bluuebunny/crossref_metadata_2025_split huggingface dataset:
BGH, Urteil vom 7. Juli 1998 - Zu den rechtlichen Auswirkungen eines Kalkulationsirrtums -
Authors: Mota Pinto Paulo , Theodorou Heleni , Kerschner Ferdinand 
Published: April 2022

The decision of the BGH was based on the following set of facts: The claimant, a public authority, advertised for tenders for carpentry work on a building project. The defendant building firm submitted the lowest tender - in comparison with five others received. After the deadline for submission of tenders had passed, the building firm informed the claimant that an error had been made in the calculation of the tender price. The transport and assembly costs had been left out by mistake, and the firm asked the claimant to take the tender out of the competition and offer the contract to someone else. The claimant refused to do so, and gave the contract to the defendant without taking the error into consideration. When the defendant did not proceed with the work, it was eventually given to someone else. The claim asserted against the defendant was for the additional costs incurred in comparison with the defendant's tender.
The Landgericht dismissed the claim, and the claimant's appeal was also unsuccessful. The appeal in revision by the claimant led to the quashing of the appeal court's decision and a reference of the case back to the appeal court. According to the judgment of the BGH, an mistake in calculations was not of itself a sufficient reason for avoiding a contract, if the recipient of the erroneous information knew of it or had avoided obtaining that knowledge in bad faith. Nevertheless, the recipient of the erroneous information - on the basis of precontractual responsibility or abuse of rights - might be obliged to point out to the informer his mistake. In the tendering process, a public contractor was not usually under any obligation to check the tenders for mistakes in calculation or to make further investigations; but exceptionally such a duty might exist when the fact of a mistake in calculation and the unreasonable consequences thereof for the tenderer is obvious from the tender or from other circumstances known to the contractor.
The following contributions examine the judgment from the standpoint of Austrian, Portugese, Swedish and Greek law.
Globalisation and Conflict in Competition Law; Elements of Possible Solutions
Authors: Grewlich Alexandre S. 
Published: April 2022

Discrepancies between various stances towards competition policy have a tendency to lead towards trade conflicts. Private restraints resulting from anticompetitive arrangements are perceived as becoming more prominent.
In the age of globalisation it is possible to distinguish six basic approaches towards potential solutions regarding conflicts in competition law: firstly, an agreement on a binding universal antitrust code; second, a combination of minimum standards and a mechanism called international procedural initiative; third, a harmonisation of national antitrust laws; fourth, a "plurilateral agreement on competition and trade" as put forward by the EU; fifth, a strengthening of effective networks of peers (notably enforcement agencies); and sixth, a "plurilateral framework" combined with binding "positive comity" and dispute solution instruments.
After consideration of pertinent transborder antitrust cases, such as Boeing/McDonnell Douglas and WorldCom/MCI, the article deals with different competition cultures and notably reviews the workability of minimum standards, non-discrimination rules, surveillance and enforcement, "positive comity", dispute settlement, "single order" or networks of peers.
A basic distinction is being made between harmonisation, co-operation and "positive comity". The part on "positive comity" particularly deals with the OECD-Recommendations, the 1991/1998 EU-US Agreement, the EU's suggested WTO Competition Rules and the proposals put forward by the International Competition Policy Advisory Committee (ICPAC). A particular effort is made to assess the benefits and limitations of "positive comity".
Fiscal Aid in the EC; A Critical Review of Current Practice
Authors: Nicolaides Phedon 
Published: April 2022

The purpose of this article is threefold. First, it reviews Community policy on operating aid and explains why it is normally not permitted. Fiscal aid is a form of operating aid. One cannot understand many of the competition problems caused by fiscal aid unless one understands the nature and the issues raised by operating aid.
The second objective is to carry out a similar review of fiscal aid. In general, tax provisions that discriminate in favour of or treat in a different manner certain companies may be regarded as a form of State aid. The problem, however, is that tax systems are not uniform. Immediately there is a problem of what type of differentiation is acceptable and what type is State aid and therefore incompatible with the common market. The article evaluates the various tests of "objective differentiation" that have been proposed in the literature.
The third and most important objective of the article is to propose an economically meaningful method of distinguishing between tax provisions that are a hidden form of State aid and those that are not. Because tax measures may favour certain companies or activities even when they are not overtly discriminatory, the proposed method involves a multi-stage test.
Cour de Cassation, 12.11.98 'Les Pouvoirs et les Obligations — de l'usufrutier Belgium Case Note
Authors: De Marez Dominique 
Published: April 2022

A l'instar de la doctrine française, confirmée entre-temps par une jurisprudence constante de la Cour de Cassation française, l'on peut également plaider en droit belge pour faire une distinction, dans le contexte de l'usufruit d'actions, entre d'une part les actions qui font partie d'un portefeuille de valeurs, et d'autre part les actions pour lesquelles ce n'est pas le cas.
Dans le cas d'un usufruit d'actions qui appartiennent à un portefeuille de valeurs, l'on peut affirmer que le portefeuille doit être considéré dans son ensemble — et non du point de vue de ses actions individuelles — comme l'objet de l'usufruit.
En s'appuyant sur ce principe, l'on peut défendre la thèse que l'usufruitier d'un portefeuille de valeurs a le droit de disposer des actions qui font partie du portefeuille, à condition que la contrepartie des actions soit utilisée pour acquérir d'autres valeurs. L'objet de l'usufruit, le portefeuille de valeurs, doit en effet rester en état.
En acceptant cette thèse, l'on en arrive à une extension sensible des compétences juridiques de l'usufruitier d'un portefeuille de valeurs, ce qui se situe d'ailleurs en droite ligne des points de vues qui ont été adoptés par une partie de la doctrine belge.
BGH, Urteil vom 23.6.1999 — Zu den Voraussetzungen des Konkludenten Abschlusses Eines Selbständigen Beratungsvertrages Über den Künftigen Kaufgegenstand, für den die Allgemei
Authors: Riedler Andreas , Salas Murillo Sofía del Pilar de 
Published: April 2022

The BGH based its ruling on the following facts: the defendant manufactured high-quality garden furniture and wooden fences. He used the plaintiff's products for the coating process since 1987. In the beginning, the varnishing took place in Denmark. In the wake of problems that occurred in 1988 when using varnish of other producers for the coating process, the defendant asked the plaintiff for advice. Early in 1989, she asked for further advice, when she had decided to build an own varnishing plant, which she subsequently acquired for 500.000 DEM. Later on, the defendant's products were refined by using — amongst others — plaintiff's varnish. As complaints about the quality of the varnish arose, an expert examined the varnishing process. In 1992 he concluded that the process recommended by the plaintiff was unfit. The plaintiff sued for payment of the delivery of varnish; the defendant invoked set-off with damages and filed a counter-claim.
At the heart of the dispute is the following question: under which requirements does an independent advice contract come into existence, that is next to the seller's secondary duties to advise as a result of a sales contract? Which period of limitation is therefore applicable: the general one of § 195 BGB, or the shorter, sales-specific one in § 477 BGB? In this case, the BGH ruled in favour of a separate advice contract by arguing that this is justified in exceptional circumstances, i.e. if the activity of advice exceeds by far the scope of the regular secondary duties to advise in sales contracts, taking into account the content, scope, intensity and significance of the advice for the buyer. The authors of the following case notes analyse this decision from the Austrian and the Spanish point of view.
Systemwechsel im Internationalen Anerkennungsrecht: Von der EuGVVO Zur Geplanten Abschaffung des Exequaturs
Authors: Stoppenbrink Katja 
Published: April 2022

The communitarisation of judicial cooperation in civil matters by the Treaty of Amsterdam marks a new epoch in the unification of law in Europe. The European law of conflict of jurisdictions is affected by this, too. On 1 March 2002 Council Regulation (EC) No. 44/2001 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters entered into force, thus replacing the European Convention of 27 September 1968 (the so-called Brussels Convention). However, the “re-enactment” of the Brussels Convention as a Community regulation is only the first move towards a profound change in the European law system of recognition, a change aimed at the abolition of the exequatur. In accordance with the principle of mutual recognition the objective is to create “freedom of movement for judgments” between the EU Member States (I).
First this paper presents the procedure of recognition and enforcement of foreign judgments under the Brussels Convention as well as the modifications introduced by the new regulation (II), focussing on the catalogue of defences to recognition in article 27 of the Brussels Convention, which until now have had to be controlled ex officio by the judge responsible for the recognition of proceedings. Under the new regulation the test of defences to recognition is no longer applied ex officio but shifts to the appellate procedure (articles 43 and 45; III). The paper concentrates on the consequences of the new regulation for the equity of the procedure. Therefore problems resulting from the intended abolition of the exequatur are discussed (IV). Central features of the analysis are the ensuing curtailment of judicial review (and thus of legal protection) and the abolition of the ordre public test. The concludes that the latter cannot be given up as ultima ratio as long as there remain differences between procedural (and hence constitutional) standards in the EU member states, i.e. as long as there is no truly European judicial area (cf. Article 61 EC Treaty; V).
ECJ 10 May 2001, Henning Veed fald v. Århus Amtskonnune, C-203/99 (Danish product liability kidney case)
Authors: Howells Geraint G. 
Published: April 2022

This preliminary ruling deals with the conditions for an exemption from liability for defective products pursuant to Directive 85/374/EEC.
The plaintiff, Mr Veedfald, was due to undergo a kidney transplant operation at a hospital. After a kidney had been removed from the donor, in this case Mr Veedfald's brother, the kidney was prepared for transplantation through flushing with a perfusion fluid designed for that purpose. This fluid proved to be defective and a kidney artery became blocked during the flushing process, making the kidney unusable for any transplant. The fluid had been manufactured in the laboratories of the dispensary of another hospital, and prepared with a view to its use in the hospital. The defendant is owner and manager of both hospitals. Relying on the Danish product liability law, Mr Veedfald claimed damages from the defendant.
European Policies Towards China and the United States: Can They Support a Strategic Triad?
Authors: Maull Hanns W. 
Published: April 2022

Does a strategic triad exist? This article argues that the international order is undergoing a transformation that points towards a ‘new bipolarity’ between the United States and the People’s Republic of China. This new bipolarity is characterized by deep interdependence and mixed motives, rather than by the ideological antagonism and power struggle of the East-West conflict. It also is a much weaker axis of world order than the old bipolarity. This means it will likely fall short of providing the levels of global governance the world will need to cope with the challenges and opportunities produced by the relentless advance of globalization. To form this new bipolarity into a strategic triad, it would require the existence or ascent of a third party (a state, a coalition of states, or the European Union (EU)) with the capacity and credibility to influence the policy behaviour of both Washington and Beijing. In the case of the EU, what is missing is the capacity of the EU to act as a third party with its own, independent policy agenda that is taken seriously by both China and the United States.
The International Dimension of the EU Agencies: Framing a Growing Legal-Institutional Phenomenon
Authors: Coman-Kund Florin 
Published: April 2022

International cooperation has become a salient feature of EU agencies triggering important legal questions regarding the scope and limits of the agencies’ international dimension, the nature and effects of their international cooperation instruments, and their legal status within the EU and on the global level. This article examines the international dimension of EU agencies by advancing a legalanalytical blueprint linking EU law to international public law. The principle of institutional balance and the Meroni doctrine are used as EU law parameters for assessing the agencies’ international cooperation mandate, powers and actions, whilst the concepts of ‘international agreement’ and ‘international legal personality’ serve as standards for clarifying the legal nature of EU agencies’ international cooperation instruments and their legal status as global actors. Case studies on the European Aviation Safety Agency, Frontex and Europol ‘test on the ground’ the legal-analytical framework advanced and offer fresh insights into the EU agencies’ international cooperation practice. Whilst the institutional balance in EU external relations does not prohibit entrusting certain international cooperation tasks to EU agencies, the application of the Meroni requirements suggests a limited role for these EU bodies as global actors. Next, the international cooperation instruments concluded by EU agencies can be legally binding agreements which, as a specific category of technical-administrative agreements, could still be accommodated within the EU legal framework. Albeit EU agencies could acquire in theory a derived and functionally limited international legal personality, none of the three agencies examined has such a legal status entailing that their international cooperation actions are in principle attributable to the Union.
Co-operation: A Key to NATOs Cyberspace Endeavour
Authors: Slack Chelsey , Robinson Neil 
Published: April 2022

For nearly seventy years, NATO has been used as a forum for its Allies to consult, co-operate, and act on the decisions taken collectively for the benefit of their security and defence. Against the backdrop of a rapidly evolving cyber threat landscape, the Alliance has taken a number of steps in recent years to bolster its cyber defences, recognizing that cyber defence forms a part of NATO’s core task of collective defence. This article will shed light on NATO’s approach to cultivating co-operation on cyber defence – among Allies but also with a broad partnership network of countries, international organizations, industry and academia. Specific initiatives that are being pursued by the Allies to support NATO’s broader deterrence and defence, enhance national cyber resilience, and collaborate with partners in a spirit of co-operative security will be explored. In the end, these activities contribute to ensuring thatNATOcontinues to adapt and remain fit for purpose as a platform for consultation and action on collective security in the digital age.
Contesting ‘EU as Empire’ from Within? Analysing European Perceptions on EU Presence and Practices in the Mediterranean
Authors: Huber Daniela , Paciello Maria Cristina 
Published: April 2022

In a context of ongoing popular resistance in the Arab world, the question of how this has affected the view of the EU’s role in the region by European stakeholders has not yet sufficiently be inquired into. How is the EU – and its presence and practices particularly – perceived within its own core, by its policymakers on one hand, and by the European civil society it also involves in its policies, on the other? Institutional stakeholders see the space the EU occupies in the Mediterranean as rather limited with other powers growing in the region. In contrast to this, resistance of European civil society to the current EU role is growing. Not only is the EU now criticized of massive human rights violation itself, specifically in the area of migration, but its whole development model is called into question, including within Europe itself. At the same time, civil society presents a strong alternative imagination of the EU as a non-colonial presence whose practices are based on a universal human rights approach with a strong focus on socio-economic rights/social justice and the inclusion of a variety of actors.
European Union, Mediterranean, civil society, democracy, human rights, resilience
The EU’s Contribution to State Recognition: An Instrumental Approach
Authors: Hamonic Anne , Rapoport Cécile 
Published: April 2022

The European Union has no legal capacity to recognize or to refuse to recognize States. However, the broad array of instruments contributing to the diversity and scope of its external action singles it out within the highly varied category of international organizations. The changing degree of mobilization of its different instruments depending on the geographical proximity of the contested entity, on political considerations such as the power of the third States supporting the contested entity, or on past experience reveals that the EU modulates its interventions in accordance with its own interests to the extent they are compatible with its Member States’ interests. Framed by the EU’s principles and objectives of external action as laid down by Article 21 TEU, foremost among which is respect for international law, such mobilization of its external action instruments enables it to support certain contested entities in their state-building process, as well as to help to prevent the unlawful emergence of new entities and so work towards non-recognition of their statehood.
Crimea, European Union, external action (instruments), Kosovo, Northern Cyprus, Palestine, statehood, state-building (process), State recognition, territorial integrity
EU Human Rights Sanctions Regime: Striving for Utopia Backed by Sovereign Power?
Authors: Eckes Christina 
Published: April 2022

On 7 December 2020, the EU Foreign Affairs Council adopted an ‘EU Global Human Rights Sanctions Regime’ (EU HRSR). The objective of the EU HRSR is to give the EU to a flexible tool to address serious human rights violations and abuses worldwide. This article starts from the position that setting up an EU HRSR serves a noble objective. The EU HRSR could be desirable tool to flexibly confront those with consequences that commit serious human rights violations. Yet, it would crucially need to comply with human rights itself. This is not a small feat to accomplish. Much hinges on the listing and delisting criteria, the required evidentiary standard, and the information on which the listing decisions are based. Based on a detailed analysis of the Court of Justice’s sanctions case law, the article sets out the requirements with which the EU HRSR would have to comply. Finally, the horizontal EU HRSR is an attempt to decouple the protection of human rights from specific (political) conflicts. This decoupling directly charges the protection of human rights, which is traditionally portrayed as ‘neutral’, with sovereign politics.
Human rights, sanctions, restrictive measures, listing criteria, evidentiary standard, delisting
The Rationales Behind the EU-OACPS Agreement: Process, Outcome, Contestations
Authors: Carbone Maurizio 
Published: April 2022

This article examines the rationales of the European Union (EU) and the Organisation of African, Caribbean and Pacific States (OACPS) in the preparations and negotiations of the successor to the Cotonou Agreement, paying particular attention to contested issues. It argues that the EU-OACPS Agreement constitutes a fundamental break from past practices, at least apparently: with regards to form, it introduces an unprecedented framework for cooperation, articulated in a common base with three distinct regional pillars; in terms of substance, it proposes a list of equally important strategic priorities, thus going beyond the previous focus on development. Furthermore, unlike its predecessor but like many other agreements signed by the EU with third states, it sets out a comprehensive political partnership for mutually beneficial outcomes. This article, importantly, unravels sources of tensions between and within the two sides. It also shows that negotiations were more symmetrical than in previous instances, not least because contentious issues such as aid volumes and trade cooperation fall outside the remit of the EUOACPS Agreement, and less participatory, as they were largely conducted by a small number of official representatives, with limited involvement of other stakeholders.
EU-OACPS Agreement, Cotonou Agreement, post-Cotonou, ACP Group, African Union, EU development policy
The Politics of Competence in Global Health: The European Commission’s Global Response to the COVID-19 Pandemic
Authors: Svendsen Øyvind 
Published: April 2022

What was the European Commission’s (EC) global response to the COVID-19 pandemic and how did it use the crisis to claim competence in the area of global health? This article explores the EC’s global coronavirus response. In so doing, it suggests studying the crisis response in terms of how the EC struggled to be recognized as a competent player in the international community of states and institutions. In particular, the article shows how the EC utilized the crisis unleashed by the pandemic to engage in geopolitical positioning in relation to World Health Organization (WHO) funding and the vaccine race, and by using its financial clout to struggle for mastery as a global health actor. The article responds to the challenge of understanding differentiation in the broader field of European foreign, security and defence policies. By treating informal practices by the EC on the world stage in and of themselves, the article shows how the constant struggle for competence plays into the politics of European integration and considers its potential for being instantiated in formal transfers of competence in the area of global health. (This article is an output of the EUFLEX project, which has been funded by the Research Council of Norway (project number 287131).
European Commission, COVID-19, Global health policy, competence, practice