Von der deutschen zur europäischen Wirtschaftsverfassung

Handbuch des Internationalen Zivilverfahrensrechts. Band 1

Although the initiative for a common European Sales Law ended in failure, it appears that the, the rejection of the European Commission’s proposal has not signalled categorical refusal. Considering the possibility of a broader harmonisation, it is only appropriate that the still unresolved question of a comprehensive body of rules on private law should be addressed. In this chapter, first, the forces driving codification and their potential significance in the European Union are explored, concluding that economic integration and accessibility of EU law are the relevant factors in the European context. Subsequently, a number of particular acts and cases are examined to show how the absence of a more comprehensive foundation of private law impedes the uniform application and interpretation of specific legislative acts of the Union. Describing the system-building function of general rules as well as their influence on legal education, the chapter emphasises the growing need for a set of general rules on private law that can offer guidance amidst the piecemeal legislation of the European Union. The chapter argues for a body of basic private law rules that is based on the authority of the European legislature and that would provide orientation as well as a common ground for legal education across Europe.

The pursuit of a uniform interpretation of international legal instruments is a pivotal undertaking for legal scholars. It is carried out in a framework consisting of rules of treaty law and of comparative enquiries into the practice of other contracting states which search for what Linda Silberman has designated as global jurisprudence. Where that search for a common understanding remains unsuccessful the divergences of interpretation are sometimes perceived as a conflict of laws requiring application of choice of law rules. Procedural mechanisms which help maintain and restore the uniformity of the law at the national level are less current in international uniform law, but are progressively accepted in this area of the law as an ultimate safeguard of uniform application as well. Overall, the article underscores the ongoing nature of the quest for uniform interpretation and the significance of global jurisprudence in achieving harmonization in international law.

As a former member of the Deregulation Commission (1988-1991) and a present member of the German Monopolies Commission, Jürgen Basedow has published numerous small papers on economic deregulation, and they have been collected in this volume. They focus on the impact that European Community law has on the regulatory structures of markets such as transport, insurance, legal services etc., on the relationship between deregulation and harmonization and on the role of competition law in deregulated markets.

Unified rules and principles are increasingly encountered in various sectors of private law. Jürgen Basedow conducts a comprehensive and overarching analysis of the general framework of uniform law, considering the continuous expansion as a legal response to globalisation.

Ⅰ. Einleitung Ⅱ. Vom Aufstieg der Verweisungsnormen Ⅲ. Vom internationalem zum nationalen Verweisungsrecht Ⅳ. Der Aufstieg des internationalen Zivilprozessrechts Ⅴ. Rechtsvereinheitlichung und –harmonisierung Ⅵ. Zwischenfazit Ⅶ. Koordination durch Kooperation Ⅷ. Koordination durch Gleichwertigkeitsprüfung Ⅸ. Fazit

In its judgment of May 5, 2020, the Second Senate of the German Constitutional Court qualified for the first time a judgment of the Court of Justice of the European Union (CJEU)—C-493/17 Weiss—as “arbitrary from an objective perspective” and declared the underlying European Central Bank (ECB) decisions regarding the Public Sector Purchase Programme (PSPP) to be ultra vires. It requested the German Government and the German Parliament to take steps against the PSPP in its current form and to ensure that the ECB conducts a proportionality assessment of its PSPP. The judgment also prohibits the German Central Bank from participating, after a grace period of three months, in the implementation and execution of the ECB decisions at issue, unless the ECB assesses and substantiates that the measures provided for in its decisions satisfy the principle of proportionality. The present article, which was written by academics, lawyers, and civil servants from five countries, casts a critical eye on the judgment of the German Constitutional Court. It identifies significant shortcomings from both a German constitutional and a European Union perspective.

Deutsche Zusammenfassung: Ende letzten Jahres hat die EU-Kommission zwei Vorschlage fur Verordnungen zur Digitalwirtschaft vorgelegt: den Digital Services Act – COM(2020) 825 final vom 15.12.2020 – und den Digital Markets Act – COM(2020) 842 final vom 15.12.2020 (DMA-E). Der Digital Markets Act betrifft die kommerziellen Beziehungen zwischen Internet-Service-Providern, geschaftlichen Nutzern, Endnutzern und Werbetreibenden auf Internetportalen. In diesen Beziehungen zeigen sich mehr und mehr Missbrauche marktbeherrschender Stellungen. Der Beitrag billigt die inhaltliche Stosrichtung des Vorschlags, halt die Ausgestaltung eines separaten Regimes der Branchenregulierung aber fur hoch problematisch. Die Abkoppelung vom EU-Wettbewerbsrecht hat gravierende Defizite bei der Durchsetzung und ungeklarte Regelungskonkurrenzen zur Folge. Kritisiert wird auch die Wahl der Rechtsgrundlage. Der Autor pladiert fur eine bessere Einpassung der neuen materiellrechtlichen Regeln in das System des Wettbewerbsrechts. English Abstract: In December 2020, the EU Commission presented two proposals for Regulations on the digital economy: the Digital Services Act [COM (2020) 825 final of December 15, 2020) and the Digital Markets Act [COM (2020) 842 final of December 15, 2020 (DMA -E)). The Digital Markets Act deals with the commercial relations between internet service providers, business users, end users and advertisers on core platforms. These relations give increasing evidence of abuses of market dominance. The article approves the main thrust of the proposal. i.e. the obligations imposed on gatekeepers. But it considers the solution suggested – a separate regulatory regime for the sector – as highly problematic. The disconnection from EU competition law has serious consequences in terms of enforcement deficits and also when it comes to overlaps with other legal provisions. The legal basis of the proposal is criticised as well. The author advocates a better incorporation of the proposal into the system of competition law.

The book deals with the impact of EU law on private relations. While EU law has principally developed through vertical relations of the Union and its Member States with private persons, its foundations, principles and enforcement mechanisms are increasingly affecting the growing body of EU law governing horizontal relations between individuals and undertakings. The results are sometimes unexpected and sometimes inappropriate.

Since the 1968 Brussels Convention EU civil procedure law has grown largely both in numbers of legal instruments and in intensity. However, the existing EU Regulations have an EU-internal focus. Relations with third countries are dealt with in a disparate manner. This is suboptimal for cooperation with non-EU countries. Therefore, the EU has concluded the Lugano Convention with some European countries, but this is not a globally suitable approach. Based on comparative analyses and country-specific reports (EU member countries as well as non-EU countries), the book develops a structured approach for future action, be it by modification of existing EU regulations, passing new regulations, negotiating new multilateral or bilateral treaties (e.g. in the framework of the Hague Conference on Private International Law), developing soft law or passing national legislation, preferably on a uniform or coordinated basis together with third countries. The book deals also with Brexit issues.