bluuebunny/crossref_metadata_2025_split huggingface dataset:
BGH, 4 Februar 1998* — Zur Bereicherungshaftung des Beschenkten Gegenüber Demjenigen, Dessen Wertpapiere ihm der Schenker unter Ausnutzung einer Verfügungsvollmacht Zugewendet Hat
Authors: Jacometti Valentina , Storme Matthias E. , Lytras Theodor 
Published: April 2022

The ruling of the BGH was based on the following facts. In 1986 the claimant received several securities from the father of both litigating parties. Their father had a power of disposal over the claimant's bank account and the securities deposit, respectively. In 1994 the father — in agreement with Defendant, being the claimant's sister — arranged for a transfer of the securities to Defendant's deposit. The claimant argued that his father has thus abused the power of authority conferred upon him. Defendant allegedly knew of the ultra vires nature of this action. In addition, the transfer of the securities had fiduciary effect only. Defendant disputed that the securities were part of the claimant's property. Also, she argued that she was not aware that they were transferred from the claimant's deposit. From her point of view, the transaction was a gratuitous grant originating from her father's property.
The District Court ruled in favour of the claimant; whereas the Court of Appeals dismissed the action. The ensuing appeal to the BGH brought by the claimant resulted in a reversal of the latter ruling and the case was subsequently referred back to the Court of Appeals.
In this case, the BGH discussed the relevant provisions contained in the law of unjust enrichment. Art 816 para. 1 2nd sentence BGB was held not to be applicable since the element of disposal by an unauthorized person was missing. Then, the BGH considered Art 812 para. 1 1st sentence ('on account of the claimant') as a basis for holding the claimant accountable, the requirements of which are prima facie complied with:
The securities were part of the claimant's property; the excess of authority was met by the gratuitous disposal effected by the authorized person, i.e. the father. Both elements do not amount to a justification for keeping the securities in question in the meaning of Art 812 para. 1 1st sentence. It is, however, of the essence how the transfer of securities to Defendant is to be qualified (for instance, as a benefit/performance by the father to Defendant; cf. principle of priority of the Leistungskondiktion).
This assessment, in turn, depends on various other circumstances (such as the expectations of the parties involved; the viewpoint of the beneficiary, etc.) in respect of which the Court of Appeals has not yet asserted the necessary facts.
The following case note discusses the decision by the BGH in the light of Belgian, Dutch, Italian, and Greek Law.
Soft Law in the Field of EU Competition Policy
Authors: Whish Richard , Cosma Håkon A. 
Published: April 2022

This paper examines the use of soft law in the field of EU competition policy. It recognises the trend towards softer forms of governance and that soft law plays an important role as an information source for individuals and undertakings in the market. The paper investigates the pros and contras of the ever increasingly use of soft law. In addition a classification of the instruments is attempted. The focus is mainly on the European Commission’s use of soft law since it is the major developer and user of these measures.
The paper begins with a discussion of the concept of soft law. It also examines the practical and legal effects of these quasi-legal measures. Furthermore the paper shows how individuals and undertakings comply with soft law even though they are not obligated to do so as a matter of law. The paper also discusses soft law’s contribution to the development of legislation. It recognises that these measures play an important role in the development of new competition policy.
Furthermore the paper shows that the instances of discretion inherent in the legal framework makes the Commission’s use of soft law possible as well as desirable. It concludes by pointing out that despite its negative features soft law will play an even more central role in the future. Soft law aids the understanding of the complex antitrust rules developed through case law and individual decisions by the European Commission. It makes the system more transparent. The soft law approach combines a flexible regulatory system with enhanced legal certainty.
Creating New Markets and New Jobs: The Personal Services Sector. Problems and Perspectives from an Italian Point of View
Authors: Biagi Marco , Biagi Marco 
Published: April 2022

It is known that labour market has undergone a rapid and continuous evolution. Unfortunately the juridical discipline does not always follow the dynamics of the development of socio-economic phenomena. Very often new social phenomena are governed by old rules and in their scope, contents, and cultural inspiration they cannot correspond to the new realities. This process is accompanied by the crisis of legality with the increasing ineffectiveness of law. The sector of personal services is very emblematic in this concern as it seems to be completely deregulated. In Italy the increase of demand for personal house services to the elderly is accompanied by the reduction of the available indigenous workforce. It is the reason why the employers usually use the foreign work-force for these kinds of services. Often such relationships are illegal and wages are respectively lower.
Taking into account the strong expansion of the personal service sector the authors of this article tried to examine the normative practices and evolution of tendencies especially in the perspective of regularisation of the previously illegal labour relationships.
OGH, Urteil vom 23.11. 1999 — Ordnungsgemäβe ärztliche Aufklärung und Beweislast für Behandlungsfehler
Authors: Maniotis Dimitrios , Schiltz Franz 
Published: April 2022

Concerning the facts of the decision see Spanish case note (1. Background facts).
Any comment on the ruling by Austria's Supreme Court of 23 November 1999 must necessarily address the subject of patients' right to information. In Spain this right is recognised in article 10.5 of the Health Law, as well as in regional legislation in Catalonia and Galicia. Also required is reflection on information as one of the doctor's duties, particularly as a prerequisite for a patient to consent to an intervention and treatment proposed by the doctor responsible for his care (so-called “informed consent”). Furthermore, the issue of the secrecy by which doctors are bound must also be addressed, as regulated in different pieces of legislation, in order to determine its exact scope. Appropriate too is an examination of case law developments with regard to the burden of proof in civil liability generally and, more specifically, medical liability. In this latter area there has been a notable shift towards facilitating the position of the patient, among other ways by focusing on the better probatory position of the doctor. The present commentary concludes with brief reference to the negative consideration given by the courts to the plaintiff's refusal to relieve the doctors from their duty of secrecy. This consideration ultimately led the Austrian Supreme Court to send the proceedings back to the court of first instance, with instructions to question the doctors as witnesses and rule once again on the plaintiff's application.
The case is annotated from the perspective of Spanish, Luxembourg and Greek law
Cour de cassation française, 26 Avril 2000 — priority conflict between the seller under title retention and the assignee of the resale claim
Authors: Sagaert Vincent 
Published: April 2022

The French Cour de Cassation delivered on 26 April 2000 a decision dealing with the priority conflict between a seller under title retention and the assignee, pledgee or subrogee of the claim of the purchaser who re-sold the goods. The Court granted priority to the former, relying on the argument that the latter could not acquire more rights than these belonging to the re-seller.
The decision is closely related to the principle of “real subrogation” (“tracing”), which exists of the substitution in the object of a proprietary interest. Indeed, the priority conflict as mentioned only arises if the proprietary right of the original seller under title retention is maintained on the claim out of the resale. This implies the substitution of the originally sold assets by the claim out of the sub-sale as object of the proprietary right. The decision witnesses of the possible far reaching consequences of real subrogation within the field of security law. The judgment is analysed in the following comparative comment from the perspective of French, German, English, Dutch and Belgian law.
Living Apart Together: EU Comprehensive Security from a Trade Perspective
Authors: Bossuyt Fabienne , Drieghe Lotte 
Published: April 2022

In contributing to the debate on the European Union (EU)'s comprehensive approach to security, this article examines the structural-operational interface between trade and security. It hypothesizes that the challenge of comprehensive security to combine structural activities with operational measures is most pronounced in the trade-security interface. As the oldest, most integrated and most powerful external policy domain of the EU, trade policy has acquired a high degree of institutional autonomy, operates according to its own logic and standard procedures and has a distinct organizational esprit de corps. This inhibits the integration of the EU's trade policy into the more comprehensive security portfolio. To operationalize this hypothesis, the article empirically explores the coherence between EU trade and security discourses and the extent to which trade measures have been used for security policy ends, as envisaged in the 2003 European Security Strategy. The empirical analysis confirms the hypothesis that coherence between the trade and security areas is limited, and that this relates to the institutional insulation of the EU trade policy sphere. However, the findings reveal that external factors, such as international trade law and preferences of the trade partners, should also be considered to further explain the relatively limited coherence between EU trade and security.
How to (Not) Walk the Talk: The Demand for Palestinian Self-Determination as a Challenge for the European Neighbourhood Policy
Authors: Beck Martin 
Published: April 2022

The aim of the current article is to analyse the challenges for the European Neighbourhood Policy (ENP) to pursue a meaningful and effective policy toward the Israeli-Palestinian conflict on four dimensions: the history of European foreign policies toward the Middle East conflict, opportunities and constraints of realizing Palestinian self-determination, institutional opportunities and constraints for the ENP of walking the talk of an Israeli-Palestinian settlement, and policy options of the EU toward the Israeli–Palestinian conflict and their success conditions. The EU’s chances and constraints in addressing the Israeli–Palestinian conflict are discussed as structural challenges: the challenge created through the historical normative engagement of the EU, the problematic local conditions for constructively dealing with the Israeli–Palestinian conflict, and the European institutional capabilities and their limits to project its policy concepts on the Middle East. The critical discussion of the three-faceted system of challenges that the EU is exposed to when dealing with the Israeli–Palestinian conflict is followed by the presentation and assessment of different policy options in the light of success conditions to (not) walk the talk of dealing with the Israeli–Palestinian conflict in a productive way. The article comes to the conclusion that the EU is hardly capable of contributing to the realization of Palestinian self-determination.
Corporate Social Responsibility in Recent Bilateral and Regional Free Trade Agreements: An Early Assessment
Authors: Jacur Francesca Romanin 
Published: April 2022

When looking at international trade and investment, there is a quite remarkable gap between the commercial power companies gain through international bilateral and regional trade agreements (Free Trade Agreements or FTAs) and investment treaties that facilitate their access to foreign markets and the norms of these agreements which address corporate behaviours in order to align them with sustainable development objectives. For instance, there is a strong perception by the public opinion that the recent Trans-Pacific Partnership (TPP) and Transatlantic Trade and Investment Partnership (TTIP) negotiations, harshly criticized for lack of transparency, would favour multinational corporations and other business operators at the expenses of the protection of public interests. Recently negotiated FTAs contain dedicated chapters to social, labour and environmental protection issues, including corporate social responsibility (CSR) norms. The opening of FTAs and their investment chapters to sustainable development concerns is – or should be – a way to rebalance the level playing field in these interstate agreements by envisaging public interest standards applicable to business operators. Disagreements between the Parties regarding these provisions may be solved through implementation mechanisms where non-state actors can actively participate. Notwithstanding this shift towards the inclusion of non-trade and non-state actors consideration, the provisions of bilateral and regional FTAs remain of an intergovernmental nature and do not provide for direct obligations for corporations. Despite the lack of vertical effects and the consequent limited implications on enterprises, the presence of CSR clauses testifies the recognition of the crucial role that these actors play as potential promoters, on the one hand, but also of potential infringers, on the other hand, of human and labour rights and of environmental protection. This contribution first examines the approach and the provisions of selected bilateral and regional FTAs that are relevant for the protection of human and social rights and the environment. It then analyses one of the latest developments in this decade-long normative evolution, which are the CSR clauses included in the more recent FTAs concluded by the European Union. While these clauses, for the time being, are rather programmatic and are coupled with soft implementation mechanisms, some reflections are proposed de lege ferenda on how they could ‘harden’ and become more stringent.
The European Defence Union and Denmark’s Defence Opt-out: A Legal Appraisal
Authors: Butler Graham 
Published: April 2022

When Denmark failed to ratify the Treaty of Maastricht in 1992, the heads of state and government meeting within the European Council concluded the Edinburgh Decision that established a number of opt-outs for Denmark, so it could subsequently ratify the treaty. One of these opt-outs was in regard to EU defence matters. Nearly three decades on, the Union is now seeing concrete steps being made across the treaties to deliver on a true European Defence Union. Given these developments, the Danish defence opt-out is coming under increased scrutiny. This article analyses the law, policy, and practice of the Danish defence opt-out contained in Article 5 of Protocol (No 22) on the position of Denmark annexed to the EU treaties, in light of the litany of initiatives that now make up the contemporary European Defence Union. Notably, these developments underscore and rationalize the basis of the EU’s internal market for deeper European integration. Moreover, with only one Member State possessing such opt-out, it is arguably detrimental to overall EU defence interests. This article contends that the time has come for Denmark to forgo its defence opt-out – a legacy of the past – and participate in the complete range of initiatives contributing to these new endeavours that form the contemporary European Defence Union.
Denmark, Common Security and Defence Policy, CSDP, Opt-out, EU law, Union law, Protocols, Security Law, European Defence Union.
The Tunisian ‘Exception’ and the Role of the EU: Perspectives from Tunisia
Authors: Nouira Asma 
Published: April 2022

The Tunisian transition has been and is mostly led to a substantial amount by civil society actors. As such, Tunisia constitutes a particular case for evaluating the role of the EU which presents itself as a supporter of civil society. How, indeed, are its presence and practices perceived by those actors? Based on more than thirty interviews, the authors find that Tunisian stakeholders see an EU presence in the transition process, even though it is not perceived as decisive to date. Rather, some of the EU practices raise questions about its presence, specifically when they are more responsive to the European security paradigm while being unresponsive to Tunisian socio-economic needs.
Tunisia, democratic transition, citizenship, constitution, human rights
The EU in Antarctica: An Emerging Area of Interest, or Playing to the (Environmental) Gallery?
Authors: Raspotnik Andreas , Østhagen Andreas 
Published: April 2022

Over the past decade, the EU has developed broader interests in the polar regions – ranging from fisheries, research and environmental protection to foreign affairs. Although this applies mainly to the Arctic region, its geographical opposite – the Antarctic – has not fallen into oblivion. This article explores the EU’s way ‘south’, examining its links to the region as well as the key drivers of this growing – albeit still limited – Antarctic engagement. International actions taken to establish Marine Protected Areas (MPAs) also indicate supranational tendencies to engage actively in and with Antarctic affairs. In particular, this concerns the European Commission and broader debates on sustainable development and global environmental leadership.
European Union, Antarctic, Marine Protected Areas, Fisheries, Antarctic Treaty System
Extending the Logic of Integration Beyond EU Borders: External Differentiated Integration in the Case of the Energy Community
Authors: Göler Daniel , Kurze Kristina 
Published: April 2022

How can the EU remain a transformative power without offering a full membership perspective? This question has triggered an intense debate among academics and practitioners alike. This article contributes to this debate by highlighting the conceptual relevance of Differentiated Integration (DI). We argue that DI offers an analytical concept to capture dynamics and processes often neglected in established approaches. This is especially so if one adopts a comprehensive understanding of DI, as we propose here. First, we focus on DI beyond EU borders, i.e. on external DI. Second, we argue that DI entails more than the inclusion of non-EU Member States in selected EU policies. Thus, external DI involves the extension of general integration dynamics (i.e. widening, broadening, and deepening) beyond EU borders. To illustrate our argument empirically, we analyse the Energy Community, an international organization initiated by the EU that has gone through significant processes of deepening, broadening and widening since its foundation. Overall, we maintain that external DI points to the EU’s potential of exporting the general logic of integration beyond its borders. Applied in this comprehensive sense, DI can add to our understanding of the EU as a transformative power.
European Integration, Energy Policy, Energy Community, External Governance, Transformative Power, Neighbourhood Policy, Differentiated Integration, Deepening, Widening
Brexit in the Eyes of East: How Will It Reshape EU/UK Trade Relations with East Asia?
Authors: Wu Chien-Huei 
Published: April 2022

Brexit reshapes not only the EU-UK relations but also impact their trade relations with Asia. This article explores possible directions of EU/UK trade relations with Asia, covering free trade agreements, bilateral investment treaty and the UK’s potential participation in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). This article argues that a sense of competitive liberalization motivates their pursuit for trade opportunities with East Asia. The EU has to prove its continuous relevance in the international economic relations as the Brexiters allege it as a constraint for the UK to pursue active and flexible trade relations. In contrast, the UK has to fulfill its promise of Global Britain by delivering measurable progress in trade negotiations instead of renegotiating back what it has already enjoyed under the EU free trade agreements (FTAs).
Brexit, Global Europe, Global Britain, Free Trade Agreement, Bilateral Investment Treaty, Comprehensive and Progressive Agreement for Trans-pacific Partnership, populism, disintegration
European Union-Middle East Relations and International Relations Theory: A Stock-Taking and Suggestions for Research
Authors: H. Lawson Fred , Legrenzi Matteo 
Published: April 2022

Current scholarship on European Union-Middle East relations has contributed little to ongoing theoretical debates in the academic discipline of international relations. Yet several influential research programmes regarding world politics would benefit from incorporating events and trends involving these two regions. In particular, conceptual controversies regarding regional and global security, the diffusion of regional identities, interregionalism and overlapping regionalism and the politics of empire will be advanced when specialists concentrate on analytical puzzles, and move beyond descriptive, evaluative and prescriptive accounts.
Security, interregionalism, overlapping regionalism, empire, European Union
The Institutional Dimension of the EU-UK Relationship After Brexit
Authors: Wouters Jan 
Published: April 2022

In the absence of agreed institutional arrangements for the post-Brexit EU-UK relationship the present contribution explores whether guidance can be found for the institutional dimension of their future relationship in a number of other documents and principles. We will, first of all, examine the institutional framework laid down in the ‘Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, done at Brussels and London on 24 January 2020’, and its implementation. Second, we will uncover some aspects of the future institutional relationship based on the ‘Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom’ of 17 October 2019, which was adopted by the EU and the UK in parallel with the Withdrawal Agreement. Third, we will explore how the Commission sees that relationship based on its March 2020 draft text. Fourth, we will discuss at a meta level the principles which will in any event govern the institutional side of the future relationship, in particular the principle of good faith. Some brief concluding remarks round up.
Brexit, Institutional Framework, European Union, United Kingdom, Withdrawal Agreement, Political Declaration