bluuebunny/crossref_metadata_2025 huggingface dataset:
Police and Prosecutions: Vanishing Differences between Practices in England and Germany
Authors: Jasch Michael
Published: March 2019

Police powers of discretion to discontinue criminal proceedings are rather exceptional in Europe, where most Criminal Justice Systems are based on some kind of principle of legality. Germany and England may be regarded as contrasting examples for different decision-making-models on the question whether or not to prosecute an offender. Germany, with a principle of compulsory prosecution theoretically guiding the work of public prosecutors—compared to England, where already the police have significant powers of discretion when deciding about a case. In recent years, however, the differences between the practice of these principles seem to have vanished: Whereas some German federal states have started to involve police in prosecution decisions, policy makers in England try to restrain the traditionally wide discretion of police in dealing with cases of minor crimes. Interesting lessons that might be useful for future harmonization of European criminal justice systems can be drawn from the experiences in both countries.
Deconstruction is Justice
Authors: Weber Elisabeth
Published: March 2019

This provocative assertion, sharply contrasting with the decades-old criticism of deconstruction as an aesthetisizing apolitical and ahistorical exercise, recapitulated in 1989 the stakes of an infinite task and responsibility that, in spite of and because of its infinity, cannot be relegated to tomorrow: “[…] justice, however unpresentable it may be, doesn't wait. It is that which must not wait.” It is in the spirit of such urgency, of a responsibility that cannot be postponed, that Jacques Derrida was an active and outspoken critic and commentator on issues such as South Africa's Apartheid, the Israeli-Palestinian conflict, the bloody civil war in his native Algeria, human rights abuses, French immigration laws, the death penalty, and on what Richard Falk has termed “the great terror war”.
The New Law Against Unfair Competition: An Assessment
Authors: Finger Manuela , Schmieder Sandra
Published: March 2019

July 8, 2004, marked a cornerstone for the German law against unfair competition. The amending Statute Against Unfair Competition (UWG 2004) came into force on that day. That day also ended a long discussion among researchers who had called for a thorough modernization of the UWG. In particular, researchers criticized the prohibitions on sales promotion; these prohibitions are now abolished. Furthermore, the new UWG addresses European Union demands for greater liberalization and consumer protection, especially with respect to the electronic communications sector. The new law is a complete reorganization of the old act of 1909. The revised UWG is much more liberal, but still guarantees a high standard of protection for consumers and competitors.
Legal Consequences of Past Collective Wrongdoing after Communism
Authors: Sajó András
Published: March 2019

In these notes, I reflect on the possibilities of confronting the darkest chapters of East-Central European history, namely, genocide. This problem is closely related to the moral refoundation of society, law and politics. My concerns are primarily related to the role of law in the process, both descriptively, by trying to explain very contradictory developments in Hungary, and normatively, by arguing for a shame dictated legal policy.
Preparing the Ground for Constitutionalization through Reconciliation Work
Authors: Legerer Anton
Published: March 2019

In a letter of 1952, the former German judge Lothar Kreyssig launched his idea of a reconciliation programme based on the religious – Christian – concept of atonement. From the manual work of German volunteers, those who had formerly been persecuted and their enemies, namely, the State and the People of Israel and Jews on the one hand and Great Britain and the British on the other, should benefit. The addressee of this letter was Graf Paul Yorck von Wartenburg, the brother of the executed resistance fighter Peter Yorck, then working for the Ecumenical Council of Churches in Geneva, who later worked as a German diplomat with a consul assignment in Lyon.
Criminal Victims/Witnesses of Crimes: The Criminal Offences of Smuggling and Trafficking of Human Beings in Germany, Discretionary Residence Rights, and Other Ways of Protecting Victims
Authors: Ziegler Katja S.
Published: March 2019

In the crusade against organized crime, it has become more and more accepted that the often trans-border crime cannot sufficiently be tackled by enhanced enforcement and cooperation between states alone. An alternative tool may be what can be termed the instrumentalization of the victims to enable the prosecution of organized criminals. This brings to the fore the dilemma that the victims are often themselves offenders, as a rule, breaching provisions of immigration law. Therefore, it is typically not in their interest to bring offences of trafficking and smuggling, of which they are the victims, to the attention of the authorities. Initiatives at the international and EU/EC level, which grant limited residence rights to those victims who collaborate in the prosecution of the offenders, attempt to deal with this conflict of interest. This implies at least a partial recognition of the status of the victim.
The “La Belle” Trial: The Sentencing of a Terrorist Bomber Under the German Penal Code
Authors: Hoffmann Philipp
Published: March 2019

In June 2004, the Bundesgerichtshof (BGH – Federal Court of Justice) handed down a verdict in one of the longest trials involving terrorist criminal activities in German history. The so called “La Belle” case provided legal action resulting from the bombing of the discotheque “La Belle” in West Berlin in 1986, which, at the time, was attended mostly by American soldiers. The BGH had to review the ruling of the Berliner Landgericht (LG – District Court), where the trial started in November 1997. After 281 days of trial and 170 witnesses a guilty verdict was handed down by the Berliner LG, which found the defendants guilty of murder and of aiding and abetting murder in the deaths at the “La Belle.” Four defendants were sentenced to prison terms ranging between 12 and 14 years. In its final ruling on the case, the BGH, in principal, affirmed the verdict of the lower court by overruling most of the appellate claims of the prosecution, the defendants and the joint plaintiffs.
McGoliath v. David: The European Court of Human Rights Recent “Equality of Arms” Decision
Authors: Lillard Monique C.
Published: March 2019

The European Court of Human Rights has issued a judgment which adds to the developing law of Article 6, Section 1 (right to a fair hearing) of the European Convention on Human Rights (ECHR or “the Convention”) and which sheds light on Article 10 (freedom of expression) and its interaction with the law of defamation. Practically, the decision in Steel and Morris v. the United Kingdom (hereinafter referred to as Steel) is likely to prompt a review of the availability of legal aid for defendants in civil cases in the United Kingdom (“UK”), and may be a small step towards balancing the arms in ad terrorem suits brought by large corporations against private citizens in order to silence public debate.
Preparing Germany for the 21st Century: The Reform of the Code of Civil Procedure
Authors: Rühl Giesela
Published: March 2019

One of the most important dates in German legal history is 1 October 1879. On this day the four Imperial Judiciary Laws (Reichsjustizgesetze) became effective: the Code of Civil Procedure (Zivilprozessordnung), the Code of Criminal Procedure (Strafprozessordnung), the Law on the Organization of Courts (Gerichtsverfassungsgesetz) and the Bankruptcy Code (Konkursordnung). They replaced a large number of different organizational and procedural provisions in the existing German states and effectively established legal uniformity in civil and criminal procedure in the German Empire. More specifically, the Court Organization Law created a national system of courts for civil and criminal matters consisting of Local Courts (Amtsgericht), District Courts (Landgericht), Appeals Courts (Oberlandesgericht) and the Imperial Court of Justice (Reichsgericht). The Code of Civil Procedure, the Code of Criminal Procedure and the Bankruptcy Code provided the procedural framework for all these courts thereby bringing procedural unity to the German Empire for the first time.
Decriminalization of Homosexuality and Its Effects on Family Rights: A German-US-American Comparison
Authors: Linhart Karin M.
Published: March 2019

Socrates, Oscar Wilde, Klaus Mann and many other men in history had one thing in common: they loved men. Some of them were lucky and could live a peaceful life regardless, since they either had the respective social standing or lived in societies where homosexuality was at least tolerated. Most others in history, however, were in a rather unfortunate position. To be gay was to be criminal. A conviction for homosexual conduct resulted in years in prison or worse: even today the death penalty can be imposed upon homosexuals in countries where the Shari'a, the Islamic Criminal Code, is interpreted and applied in a strict and conservative way.
Goodies and Baddies: The Presentation of German Police and Criminals in East and West Television Drama
Authors: Rauxloh Regina E.
Published: March 2019

Criminal Justice is never only about identifying and sentencing unwanted and thus, outlawed behaviour. As one of the closest contacts between state and citizens, Criminal Justice implies also a system of values and more or less subtle messages which the state wants to transmit to the people. In all modern legal systems, Criminal Law is about society as a whole being deterred from crime, educated and moreover ensured of the state's power, its efficiency and above all its benevolence. In other words, Criminal Justice does not only deal with offenders and victims but additionally with its own presentation in public and the citizens’ perception of it.
The Effect of WTO Dispute Settlement Rulings in the EC Legal Order: Reviewing Van Parys v Belgische Interventie- en Restitutiebureau (C-377/02)
Authors: De Mey Delphine
Published: March 2019

On 1 March 2005, the European Court of Justice (hereinafter ‘ECJ’ or ‘the Court’) got another opportunity to rule on the effect of recommendations and decisions of the WTO Dispute Settlement Body (hereinafter ‘DSB’) in the Community legal order. The ECJ concluded that an individual does not have the right to challenge, before a national court, the incompatibility of Community measures with WTO rules, even if the DSB had previously declared the Community legislation to be incompatible with those rules.
Comparative Law's Coming of Age? Twenty Years afterCritical Comparisons
Authors: Zumbansen Peer
Published: March 2019

From its first line, Günter Frankenberg's articleCritical Comparisons, published twenty years ago, leaves no doubt as to its radical claim and aspiration. Nothing short of attempting to “re-think” comparative law, the article sets out to attack many of the dearly held beliefs in the scholarship and practice of comparative law. The beliefs, the history, the believers, their work and struggles – they are all there. Frankenberg plows through them in order to lay bare what he conceives of as being an incorrectly defendedmyth of scholarly objectivityamong many of the field's pioneers and contemporary protagonists. Not being alone in his struggle of fiercely assailing the citadels of a nearly century-old comparativist scholarly venture, his crucial contribution to the field cannot now be denied. Whether we consider its open, frank, almost casual style, or its wide reaching theoretical reach,Critical Comparisonsremains one of the most eminent articulations of the crisis of comparative law in its first century. At the time of the article's 20th birthday, it is time to recollect, reassess and reconsider its main arguments and to play them back to the author and his readers. After a brief reconstruction of the article's main contentions (Part B), this brief homage will contextualize the article within a larger attempt among comparativists and legal theorists to work towards a transnational legal science (Part C).
12th Annual Willem C. Vis International Commercial Arbitration Moot – Overview and Personal Reflection by Law Students of Johann Wolfgang Goethe University
Authors: Oh Soo-Hyun , Sättler Jakob , Wighardt Nils
Published: March 2019

The following essay has been written by team members of Johann Wolfgang Goethe University (Frankfurt/ Main, Germany) who participated in the 12th Vis Moot. Its purpose is to raise interest in the moot by means of combining a general descriptive overview with personal experiences.
Law and the German Universal Healthcare System: A Brief Contemporary Overview
Authors: Weide Ursula
Published: March 2019

How to reform the American health care system, now dominated by a decreasing number of multi-billion dollar managed care corporations, has occupied the public debate for many years. Recent news reports hefty increases in managed care premiums, benefit reductions, and an ever-growing number of managed care organizations refusing to treat Medicare patients. Numerous “patients’ bills” have been submitted in Congress, attempting to rein in some of the managed care cost containment practices. None have been adopted so far. At best, such bills would superficially treat some of the symptoms of an ill-functioning health care delivery system, poorly serving the population, insured and uninsured, and creating a plethora of ethical conflicts for providers battling to preserve an acceptable standard of care. Since the Clinton health care reform efforts failed in 1994, no one has proposed a fundamental revision of the system, and the United States remains the only industrialized nation without a universal health care system. The literature mainly reports on those – English-language – countries whose cost containment measures have resulted in overburdening the public health care system. There are, however, numerous European governments which succeed in stabilizing health care expenditures by mandating some sacrifices by all participants in the health care system while preserving universal access, comprehensive coverage, and the standard of care.
Federalism on Trial: The Third International German Law Journal Workshop
Authors: Zöbeley Anna S. , Schier Katia
Published: March 2019

“The existing federal system is obsolete”, said Federal President Horst Köhler, announcing his decision, in a television address of 21 July 2005, to dissolve the German Bundestag (Parliament) and to call new elections. The following day, the German Law Journal hosted its third international workshop on theory and developments in German Federalism at the Max Planck Institute for the Research on Collective Goods, Bonn. The setting was appropriate, since the Institute is located between two former permanent representations of the federal states (Länder). The building itself once housed the Egyptian embassy, and so presented “neutral ground” for a discussion on federalism.
Access of Muslim Organizations to Religious Instruction in Public Schools: A Comment on the Decision of the Federal Administrative Court of 23 February 2005
Authors: Zacharias Diana
Published: March 2019

In the last years, several Muslim associations applied at the competent Ministries of Education of the German Federal States for the introduction of Islamic religious instruction in public schools. These applications raise a series of legal questions, in particular, whether the States are obliged to allow associations to teach their version of Islam in schools. Of particular concern is that this religious instruction may not have a religious purpose, but rather a political, or even militant or criminal, purpose. Further, there is the possibility that the associations may invite students to take part in a “holy war”, to call for racial hatred, or to proclaim that women were inferior human beings. The answer to these questions is laid down in Article 7 paragraph 3 of the German Basic Law which is a typical provision of the German Law on Church and State that is molded not by a strict separation or laicism as it is, for instance, in France but by a cooperation of the State and the religious communities.
Should We Polish It Up? The Polish Constitutional Tribunal and the Idea of Supremacy of EU Law
Authors: Kowalik-Bańczyk Krystyna
Published: March 2019

Just one year after Polish accession to the European Union, the Polish Constitutional Tribunal was provided the opportunity to clarify its position regarding the supremacy of EC and EU law. In its two recent judgments, it joined the long tradition of a rather uneasy relationship between national Constitutional Courts and European Court of Justice (ECJ). The uneasiness of this relationship results from an ever-unsolved dilemma – which of the two judicial fora should have the last word in case of conflict between European norms and national constitution norms? The solution given by European Court of Justice in a series of early judgments seems obvious. It opted for an absolute supremacy of EC norms over national norms. On the other hand, the national Constitutional Courts usually accept the supremacy of EC law - but only as a consequence of transfer of some competences under strict conditions set by national constitutions. They thus accept the concept named by Neil Walker “constitutional pluralism”, meaning that the states are no longer the sole source of constitutional authority. However, national constitutions are still the “primary” source of any such authority.
Expropriation without Compensation – the European Court of Human Rights sanctions German Legislation expropriating the Heirs of “New Farmers”
Authors: Deutsch Ulrike
Published: March 2019

On 30 June 2005, the Grand Chamber of the European Court of Human Rights (ECHR) issued a judgment concerning the expropriation of the heirs of new farmers in the former German Democratic Republic (GDR). With this decision, the Grand Chamber overturned a unanimous judgment by the Chamber of 22 January 2004. This article outlines the facts of the case (section A), the German case law (section B) and the Chamber and Grand Chamber judgments (section C) and provides an evaluation of the judgments (section D).
German Company Law: Recent Developments and Future Challenges
Authors: Leyens Patrick C.
Published: March 2019

The last decade has been a time of changes in all branches of German company law. Whilst the changes in the law of civil partnerships go to the very fundaments of what was a firm belief for a hundred years in national law, the future of the private limited company is increasingly determined by the competition of regulators in the European common market. The European dimension of modern company law making is even more pervasive in the law of stock corporations where growing convergence can be noted in regard to the national approaches of the European Member States towards internal controls. A common denominator for most of the changes in German company law is the partly court driven, partly legislature driven attempt of a better adjustment of investor and creditor protection to evolving business needs. Looking on the changes from a wider angle that includes capital markets, however, there are signals for a shifting in the traditional approach of German corporate governance towards an increasingly market driven system.
The Democracy Concept of the European Union: Coherent Constitutional Principle or Prosaic Declaration of Intent?
Authors: Petersen Niels
Published: March 2019

“Our Constitution … is called democracy because power is in the hands not of a minority but of the greatest number.” This statement by Thukydides preceded the preamble of the draft constitutional treaty elaborated by the European Convention. Although not adopted by the intergovernmental conference, the proposed introduction illustrates that the Convention intended to attribute a central role to the concept of democracy – at least symbolically.
The Plurality of the Legislative Process and a System for Attributing Procedures to Competences
Authors: Trüe Christiane
Published: March 2019

This contribution aims to assess whether the Constitutional Treaty (CT) succeeds in achieving a systematic “fit” between the legislative procedures and the relevant underlying competences. The system to be developed here aims at promoting democratic legitimacy, transparency and efficiency in the EU's legislative process. This is undertaken under the assumption that systematization might contribute to achieving these fundamental aims. Obviously, such a system needs to rely on generalization and simplification to a considerable extent; it cannot provide more than a model which must necessarily be subject to exceptions.
Developments in the Area of Freedom, Security and Justice brought about by the Constitutional Treaty
Authors: Kornobis-Romanowska Dagmara
Published: March 2019

The main purpose of this paper is to consider the impact of the Treaty establishing the Constitution for Europe (hereinafter: the Constitutional Treaty or CT) on the realization of the Area of Freedom, Security and Justice (hereinafter: the Area or AFSJ). The paper has two parts. The first part deals with the Area in current law, whereas the second part focuses on the provisions of the Constitutional Treaty concerning the Area.
“United in Diversity” – The Integration of Enhanced Cooperation into the European Constitutional Order
Authors: Thym Daniel
Published: March 2019

The “unity dogma” has long characterized the European law discourse. In many of its landmark decisions the European Court of Justice had recourse to the “unity argument,” such as inCosta vs. E.N.E.L., where it rightly states that “the executive force of Community law cannot vary from one state to another … without jeopardizing the attainment of the objectives of the Treaty.” Other expressions of the “unity dogma” include the legal principle of non-discrimination enshrined in the fundamental freedoms, which lie at the heart of the single market, or the political concept ofacquis communautaireobliging new Member States to subscribe to all existing Community laws. Indeed, the establishment of a supranational legal order requires a continued focus on its uniform application in the Member States without which the effectiveness of European law is at stake. My intention is not to call into question the underlying rationale of this quest for unity. The aim of this contribution is rather to show that the asymmetric non-participation of individual Member States in selected areas of Union activity can be embedded into the existing European legal order and does not contradict its constitutional aspirations, thereby giving substance to the Union's motto “United in Diversity.”
Immoral Law, Illegal Morals? NS Forced Labor Compensation and the Law
Authors: Winkler Viktor
Published: March 2019

As the Bundestag (German Parliament) has finally achieved the sought-after Rechtssicherheit (legal certainty) with respect to ending the threat of foreign claims being brought against German corporations, and as the first compensation payments have been made, the alarm over restitution for National Socialist forced labor seems to have quieted itself. At least, public discussion and media coverage has grown silent on the issue. Since The end of Judge Kram's recent “revolt” seems to have signaled the end of the forced labor issue. Well, our attention is limited. Had it not been a long and winding and somewhat tiring road marked by lawyers having it out with other lawyers? And had there not been enough confusing and embarrassing fits and starts, all that turbulence along the way? Now that the first claims are being paid, apparently there is not much to theorize about. While this is likely not true about the legal element of the matter, this article argues that it is also not true for theorizing about the issue. Instead, legal theory could primarily look at forced labor compensation as a highly rewarding piece of scientific research. This concerns not only the compensation process itself, but certain striking aspects of the public perception expressed in the discussion surrounding the compensation-process.
Liability Within Corporate Groups (Bremer Vulkan) - Federal Court of Justice Attempts the Overhaul
Authors: Zumbansen Peer
Published: March 2019

On 17 September 2001, the Federal Court of Justice (Bundesgerichtshof) handed down a landmark decision regarding liability within corporate groups (“Konzernhaftung”) which is likely to give an entirely new direction to the law in this field. Most notably, the Court held that, in spite of the fact that the case concerned a by now classical example of a corporate “daughter” incurring serious financial losses due to management decisions taken by its corporate “mother”, resulting in the erosion of the daughter's financial basis, the Court exclaimed the statutory as well as judge made law regarding corporate liability within corporate groups asnot applicablein this case. Thus casting somewhat aside a great and complex bulk of company law in form of a rather ambiguous and quite eruptively evolving law of corporate liability within corporate groups, the Court held that tort law and criminal law would be applicable to the case in point. Paradoxically, it is the Court's apparent shifting away from corporate group liability that might allow for a clearer view on the applicable company law in an area that has, for a long time, been dominated by heated debates about the Court's ambitious interpretation of the relevant norms, their reach and concrete application.
Quo vadisDemocratic Control? The Afghanistan Decision of theBundestagand the Decision of the Federal Constitutional Court in the NATO Strategic Concept Case
Authors: Paulus Andreas L.
Published: March 2019

The parliamentary control of executive power in foreign affairs in Germany suffered two severe blows last November; one may wonder whether it will ever recover. First, on 16 November 2001, Chancellor Gerhard Schröder transformed one of the most important foreign policy debates in theBundestag(Parliament) into a more general policy debate by combining the decision regarding the provision of German troops to the American-led, so-called “War on Terrorism” in Afghanistan with a vote of confidence with respect to his government, pursuant to Article 68 of theGrundgesetz(GG – Basic Law). With the fate of the Red/Green coalition government hinging on the vote, and the very existence of the Green Party at stake, it was not surprising that Foreign Minister Joschka Fischer (Greens), in his speech on the issue, took a tone more suited for a party convention than for a foreign and security policy debate. And although deploring that posture, most of the opposition speakers followed suit. It was a sad day for German parliamentary democracy. The failure of theBundestagto live up to its responsibilities is even more apparent in the declarations that accompanied the vote, which show that a considerable number of members of theBundestagvoted for thegovernmentin spite of their continuing opposition to theprovision of Bundeswehr (German Army) forces, the very conjunction rendered impossible by the use of Article 68. The use of this Article both quashed the existing strong parliamentary backing for the provision of German troops to the anti-terrorism effort in Afghanistan and elsewhere, and denied theBundestag, and the German public, a serious debate about the first German military operation outside Europe since World War II, excepting the humanitarian contributions to UN missions in Cambodia, East Timor and Somalia.
Comparative Dispute Management: Court-connected Mediation in Japan and Germany
Authors: Funken Katja
Published: March 2019

During the last decade, there has been a widespread trend in Germany and internationally away from litigation towards Alternative Dispute Resolution (ADR) procedures. In recent years, the German interest has especially focused on mediation as a means of dispute resolution. The year 2000 saw the introduction of a federal mediation law that permits all German states (“Länder”) to launch mandatory court-connected mediation with respect to certain kinds of civil disputes. However, mediation is still in its infancy in Germany. Thus, it could be helpful for the purpose of improving the German system to look to other jurisdictions that have mature mediation systems.
FCC suspends hearing in NPD Party Ban Case
Authors: Hanebeck Alexander
Published: March 2019

In a unanimous, surprising decision the Federal Constitutional Court (FCC) announced last Tuesday, 22 January 2002, that the hearing in the NPD Party Ban Case - scheduled for five days in early and late February - was suspended. The Court did not yet set a new date. The Court explained that facts had now become known to the Court that raised serious legal questions which can not be resolved in the two weeks before the scheduled hearings. Even the decision from October 1st, 2001, in which the motions by the Bundesregierung (German Federal Government), the Bundestag (Federal Par-liament) and the Bundesrat (Federal Legislative Chamber of the Länder) seeking a ban of the extremist right wing National Democratic Party (NPD) were ruled to be admissible and not evidently unfounded is called into question by the Court. The FCC had been told by a senior civil servant from the Federal Ministry of the Interior that there would be one so-called “V-Mann” among the 14 people to appear as witnesses before the FCC at the scheduled hearing. The motions to ban the NPD build upon numerous sources in order to show that the NPD seeks to undermine or abolish the “freiheitliche demokratische Grundordnung” (free democratic basic order) and therefore must be banned under Art. 21 (2) of the German Basic Law (“Grundgesetz. Among those quoted is the V-Mann, Wolfgang Frenz, a former high-ranking official of the NPD. The rather drastic reaction by the FCC to these news is explained by the significance of the information about the V-Mann, an often dubious source (infra I.) and the way this information made its way to the Court, which is a scandal in itself (infra II.). The fallout from the decision will be the subject of the closing remarks (infra III.).
Putting the Consumer First?: The Varying Objectives of German and European Competition Policy
Authors: MacLaren Malcolm
Published: March 2019

Two recent decisions by a German regional court and the European Court of Justice have sparked a heated public debate on the Continent about the objectives of German and European competition policy. More specifically, the courts’ decisions in“Zentrale zur Bekämpfung des unlauteren Wettbewerbs” v. C&A Mode KGandZino Davidoff SA v. A & G Imports Ltdrespectively, have focussed attention on the proper place of the consumer in national and supranational competition policy. The local media, politicians, lobby groups, and the general public have with some exceptions reacted strongly against the alleged benefitting of ‘vested interests’ at the expense of the ‘general interest'. Calls for fundamental changes to the existing laws have accordingly been widespread and vociferous.
World Bank, IMF and Human Rights: Conference held at Tilburg University, 11-13 October, 2001
Authors: Gille Christina , Roos Stefanie Ricarda
Published: March 2019

The twin Bretton Woods institutions, comprising the World Bank and the International Monetary Fund (IMF), have in the past decades come under increased and intensified scrutiny, in particular as regards the social and environmental consequences of their activities. International awareness and criticism of the negative impacts of Bank and Fund projects grew during a period of time in which the concept of development has been entirely reconceptualized: Development is no longer measured in economic terms only, but understood as “a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals.”
Loyalty in the European Union. A review
Authors: Bitter Stephan
Published: March 2019

The accession of up to twelve East-European States to the European Union in the next decade is likely to change the possibilities for substantive consensus within the Union for the worse. Yet, the consensus on the means to pursue the objectives of the Union has thus far made European integration successful. Insofar as the feasibility of substantial consent between the Member States diminishes, the need to have rules and principles regulating the conflict between the relevant actors increases. These rules and principles must facilitate the creation of solutions to the new challenges that face the Union. Thus, it is essential for the Union's future that the law of the European Union offers both such rules and principles. One of the most outstanding principles which could perform this important task is the principle of loyalty as developed by the European Court of Justice (ECJ) based on Article 10 EC Treaty.
AfterPinochet: Foreign Sovereign Immunity in Respect of Serious Human Rights Violations - The Decision of the European Court of Human Rights in theAl-AdsaniCase
Authors: Rau Markus
Published: March 2019

For want of an effective and accessible universal system for redress of international human rights abuses, victims of human rights violations increasingly seek reparations in domestic civil courts. In the United States in particular, the federal courts, since the 1980Filártigadecision of the U.S. Court of Appeals for the Second Circuit, have already decided on a remarkable number of civil suits alleging human rights violations committed abroad, the most recent example of this trend being a class action of members and supporters of opposition political groups in Zimbabwe who invoke the so-called Alien Tort Claims Act (ATCA) against President and Foreign Minister Robert Mugabe with respect to alleged acts of torture. According to the proponents of such lawsuits, international human rights litigation in domestic civil courts can serve as an important tool in the worldwide effort to enforce international norms concerned with the protection of the individual which may complement criminal prosecutions of the offenders. As stated by Professor Stevens, who has litigated many of the international human rights cases in the U.S. federal courts, \\\“civil lawsuits for human rights violations […] serve a role similar to tort litigation in a domestic forum: to offer victims of violence a legal remedy which they control and which may satisfy needs not met by the criminal law system.\\\”
Calibrating Liberty and Security: Federal Constitutional Court Rules on Freedom of Speech in PKK Case
Authors: Wielsch Dan
Published: March 2019

In a recently published decision the Bundesverfassungsgericht (BVerfG – Federal Constitutional Court) was concerned with the basic right of free speech of PKK sympathizers. The decision draws a fine line between, on the one hand, preventative measures which aim to inhibit radical associations and, on the other hand, the protection of free speech which lies at the core of democracy. The Court's decision touches upon the debate about security triggered by the events of September 11th and Germany's proactive stance towards right-wing radicalism, characterized by the Court's present consideration of an application to ban the extreme right-wing National demokratischen Partei Deutschlands (NPD – National Democratic Party of Germany).
Germany Inc. Eroding? - Board Structure, CEO and Rhenish Capitalism
Authors: Zumbansen Peer
Published: March 2019

On May 22, Mr Rolf-Ernst Breuer, until then speaker of the managing board of Deutsche Bank AG (“Bank”), stepped aside to let Mr Josef Ackermann take his place in the small circle of leading managers of Europe's biggest banking institution. Mr Breuer takes the chair of the Bank's supervisory board, as is often practice for the departing Speaker in German stock corporations. This would – in and by itself – be less noteworthy were it not marking, at the same time, possibly a fundamental change in German company structure. The French newspaper, Le Monde, asked already ahead of time whether the event ought to be seen as a cultural revolution and other commentators are readily applying likewise vocabulary. Mr Ackermann has, for some time now and under immense press coverage, been ventilating his strong desires to change the inner workings and structure of the Bank's managing board and it is all but easy to decipher whether or not he ultimately will succeed in doing so and which other changes his initiatives eventually will bring about. The structural overhaul inside the Bank certainly takes place at a time where the Bank is facing financial pressure.
Identity Controversies Before the European Court of Human Rights: How to Avoid the Essentialist Trap?
Authors: Ringelheim Julie
Published: March 2019

In the last few years, several cases raising a very similar issue have been brought before the European Court of Human Rights (ECHR): all these disputes are centred around the identity of a certain group which the applicants claim to defend, while the State contests either the mere existence of this group as distinct from the rest of the population, or the terms used by the applicants to describe it. Two of these cases – Sidiropoulos and others v. Greece and Gorzelik and others v. Poland – bear upon the refusal of national Courts to register an association created to promote a ‘minority culture’ – the ‘Macedonian’ one in the first instance, the culture of the ‘Silesian national minority’ in the second. The Greek government argues that ‘Macedonians’ do not constitute a distinct ethnic group, and that the claiming of a separate ‘Macedonian identity’ is an attack against Greek symbols and history, if not against the territorial integrity of Greece. In the Polish case, registration was refused on the ground that the association wrongly alleged that the ‘Silesians’ constitute a ‘national minority', while, according to domestic Courts, they are ‘only’ an ‘ethnic group'. The other cases concern measures or sanctions imposed on the applicants because of the stance they took with respect to a particular community: the conviction of a Greek MP for having used the term ‘Turks’ during the electoral campaign to address the Muslim population of Western Thrace in Greece (Ahmet Sadik v. Greece); the dissolution of political parties in Turkey for having stated in their programme that ‘Kurds’ constitute a ‘minority', a ‘people’ or a ‘nation’ (Unified Communist Party of Turkey (TBKP) and others v. Turkey; Socialist Party of Turkey and others v. Turkey; Party of Freedom and Democracy (Özdep) v. Turkey); finally a prohibition on organising public meetings issued against an association promoting the alleged ‘Macedonian’ culture and history in Bulgaria (Stankov and the United Macedonian Organisation Ilinden v. Bulgaria).
The Limits of Eclecticism in Consumer Law: National Struggles and the Hope for a coherent European Contract Law. A Comment on the ECJ's and the FCJ's “Heininger”- decisions
Authors: Calliess Gralf-Peter
Published: March 2019

By order of 29 November 1999 the Federal Court of Justice (Bundesgerichtshof) referred to the European Court of Justice (ECJ) for a preliminary ruling under Article 234 EC two questions regarding the interpretation of the “doorstep-selling directive”, and the “consumer credit directive”, which arose in the course of proceedings involving Mr and Mrs Heininger, who took out from the Bayerische Hypo- und Vereinsbank AG bank a loan to purchase a flat, secured by a charge on the property (Grundschuld). Five years later they sought to cancel the credit agreement, maintaining that an estate agent had called uninvited at their home and induced them to purchase the flat in question and - at the same time acting on a self-employed basis as agent for the bank - to enter into the loan agreement, without informing them of their right of cancellation.
International Law, Democratic Governance and September the 11th
Authors: Macdonald Euan
Published: March 2019

It seems to be beyond any reasonable doubt that the events of 11th September 2001, and the subsequent responses thereto, will have profound and far-reaching effects on the discipline of public international law. What seems equally certain is that international lawyers in general, and particularly those schooled in the “European” approach to the discipline, will view these developments with varying degrees of gloom. In this article, however, I want to suggest that, in one small but fundamentally important area, the terrorist attacks may arguably have a positive effect on the progressive development of international legal norms.
Protego et obligo.Afghanistan and the paradox of sovereignty
Authors: Bothe Michael , Fischer-Lescano Andreas
Published: March 2019

Governance in Afghanistan is a complex matter. Afghanistan today is not only the territory of Pashtuns, Tajiks, Northern Alliances, Taliban and Al Qaeda, all of whom are competing for power. Afghanistan is also a social field of other political actors like Germany, the UK, the US, the UN and of the “Six plus Two” group. Is it governance without government?
International Criminal Law Has Lost Its Innocence
Authors: Ambos Kai
Published: March 2019

There was a principle, which read: \“All persons are equal before the law.\” It is this achievement of the French revolution with its quest for \“egalité,\” which is today enshrined in international human rights treaties and national constitutional law, including the American Constitution. This principle no longer seems to apply since the passage of Security Council Resolution 1422 (2002) of July 12th, at least not in international criminal law. It now reads: \“All persons are equal before the law, with the exception of those that are citizens of the United States of America.\” That the principle was set aside at the same time for other non-treaty parties of the International Criminal Court (ICC), above all China, Russia and India, does not improve the matter. They are joyful beneficiaries of the US initiative.
Essay – Episode or Epoch? Transatlantic Relations and Europe's Role in the New American Foreign Policy
Authors: Ackerman Bruce
Published: March 2019

For those concerned with the future of Euro-American relations, patience should be the order of the day. It is perfectly possible that the Bush Administration will turn out to be a short-term aberration.
Iraq and the Serious Consequences of Word Games: Language, Violence and Responsibility in the Security Council
Authors: Scott Craig
Published: March 2019

For some months now and with special intensity in the past few weeks, a battle over legal process – what may or may not the United States do militarily in Iraq without new authorization from the UN Security Council, and at what stage and under what conditions should a Council resolution give such authorization? – has simultaneously become a battle over what words in a resolution will be sufficient to count as implicit authorization. The current diplomatic discourse around a new Iraq resolution is focussing on one or more “hidden triggers” in the draft text presented by the US on October 21.
The Non-Execution Clause in the Relationship between the European Union (EU) and the African, Carribean and Pacific States (ACP)
Authors: Mbadinga Moussounga Itsouhou
Published: March 2019

It has became common for some States, international or regional organizations to establish a link between good governance, respect of human rights and the democratization of States. This idea is now a condition for development aid. Paragraph 1 of Article 5 of the Lomé Convention between the European Community (EC) and African, Carribean and Pacific States (ACP) of 15 December 1989, revised at Maurice 4 November 1995, provides that the politics of development and cooperation are closely linked to the respect and the enjoyment of fundamental human rights, to the strengthening of the rule of law and good governance. In Paragraph 2, cooperation is established as an instrument for promoting the enjoyment of economic, social, politic and cultural rights. The democratic clause contained in Article 5 of the Lomé Convention, and for which the respect of human rights, democratic principles and rule of law are essential elements of this Convention, firstly favours the achievement of positive actions in this framework and dedicates these elements as topics of common interests and a matter of dialogue. The European Union has stressed its willingness to develop a positive approach to these essential elements, which are the bedrock of the EU-ACP relationship besides being fields of cooperation and Community support. For that purpose, the Cotonou Agreement signed on 23 June 2000 strengthens this approach in Paragraph 2 of Article 9. The EU clearly places these essential elements at the heart of its partnership and defines the shared values that underpin this kind of relationship. It is in the spirit of common commitment to the respect and promotion of universal values that this approach has been taken.
Between Law and Necessity: The Federal Constitutional Court Confirms the Right of the Federal Government to Warn the Public(In Reply to Marion Albers)
Authors: Ruge Reinhard
Published: March 2019

TheBundesverfassungsgericht(BVerfG – Federal Constitutional Court) recently issued two leading decisions on the competence of the Federal Government to warn the public of poisoned wine and psycho-sects. In these recent decisions the court affirmed an earlier ruling and at the same time ignored the almost unanimously harsh criticism of it. For some two decades the question of furnishing information to the public on the part of the Federal Government has kept busy, to a remarkable extent, all levels of the judiciary and a great number of scholars.
The Decision of the German Constitutional Court on the Immigration Act
Authors: Becker Florian
Published: March 2019

Even experienced scholars will have to think for quite a while when asked to remember whether a similar situation has ever occurred: A tiny constitutional provision in the organisational part of the Grundgesetz (GG – Basic Law), not exactly neglected by learned writers but definitely never seen as a source of major problems, became the starting point of one of the most emotional outbursts German politics has ever experienced. The said provision, Article 51.3(2) of the Basic Law, dealing with the voting procedure in the Bundesrat innocently says that the votes of one Land's representatives “can” (“können”) be cast only unanimously. In order to understand the causes for the earthquake that struck the German political and constitutional system in the 774th session of the Bundesrat on 22 March 2002 it is essential to shed light on the structure and the constitutional role of the Bundesrat.