The parliamentary procedure in Germany which led to the recently published Gesetz zur Modernisierung des Staatsangehörigkeitsrechts (Act on the modernization of nationality law, in the following ‘Modernization Act’)^[1] was held during a time of unrest. Demonstrations surrounding Israel and Hamas, statements from the Turkish president and anti-Semitic incidents, including their acclamation, fuelled a question central to any immigration country (like Germany)^[2]: What can law contribute to an overall sense of belonging in a political community? Rules on acquisition and loss of nationality law are one among others but nevertheless an important factor in this context. Besides its symbolic function, nationality grants the right to vote in national elections, thus full political membership. The state of Saxony-Anhalt, for example, reacted to the unrests surrounding Israel and Ghaza in larger German cities – while the parliamentary procedure at the federal level wasn’t even finished – by strengthening the grounds for exclusion from naturalization of anti-Semites via administrative decree already in November 2023^[3] which underlines the connection between societal eruptions and questions of political membership.

The Modernization Act entered into force at the end of June 2024 and is primarily concerned with modifying acquisition criteria. The expert hearing in the German Parliament’s Committee on Internal Affairs raised numerous questions and doubts here, inter alia with a view to the principle of legal certainty and practicability regarding rules which aim to tighten the grounds for exclusion from naturalization by anti-Semitic, racist or other inhumane behavior. Similar debates emerged on the tightening of the requirement to secure one’s own subsistence, the reduction of residence periods for naturalization and ius soli-acquisition and finally the competent authorities’ work overload which is likely to disappoint expectations of faster administrative procedures after the Modernization Act entered into force (for different perspectives see the expert opinions, accessible via the Bundestag’s Committee)^[4].

Besides those points, other problems have largely been under the radar, especially in the Federal Government's draft bill motifs.^[5] This applies to some complex aspects of international and European Union law in particular. This article aims to briefly examine them, primarily the international law implications of an unconditional and unlimited admission of multiple nationality.

 The working paper is available for download here.

^[1] BGBl. 2024 I No. 104, 26 March 2024, https://bit.ly/3KsJc1t.

^[2] Compare the contributions in the recently released book (edited by Daniel Thym) ‘Germany as a Country of Immigration’, 2024, in German, accessible via https://bit.ly/4cCMvz0 (OpenAccess).

^[3] See Hinweise zu den §§ 11 und 12a Staatsangehörigkeitsgesetz (StAG) zum Erlass des Ministeriums für Inneres und Sport des Landes Sachsen-Anhalt, 29. November 2023, accessible via https://bit.ly/4cJczIZ.

^[4] Deutscher Bundestag, Committee of Internal Affairs and Community, https://bit.ly/45GMjMZ.

^[5] Gesetzentwurf der Bundesregierung, Entwurf eines Gesetzes zur Modernisierung des Staatsangehörigkeitsrechts (StARModG), BT-Drs. 20/9044 of 1. November 2023, https://bit.ly/3XDtrMT.

This paper addresses concerns relating to algorithmic bias, taking the form of self-preferencing which is perceived to be a key pillar of market regulation in the digital era. Although non-price discrimination against rivals is an essential part of competition in many instances, self-preferencing practices – employed by hybrid digital platforms that do not act as pure intermediaries but are also present in adjacent markets – may potentially lead to anti-competitive algorithmic foreclosure. Accordingly, this paper analyses self-preferencing from a substantive law point of view under Article 102 TFEU and proposes an analytical framework based on which the legality of these kinds of practices can be assessed. The analysis of the established types of abuses suggests that there is a gap in law in the existing types of abuses. Consequently, they cannot or should not be employed to tackle self-preferencing. The findings of the state-of-the-art legal, economics, industrial organization, and empirical research warrant for this potentially new sui generis abuse a case-by-case, effects-based analysis without, however, the Bronner criteria, including, indispensability being part of the legal test.

Keywords: Algorithmic bias, Self-preferencing, Digital platforms, Article 102 TFEU.

The working paper is available for download here.

This paper addresses the rules applicable to algorithmic bias taking the form of self-favouring by hybrid digital platforms in the EU. In this paper, it is argued that the recently introduced prohibition of self-favouring by digital platforms should not apply across the board in the same manner. It may be necessary to consider the nature of the underlying products or services, the business models, and the monetisation strategies of digital platforms. Differences in these aspects may alter their ability and incentives to engage in self-favouring potentially leading to foreclosing rivals and harming consumers. This suggests that the approach put forward by Section 19a of the German Competition Act may be better from an error-cost perspective than that of the Digital Markets Act. Section 19a of the GWB grants more discretion to enforcers and allows for a broader justification of the impugned conduct. In the context of the DMA, some sort of balancing exercise seems to be possible only if the European Commission makes extensive use of the possibility to further specify the prohibition of self-favouring contained in Article 6(5) of the DMA in light of the principles of effectiveness and proportionality. Finally, the paper touches upon the potential disproportionate burden, legal fragmentation, and legal uncertainty across the EU resulting from the interplay between EU competition law, the DMA, and national laws tackling similar self-favouring practices.

Keywords: Algorithmic bias, Algorithmic foreclosure, Self-favouring, Digital platforms, Digital Markets Act, Competition law, Economic market regulation, Platform to Business Regulation, Section 19a of the German Competition Act

The working paper is available for download here.

There is no consensus at the European level on the nature and status of the human embryo and fetus and there is no legal definition of the beginning of life. In order to determine the legal status of human embryo and fetus, it is necessary to analyse a series of a previous legal, social and philosophical-anthropological questions, such as the concept of a man, human nature and person. The paper aims to offer a more detailed picture of a mentioned philosophical concepts and relate them to the moral and legal status of the human embryo and fetus. The conclusion is drawn as to whether the human embryo and fetus is a legal subject.

The working paper is available for download here.