bluuebunny/crossref_metadata_2025 huggingface dataset:
European Community Resolutions and the Codification of ‘Private Law’
Authors: Alpa Guido
Published: April 2022

Alpa provides an examination of the problems and prospects for the development of a European private law. As a protagonist of the harmonisation of private law through codification, he first identifies the work in progress and some of the broad issues that have had to be addressed (such as the need to develop rules that transcend national characterisations of sphere of private law and the distinction between civil and commercial laws). He then sets out the advantages of a unified private law: rules in conflict between themselves in the various countries of the European Union can develop as a real market hindrance, while uniform private law rules emerge as conditions precedent for the implementation of the single market.

Projects directed towards the harmonisation of private law through codification have faced various criticisms. Alpa tries to address these. He notes first the trend towards convergence of (some aspects of) national laws that has been observed by comparative lawyers and the existence of unifying frameworks such as the constitutional law of the EU and the European Convention on Human Rights. He then briefly addresses three particular issues: (i) the problems allegedly created by the difference between common law and civil law structures, (ii) claims concerning value of legal pluralism and the undesirability of eliminating national cultural characteristics, and (iii) the argument that techniques of harmonisation other than the drafting of a Civil Code are more appropriate.

The paper concludes with a note on issues of the drafting and structure of a possible future Code.
Posting of Workers to Germany — Previous Evolutions and New Influences Throughout EU Legislation Proposals
Authors: Deinert Olaf
Published: April 2022

The German Posting of Workers Act, which has been in force since 1996, was revised at the end of 1999. This was, in part, due to the need for implementation of the EU Posting Directive on the one hand, while, on the other, the modifications were intended to abolish the practical difficulties appearing over recent years. The following contribution describes these evolutions and, furthermore, deals with a new proposal for a directive in the field of the posting of workers and its effects on German law.
Constructive Trusts and Insolvency
Authors: Gretton George L.
Published: April 2022

In English law, the expression “Constructive Trust” appears to be used in two different senses. (1) It is used to mean a trust which arises ex lege, as opposed to ordinary trusts, which arise ex voluntate. (2) It is used to mean an obligation arising out of unjustified enrichment. This double meaning has been, and continues to be, the source of much confusion. In a mixed legal system, which has inherited enrichment law from the ius commune, there is no room for sense (2). What about sense (1)? Scots law, like South African law, has the institution of trust. South African law rejects the constructive trust. In Scots law it is sometimes said to exist. But it is argued that, if it does exist, it is only in certain exceptional circumstances. The constructive trust is a dangerous institution, because of its capacity to subvert other institutions. An example is insolvency law, where the effect of the constructive trust is to subvert the paritas creditorum. That fact, combined with its conceptual innocence, makes the constructive trust unsuitable for export.
The Directive on the Sale of Consumer Goods and Associated Guarantees — A Milestone in the European Consumer and Private Law
Authors: Staudenmayer Dirk
Published: April 2022

The wide scope Directive on the Sale of Consumer Goods and Associated Guarantees (Directive 99/44/EC, dated 25. May 1999) is the most important consumer legislation adopted by the European Community. Furthermore, this Directive concerns one of the core areas of every national private law. This Directive is destined to be a milestone on the path to a unified European private law. It aims to improve the functioning of the internal market and to protect the consumer. Its scope is determined by the definitions of "consumer" and "seller" and it covers contracts of sale of consumer goods. Goods have to conform to the contract. The seller is liable where defective goods are delivered to the consumer. In such an event, the remedies of replacement, repair, rescission of the contract and price reduction are available to the consumer. The lack of conformity has to become apparent within two years as from delivery of the goods. The Directive includes a shift of the burden of proof in favour of the consumer. Member States have the possibility to introduce an obligation on the consumer to notify the defect within a set time period. The final seller has a right of redress against the person liable in the contractual chain. The Directive contains also a number of transparency obligations concerning commercial guarantees.
Generic or Sui-generis Law of Employment Contracts?
Authors: Mundlak Guy
Published: April 2022

The article questions the common assumption according to which the law of contracts must be applied differently to employment contracts. Although employment contracts are different from commercial contracts, the body of law designated as ‘labour law’ provides a plethora of legal instruments to accommodate these differences. However, the law of contracts is only one component of labour law. The fact that employment contracts are paradigmatic relational contracts as well as contracts in which there is an assumed asymmetry among the bargaining parties, can be addressed by the law of contracts while adhering to its generic premises. At the descriptive level, the article draws on Israeli law to demonstrate that the law of contracts is generally applied uniformly in both the employment and commercial contexts, despite judicial rhetoric to the contrary. At the normative level, it is argued that courts should avoid a sui-generis development of contract law. Deviating from the general law of contract should therefore be done by relying on the other components of labour law, namely statutory standards and collective bargaining.
The International Regulation of Maternity: Still Waiting for the Reconciliation of Work and Family Life
Authors: Murray Jill
Published: April 2022

This article analyses the revised Maternity Protection Convention, adopted by the International Labour Organisation (ILO) in June this year. The new convention is placed in the context of two trends. The first is the historical development of the cognisance of care responsibilities at the international level, from the early 'maternity protection' approach to more recent calls for a radical shift in the integration of work and care. It is argued that the ILO's rule-making continues to reflect an ideology of the 'separate spheres' of work and family, to the detriment of the interests of working women and men who have/wish to care for others. The second trend is the gradual evolution of the ILO's standard-setting function towards a focus on a small number of core rights. The deep ideological divisions which shaped this trend are also evident in the debates over the new Maternity Convention. In particular, appeals to national sovereignty and economic arguments were crucial in limiting the ILO's approach to maternity and care responsibilities. It is argued that there remains a legitimate role for the ILO in establishing aspirational standards, particularly where unregulated economic forces have not proved successful in bringing about the changes needed for true equality of opportunity and outcomes for women and men.
Flexible Qualification — a Key to Labour Law?
Authors: Numhauser-Henning Ann
Published: April 2022

This article argues that flexible knowledge (and thus continuous education) has the potential to out-date employment protection versus new forms of works as the touchstone of labour law discourse in the Knowledge Society. Hitherto labour law discourse has usually focused on labour market segmentation in terms of a core group of permanently employed workers and more peripheral groups of workers in atypical employment. However, recent Swedish labour market statistics show that employability in terms of qualification appears to be the crucial quality, regardless of mode of employment, when it comes to the risk for the individual of being subjected to unfavourable labour conditions, transfers and unemployment. This implies new challenges to labour law. Legally defined or negotiated rights to education and training is an important way forward. It is argued that while such rights as part of employment protection schemes seem to imply a strengthening of employer prerogatives as regards the functional flexibility dimension, a right to education and training as part of more general conditions of employment may work to the 'empowerment' of individual employees. What we need is 'a normative shift' as regards the employer's obligation, from an obligation to guarantee continued employment to an obligation to guarantee continued employability.
The EU Charter on Fundamental Rights: A Trojan Horse or a Mouse?
Authors: Betten Lammy
Published: April 2022

This paper contains a comment on the new Charter of Fundamentals Rights proclaimed at the Nice European Council (7 December 2000). The discussions on this new Charter have made it clear that some Member States are reluctant to accept that the EU has its own responsibilities in the protection of these rights and principles. The fear that the institutions will use the Charter as an excuse for expanding the influence of European law and politics has clearly blurred the view of many; in that sense the Charter may still become a missed opportunity. The author concludes that the 2000 Charter will not directly affect workers' rights at the national level, nor will it lead to immediate changes in the judicial protection of workers in the European Union however; the Charter may serve as a source of inspiration for further EU action.
Collective Bargaining and Antitrust Laws: An Open Issue
Authors: Ichino Pietro
Published: April 2022

Starting from the recent ECJ decision in Albany, this article tries to rebuild the historical reasons of the possible contrast between collective bargaining and competition law. Moving from this historical analysis, the author shares the dissatisfaction expressed in the first comments on Albany. The less convincing is the Commission's thesis, according to which collective agreements could not fall within the notion of 'agreement among enterprises', contained in Art. 85 (now 81) of the Treaty. This is the reason why the author argues that we need a wide-ranged confrontation between labour law and competition law. Finally, the author identifies some hypotheses on the way in which law and economics may interact in this matter, either on the level of the legislation in force or on that of the future one.
Sweden- Delayed Reforms Due to the Consumer Sales Directive?
Authors: Sivesand Hanna
Published: April 2022

This article deals with the impact of the EC Directive on Consumer Sales on Swedish Law. The two major areas discussed are time-limits and guarantees. The Directive does not influence Swedish Law a great deal, since both the Directive and Swedish Sales Law have been strongly inspired by the CISG. Concerning some details the law will become clearer and more understandable to the consumer. On the other hand the Directive has unfortunately seemingly delayed reform in several fields, notable in the area of guarantees and also a proposal to prolong the time-limit for the consumer's legal rights due to a lack of conformity in the goods from two to five years was postponed indefinitely. The Swedish legislator will present a proposal with amendments to the Consumer Sales Law at the beginning of 2001, where these reforms now hopefully can be adopted.
The Transposition of Directive 99/44/EC into Austrian Law
Authors: Jeloschek Christoph
Published: April 2022

The author starts by describing the possible methods of implementing the Directive. In this context, fragmentation of the Law of Sales and its consequences are addressed. The Austrian situation is used as an example of the importance of this (formal) issue. After this general introduction to the problems inherent in the process of implementation the proposal for a new regime on Gewährleistung is discussed. Basically, three main points of interest can be discerned: the attempt to reform the general sales law — as opposed to creating a separate consumer sales law; the implementation of the right to redress; and the impact of the Directive on the regime of damages. With regard to the latter issue, it is interesting to note how legal viewpoints can differ within the European Union even though they have in common the Directive as point of departure. In addition, a brief overview of the other problems posed by the Directive aims to provide a coherent picture of the impact of the Directive on Austrian Law.
In Conformity with the Consumer Sales Directive? Some Remarks on Transposition into Dutch Law
Authors: Hondius Ewoud H. , Hondius Ewoud H.
Published: April 2022

This paper first provides a succinct overview of Dutch Private Law. It then compares the scope of application of the directive and Dutch sales law. Basically, the Dutch law on conformity is in conformity with the directive. There are some discrepancies which need not be remedied. Other divergences, however, will have to be addressed by the legislature. An interesting feature of Dutch sales law is that it demonstrates that the transition of a 'vice caché' based model to the CISG-oriented non-conformity model may be a smooth process. Dutch law on remedies is not completely in conformity with the directive and will therefore have to be remedied. Dutch law does not have any provision on guarantees and in this regard will have to be amended. On the whole, the impact of the directive on the legislative process will be minor. Its major effect will be witnessed in the globalisation of legal discourse.
The Complex Landscape of Oligopolies under EU Competition Policy; Is Collective Dominance Ripe for Guidelines?
Authors: Briones Juan , Padilla Atilano Jorge
Published: April 2022

We find at present that there appear to be three different approaches to oligopolies and collective dominance under the EU competition policy: (i) the approach based on economic models of collusive behaviour, used predominantly under the Merger Regulation, (ii) the specific approach to maritime conferences, used predominantly under Article 82, and (iii) the approach followed in the Irish Sugar case, where collective dominance is applied to two firms in a vertical relationship, as opposed to a group of competitors.

It has to be borne in mind that a very frequent configuration of supply in relevant markets shows leading groups of less than four suppliers accounting for a large combined share of output. And also that the Court of Justice has given the Commission a wide margin of discretion to assess the conditions of competition in oligopolistic markets. Finally, the decision in the Airtours/First Choice case has extended the boundaries of the situations under which the Commission may find an oligopoly to be in a collective dominant position, by focusing on a notion of rational incentives, and playing down other factors (transparency of the market, symmetry between the members of the oligopoly) that had been taken prominently into account in previous decisions.

This combination of factors pleads for the adoption by the Commission of some sort of guidance on how it assesses oligopolies under competition rules. The Commission has made a considerable effort in clarifying its policy by adopting guidelines on market definition, and vertical and horizontal restrictions of competition, among others. These guidelines could usefully be completed with guidelines on the treatment of oligopolies under EU competition policy.
The European Employment Strategy and the 'Acquis Communitaire' of Labour Law
Authors: Bruun Niklas
Published: April 2022

The Employment Title inserted by the Amsterdam Treaty is usually described as a very typical soft law product. This article explores the relationship and mutual influence between the Employment Title and the regulation associated with it, on the one hand, and the 'Acquis Communautaire' of Labour law on the other. The conclusion is that a shift of paradigm in EC labour law seems to have taken place in the late 90s. Labour law after the Amsterdam Treaty is regarded as an integral part of the European Employment Strategy (EES) and as a tool for its implementation. Employment policy, social inclusion and the promotion of socially sustainable development have become important elements in the social objectives of EC labour law. In other words, the EES has become the accepted framework, not only for the employment and social policies of the Member States, but also for coordinating national legislation in the field of social policy and labour law. This is the result of the 'soft law' co-operation.
Towards a European Law of Service Contracts
Authors: Loos Marco B.M.
Published: April 2022

For a number of decades now, services have been the motor on which modern economies run. In societies such as ours, new services and therefore new contracts emerge almost daily. However, at present neither at a national level nor at the level of the European Union, a coherent legal framework exists on the basis of which service contracts may be regarded. The lack of general rules on service contracts makes it hard to appreciate new forms of service contracts and to deal with them in a satisfactory way. The Law of Services has therefore become an inconsistent body of diverging and contract-specific rules. The author argues that there is need for a functional study of service relations and that the results of such a study may be used for the creation of a more uniform Law of Services.
Cour de Cassation, 12.11.98 'Les Pouvoirs et les Obligations — de l'usufrutier Spanish Case Note
Authors: Jordán Elena Sánchez
Published: April 2022

The French High Court considers an investments' portfolio as a single good (universalité) in a case in which the widow (usufructuary) receives the legacy of the usufruct of all of her husband's goods. At the same time, and bearing in mind that securities are not consumable things by their first use, this decision authorizes the usufructuary to manage this portfolio transferring the securities, as far as they are replaced by others. The usufructuary has to act always within one limit: preserving the thing's substance, even when, like in our case, she has received the dispense of her duty of paying a guarantee to secure that she is going to act with due diligence (as allowed by article 601 Code civil). In Spanish law we find no judicial decisions in this sense, but it is possible to try to find a solution, applying whether the quasi-usufruct rules (article 482 Spanish civil Code), whether the article that rules the herd's usufruct (article 499), in which a group of animals is handled as a single good. The former benefits the bare owner and the latter, the usufructuary. In this attempt we may receive some help of the following institutions: The mortgage on a business house; the administration by the parents of their children's goods; and the possibility ruled in the catalonian law (no. 22, of 29th november 1991) about guarantees on movable things, that allows the pledge of a 'group of securities' (articles 11 and 12).
BGH Urteil vom 11. Dezember 1998 — Zur Rechtlichen Einordnung eines Wiederverkaufsrechts — Anwendbarkeit der §§ 497, 498 BGB und Gewährleistung Greek Case Note
Authors: Papadopoulou-Klamaris Dimitra
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.
Compensation for Forced Labour During World War II in Nazi Germany
Authors: Seifert Achim
Published: April 2022

55 years after the end of World War II and after long and difficult negotiations with victims' organizations, the German Parliament passed the ‘Act Establishing the Foundation “Remembrance, Responsibility and Future”’ on 2 August 2000 which provides compensation payments for persons who were subjected to forced labour in the German war economy between 1939 and 1945. With this new legislation, a long debate that began at the end of World War II, is finally coming to an end. This article outlines the different steps in the compensation debate and analyzes the new German compensation legislation of 2 August 2000.
Hof van Cassatie van België / Cour de Cassation de Belgique, 14-5-1999: When Does a Freezing Order Become Effective Against the Debtor of the Receivables? Introduction from Belgium
Authors: Storme Matthias E.
Published: April 2022

When a debtor is notified by a bailiff that his creditors' claim is seized, Belgian law imposes several obligations on that debtor. From the time at which the act of seizure was received, the debtor of the seized claim cannot deliver or pay any longer or can be declared debtor of the seizing party himself (art. 1451 Belgian Judiciary Code). Further, he is obliged to make, within 15 days, a declaration specifying the seized sums or goods (art. 1452 Belgian Judiciary Code). These different effects do not necessarily come into force at the same moment. Although the period of 15 days for the obligation to make a declaration runs from the moment the seizure was notified, the debtor cannot be declared debtor himself because he paid or delivered despite the seizure, unless at the time he did so he knew or should have known the act of seizure.

This decision gives us the occasion to comment on the rules on the effects of notice in general, especially under Belgian, Greek, Dutch and English law.
ECJ C-240/98 — C-244/98, 27 June 2000, (Océano Grupo Editorial and Salvat Editores) Scottish Case Note
Authors: Hogg Martin , Pinna Andrea , Arnokouros Georgios I. , Cascão Rui
Published: April 2022

The Océano Grupo Editorial is the first case referred to the European Court of Justice for a preliminary ruling regarding the interpretation of the Council Directive 93/13/EEC on unfair terms in consumer contracts (OJ 1993 L 95, p.29). The request for a preliminary ruling was made by a Court of First Instance in Barcelona.

The proceedings before the Spanish Court concerned the payment of sums due under the sale contracts concluded between the companies (plaintiffs) and a number of buyers (defendants). Each of the defendants, who all were Spanish residents, had entered into a contract for the purchase by installments of an encyclopaedia for personal use. The contracts contained a term conferring jurisdiction on the courts in Barcelona, a city where the plaintiffs had their principal place of business but in which none of the defendants was domiciled. When the defendants did not pay the sums due on the agreed days, the sellers brought actions before the courts in Barcelona in accordance with the jurisdiction clauses. The judge of the Court of First Instance in Barcelona emphasized that the Tribunal Supremo has held jurisdiction clauses of the kind at issue to be unfair. However, the Court was less confident on the question — and therefore it addressed it to the ECJ — whether the scope of the Directive on unfair terms is such that the national court may determine of its own motion whether a term of a contract is unfair when making its preliminary assessment as to whether a claim should be allowed to proceed before the courts.

First, the ECJ regarded the jurisdiction clause of the kind at issue to be unfair within the meaning of article 3 of the Directive. Secondly, as to the aim of article 6 of the Directive, which requires Member States to lay down that unfair terms are not binding on the consumer, the ECJ argued that such aim would not be achieved if the consumer were himself obliged to raise the unfair nature of such terms. Thus, the ECJ held that the protection provided for consumers by the Directive on unfair terms entails the national court being able to determine of its own motion whether a term of a contract before it is unfair when making its preliminary assessment as to whether a claim should be allowed to proceed before the national courts. In particular, the requirement for an interpretation in conformity with the Directive required the national court to favour the interpretation that would allow it to decline of its own motion the jurisdiction conferred on it by virtue of an unfair term.

The case has also been reported in the Common Market Law Review, 38:719–737, 2001, with a note by Jules Stuyck.
Judicial Resolution of Jurisdictional Conflicts between Trade Unions in Nigeria
Authors: Nwauche Enyinna S.
Published: April 2022

This article analyses a number of cases as a basis for examining the judicial resolution of jurisdictional conflicts that have arisen between trade unions in Nigeria due to a number of restructuring exercises. These conflicts arise from ambivalence between product market and labour market lines adopted by these exercises. The article concludes that the courts have not shown a consistent trend in determining the basis of unionization and recommends the labour market principle to Nigerian courts as a basis of conflict resolution that will lead to an enhanced organizational efficiency of Nigerian trade unions.
Globalisation and the Right to Strike: The Case for European-Level Protection of Secondary Action
Authors: Novitz Tonia , Germanotta Paul
Published: April 2022

This article advocates for the protection of the right to strike, including the right to take secondary action, under EC law. This is based on the premise that, if workers are able to organise and act across national boundaries, they may be able to address challenges to established working conditions often associated with globalisation of investment and production. The suggestion has been made, that the EU's protection of such rights would be consistent with its present recognition of the value of collective bargaining at the national and trans-national level. A strong case also exists for the protection of secondary industrial action under EC law on the basis that the objective for market integration could override objections based on the principles of subsidiarty. Finally, the EU is clearly in a better position to secure an enforceable right to strike than the International Labour Organization and the Council of Europe. In this article, the UK is considered as an example of an EU Member State whose labour laws inhibit transnational bargaining and solidarity between workers. The article also discusses criticism of the UK's stance by the Council of Europe and the ILO, noting that this has had little impact on UK domestic policy. The authors then go on to examine the historical reluctance of the EC to intervene in this field. They conclude by making the case for political change, namely amendment of the EC Treaty, so that such intervention becomes possible.
Limitation Periods and Remedies under EC Legislation — The Arkin Case
Authors: Scanlan Gary , McGee Andrew , Gale Sarah
Published: April 2022

The Arkin case demonstrates that the principles applicable to limitation periods in a domestic legal system cannot necessarily be applied to actions arising under European law, even where these actions are brought in the domestic courts. A more sophisticated approach is needed, which will take into account the particular type of action and the particular remedy sought.
Good Faith: A Semiotic Approach
Authors: Auer Marietta
Published: April 2022

The meaning, function and desirable scope of good faith in contractual performance is one of the most pervasive problems of European as well as American contract law. Yet, the discussion seems to be locked into a set of inescapable dilemmas which frequently reappear as a typical, but unsatisfactory part of academic contributions and judicial opinions; namely, the controversies between an individualist ethics of freedom of contract and the opposing altruist value of interpersonal responsibility, between the danger of judicial arbitrariness and the demand for equitable flexibility, and, finally, between the legitimacy of judicial law making and the insistence on judicial restraint. This article attempts to show a pattern behind this structure, consisting of a relatively small set of typical arguments which appear in ordered pairs of diametrical oppositions such as those mentioned above. This suggests that good faith language is much less tailored to context and much more dependent on a preexistent structure of stereotyped arguments than it usually appears in the practice of legal discourse. This insight implies a new assessment of the cogency of argument patterns deployed in theoretical and doctrinal statements on good faith.
The Principle of Equality in the Labour Market — Reflections on the Spanish Model
Authors: Bravo-Ferrer Miguel Rodríguez-Piñero , Royo Miguel Rodríguez-Piñero
Published: April 2022

The principle of equality is one of the fundamental principles of the modern Spanish legal order. Article 14 of the 1978 Constitution enshrines the equality of all citizens before the law and provides for a general prohibition on discrimination. The interpretation of Article 14 has given rise to a considerable body of case-law in the field of employment. While the Constitutional Court has perhaps been excessively reluctant to use the constitutional power to strike down legislation in this context, it has used Article 14 in a creative way to extend the role of human rights within the employment relationship, tackle control covert forms of discrimination, and address the structural and historical sources of group disadvantage.
Innovative Business Forms for High Tech Start-ups in Europe
Authors: McCahery Joseph A.
Published: April 2022

This paper will examine the theoretical arguments for and against the importance of new business forms for the growth of start-ups. Part I briefly reviews the recent history of business organization law innovation within Europe. Our review of extant European business forms reveals that absence of new business entities (and structural reforms) may be due to status quo bias and other network effects. Turning to the importance of new business forms for the growth of start-ups, Part II addresses the question which organizational and legal structures are favourable for the growth of start-ups. It is suggested that the introduction of an efficient organizational form for start-ups is crucial to further stimulate the development of a successful venture capital market in Europe. In Part III we give consideration to the possibility of developing new business forms, based on US mechanisms, which could lead to an increase in the level of start-ups. The prospect for the emergence of new business forms depends in part on the removal of legal and non-legal barriers. The next section evaluates whether we can project a pattern of regulatory competition in the business organization context that could stimulate lawmakers to innovate by introducing new legal entities.
The Common Core of European Private Law in Boxes and Bundles
Authors: Kasirer Nicholas
Published: April 2022

The prevalence of visual representations of legal ideas in accounts of the “Common Core of European Law” at Trento (Italy) serves to fix lawyers' attention on law-as-shape rather than law-as-word, as the shape or representation explains the legal idea in a way that words alone cannot. This recognition of the viability of non-verbal communication in law suggests that Trento scholars view the law of the common core, notwithstanding the choice of English for its language of expression, as fundamentally meta-linguistic. Indeed the Trento project, which involves scholars who typically work in the broad range of languages most generally associated with the formal expression of their own national law, appears to have adopted the idea that law has no necessary relationship with the words or the language ordinarily used to give it expression as a working postulate. The dynamic established between law and language at Trento demonstrates — obliquely but assuredly — that law and language can be disconnected: that the common law tradition, for example, has no natural or necessary relationship with English that confines it to that language any more than the civil law in the French tradition is bound up in some hexagonal linguistic form or Parisian idiom. Moreover it should also ground the view that the law of the common core — assuming such a category exists — belongs to all the languages of Europe and to none of them.
BGH, Urteil vom 23 September 1999 — Zum Vergütungs-anspruch eines ‘Erbensuchers’ gegen einen ermittelten unbekannten Erben
Authors: de Medeiros Nóbrega José Carlos , de la Riva Begoña Alfonso
Published: April 2022

The decision of the BGH was based on the following facts: The claimant made a living as an ‘heir locator’. Following an advertisement published in the Bundesanzeiger on behalf of the probate court inviting the heirs of an estate to make themselves known, the claimant identified the defendant and his sister as the deceased's intestate successors. He indicated this to the defendant and offered to make full disclosure to him of the particulars of the estate after conclusion of an agreement for a fee of 20 per cent of the inheritance due to him plus VAT. The defendant refused the contract offered and himself traced the inheritance on the basis of the information provided by the claimant; he obtained assets amounting to almost 50,000 Euro as a result. In his action the claimant demanded payment of 20 per cent of that sum plus VAT. The claim failed, both before the Landgericht and the Oberlandesgericht as well as before the BGH.

In its reasoning the BGH indicated that the claim to a fee could not be based on a right arising in negotiorum gestio under §§ 683, 670 BGB or §§ 684, 812 BGB. Admittedly the location of an heir could constitute an undertaking which was also in another's interest, and the matter would turn on whether the factual presumption of an intention to manage another's affairs (equally applicable to an undertaking which was also in another's interest) was rebutted. That way of formulating the issue, however, would misconceive the approach to the allocation of risk which should follow from the principles of private law, and in affirming the presence of an intention to manage another's affairs would lead to results which would not be intrinsically appropriate and would not do justice to the interests in focus. In the first place, it is the preparation and opening of negotiations which is in issue. The heir locator intended to ‘sell’ the information he had uncovered and thus carried the risk that the negotiations might fail. According to the rules of private law one's own preliminary expenditure should remain unrecompensed. The fact that the claimant had in part already conveyed his results to the heir does not change anything: there is no obligation to provide recompense for unsolicited communication of information; a consideration for that service is payable solely on a contractual basis. Secondly, the acceptance of a negotiorum gestio would lead to the unfair result that were multiple heir locators to operate independently of one another the heir would see himself burdened with claims from all of those tracing him and his estate and, though notified by the first of them, would not be able in relation to the others to rely on the fact of his prior knowledge — as is the case with multiple brokers.

The following contributions examine the decision from the perspective of Austrian, Portuguese, Spanish and English and Irish law.
BGH, Urteil vom 20.10.1999 — Orient-Teppichmuster — Zur Frage der Irreführenden Gestaltung Einer Werbebeilage
Authors: Koppensteiner Hans-Georg , Paz García Rubio María
Published: April 2022

The decision of the German Federal Supreme Court was based on the following set of facts:

The defendant was a sole trader in Berlin selling carpets and carpeting. As an insert in a Berlin newspaper he distributed the brochure “Fantastic Choice of Chinese carpets”. On page 4 of this, under the heading “consistent good value”, carpets with Persian patterns were pictured which bore descriptions such as “K. Medaillon-Moud”. “K. Birdjend” or “K. Herati”. The carpets concerned were machine made. The claimant, an association with legal personality, established in order to oversee compliance with the rules relating to unfair competition, considered that this advertisement was misleading and sought an injunction. As the basis for this it was alleged that the format of the brochure and the lay-out of the advertising would lead the reader to think, in the absence of any express reference to the fact that the carpets concerned were woven, that hand-knotted oriental carpets were being advertised.

The courts at first and second instance allowed the claim for an injunction, but the Federal Supreme Court dismissed it. In substance the reason for this was that, in answering the question whether advertisements or leaflets conveyed a misleading impression, reference was not to be made to the passing consumer when the goods concerned were not without some value and were reasonably durable (here: carpets). The standard of care of the averagely well-informed and sensible average consumer, whose level of comprehension was decisive, depended on the situation in question. Furthermore, the expressions “passing” and “sensible” were not mutually exclusive. The reader of the advertising brochure in question, who was interested in the acquisition of a carpet, would also read the explanations in small print under each picture, and therefore would not be misled into thinking that an original oriental carpet was being advertised.

The following authors examine the decision from the point of view of Spanish and Austrian law.
The Role of Specific Intent in Section 1 of the Sherman Act: A Market Power Test?
Authors: Odudu Okeoghene
Published: April 2022

Whilst there is an increasing tendency to look exclusively to economics for solutions to the problems of antitrust, this paper defends the role of specific intent. In Barry Wright Corporation v. ITT Grinnell Corporation, Judge Stephen Breyer seemed to reject any role for specific intent in antitrust analysis, a sentiment reaffirmed by Judge Frank Easterbrook in A. A. Poultry Farms v. Rose Acre Farms. This paper argues that since economics fails to provide a determinative test for market power, the courts can and have used specific intent, as a non-economic market power test in applying § 1 of the Sherman Act. After explaining the rationale for using specific intent as a market power test and showing that it has been used as such by the courts, I argue that Judges Bryer and Easterbrook rejected only certain methods of determining specific intent, rather than the utility of the concept in antitrust.
Fixed-term Work in Nordic Labour Law
Authors: Numhauser-Henning Ann
Published: April 2022

This article describes the regulation of fixed-term work and its most recent developments in Denmark, Finland, Norway and Sweden. Regulations are analyzed against the background of the Fixed-term Work Directive 1999/70/EC. Legal developments of employment protection and the scope of fixed-term work are supposed to interrelate. Norway has the lowest incidence of fixed-term work (9 per cent in 2000) followed by (neglecting Denmark with 10.2 per cent in 1999) Sweden and then Finland (13.9 per cent and 18.2 per cent in 1999, respectively). This reflects the relative differences regarding the legal scope for fixed-term work. Denmark represents a legal system without any statutory restrictions on the use of fixed-term work. In Finland the legitimate scope for fixed-term contracts is restricted to those cases in which there are justifiable reasons. In Sweden legislation forms a rather intricate pattern of restrictions in the form of requirements on justifying reasons for and/or maximum duration of such contracts. Norway has the most strict statutory framework. The approach thus varies a great deal. The Danish solution — because of lower barriers in between the different modes of employment — is claimed to be closer to the equal treatment approach than Norwegian and Swedish law (as it stands) and is in this sense closer to the Fixed-term Work Directive.
Why and to What Extent a Common Interpretative Position for Mixed Agreements?
Authors: Karayigit Mustafa T.
Published: April 2022

The phenomenon of mixed agreements has become the main feature of external relations of the Community legal order and it also is to become the main feature of external relations of the European legal order. With regard to this phenomenon the paper examines whether, to what extent and why a common interpretative position is followed by the ECJ for provisions of mixed agreements so as to shed light on the characteristics of the existence and exercise of competences of both the Community and the Member States in the external sphere in the light of case law to better understand a true structure of the Community legal order. The paper has two main arguments. Firstly, the paper asserts that neither the existence nor the exercise of external competences of the Community could be confined to its exclusive external competences, since the Community also nonexclusively exercises its external competences. Secondly, given that competences are demarcated within the Community legal order in an objective-oriented way in furtherance of the Treaty objectives, the shared and complementary characteristics of the national competences signify the incorporation of shared national competences into this legal in order to be exercised within the Community framework. It no longer is possible, upon the European constitutionalization process, to describe national competences as merely one type.
Public Opinion and the Development of the European Security and Defence Policy
Authors: Oppermann Kai , Höse Alexander
Published: April 2022

This article argues that public opinion will become an increasingly significant constraint on European-level decision-making with regard to implementing and further developing the ESDP. The thesis is based on a theoretical concept that identifies two necessary preconditions for public opinion to impact upon governmental foreign policies, namely the public salience of foreign policy issues and the public’s opportunity structures to influence foreign policy decision-making. Any initiative to put into practice or extend the ESDP will have to be pursued in a political environment in which both preconditions will generally be met. First, the ESDP’s actions and aspirations touch upon issues that are of great salience to European publics. Second, European publics are provided with ample channels of influence to constrain European integration in this field via their respective national governments. Thus, the prospects of further developing the ESDP will depend increasingly on supportive public opinions in EU Member States.
Mapping-Out the New Contractual Relations between the European Union and Its Neighbours: Learning from the EU–Ukraine ‘Enhanced Agreement’
Authors: Hillion Christophe
Published: April 2022

The European Neighbourhood Policy envisages the establishment, in due course, of a new type of bilateral agreement between the Union and the ENP countries, designed to replace the existing agreements between the Union, and its East European and Mediterranean neighbours. In January 2007, the Council adopted the negotiating directives for an ‘enhanced agreement between the European Union and Ukraine’. This decision follows an earlier Commission recommendation that the new agreement be comprehensive, binding and durable. The new treaty with Ukraine will be significant. Not only does it concern a key ENP player, it will also be the first of the new generation of agreements foreseen by the Neighbourhood Policy. The present paper thus seeks to examine this envisaged EU–Ukraine arrangement with a view to shedding light on the possible contours and contents of the new contractual framework that should govern the EU relationship with its neighbours.
That Elusive Object of Desire: Canadian Perceptions of the European Union
Authors: Croci Osvaldo , Tossutti Livianna
Published: April 2022

The paper first gives an historical review of the evolution of the relationship between Canada and the EU. It then looks at Canadian governmental perceptions of the EU through an analysis of parliamentary debates, reports of House of Commons and Senate committees, official papers released by the ministries of Foreign Affairs and International Trade and the election platforms of five federal political parties. Finally, it examines the perceptions of the non-governmental sector, which includes an analysis of the content of three newspapers, commercial and academic public opinion polls as well as documents and press releases from Canada’s principal business and labour organizations, and the research archives of non-partisan think tanks. The picture that emerges from this review is that, in Canadian eyes, the EU is primarily an important international economic actor with large and attractive markets of which Canadian companies have yet to take full advantage. In the absence of a transatlantic free trade deal, however, it is likely that Canada, while continuing to solidify its relationship with the USA, will begin looking with more interest to Asia.