politics that is a reason to vote. If you don't care, that's a valid reason not to vote
Is there not a limit case?
Would you tell people in China, "if you are disappointed with politics, vote in your People's Congress elections?"
Why not?
If you have a one-party system, then all it means that the actual policy choices are made not by parties, but rather by factions or individuals within the one party, so if you want to change things, then the levers of change are obtained not by being a voter (or candidate) and having your party gain positions in the country but by being a party member (or official) and having your faction supporters gain positions in the party.
CCP members theoretically have more agency than just voting. Every one of them can advance issues at the peoples congress.
Assuming there's a choice, I'm not familiar with Chinese elections, then yes.
Why not vote? What is the advantage of that?
Voting provides legitimacy to the winner of the election and to the election process itself.
If you disagree with both of those things, voting has no positive and results only in negatives.
Its been my understanding that political parties have interests that are completely separate from the will of the people, even though campaigns say otherwise, and no amount of change is going to fix that problem.
Also any changes that come from those institutions follow the real progress that gets made by common people.
"A wise man will not leave the right to the mercy of chance, nor wish it to prevail through the power of the majority. There is but little virtue in the action of masses of men. When the majority shall at length vote for the abolition of slavery, it will be because they are indifferent to slavery, or because there is but little slavery left to be abolished by their vote. They will then be the only slaves. Only his vote can hasten the abolition of slavery who asserts his own freedom by his vote." - Henry David Thoreau
If it has no positives what are the negatives?
Providing legitimacy to parties or institutions that you reject.
Simpsons did it: "Don't blame me, I voted for Kodos"
Provides legitmacy by whom and how is this used?
Counter In europe many elections have extremely low turnout but governments are considered legitimate
Of course there is a choice. You get "Person A" from the CCP or "Person B" from the CCP.
I mean even in the DPRK, you can vote for whoever you want. Its what happens afterwards..
So you are claiming in the DPRK voting is rigged? Do you have proof of this?
In DPRK there is only one choice on the ballot that you can optionally cross out to disapprove. That doesn't happen often or at all; I suppose they'd know who does it based on the time it takes to vote.
Then it's not an election and my statement doesn't apply
This is like saying 'yeah but what if the car turns out to be electric" if I told you to change your oil every 5k miles
The polling station worker watches you, there is no secrecy.
People might view it as giving legitimacy to a process.
The process of voting is legitimate.
Does giving legitimacy to voting accomplish anytime? What about protesting the system by not voting, does that do anything?
> The process of voting is legitimate.
What do you mean by this? If I (a dictator) were to hold an election but require 90% approval to unseat me, that would be a "legitimate" process because it includes voting?
Do you not understand what I am saying?
> What about protesting the system by not voting, does that do anything?
Arguably yes. Afghanistan's state legitimacy collapsed as basically fewer than 10% of people voted in any of it's elections and then the government fell.
What event in Afghanistan are you referring to and can you prove it was because of a lack of legitimacy due to lack of voter participation?
The fall of the government in Kabul. I'm not saying this is the single causal event, but lower than 10% voting definitely contributed to a lack of legitimacy of the central govt leading to its fall.
Do you proof that it was a cause?
Counter is that participation in European country elections is also low, though probably higher than 10 percent, but that didn't cause them to fall
Where in Europe is election participation even close to that low?
The way they've done it for decades where I live, is party A and party B serve the same master on all substantial issues, so pick a "hot button" social issue that neither side will ever do anything about and have A and B take opposing views. Then do some gatekeeping where both parties and the media agree to push hard propaganda that voting 3rd party is "throwing your vote away".
The people in charge are the ones who pick the two almost identical candidates. There will be no change in economic or foreign policy regardless of winner.
(Edited, the other way is to push hard core identity politics where demographic groups are owned by certain parties, so voting has all the legitimacy of a mere census. The only way to influence policy would be having (or not having) children)
Totally disagree.
Why?
> Political apathy comes from the political party that would most benefit from low turnout.
This is very reductive, you've lost sight of the trees and only see the forest. Politically apathetic people have a wide array of personal reasons for being the way they are. You don't know what's going on in all of their lives, you can't reduce all of their life experiences and feelings into one big conspiracy.
Been preaching that for years, but I can certainly see where "it doesn’t matter anyway" comes from.
but it doesn't matter. all parties pander to a majority to get votes. minority interests are ignored everywhere, and consequently none of the available parties have any redeeming qualities that make them a better choice than the others.
the whole system is broken. the parties waste most of their energy to fight each other instead of cooperating to actually solve problems. i want to throw out the whole lot and replace it with a system that is actually representative of the communities. is there any party anywhere that can achieve that?
At this point in time, on this planet - not as far as I know. It's against human nature. It's why I love Star Trek TNG, as cheeky as it can be at times, it's always reasoning about human behavior and defining its shortcomings. And trying to overcome those.
Maybe the Swiss with their voting on all issues system, are a step in the right direction.
The fact that a court overturns a law is proof that our democracy actually works.
No need to be 'verdrossen'.
It would be worse if the courts just approves all laws the government conceives.
The issue is, that the process to overturn a law takes years, but introducing the same law (with a slightly different paint) again takes months.
Or for some reductio ad absurdum: Slavery is legal for 10 months per year, but every October the Slavery Legalization law gets struck down by the courts, proof that our democracy works.
Why does it take so long though? In the United States courts often issue a preliminary injunction or temporary restraining order to stop the enforcement of law. This way the courts can take their time in deciding a case while the new law does not get enforced.
In this case (IIRC) two service providers went to court and the law was put out of force for them, at which point the federal agency in charge of enforcing it decided not to do so until the matter was resolved by the highest court. So in some sense it did work.
Some bad laws aren't overturned
The process makes sense from a separation of powers perspective. When there’s an especially fine line between what legislative wants and (constitutional) judicative allows, there has to be some rejections.
This is probably one of the cases where lawmakers feel some spite about constitutional courts exerting too much influence over their work. It would be easier if they’d just talk about it before going through the whole process but I guess creating frustration is part of the point here.
That's not how it works at least in the US, but I don't know about Germany. SCOTUS claims that the judicial system is not for reviewing all the acts passed for constitutionality, but (as per Article III) only addressing specific harms brought up by individuals (the requirement for standing). This is from a 1992 precedent:
1. The plaintiff must have suffered an "injury in fact," meaning that the injury is of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent 2. There must be a causal connection between the injury and the conduct brought before the court 3. It must be likely, rather than speculative, that a favorable decision by the court will redress the injury
Talking in advance about what law is constitutional would be perverse under such system (I love the standing doctrine, btw and so does the Chief Justice).
AFAICT it really is different in Germany. The constitutional court can also be called by other courts, by the government or by parliament to check already passed laws.
Me as german citizen would be interested to know how much such processes costs from our taxes money. From bringing such law again to debate, convicting the parlament to vote it, then approving it, then the whole courts costs... I'm not sure why at least once a year we see that there.. regardless of who is in the government.. Is it Lobby driven?
Same here in Belgium: https://edri.org/our-work/new-belgian-data-retention-law-a-e...
After DataRet was stroke down by the Constitutional Court, our Justice Minister Vincent Van Quickenborne pushed for a new data retention that only targets 100% of the surface of the country:
https://www.patrick-breyer.de/en/targeted-data-retention-onl...
Its funny that it happens in Germany of all places. Its not like they had a case of excessive use of data by the state before (stasi) against their own citizens
Either memories are short or there is political fantasy of being control freaks going on
> I really can’t explain where Politikverdrossenheit (political apathy) comes from.
It comes from voter indifference.
This is a tautology and doesn't answer the question.
hold on, what Germany wanted to do (blanket data retention) is a reality for a long time in other states in EU. There are many countries collecting for 6+ months all connection data (e.g. France or Spain). A map is in this German article from 2019
https://netzpolitik.org/2019/vorratsdatenspeicherung-in-euro...
So this becomes illegal in other EU member states now too? Does anybody have any inside how this will change EU data retention in general?
It has been illegal at least since the Grand Chamber judgments on the cases of "Big Brother Watch" and "Centrum för Rättvisa" last year [0]. Though, really, the outcome was fairly predictable for anyone following the field.
TLDR; Continuous "General and indiscriminate retention" is not compatible with EU fundamental rights.
[0]: https://europeanlawblog.eu/2021/06/08/big-brother-watch-and-...
I believe you have to retain tax-related data (customer invoices, bills, payments etc) for ~2 years or however long your local jurisdisction requires. I don't think that will go away since such laws mirror the long-standing laws used in normal accounting. This should be related to non-ecommerce related data.
We have 6 months and 10 years for tax stuff here in Switzerland too. I thought it was quite reasonable. At least there is a set date when you can and have to delete stuff.
You are also not allowed to use a customer database for advertising if the customer is no longer one for more than 6 months.
Yet another time Germany needs external intervention measures to get in line.
Time and time again, history has proven everywhere that if the population does not keep their politicians in line, they will get drunk from all the power.The people do not even vote reasonably, so it is very difficult.
Have these lawmakers ever presented good results which can be attributed to their work?
> The people do not even vote reasonably, so it is very difficult.
You get three votes [0] every four to five years, where you need to vouch for someone from a short list to make all the choices to represent you. And this is actually the good case, in the US it's reduced to just two options. Deciding whether someone votes reasonably is very hard when they weigh certain decisions (and how likely politicians are to keep their promises) completely different.
Just as an example, you might say that you think climate change is the most important topic overall right now, so you vote for the German Green party - except, of course, if you doubt that they'll actually change much or if you think that nuclear power is the answer, which they don't like. So you think of voting for a small party, but they'll be in the opposition at best, but most likely not even hit 5%, making your vote nothing more than a gesture completely ignored by the ruling parties. So what's the unreasonable choice here?
Long story short, what I'm trying to say is that whenever I heard the accusation of people voting unreasonably, so far, the actual argument always was "people disagree with my [clearly optimal] opinion or voting strategy".
[0] Local, federal and state each.
The orginal ECJ press release: https://curia.europa.eu/jcms/upload/docs/application/pdf/202...
There's a curious comment on that article from a person in support of that retention law:
"Google can do that [blanket data collection], my Chinese mobile phone manufacturer too, why shouldn't the government be able to do it?"
Something to ponder when we talk about data collection by private parties: like it or not, it does provide justification for governments doing the same.
You can opt out of using Google or buying Chinese phones more easily than you can opt out of being German. Governments have more unchecked power and should be held to a higher standard accordingly.
In the EU, you can very easily opt out of living in Germany.
That's like saying you can solve a pest infestation problem in your house by blowing it up.
First this made me really laugh. Second I had to really think about it. Third I realised that this is actually completely correct.
Can I opt out of German interference in my country via the EU?
No, it does not – for two reasons:
If anything, laws and right should be strengthened to explicitly ban this behavior.- Two wrongs don't make a right: Someone behaving unethical does not excuse unethical behavior from someone else. - There is a difference in the power dynamics of the relationships: Consumer and service provider VS citizen and state.You may disagree with that justification, sure. The point is that there are people who are convinced by it.
Whether people are convinced or not – your claim was that it provided "justification".
My point is that it does no such thing – it doesn't hold up as a valid argument (which really is the bare minimum for something to even be considered as potentially true).
"Justification", like "legitimacy", is a subjective measure.
Governments have a monopoly on (legal) violence, and by default it's not possible to move countries (that is, unless you get a visa or live in a free movement area). I think it's reasonable to hold governments to a qualitatively higher standard than companies.
Because neither Google nor your Chinese mobile phone manufacturer can put you in jail.
> like it or not, it does provide justification for governments doing the same.
No it does not. I can (and mostly do) evade the data slurping of private players, at least in theory, by not using and blocking Google, Meta and the likes. I cannot reasonably evade the data crimes that the government does.
It works the other way too: If a politician objects to FAANG privacy violations, they should not introduce laws that allow such violations themselves.
Of course they can. It makes sense for the government to be able to arrest people, but I absolutely don't want to give corporations that right (especially not FAANG - judicial systems a bad enough as is, but Google's customer support is still a downgrade).
The government and the private sector are very different and what one of them can and can't do is not necessarily related to whether the other should or shouldn't be able to.
Google and others are also not allowed to do blanket data collection by law, they are restricted in how and who's data they can collect with stuff like the GDPR.
You can debate how effective it is, but they are not allowed to do it, and nobody should be allowed to either.
look no further then all the data cloudflare collects on us all.
did you ever see a cloudflare gdpr consent popup?
Is the ECJ kind of a Supreme Court that can overturn member state laws and rulings?
I had the impression member states were 100% sovereign within the EU...
ECJ can only rule on EU laws. So as such they are not overturning any German laws, just stating the the German law is not in compliance with EU regulations. What that means in practice varies a lot from case to case, but in general the EU has the power to fine members that are in breach of EU regulations.
For practical reasons most EU countries want to be in compliance with EU law and will often follow ECJ recommendations and change their own laws if found to not be compliant. Also many EU countries have laws that essentially state that all their laws must comply with EU law.
The other option is to apply for an explicit opt out of certain a EU regulation that you feel is incompatible with your own laws.
We've seen where this leads to in the US, where the federal government financially extorts states to fall in line on issues that are supposed to be up to the states, such as what happened with speed limits:
https://en.wikipedia.org/wiki/Speed_limits_in_the_United_Sta...
The difference is that EU member states have the right to leave if they don't think the arrangement benefits them.
And we must ensure that choice remains economically viable, and not just for the largest member states. Because a union maintained by compulsion, even economic compulsion, is not a union, but an empire.
Or a state.
> many EU countries have laws that essentially state that all their laws must comply with EU law
Isn’t granting the ECJ jurisdiction is a requirement of EU membership?
EU treaties are not a constitution and the constitution the people gives itself stands above all.
> EU treaties are not a constitution and the constitution the people gives itself stands above all
Germany [1] and Hungary [2] played with this fire. In summary, no.
Treaties have force of law. If a country improperly ratified their EU treaties, they need to amend their constitution (if it exists) or admit they never properly joined the EU in the first place. Given the latter means economic collapse for most EU members, it’s not a hard choice.
[1] https://www.jurist.org/commentary/2020/06/nick-kenny-german-...
[2] https://www.reuters.com/world/first-eu-seen-moving-cut-money...
Once the people choose to no longer follow the EU Supreme Court, thus, as a follow up, no longer choose to follow the EU treaties, they exit the EU just as the UK did.
No country is or can be forced to be a EU member.
Just because there are economic implications does not mean the EU treaties are above the countries‘ constitutions the people actually chose to enact.
This is true of any law, there isn't actually anything except common agreement that constitutions should be treated more seriously giving them extra status, and there isn't anything but the consent of (enough) people giving laws any power: nobody is ever forced to follow any law, they are simply punished if they don't.
However, once you decide to stay within the law it is indeed possible to have EU treaties stand above the constitution. In situations where you've added bits in your constitution that the EU treaty has priority, acting like this isn't true is simply breaking the law.
But if your constitution is incompatible with the treaties required to be member in the EU, you essentially have two options: change your constitution or not be member of the EU.
It's a bit more complicated than this, because the treaties don't really have any mechanism for unilaterally expelling a member state and there is no precedent for doing so. The reality is there is no easy answer to what happens when a national constitution is incompatible with EU law.
Member states can, in theory, be suspended, though we've seen when it comes to Hungary and Poland that mechanism is quite hard to use (as it requires unanimity of all of the other member states) and it's considered the "nuclear option".
Or, leave both the constitution and treaties in place and wait to see if the EU bothers to take adverse action.
And here I was thinking that German (and to some extent French) politico-economic interests stand above all. Silly me...
Right now the political and economic interests of Germany and France is a strong EU. Won't always be true, though I can't foresee the circumstances when it might change.
Likewise, for most of my life, my personal political and economic interests included a strong UK (still does even though I moved to Germany) and USA even though I never lived there.
Member states are sovereign insofar as the EU institutions only have jurisdiction because the member states allow them to do so. EU law only applies because local law says it applies. The ECJ is the highest court in any of the member countries because the law in those countries say it is.
This differs from the situation in the US where Texas couldn't pass an amendment to their state constitution declaring that they are no longer subject to federal law. State law is subordinate to federal law / the US constitution.
Couldn’t Texas exit the US in the same way that European countries can exit the EU?
No
There is no codified legal process for a US state to leave the Union, and the only previous attempt caused a civil war
A member of the EU has both an implicit right to withdraw from the treaties (deriving from international customary law around treaties) and an explicit legal path to follow. A process which they control in their entirety (as in they can't be forced to stay longer than they wish by the other countries and can't be forced to leave earlier than the prescribed deadline)
EU treaties explicitly say that a member can leave them (in particular article 50 of the Treaty of the EU).
In general a country can't get out of an international treaty unless the treaty itself has provisions for it. Of course the only way to enforce an international treaty, if threats or sanctions are not enough, is war.
No, the EU has a specific process for leaving by asking, while the US states can only leave if a sufficient number of the other states agree to it.
The EU isn't really a country, it's a free trade agreement with an unusually democratic (by the standard of FTAs) process for updating its own rules.
>The EU isn't really a country, it's a free trade agreement with an unusually democratic (by the standard of FTAs) process for updating its own rules.
The EU isn't just a free trade agreement and it has never been just a free trade agreement. It has always been a political endeavour.
Of course that doesn't make it a country or a nation state at all, but let's not go too far in the other direction when trying to describe it.
Every free trade agreement is a political endeavour. The entire concept of free trade is in part where the term "liberal" originates from (not that the term should be considered a guide to current policies of parties with that title, lots has changed since it was Liberals vs Whigs).
The EU isn't a country (yet), but it's a political union that increasingly walks and quacks like a country.
Indeed it is not a country. But democratic process is a very wrong word here, even with the adjective "representative". The EU process for updating its own rules is a bureaucracy directed by prime ministers, and those influenced/controlled by powerful groups. E.g. Scholz and Macron pushing for federalization and weakening the power of states - this is great for EU apparatus and those wanting to make it stronger, but state citizens do not want this.
Can you name any trade agreement with a more democratic process?
I wouldn't connect those concepts at all. Democratic process is expected in a state that proclaims to be a democracy. Not in a trade agreement of multiple states. Also, EU is not just a trade agreement.
Some states tried that in the 1860s. It was traumatic.
Technically the answer is yes. In practice I believe there would be civil war before that happens.
> Technically the answer is yes.
Really? You mean that there is something in the US Constitution that explicitly allows a state to secede?
"In the public debate over the Nullification Crisis the separate issue of secession was also discussed. James Madison, often referred to as "The Father of the Constitution", strongly opposed the argument that secession was permitted by the Constitution.[29] In a March 15, 1833, letter to Daniel Webster (congratulating him on a speech opposing nullification), Madison discussed "revolution" versus "secession":
https://en.wikipedia.org/wiki/Secession_in_the_United_StatesI return my thanks for the copy of your late very powerful Speech in the Senate of the United S. It crushes "nullification" and must hasten the abandonment of "Secession". But this dodges the blow by confounding the claim to secede at will, with the right of seceding from intolerable oppression. The former answers itself, being a violation, without cause, of a faith solemnly pledged. The latter is another name only for revolution, about which there is no theoretic controversy."If the threat of secession requires going to war over, it would seem that no, secession is not a legally supported process.
But could it not be possible to allow the secession of a state by an ammentment to the constition?
Why bother?
If things went so far that the secession is desired it is already a civil war, and constitution of 'some people out there over the creek' doesn't matter.
I think that was the lesson of the 1860s.
Out of curiosity: can Swiss cantons leave the Swiss confederation?
The 26 cantons are mentioned in the Swiss constitution by name. If one wants to leave, the constitution would have to be changed. So a canton can only leave, if a majority of the whole people as well as the cantons voted in favour.
The supremacy of EU law is a pretty interesting one. It is a fundamental principle of the EU that EU law takes primacy/supremacy over national law (in areas where the EU has competence). How this actually works in practice can be a bit fuzzy, because the EU is certainly not going to send tanks into a member state's capital to enforce its laws.
As I understand it, the way this usually works is by national law explicitly endorsing EU law (usually at the level of the national constitution) and stating that in the event of any contradiction between EU law and domestic law, EU law will prevail. So EU law is "supreme" in practice, but that supremacy is granted/recognised under the domestic constitutional order.
In some countries, this recognition is limited, such that national courts will not permit EU law to override certain aspects of the national constitutional order. When that happens, there is really no easy solution.
An interesting recent example is https://www.politico.eu/article/brussels-closes-case-against... where the German court found that an ECB bond-buying programme was unconstitutional and in doing so refused to follow a prior decision of the ECJ.
Another consequence of this approach to supremacy is that significant changes to the EU treaties require a constitutional amendment in Ireland, which requires a referendum. To my knowledge Ireland is the only country to have such a binding legal requirement, with the effect that a number of amendments to the treaties have in the past been delayed or defeated by the Irish public voting against them.
Who is 100% sovereign? Any kind of treaty makes you less "sovereign". I believe it's the same question about freedom. Are you a free person if you have a job, pay mortgage or marry someone?
> Who is 100% sovereign?
100%? Only those with a nuclear deterrent, and maybe not even them. Otherwise, there is always a bigger fish.
Edit: I can see some people don't believe me. Do you really think treaties are more than paper if you don't have force to back them up? The US has threatened to invade the Hague if they try to charge Americans with war crimes. Went beyond mere threats in fact, congress and Bush the younger enshrined this threat in Federal Law.
>> Do you really think treaties are more than paper if you don't have force to back them up?
There is a foce that can build up. If the U.S starts going rough someone else will take its place. We've already seen pieces moving during Trump's term. U.S's soft power helps it more than you think.
North Korea is more "sovereign" than the U.S. in your book. Good economic and political relations with your neighbours can make you more powerful than being a sovereign lunatic.
> North Korea is more "sovereign" than the U.S. in your book.
In practice, the US can do much more of whatever it pleases than North Korea can. The US can invade most countries on a whim, and has demonstrated this ability numerous times in living memory, while the North Korean government mostly just fumes for the past few decades. But more to your point, yes, North Korea has more sovereignty than most; they are one of the few countries America can't invade on a whim.
You have a very twisted way to see the world. If NK is more sovereign than most countries why should countries aim for sovereignty?
The bottom line is that the "paper treaties" allowed the world to function and create economic growth/trade not a sovereignty dogma. I think the total sovereignty dogma didn't exist even in the medieval times. Its roots are rather religious. I'm not sure where you want to go with that. Certainly not towards prosperity.
You don't want international treaties with nations you can't invade or what's exactly the gist of it?
Being a super power has benefits. That doesn't mean you can break economic treaties without consequences or that you can invade countries every time you don't like their economic policy. Bad behaviour brings reputational damage. Wars are costly(economic and politically). Soon enough you may find yourself alone and that you are not a super power anymore(i.e Russia).
Being a small country like NK or the UK you can play ball with the system or become poor. If you want to change the system you must be a super power and/or have powerful friends(i.e not sovereign)
So the list of countries with nuclear arsenals is very short. It ends in North Korea and Israel, basically the rogue state of China (but fiercely independent at the same time, it is not subservient, it assisted China militarily in the hardest times after being carved to pieces for centuries by the nuclear powers of the time, and apparently nobody ever helped the Chinese ever) and secondly Israel, America's rogue state (but fiercely independent at the same time, it is not subservient, it assisted America militarily, and really they get all kinds of exceptions because they invented it, can't realistically stop them from having it).
Secondly France has huge problems with sovereignty because it can't make a computer. That's the impediment to their sovereignty. Nukes the have, that's not the issue. And even America is struggling with supply lines, looks like nobody can make a computer anymore.
> I had the impression member states were 100% sovereign within the EU...
~80-90% depending on how you measure.
The judiciary of all countries is technically under the ECJ jurisdiction. People can sue their countries, and local court decisions can be appealed to the European court structure (ECJ/ECHR).
That was in fact one of the Brexit talking points, judiciary independence.
Just to be clear, the ECHR is not an EU court and brexit Britain is still under its jurisdiction.
https://en.wikipedia.org/wiki/European_Convention_on_Human_R...
And one cannot appeal a case from the court of a member state to the CJEU. Member states' courts can (in some cases must) refer specific questions of law, but that is not an appeal by any party to the dispute.
> Is the ECJ kind of a Supreme Court that can overturn member state laws and rulings?
Yes. See e.g.
https://www.citizensinformation.ie/en/government_in_ireland/...
The member states are not 100% sovereign within the EU, there are some mechanisms to control it. For example, Romania (EU member country) has a provision that international treaties signed by the country override local legislation, so that EU directives - while not directly in effect - are above local legislation.
Practically, if a national law is found to be not compliant with the EU legislation, the country has some time to adjust it to make it compliant or to repel it. In court cases, the Constitutional Court can directly strike the provision in the law or the entire law, as appropriate.
A good mental model is that EU works pretty much like US did 100 years ago. The US states were roughly as sovereign as EU states (with some important differences, especially in defense and immigration), and US federal government was similarly powerful to EU government.
This has, of course, changed over the last century, and US states lost most of their sovereignty. I predict the same will happen to EU states over the next century.
That would be in 1920s and states were far from sovereign back then. Maybe 1820s, then one could argue the union was more 'loose'. But even then, the union was pretty tight. Hence constant issue of slavery in federal law.
I hate to break it to you, but there is no such thing as a 100% sovereign country anywhere in the world.
Define sovereignty
Member states have agency to leave the EU whenever they'd like if they wish not to be bound by agreed upon laws
The sovereign members of the EU have ratified treaties of European Union law themself.
* some of the then-elected governments
There was a national referendum before the Lisbon treaties that was declined by the Netherlands and France, which in turn "watered down" the EU constitution into the Lisbon treaties which are now in use, which were then ratified without any national votes.
As the German politician Martin Scholz once said, if the EU were to apply for an EU membership, it would get declined because of a lack of a democratic foundation.
> As the German politician Martin Scholz once said, if the EU were to apply for an EU membership, it would get declined because of a lack of a democratic foundation.
That's the way it should be.
In a democratic state, the state itself is sovereign, while the citizens are not. The rights of the citizens depend on the constitution, which can be changed according to a democratic process. The EU is a union of sovereign states. Due to that sovereignty, decision-making in the EU cannot be fully democratic, as that would violate the sovereign rights of the member states.
Well, since I live in Switzerland, I am happy to disagree. Swiss people vote on many things multiple times per year and consider this a fundamental right and this the way it should be.
A sufficient majority of citizens can change the constitution and take that right away from you. Because you live in a democratic state, you do not have sovereign rights.
Just the same; sufficient number of states can take those 'sovereign rights' away from a country. In the context of a discussion about Germany, shouldn't this be obvious?
There are many levels of government from local to multinational. At most one of those levels can be sovereign, and democracy makes most sense on that level. On other levels, some degree of democracy is possible, but it's always subject to the consent of the sovereign state.
EU member states have voluntarily agreed that in some situations, EU law takes priority over national law. But because the member states are sovereign, it's up to them to decide how to proceed when EU and national laws are in conflict. The EU has only limited means to sanction member states that breach their laws. It cannot arrest and prosecute German lawmakers. It can't declare German laws invalid, except to the extent German institutions voluntarily follow EU rulings. It can't forcibly rewrite German laws. And in extreme situations, it can't declare Germany's Constitution unconstitutional and invalid, and it can't forcibly rewrite it.
The difference is between direct and representative democracy, not of democracy itself.
In related news, the EUropean Data Protection supervisory authorities are complaining that their budget isn't being significantly increased even as the complaints they have to process have exploded in the recent years :
Germany is a weird one. On one side of things, they really like their privacy. People will routinely upload pictures to instagram where they find their faces and faces of others for pictures they posed for. I don't get it, if you posed for a picture to go on Instagram why do you need your face covered?
On other side of things the goverment does more data collection and data requests than nearly every other goverment. The goverment is super willing to record everything you do. While at the same time making it illegal for you to record someone without their knowledge.
Interesting that it was a German law. I was under the impression that German law was pretty conservative on data collection.
In general, yes, and I think Germans are (at least in theory) much more protective of their data than others. Nonetheless, every government since the late 00s has been trying to push this through in one form or another.
I suspect there is heavy lobbying from within the professional bureaucracy (including police and IC) for this. Possibly also diplomatic pressure from countries like the US.
Gestapo always trying to sneak its way back in silently in the background. And it's not just Germany either, it's quite annoying how backsliding into an anti-democratic surveillance state is now the default and needs to be constantly fought.
Perhaps it's "always has been", it's just laughably easy to do with software these days.
Don't forget the companies that provide the means to eavesdrop everybody.
Let’s not forget: we are talking about a country where every visit to a new doctor results in having to sign a Datenschutz form in order to agree to data processing. This is a country where personal data supposed to be saint. Double standards.
I'd be interested to know if the EU law that the ECJ relied on differs from or goes further than the case law from the European Court of Human Rights that the UK is still a member of.
A ruling against mass data retention in the UK could help Privacy International in their on-going case against the government for its mass surveillance and use of "bulk personal datasets".
https://www.privacyinternational.org/long-read/4598/briefing...
Mass data retention and surveillance has been ruled illegal multiple times both by ECJ and ECHR (as it is in direct contravention with the right to privacy in article 8). In particular UK is still supposedly bound by the ECHR even after Brexit. Unsurprisingly, EU governments and UK in particular, do not care, and there is only so much these courts can do to enforce their judgments.
Doesn't sound great:
"allows, for the purposes of safeguarding national security, an instruction to be given requiring providers of electronic communications services to retain, generally and indiscriminately, traffic and location data in situations where the Member State concerned is confronted with a serious threat to national security that is shown to be genuine and present or foreseeable. Such an instruction must be subject to effective review, either by a court or by an independent administrative body, and can be given only for a period that is limited in time to what is strictly necessary, but which may be extended if that threat persists"
-- that is just asking for a "perma-emergency" to justify such an exception for a long time until the court can (years later) maybe decide that that goes go far.
> just asking for a "perma-emergency" to justify such an exception for a long time
For context, I thought I'd look up the current UK "National Threat Level", and it is apparently "Substantial", which is the middle value on a 5 point scale, and the lowest it has ever been since the system was introduced in 2006.
And laws about the data collection, collation, and usage by governments date quite a way back...
For instance, the 1974 French SAFARI scandal,
where the government wanted to build a centralized computer database that would collect country-wide administrative data, starting with the 400 (physical) police files, and IIRC with a single social security number for each citizen,
has caused such an uproar that the project was abandoned and the data privacy regulator CNIL was soon created.
(Note the totalitarianism (aka "high modernism") inherent in computers, by the way what they show tends to be accepted as truth, the way they don't have any common sense, the way their digital nature tends to classify people into strict categories, which then become set in stone by their limited capacity to forget, the way the free flow of information turns qualitative and how they give a lot of power to the State while democracies try to limit this power.)
Sadly, we've recently seen its failure - caused in a big way by it being stripped of its power in 2004, leaving only a consultative (non-)power - in 2010 a law about "a general principle of information sharing between administrations" has still been created.
Some notable worries are about the preceding 2007 law that authorized ethnic statistics - while personal data treatment using ethnic or racial data, and adding race and religion values in the administrative files are still forbidden - the potential of ethnic data becoming racial data is still very high.
Another worry is about the genetic prints file : created in 2002 and first limited to sexual criminals, it has since been extended to a whopping 5% of the population, 87% of which have NOT (yet, quite a lot of the debate being how long these files should be kept) been condemned for the reason they got added to the file. It gets worse, and shows how quantitative can become qualitative : because genetic information is NOT independent between family members, a staggering third of the population ends up having its genetic identifiers at least partially stored in these files.
A 2022 project (submission date ending 2 weeks ago) to interconnect the digital prints file with the criminal records file has mentioned a potential future project of connecting both with the generic prints file... (among others) with also a policemen-suggested requirement that "the solution be compatible with remote work [...] not requiring strong authentication".
I would think it’s also against the spirit of the bill of rights, yet here we are in America, with secret courts reviewing secret surveillance and meta data.
And it's not even a secret process half the time - witness the recent conversations about CBP imaging phones of intl travellers.
Note that the ruling defines a number of exemptions. See the text following “However, EU law does not preclude national legislation which” in the press release: https://curia.europa.eu/jcms/upload/docs/application/pdf/202...
In particular, service providers will probably still have to maintain the infrastructure to activate “general and indiscriminate” data retention on demand.
Archive link: https://archive.ph/oKMPL
Is this from the same guys who want to get rid of cryptography for the public or at least get some backdoors?
The ECJ never 'wanted to get rid of cryptography' nor has the power to do so. It has the power to declare that such a law would violate EU treaties though.
I posted this earlier:
https://news.ycombinator.com/item?id=32909698
I don't care about the points, just think it is a bit weird that a promotional commercial company post is now on the frontpage instead of a more neutral news site.
Although now, Reuters would probably be the better source than what was available earlier today:
https://www.reuters.com/technology/indiscriminate-data-reten...
Good point. We've changed the URL to the Reuters article now. Submitted URL was https://mailbox.org/en/post/european-court-of-justice-overtu.... Thanks!
Is Germany a sovereign country if an international court presides over them?
This tends to get brushed aside by people defending the EU. Isn't this a step in the direction of the EU becoming something like the United States? There tends to be a lot of double-speak on this: "That's not true" and "it's a good thing" at the same time.
Any country that signs any form of international agreement is giving away part of its sovereignty in exchange of some benefit. It is just a matter of degrees.
It is not. The whole point of the EU is to pool sovereignty for common benefit. Germany is constrained in things it can do: it cannot ban the importing of French wine, give huge subsidies to its domestic steel industry to gain market share in Europe, or stop Bulgarians entering the country.
Of course, there is no EU army enforcing EU law, so a sufficiently damn-the-consequences German government could do these things, at the cost of destroying the single market.
The EU's stick is financial
Germany is free to leave the EU if they don’t want to follow the accords anymore. Its being subject to EU law is voluntary.