🍻 Selber Bier Brauen

The EU leaders’ informal competitiveness retreat at Alden Biesen Castle on 12 February produced a joint statement with a familiar ambition: completing the Single Market. Less noticed, however, is that the statement also sketches a programme of institutional and procedural reform. Those are changes to how EU law is initiated, crafted, delegated, reviewed, and repealed, as well as who controls those processes.

Buried in the language of “simplification”, it endorses: (i) greater reliance on omnibus packages; (ii) a general preference for regulations over directives; (iii) reduced recourse to delegated and implementing acts; (iv) the systematic use of sunset clauses; and (v) a crackdown on Member State “gold-plating”, coupled with a “deep house cleaning” of the acquis via an annual simplification report to the European Council. Commission President Ursula von der Leyen further undertook to report annually to the European Council on “simplification progress and cost reduction.”

This is not merely a competitiveness agenda. It is an attempt to re-engineer, through an informal summit, the EU’s constitutional and institutional architecture, without the safeguards of formal Treaty revision. The joint declaration provides, hidden as political guidance, quasi-instructions on the choice of legislative form, delegation architecture, and temporal validity. Those are matters that the Treaties assign to the Commission’s initiative and to the ordinary legislative procedure, and which the Court has treated as components of the Union’s institutional balance. 

Its most telling symptom – one that deserves more attention than it has received – is the Commission’s recent Better Regulation Communication, which seeks to institutionalise the procedural shortcuts pioneered by the first ten omnibus packages – including the departure from the Treaty-enshrined requirement of public consultation and impact assessment. In doing so, the Commission pre-empts the EU Ombudsman’s criticism of those packages by proposing to replace the rules they violated with rules that permit what they did. 

What’s at Stake and Why it Matters: Institutional Balance

To appreciate what is at stake and why it matters, it helps to understand what EU constitutional law actually requires, and what the Alden Biesen commitments systematically disregard.

The EU’s institutional architecture rests on a principle the Court of Justice has upheld since its earliest jurisprudence: institutional balance. Unlike the principle of conferral, which concerns the limits of EU power vis-à-vis Member States, institutional balance is an inter-institutional principle: it requires that the specific equilibrium of functions the Treaties distribute among the institutions be maintained, and that no institution may arrogate to itself the functions assigned to another, even with that other institution’s consent (Case C-149/85, Wybot, para. 23). In other words, institutional balance is not a right that institutions may waive at their convenience: it is a constitutional guarantee that protects the integrity of the legislative process itself (that is the Community method as reflected in the ordinary legislative procedure, with qualified majority in the Council) and with it those subject to EU law. 

If the European Council may define general political orientations, it may not prescribe the form, duration, or procedural design of legislative acts, functions the Treaties assign to the Commission and the co-legislators. That prohibition, enshrined in Article 15(1) TEU, provides a constitutional firewall between intergovernmental politics and EU law-making: the guarantee that rules binding 450 million people are produced through processes that involve deliberation, democratic scrutiny, and judicial accountability.

Every reform in the Alden Biesen statement crosses that firewall.

The choice between a directive and a regulation, reliance on delegated acts, and the appropriateness of sunset clauses require context-dependent assessments, forming part of proportionality and subsidiarity reasoning specific to each legislative file. They are tasks for the Commission and co-legislators, policed by the Court with considerable precision. Any informal institutional rules that develop “interstitially”, as the joint declaration does, are contra legem. As such, it can’t be tolerated without fundamentally altering the institutional balance, with major consequences in terms of legitimacy and representation, and without the Court having been able to review that transformation. 

Ordering a blanket shift toward regulations, mandating a general reduction of delegated acts, and making sunset clauses a default technique by political instruction pre-empt those decisions. It substitutes a single political preference for the case-by-case constitutional reasoning the Treaties and the Court’s jurisprudence demand. 

Such instructions are not merely borderline illegal; they are constitutionally impermissible. It is the integrity of the Union’s legal order and institutional system that is being undermined.

Most consequentially, Article 17(8) TEU makes the Commission accountable to the European Parliament, not the European Council. Von der Leyen’s voluntary commitment to report annually to the European Council on her compliance with its simplification agenda establishes a structural accountability relationship with an institution the Treaties deliberately excluded from holding the Commission to account for its legislative choices. That exclusion reflects the constitutional design of the Community method, in which the Commission’s political independence from the Member States – guaranteed precisely by its accountability to an elected Parliament – is the precondition for its role as guardian of the general interest. A routine compliance relationship with the European Council on the Commission’s legislative technique risks hardening political guidance into supervisory control, in direct tension with the Treaties’ design of Commission independence and Parliament-centred political accountability.

True: each proposed reform, viewed in isolation, can be presented – at least politically – as  pragmatic adaptation to geopolitical urgency. Yet, when jointly examined, they amount to a permanent reallocation of legislative power performed in manifest breach of the principle of institutional balance.

The Road Not Taken: The Single European Act of 1986

The Treaties provide a mechanism for exactly this kind of structural change: the ordinary revision procedure under Article 48 TEU, with a Convention, an intergovernmental conference, and ratification by all Member States. It is worth recalling that when European leaders last decided the Single Market needed a decisive relaunch, facing the same competitiveness anxieties and the same urgency, they used the Treaty revision route. The Single European Act of 1986 introduced qualified majority voting, strengthened the Parliament’s legislative role, and set a 1992 deadline for completing the internal market. Crucially, it did so by amending the Treaties, not by bypassing them. The Cockfield White Paper was a Commission – not a Member State-led – initiative addressed to co-legislators; the outcome was a ratified constitutional act. What distinguishes Alden Biesen from 1985 is not the ambition. Rather it is the deliberate choice to pursue constitutional reform through sub-constitutional means, in full awareness that the Treaty revision route remains available, albeit politically impracticable.

Ultimately, a dedicated procedure exists aimed at determining where power sits, how it is constrained, and who can call the Commission to account, to ensure constitutional choices are made with democratic legitimacy and not through informal summitry.

The provenance of the agenda

Before drawing conclusions, the provenance of these reforms deserves emphasis. Virtually all of them can be traced, word for word, to a German-Italian non-paper circulated ahead of the retreat, a non-paper by six northern Member States (Estonia, Finland, Latvia, Lithuania, the Netherlands and Sweden), and the Antwerp Declaration, adopted at the European Industry Summit by over 500 business leaders alongside Commission President von der Leyen. These were not Commission initiatives, independently assessed and brought to co-legislators. They were industry and Member State proposals, absorbed into a summit declaration, largely anticipated through a Better Regulation Communication designed to rewrite the procedural rules that the first omnibus packages had violated. 

The Castle Method as an expression of EU constitutional drift 

The constitutional strategy of the Alden Biesen reforms is to achieve Treaty-level results by sidelining what the Treaty requires: joint declarations, Commission communications, accountability commitments to the European Council, and Better Regulation guidelines designed to legitimise what the rules previously prohibited.

This is part of a broader, largely undetected EU constitutional drift. Unlike formal constitutional reform, which, however imperfect, is reversible, publicly deliberated, and produces legal norms whose content and origin are identifiable and challengeable, constitutional drift operates invisibly, accumulates through small steps each defensible in isolation, and by the time it is recognised for what it is, has already altered the institutional landscape in ways that formal law has not acknowledged and may no longer be able to correct.

The EU has been here before. Each time, from the growth of the European Council’s de facto legislative direction in the euro-crisis years, to the proliferation of intergovernmental agreements outside the Treaty framework, to the normalisation of emergency law-making, the justification was urgency. The geopolitical circumstances were always genuinely serious. And in each case, the constitutional costs were borne disproportionately by those with the least influence at the castle retreats: citizens, parliaments, civil society organisations, and the procedural rights that exist to give them a voice in the rules that govern them.

What is new about Alden Biesen is its unhibited departure from any attempt at comply with the constitutional boundaries within which member states may act within the European Union legal order. Five reforms to the structure of EU law-making, endorsed simultaneously, derived directly from industry and Member State non-papers, sealed by a Commission accountability commitment to the European Council, and partly pre-laundered against legal challenge by a Better Regulation Communication designed to rewrite the rules the packages violated. 

The castle method denotes a mode of EU constitutional change in which the European Council uses informal summit declarations to prescribe not the policy directions of EU action, but the form, architecture, and temporal design of EU legislation—matters the Treaties assign to the Commission’s initiative and the ordinary legislative procedure—without triggering the visibility, deliberation, or democratic safeguards of formal Treaty revision. It operates through the accumulation of soft law instruments: joint declarations, Commission communications, accountability commitments, and regulatory guidelines that together produce Treaty-level institutional effects while never attaining that formal recognition. Unlike the Community method, which it displaces, the castle method is driven not by Commission initiative independently assessed in the general interest, but Member State proposals – typically incubated by the industry – absorbed into summit conclusions and subsequently laundered through administrative channels. 

Unlike a Treaty revision, this process has no endpoint, no ratification moment, no constitutional off-switch. That is the defining characteristic of constitutional drift. And that is precisely why it deserves to be named for what it is. 

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On February 19, after more than 14 months of investigation and court proceedings, the Seoul Central District Court sentenced former President Yoon Suk Yeol to life imprisonment for leading an insurrection.¹⁾ The events giving rise to the conviction began with his declaration of martial law on December 3, 2024, which effectively prohibited all political activity and deployed armed forces to bar entry to the National Assembly. This measure was intended to prevent the opposition Democratic Party from stifling his administration’s policy agenda. Consequently, he was convicted of leading an insurrection (Article 87 of the Criminal Act) and abusing official authority (Article 123 of the Criminal Act). Recent convictions against officials involved in Yoon’s imposition of martial law had led to a widespread anticipation that Yoon would be found guilty of insurrection, while uncertainty remained on whether the Court would impose the death penalty as sought by the prosecution or a lifetime sentence.

The District Court’s decision reflects constitutional values and carries implications that stretch beyond the individual case. Its reasoning, read alongside the Constitutional Court’s impeachment judgment, underscores that Yoon’s actions struck at the heart of democratic order. At the same time, the persistent refusal of his supporters to accept these rulings reveals a deeper challenge: the fragility of democratic legitimacy in an increasingly polarized society.

Blocking the National Assembly to subvert the Constitution

The District Court had to decide whether Yoon’s actions last year surrounding the imposition of martial law met the legal requirements for insurrection – namely, whether he had initiated a riot with the specific intent to subvert the constitutional order. In Article 91 Paragraph (2) of the Criminal Act, the specific intent to “subvert the Constitution” is defined as overthrowing government organs established by the Constitution or to render the exercise of their functions impossible by force.

Notably, the Court explicitly rejected the legal interpretation that declaring martial law outside the bounds of legality as such constituted the crime of insurrection. According to the presiding judge, such an interpretation would deter the President from lawfully commanding the army in situations of imminent threat to national security. Yoon’s declaration of martial law on December 3, 2024, and the following measures only amount to an insurrection when the offense was committed with the specific intent to subvert the constitutional order – which the Court positively affirmed.

The Court repeatedly emphasized that Yoon’s decisive act was sending the army to the National Assembly with the intent to impede the functioning of the National Assembly. Yoon obstructed the National Assembly by preventing its members from entering the building and exercising their parliamentary rights. Army and police forces received commands to seal off the premises of the National Assembly and arrest important figures of the Democratic Party. To convict for insurrection, the law also requires that the perpetrator initiates a riot with the use of force to a degree that is sufficient to disturb the public peace of a region. Since Yoon deployed fully equipped police and armed forces to restrict access to the National Assembly and the National Election Commission by force, the Court held that these actions amounted to a riot within the meaning of the Criminal Act.

The Court did not base its judgment on the martial law decree alone. Yoon repeatedly stated in and outside of the courtroom that he had felt compelled to warn the entire nation of the “state of emergency” caused by the National Assembly’s “anti-state” actions. According to the Court, this proves his intent to paralyze parliamentary activities. The reasoning behind Yoon’s claim is that the Democratic Party of Korea, which possessed the majority in the National Assembly back then, had frequently refused to ratify laws initiated by the government and brought about impeachment procedures against numerous figures belonging to the then-ruling People Power Party. In its adjudication on impeachment back in 2025, the Constitutional Court dismissed Yoon’s claim to have merely sent a “warning signal” by means of martial law, underlining that a declaration of martial law with the motive of “warning” citizens of a constitutional crisis is not a legitimate ground.

Reflection of constitutional values in sentencing factors

While the question of whether Yoon has committed the crime of insurrection revolves around an interpretation of the Criminal Act, the District Court’s sentencing decision reveals a direct link between the President’s constitutional duties and the illegality of Yoon’s act. The presiding judge made clear that by using the armed forces for political purposes, Yoon violated his constitutional duty to keep the military politically neutral as required by Article 5 and Article 74 of the Korean Constitution. Several other aspects, including extra-legal factors, played a significant role in the Court’s decision on Yoon’s punishment. During the sentence hearing, the presiding judge explicitly mentioned that Yoon’s imposition of martial law and its repercussions had damaged South Korea’s international reputation and intensified the existing polarization and animosity between political factions. Extra-legal values such as political reputation and social harmony were considered substantial enough to serve as aggravating factors in determining Yoon’s sentence.

The District Court’s reasoning aligns closely with the central findings of the Constitutional Court decision in 2025, which upheld Yoon’s impeachment by the National Assembly.²⁾ The Constitutional Court found that Yoon’s breaches of the Martial Law Act and the Constitution were serious enough to justify his removal from office. It stressed that his attempt to block the National Assembly with the martial law decree and military force struck at the core of the South Korean constitutional order. Central to the Court’s decision to uphold the impeachment was that Yoon’s unlawful exercise of presidential power posed a manifest threat to the principle of democracy and the rule of law. The judges also highlighted that Yoon’s martial law regime was a recurrence of the historical failings of previous authoritarian governments that have overstepped presidential powers. By refusing to resolve a political gridlock through established institutional procedures and repeating the history of abuse of emergency powers, Yoon triggered severe political turmoil and thus violated his constitutional duty to promote social integration. By taking into account the social fragmentation, political shock, and Korea’s experience with authoritarianism, the Constitutional Court signaled that the former President’s actions transcended a mere violation of written law.

Addressing anti-democratic narratives

As the significance of Yoon’s imposition of martial law far exceeds the legal dimension, it is worth reviewing the statements of former President Yoon and his supporters in order to grasp their political perspective that clashes with core democratic values. Yoon claimed during the recent criminal proceedings, as well as in previous court hearings, that he had felt compelled to declare martial law to prevent the National Assembly from obstructing government policies and the normal functioning of the State. At the time of Yoon’s declaration of martial law, the oppositional Democratic Party was in fact holding the majority in the National Assembly, forming a gridlock situation in which the government led by Yoon and the National Assembly struggled to reach compromises. During the hearing, the District Court in fact acknowledged that the current Constitution does not provide sufficient institutional measures to break the gridlock and facilitate an orderly legislative process. However, Yoon’s claim that the martial law regime was to warn against allegedly “subversive” parliamentary actions rests on anti-democratic premises. The opposition, holding the majority of seats in the National Assembly, merely exercises its lawful rights, including rejecting government bills, and in doing so reflects the outcome of democratic elections and the voters’ political will. To characterize the National Assembly’s exercise of legislative power as a subversive, anti-state act and attempt to obstruct its function is rooted in a fundamental misunderstanding of parliamentary democracy.

Anti-democratic sentiments drive a categorical rejection of court rulings, particularly when the decisions clash with specific political interests. Such dynamics became apparent following Yoon’s conviction, as hundreds of Yoon’s supporters gathered on February 19 to protest against the ruling. Yoon’s legal representatives and loyal supporters see the Court’s findings as a result of a violation of the rule of law, arguing that the decision was purely based on political considerations instead of factual evidence. In his recent public speech following the District Court’s decision, the leader of the People Power Party, Jang Dong Hyuk, explicitly rejected cutting political ties with Yoon and openly endorsed Yoon’s justification for imposing martial law. He also condemned the National Assembly’s blocking of government-sponsored laws in 2024 as a form of “parliamentary dictatorship” and accused the current, “neo-dictatorial” government led by the Democratic Party of “controlling the judiciary” during the trials against Yoon. These statements go beyond political rhetoric. Critical observations of the judiciary’s interpretation and application of law should indeed be encouraged, as court decisions are undoubtedly subject to critical reflection. However, by refusing to accept Yoon’s conviction, statements such as Jang’s result in mobilizing his supporters and antagonizing political opponents rather than controlling and consolidating democratic institutions.

Persistent rejection of the legitimacy of constitutional institutions, such as the judiciary and democratic elections, signals that persistent distrust in these bodies will further exacerbate political division in Korean society. In this regard, it should be borne in mind that courts’ adherence to the principles of legality and procedural transparency alone cannot ensure public confidence in the legitimacy of constitutional institutions; the judiciary’s broader integrative effects remain inherently limited. Mitigating the political divide and upholding democratic values amidst intense political polarization requires a deliberate, discursive approach that examines the underlying beliefs of political actors and the impact of anti-democratic ideas. As doubts about democratic institutions deepen, the imminent challenge for Korean politics remains to counter perceptions that the judicial system is merely an instrument of political bias.

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The U.S. intervention in Venezuela violated the ius cogens prohibition of the use of force and the principle of non-intervention of the UN Charter (see here and here). At the same time, it created room for political change. The recently adopted Venezuelan Amnesty Law (AL) appears to go in that direction. With limited exceptions — most notably crimes against humanity (Art. 9) — the law grants a “general and full amnesty for … crimes and misdemeanours (delitos y faltas)” (Art. 1) committed over a broad period (Art. 5) and in connection with specific events (Art. 8). It also declares noble objectives such as the “promotion of social peace, democratic coexistence, and national reconciliation.”

However, a law should not be judged only by what it proclaims, but also — and above all — by its real effects. From this perspective, fundamental doubts arise as to whether the AL will contribute to a true democratic renewal in Venezuela.

Genuine Object, Genuine Need? When the Devil hides in the Foundations …

Traditionally, an amnesty is understood as the State’s waiver of criminal prosecution (see here, pp. 543-4, in particular distinguishing it from a pardon): its starting point is always an object to be amnestied, i.e., a legally relevant (punishable) conduct that, in light of the specific context, the State decides to waive or cancel. In the case at hand, however, it is highly questionable whether any genuine conduct worth amnestying or in need of an amnesty exists.

The AL links the relevant conduct to events largely associated with acts of protest (Art. 8 refers to “demonstrations and politically motivated violent acts”). Given this linkage and the government’s control over the criminal justice apparatus, it is very likely that many cases do not involve genuinely criminal behaviour, but rather fabricated charges arising from the criminalization of protest and persecution of opponents of the Chavista regime. Thus, there may be no real object worth of an amnesty at all. In fact, many — if not all — individuals who could benefit from the AL should never have been subject to criminal prosecution or detention in the first place.

Further, the question arises whether the Venezuelan legal system genuinely lacks mechanisms to release individuals charged or detained for the relevant acts. In other words, would it not have been more appropriate to use existing domestic remedies to protect fundamental rights from government abuse? One might argue that a general solution like amnesty avoids fragmented criteria in release decisions. Yet the AL does not eliminate that risk, because courts retain discretion in verifying amnesty requirements (Art. 11). Worse, as currently designed, filing an amnesty application implies — at least indirectly — acceptance of the charges. Thus, even if the charges are artificial, applying for amnesty confirms their premise (i.e., the existence of an act worth being amnestied) and produces an undesirable legitimizing effect: it frames the State as lenient toward wrongdoing allegedly committed by citizens and therefore legitimately prosecuted. In this way, the AL obscures the structural problem of fabricated accusations, manipulation of the criminal justice system, criminalization of protest, and the resulting erosion of democracy.

… and also in the Details: Risks of the Amnesty Law

The AL also presents serious practical problems.

First, its temporal scope is more limited than Article 6 initially suggests. While that article implies coverage of more than 25 years (since 1999, the first government of Hugo Chávez), Article 8 reduces that period to specific events covering only about 20 months, leaving out many incidents from other periods. Moreover, excluding acts that occur after the law’s entry into force (Art. 6), combined with continued government control over the criminal justice apparatus, preserves the risk of new fabricated accusations and renewed judicial harassment of political opponents.

Second, the broad material scope of the AL (Art. 1) does not offer a reliable guarantee of freedom. Against the backdrop of a prosecutorial apparatus controlled by the government, a charge under any offense not eligible for amnesty (for example, drug trafficking under Art. 9) could suffice to neutralize the effect of the amnesty and return matters to square one.

Third, the law leaves unresolved a further – and potentially far-reaching – problem: the requirement that applicants appear in person before prosecutorial authorities (Art. 7) is not fully mitigated by the prohibition on detention (a kind of free passage rule) provided in the same article. According to that prohibition, after filing an application “the person may not be deprived of liberty for the acts [to be amnestied]”. But is this sufficient? Imagine a citizen residing abroad who returns to apply for amnesty. While s/he could not be detained for acts eligible for an amnesty while the process is pending, what happens if their application is denied at first instance? Under Article 12, the applicant would have the right to appeal the denial, but only with “non-suspensive effect.” This means that, while the appeal is pending, the individual remains under investigation or prosecution for the act that motivated the criminal proceedings (in that context, Article 10 — which orders the cessation of coercive measures — would not apply, because it refers to “persons benefiting from amnesty,” i.e., those whose application has already been approved). Even if not imprisoned, restrictive measures like travel bans could be imposed. In a context of potentially arbitrary decisions, this risk is far from minor. If the denial is upheld, the path toward conviction based on questionable accusations would be open.

Finally, the Special Commission to be set up by the National Assembly (controlled by the regime) to ensure compliance with the AL (Article 15) lacks meaningful oversight capacity. Its membership is not yet publicly known, and its authority is limited to individual cases, not systemic problems — meaning it can correct isolated disruptions, but not structural issues.

Conclusion

While the release of victims of State abuse should always be welcomed, the AL suffers from fundamental and functional problems. Although it declares a desire to restore peace and democracy in Venezuela, these objectives cannot be achieved on fragile legal foundations.

It would have been preferable to acknowledge the abusive use of the State–judicial apparatus in prior years and adopt a tool consistent with that diagnosis. In this vein, a general provision – by decree or statute – renouncing prosecution of protest-related conduct and recognizing the abusive nature of the accusations, or at least refraining from treating them as genuine crimes, would have been more coherent (see on that here).

It is therefore contradictory that the AL also aims to “prevent the recurrence of acts subject to amnesty” (Art. 2). This implies a dangerous intention to persist in criminalizing conduct that embodies the legitimate exercise of the right to protest. True democratic reinstitutionalization should, by contrast, protect and foster that exercise. Only on that basis can social peace, democratic coexistence, and national reconciliation truly be built.

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