bluuebunny/crossref_metadata_2025 huggingface dataset:
The ECJ'sInspire ArtDecision of 30 September 2003 and its Effects on Practice
Authors: Kersting Christian , Schindler Clemens Philipp
Published: March 2019

In its most recent judicature the European Court of Justice (ECJ) continued its tendency of deciding in favor of the freedom of establishment by holding that rules submitting pseudo-foreign companies to the company law of the host state were inadmissible. It clarified that a foreign company is not only to be respected as a legal entity having the right to be a party to legal proceedings, but rather has to be respected as such, i.e. as a foreign company that is subject to the company law of its state of incorporation. Any adjustment to the company law of the host state is, hence, not compatible with European law. In addition to commenting on the decision and its effects, this article points out potential for corporate restructuring in the field of codetermination.
Money Laundering and Surveillance of Telecommunication – The Recent Decision of theBundesgerichtshof(BGH – Federal Court of Justice)
Authors: Kudlich Hans , Melloh Florian
Published: March 2019

The possibility of monitoring telecommunications pursuant to § 100a of theStrafprozeßordnung(StPO – Criminal Procedure Code) existed in Germany for the last 35 years. Nonetheless, the surveillance of telecommunications is still the subject of controversy and dispute; not only in connection with new forms of communications but also with regard to the extent and grounds of application in “normal” cases of telephone surveillance.
Agenda 2010: Reform of German Labour Law: Impact on Hiring and Firing Staff
Authors: Ubber Thomas
Published: March 2019

With its “Agenda 2010”, the German Government aims at a comprehensive reform of the German labour market. With regard to labour law, changes are planned notably concerning the protection against dismissal and limited-term employment contracts. For the first time, there will be a standard statutory claim to a severance payment (under certain circumstances) in the case of dismissals for operational reasons (redundancies).
No Stock Options for Supervisory Board Members of a German Stock Corporation: A Comment on In re Mobilcom AG, BGH II ZR 316/02 of 16 February 2004
Authors: Reidenbach Dirk
Published: March 2019

On February 16th, 2004 the German Federal Court of Justice (Bundesgerichtshof, BGH) delivered a judgment concerning stock options for members of the supervisory board of Mobilcom AG, a major German telecommunications company organized as a stock corporation. As is well known, German stock corporations have a two-tier board, consisting of the management board and the supervisory board. This decision by the BGH sheds again a new light on the much discussed and much disputed management structure of German stock corporations. After this decision, there are now only limited ways in which members of the supervisory board may be compensated with stock options, if at all. In the near future, even these possibilities might be foreclosed by new regulation. The following comment will give a brief overview of the case, the reasoning of the Court, the law as it stands, and finally the law as it might become.
AALS Panel – Mexico v. U.S.A. (Avena) – Arguments of Mexico
Authors: Amirfar Catherine M.
Published: March 2019

I have had the privilege of serving as part of the team from Debevoise & Plimpton LLP headed by Donald Francis Donovan.1 The Debevoise team worked in close collaboration with the Director of the Mexican Capital Legal Assistance Program, Sandra L. Babcock, and Mexican Ambassador Juan Manuel Gámez-Robledo and his foreign ministry staff to represent Mexico before the International Court of Justice.
USA Patriot Act
Authors: Dinh Viet D.
Published: March 2019

On January 20, 2004, during the State of the Union address, President Bush called for key sections of the USA Patriot Act to be renewed by Congress in 2005. When the president mentioned that provisions of the Patriot Act would expire at the end of 2005, there was applause from some Democrats. Then, when he called on Congress to extend the life of the Patriot Act, Republicans clapped enthusiastically.
Terror and Law – Is the German Legal System able to deal with Terrorism? – The Bundesgerichtshof (Federal Court of Justice) decision in the case against El Motassadeq -
Authors: Safferling Christoph J.M.
Published: March 2019

Germany was the first country to open trial against a person who has allegedly participated in the 9/11 terror attack in the US. Shortly after September 2001 intelligence services in- and outside Germany concentrated on Hamburg as one of the places where the pilots and their supporters planned the attack. The Maroccan national Mounir El Motassadeq was the first who was arrested and charged by the General Federal Prosecutor with (1) abbeting murder in 3066 cases and (2) with being a member of a terrorist organisation . The trial took place before the Oberlandesgericht (Upper Regional Court – OLG) in Hamburg, where the accused resided at that time. He was sentenced by this Court in first instance to 15 years imprisonment – the first conviction for the 9/11 attack. The accused nevertheless appealed to the Bundesgerichtshof – BGH, Federal Court of Justice, and his conviction was quashed and a re-trial ordered at the Court in Hamburg. In reaction to the BGH's decision Motassadeq was released from detention pending trial on 8 April 2004. The accused now awaits his re-trial on conditional bail.
Terror, Sovereignty and Law: On the Politics of Violence
Authors: Newman Saul
Published: March 2019

This paper examines the ambiguous relationship between violence, law, and sovereignty in the context of terrorism today. It focuses, not on normative questions about terrorist violence, but on its structural relationship to law and the sovereign state. Part of the difficulty in theorising terrorism is its heterogeneous and indeterminate nature. For instance, if terrorism is to be characterised by a form of violence designed to inspire fear, then one can of course speak equally about state terrorism as one can about non-state terrorism. Indeed, one might recall that the very word terrorism derives fromLa Terreurof the post-revolutionary French Republic in the early 1790's. Saint-Just's words stand out as one of the most infamous justifications of state terrorism: “What do you want, you who do not want virtue in order to be happy? What do you want, you who do not want the Terror to be used against the wicked?” That the highest ideals of the Republic were accompanied, and indeed inscribed, through a systematic, yet often indiscriminate, register of violence – that Republican virtue came to be associated with the willingness to be merciless – is more than just a vicissitude of history. It speaks perhaps to the very nature of political discourse itself, unmasking the violence implicit in every political symbolisation, at the base of every law, no matter how democratic.
Constitutional Drift: Toward the End of Federal Shop-Closing (Ladenschluss) Regulation
Authors: Smith Craig T.
Published: March 2019

Germany's Federal Constitutional Court held on June 9, 2004, that the weekend and holiday closing requirements of the federal Shop-Closing Act (Ladenschlussgesetz) are compatible with the Basic Law. At the same time, however, the Court's decision in thisWeekend Shop-Closing Casesituated the Act's Saturday closing requirement – and by implication its weekday closing requirements too – perilously close to the brink of unconstitutionality.
Executives’ Liability for Incorrect Ad Hoc Announcements – A Comment on the Decision of the German Federal Court of Justice (BGH) in In re Infomatec AG, BGH II ZR 217/03, 218/03 and 402/02 of 19 July 2004
Authors: Reidenbach Dirk
Published: March 2019

From March 1997 until 5 June 2003, the Frankfurt Stock Exchange (Frankfurter Wertpapierbörse, FWB) maintained the “Neuer Markt“ as a segment of the over-the-counter-market for new economy/technology companies. The 50 “biggest” companies were admitted to the Neuer Markt Index (NEMAX50®) of Deutsche Börse AG, which is now only formally being continued, after termination of the Neuer Markt, until the end of 2004, and is already succeeded by the smaller TecDAX30®. Initially a success after rising some 500% from March 1997 to mid 2000, the Index dropped from over 9000 points to below 1000 points in March 2002, a loss of 90% or 200 billion Euros. The reasons for this development are manifold and not primarily to be found in the illegal behavior of the issuers or their officials. Still, legal proceedings concerning companies like Meta@box, EM.TV, Comroad, Biodata and Refugium uncovered that in many cases wrongful acts did occur, especially in the form of incorrect balance sheets and wrong or even fraudulent communication to the market. The three parallel cases the German Federal Court of Justice (Bundesgerichtshof, BGH) had to consider, concerned one of these failing – and now insolvent -companies, Infomatec AG. In criminal proceedings the two executives (CEO and his deputy) of this company against whom the civil lawsuits had been filed, were convicted of insider trading and market manipulation. One criminal case is still on appeal. The findings of the criminal proceedings, however, were not relevant to the civil proceedings.
Ideas, Institutions and the Exhaustion ofModell Deutschland?
Authors: Allen Christopher S.
Published: March 2019

[Editors’ Note: This is the fourth consecutive article published in German Law Journal since July 2004 that is dedicated to the ongoing debate over the fate and prospects of the German model of Capitalism, welfare policy and corporate governance. The 22 July 2004 acquittals of all six defendants in the criminal proceedings against former Mannesmann CEO, Klaus Esser; Deutsche Bank's CEO (Vorstandssprecher) and then Member of Mannesmann's supervisory board, Josef Ackermann, and other members of Mannesmann's Supervisory Board have, once more, highlighted to German, European and International observers the particular features of law and politics in “Germany Inc.”, “Rhenish Capitalism”, or “Rhineland Capitalism”. As begun in the aftermath of Josef Ackermann's inthronization at the head of Deutsche Bank in May 2002 (exactly two years and two months before his acquittal before theLandgerichtDüsseldorf) and Ackermann's subsequent transformation of the Board's control structure,German Law Journalhas published several contributions to the ongoing changes in German corporate governance and its embeddedness within the specific German economic and legal system (seehttp://www.germanlawjournal.com/article.php?id=156). In the Journals July issue, Peter Kolla, a law student of Osgoode Hall Law School of York University in Toronto, meticulously traced the background debates to the closely observed criminal proceedings in the Mannesmann aftermath (http://www.germanlawjournal.com/article.php?id=460), and in our August issue, Jürgen Hoffmann, Professor of Sociology in Hamburg, surveyed the current interdisciplinary debate over the future fate of so-called Rhineland Capitalism and reconstructed Germany's recent history in an international context of globalization and privatisation (http://www.germanlawjournal.com/article.php?id=485). Also in the August issue, Max Rolshoven, writing his Ph.D. in law at the University of Münster, offered a first assessment of the acquittals in the Mannesmann case (http://www.germanlawjournal.com/article.php?id=480). In the article, published here, Professor Christopher Allen of the University of Georgia further deepens this inquiry from an economic point of view, while placing the contemporary debate over the possible end of Rhineland capitalism in the historical context of Germany's development in the 20th Century. The Editors ofGerman Law Journalare very pleased and honored to be able to provide for a further forum for this important debate, bringing together lawyers, economists, political scientists and sociologists, for a much needed exploration of the historical and political origins as well as of the legal framework of Germany's much critizised and, at the same time, ardently praised system of corporate governance and industrial relations. We invite our readers to contribute to this debate, which has so far found too little resonance in Germany itself.The Editors.]
The Role of the Judiciary in Germany
Authors: Böttcher Hans-Ernst
Published: March 2019

In 1971, upon the conclusion of my university studies and my first state examination, and before sitting for my second (final) state examination, I commenced my practical training as a so-called Referendar at the Amtsgericht (local district court) in Gettorf, near Kiel. It was a very small court, employing only one judge who was responsible in this position for all legal cases. In addition, a total of approximately 20 other employees were working there. The court had no electric typewriter, and no copying machine. When a copy had to be made, the document was literally transcribed in the true sense of the word. Later, after my second and final state examination, I started my services as a judge at the Landgericht (regional court) in Bremen, a court with approximately 60 judges and a total of approximately 200 employees. It was not a matter of course that each judge had a telephone of his/her own. Moreover, connections to the outside world were frequently only possible through the general telephone exchange. One office had to be shared by several judges. Dictating machines were available, but not taken for granted. On the contrary, as a rule it was the usual practice for a clerk to take the minutes—even in cases for which the Code of Procedure did not specifically require this.
The Decision of theBundesverfassungsgerichtof March 3, 2004 Concerning Acoustic Surveillance of Housing Space
Authors: Stender-Vorwachs Jutta
Published: March 2019

On March 3, 2004, theBundesverfassungsgericht(German Federal Constitutional Court) decided that the regulations in theStrafprozessordnung(StPO – Code of Criminal Procedure) concerning acoustic surveillance of housing space (the so called “Großer Lauschangriff“) partly violate theGrundgesetz(GG – German Constitution or Basic Law). Article 13.3 of the Basic Law itself, which in 1998 integrated the right to acoustic surveillance of housing for reason of prosecution into the Basic Law, was nonetheless found to be constitutional. In the following comment, the legal status, the political background of the constitutional change in 1998 and the essential content of the Court's decision shall be examined in detail.
Derrida's Influence on Philosophy … And On My Work
Authors: Critchley Simon
Published: March 2019

A vital measure of the influence of a thinker on a discipline is the extent to which they transform its customs, protocols and practices in a way that makes it difficult to conceive how things were done before they appeared on the scene. Such transformations are usually simply incorporated into the discipline and presupposed by those who come after. This is why we often have a thankless relation to the most influential thinkers – because their innovations are now the way in which we are accustomed to see and do things. Definitionally then, great thinkers are often those who change the way we do things in a peculiarly thankless way. Jacques Derrida was a great thinker. He exerted a massive influence over a whole generation of people working in philosophy. His death is an unfathomable loss. In what follows I would like to thank him for what he enabled people like me to presuppose thanklessly in our practice.
Derrida and Foucault On Sovereignty
Authors: Balke Friedrich
Published: March 2019

In his final publication Derrida argues for a rather wide notion of the concept of sovereignty. Sovereigns are not only public officers and dignitaries, or those who invest them with sovereign power – we all are sovereigns, without exception, insofar the sovereign function is nothing but the rationale of all metaphysics, anchored in a certain capability, in the ability to do something, in a power or potency that transfers and realizes itself, that shows itself in possession, property, the power or authority of the master, be it the master of the house or in the city or state,despot, be it the master over himself, and thus master over his passions which have to be mastered just like the many-headed mass in the political arena. Derrida thinks the sovereign with Aristotle: theprima causa, the unmoved mover. It has been often remarked that philosophy here openly reveals itself as political theology. Derrida thus refers to the famous lines of theIliad, where Ulysses warns of the sovereignty of the many: “it is not well that there should be many masters; one man must be supreme – one king to whom the son of scheming Saturn has given the scepter of sovereignty over you all.”
Specters and Scholars: Derrida and the Tragedy of Political Thought
Authors: Thurschwell Adam
Published: March 2019

“To be or not to be?” – in a sense that has always been the question of ethics, of the life worth living, and philosophy would be the search for the answer to that question. In this essay I would like to propose an alternative formulation and interpret it, rather grotesquely (Shakespeare I'm not), as the following: “To ontologize the ethical or not to ontologize the ethical: that is the question of politics.” Ultimately, I would like to suggest that this is a question that must but cannot be answered, or at least answered by philosophy, by a philosophy that retains the ideal of an “answer” that conforms to the form of knowledge. The vehicle for this exposition will be several texts by Jacques Derrida (primarily “Force of Law: The ‘Mystical Foundation of Authority'” andSpecters of Marx). My hope is that this discussion will ultimately justify (or at least excuse) my grotesque paraphrase of Hamlet as well as my rather pretentious subtitle.
Moving Away From Moving Away: A Conversation About Jacques Derrida and Legal Scholarship
Authors: Amaya-Castro Juan M. , Menyawi Hassan El
Published: March 2019

[Editorial Comment: This engaging dialogue between the two authors is a selection from a much larger piece including a wider exploration of Derrida's intellectual context and his current interlocutors in law and the social sciences in general. The editors of this Special Section hope to publish further parts of this conversation in a subequent issue ofGerman Law Journal.]
Conference Report - Legal Unity Through Specialized Courts on a European Level?
Authors: Kirchner Stefan
Published: March 2019

After last year's successful Academia Juris Internationalis workshop on local products, Prof. Dr. Thilo Marauhn and Dr. Sebastian Heselhaus (Academia Juris Internationalis Franz von Liszt, Faculty of Law, Justus-Liebig-University, Giessen) organized the second Jean Monnet – Workshop in the Senate Hall of the Main Building of Justus-Liebig-University in Giessen, Germany, on 2 July 2004.
Introduction to the Special Issue: Confronting Memories: European “Bitter Experiences” and the Constitutionalization Process: Constructing Europe in the Shadow of its Pasts
Authors: Joerges Christian
Published: March 2019

The contributions to this Special Issue of the German Law Journal originate from a meeting in July 2004 at the European University Institute, which was convened following a disappointing experience. The participants – lawyers, historians, political scientists – had co-operated intensively in the preparation of a project on “The Shadows of the Past(s) over the Construction of Europe” which they had submitted to the Volkswagen Stiftung. Although the foundation acknowledged the core aspirations and importance of its individual components, our application was, however, criticized for its overly broad scope and alleged lack of coherence. Should we, however, retain our loose multi-disciplinary, multi-issue and multi-national exploratory approach? Or, should we instead seek to tighten up the whole enterprise and explain what form of common result we would like to deliver? What was planned as a debate on these alternatives developed into enormously interesting, sometimes breath-taking discussions. At the end, we felt that we were able to articulate what we had more intuitively sought for, namely, a formula that would link our concern about European past(s) with our concern for Europe's present and future.
Constitutional Erinnerungsarbeit: Ambivalence and Translation
Authors: Somek Alexander
Published: March 2019

Contributions dealing with the European constitution have abounded over the last few years. Now that the amended Draft of the Constitutional Treaty has been adopted by the European Council, they are likely to burgeon even more. For scholars working in the field, this creates a paradoxical situation. Why write another piece on Europe's constitutionalization — even if it be with the unmovable confidence that it is necessary to rescue the existing debate from impending debilitation? Under current circumstances, any paper on the issue is doomed to be buried among countless other like-minded interventions.
Memory, Politics and Law – The Eichmann Trial: Hannah Arendt's View on the Jerusalem Court's Competence
Authors: Mertens Thomas
Published: March 2019

When the true scale of what would later be called ‘crimes against humanity', ‘genocide’ and, specifically, ‘the Holocaust’ became clear in the aftermath of the Second World War, a number of questions were raised. First, is this a new type of crime, in which evil manifests itself in a radically different way than it had earlier? Some disputed this. Evil exists at all times and it has always confronted people with an abyss of atrocities. With Rawls, one might then say that every ‘great evil’ is sufficient in itself and that making comparisons is not necessary, even if the Holocaust cannot be detached from earlier ravages of evil such as the Inquisition and antisemitism. Others thought this question ought to be answered positively. Adorno and Levinas formulated their philosophies in part as a response to the unique character of the Holocaust. Even now, more than a half a century later, the events associated with the Holocaust form a rich source for public debate, scientific inquiry and literary expression. Secondly, the question has been raised as to how one is to cope with this modern form of political evil and with a new type of criminal offender. Some argued in favour of the familiar recourse to politics and international law. Specifically, political crimes ought either to be dealt with politically or to be considered in the light of the principle of international law: par in parem non habet jurisdictionem. So, ordinary criminal law is not applicable where the mutual conduct of states is concerned. Others, however, including the Allied governments in the period immediately following the termination of hostilities, argued that these crimes were such that punishment would be inevitable. This might give rise to legal problems, but these crimes ought to be dealt with to the extent possible by means of ordinary criminal procedure.
The Decision of the Bundesverfassungsgericht of April 12, 2005 – Concerning Police Use of Global Position Systems as a Surveillance Tool
Authors: Jacoby Nicole
Published: March 2019

On April 12, 2005, the Bundesverfassunsgreicht (German Federal Constitutional Court) ruled that regulations in the Strafprozessordnung (StPO – Code of Criminal Procedure) concerning police use of global positioning systems (GPS) did not violate the Grundgesetz (GG – German Constitution or Basic Law) so long as the investigators did not use the technology in conjunction with other surveillance methods that could lead to the construction of a personality profile of the suspect observed. The following comment examines the facts of the case and evaluates the Court's decision in detail.
Looking Beyond the National Constitution – The Growing Role of Contemporary International Constitutional Law. Reflections on the First Vienna Workshop on International Constitutional Law
Authors: Bauer Anna-Verena , Mikulaschek Christoph
Published: March 2019

In a world of societies ever more closely interrelating to each other, lawyers face the challenge of crossing the borders of their national legal system and looking beyond its fundamental source of identity – the constitution. Having this thought in mind, Harald Eberhard, Konrad Lachmayer and Gerhard Thallinger organized the First Vienna Workshop on International Constitutional Law held on 20 and 21 May 2005, bringing together members of the academic community, legal officers in International Organizations and law students. The Workshop offered eight lectures and fruitful discussions on the comparative analysis of constitutional law thus providing a new impetus to a field of law of steadily growing importance to which, so far, too little attention has been given.
“A Community of History”: A Problematic Concept and its Usage in Constitutional Law and Community Law
Authors: Hanschmann Felix
Published: March 2019

A prevalent assumption in German Constitutional Law and Community Law reads as follows: »If Europe wants to have a future it needs to become a community of history«. But there is a snag in it: Just as it is difficult, if not impossible, to identify national communities of history, it is unlikely thatoneEuropean community of history will emerge.
Search Engines as Gatekeepers of Public Communication: Analysis of the German framework applicable to internet search engines including media law and anti trust law
Authors: Schulz Wolfgang , Held Thorsten , Laudien Arne
Published: March 2019

Several fundamental questions concerning internet law come to a head over search engines. There are trademark cases, issues about the protection of minors and questions of liability. However, as far as we know, the fundamental role that search engines play in public communication based on the World Wide Web has not yet been subjected to any legal analysis. This seems to leave a significant gap in our knowledge, given the fact that the market for search engines tends to be monopolistic.
Constitutionalization of the Common Foreign and Security Policy of the European Union: Implications of the Constitutional Treaty
Authors: Karolewski Ireneusz Pawel
Published: March 2019

Many scholars of European integration have treated the Common Foreign and Security Policy (CFSP) as a specific area of the EU. This is due to the fact that CFSP, and before it the European Political Cooperation (which was a nucleus of CFSP), have remained primarily an intergovernmental framework, although other EC pillars evolved to a much higher supranational degree over the years. For some theorists of European integration it was a clear sign that foreign and security policy would always remain the realm of national governments, which occasionally were willing to coordinate their national interests. According to the old dictum of Stanley Hoffmann, this area of state activity belongs to so-called “high politics,” meaning that advanced integration in this field, in the sense of a creation of supranational institutions, will never materialize. This train of thought, called neo-realism in the discipline of International Relations, regards foreign policy as a highly controversial area guarded by national governments. This is so because foreign policy is essential to the survival of states and their citizens.
Fundamental Rights Concerning Biomedicine in the Constitutional Treaty and their Effect on the Diverse Legal Systems of Member States
Authors: Krajewska Atina
Published: March 2019

The Constitutional Treaty was thought to address the new challenges occurring in front of the enlarged Europe in relation to the rapidly changing international political, economic, social and cultural circumstances. In this respect, the problem of the new quality of the European Union is being repeatedly disputed. If the EU is to be something more than an arrangement for inter-state cooperation, the Union has to be able to act rationally on a collective basis, in a way that different interests or preferences will give priority to seeking agreement over self-interest maximization. The question of whether the EU envisaged in the Constitutional Treaty represents a deeper form of integration can be answered by examining its ability to achieve consensus on conflicting issues and to form a common will about how to solve common problems. The field in which the most controversies arise nowadays is that of biotechnology and biomedicine.
Remarks on Art. I-52 of the Constitutional Treaty: New Aspects of the European Ecclesiastical Law?
Authors: Rynkowski Michał
Published: March 2019

The question of churches and religious communities in the EU/EC law arose for the first time in 1997, when Declaration No. 11 on the status of churches and non-confessional organisations was attached to the Amsterdam Treaty. According to this Declaration, “The European Union will respect and does not prejudice the status under national law of churches and religious associations or communities in the Member States. The European Union will equally respect the status of philosophical and non-confessional organisations.” The content of this Declaration was commented on many times by distinguished experts of the European ecclesiastical law. Art. I-52 of the Treaty establishing a Constitution for Europe (Constitutional Treaty/CT) repeats in paragraph one and two Declaration No. 11, and introduces in paragraph three a provision on dialogue between the EU and religious bodies: “Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations.”
Observations on the Right to Withdraw from the European Union: Who are the “Masters of the Treaties”?
Authors: Herbst Jochen
Published: March 2019

Discussing the withdrawal provision pursuant to Article I-60 of the Constitutional Treaty (CT), also referred to as the sunset clause, in the morning light of the establishment of a European Constitution is pretty much like talking about divorce on your wedding day. Before I try to start analyzing the text of this new provision, I will briefly outline the status of the legal debate on the right of withdrawal from the current EU/EC Treaty. In this context, I would like to highlight three aspects by making one political and two legal observations.
The Desire for Public Safety and How “Judge Merciless” Became a State Senator
Authors: Schmidt Lars
Published: March 2019

11 September 2001 had many effects on many spheres of our lives. One of these effects was used to great personal effect by Ronald Barnabas Schill, a criminal law judge at the Hamburg Landgericht (Regional Court). In July, 2000, he founded an eponymous political party, the “Schill-Partei,” to run for the Senate of Bundesland (Federal State) Hamburg in the elections of 23 September 2001. His party, essentially, has a one -issue platform: public safety. Having the highest crime rate of all German cities, this topic is very important in Hamburg. Schill's party fills a gap in the political market in Hamburg and polled 10% in surveys leading up to the September election. Certainly, some of these votes can be accounted for as protest votes, aiming more for political change in the city-state's politics than serving as a ringing endorsement of Schill. Schill seems to have especially benefited from the events of 11 September. Schill, well known as “Judge Merciless,” was able to hit the nerves of the voters by playing on their fear and the shock, particularly spinning the fact that two of the terrorists had lived in Hamburg. The nickname “Judge merciless” had been created by the press because of Schill's rigorous execution of the law and his often outlandish behavior towards the accused and spectators at his trials over which he presided. He is identified with “law and order” or zero tolerance politics Schill focused the last weeks of his campaign on claims that their city had become a nest of terrorism; now more than ever, offering his strict brand of politics emphasizing public safety as the answer. This campaign strategy seems to have been successful, increasing Schill's vote in the election to 20% and guaranteeing that his party a share in the new government along with the State Senator of the Interior position for Schill. In spite of this success, Schill was recently indicted for the crime of perversion of justice pursuant to § 339 Strafgesetzbuch (StGB — German Criminal Code).
Essay: The Integrative Function of a European Constitution (Discussion of Chr. Dorau:Die Verfassungsfrage der Europäischen Union)
Authors: Murkens Jo Eric
Published: March 2019

Why did the European Union (EU) leaders at the Laeken summit in December 2001 agree to a constitutional convention headed by the former French President Valéry Giscard D'Estaing to design a constitution for the EU when, according to the European Court of Justice (ECJ), the German Federal Constitutional Court, and many academic commentators, the founding treaties already form a constitution?
Grand Chamber of the European Court of Human Rights Finds Yugoslavian Bombing Victims’ Application Against NATO Member States Inadmissible
Authors: Schorkopf Frank
Published: March 2019

On 12 December 2001, the Grand Chamber of the European Court of Human Rights unanimously found the case Bankovic et al. vs. 17 NATO and ECHR- Member States (NATO Bombing Case) inadmissible.
A Comparison of Civil Liability for Defective Products in the United Kingdom and Germany
Authors: Best Richard
Published: March 2019

The Product Liability Directive of 1985 (85/374/EEC) (“the Directive”), which sought to harmonise a strict liability regime for defective products across the European Union, has now been implemented into domestic law by all EU member states. In some countries the implementing legislation has been in force for more than 10 years. Nevertheless, until recently, there were few decided cases, both in the United Kingdom and across Europe generally, considering in detail the often critical provisions of articles 6 (definition of defectiveness) and 7(e) (the development risks defence).
Kicking the ball into the Member States’ field: the Court's response to Jégo-Quéré (Case C-50/00 P Unión de Pequeños Agricultores, Judgment of 25 July 2002)
Authors: Hanf Dominik
Published: March 2019

On 25 July 2002, the Court rejected the proposals of AG Jacobs and the CFI to reconsider its traditional case law on private applicants’ standing to challenge generally applicable EC acts according to Article 230 para. 4 EC. This rejection hardly came as a surprise. However, the Court's motivation for the ‘restauration’ of its traditional approach is interesting. In substance, the Court held that the Member States are responsible for both the existence and the elimination of lacunae in the EC system of judicial remedies.
The culture of constitution-making? “Listening” at the Convention on the Future of Europe
Authors: Scott Jesse
Published: March 2019

Established in the wake of the Nice Treaty debacle by the December 2001 European Council Laeken Summit, the Convention on the future of Europe is a radical political experiment. The Convention has been meeting in Brussels under the chairmanship of ex-heads of state Valéry Giscard d'Estaing, Giuliano Amato and Jean-Luc Dehaene since February this year. It combines a novel political formula with an immense open-ended remit. Its 105 members represent the governments and parliaments of the EU15 and of the 13 candidate accession states, and the European Parliament. For the first time national parliaments and the European Parliament are sitting jointly with governments. This is also the first occasion on which the accession states have participated as equals in the EU (technically they are non-voting, but consensus is the aim). The Convention takes its mandate from the Laeken Declaration, which proclaims that “the Union stands at a cross-roads.” The complexity, juxtaposition and inter-relation of the questions which the Declaration raises, and the urgent historic decisions which accompany these – as well as explicit expectations from many quarters – earn the Convention the label ‘constitutional'. Media and academic comment alike favour comparisons with the 1787 Philadelphia constitutional convention – neither a recent nor a local precedent (but one with obvious additional appeal for the Euro-federalist tendency). A more empirical reference is the Convention that drafted the European Charter of Fundamental Rights. For a recent survey of the Convention's progress see The Economist.
What judicial treatment for the Guantanamo detainees?
Authors: Vierucci Luisa
Published: March 2019

The White House statement of February 7, 2002, according to which the Taliban and Al-Qaeda members detained in Camp X-Ray in Guantanamo Bay following the September 11, 2001, events had no right to prisoner of war (POW) status but were merely ‘unlawful combatants’ had broad repercussions in the public opinion as well as among legal scholars. The debate focused on the legal status and treatment of the persons held in Guantanamo Bay mainly in light of the Third Geneva Convention of 1949 relative to the Treatment of Prisoners of War. Comparatively little attention has been paid to the treatment due to the detainees in light of the Military Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism issued by the US President on November 13, 2001 (Military Order). Also the treatment to which the detainees are entitled by virtue of the Fourth Geneva Convention of 1949 relative to the Protection of Civilians in Time of War has been largely overlooked. This brief paper intends to contribute to remedying such lacunae but will be limited to an analysis of the provisions of the 1949 Geneva Conventions in light of the events of September 11th without reference to previous practice.
Child Protection in Europe: Different Systems – Common Challenges
Authors: Schweppe Katja
Published: March 2019

Child protection practice has undergone major changes in the last decades. While traditionally welfare institutions as well as the law itself were mainly concerned with orphans and children of unmarried mothers, nowadays the practice focuses on children in need of protection because they have been neglected or abused by their parents. And yet, child protection measures have not been the focus of research, discussion and reform like other areas of the law concerned with children, for example parental custody after divorce. Recent reforms – or plans for reform – in some continental European states are not to be expected to bring substantive changes.
The Megalomania of a Political Party: The FDP Loses before the Federal Constitutional Court and then Loses the Election
Authors: Taylor Meredith Anne
Published: March 2019

During Germany's recent general elections the Freien Demokratischen Partei (Free Democratic Party – FDP) sought to position itself as the focal point of the heated political race between the Christian Democratic Union / Christian Social Union (CDU/CSU), led by Bavarian Governor Edmund Stoiber, and the Social Democratic Party of Germany (SPD), led by incumbent Chancellor Gerhard Schroeder. By staking out the ideological middle ground and employing a well-packaged campaign, the FDP hoped to assure itself the role of coalition partner in any government formed after the September 22nd general election. The FDP, in a first for one of the smaller political parties, ran its photogenic Chairman, Guido Westerwelle, as an independent candidate for Chancellor. The party also set for itself the goal of obtaining 18% of the popular vote (a target nearly triple its performance in the 1998 general election), making “18/2002” the party's campaign slogan. Had the FDP succeeded in obtaining only 9% of the popular vote (half its goal), it would have indeed played the controlling role in post-election negotiations over a coalition government. As it turned out, however, the FDP stumbled through debilitating controversy up to the last minute of the election and ended with a mere 7.4 percent of the vote. Incumbent Chancellor Gerhard Schroeder was able to turn to the Green Party (which charged to a surprising 8.6% of the vote), his coalition partner of the last four years, to break his party's deadlock with the CDU/CSU and remain in power.
Corporate Governance and the Role of Investment Funds
Authors: Seibert Ulrich
Published: March 2019

Since the mid-90\'s Germany has seen a whole range of laws on corporate governance: first and foremost the KonTraG, i.e. the law on control and transparency, followed by the NaStraG, i.e. the law on registered shares and the facilitating of proxy voting, then, more recently, the TransPuG, i.e. the law on transparency and disclosure, and - finally - the German Corporate Governance Codex issued by the Cromme Commission – and there is probably more to come during the next legislative period. What are the reasons for this striking increase in activity? What are the driving forces and is there a master plan behind these efforts?
The Adoption of the Schengen and the Justice and Home Affairs Acquis: Two Stumbling Blocks on the Way to Successful Enlargement?
Authors: Borissova Lora
Published: March 2019

The crucial importance of European Union's (EU) enlargement process to Central and Eastern European Countries (CEECs) from a political, economic, social, and geo-strategic perspective inspired much debate over the last decade. Our objective in the current study is to demonstrate the enforcement of two categories of interdependent legal provisions (Title IV and the Schengen acquis) by the applicant countries in the process of their accession to the EU. The analysis comprehends the latest Commission Strategy Paper and Regular Reports on the progress towards accession by each of the candidate countries, issued on 9th October 2002 and the results of the last Justice and Home Affairs (JHA) Council.
The Treatment of Hate Speech in German Constitutional Law (Part I)
Authors: Brugger Winfried
Published: March 2019

[Editors’ Note: Prof. Brugger's article will appear in German Law Journal in two parts, the first in this month's issue and the second in Vol. 4, No. 1 (1 January 2003). The article originally appeared in Stocktaking in German Public Law 117 (Bullinger and Starck eds., 2002). It is republished here with the kind permission of NOMOS Verlag, Baden-Baden.]
Corporate Governance in the U. S.: Post-Enron
Authors: Kenny Patrick
Published: March 2019

[Editors’ Comment: The following is the text of Mr. Kenny's remarks at the Second European Corporate Governance Conference, which was organized by the Vlerick Management Institute and the University of Gent, Belgium, and held at the Belgian National Bank, Brussels, 28 & 29 November 2002. The conference, which was convened by Professor Lutgart Van den Berghe of the University of Gent, was dedicated to the intensive debate over the marks and characteristics of “European Capitalism” in light of the international corporate governance debate, which has been affected by the recent earthquakes in the confidence of investors, shareholders and stakeholders precipitated by the corporate scandals of Enron, Worldcom, Global Crossing and others. The conference also took note of the impact of America's new Sarbanes-Oxley legislation, which seeks to respond to the wave of corporate scandals, on the international corporate governance debate.
Federalism Revisited: Constitutional Court Strikes Down New Immigration Act For Formal Reasons
Authors: Arndt Nina , Nickel Rainer
Published: March 2019

On 18 December 2002, one of the major legislative projects of the Schröder Government during its first term of office from 1998 to 2002 failed when the Federal Constitutional Court delivered its judgement in the Immigration Act case. In a split decision, the Court declared the new Immigration Act, the “Gesetz zur Steuerung und Begrenzung der Zuwanderung“ (Act on the Management and Limitation of Immigration) void for formal reasons: It found that the Act did not receive a valid majority vote in theBundesrat, the chamber of the 16 German states (Länder) that form the Republic. The Court did not have to deal with any questions related to the content of the Act. It discussed only the constitutionality of the legislative procedure.
AALS Annual Convention Plenary Panel: Impact of Globalization on Human Rights – Globalization and the Democratic Entitlement
Authors: Farer Dean Tom
Published: March 2019

Each of us was asked to approach the theme of globalization and human rights from a distinct perspective. I chose democracy, which is both an enumerated right and a means to the realization of other rights, because it leads ineluctably to some of the thorniest ethical and conceptual issues that engage or ought to engage morally alert people.
Understanding Director & Officer Liability in Germany For Dissemination of False Information: Perspectives From An Outsider
Authors: Ryan Patrick S.
Published: March 2019

This essay deals with the topic of director & officer liability for the dissemination of false information in Germany in the form of ad-hoc disclosures. From the perspective of an American trained attorney, it is surprising to note that there is, to date, very little – quite possibly zero – real personal civil liability in this area for directors & officers of publicly traded companies, however limited criminal sanctions do exist. The essay discusses the lawmaking which is underway in Germany to increase civil liability. After a review of the laws which govern the dissemination of false information, the essay reviews five German cases: Infomatec, EM.TV, Metabox, Comroad and Deutsche Telekom as examples of cases where criminal sanctions for management appear to be much more likely than civil liability.
Protection of Juveniles in Germany – A Report on the New Legislation
Authors: Liesching Marc , Safferling Christoph J.M.
Published: March 2019

In April, 2002, a 19 year-old pupil ran amok in a high school in Erfurt, killing several teachers and fellow pupils. The young man was reported to have played computer games, in particular games known as “ego-shooter,” quite excessively. These tragic events fueled the plans of the German government and the Federal states to reform the law for the protection of children and young persons. The legislative machinery issued new legislation at a rather impressive pace. Only one year after the tragedy in Erfurt, on 1 April 2003, two major legal documents entered into force: the Jugendschutzgesetz (JuSchG – Juvenile Protection Act) of the Federal government and the Jugendmedienschutz-Staatsvertrag (JMStV – Agreement of the German Federal States regarding the Protection of Human Dignity and Juveniles in Radio and Televised Media). This complicated two-fold structure stems from the federal nature of the German state where the competence to legislate is divided between the Federal Government and the individual Laender (Federal States). The latter, in order to achieve uniformity among themselves and reaching the breadth of the Germany territory, must cooperate and legislate in the form of an interstate agreement. The JuSchG regulates mainly the protection of juveniles in the public and limits the distribution of items, which have been determined to be dangerous, like printed material, videos, DVDs or CD-Roms. In contrast thereto the JMStV pertains to the protection of juveniles in the radio broadcasting industry and in the so called “Telemedia,” in particular the internet. In the following, we will give a short overview of the developments wrought by these new laws.