bluuebunny/crossref_metadata_2025 huggingface dataset:
What Makes the International Investment Rules Regime Undemocratic? - [David Schneiderman, Constitutionalizing Economic Globalization: Investment Rules and Democracy's Promise (Cambridge: Cambridge University Press, 2008, 340pp.]
Authors: Colón-Ríos Joel , Hevia Martín
Published: March 2019

In an era in which democracy seems to have been relegated to a secondary place by processes associated with economic and political globalization, David Schneiderman'sConstitutionalizing Economic Globalization: Investment Rules and Democracy's Promiseis an unusual book. Globalization, we have been told, comes accompanied by “a sense of newness, heterogeneity, and fluidity,” but Scheiderman's reminds us that all this emphasis on mobility and constant transformations “draws attention away from a transnational regime concerned with fixity and security.” This fixity not only compromises democracy's tendency towards openness and change, but restricts the state's economic functions and limits its redistributive capacity; in short, it reproduces an ideology according to which democracy is not to be trusted in economic matters. In this context, Schneiderman's proposal to “institutionalize a limited set of constitutional rules that do not impede the possibility of living up to democracy's promise, that of innovation through self-government for the purposes of collective betterment,” appears like a truly democratic call of arms.
German Constitutional Foundations of, and Limitations to, EU Integration: A Systematic Analysis
Authors: Vranes Erich
Published: March 2019

The relationship between EU law and German constitutional law, and the respective dialogue between the ECJ and the German Federal Constitutional Court (FCC), have considerably shaped the EU integration process by creating fields of tension and demarcating possible legal boundaries. The decisions of the German Federal Constitutional Court and the European Court of Justice concerning the European Stability Mechanism are only the most recent examples of this phenomenon. These developments have, of course, spilled over to other EU Member States. The German constitutional bases of, and limits to, EU integration—especially as articulated in the relevant decisions of the German Federal Constitutional Court—have therefore become a field of particular interest for EU and public lawyers. This article gives an up-to-date overview of relevant constitutional rules, court decisions, and the academic debate in Germany. It does so by systematically distinguishing between an analysis of the German constitutional foundations of EU integration (section B.), constitutional limits to the further transfer of powers to the EU through amendments of EUprimarylaw (section C.I.), and the constitutional confines for the legal effects of EUsecondarylaw in Germany (section C.II.).
Germany's Mixed-Member Electoral System: A Victim of its Sophistication?
Authors: Tomuschat Christian
Published: March 2019

To shape a legitimate electoral system is a tremendous challenge for any parliamentary body. It cannot evade the responsibility of enacting the requisite statutory rules since no other State organ has the authority to make determinations which are substantially of a constitutional character. How, and under what conditions, citizens choose their representatives pertains to the key issues in a democratic system. But it is a truism to state that a parliament is not a homogeneous body; it is normally composed of different groups with highly divergent interests. Groups representing large political parties tend to favor a majoritarian electoral system, following with greater or slighter variations the British model of first past the post where the highest number of ballots in a given constituency determines the winner of the seat in issue, even though the candidate may have obtained only a relative plurality. Smaller parties, on the other hand, put their preferences on proportional representation, which ensures them a share of the seats corresponding to their share of the vote. To their regret, parties supported only by a low fraction of the electorate cannot, which is self-evident, impose their preferred option, having to wait for pressure to build up in the general public to promote their concerns. Thus, parliaments are neither neutral nor objective when they make determinations in electoral matters.
The Limits of Social Europe: EU Law and the Ordoliberal Agenda
Authors: Dale Gareth , El-Enany Nadine
Published: March 2019

Since the global economic crisis began in 2007, the EU's response has been an attempt to muddle through, but it is generally recognized that more far-reaching changes to its structures are inevitable in the long term. One possible trajectory is towards disintegration; another is towards an increasingly “multi-speed” Europe—possibly accompanied by a splintering of the Eurozone whereby one or more smaller countries depart. A third possibility is closer union. Many would agree with the proposition that if destructive centrifugal forces are to be kept at bay, the next step for the EU must be political union, including a fiscal and transfer union—one that requires countries of the developed core supporting their brethren struggling at the periphery. Through this fraternal process, the EU will be able to achieve a new constitutional moment, a moment of refoundation in which its “social” soul is rediscovered. No longer will corporate lobbies be granted privileged access to the offices of Brussels. Powerful and democratically accountable institutions will be constructed, and geared around one of the EU's defining values: Solidarity.
The Protection of Human Dignity in Hungarian Media Regulation
Authors: Koltay András
Published: March 2019

Human existence and dignity, just like human unity itself, are not actually rights. The essence of humanity, as regards the law, is inaccessible. Because of this, human life and dignity are included in the catalogue of human rights and in modern constitutions as the sources of rights, as inviolable values beyond the law. The law must guarantee that these inviolable values are respected and protected.
The Role of the United Nations and the European Union in the Privatization of Kosovo's Socially-Owned Enterprises
Authors: Muharremi Robert
Published: March 2019

The privatization of Kosovo's socially owned property and enterprises differs significantly from privatization programs undertaken in other countries, especially in Eastern and South-Eastern Europe when they transitioned from communism to democracy and free market systems. What is unique about Kosovo's privatization program is that it was designed and implemented under the authority of the United Nations at a time when Kosovo was directly administered by the United Nations. It is perhaps so far the only privatization program that was initiated and implemented by the United Nations under Chapter VII of the United Nations Charter. Various other international organizations, such as the European Union, played a significant role in this process as part of their responsibilities in the administration of Kosovo. An obvious question is what the United Nations would have to do with privatization in the context of territorial administration under Chapter VII of the United Nations Charter and if the United Nation's authority to administer Kosovo would include the authority to privatize property, the legal nature of which was unclear even when it was developed in former Yugoslavia. The discussion of these and other legal questions and controversies which are related to the privatization process in Kosovo are the main subject of this article, with a focus on the role of the United Nations and the European Union in this process.
Which Kind of Discretion in Constitutional Adjudication? A Discussion of Mher Arshakyan's The Impact of Legal Systems on Constitutional Interpretation: A Comparative Analysis: The U.S. Supreme Court and the German Federal Constitutional Court
Authors: Arena Federico José
Published: March 2019

In his paper The Impact of Legal Systems on Constitutional Interpretation: A Comparative Analysis: The U.S. Supreme Court and the German Federal Constitutional Court, Arshakyan carries out an interesting and detailed comparison between American and German constitutional courts by individualizing the properties shared by both courts and identifying the differences.
Remarks on Giovanni Sartor's Paper, The Logic of Proportionality: Reasoning with Non-Numerical Magnitudes
Authors: Załuski Wojciech
Published: March 2019

In his brilliant paper The Logic of Proportionality: Reasoning with Non-Numerical Magnitudes, Professor Sartor provides a multi-layered analysis of proportionality based on a model of teleological reasoning governed by value-norms, arguing that this kind of reasoning is quantitative but non-numerical, i.e., operates on magnitudes to which no symbolic numerals are assigned. The analysis pursued by Professor Sartor can be divided into three parts. In the first part, drawing on the theory of bounded rationality, Professor Sartor develops a model of teleological reasoning (of which proportionality reasoning is a special case) distinguishing its four stages: Value-adoption, goal-adoption, plan-adoption, and action-adoption. In the second part, he introduces and develops in great and illuminating detail a distinction between value-norms and action-norms. In the third—main—part, Professor Sartor makes the basic claim of his paper that proportionality reasoning (i.e., reasoning aimed at establishing whether a given legislative norm interfering with some constitutionally protected right is “proportional”), involving the assessment of the impact of choices upon relevant values, is quantitative but not based on numerical magnitudes, and develops a conceptual framework for reconstructing this reasoning and explicating its constituent elements (suitability, necessity, and balancing in the strict sense). Each of these parts abounds with valuable analyses and precious insights and would deserve a separate commentary, yet I shall confine myself mainly to the analysis of the third part, in which he develops his basic claim. I shall focus in the first place on two interpretive problems my reading of Professor Sartor's paper has given rise to, though some of my remarks will concern also more technical matters.
Constitutional Reasoning as Legitimacy of Constitutional Comparison
Authors: Lachmayer Konrad
Published: March 2019

For ten years, the legitimacy of constitutional comparison in courts has been intensely debated. The case law of the U.S. Supreme Court led to an intense discussion on constitutional comparison and reached its peak with the Great Debate between Justice Scalia and Justice Breyer. Justice Breyer argued in favor of constitutional comparison while Justice Scalia refused the comparative approach. Justice Scalia stated:

[Y]ou are talking about using foreign law to determine the content of American constitutional law—to be sure that we're on the right track, that we have the same moral and legal framework as the rest of the world. But we don't have the same moral and legal framework as the rest of the world, and never have. If you told the framers of the Constitution that we're to be just like Europe, they would have been appalled. If you read the Federalist Papers, they are full of statements that make very clear the framers didn't have a whole lot of respect for many of the rules in European countries. Madison, for example, speaks contemptuously of the countries of continental Europe, “who are afraid to let their people bear arms.’
Methods of Interpreting Competence Norms: Judicial Allocation of Powers in a Comparative Perspective
Authors: Pascual Maribel González
Published: March 2019

The comparative constitutional analysis of federalism is particularly complex. On the one hand, “[e]ach federal bargain is in important respects unique to the parties' situation,” in contrast to constitutional provisions asserted to guarantee fundamental rights. On the other hand, “provisions concerning federalism may have different historical meanings in a particular polity, tied in different ways to the political compromises.” In addition, the federal system relies on an “interrelated package of arrangements.” Therefore, no element should be considered isolated from other elements of the federal compromise. As a consequence, in order to compare federalism issues it may be necessary to evaluate “the entire interrelated structure.”
In the Name of Comparative Constitutional Jurisprudence: The Consideration of German Precedents by South African Constitutional Court Judges
Authors: Rautenbach Christa , du Plessis Lourens
Published: March 2019

Judges involved in constitutional adjudication often engage in comparative analyses of foreign cases. The judges of South Africa's Constitutional Court [hereinafter Constitutional Court] do so, too. The phenomenon has been given many names such as “transjudicialism,” “transjudicial communication,” “constitutionalist dialogue,” “judicial globalization,” “constitutional cross-fertilization,” “transnational contextualization,” “globalization of judgment,” “globalization of national courts,” “constitutional borrowing,” “constitutional comparativism,” and “judicial comparativism.” All these terms have merit, especially within their appropriate context, but for the purposes of this contribution we will use the term “comparative constitutional jurisprudence” to name the phenomenon we wish to describe and discuss. First, in the South African context, the terms “dialogue,” “cross-fertilization,” and “globalization” do not reflect the true nature of the exercises in drawing comparisons in the South African Constitutional Court. These terms imply a reciprocal dialogue between two or more courts from different jurisdictions. It is evident, however, that the South African Constitutional Court has been considering far more foreign jurisprudence than any non-South African constitutional court has been considering South African jurisprudence—in other words, this has largely been a case of one-way traffic.S v. Makwanyane, in many ways the inaugural decision of the Constitutional Court, contains 220 foreign case citations from 11 countries and three supranational courts. To our knowledge no other foreign court can boast a comparable statistic.
Political Corruption as a Regulatory Problem in Germany
Authors: Wolf Sebastian
Published: March 2019

The shortcomings identified in German bribery law—such as the limited criminalization of bribery of parliamentarians and other members of domestic assemblies, coupled with the absence of trading in influence offenses, and furthermore, certain limits in the criminalization of bribery of foreign and international officials and of private sector bribery—represent significant lacunae in the law.
Theories and Practice of State Succession to Bilateral Treaties: The Recent Experience of Kosovo
Authors: Qerimi Qerim , Krasniqi Suzana
Published: March 2019

This article explores the most recent practice, as exemplified by the case of Kosovo, concerning succession to treaties in international law. In doing so, it examines the precise meaning and legal effects under international law of relevant provisions of the Declaration of Independence (DoI) of Kosovo with respect to international treaties concluded by the United Nations Interim Administration Mission in Kosovo (UNMIK) and the former Socialist Federal Republic of Yugoslavia (SFRY) or, as applicable, any other predecessor entity. More specifically, the aim is to identify and comprehend the fundamental principles underlying the existing or developing practice of treaty succession, and to situate it within a broader framework of succession in international law. Kosovo's absence from key multilateral regimes, in particular the United Nations, dictates a focus on succession to bilateral treaties. Kosovo is in the process of establishing with its partners the status of its bilateral treaties undertaken by way of succession.
Is There State Immunity in Cases of War Crimes Committed in the Forum State? On the Decision of the International Court of Justice (ICJ) of 3 February 2012 inJurisdictional Immunities of the State (Germany v. Italy: Greece Intervening)
Authors: Blanke Hermann-Josef , Falkenberg Lara
Published: March 2019

On 3 February 2012, in a case brought by the Federal Republic of Germany against Italy, the ICJ decided that state immunity protects the state against compensation claims even in cases of extreme violations of human rights. With this ruling, the court established a provisional conclusion to the question of possible exceptions to state immunity in respect of jurisdictional immunity of the state and constraint measures in civil claims. This question has repeatedly arisen in recent years not only in international and European cases, but also in other national cases.
The Embryo and its Rights: Technology and Teleology
Authors: van Roermund Bert
Published: March 2019

Why do fundamental rights and market freedoms attract and repel each other? Why can they neither be together nor remain separate? This paper argues that at least part of the explanation is that they are each governed by different types of “logic.” They are at the fault-lines of different discourses. Market freedoms are promoted in a technological discourse, fundamental rights in a teleological discourse. The former are expressed in an observational view from above, while the latter embody the view of a first-person agent. Travelling back and forth between these two discourses, as legal authorities like the European legislator and the Court of Justice of the European Union (CJEU) often have to do, is an ambiguous enterprise. It may create opacity, but it may also bring clarity to the otherwise muddy waters of a “common” (now: “internal”) EU market under capitalist conditions. Much is dependent on their ability to orientate themselves on a map that recognizes the poles of these discourses, technology and teleology. This paper contributes to drawing that map through analysis of a case study in patent law involving the concept of an embryo. Construed as “an autonomous concept of European law” the notion of an embryo will appear to be paradigmatic of alternative ways in which the two discourses may relate to each other.
The Effects of EU Law on the Social and Economic Goals of Europe 2020: A Decision Theoretic Approach to Wage Liability Regimes in Modern Europe
Authors: Houwerzijl Mijke , Wilkinson Terry
Published: March 2019

In the current European social and political climates there is much focus on forming the European Union into a more integrated, sustainable, and globally competitive economic market. This ideology is especially reflected in the aims of the EU 2020 agenda. With regards to these economic goals, it is very important that European law protects the economic freedoms of all participants in the internal market. Considering the alternative and concurrent 2020 goals of social integration, social cohesion, and human rights protection, EU law is also bound to protect the rights of workers and the public interest.
Making Good European Citizens of the Roma: A Closer Look at the EU Framework for National Roma Integration Strategies
Authors: Goodwin Morag , Buijs Roosmarijn
Published: March 2019

In a recent article, Sobotka and Vermeersch chart the development of EU policy-making towards the Roma. Their analysis of EU documents and policy initiatives tells a convincing tale: Since 2007, Roma have shifted from being an external issue—connected to Enlargement conditionality—to being a high-priority on the EU's internal agenda, and from being the subjects of an approach focused on minority rights to one of social inclusion. This change in emphasis towards the Roma can be viewed in the light of a wider reorientation of the European Union, in which the primarily economic language of European integration is moderated by a shift towards viewing economic growth and social cohesion as mutually conditioning and sustaining. This is reflected in the 2020 Strategy in the language of “smart, sustainable and inclusive growth,” as well as in the notion of a “social market economy” and in the proliferation of social rights at the EU level. This reorientation has primarily been viewed to date through the lens of the increased prominence given to fundamental rights protection in the post-Lisbon Union, and the conflict that this creates with the Union's traditional fundamental freedoms. However, this shift is not exhausted by the greater emphasis on fundamental rights protection; rather, the commitment to inclusive growth has been interpreted by the Commission as requiring the integration of Roma into the economic and social orders of the Member States.
Transnational Legal Discourse: Reflections on My Time with the German Law Journal
Authors: Zumbansen Peer
Published: March 2019

By October 2013, the German Law Journal, published monthly and available at no cost on the Internet –www.germanlawjournal.com– counted approximately 1593 publications, authored by approximately 1.450-1.500 authors. A journal project of such magnitude in itself could certainly not have been expected by its founders. Just as unlikely it would have seemed to them or anyone else, for that matter, that their little, bi-monthly email newsletter, originally entitled “Momentaufnahme” (Engl.:snapshot; French:glimpse d'oueil), would grow into a web-based, peer-reviewed legal periodical with more than 13.000 registered subscribers worldwide and a sizable journal ranking among existing international law reviews. If I only had a moment to express my thoughts on leaving the Journal, I would use it to express my immense gratitude to those whom I can never thank enough. My colleagues in this project, present and former members on the editorial board, and the authors, from near and far, many of whom we never had the fortune to meet in person despite an often vivid exchange of thoughts and ideas, as well as, of course, our readers throughout the years – it is to all of them that I owe thanks too comprehensive to measure. It is one thing to launch a journal, it is another for it to be read, sustained, shaped and encouraged over the span of almost fifteen years. The GLJ is what it is today because of the input it has received over all this time, and for that I am immensely grateful.
The Resilience of the Political Constitution
Authors: Ewing K.D.
Published: March 2019

The first part of this paper examines the nature and form of the political constitution, and argues that traditional approaches to its scope and purpose are too narrow in focus: The political constitution is about enabling and empowering government, as well as containing and constraining it; it is also predicated upon a body of core and indeterminate political freedoms (albeit frequently submerged and often displaced). The second part of the paper examines three contestable assumptions about what some claim to be a move from a political to a legal constitution. The first relates to the widespread (but flawed) ideological understanding of the political constitution; the second relates to the capacity of the “legal” to resist capture by the “political;” and the third relates to the effectiveness of the legal to protect political freedom. An attempt is made throughout unusually to illustrate argument with evidence, in this instance about the resilient political constitution.
The Decision of the Federal Constitutional Court of 19 March 2013 on Plea Agreements
Authors: Mosbacher Andreas
Published: March 2019

The much–awaited ruling of 19 March 2013 by the German Federal Constitutional Court is of great importance to the forensic practice. The Court ruled on the constitutional appraisal of the provisions on plea agreements in criminal procedures. The decision is basically convincing but not in every point of its arguments. Certain conclusions of the Federal Constitutional Court are particularly problematic because they alter the preceding legal situation substantially and have an extensive effect on the appraisal of appeal law.
Consensual Elements in German Criminal Procedural Law
Authors: Bittmann Folker
Published: March 2019

The aim of German criminal procedural law is not to convict the accused at any cost. Even a guilty party can only be convicted if the criminal procedure is held in accordance with the law. If this is not possible, the German legal system accepts the risk of possibly acquitting a guilty party; it finds this more tolerable than the irregular conviction of the culprit. A criminal procedure seeks the truth. Only on the basis of a judicial conviction of the crime and its culprit may a sentence be imposed. This, though, can only be based on the so-calledprocedural truth.On the one hand, the past can never be reconstructed precisely; on the other hand, clarification can only be found through legal means and by following designated paths allowed by procedural law. Therefore, further investigation must cease if it is only possible to proceed by violating procedural law.
The Constitutionality of Negotiated Criminal Judgments in Germany
Authors: Weigend Thomas , Turner Jenia Iontcheva
Published: March 2019

In a long-awaited judgment, the German Constitutional Court in 2013 upheld the constitutionality of the 2009 German law authorizing the negotiation of criminal judgments between the court and the parties. The German version of plea bargaining, which had grown from the grassroots of criminal law practice, was later accepted by the Federal Court of Justice and written into § 257c of the Code of Criminal Procedure (StPO) in 2009. In light of these developments, a verdict of unconstitutionality by the Federal Constitutional Court was the final hope of those who opposed the replacement of the search for truth with a system of negotiation. The Court deflated these hopes, but at the same time refrained from giving an unconditional stamp of approval to the burgeoning practice of negotiating judgments. The Court attempted to rein in that practice by giving the statute a literal reading, emphasizing the limitations it places on negotiations, and strictly prohibiting any consensual disposition outside the statutory framework.
Questions and Answers: Karlsruhe's Referral for a Preliminary Ruling to the Court of Justice of the European Union
Authors: Schneider Karsten
Published: March 2019

In the environment of ongoing endeavors to “rescue” the Euro, the Second Senate of the Federal Constitutional Court (FCC) is meanwhile dealing with several constitutional complaints challenging matters that could be described as “the future of the German Bundesbank” and “the present and the past of the German Federal Government and the German Bundestag.” Or, to be more specific, the complainants currently challenge the prospective participation of the German Bundesbank in possible future implementations of the so called “OMT Framework” of 6 September 2012. They also argue that the German Federal Government and the German Bundestag “failed to act” regarding this OMT framework.
The German Federal Constitutional Court's Ruling on Outright Monetary Transactions (OMT) – Another Step towards National Closure?
Authors: Schiek Dagmar
Published: March 2019

The German Federal Constitutional Court (FCC) ruling of 14 January 2014 deserves a thorough evaluation on several accounts: It is the first ever reference by the FCC to the Court of Justice of the European Union (CJEU), it represents a continuation of FCC case law aimed at restricting the impact of European Union law as interpreted by the Court of Justices of the European Union (CJEU) on German law as well as questioning Germany's participation in an ever closer European Union, and it has the potential to dictate the future course of the EU's Economic and Monetary Union (EMU).
The Bundesverfassungsgericht Preliminary Reference on the OMT Program: “In the ECB We Do Not Trust. What About You?”
Authors: Beukers Thomas
Published: March 2019

It should be no surprise that a case can be made both for and against the legality of secondary market bond purchases by the European Central Bank (ECB), and of the Outright Monetary Transactions (OMT) Program in particular. It is also no secret that the ECB—like many other institutional actors in Europe—is in several ways testing the boundaries of legal provisions as a consequence of the financial and sovereign debt crisis. Still, theBundesverfassungsgericht(Federal Constitutional Court) Order of 14 January 2014 on the OMT Program is surprising for several reasons.
Federal Constitutional Court Rejects Ban on Benetton Shock Ads: Free Expression, Fair Competition and the Opaque Boundaries Between Political Message and Social Moral Standards
Authors: Zumbansen Peer
Published: March 2019

On December 12, 2000, the Federal Constitutional Court (FCC) issued its judgment concerning the controversial “shock” advertising campaign of the Italian fashion designer and retailer United Colors of Benetton. Momentaufnahme reported on the oral arguments before the FCC. (No. 3/2000 - Nov. 15, 2000). The Second Senate of the FCC found the 1995 decisions of the Federal Court of Justice (FCJ), which upheld bans on the Benetton advertisements, to be unconstitutional because the bans constituted an infringement of the constitutionally protected right to freely express one's opinion. The Benetton marketing campaign used large format photography depicting provocative issues, including: a duck smothered in oil, apparently from an oil-spill; children being exploited as laborers in a third-world factory; and a naked buttock bearing the stamp “H.I.V. Positive.” Publication of the Benetton advertisements had been challenged as “unfair competition” by a leading consumer protection group (Zentrale zur Bekämpfung unlauteren Wettbewerbs e.V., Bad Homburg).
Towards an Understanding of the recent European Labour Market Reforms: A New Case Study in Comparative Capitalism?
Authors: MacLaren Malcolm
Published: March 2019

The series of labour market reforms recently introduced across Europe may have struck many observers in North America, as it did critics on the continent, as incongruous. The reforms, whose main purpose is to extend worker protection, come at a time when economic growth on the continent is slowing markedly. From the perspective of German, French, Spanish and European legislators, however, the reforms are sensible and timely, conducive to international competitiveness. How can these diametrically opposed assessments about such a fundamental matter be explained?
Federal Constitutional Court To Decide Whether to Issue a Temporary Injunction Against Germany's New Lifetime Partnerships Law for Homosexual Couples
Authors: Maurer Andreas
Published: March 2019

On July 18, 2001, the Bundesverfassungsgericht (German Federal Constitutional Court) will issue its ruling in the application for a temporary injunction, brought by the Länder (Federal States) of Bavaria and Saxony, to block the August 1 effective date of the new federalLebenspartnerschaftgesetz(LPartG — Registered Lifetime Partnership Act for Homosexual Relationships). This act has been the subject of considerable controversy including the claims at the heart of the Federal States' challenge to the constitutionality of the statute. This article will: (a) briefly survey the social evolution that has necessitated the regulations in this statute; (b) describe some of the statute's provisions; and (c) end by summarizing some of the sometimes harsh and often very emotional arguments involved in the debate over the LPartG and raised as part of the challenge to the statute's constitutionality in the proceedings before the Federal Constitutional Court.
The GE/Honeywell Merger Case: Reaching the Limits of International Competition Policymaking
Authors: MacLaren Malcolm
Published: March 2019

The European Commission's recent decision to block the US $42 billion proposed merger between General Electric Co. and Honeywell International Inc. was, as breathlessly reported by the international press, a tale of personalities, high politics, and conflicting ideologies. The respective story lines made for gripping journalism concering the clash between a world business icon and a former Italian economics professor, the US administration's accusations of illegitimate application of extraterritorial jurisdiction and undemocratic exercise of authority by the Commission, the Commission's counter-accusations of attempts at political interference, and the dispute over divergent theories of competitive markets. (Indeed, the events may be worthy subject matter for a sequel to “Antitrust”, a dramatization of the Microsoft antitrust case now playing in theatres).
The Federal Constitutional Court's Emergency Power to Intervene: Provisional Measures Pursuant to Article 32 of the Federal Constitutional Court Act
Authors: Maurer Andreas
Published: March 2019

In three high-profile cases the Bundesverfassungsgericht (BVerfG — Federal Constitutional Court) was recently called upon to exercise its authority to issue a temporary injunction in proccedings referred to as einstweilige Anordnungen (provisional measures). Article 32 of the Bundesverfassungsgerichtgesetz (BVerfGG — Federal Constitutional Court Act) provides: In a dispute the Federal Consitutional Court may deal with a matter provisionally by means of a temporary injunction if this is urgently needed to avert serious detriment, ward off imminent force or for any other important reason for the common good.
A European Constitutional Treaty: The Blueprint for the European Union
Authors: Di Fabio Udo
Published: March 2019

The debate over a European constitution is fully underway. (1) The issue will play an important role at the 2004 intergovernmental conference, especially if negotiations over a new model for the division of competencies between the Union and its constituent Member States is taken up at the Conference. The various points of inquiry — a Charter of Fundamental Rights, institutional reform, the division of competencies, financing, eastward expansion, finality — belong together and they beg for a solution that is fully conceptualized. With this in mind, the German Federal Government is justified in making sweeping, well thought out proposals. At the same time, the French government is equally correct to promote practical solutions while expressing a healthy suspicion of the formation of a federal state of Europe, which is the holiest of all possibilities for the Germans. Against this background, let me begin by saying a few things with respect to the legal nature of a possible constitution for the EU, before I move on to a presentation of more practical conclusions. II.
European Integration in Context: Lessons in Political Organization?
Authors: MacLaren Malcolm
Published: March 2019

The French are rightly proud of having spawned the Enlightenment. Their philosophers made a profound contribution to modern theories of government, which heavily influenced, inter alia, the Founding Fathers in the drafting of the American Constitution. (Montesquieu's arguments for a separation of powers, for example, are clearly reflected in the design of the executive, legislative and judicial branches of the US government.) The French political class have also largely determined the nature of post-war European integration. The edifice in Brussels reflects above all their habits, interests and vision of Europe. (For example, the European Union is run by a bureaucratic elite like France itself.) This latter conception of government is, however, unlikely to prove to be as successful over the long term as the former. Indeed, the way in which European integration has so far proceeded raises serious questions about both its sustainability and its transferability.
State and Future of the European Constitution – Improvement or Radical Reform?
Authors: Hanf Dominik
Published: March 2019

In January 1999 German Foreign Minister J. Fischer called for a debate on the creation of a constitution for the European Union. Since then, many German politicians have exposed their vision of the future of Europe and its constitution. However, even one year later, the matter appeared still to be a ‘German concern’ only.
The Apprenticeship of Ariel Sharon
Authors: Morgan Ed
Published: March 2019

The following essay was written prior to the tragic events of September 11, 2001, in an effort to reflect on an aspect of international law\'s confrontation with violence, national identity, and adjudicated forms of justice. Since the attacks in the United States, numerous commentators have expressed the need to act within the rule of international law. This essay speculates on the meaning of that notion. It is neither prescriptive in terms of policy nor reformist in terms of doctrine. Rather, it is part of an ongoing effort to discern the aesthetic significance, if not the rationality, of international law.
Federal Constitutional Court To Review NPD Party Ban Motion
Authors: Hanschmann Felix
Published: March 2019

As already reported by German Law Journal, the German Government, the Bundestag (Federal Parliament) as well as the Bundesrat (Federal Legislative Chamber of the Länder) filed motions with the Bundesverfassungsgericht (FCC; Federal Constitutional Court) seeking a constitutional ban of the extreme right-wing National Democratic Party of Germany (NPD). Now, some eight, respectively six months, after filing the motions for a constitutional order of the NPD's dissolution, the banning of all of party activities and the confiscation of the party's property, the FCC decided on October 1st, 2001, that the motions were admissible. The following annotation discusses the meaning of the Court's decision to admit the motions, provoding a brief account of what the decision says and what — just as interesting — it does not say. It will also report on the course of events and developments that have taken place during the stretch of time between the filing of the applications and the Court's ruling of October 1. Finally this report will provide, leaving aside speculations as to possible results of the process, a short survey of the legal possibilities that are open to the NPD, once the FCC in Karlsruhe grants the motions and declares the party unconstitutional.
Surfer's Paradise: What the Law Says About Personal Internet Use During Working Hours
Authors: Schmidt Lars , Maurer Andreas
Published: March 2019

A survey on Internet use by employees at their workstations published by Sterling Commerce on 29 August 2000, showed that more than 60% of those employees that have access to the internet surf at least once a day for personal rather than their official business reasons. That means that every employee, on average, is online for about 3.2 hours each week — for personal reasons. This fact — according to the Sterling Report — causes a yearly loss for employers of about 104 Billion Deutsche Marks. In this calculation, costs for the connection to the Internet are not included.
European Company Law: Comments and Meta-comments onCentros
Authors: Trefil Barbara
Published: March 2019

Halbhuber's project started out as a treatise on the policies of European company law (3), but eventually became an analysis of the German academic discussion of European company law. Halbhuber puts the case that German lawyers, entangled in the structures of their national private law doctrine, widely misinterpreted the judgments of the ECJ in Segers (4),Daily Mail(5) andCentros, thus dissuading agents from using foreign (e.g. English or Irish) private limited companies for their business activities in Germany.
Agreements on voting conduct in the election of the supervisory board (Aufsichtsrat) – a case for a mandatory offer? Case Note – The Ruling of the Regional Appellate Court Munich (OLG München) of 27 April 2005 – 7 U 2794/04, ZIP 2005, 856
Authors: Barry Sebastian , Bracht Hannes , Casper Matthias
Published: March 2019

So-called “acting in concert” is one of the most controversial problems in German takeover law. The latest discussion of the topic has been fuelled by the claim that investors, mainly investment funds, acted in concert through the application of strong pressure in order to cause the personnel change in the management structure of Deutsche Börse AG.” A further contribution has been made by the much noted ruling of the Regional Appellate Court Munich (OLG München) of 27 April 2005 concerning acting in concert in the cause of the election of the supervisory board (Aufsichtsrat). The following article concentrates on a critical analysis of this ruling of OLG München.
German Insolvency Act: Special Provisions of Consumer Insolvency Proceedings and the Discharge of Residual Debts
Authors: Braun Susanne
Published: March 2019

Information about the insolvency of big enterprises such as Enron and Worldcom in the United States; Bremer Vulkan, Philip Holzmann, Babcock Borsig, CargoLifter, Walter Bau and “Ihr Platz GmbH & Co KG” in Germany; and discussion about the insolvency of States (e.g. Argentina) has awakened public interest in insolvency law and proceedings. Both the high number of insolvent enterprises and the increasing rate of consumer insolvency are shocking.

The German Insolvency Act of 1999 created a uniform insolvency statute for all of Germany. In most cases, upon the instituting of insolvency proceedings, only small or no-insolvency estates were available. As a result, creditors only received average distributions of between three and five percent. Approximately three quarters of all insolvency procedures could not be instituted because of an insufficient insolvency estate. A large number of the insolvency proceedings carried out by the courts had to be terminated prematurely due to lack of assets. This deficiency in the law, referred to as the “bankruptcy of bankruptcy,” is to be remedied by the new Insolvency Act, as a failure in instituting insolvency proceedings is damaging confidence in the German economy.
Patents on Human Gene Sequences in Germany: On Bad Lawmaking and Ways to Deal With It
Authors: Ann Christoph
Published: March 2019

Whether patents should be granted on human genes or gene sequences is highly controversial, both ethically and politically; not only in Germany but throughout Europe and in most parts of the world. Proof of this has been the attention created by US biotechnology company Myriad Genetics, which, in 2001, obtained European patents for human gene sequences indicating an increased risk of certain types of cancer. In Germany the Bundestag has recently addressed the issue: the core of a newly introduced provision of the German Patent Statute (PatG) is Paragraph 1a Sec. 4 PatG, which limits the scope of patent protection available for human gene sequences or parts thereof. If the subject of an invention is a human gene sequence, Paragraph 1a Sec. 4 PatG requires disclosure of not only the sequence but also at least one application. Without such disclosure a human gene sequence is not patentable under German Patent Law. This is remarkable, because under the Directive of the European Parliament and the Council on the Legal Protection of Biotechnological Inventions, the so-called Biotechnology Directive of 1998, a piece of European Union legislation, the situation is different.
Science in the Process of Risk Regulation under the WTO Agreement on Sanitary and Phytosanitary Measures
Authors: Gruszczynski Lukasz
Published: March 2019

This article attempts to present a comprehensive and coherent picture of the position occupied by science under the SPS Agreement and in the SPS case law. It claims that the approach adopted by the Appellate Body reflects the explicit language of the SPS Agreement and is predominantly based on a technical paradigm. In consequence, science plays a critical role in distinguishing between legal and illegal SPS measures.

The article argues that such an approach is generally compatible with the text of the SPS Agreement and provides a coherent SPS system. However, it also identifies certain areas, which lack coherence, as certain standards seem to violate the right of the Member States to establish an appropriate level of protection. These are: ascertainability of the risk as a precondition for valid risk assessment; strict specifity of the risk assessment in low-risk situations; the proportionality between the risk identified and the SPS measure; the notion of negligible risks; and the concept of likelihood in the quarantine risk assessments. The article claims that these standards cannot be generally applied in SPS disputes as, in certain situations, they will result in the violation of the right of the Member States to establish an appropriate level of SPS protection. Finally, a number of specific issues, which require resolution, are highlighted, namely the quality of minority scientific opinions, the relationship between the insufficiency of scientific evidence and scientific uncertainty. The article suggests that the ultimate role ascribed to science under the SPS Agreement can be assessed only after an interpretation of those issues is provided by future case law.
D.H. and Others v. Czech Republic: a major set-back for the development of non-discrimination norms in Europe
Authors: Goodwin Morag
Published: March 2019

On 7 February 2006, a chamber of the European Court of Human Rights gave judgment in the much awaited ‘Ostrava case’, which challenged the placing of disproportionate numbers of Romani children in ‘special schools’ for the learning impaired in the Czech Republic. This practice, widespread across Central and Eastern Europe, amounts in effect to racial segregation and denies Romani children access to a standard of education comparable to their non-Romani peers. The Ostrava case, taking eight months to assemble and seven years to reach judgment day in Strasbourg, represented the centre-piece of the litigation strategy of the Romani rights movement. The decision of the Strasbourg Court to ignore the evidence of indirect racial discrimination by a 6-1 majority represents not only a setback for those working for the improvement of the situation of the Roma – widely acknowledged as the most disadvantaged, discriminated and marginalised group in Europe – but also for the crystallisation of non-discrimination norms in Europe.
Does the Unborn Child Have a Right to Life? The Insufficient Answer of the European Court of Human Rights in the Judgment Vo v. France
Authors: Pichon Jakob
Published: March 2019

In the July 8, 2004 case of Vo v. France, the European Court of Human Rights (“ECtHR”) dealt with the question of whether the embryo/fetus (“the fetus”) enjoys the protection of the right to life provided by Article 2 of the European Convention on Human Rights (“the Convention”). Below, a pregnant woman lost her fetus due to an error made by the attending doctor, and the Cour de Cassation, the French court of last instance, acquitted the doctor of involuntary homicide on the grounds that a fetus is not a person within the meaning of the French Criminal Code. Claiming a violation of her child's right to life within the meaning of the Convention, the woman appealed to the ECtHR. The ECtHR left open the question whether or not a fetus falls within the scope of Article 2; declaring that, even assuming Article 2 was applicable to a fetus, there had been no failure by France to comply with its obligations under Article 2, because the ECtHR deemed the institution of criminal proceedings unnecessary. Rather, it considered the possibility for the applicant to bring an action for damages as sufficient and therefore found that there had been no violation of the fetus's right to life.
The Principle of Non-discrimination in Respect of Age: Dimensions of the ECJ'sMangoldJudgment
Authors: Schmidt Marlene
Published: March 2019

On 22 November 2005, the European Court of Justice (ECJ) delivered a judgement in a preliminary ruling procedure from theArbeitsgericht München(Labour Court Munich), answering questions concerning the interpretation of Clauses 2, 5 and 8 of the Framework Agreement on fixed-term contracts, put into effect by Council Directive 1999/70/EC of 28 June 1999, and as regards the construction of Article 6 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. Essentially, theArbeitsgerichtwanted to know whether a statutory provision exempting employees of 52 years of age and older from limitations to the conclusion of fixed-term contracts was compatible with Community law.