bluuebunny/crossref_metadata_2025 huggingface dataset:
Re-generating Europe through Human Rights? Proceduralism in European Human Rights Law
Authors: Dawson Mark
Published: March 2019

The present-day EU, as is well known, faces a serious crisis. As contributions to this volume make clear, that crisis is political as much as it is economic. Developments such as the limitations on national democracies established via thegolden rule, as well as the exclusion of parliaments from EU decision-making, illustrate the grave challenges to democracy brought about by the EU's response to the euro crisis. Given this context, the task of regenerating Europe is primarily a political task. It would be strange indeed to address such a crisis by turning to a seemingly apolitical tool, such as human rights. Accordingly, human rights—anti-majoritarian and legalistic—seem to be in full retreat from the kind of adversarial politics needed to reorient the European project along more democratic lines.
Administrative Constitutionalism and the Political Union
Authors: Hartmann Moritz
Published: March 2019

Between the relics of a nation state past and the promises of a transnational future, the normative evolution of the European Union has rightly been described as “an international legal experiment.” Europeanization, in that sense, has been construed as an experimental legal mode for the integration of national economic diversity through harmonized regulation. Even though the European Union's operating code has remained decisively economic, the normative matrix itself has transcended the historical objective of economic homogeneity. European integration therefore experienced anormative turnafter the completion of the single market; the European Union progressively captured the social space of the continent, evolving into asocietal experimentof normative imagination and cultural plurality, taking it beyond economic integration, market freedoms, and monetary stability.
Sustainable Corporations in Non-Financial Sectors Through Optimal Design of Executive Pay
Authors: Hansen David
Published: March 2019

It is commonplace in current legal scholarship that pay packages for executives that were not tied to the impact of these executives' policies on shareholder wealth maximization often caused harm to shareholder interests and their companies, especially in the long term. The no-pay-without-performance postulate is as old as the first global economic crisis of the 20thcentury – the deep depression. Since then, this postulate has been repeated and substantiated innumerous times by the majority of experts in corporate law and business economics, but without real success. There are, however, commentators who deny the existence of a link between skewed incentive pay, excessive risk-taking, and financial losses. They instead insist on the superiority of the traditional director-centric model of corporate governance, which would allegedly preserve the balance that has generally worked well between the limited role and limited liability of shareholders and the active role, fiduciary duties, and potential liability of managers, which allegedly renders additional executive pay regulation unnecessary.
Constitutional Rights and Democracy: A Reply to Professor Bellamy
Authors: Waluchow W.J.
Published: March 2019

In his rich and thoughtful paper, Richard Bellamy sketches a theory of individual rights that ascribes to them an inherently democratic character that “is best captured by a republican view of liberty as non-domination, rather than the standard liberal account of liberty as non-interference.” According to this view, “rights involve an implicit appeal to democratic forms of reasoning.” That is, the only justifiable “foundation of rights must be some form of ongoing democratic decision making that allows rights to be claimed under conditions of political equality.” Bellamy uses this particular model of rights to defend a somewhat unique thesis concerning the legitimacy of judicial review under a constitutional charter or bill of rights (henceforthconstitutional review). Many legal theorists question whether constitutional review can ever be rendered consistent with the theoretical and practical demands of democracy. According to these theorists, democracy embodies a form of self-rule whereby the members of a society establish and exercise legitimate authority over themselves. But self-rule seems seriously compromised once constitutional review enters the picture. Instead of having the people and their elected representatives setting the basic terms of social cooperation, we have instead a small group of elite, unelected, and unaccountable judges performing this vital task. Constitutional review empowers these individuals, in constitutional review cases, to substitute their own contestable views and preferences with respect to the basic terms of social cooperation for the duly considered views and preferences of the people and those whom they have duly elected to represent them. This is something one simply cannot tolerate in a democracy.
In Search of a First-Person Plural, Second-Best Theory of Constitutional Interpretation
Authors: Győrfi Tamás
Published: March 2019

The purpose of this paper is not to argue for a particular approach to constitutional interpretation, but to map the domain thereof and clarify the requirements that an adequate theory of the subject must meet. A comprehensive constitutional theory has to address bothhowandby whoma given constitution should be interpreted. While everyone admits that these two issues are not entirely unrelated, many constitutional theorists presume that a theory of constitutional interpretation can usefully insulate these two questions. The argument is that once we have answered the question of who will interpret the constitution and we have made a decision on institutional design, we can then focus our efforts on the proper method of interpretation. Although I do not deny that the two questions can be analytically separated, my contention is that a theory of constitutional interpretation focusing only on the how question is wholly inadequate.
Constitutional Reasoning and Political Deliberation
Authors: Pinelli Cesare
Published: March 2019

In the recent Anglo-American scholarly debate, contrary to that of continental Europe, judicial review of legislation raises strong criticism for various aspects. Among these, I will examine the claim that legislators are better equipped than courts in constitutional reasoning, on the ground that the institutional settings and procedures affecting the former ensures a better protection of rights than those that characterize the judicial function. The following questions will be posed: Do legislators primarily deal with rights as such? Do they reason about rights, and in that case for which purposes? Are these purposes sufficiently similar to those affecting the judicial reasoning about rights? Why in most legal orders courts are bound to reason-giving? While answering these questions, I will outline the different meaning that consequentialist reasoning is likely to acquire, respectively, in representative assemblies and on the bench. I will then classify the kinds of juridical consequences, and of the corresponding premises, that might affect constitutional reasoning according to the different weight of judicial construction. Finally, I will attempt to demonstrate why the indeterminacy of principles on which constitutional reasoning is expected to rely should be viewed as enhancing, rather than as distorting, the insight of courts on the right at stake.
Judicial Reasoning in Constitutional Courts: A European Perspective
Authors: Jakab András
Published: March 2019

“In the beginning was the Word.” This quote from the Holy Bible also stands on the ceiling of our discipline's temple. The job of legal scholarship is interpreting, and the base of every interpretation is the word.

In this paper we are going to analyze how constitutional courts are able to extract the most meaning from a, necessarily, short text, such as a constitution, with the use of sophisticated tricks, or methods, of interpretation. Partly with the help of these methods, and partly on the basis of text-independent speculations, constitutional courts and legal scholars are able to develop a system of concepts (aRechtsdogmatik, or its specific constitutional part, theVerfassungsdogmatik) considerably more sophisticated than the one of the actual text of the constitution in order to serve as a helping toolkit for the solution of future cases. After analyzing some preliminary issues in part A, the largest part of this study will deal with the different methods of constitutional interpretation in part B. Then, the nature of this conceptual system will be analyzed in part C, before turning to the question of styles of constitutional reasoning in part D. The analysis concentrates on the practice of European constitutional courts, though for purposes of classification and comparison, non-European practices will also be mentioned.
Dissenting Opinions in Constitutional Courts
Authors: Kelemen Katalin
Published: March 2019

Although long considered alien to the civil law tradition, the publication of separate dissenting or concurring opinions is now permitted by the majority of European constitutional courts, the only exceptions being the Austrian, Belgian, French, Italian, and Luxembourgish constitutional courts. The decades-long history of dissenting opinions in the practice of several European constitutional courts calls for an analysis. While there is an extensive literature in the United States regarding the use of dissenting opinions, comprehensive empirical research is still absent in Europe. American scholars have conducted research from several different points of view. Legal scholars have dealt primarily with the relationship between dissenting opinions and the doctrine of binding precedent, and have tried to solve the problem of the precedential value of plurality decisions, e.g. decisions lacking a reasoning shared by the majority of the judges. Political scientists, for their part, have studied the policy-making role of judges and strategic opinion-writing. Scholars of law and economics have analyzed the costs and benefits of writing separately. Even judges themselves have often expressed their own thoughts in essays or conference speeches on the matter.
How to Compare the Length of Lines to the Weight of Stones: Balancing and the Resolution of Value Conflicts in Constitutional Law
Authors: Petersen Niels
Published: March 2019

The principle of proportionality is on the rise. A growing number of constitutional and international courts refer to some form of proportionality in their jurisprudence. At the same time, the principle is receiving more and more attention in international legal scholarship. Yet proportionality has not remained uncontested. In particular, some scholars have severely criticized the core of the proportionality test, which involves a balancing of competing values. This balancing is accused of being irrational because it requires placing incommensurable values on the same scale. In a famous dictum, Judge Scalia once claimed that balancing competing constitutional values is like determining “whether a particular line is longer than a particular rock is heavy.”
The Temporal Limitation of Judicial Decisions: The Need for Flexibility Versus the Quest for Uniformity
Authors: Verstraelen Sarah
Published: March 2019

Although the temporal effects of judicial decisions have not completely escaped the attention of academic reviewers, the research on this topic is far from thorough. Most research focuses on the Court of Justice of the European Union (CJEU), thereby ignoring the temporal effects of judicial decisions of national or constitutional courts. This lack of interest is remarkable given the interaction between the national and European level.
Giving Victims a Voice: On the Problems of Introducing Victim Impact Statements in German Criminal Procedure
Authors: Braun Kerstin
Published: March 2019

Historically, victims of crimes were key participants in the prosecution of crimes around the globe. Over the centuries, however, as public police and prosecution service took over the prosecution of criminal acts, the importance of victims in criminal justice systems decreased in common law and civil law countries alike. The victim was sidelined and the victim's role was reduced to that of a witness for the prosecution. As one of the first scholars to comment on the absence of victims from the criminal justice system, William Frank McDonald referred to the victim as “the forgotten man” in criminal procedure.
“Lisbon vs. Lisbon”: Fundamental Rights and Fundamental Freedoms
Authors: Augenstein Daniel , van Roermund Bert
Published: March 2019

In March 2000, the Lisbon European Council agreed upon a new strategic goal for the European Union: to become the “most competitive and dynamic knowledge-based economy in the world, capable of sustainable economic growth with more and better jobs and greater social cohesion.” One decade and the sobering experience of a global economic crisis later, the European Commission's new 2020 Strategy sets out a vision of Europe's social market economy for the 21stcentury that “shows how the EU can emerge stronger from the economic crisis and how it can be turned into a smart, sustainable and inclusive economy delivering high levels of employment, productivity and social cohesion.” If somewhat more modest in its targets, Europe 2020 reiterates the guiding ambition to enhance the EU's economic performance in the internal and global market that already dominated the Lisbon strategy. The lesson learned from Europe's “lost decade” is that the EU needs to replace the “slow and largely uncoordinated pace of reforms” with a “sustainable recovery” in order to regain its competitiveness, boost its productivity, and put it on “an upward path of prosperity.” This is, then, the EU's first “Lisbon” agenda that heavily relies on the internal market and that depicts social inclusion and political stability as conditioned upon further European economic integration. The recipe to defy what has grown from a “merely” economic crisis into a social and political crisis of the Union and its Member States is a combination of “smart,” “sustainable,” and “inclusive” growth.
The European Court of Justice and “Total Market” Thinking
Authors: Christodoulidis Emilios
Published: March 2019

The controversial decisions of the Court of Justice of the European Union (CJEU) in the quartet of cases that are grouped under its “Laval/Viking jurisprudence” are rapidly becoming entrenched as a key dimension of the European Union (EU) constitutional imaginary. This comes with a certain “immunization” against challenge as they become much harder to treat as mistakes. In their elevated status they have aligned stances and expectational structures. They have also had significant impact on the “Nordic” models; Charles Woolfson shows, for example, how subsequent to the European Court of Justice (ECJ) decision, the rulings of the Swedish Labour court has “seem[ed] to confirm that the ‘Swedish model' has, at the very least, been significantly redefined, if not fundamentally altered, in the light ofLaval.” While EU lawyers largely sit it out in relative passivity, wondering what the fuss is really about, labor lawyers have been vocal in their disagreement. But the latter's voices in this debate—if we can call it such—have in turn been drowned out by the ululations of lawyers and theorists from the “new,” post-2004, EU countries loudly proclaiming a victory against the arrogance of the older Member States. If the workers of the Baltic states want to sell their labor—and their life—cheap, goes the “inclusionary” argument, why should they be constrained from doing so under protectionist regulatory policies that undercut their competitive advantage by those unwilling to rein in the exclusionary structures of social protection that limit access and opportunity for their workforce to join the Continent-wide economy? The massive impact that the decisions have had on the regulation of industrial relations in the countries of the European Union and on the position of the trade unions has hardly been ameliorated by the debacle that was the rapid withdrawal of the proposedMonti IIRegulation in the face of resistance to it by national parliaments.
Securing the EU Public Order: Between an Economic and Political Europe
Authors: Besters Michiel , Macenaite Milda
Published: March 2019

Until recently, throughout the European Union's integration process, public order and internal security matters have been marked by a concern and respect for the national sovereignty of the EU Member States. Member States enjoyed their respective regulatory autonomy, as public order and internal security matters were dealt with at the EU level merely on the basis of the internal market logic. This is particularly evident in Articles 45(3) and 52 of the Treaty on the Functioning of the European Union (TFEU). These Articles establish the exceptions of public policy and public security as grounds that may be invoked by the Member States to limit the fundamental right to free movement. These grounds have been primarily viewed as deriving from impediments to the creation of the common market.
Why We (Still) Need a Revolution
Authors: Goldoni Marco , McCorkindale Christopher
Published: March 2019

This paper posits a (very British!) call to arms, and does so in five steps. In part A, we address the need for constitutional fictions by which the many surrender political power to the few, in the name of stability, order and security. In part B, however, we will show that conflict is both a necessary and a core principle of political constitutionalism—that it is the latent possibility of conflict, the (re)awkening of the many where the few abuse that power, that acts as the final check on government. In part C, we trace the steps by which recent re-interpretations of the work of J.A.G. Griffith, with a focus on the work of Tomkins and Bellamy, have reduced politics to its parliamentary form, thereby closing—rather than “enlarging”—the “areas for argument and discussion”—a narrow view of the constitution to which, admittedly, Griffith himself might have subscribed. In part D, we will assess the limits of such a narrow reading of the political and argue that a more dynamic and reflexive approach is needed if we are to remain in—or recover to—rude constitutional health. Finally, in part E, we will use the political and constitutional background to the devolution of legislative and executive power to Scotland in order to demonstrate the power of political conflict, in extraordinary moments, to expose, break down and create new constitutional fictions.
Negotiated Agreements and Open Communication in Criminal Trials: The Viewpoint of the Defense
Authors: König Stefan , Harrendorf Stefan
Published: March 2019

Negotiated agreements in criminal trials—often, somewhat deprecatingly, called “deals” in Germany—are a curious phenomenon. Such agreements informalize criminal proceedings, yet—according to the legislature—they are also restrained by the formal structure of German procedural law, through the principle of judicial investigation. The restraining of deals via procedural law seems like a futile attempt to achieve the impossible: In an inquisitorial system, the court is obliged to find the “real,” material truth by extending the taking of evidence to all facts and means of proof relevant to the decision. Neither ascertainment of guilt nor sentencing can be based merely on hypothetical facts of the case. A recent judgment of the Federal Constitutional Court on negotiated agreements has stressed that it is unconstitutional to base a conviction on facts that have been mutually agreed upon, if it is not certain that the facts are actually real. This decision hints at the problems deals pose for criminal proceedings in Germany. Despite these problems, such agreements have been very common in the last years and decades. There are many reasons for this. We are going to discuss the most important ones here.
Adjudicating Economics? Central Bank Independence and the Appropriate Standard of Judicial Review
Authors: Goldmann Matthias
Published: March 2019

In Karlsruhe's recent request for a preliminary ruling, an unconventional monetary policy measure of the European Central Bank (ECB) finds an unconventional judicial response. Based on its mandate to enforce the fundamental right to vote, the Federal Constitutional Court (FCC) leaves no doubt about its view that the ECB's Outright Monetary Transactions Programme (OMT Programme) violates the law of the European Union and hence the German Basic Law, unless one reads them in a rather restrictive way. But as unconventional monetary policy steps up the need for the ECB to justify the legality of its measures, so does the FCC's unconventional expansion of the scope of judicial review raise questions which the recent decision in its—generally laudable—brevity leaves underexplored. In particular, the decision does not dwell much on the issue whether it is appropriate for a court to review issues of monetary policy, and which standard of review should apply. Only Judge Gerhardt calls the majority's standard of review into question when he doubts whether the requirement for transgressions of the European Union's competences to be “manifest” is a workable criterion for defining the scope of the FCC's ultra vires control.
Blind Date Between Familiar Strangers: The German Constitutional Court Goes Luxembourg!
Authors: Pliakos Asteris , Anagnostaras Georgios
Published: March 2019

Preliminary references by national constitutional courts are not an everyday occurrence in Union law. No surprise, therefore, that they attract considerable publicity and give rise to a significant amount of academic comment. However, the recent preliminary request of the German Federal Constitutional Court (GFCC) inGauweilerconstitutes undoubtedly the most important and historic preliminary reference made thus far by a constitutional court. This is not only because it is the very first preliminary request of this particular court, inaugurating potentially a whole new era in its institutional relationships with the Court of Justice and paving the way for other national constitutional courts to make more regular recourse to the preliminary reference procedure; but also because it relates to an issue of central importance for the process of European integration with far reaching economic and political repercussions.
The German Federal Constitutional Court At the Intersection of National and European Law: Two recent Decisions
Authors: Arndt Felix
Published: March 2019

In two recent decisions, the German Federal Constitutional Court [Bundesverfassungsgericht - FCC] has clarified important issues of the interaction of national and European law. While both decisions deal with the obligation of German courts to refer questions of European law to the ECJ, one of them particularly addresses the crucial question whether national laws implementing European directives can be challenged before the FCC.
Federal Court of Justice and Expert Liability Towards Third Parties: Public Safeguard and Private Interest
Authors: Kannowski Bernd
Published: March 2019

On June 26, 2001 the Bundesgerichtshof (Federal Court of Justice) handed down a new decision regarding the liability of experts towards third parties (Reg. No. X ZR 231/99). While the Court appeared to have taken a somewhat new direction, the latest judgement must be considered in the context of a steadily evolving jurisprudence related to the effect on third parties of contracts involving the transfer of expertise, especially in light of a third party's reliance on this expertise. Parties contracting for expert testimony or evaluation regularly do not, at least not explicitly, take a third party into consideration in their contractual dispositions. Problems arise, however, when in the performance of the contract a third party, often the buyer or a bank seeking an evaluation of a client's creditworthiness, substantially relies on this expert evaluation produced pursuant to the contract. Where the seller defaults, the bank (in this example) may attempt to directly sue the expert.
Is the Price Right: The European Competition Law Dispute over National Systems of Fixed Book Prices
Authors: MacLaren Malcolm
Published: March 2019

On July 19, 2001, the European Commission announced that it had reopened proceedings regarding the German system of fixed book prices, asserting anti-competitive effects on cross-border Internet bookselling. The Commission's announcement constitutes a new chapter in a long-running dispute over the legality of the so-called Sammelrevers system that dominates the book trade in Germany and, mutatis mutandis, other European states. The trigger in the present occasion was certain practices alleged of German publishers and book wholesalers regarding the application of the Sammelrevers to direct cross-border sales of books to final consumers. The ongoing integration of the continent's economy and the constant introduction of new technologies and ways of distribution have led many commentators to speak in terms of the German book trade vainly “struggling to hold back the tide of unfettered competition.”
Much Ado about Amsterdam: CDU-CSU Politics, Länder Influence and EU Treaty Reform
Authors: Mazzucelli Colette
Published: March 2019

“Not a year goes by without some fresh blueprint being drawn up and fed into the continuing debate. Each succeeding blueprint can be likened to the way in which some artists go over their work again and again, gradually building up a deep richness to the emerging picture.”

“Old paint on canvas, as it ages, sometimes becomes transparent. When that happens it is possible, in some pictures, to see the original lines: a tree will show through a woman's dress, a child makes way for a dog, a large boat is no longer on an open sea. That is called pentimento because the painter ‘repented,’ changed his mind. Perhaps it would be as well to say that the old conception, replaced by a later choice, is a way of seeing and then seeing again.”

The aim of this article is to contribute to our understanding of the legal and political dimensions of treaty reform in the European Union (EU). It raises a conceptual issue by addressing the conditions under which Chancellor Kohl yielded to an increase in sub-national influence and the extent to which Länder (Federal State) politicians were able to exercise that influence to determine the outcome in a key area during the Amsterdam European Council, 16–18 June 1997. (3) The initial section highlights a political and legal analysis of German politics and European treaty reform during the 1996 process. The second section explores emerging asymmetrical specificity on the German political and institutional landscape post-Maastricht. The closing section offers an explanation of the results in qualified majority voting (QMV) for the treaty provisions on freedom, security and justice at Amsterdam, and the implications for our understanding of treaty reform in the Union.
Does “Infinite Justice” lead to enduring War?
Authors: Dilling Olaf
Published: March 2019

In one of his speeches the President of the United States of America took the responsibility to free the world from all globally operating terrorist groups. Honestly, is a realistic end to such a task foreseeable? Or does the former Operation „Infinite Justice”, which was recently renamed „Enduring Freedom” lead to infinite or enduring war?
The Range of Social Human Rights
Authors: Kreide Regina
Published: March 2019

Even though poverty and poverty-related deaths are still increasing worldwide, too little has been undertaken against them. The question addressed in this article is whether citizens in the industrial countries who are better off have a duty to mitigate or stop the misery of the poor; and if so, what kind of duty is it. One could assume that social human rights offer an adequate answer to this question but their content, justification and implementation are highly contested from a legal as well as philosophical point of view. Different approaches to justifying social human rights and corresponding obligations are discussed in this contribution, and it is argued that neither focussing solely on a concept of “negative” obligations nor on a concept of “positive” obligations is sufficient. Moreover, it is pointed out that it is not convincing to deny social rights the status of human rights on the grounds that they do not correspond to negative universal duties. Instead liberal rights as well as social rights are both correlated with “waves of duties,” “negative” and “positive.”
TheEinheitsjurist: A German Phenomenon
Authors: Keilmann Annette
Published: March 2019

Despite never-ending discussion and innumerable reforms, the German system of legal education still has as its objective the so-calledEinheitsjurist. This being a German specialty, it is almost impossible to find an English expression for it. One might try the translation “uniform jurist.” To qualify as anEinheitsjurist, every law student must go through the same legal education no matter which of the classical juridical professions he or she wants to pursue. To be admitted to the Bar, the same formal qualification is required as for the admission to the Bench. In both cases you have to pass the “second state exam.”
Breaking the Habits: The German Competition Law after the 7th Amendment to the Act against Restraints of Competition (GWB)
Authors: Klees Andreas M.
Published: March 2019

The amended German Act against restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen– GWB) has been in force since 1 July 2005. After a long and controversial debate, including a mediation procedure between theBundestag(Lower House of the German Federal Parliament) and theBundesrat(Upper House of the German Federal Parliament), and two and a half years after the adoption of Regulation No. 1/2003 in December 2002 the 7th Amendment to the Law against restraints of Competition was finally adopted in June 2005. Interestingly, the delay in passing the 7th Amendment – more than one year after Regulation No.1 came in force – was not so much caused by the fundamental changes that had become necessary in the light of Regulation No. 1. Rather, it was caused by those changes which did not become part of it: the proposed reform of merger control in the newspaper industry. Nonetheless, the latest amendment of the German competition law brought a greater number of fundamental changes than the six previous amendments adopted between 1958 and 1998. More specifically, the 7th Amendment abolished numerous specialties of the German antitrust law, which had been cultivated during previous decades. At the same time, it pointed to the increasing “Europeanization” (or, in other words, the decreasing relevance) of the national competition law that primarily covers the rules regarding anti-competitive agreements, decisions and concerted practices and is likely to extend to other areas in the future, such as unilateral conduct and merger control.
The Increasingly Marginal Appreciation of the Margin-of-Appreciation Doctrine
Authors: de la Rasilla del Moral Ignacio
Published: March 2019

What song the Syrens sang, or what name Achilles assumed when he hid himself among the women, although puzzling questions are not beyond all conjecture.

What is so fundamental in terms of the protection of human rights in Europe that it requires the same standards for all countries and what, by contrast, would be better dealt with by each State's organs in line withverbigratiaMichael Walzer's-related notion of “thick morality”?. Where should the line be drawn between unity and diversity notwithstanding the resulting risk of human rights cultural relativism associated to the latter?. On what grounds could the axiomatic universality of human rights possibly be connoted in a continent which prides itself on possessing the most developed regional system for the protection of human rights world-wide in view of the resulting risk of legal contagion to other systems for the protection of human rights and, even, to general international law that such a practice can trigger?. At the end of the day, these are the sort of questions that the study of the margin-of- appreciation doctrine raises. The Trojan Horse-like character of the Strasbourg's judge-made margin-of-appreciation doctrine within the European human rights protection system has long since bothered human rights lawyers. Cases of reliance on this review doctrine have been generally criticised as denials of justice for individuals, abdications by the Court of its duty of adjudication in difficult or sensitive issues or as a judicial diluting technique of the strict conditions laid down in the European Convention of Human Rights. This line of criticism, aimed at what from the viewpoint of some occupants of the bench is seen as “a well established and legitimate part of the convention's jurisprudence”, has been reinforced by the entry of 21 new Eastern and Central European contracting parties to the Council of Europe following the 1989-1991 events. With a current membership of 46 States, all of which have ratified the 1950 Rome Convention, it is further feared that the doctrine will increasingly become an open door for abusive limitations in the exercise of human rights in states who traditionally leaned towards human rights cultural relativism. Against this background, I will briefly look into the technical criteria used by Strasbourg's judicial interpreters to factually implement this “much maligned notion” or, as one commentator has put it, this “manière pseudo-technique d'évoquer le pouvoir discrétionnaire que les organes de Strasbourg ont estimé reconnu aux Etats par la Convention dans certains cas”. I will, secondly, provide a basic overview of the general doctrinal positions one can adopt regarding this long debated question.
Redefining the Traditional Pillars of German Legal Studies and Setting the Stage for Contemporary Interdisciplinary Research
Authors: Leibfried Stephan , Möllers Christoph , Schmid Christoph , Zumbansen Peer
Published: March 2019

This essay describes an emergent scheme for modernizing the study of law in German universities, creating a structure that is better equipped to address twentyfirst century socio-legal issues and bring legal scholarship to bear on relevant research problems in the social sciences—and vice versa. It is a by-product of efforts by University of Bremen professors and administrators to foster their university's coming of age as a mature, internationally recognized research university and to compete for new funds that the German government is making available to select universities. As such, it provides a rare example of the integration of legal studies into a large interdisciplinary research program, and of law professors rising to the challenges of contemporary funding demands, joining forces with political scientists, sociologists, economists, and philosophers.
How to Sharpen a Dull Sword – The Principle of Subsidiarity and its Control
Authors: Ritzer Christoph , Ruttloff Marc , Linhart Karin
Published: March 2019

The Treaty Establishing a European Constitution seems to have failed. The problems continue to exist: a centralizing tendency is inherent in the European Union like in supposedly every federal or supra-national system. This is why, for years, there has been a growing demand for a barrier against the subtle loss of competence for the Member States and their sub-national units, which also potentially threatens the acceptance of the Union's legal acts and therefore the progress of European integration overall.
Street Scenes and other Scenes from Berlin - Legal Issues in the Restitution of Art after the Third Reich
Authors: Huttenlauch Anna Blume
Published: March 2019

The news that Ernst Ludwig Kirchner's painting “Berliner Strassenszene“ (Berlin Street Scene) will be up for sale in New York on November 8, 2006 has stirred up the international art scene for the past two months. The sale was announced shortly after the Berlin state senate had returned the painting to the heirs of its original owners, Jewish art collectors Alfred and Tekla Hess. For the past 26 years the piece had been hanging in the Brücke Museum in Berlin and formed a cornerstone of the museum's expressionist collection. Bought, from public funds, in 1980, for a little over $ 1 Million US, the painting is expected to sell this fall for $ 18 Million to $ 25 Million US.
The Constitutional Success of Ratification Failure
Authors: Cahill Maria
Published: March 2019

The momentum behind the Constitutional Convention and the Constitutional Treaty was not that Brussels realised that the peoples of Europe were crying out for the drafting of a beautiful text, which they could take to their hearts as their very own constitution. That much, at least, has always been fairly clear. Of course, this should not present an impenetrable barrier to constitutional endeavour, because the constitutional possibility is the possibility that is generated by the effort of founding community in the honouring of community, honouring community in the recognition of community, recognising community in the identification of community, and identifying community in the founding of community. Every constitutional text is “guilty” of grasping and writing down its declarative commitment in this way. At two levels, then, the peculiarity of the European situation comes to light. First, this very fact that the people did not consider themselves part of a community that could be founded, honoured, recognised and identified through a constitutional register managed to become the crucial justifying motive for the production of a constitutional text. Secondly, and infinitely more significantly, this unspoken but widely-held belief in the constitutional impossibility becomes the register in which we seek to understand all the various positions and interests that emerge in the constitutional debate, and through which we seek to mandate those positions in the constitutional text.
Sisyphus was an international lawyer. On Martti Koskenniemi's “From Apology to Utopia” and the place of law in international politics
Authors: von Bernstorff Jochen
Published: March 2019

From Apology to Utopiais a disturbing reading experience. I first came across Martti Koskenniemi's book of 1989 during research for my thesis on Hans Kelsen. In his monograph “Das Problem der Souveränität”, published immediately after the First World War, Kelsen attempted to destroy the central doctrinal pillars of the nineteenth century German international law discourse by exposing the ideological nature of its central doctrines, such as the concept of the sovereign will of the state, autolimitation and consent. 70 years later, the analytical programme ofFrom Apology to Utopiadeconstructed international law by exposing the inherent “political” nature of international legal discourse, interpreted as an argumentative practice. Exposing the unstable discursive boundaries between politics and international law is the central objective of this monograph. Martti Koskenniemi portrays international legal doctrine as an inherently contradictory and repetitive argumentative routine that is incapable of producing meaningful “legal” results. International lawyers somewhat tragically feel compelled to engage in this Sisyphean routine in order to maintain their professional identity.
Harmonising Different Rights of Withdrawal: Can German Law Serve as an Example for EC Consumer Law?
Authors: Rott Peter
Published: March 2019

Harmonisation of the different rights of withdrawal, enshrined in legislation on doorstep selling, distance selling, timesharing, and in the near future consumer credit, is amongst the top issues of the EC agenda on European private law. Germany, following its tradition of a well-organised system of private law rules, has tried for some time to establish a harmonised system at the national level. At the same time, Germany appears to have created one of the most detailed set of rules on the right of withdrawal in Europe, in particular with a view to the consequences of the withdrawal from a contract, and it has tried to find the right balance between the interests of consumers and traders, a challenge that will also come up at EC level.
The Introduction of Real Estate Investment Trusts [REITs] in Germany
Authors: Lachner Constantin M. , von Heppe Rafael
Published: March 2019

The German Real Estate Investment Trust – or, G-REIT – is in the centre of interest in Germany these days and expected to be introduced in Germany in the beginning of 2007. After a preparation phase initiated in 2003 by a lobbying group (“IFD”) under the former German government, the new government has most recently drafted a bill with respect to the introduction of G-REITs (“bill”). This bill remains to be subject to parliamentary discussion and is likely to be partially modified before its final adoption: in addition to its passage in the Bundestag (Federal Parliament), it requires the approval of the Bundesrat (German Federal Council). Following its first reading it will be committed to the Financial Committee, which will conduct hearings. However, the legislator intends to pass the bill in the first quarter of 2007 to take retroactive effect as of 1 January 2007. This essay intends to outline fundamental corporate, capital market, and tax related G-REIT parameters provided for by the G-REIT Act in its present form.
Takeover Regulation- through the Regulatory Looking Glass
Authors: Clarke Blanaid
Published: March 2019

As the Action Plan on Modernising Company Law and Enhancing Corporate Governance in the European Union (2003) makes clear, the EU has sought to develop company and securities law as vital pillars of an overall attempt to improve Europe's international competitiveness. An important part of this is the creation of an integrated capital market in the EU. The regulation of takeover bids was deemed to be a key element of such an integrated market. This paper will focus on Directive 2004/25/EC on Takeover Bids and will seek to examine it under the regulatory microscope. It is too early to make a complete judgment about the Directive's effectiveness as a regulatory mechanism as this would involve determining whether it achieves its goals, secures high levels of compliance from Member States and market participants and is democratically accountable to the extent that its provisions affect the public interest. It is however possible to reflect upon some of its potential strengths and failings in respect of these criteria.
Sliding Towards Supranationalism? The Constitutional Status of EU Framework Decisions afterPupino
Authors: Lebeck Carl
Published: March 2019

The constitutional structure of the EU comprises two different components, one supranational (the European Community - EC) and one intergovernmental (the European Union). The EC is referred to as the first pillar, while the European Union in turn consists of two parts referred to as the second and third pillars respectively: the Common Foreign and Security Policy is the second, and the Police & Judicial Cooperation in Criminal Matters (the so called “area of Freedom, Security and Justice” - PJCC). The role of the common European institutions was from the outset more limited not just when it - which is logical - comes to legislation, but also when it comes to consultation and preparation of legislation. However, the ECJ retained jurisdiction to interpret the meaning of so called framework decisions in order to create a basis for uniform implementation in national law of such decisions. This was particularly true in relation to the Police and Judicial Cooperation in Criminal Matters. Whereas the European Court of Justice (ECJ) was granted jurisdiction in PJCC, the other community institutions, notably the European Commission, were given roles to supervise the implementation of framework decisions - but their role in enforcing uniformity was limited compared to the role of the community institutions in EC-law.
What's in a name that which we call a rose by any other name would smell as sweet? Reflections on ECJ's Trade Mark Case Law
Authors: Kunoy Bjørn
Published: March 2019

Shakespeare's famed citation “What's in a name? That which we call a rose by any other name would smell as sweet”may be one of the most used quotations in contemporary literature. It serves to provide guidance in reviewing ones assessment of new perspectives on a given topic. The implications of the quotation induce the reader to feel concordant with the assumption that whatever name a given phenomenon is accorded, it is of little importance because the objects are similar and hence there is no reason to emphasise a peripheral and meaningless concept such as a name and the idea which it embraces. By contrast, intellectual property rights, and therein trademark law, is conceptually based on the assumption that a verbal mark, figure or colour of a given good or service need to be protected since these immaterial notions give rise to patrimonial rights conferred to the owner of the registered trademark. A well known slogan or figurative mark is capable of having significant commercial value as demonstrated in the recent dispute betweenAppleandCiscoconcerning the right of the former to use the trademarkiPhone.However, it is important to note that the essentialraison d'ětreof trademark law is not only to confer patrimonial rights to a legal or natural person and thus prevent an abusive use by a third party, but essentially to guarantee the origin of goods or services to the consumer and hence enable him, without any danger of confusion, to distinguish the goods or services from others which have another origin. Having said that it should also be noted that traditional trademark theory is perceived on the assumption that trademarks serve to minimize the likelihood of consumer confusion and prohibits the use of a trademark with regard to competing or similar goods only. However the “dilution theory” challenges this approach to trademark law as it also disseminates the postulate to prohibit the use of certain famous and/or characteristic trademarks on non-competing goods on the ground that such use dilutes and possibly erodes a given trademark's commercial value and its hold on the consumer.
The UN Peacebuilding Commission and Transitional Justice
Authors: Thallinger Gerhard
Published: March 2019

This contribution examines the possible contribution the UN Peacebuilding Commission (PBC) can make towards the achievement of transitional justice in countries or regions recovering from (civil) war or other serious conflict. It will first briefly epitomize the recent process culminating in the set-up of the PBC and then address the functions and tools of the Commission with particular focus on its transitional justice capabilities. Thereby, I will examine conceivable operative approaches the PBC might take in the first cases submitted to it, i.e., Burundi and Sierra Leone, and assess the Commission's potential and added value both in general terms but in particular with regard to transitional justice activities.
The Guarantee of Defence Counsel and the Exclusionary Rules on Evidence in Criminal Proceedings in Germany
Authors: Fahl Christian
Published: March 2019

The right of counsel in criminal proceedings is granted by section 137 (1) of the Strafprozessordnung (Criminal Procedure Code), which gives a person the right to obtain legal advice in criminal proceedings whenever he or she wishes, or as the law states: “in jeder Lage des Verfahrens“ (at any stage of the proceedings). There are different stages of criminal proceedings, which are to be distinguished under German Law, but section 137 governs the whole process and is not limited, for instance, to the pre-trial or the trial itself.