bluuebunny/crossref_metadata_2025 huggingface dataset:
Homage an das Deutsche Recht
Authors: Markesinis Basil S.
Published: April 2022

'An Homage to German Law'. English legal historians sometimes claim that English law has developed 'in splendid isolation' from the rest of Europe. Modern English contract lawyers often fail to stress the historical links that English law developed in the 19th century with Roman, French and, especially, German law. Among contemporary lawyers, academic and practising, there exists a wide spread misinformation about contemporary European law - private as well as public. This brief essay attempts to redress the balance by arguing that English contract law owes a great intellectual debt to German thought. In its second part, which the author hopes to expand one day into an independent piece, the question is asked why are some modern English scholars, unlike their nineteenth century counterparts, so determined to underplay these links? Is it because they believe that German law no longer has anything to offer to the English? Or is it because the English, in their current state of weakened self-confidence, are reluctant to concede to their economic 'competitors' even the slightest point of scholarly superiority? Whatever the reasons, in the author's view, understanding the many fruitful links that once existed between the two systems can only help the process of greater co-operation and, even legal harmonisation in Europe which he has always favoured.
Modernised Industrial Relations: A Condition for European Employment Growth. A Dutch View
Authors: Borstlap Hans
Published: April 2022

With the advent of the Economic and Monetary Union (EMU), European integration is entering an important new phase. In the social area as well, Europe faces the challenge of a drive towards innovation. The essential ingredients of this are, firstly, a reassessment of responsibilities, as between the Member States and the Union, and between public institutions and private organisations. Secondly, the formulation of common interests and priorities, and the application of new instruments of policy coordination. Lastly, and also of vital importance, is the development of new forms of cooperation with and between the social partners, both in the Member States and at the European level.
The European Monetary Union and Industrial Relations
Authors: Biagi Marco
Published: April 2022

Despite its very recent introduction, the social and political impact of the European Monetary Union (EMU) can already be felt throughout the entire European Community. Indeed, many academics concur that the intensification of the economic integration brought about by EMU will accelerate the already evident process of structural economic change in the Member States, and undoubtedly strengthen their competitive position thanks to common employment strategies. Furthermore, it has been noted that the single currency has also served to encourage trade unions to communicate more amongst themselves to try to achieve more cross-border co-ordination of strategies and demands in the hope of counteracting any risk of a possible downward spiral rooted in EMU.
Vers un Langage Juridique Commun en Europe?
Authors: Campana Marie-Jeanne
Published: April 2022

The relationships between law and language are so intertwined that it is legitimate to ask, with reference to the Historical School of Law, whether a single legal language is possible within a multilingual Europe. The response cannog be a simple affiramtive or negative one, as some writers rashly claim. It is complex in the same way that legal language itself is complex. It cannot be reduced to the language of legislation, but must include all elements of thelanguage, legislative and jurisprudential. As to the first of these, the problem is not to identify whether the common law and the civil law can be made compatible; it is rather to identify the level at which, in Europe, unification is possible and fate of national differences. If the idea of a European Civil Code is neither practicable nor desirable, how canunity be wrought from the present diversity. A choice must be made between unification, approximation and harmonisation. Unification takes place within the … accorded to regulations (EEC and Euratom). Its sphere of operation should not be elarged. That leaves a choice between approximation and harmonisation. The two techniques must be used as appropriate, depending on the issues involved. From this perspective, approximation should be used for the general law of contract, the main way in which legal relationships are created, building on the work that has taken place with th eframework of the Commission on European Contract Law (Lando Commission) or UNIDROIT. As to the second type of legal language, the language of case law, it is appropriate to stress the great difference between the roles of common law and civil law judges. But on a closer inspection, the difference is not unbridgeable, for judges in the civil law jurisdictions also play a fundamental role in the creation of law. A common 'interpreted law', which is already preceptible in the slow work of the European Court of Justice, will be developed more easily when a body of European jurists has emerged, educated in the many European institutions that already exists, but are not yet sufficiently numerous. No doubt this is a laborious enterprise, because it depends on changes in fundamental thought processes, but it is gradually and irreversibly moving towards the establishment of a 'legal Europe'.
Fundamental Rights and Private Acts - Horizontal Direct or Indirect Effect? — A Comment
Authors: Preedy Kara
Published: April 2022

The contribution examines the distinction between horizontal direct and indirect effect of fundamental rights. The German concept of mittelbare and unmittelbare Drittwirkung with respect to Grundrechte (basic constitutional rights) and the ECJ's approach to private threats to the free movement provisions are analysed briefly. This analysis then allows for consideration of the validity and value of the distinction. Private autonomy and the question of competencies emerge as the main issues to be considered when applying fundamental rights to private acts. It is maintained that the respect for both private autonomy and for the distribution of competencies argue against the horizontal direct effect and in favour of an indirect approach.
Directive 'Actions en Cessation en Matière de Protection des Intérêts des consommateurs'
Authors: Hoffmann Dieter
Published: April 2022

Directive 98/27/EC of 19/5/98 creates a legal instrument, unprecedented at Union level, allowing for better putting into practice various directives which have consumer protection as their object. Apart from generalising the instrument of injunction orders in order to combat, in the collective interest, infractions of consumers protection rules, it equally establishes locus standi, for entities qualified to that end, to act before all competent instances (administrative authorities and/or courts) of all Member States.
Diagonal Competence Conflicts between European Competition Law and National Regulation — A Conflict of Laws Reconstruction of the Dispute on Book Price Fixing
Authors: Schmid Christoph U.
Published: April 2022

This contribution attempts to reconstruct methodologically, with the help of conflict of laws tools, the dispute between European competition law and national cultural policy in the case of book price fixing in the German language area. On the basis of the cross-section clause for culture, which is interpreted as a renvoi to national cultural policy, a wide interpretation of the exemption in Article 81(3) EC Treaty is advocated, in order to cope with the double function of books as economic and cultural goods. Since the private price fixing scheme applied in Germany and Austria may be considered as a legitimate implementation of national cultural policy, it is submitted that the legal scrutiny under competition law should, as regards the allocation of burden of proof and the reduction of the Commission's scope for discretion, be assimilated to the doctrinal system of the basic freedoms.
Decentralised Collective Bargaining in Hungary
Authors: Neumann László
Published: April 2022

The paper argues that the wage determination system in Hungary is extremely individualised and decentralised by Western European standards. The role of collective bargaining is secondary and within its structure the effect of national and sectoral agreements is relatively weak; however, the regulatory function of company level agreements is strong, at least for a small set of companies. The Hungarian system of collective bargaining is compared to that of Great Britain, the only EU Member State that has a decentralised system of bargaining. Finally, current proposals to amend the Hungarian collective bargaining system will be reviewed.
Experiences of Tripartite Relations in Central and Eastern European Countries
Authors: Casale Giuseppe
Published: April 2022

The purpose of this comparative overview is to provide an analysis of recent trends, issues and challenges in tripartism and industrial relations in the countries of Central and Eastern Europe. One major difficulty in preparing such an overview has resulted from the great differences which exist in the various countries in the region. Changes in industrial relations which are affecting countries like Hungary, the Czech Republic, Estonia, Croatia and Poland do not seem to have much in common with each other, while problems in Albania and Bosnia and Herzegovina are quite different from those in Slovakia or in Lithuania. In spite of such differences, however, there is indeed a certain degree of comparability which makes the exchange of views and experiences within this group of Central and Eastern European countries possible and useful. In order to make such a discussion meaningful, it is necessary in this report to concentrate on certain major problems and questions. Therefore, we will present in a succinct manner the issues which are characterising tripartism and labour management relations in the region.
The Uniformity of Ownership, Numerus Clausus and the Reception of the Trust Into South African Law
Authors: de Waal Marius Johannes
Published: April 2022

It is generally accepted that the Anglo-American trust with its dichotomy of legal and equitable ownership cannot as such be received into a civil law legal system. Although South African private law is mainly civilian in nature, the trust was received into South African law and it has developed into a widely used and flexible institution. In this contribution the author explains how this reception and development took place in spite of the perceived obstacles. Particular attention is focused on the issues of uniformity of ownership and the numerus clausus principle. A brief exposition of the nature and uses of the modern South African trust is also provided.
Trusts in the Civil Law: Making Use of the Experience of ‘Mixed’ Jurisdictions
Authors: Verhagen H.L.E.
Published: April 2022

In this paper it is submitted that Dutch society would benefit from having something ‘which resembles a common law trust. Trusts have a number of advantages, efficient insolvency protection being the most important one, while sufficient tools are available in Dutch law to remedy abuses of trust. The Dutch ‘trust’ should be a ‘reinforced’ fiducia cum amico: the trust assets are legally owned by the trustee but form a separate fund which is immune against claims by the personal creditors of the trustee. The trust laws of the mixed jurisdictions could serve as a precedent for developing a Dutch ‘trust’ and so could the Principles of European Trust Law (which themselves have benefited from the experience of the mixed jurisdictions).
International Regulatory Competition and Deregulation What has Happened to the US and UK Financial Markets?
Authors: Abdelhamid Doha M.
Published: April 2022

"Comparative enquiry resembles foreign travel. Both are expensive, time consuming and bewildering. Both are best done in a spirit of parochialism. We learn about abroad by comparing foreigners with ourselves. The most rewarding comparison, like the most rewarding travel, thus consists in a continuous series of surprises—sometimes at the strangeness and sometimes at the familiarity of foreign practices"
Workers' Privacy and the Power of Employer Control in Spain
Authors: Rubert María Belén Cardona
Published: April 2022

This paper examines the connection between the privacy of workers and the power of employer control with reference to the Spanish legal system. The general aim of Constitutional principles and Statute of Worker's Right is to defend workers' privacy from intrusive or disproportional attacks on their private domain. In this perspective Spanish legislation delimits employer authority by subjecting it to two limits which cannot be avoided. The first is that employer control is restricted to ascertaining that workers fulfil their contractual obligations and duties; however this control is conditioned by the contract cannot go beyond the bounds which are directly related to the contract.

The second limit is the dignity of the worker, as stated in Article 10.1 of the Spanish Constitution, and his/her right to privacy (Articles 18 of the Constitution and 4.2 of the Statute of Workers' Rights). The Spanish legal system prevents any type of control of the employee's private life which is not connected to technical or organizational aspects of work, and any type of supervision which encroaches on the freedom of the person, at the very core of the right to privacy.
Open Heart Surgery: Reform of Labour Mediation Regime in Sweden
Authors: Fahlbeck Reinhold
Published: April 2022

Labour mediation law was reformed in Sweden in 2000. Replacing a century old regime the new regime gives the government a firmer grip on wage formation. Traditional and orderly patterns of wage formation by the social partners gradually fell apart in the last decades of the 20th century prompting the imposition of de facto state wage policies. This article describes the new regime and its background. However, the legislative reform is not the most interesting event. Faced with continued state intervention the social partners in various sectors of the economy have reached agreements on wage formation, effectively averting state participation. The agreements are analysed. Though epochal they in fact represent a return to the traditional ‘Swedish model’ rather than introducing a radically new element to Swedish industrial relations. Applying game theory in a Prisoner's Dilemma context both the legislative reform and the agreements seem to fit nicely into that theory.
European Private Law after the Treaty of Amsterdam
Authors: Betlem Gerrit , Betlem Gerrit
Published: April 2022

The communitarization of the private law of the Member States has been given a significant impetus by the transfer of EC competence regarding judicial cooperation in civil matters from the third to the first pillar of the European Union. That is to say, under a new title of the EC Treaty, a single judicial area will be established; in terms of private law, the fields of private international law is involved to a large extent, whereas the civil procedure of the Member States will be affected to a lesser extent. In particular, the Community is in the process of transforming a number of conventions into secondary EC law, the most important one is the conversion into a Regulation of the Brussels Jurisdiction and Judgement Convention. Although the measures (to be) adopted in this context are 'real' acts of Community law - being based on the EC Treaty rather than the Treaty of European Union, the 'normal' regime for references for preliminary rulings does not apply. A more restricted regime is applicable. Also, the unity of Community law has been fragmented in that the measures are not binding on Denmark (the UK and Ireland are also not bound by acts adopted under this new Title but have opted in insofar as civil law measures are concerned).

Harmonisation of substantive private law, unlike the conflicts of law and civil procedure, has not been affected significantly by the Treaty of Amsterdam. Private initiatives such as the Commission of European Contract Law (Lando Commission) are still the primary focus for proposals involving large scale harmonisation of private law, such as a systematic approximation of the whole of the law of obligations or even a European Civil Code.
Swiss Bundesgericht, 26 September 1997, a Strong Incentive to the Litigants to Act Promptly
Authors: Wautelet Patrick R.
Published: April 2022

When it comes to parallel proceedings in the European judicial area, Article 21 of the Brussels and the Lugano Conventions gives a strong incentive to the litigants to act promptly. By launching proceedings before the other party, one can block with a guillotine-like certainty all other proceedings between the same parties concerning the same dispute. Article 21 of the twin Conventions grants indeed priority to the court first seised in time. The present case shows that this 'crude but simple' rule - priority is given to one of the two courts seised not on account of its competence to deal with the particular litigation, or of its geographical proximity with the case - can give rise to a very sophisticated litigation strategy.

In 1993 proceedings were launched both in Switzerland and in England in a dispute concerning liability for the losses incurred by an English company which had been placed under administration. The administrator threatened to sue three companies - two domiciled in Switzerland and one in New York - which were owned by the principal shareholder and managing director of the English company. According to the administrator, the three companies had illegaly benefited from the transfer by the director of assets from the English company. He granted the three companies 14 days to react and submit a comprehensive repayment plan. Two days before the end of this term, the three companies seised the Swiss court of a claim for a declaration that they were not liable for the money claimed. The day after these proceedings were issued, the administrator referred the matter to the English court. There ensued a conflict between the two parties as to the date on which an action is pending for the purposes of Article 21 (II). Before answering this vexed question, the Swiss Supreme Court had to determine whether the English and the Swiss proceedings were identical (I). While remaining true to the European nature of the lis pendens rule, the Court managed to curb certain abuses Article 21 can lead to. This decision will certainly make Switzerland less attractive for forum shoppers.
Public Sector Industrial Relations — Some Developing Trends
Authors: Neal Alan C.
Published: April 2022

This article presents some results of the study presented by the author in his General Report to the XVIth World Congress of the International Society for Labour Law and Social Security under the title of 'Industrial Relations, including Collective Disputes, in the Public Sector'. Following a historical overview of earlier studies (by Schregle, Bellace and Treu) looking at public sector industrial relations, attention is drawn to particular characteristics of this field of activity, and to the problem of how the modern 'public sector' phenomenon should now be defined. In the light of these observations, the author then reviews evidence of the dramatically changing face of public sector industrial relationships across the Globe, particularly in the wake of widespread 'privatisation' initiatives. The impact of such change upon the parties to public sector bargaining is then addressed, before some recent trends in the bargaining processes themselves are highlighted. After canvassing a variety of key issues touching industrial relations in the public sector on the threshold of a new Millennium, the author concludes with an assessment of emerging trends and offers some tentative comments on the future direction of public sector industrial relationships.
Die Gewährleistung bei Konsumentenkaufverträgen nach OR im Lichte des EU-Rechts
Authors: Stauder Bernd
Published: April 2022

The seller's liability for defects contained in the Swiss Law of Sales remains rather traditional — seen in the light of the Directive 99/44 it shows a number of shortcomings for the consumer. The existing regime is applicable to both commercial and consumer contracts of sale. Besides, it can be derogated from and is frequently replaced by General Conditions to the detriment of the consumer. In addition, the Swiss Civil Code does not know of a right to repair/replacement of the consumer. For those reasons it seems to be pressing to modernize the Swiss rules on consumer sales according to the European development in that field of the law.
Directive 1999/44/EC of the European Parliament and the Council on Certain Aspects of the Sale of Consumer Goods and Associated Guarantees and its Influence on Danish Law
Authors: Bruun Nielsen Anne-Dorte
Published: April 2022

The rules governing lack of conformity in consumer sales are to be found in the Danish Sale of Goods Act (The Act). The Act constitutes inter alia a legitimate definition of lack of conformity of goods in consumer conditions. Generally, guarantees are not within the formalities of Danish law. They have been regulated by ordinary contractual law; the Marketing Practices Act will implement the Directive in this regard. According to the interpretation of the Directive and The Act, present Danish law must be altered in a number of (minor) requests in order to conform with the Directive. In Denmark a working group will put forward proposals for amendments to The Act.
Directive 99/44EC on Certain Aspects of the Sale of Consumer Goods and Associated Guarantees: Its Impact on Existing Irish Sale of Goods Law
Authors: Bird Timothy C.
Published: April 2022

The author looks at the Directive from the point of view of its impact on existing Irish Sale of Goods Law — notably the Sale of Goods & Supply off Services Act, 1980. The reach of the term 'dealing as consumer' as it is currently interpreted in Irhs law is examined and contrasted with the rights of the consumer as incorporated in the Directive. Whilst the Directive overall has a narrower canvass than does the 1980 Act (and the sale of Goods Act, 1893 which the 1980 Act amends) it incorporates both provisions which are complementary to existing Irish legislation and others which appear to duplicate existing Irish measures. In short, the Directive does not provide a tailor-made platform from which existing Irish law can be readily amended. Such would be too much to ask from a document reflecting disparate national inputs. It is the author's general conclusion that whilst the Directive has much to commend it, existing Irish consumer protection law covers a wider canvass and in greater depth.
Directive 99/44/EC on Certain Aspects of the Sale of Consumer Goods and Associated Guarantees
Authors: Scotton Manola
Published: April 2022

In this article I criticize the choice of the Italian legislator concerning the implementation of the Consumer Sales Directive 99/44 by means of a separate statutory instrument (decreto legislativo). I try to explain that this is not a suitable choice on the grounds of two main arguments. Firstly, two different regimes on sales are going to co-exist, their application depending on the status of the parties. Secondly, this implementation merely permits deadlines to be met but does not allow a thorough reflection on the issue. I further advocate a conscious policy choice by our legislator in relation to the emergence of a (schizophrenic) European contract law.
La Directive 99/44 du 25 Mai 1999 et le droit Luxembourgeois
Authors: Elvinger Marc
Published: April 2022

The other contributions to this special issue have analyzed in detail the content and impact of the Consumer Sales Directive; this article will refrain from doing this one more time. First, the present state of Luxembourg Sales Law will be discussed. In the following, it will be compared to the requirements of the Directive in order to identify the issues, which require an intervention of the Luxembourg legislator in the transposition process. In this regard, it has to be noted that so far, the Luxembourg government has presented no proposal aimed at implementing the Directive into Luxembourg Law.
Court of Justice of the European Community 22 April 1999, Travel Vac SL v. Manuel Josè Antelm Sanchis — The Application of Directive 85/577 on contracts Negotiated Away from Business Premis
Authors: Ioriatti Ferrari Elena
Published: April 2022

This case answers a preliminary question addressed to the ECJ concenring the application or non-application of Directive 85/577/EEC on the protection of purchasers in the case of contracts negotiated away from business premises when the purchase concerns rights in immovable property on a time-share basis. According to the ECJ, the fact that time-share contracts are included in the provisions of a specific Directive (94/47/EC) does not exclude that a contract, containing an element of time-sharing, may at the same time pertain to the range of application of Directive 85/577/EEC, where the premises for the application in this last case are satisfied. The author is annotating the case from an italian perspective and also discusses the validity of the compensation clause in the case of renunciation and some other questions relative to the right of renunciation.
The Non-Europeanisation of Private Law
Authors: Niglia Leone
Published: April 2022

If the most realistic way of Europeanising private law consists of the enforcement of Community directives, then one must admit that scholarly writings have not been realistic at all. For whether judges have enforced the directives should be the single most important matter to investigate, but it has remained outside the reach of scholarly contributions which ponder instead other issues of lesser historical importance. The purpose of this article is to break this scholarly silence. It shows that the attempt to Europeanise private law by means of the directives has been a failure, as the directives have been disregarded in the courtrooms of continental countries. In some decisions judges have taken into account the directives, yet refused to enforce them and decided the cases on the basis of pre-existing national law. In other decisions judges have not taken into account directives' rules that were of relevance and should have been applied. Judicial disregard becomes really intelligible if one considers a set of practices of legal actors in continental Europe. Here a working partnership between judges and professors characterises the organisation of private law, a partnership which did not take place with respect to the enforcement of the directives, with the consequence that judges did not revise national law in the light of the directives.
Cour de Cassation, 12.11.98 'Les Pouvoirs et les Obligations — de l'usufrutier Greek Case Note
Authors: Michalopoulos Georges N.
Published: April 2022

A l'instar de la doctrine française, confirmée entre-temps par une jurisprudence constante de la Cour de Cassation française, l'on peut également plaider en droit belge pour faire une distinction, dans le contexte de l'usufruit d'actions, entre d'une part les actions qui font partie d'un portefeuille de valeurs, et d'autre part les actions pour lesquelles ce n'est pas le cas.

Dans le cas d'un usufruit d'actions qui appartiennent à un portefeuille de valeurs, l'on peut affirmer que le portefeuille doit être considéré dans son ensemble — et non du point de vue de ses actions individuelles — comme l'objet de l'usufruit.

En s'appuyant sur ce principe, l'ont peut défendre la thèse que l'usufruitier d'un portefeuille de valeurs a le droit de disposer des actions qui font partie du portefeuille, à condition que la contrepartie des actions soit utilisée pour acquérir d'autres valeurs. L'objet de l'usufruit, le portefeuille de valeurs, doit en effet rester en état.

En acceptant cette thèse, l'on en arrive à une extension sensible des compétences juridiques de l'usufruitier d'un portefeuille de valeurs, ce qui se situe d'ailleurs en droite ligne des points de vues qui ont été adoptés par une partie de la doctrine belge.
BGH, Urteil vom 11. Dezember 1998 — Zur Rechtlichen Einordnung eines Wiederverkaufsrechts — Anwendbarkeit der §§ 497, 498 BGB und Gewährleistung Belgium Case Note
Authors: Cauffman Caroline
Published: April 2022

The decision of the German Federal Supreme Court was based on the following set of facts: the defendant sold the claimant several properties in 1993 for an overall price of 1.7 million DM. In § 12 of the notarised contract it stated:

'The vendor undertakes to repurchase the … property on the request of the purchaser up until 30.6.1996. The request must be made to the vendor in writing before 31.3.1996. The repurchase will then take place in accordance with the conditions of this contract for a sale price of 1.7 million DM.'

By an agreement of 6.2.1994 the defendant granted the claimant an interest-free loan of 300,000 DM with provision that in the case of a repurchase this sum would be set off against the purchase price to be demanded by the claimant. The remainder of the purchase price was to be settled via an extension of credit. In 1995 the claimant demanded that the property be repurchased by 31.1.1995. The defendant refused this, objecting that the condition of the object of the sale had deteriorated significantly during the time that it had been in the claimant's possession, through the fault of the latter.

The Landgericht rejected the claim, the Oberlandesgericht gave judgment for the claimant, with the proviso that the property be sold without any guarantee as to its size or condition, but that the vendor's rights arising from § 498 (2) BGB should remain unaffected.

The defendant's appeal to the Supreme Court led to this decision being quashed. In the opinion of the Supreme Court § 497(1) BGB was not applicable to the right of resale, since the parties had not included this right in their agreement as a right on the part of the purchaser to modify the terms of the contract, but rather as an obligation to repurchase on the part of the vendor. Furthermore, neither §498 (2) second sentence BGB nor § 498 (2) first sentence BGB were applicable by analogy to the resale of immovable property, because of the difference in the framework of the parties' interests. In so far as the parties had structured the right of resale as a personal obligation, the purchaser could only require the conclusion of a contract of repurchase if he at the same time made good the defects that had emerged in the interim period.

On the following pages, the authors examine the decision from the point of view of Belgian, Spanish and Greek law.
Equity Legislation in South Africa with Specific Reference to HIV/Aids and Disability
Authors: Smit Nicola
Published: April 2022

South Africa has a very advanced system of anti-discrimination legislation. In the labour law sphere, the relevant legislation includes the Employment Equity Act of 1998, the Labour Relations Act of 1995 and, of course, the Constitution of 1996. This article focuses on two prohibited grounds of discrimination, namely disability and HIV/Aids. HIV/Aids is nearing epidemic proportions in South Africa and its impact on individuals, the economy as well as the general prosperity of the country cannot be denied. Disabled persons constitute one of the designated groups, for purposes of affirmative action, in terms of the Employment Equity Act. Although both direct and indirect unfair discrimination is prohibited in all workplaces in South Africa, such protection has to be implemented and enforced by labour legislation and the courts. This article investigates the success achieved to date in protecting employees in workplaces from both unfair labour practices and unfair discrimination because of their HIV/Aids status or their disability. Job applicants are also protected by anti-discrimination legislation and it has become evident that the constitutional court is not hesitant to come to the assistance of this category. The case of Hoffmann v. SAA (see also Woolworths v. Whitehead) is discussed. The author comes to the conclusion that present anti-discrimination laws provide the courts with ample scope to act as guardian of employees as well as job applicants in this area of law. If the courts adopt an approach that recognises substantive equality, as the constitutional court, if not the labour court, has done, this could assist the community in refraining from unfairly discriminating against certain vulnerable groups in society. This discrimination is, after all, often based on unfounded assumptions and generalisations.
Communication on European Contract Law: Joint Response of the Commission on European Contract Law and the Study Group on a European Civil Code
Authors: von Bar Christian
Published: April 2022

This joint response of the Commission on European Contract Law and the Study Group on a European Civil Code to the European Commission's Communication on European Contract Law outlines the difficulties confronting businesses and consumers in ascertaining foreign private law and the economic ramifications of legal diversity for the EU internal market. It demonstrates the limitations of freedom of choice of law and private autonomy and identifies inescapable distortions of competition. Considering the inextricable relevance of non-contractual liability and matters of property law, the response urges that measures in the field of contract law be contemplated only as part of a broad systematic view of European patrimonial law.

To overcome manifest problems of legal diversity, the joint response rejects leaving further development to market forces (Option I). Endorsing Option II, it advocates further work in formulating Principles of European patrimonial law of the type which the Commission has published and the Study Group is extending — both for their own sake as 'soft law' and as a pre-requisite for possible future legislation. Improving the quality of existing Community law (Option III) is considered desirable, but inadequate as a self-standing objective. The response concludes with a potential phased plan towards harmonising core areas of private law (Option IV).
The Commission Communication on European Contract Law: What Future for European Contract Law?
Authors: Staudenmayer Dirk
Published: April 2022

In the political context, the Communication from the Commission lies at the intersection of three converging tendencies of development: the ambitions on the part of the European Parliament concerning the harmonization of Private Law; the increasing amount of academic preparatory work; and the impetus provided by the European Council in Tampere. The underlying question of the Communication is whether — in the light of the current degree of harmonization of European Contract LAw — there are still problems despite, or due to, the selective approach to harmonization that might call for a new approach. Areas where problems could occur concern the proper functioning of the Internal Market and the uniform application of Community law. The Communication raises four options for discussion. First, the solution is left to the market. The second option envisages the development of common principles that can be used as non-binding guidelines for contracting parties, national courts, arbitrators, and national legislators. The third option consists of revising the existing acquis communautaire. The fourth option devises the adoption of a new instrument at the EC level, where three criteria can be combined: the nature of the act to be adopted, the relationship with national law, and applicability by way of choice of law or automatically.
Cour de Cassation Française (Chambre Commerciale) 26 Octobre 1999 — The Destiny of a Personal Guarantee after the Assignment of the Guaranteed Claim
Authors: van Ransbeeck Raf , Coelho Francisco MB Pereira , Tamamidis Anastassios
Published: April 2022

In his decision of the 26 October 1999 the French "Cour de cassation" held that after an assignment of a guaranteed claim, the new creditor is not allowed to ask performance of the original guarantor. This decision was based on article 2015 of the French Civil Code: a guarantor can only be liable for the transferred guaranteed claim when he explictly agreed to do so.

The case is annotated from the perspective of Belgian, Portuguese and Greek law.
Torn between Arithmetic and Substantive Equality? Perspectives on Equality in German Labour Law
Authors: Schiek Dagmar
Published: April 2022

German equality law is based on the employer's general contractual obligation to treat employees equally and on a number of more specific prohibitions on discrimination. In practice, an ‘arithmetic’ or Aristotelian conception of equality tends to hold sway, to the exclusion of consideration of the structural causes of discrimination. Recent case law interpreting the non-discrimination principle in the context of part-time and fixed-term contract workers suggests the law may be evolving slowly towards a position which sees the role of the law in terms of outlawing unjustified forms of social exclusion.
Equality in Labour Law: An Economically Efficient Human Right? Reflections from a French Law Perspective
Authors: Dockès Emmanuel
Published: April 2022

The principle of equality is of long-standing in the French legal order, being mentioned prominently in the Declaration of Human Rights of 1789 and in more recent constitutional texts. In the field of employment law, it has numerous applications, both in terms of the treatment of employees by the employer, and in the context of relations between the parties to the employment relationship itself. It has become a multi-faced concept, one which, at its broadest, requires transparency, rationality and legitimacy in the exercise of power. As such, it can be seen to have a complex relationship to the market: far from being a constraint upon efficiency, it is, in many instances, a condition of market access, and a standard for effective organisational decision-making.
BGH, Urteil vom 26.3.1991 — Zur Erstattungsfähigkeit Frustierter Aufwendungen im Rahmen Eines Schadensersatzanspruches Wegen Nichterfüllung bei Einem Ursprünglich Schwebend Unwirk
Authors: Schobel Thomas , Beamonte José Ramón de Verda y
Published: April 2022

The BGH based its ruling on the following facts: the plaintiff bought land from the defendant in a notary contract dating 10/07/1992. The defendant was represented by an agent without power of agency, who previously had bought the piece of land from a third party in the name of the defendant, but also without power of authority, in contract dating 15/04/1992. Then the defendant approved the sales contract with the plaintiff; he did, however, not approve the previous transaction. As a result, he could not transfer property in the land to the plaintiff. The latter incurred expenses for the notary and the Court in the course of concluding the contract. In addition, he had to consult a lawyer in order to ask for legal advice concerning the non-performance of the sales contract. The first Court ruled in his favour, the Court of Appeal reversed the decision. The plaintiff's appeal at the BGH proved successful: the buyer can ask for compensation for expenses incurred that are rendered futile by the seller's non-performance of the contract if these expenses would have resulted in a counter-value in the case of performance, a condition which is governed by a — rebuttable — presumption (‘presumption of profitability’).

In another case (BGH NJW 1993, 2527), the BGH held that this presumption, in relation to a pending transaction, was rebutted since expenses were incurred despite the fact that the other party was entitled to terminate the contract. The present case is, however, different in that the transaction ceased to be pending as soon as the contract was approved of. Only then did the defendant refuse to perform for reasons outside the parties' relationship. In the following case notes, the authors will analyse this decision from the Austrian and Spanish point of view.
The Role of the Social Partners in the Vocational Training
Authors: Demetriades Stavroula
Published: April 2022

This work examines the relationship between integration and network outcomes in two corporatist (though of different degree) networks, the Danish and the Greek vocational training system. It is one of the hypotheses here that the more integrated corporatist type of networks achieves better results of the inter-organizational activities. It is asserted that a more integrative network goes with the societal type of corporatism. It is asserted that so-called societal corporatism nourishes a more integrated network of organizations while so-called state corporatism is associated with less integrated or loosely connected organizations.
Federalism in USA and EC — The Scope for Harmonised Legislative Activity Compared
Authors: Howells Geraint G.
Published: April 2022

The European Court of Justice annulled the Tobacco Advertising Directive because it could not be justified as an internal market measure. This article contrasts that decision with a couple of US Supreme Court cases that also struck down laws that had been enacted under their Commerce Clause. The approaches of the courts are compared. The different political contexts are noted and in particular comment is made of the fact that the US federal government is subject to greater direct democratic controls that the Community legislators might favour a more relaxed approach from their courts. In Europe the lack of accountability means that the Court is right to be vigilant on the use of powers, but it should be careful not to become too interventionist. Europe has a young and flexible constitution, which should be amended to give clearer powers in social policy areas where Community activity is seen as desirable rather than these policies having to be treated as internal market measures.
BGH, Urteil vom 22.12.1999 — Zur “Ablieferung” der Kaufsache beim Kauf von Standard-Software
Authors: Böhler Elisabeth
Published: April 2022

Delivery of the goods in a sale of standard software. The decision of the German Federal Supreme Court was based on the following set of facts:

On 15.7.1991the claimant delivered a payroll programme that it had developed to the defendant for a price of 200,000 DM (= ca. 100,000 euro), payable in four instalments. The programme was first capable of being called up on the defendant's data processing equipment in August 1991 and, after debugging by the claimant, the programme was capable of running in a limited way on the defendant's equipment from 22 October 1991. In the meantime the defendant paid the claimant the first instalment. In a letter of 11 December 1991 the defendant complained about further bugs in the programme and sought their correction. The claimant brought proceedings for the payment of the remainder of the sale price in an amount of ca. 150,000, — euro plus interest. The defendant claimed rescission of the contract and in a counterclaim sought restitution of the first instalment, plus interest, and the return of the payroll programme.

The Landgericht found for the claimant and rejected the counterclaim. Appeals to the Court of Appeal and the Supreme Court were fruitless. The Supreme Court explained in its decision that §§ 433, 359 ff BGB and § 377 HGB were to be applied, at least by analogy. As in other sale cases, in the case of a sale of standard software the goods were “delivered”, in the absence of agreement to the contrary, when they were placed by the seller — with the intention of performing the contract — within the sphere of power of the purchaser in such a way that the latter could examine them for the existence of faults. In the absence of any appropriate legal ground, for which there was also no sufficient need, and contrary to other opinions expressed in the legal literature on the question of “delivery”, the matter was not to be assessed by reference to whether a largely trouble-free trial run of the programme had been carried out, nor was it decisive whether the software had appeared to be bug free in a detailed test phase carried out while it was still with the claimant. Thus the software was delivered on 15 July 1991. The fact that some online-help functions were still unavailable did not affect this conclusion, since their absence influenced the usability of the programme and made the software faulty. At the end of the debugging process it was agreed between the parties on 22 October 1991 that the programme was — even though to a limited extent — capable of running and it was up to the defendant, according to § 377 HGB to check the goods again and to complain about faults without delay. Its complaints of 11 December 1991 did not however satisfy this requirement.

The following author examines the judgment from the point of view of Austrian law.
Grabbing Victory from the Jaws of Defeat: Can the GE/Honeywell Merger Facilitate International Antitrust Policy Co-operation?
Authors: Akbar Yusaf
Published: April 2022

In the light of the European Union’s (EU) decision to block the General Electric (GE) merger with Honeywell, this article seeks to examine the causes of this decision, why the EU’s decision differed from the US government’s ruling and the implications for co-operation in the field of merger control and antitrust both in transatlantic and global terms. The article argues that given the apparent trend towards increasing numbers of mergers on a global scale, unless States agree to develop tools and procedures for co-operation, there could be an increasing resort to extra-territorial application of domestic antitrust laws, which may lead to increased trade friction between major trading countries. As the GE/Honeywell merger case is so high profile, it is suggested that it may focus policymakers’ minds on resolving similar issues in the future based on a co-operative, multilateral framework. In this context, the article proposes incremental co-operation and joint investigation between relevant antitrust authorities. For global corporate strategy, the article argues that the GE/Honeywell case illustrates the need for more awareness of comparative regulatory differences and a global strategy not exclusively based on merger given the numerous regulatory hurdles this approach needs to clear.
Tying in Platform Software: Reasons for a Rule-of-Reason Standard in European Competition Law
Authors: Polo Michele , Padilla Atilano Jorge
Published: April 2022

In both the US and Europe debate about competition in the software industry has focused on the question of “bundling” or “tying” products to the operating system in a single, integrated package. This article argues that the widespread use of tying, even by dominant players in this industry, indicates that this is typically a beneficial practice. European regulators should not assume that tying is per se illegal. Rather, they should embrace the arguments made recently by a US appeals court that recognized that a “rule of reason” approach is more appropriate given that bundled software often delivers significant consumer benefits.