Chapter 5 makes the methodological claim that before turning to the Court’s practice, one should use insights from political science, sociology, and constitutional law to better delineate the domains of law and policy that once in power (deliberation and the media, judicial independence, and electoral regulation), and how erosion observed in Hungary and Poland reflect in these domains reflect the normative argument of Chapter 3. This excursion importantly highlights the relevant and corresponding portions of the case law (Articles 10–11, Article 6, Article 18, and Article 3 Protocol 1, resp.) to be analysed, and which aspect of these articles need particular attention, an aspect I label ‘infrastructural’.

This chapter focuses on the case study of Northern Ireland to interrogate the intersection between victimhood, victims’ groups as drivers of first-generation transitional justice, and the mobilisation of empathy. The chapter argues that while agency and participation are often presented as exclusively positive attributes, the moral economy of victimhood can compel individuals and groups to convey their suffering in a particular register to make their losses ‘matter’ and to ‘mobilise empathy’. In Northern Ireland, the absence of a formal process of dealing with the past and ongoing contest over the legal definition of a victim or survivor of the conflict has made these dynamics particularly acute. From situating victims’ groups as ‘moral communities’ to exploring how victimhood and demands for transitional justice are expressed in different registers across the two communities, this chapter adds a new lens to the study of victims and victim engagement in transitional justice.

The Takeover Directive does not address the special features of reorganisations by way of merger or division, nor does the Company Law Directive with its provisions on mergers or divisions address the first-time acquisition of control or change of control in one of the companies involved in the transaction. Contrary to early opinions in the literature, the two areas of law exist side by side and must therefore be harmonised. Even if not all elements of a public offer are present in a merger or division, it is appropriate to apply supplementary takeover law provisions to a merger or division in order to avoid circumvention solely on the basis of legal technique. Takeover law regulations must be applied if the shareholders of the acquiring company are faced with a new controlling shareholder for the first time. The company law regulations should therefore be supplemented by measures under takeover law; in particular, an additional right of withdrawal due to a change of control should be recognised. The few cases known from practice in Austria, Germany and Switzerland should be recognised and used as a basis for a clarifying regulation.

The EU Takeover Directive was passed twenty years ago with the main aim of fostering a single European takeover market. However, subsequent economic, political, legal and corporate governance developments have hindered the Directive’s goal of enhancing the European market for corporate control. This chapter outlines the pro-market climate surrounding the Directive’s inception, traces the subsequent changes in market dynamics and governance, and examines the legislative measures that have contributed to the current state of the market for corporate control in Europe. Despite the continued existence of hostile bids, their importance and impact have shrunk under the current environment. This trend has reduced firm dynamism and resulted in benefits for a select few (notably, corporate insiders and national politicians).

This chapter examines how the death penalty operated in practice in Belize, Bermuda and Britain’s Caribbean Dependent Territories from the mid 1960s to early 1977. The Foreign and Commonwealth Office was increasingly diligent in reviewing death sentences during this period and, despite executions in the British Virgin Islands in 1972 and Belize in 1974, British officials mostly pressured governors to commute, even though Britain remained formally committed to the Creech Jones doctrine. Britain’s approach to capital sentences was, moreover, increasingly influenced by diplomatic concerns by the mid 1970s, including, for the first Bermuda, time, international human rights treaty commitments that, exceptionally, prompted British intervention in a capital case in the West Indies Associated State of Dominica. In the Dependent Territories themselves, the execution and reprieve of condemned prisoners prompted protests related to constitutional reforms, local political conflicts and concerns about crime and national identity.

This chapter aims to analyse the Polish ‘integration clause’: Article 90 of the Constitution as an element of the Polish constitutional imaginary. The notion of constitutional imaginary as formulated by Martin Loughlin will provide the theoretical framework for these considerations. Perceived through the lens of Louglin’s constitutional imaginary concept, Article 90 turns out to be the provision that shapes intricate relations of two big ineffable ideas: sovereignty and European integration. The latter has been perceived in the constitutional practice as both the ineffable aspiration and the object of serious concerns. Since Poland’s accession to the EU, for a long time, constitutional practice with regard to the EU was a syncretic collection of cautious friendliness towards EU law, emphasis on (formal) constitutional supremacy and narrowing down the interpretation of ‘the conferral of competences’. Nevertheless, until recently, the constitutional text had tended to be interpreted as facilitating rather than limiting Poland’s participation in European integration. Therefore, the recent Eurosceptic turn after 2015 was not justified either in the sphere of thought or in the constitutional text. It disturbed the existing balance between ideology and utopia.

In Colombia, the category of ‘victim’ constitutes a significant legal and political identity, granting access to truth, justice, and reparation measures. Yet transitional justice processes often reinforce hegemonic narratives of ‘ideal victimhood’, reproducing gendered, racial, and political-military stereotypes that marginalise those who deviate from these norms. Focusing on conflict-related sexual and gender-based violence (SGBV), this chapter examines how social movements, particularly women’s and LGBTQI+ groups, contest dominant imaginaries of the ‘ideal SGBV victim’ as a passive, cisgender, heterosexual civilian woman. These groups advocate for inclusive approaches within Colombia’s Truth Commission and Special Jurisdiction for Peace. The chapter contrasts their efforts with the case of Corporación Rosa Blanca, former FARC women combatants who strategically embrace the ‘ideal victim’ narrative to secure legitimacy. This group contrasts with more progressive victims’ groups and illustrates how they navigate between complex identities and traditional victimhood narratives in Colombia’s transitional justice.

Chapter 6 emphasizes the Court’s practice pertaining to freedom of expression Article 10) and freedom of assembly and reunion (Article 11). It underlines ‘deliberative pluralism’ as the core principle relevant to tackle the populist erosion of democracy. However, while the Court puts emphasis on deliberative pluralism in its proportionality analysis, the Court only adduces minimal infrastructural guarantees that may be perverted by populist governments, such as ‘procedural guarantees’, while the scrutiny of media bodies and the larger media landscape remains largely cosmetic. This is reflected most prominently in a limited and parsimonious proportionality analysis.

Contrary to the widespread narrative, Polish constitutional law theory played a crucial role in the transition from authoritarian socialism to constitutional democracy. This chapter examines the evolution of Polish constitutional law within the political and legal context of the Polish People’s Republic (1944–1989). It argues that the discourse surrounding constitutional law evolved from being merely a façade to becoming a solid foundation for democracy, largely due to the development of a scholarly doctrine of constitutional review in the late 1960s. This doctrine allowed political elites, under both internal and external pressures, to initiate institutional changes, most notably the establishment of the Constitutional Tribunal. Poland became the only Warsaw Pact country with a constitutional court, and the Tribunal played a pivotal role in the country’s democratic transition. Consequently, the reforms of the 1980s can be seen as an institutionalization rather than a rejection of Polish constitutional law theory. Finally, this evolution helps in understanding the Central Eastern European constitutionalism, including the recent debate on the origins of the rule-of-law crisis.

This chapter provides a critical analysis of the material scope of NIAC and is divided into seven sections. The first explores the material concepts of NIAC pursuant to both CA3 and APII,  and explores how the drafters understood these  concept and how it has been interpreted in practice. Second, it examines the concept of NIAC contained in Additional Protocol II of 1977, looking at how its distinct identity emerged, as well as its specific material elements. The second section explores some of the legal and operational challenges that arise from the existence of two categories of NIAC, and in particular how the activation of APII can fragment the applicable legal regime, resulting in fluctuating levels of protection during NIAC. The fourth section undertakes a comparative analysis of the material scope and associated threshold of NIAC pursuant to the Tadić definition of NIAC (CA3) and that contained in APII, in order to identify areas of convergence and divergence. The fifth section explores how developments in both customary and conventional IHL applicable during NIAC have influenced its material scope and, in particular, the level of organization armed groups require in order to qualify as a Party to a NIAC. Following from the conclusions of sections four and five, the sixth section assesses the continued relevance of the distinction between CA3 and APII NIACs in practice.

Throughout history, reference to the historical constitution of Hungary was used to achieve different and sometimes conflicting goals. Since 2012, it has become a constitutional concept after decades of abandonment. It appears in the Fundamental Law of Hungary (2012) and the jurisprudence of the Hungarian Constitutional Court (HCC) – linking it to the concept of constitutional identity. This chapter claims that the narrative of the Hungarian historical constitution as a constitutional concept is conducive to illiberalism. This is because political and constitutional actors have used it to oppose liberal values. Two arguments justify this claim. First, the contemporary claims on continuity and rights expansion cannot be verified when we contrast the contemporary narratives on the two most important constitutive components of the historical constitution, that is, continuity and rights expansion with legal measures introduced in the second part of the nineteenth and the first half of the twentieth centuries. Second, the relevant jurisprudence of the HCC suggests that the finality of introducing the historical constitution into the constitutional text and their subsequent linking to the concept of constitutional identity was to secure the traditional Westphalian understanding of ethnic-national sovereignty, mainly against the rule of law, that is, EU obligations and globalization.