bluuebunny/crossref_metadata_2025_split huggingface dataset:
Constitutional review of Disproportionately Different Periods of Limitation of Actions (Prescription)
Authors: Storme Matthias E. , Pozzo Barbara , McGee Andrew 
Published: April 2022

The different treatment of victims, in relation to limitation of civil actions for damages, depending on whether the fault causing the damage constitutes a criminal offence or not (Art 26 Preliminary Title of the Code of Criminal procedure), has the effect that a party who has suffered damage is in a fundamentally less favourable situation when the damage is caused by a fault constituting a criminal offence as compared to the case where the fault does not constitute a criminal offence.
In those cases where the damage only becomes apparent after a long period of time, this
leads to a serious limitation of the rights of the victim, out of all proportion with the interests which the legislator of 1878 and 1961 sought to protect, namely the right of the tortfeasor to put his past behind him, legal certainty and the public interest in avoiding a new disturbance of social peace and order where it has been restored in the meantime. These preoccupations justify specific periods of limitation for penal actions, according to the gravity of the offence. They do not, however, justify the position where the limitation period for a civil action for damages caused by these facts is five years — even taking into account the amendments which have been effected by legislation and case law — when compensation for damage caused by fault, which does not constitute a criminal offence, can be claimed for a period of thirty years. There is thus no reasonable proportionality between the measure and its effects on the victims of criminal offences.
BGH, Urteil vom 2. Juli 1996, BGH - Zur Reichweite des Vertrages mit Schutzwirkung zugunsten Dritter
Authors: Doris Philippos , Stoll Hans , Probst Thomas 
Published: April 2022

The German Federal Supreme Court took this judgment as an opportunity to state its position on the scope of application of the contract with protective effects towards third parties once again. The judgment was based on the following set of facts: A firm G, which was not itself a party to the dispute, dealt in the business of tempering items made of steel and other metals. The tempering process took place in a so-called nitration oven. The parties to the dispute were customers of G and on one occasion the products of both parties destined for nitration were placed in G's oven at the same time. Some time after the start of the nitration process there was an explostion, which caused large sections of the oven to fly into the air. According to the plaintiff, the product delivered for nitration by the defendant was not in accordance with G's regulations and because of the explosion caused as a result the product delivered for nitration by the plaintiff were destroyed. The District Court approached at first instance allowed the plaintiff's claim to the fullest extent and assessed damages on the basis that § 823 (1) of the Civil Code applied. On an appeal by the defendant, the Appeal Court confirmed the findings of fact made by the District Court, but decided the appeal in accordance with the principles of the contract with protective effects towards third parties.
The further appeal on a point of law led to this decision being quashed and referred back to the Appeal Court. The Supreme Court in its judgment first of all rehearsed - in a passage that is well worth reading - the development of the contract with protective effects towards third parties, and stressed that it had always been a concern of the case law to avoid an endless extention of the the range of persons falling within the field of protection. In the present case there was an absence of certain decisive criteria, which previous cases had insisted must exist before a contract with protective effects towards third parties could be recognised. The plaintiff lacked the necessary closeness to the unperformed obligation because the parties had concluded independent and unrelated contracts with G, and the plaintiff had no connection at all with the defendant's principle obligation, namely payment of the agreed fee. Furthermore, the plaintiff had no need to be protected by being drawn within the field of protection of the contract between the defendant and G, because the plaintiff had its own warranty claim against G arising out of the contract entered into between G and itself.
The authors examine the decision from the point of view of German (Stoll), Swiss (Probst) and Greek (Doris) law and subject the contract with protective effects towards third parties as a legal institution to a critical evaluation.
Case Note - BGH 11 November 1997
Authors: Halliday Samantha 
Published: April 2022

The decision of the German Federal Supreme Court adds to its jurisprudence on the circumstances in which a tortfeasor can be made liable for psychological damage to the injured party (compare on this point also the case notes published in this journal on the leading decision of the Supreme Court (BGHZ 132, 341 = JZ 1996, 1080 (note Schlosser), ERPL 1998, 249 ff.). For the facts of the case, reference is made to the first paragraph of the attached case comment, which examines the problem from the point of view of English law. In its reasoning, the Supreme Court deals, inter alia, with liability in relation to a nervous condition and with the issues identified in the statements of principle:
Statements of principle:
a) The answer to the question whether a harmful event can be so minor that under the principles of the Supreme Court decision BGHZ| 132, 341 ff. liability for psychological harm can be excluded depends on the primary injury suffered by the injured party.
b) If the unfitness for work asserted by the injured party arises from a psychological inability to deal with the harmful event, the tortfeasor may be obliged to compensate for the length and amount of any loss of income that may come into consideration, if the prognosis is that serious risks to the development of the injured party's future career because of the aforementioned psychological difficulties exist with a sufficient probability to statisfy §287 of the German Code of Civil Procedure.
OGH vom 27.1.1999, 3 Ob 225/98d, JBL 1999, 470 Zur Verzinsung eines Schadensersatzanspruches beim Schuldnerverzug
Authors: Pahlke Anne-Kathrin , de Temmermann Bart , Christodoulou Kostas N. 
Published: April 2022

The following set of facts formed the basis of the decision of the Austrian OGH: The parties were land owners. Jn 1992 excavation work at the defendant's premises caused damage to the claimant's neighbouring house because inadequate precautions were taken. The amount of the damage (repair costs, reduction in value etc.) came to more than 1.85 million Austrian Schillings. The claimant did not allow the repairs until the day of the decision of the OGII, and also did not claim any advance on the costs from the defendant. He worked from October 1993 with a bank loan, that exceeded the amount of the damages, which attracted interest at a rate higher than the legal rate. In his claim, the claimant sought compensation for his aforementioned damage including the full amount of interest that had accumulated through the delay in payment. The lower courts awarded the claimant his aforementioned damage, but only allowed his claim for interest at the legal rate of 4%. In his application for Revision the claimant sought reimbursement of the sum constituting the difference between the legal rate of interest and the rate that he claimed to have paid.
According to the OGII, a claimant's claim for interest is justified in so far as he has been able to show that he has actually suffered damage in the form of interest payments of the amount claimed during the relevant time period. The issue is one of damage resulting from delay, irrespective of whether the person responsible for payment of compensation was approached for an advance of the costs involved in repairing the damage before credit was obtained or not. This head of damages — which is not limited by § 1333 AGBG — can also be claimed when the person responsible for compensation is liable to pay for the "positive damage" caused by the slight negligence of the tortfeasor. According to § 1298 AGBG it is the defendant who has the burden of pleading and proof of the absence of fault. It is irrelevant whether the claimant has incurred the amount claimed solely in repair costs. A claim is however excluded, because of the disqualification of fictitious repair costs, if it is established that no attempt to repair the damage will (or can) be made at all.
The following authors investigate the issues raised by the decision from the point of view of Austrian, German (Pahlke, Christodoulon), Belgian (Temmerman), and Greek (Christodoulou) law, as well as with reference to the Principles of European Contract Law, the CISG, the Unidroit Principles and the European Parliament and Council Regulation on the Combauing of Late Payments in Commercial Transactions of 29.6.2000.
Environmental Risk: A Comparative Law and Economics Approach to Liability and Insurance
Authors: Monti Alberto 
Published: April 2022

The first part of the paper explores the factors that make up an efficient mechanism for ensuring that industries internalise the costs of environmental damage. In particular, the author considers the insurability of environmental risk and the possibility of using highly individualised insurance policies to cover that risk and at the same time to provide incentives to invest in safe technology and practices. He concludes that the most appropriate way forward would be to use an institutional structure in which strict liability both for damages suffered by private parties, and for restoration of impaired natural resources is imposed. Liability should be non-retroactive, individual and proportionate - assisting the potential tortfeasor to perform a costs-benefits analysis. Regulation should work hand in hand with insurance. Regulators should set minimum safety standards as pre-requisites for the operation of certain types of industrial plant on the basis of the information provided by insurers as to the nature of insurable risks. Any plant authorised to operate should therefore be able to obtain insurance coverage. Such a system would provide for environmental liability which is limited to the extent necessary to make it insurable. The need would therefore remain for a tax based compensation fund to cover uninsured damage.
The second and third parts of the paper go on to examine how far national legal systems and EU law respectively measure up against the proposed model. Monti concludes that the suggested model would be in keeping with and useful to the further development of environmental policy in the EU.
Österreichische OGH, Urteil vom 2.7.1998 - Zur Haftung für die Beschädigung eines "gefälligkeitshalber" gelenkten fremden PKWs
Authors: Theodorou Heleni 
Published: April 2022

The decision of the OGH was based on the following set of facts: the parties met through a common acquaintance. At the suggestion of the defendant they decided to go to a bar, along with some others. Since the claimant had already had some alcohol, and did not have a driving licence with him, the parties agreed that the defendant should drive to the bar in the claimant's car. It was not possible to establish whether there had been any further discussion about what should happen in the case of an accident, and in particular whether the question of liability in such a case had been raised. On the way to the bar, the defendant was responsible for causing an accident through bad driving, and the claimant's car was a write off.
The lower courts allowed the claim for compensation in principle. The defendant's appeal in revision was also unsuccessful. The OGH left open the question whether the parties had entered into a contract. In such a case the defendant was responsible for returning the borrowed item intact. If there was no contract, the same result would be reached through a tort claim based on negligent damage to property under §§ 1295 ff. ABGB, since the accident was the result of driver error and this error - because of the dangerous nature of the activity undertaken - indicated the existence of an objective lack of care sufficient to make the defendant's action unlawful, as well as a subjective fault element. The claim thus identified existed even when the owner of the property allowed the defendant at his suggestion to drive a car on a shared journey.
The following contributions examine the judgment from the standpoint of German and Greek law.
The Structure of European Contract Law
Authors: Grundmann Stefan 
Published: April 2022

The internal market and the fundamental freedoms aim at extending party autonomy across borders. The instrument of party autonomy is the contract. The basic concepts and the legal measures on which EC contract law is based are recent. However, from both a conceptual and an empirical point of view, EC contract law has become indispensable. That applies even in purely domestic cases. Contract law is the core area of private law, EC contract law influences already more than half of all contracts, also domestic, and two thirds of all cross border transactions of the member states are now with other member states. EC contract law can be defined as covering all EC rules concerning the formation, the content and the termination of contracts.
EC contract law emerging over the last decade focuses on a specific type of transaction, and also of a particular regulatory approach. It focuses on transactions which typically concern large volumes and that are not only domestic. It is mainly obstacles to these transactions which are overcome and it is primarily the risks of these transactions which are regulated. European contract law has to be conceived both as broader and as narrower than national contract law. Broader because it includes all rules pertaining to contracts, also public good regulation. Narrower because it includes only rules which take away obstacles. National rules only constitute obstacles when internationally enforced.
The key structural issue in European contract law is the division between on the one hand rules that are internationally enforced according to articles 5–7 of the Rome Convention on the law applicable to contractual obligations. On the other hand are the rules that the parties can choose according to article 3 of the Convention. Only rules internationally enforced are subject to scrutiny on the basis of the fundamental freedoms of EC law. Both areas are further developed in specific sections of this article: There is virtually no harmonization where parties can choose the law applicable. There is intense harmonization for rules that are internationally enforced. There are in fact only very few national rules which are not harmonized in this area. It is argued that the major aim of harmonization here is to remedy two forms of market failure: restrictions of competition and (certain) information asymmetries.
In the section concerning the policy decisions inherent to the structure it is argued that the instruments used are such that both over regulation and state failure tend to be avoided. The policy is not restricted to a laissez faire approach either. The framework and mechanisms adjust the intensity of regulation near to an optimal level. This framework deserves more truly international and interdisciplinary discussion than it has received so far.
A Fair Hearing Before EC Institutions
Authors: Drabek Libor 
Published: April 2022

This paper discusses the protection of private parties within the framework of administrative implementation of European Community law. It analyses the procedural guarantees of private parties and in particular the right to a fair hearing. In this context the relevant rules established by Article 6 of the European Convention on Human Rights are also considered.
The author tries to determine the legal basis of the right to a fair hearing and the conditions under which it has been applied by the EC institutions. A particular attention is drawn to the rules on competition and state aids where the development in the case law and the relevant legislative framework are discussed. Once the content and the applicability of the right to a fair hearing are defined, the author goes on to discuss the specific aspects of the right to a fair hearing, such as privilege against self-incrimination and reasonable length of proceedings.
Finally, the question is raised as to whether the fairness in the proceedings can be effectively enforced by the individuals before the European Community courts. In this regard a locus standi of the private parties before the European Community courts is examined in the area of competition and state aids.
Cour de cassation française 21 février 2001 — l'indifférence du caractère excusable de l'erreur
Authors: Vari Barbara , Beamonte José Ramón de Verda y , Henriques Paulo Videira 
Published: April 2022

The decision made on February 21 2001 by the Cour de Cassation establishes the irrelevance of a non-excusable mistake committed by a party when it results from fraud on the part of the other contracting party.
The case at hand concerned a buyer who, after having purchased a building and business, claimed the nullity of the sale due to the seller's fraud. However, the Court of first instance had ruled against him as he, in his capacity as a professional, should have informed himself properly. Since he did not do so, his mistake is deemed non-excusable.
The Cour de Cassation then qualified this decision as follows. It held that, in general, fraudulent omission of facts, given that it has been well established, always makes the resulting mistake excusable. In other words, a mistake is only non-excusable, and thus cannot lead to the nullity of the contract, as long as it is spontaneous. It is, however, without influence, i.e. excusable, when it becomes neutralised by fraudulent behaviour of the other party. This is a general rule, which applies even in case of fraudulent non-disclosure by one of the parties, which relates to substantial facts for the conclusion of the contract.
Complementarity and Rivalry in EU?China Economic Relations in the Twenty-First Century
Authors: Andreosso-O’Callaghan Bernadette 
Published: April 2022

Economic dynamism in the People?s Republic of China over the past two decades, in contrast with sluggish growth in an enlarged European Union, makes the examination of contemporary and future EU?China economic relations all the more relevant. This examination is done by highlighting complementary and opposing forces between the two regions. It underlines the asymmetry in the trade relationship ? with a growing EU trade deficit ? and a declining share of EU foreign direct investment since the peak years in the late 1990s.
In terms of trade patterns, a certain degree of complementarity still exists between the two regions, with China relatively engaged in low-knowledge-intensive industries (such as office machinery and computers), although the move up the value chain is rapid. This still leaves scope for a manufacturing?services complementarity. Areas of possible rivalry include the perception, by the EU, of an ?unfair? Chinese competition, the opacity of the Chinese market, and allegations of dumping by Chinese firms, an issue related to its non-market economy status.
In the future, the fifth enlargement may lessen the complementarity (and therefore increase the level of competition), thus generating another challenge. Faced with these numerous challenges, a number of solutions are proffered, among which are multilateralism and cooperation on energy issues.
Interest Aggregation, Political Parties, Labour Standards and Trade: Differences in the US and EU Approaches to the Inclusion of Labour Standards in International Trade Agreements
Authors: Martins Gistelinck Myriam , Kerremans Bart 
Published: April 2022

The connection between labour standards and international trade has become a key issue in the relations between industrialized economies and developing countries. Both the US and the EU are advocates of the inclusion of ‘labour standards’ in trade agreements with developing countries, in multilateral, bilateral and unilateral contexts alike. As the prospects of establishing multilateral rules governing the relations between trade and labour within the framework of the World Trade Organization (WTO) have diminished, both trade blocs increasingly focus on bilateral forums to pursue their policy goals.
In this article, the objectives are twofold. First of all, we aim at describing the main points of difference between the EU’s and the US’s approach toward the inclusion of labour standards in bilateral trade agreements. In a second step, we will formulate a possible explanation for these differences based on a theoretical model that focuses on the aggregative role of political parties in the context of European and US policy-making on trade.
The EU in Its Own Eyes: The EUs Power in Its Self-Understanding
Authors: Tiilikainen Teija 
Published: April 2022

The European Union's (EU's or hereinafter 'Union's') self-understanding has to be perceived as one of the most essential factors shaping the EU's role in world politics. This article focuses on how the EU perceives itself as an international power. The EU's self-understanding, which first outlined European unity as a force for change in the world, moved in the Cold War context in a more state-centric direction. The protection of European security and - gradually - the EU's own territory and citizens were seen as the primary goals of the EU's power. The idea of the EU as an owner of common rights, responsibilities, and interests emerged and has been efficiently used later on in the EU's policies. With the historical enlargement, the big power identity was all the more emphasized. In the context of enlargement, the successes of European integration started to appear as a firm source of the Union's power. The EU sees itself as a large territorial actor, whose power emanates from its economic might, political unity, and a very special system of internal cooperation. The comprehensive framework of instruments is clearly viewed as the main asset of the EU's power.