Jürgen Bröhmer

This chapter examines the European Union’s governance dysfunction within the contemporary “Trumpian” political environment characterised by anti-establishment sentiment and institutional distrust. The analysis demonstrates how this context particularly disadvantages the EU’s technocratic, multilevel governance structure. Drawing on Macron’s Sorbonne speeches, the paper identifies core challenges: security, economic competitiveness, and defence capabilities. The institutional analysis reveals significant structural limitations. The Common Foreign and Security Policy (CFSP) remains constrained by unanimity requirements preventing rapid responses. Internal governance faces competing forces of “informal internationalisation” and “unilateral renationalisation.” The German and Polish constitutional court’s rejection of EU law primacy represent direct threats to foundational integration principles. The German Constitutional Court’s “identity review” doctrine constrains EU development by reserving critical policy areas to national control. Contemporary crisis responses demonstrate both adaptive capacity and structural limitations. Ukraine-related cooperation advanced significantly, yet decision-making remains dependent on member state consensus rather than integrated institutional capacity. The paper concludes that the EU faces a fundamental governance dilemma: member states individually lack capacity to address global challenges, while collective action remains constrained by institutional frameworks designed for different circumstances. Drawing parallels to ancient Greece after Rome’s rise, the analysis warns that without addressing these structural contradictions, the EU risks global relegation while member states face strategic marginalisation.

Der Beitrag enthält einige kritische Überlegungen zur Überdehnung des Rechts als Instrument zur Lösung von, im Wesentlichen, politischen Fragen und Kontroversen. Vor dem Hintergrund der Erosion des institutionellen Vertrauens, des Populismus und der Legitimität der politischen Entscheidungsfindung, sowohl auf transnationaler als auch auf nationaler Ebene, weist der Beitrag auf das zunehmende Governance-Defizit hin, das besonders in Bereichen virulent ist, die sowohl nationale als auch internationale Maßnahmen erfordern. Das jüngste Gutachten des IGH zu den Verpflichtungen der Staaten bei der Bekämpfung des Klimawandels dient als wichtige Illustration. Die Befürworter wirksamer Klimaschutzmaßnahmen verweisen auf dieses Rechtsinstrument, um den Eindruck zu erwecken, dass weitreichende rechtliche Verpflichtungen die umfangreichen politischen Entscheidungen, die getroffen werden müssen, vorwegnehmen, während sich bei näherer Betrachtung herausstellt, dass es weitaus weniger rechtliche Verpflichtungen gibt, als es auf den ersten Blick den Anschein hat, und zwar schon deshalb, weil der politische Prozess nicht durch das Recht vorweggenommen werden kann – das Recht ist viel mehr ein Ergebnis politischer Prozesse als sein Motor. Das ist kein gutes Omen für die Fähigkeit, Lösungen für tiefgreifende Probleme wie den Klimawandel zu finden.

The paper offers some critical thoughts on the overextension of law as an instru-ment to resolve what are, in essence, political questions and controversies. Against a backdrop of the erosion of institutional trust, populism, and the legitimacy of political decision-making, both transnationally and domestically, the paper points to the increasing governance deficit that is especially virulent in areas that require both domestic and international action. The recent Advisory Opinion of the ICJ on the obligations of states regarding combating climate change serves as a major point of illustration. The advocates for effective climate change action point to this legal instrument to create the impression that far-reaching legal obligations pre-empt the vast political decisions that have to be taken, when in fact a closer look reveals that there might be far less in terms of legal obligations than might appear at first sight, if only because the political process cannot be pre-empted by law – law is a result of political processes much more than its driver. That being so does not bode well for the ability to provide solutions for profound problems such as climate change.

Sustainability (the term and the concept) permeates practically every perspective and field of study. Whatever concrete content one can ascribe to it, when it comes to translating that content into tangible reality, legal and regulatory decisions will be one major tool to achieve that. The term and concept of sustainability are closely linked to the environment and its protection. Threats to the environment in general and environmental subsystems, be they the climate, the oceans, the pollution of water, the atmosphere, or the food chain, are often global and not organized along artificial borders that delineate governance systems. The result is a dilemma common to many transnational policy challenges. Transnational governance systems either do not exist, are too weak, or face legitimacy problems. Therefore, policy challenges cannot be effectively addressed (governance deficit). Transnational governance deficits also have repercussions domestically, where this inability to deal with such challenges becomes an argument for restraint at home. This chapter discusses climate change, international trade, and regional integration to illustrate transnational decision-making difficulties. The European Union example shows how even closely related, deeply integrated regional governance entities can struggle to break the confines of national democracies. Comprehensive answers are difficult, if not impossible, to find. Efforts of transnational federalization or increased judicialization (legalization) and subsequent litigation to achieve broader transnational governance outcomes are limited in what can be achieved.

Professor Jürgen Bröhmer at the Murdoch University, School of Law reviews the 4th Edition 2022 of Sports Law By David Thorpe, Antonio Buti, Paul Jonson and Jack Anderson which introduces the body of law that regulates all sporting activities in Australia. It examines the areas of law that apply to sport including governance, torts, criminal liability, intellectual property, marketing, behavioural misconduct, doping, trade and competition. The fourth edition is updated to reflect major legislative and case law changes in sports law, and has extensive content on corruption, gambling and doping.

This paper attempts to analyse and explain the legal (regulatory) and policy framework concerning green energy in Australia. Such frameworks depend on the political setting of the state in which the framework is defined. Australia is somewhat different in that regard than many other countries because a combination of factors makes Australia a potential candidate to perhaps become a "green energy superpower" in the sense of being able to produce and export large amounts of green energy at competitive prices. The production of green hydrogen as a transport and storage solution (and storage derivatives such as ammonia) is a prime example. Green energy and hydrogen have therefore been taken up actively by commercial interests. The regulatory arm of government, by contrast, is relatively slow. Most efforts are invested in infrastructure, industry development, and international instruments, mainly regarding developing supply chains around hydrogen. Crucial matters around creating a circular economy around large storage batteries are in their infancy at best. Some tax incentives are provided, and a core constitutional law question is currently pending at the High Court around the constitutionality of road charges imposed by Australian states on electric and other zeroemission vehicles.

The relationship between Australia, the European Union and member states of the European Union have a long history based on shared values, democratic political systems, and a strong foundation in the rule of law. Historically, the ties to the United Kingdom have been and remain special, not least because Australia was and, albeit to a much lesser degree, can still be understood as a (now) fully sovereign partial reflection of the UK in the southern hemisphere, which whom it shares a language, a legal history based on the common law, a colonial past and, not least, a head of state. But there are close ties with other countries as well. France is a power with substantial interests in the greater area around Australia. France is also a close strategic security partner. The relationship with the EU has been problematic in the past because of profound differences of opinion concerning agriculture. UK membership in the EU initially jeopardized Australia’s trade relationship with the UK. Brexit is seen to create new opportunities albeit at a much smaller scale than the concerns raised by the UK’s joining the EEC/EU. Relative to Australia’s primary natural resources of iron ore and coal and relative to the growth of China as a market for Australia’s natural resources, including agricultural products, the UK, and the EU, play a significantly smaller role today. This paper attempts to present an overview of the various bi- and multilateral relationships that are the foundation for the envisaged AU-EU FTA.