German Courts Research Articles

Ustalanie właściwości sądów polskich (nieniemieckich) w sprawach karnych przez prokuraturę niemiecką w Generalnym Gubernatorstwie w latach 1939–1945

The article discusses the issue of determining jurisdiction by the German prosecutor's office in criminal cases in the General Government concerning the Polish (non-German) judiciary. The study uses the legal-history methodology. The author indicated and analyzed the legal basis for the subject matter. The procedure for determining jurisdiction has been reconstructed, from preparatory proceedings to the possibility of changing final judgments. In addition, criteria were indicated that determined the selection of a specific type of court to consider a case. The article also analyzes the practice of the German prosecutor's office in this regard. The research was based on the analysis of the preserved files of proceedings of German courts, special courts, and Polish (non-German) courts, which met the criteria of the adopted methodology. The thesis of the work assumes that the German prosecutor's office transferred to special courts, apart from those cases that belonged to their jurisdiction under the provisions of the regulations in force in the General Government, also those that concerned acts and perpetrators requiring severe punishment, under the Nazi views on criminal law.

Climate Litigation, Extraterritoriality of Human Rights and the German Constitution

Abstract Constitutional obligations can bind the authorities of a state not only in relation to their own citizens but also to people living abroad. The extent of this ‘extraterritoriality of human rights’ has been the subject of much debate. Recent decisions by German courts, in particular the Constitutional Court, have begun spelling out the reach of this obligation for German authorities. In 2020, citizens from Bangladesh and Nepal turned to the Constitutional Court, submitting a complaint, alongside German individuals, on the insufficient and weak climate policy of the German government. As part of its subsequent landmark decision, the Constitutional Court surprisingly upheld the admissibility of the complaints by non-German nationals living outside of Germany. The Court confirmed that greenhouse gas emissions emanating from Germany could potentially give rise to a duty to protect people abroad from the adverse effects of climate change, based on the fundamental rights protection provided under the Basic Law. However, the Court dismissed the complaints on substantive grounds. It established that – should extraterritorial obligations exist – these would differ from domestic obligations in both content and standard of review. Yet, the Court fell short in establishing a suitable standard for assessing a breach of the duty to protect in an extraterritorial context.

Can Civil Courts Save the Climate? Strategic Climate-change Litigation Before Civil Courts

Climate change is an urgent global problem, and national legislatures must enhance their efforts to reduce carbon dioxide emissions drastically. Individuals and NGOs have filed public law actions against national legislators before international courts (prominently the ECHR) and several constitutional courts to allege violations of constitutional and human rights. In a more recent development, civil courts too are being seized with climate‑change litigation. In 2021, a Dutch court ruling on an action by an NGO against the Royal Dutch Shell Group held that Shell is obliged to reduce its CO2 emissions considerably. This judgment, based on the Dutch Civil Code’s general tort regulations, has triggered a wave of similar actions before German courts. Such cases of individual plaintiffs, supported by NGOs, suing private companies for damages or for an immediate reduction of emissions are examples of ‘strategic litigation’ aimed at bringing about broad societal changes beyond the scope of the individual case at hand. The article analyses the political implications, tackles the question of whether general tort law is a suitable instrument to address the climate‑change problem, and discusses how civil courts may handle these cases. Climate change is a complex, multi-stakeholder issue that requires a difficult process of balancing social, legal, and economic interests – which is the task of democratically legitimised parliaments, not primarily a task of courts.

Should German Courts Review Competition Law Awards on the Merits? Significance of the German Federal Supreme Court’s Decision of 27 September 2022

The extent to which courts are allowed to review arbitral awards for public policy violations in annulment or enforcement proceedings is a controversial topic. Recently, the German Federal Supreme Court (BGH) conducted an exhaustive judicial review of an award (referred to as a ‘Révision au fond’), assessing its potential breach of competition law within the framework of Germany’s public policy. This marks the first time in more than five decades that Germany’s highest civil court has taken an unambiguous stance in the ongoing discourse. Even though BGH decisions have no binding effect for lower courts in Germany, it can be expected that other German courts will follow the decision for the purpose of a uniform application of the law. This article analyses whether German courts should take the BGH’s decision as guidance and similarly conduct a Révision au fond of arbitral awards relating to competition law. It is concluded that the BGH’s decision is not in line with the internationally prevalent view that a Révision au fond is to be prohibited. Moreover, the justifications provided by the court for conducting a Révision au fond are found to be only partly convincing. In fact, there are several points in which the BGH’s approach can be countered by arguments in support of a merely limited review. Révision au fond, full review, competition law, antitrust, BGH, public policy, ordre public, cartel senate, finality of awards, Germany

International Justice in Domestic Courts: Lessons Learned from German Courts and Warning Signs

Le moment est bien choisi pour réfléchir à notre situation en matière de compétence universelle. La plus haute juridiction du système judiciaire français, la Cour de cassation, a décidé le 12 mai 2023 que les affaires d’atrocités internationales pouvaient continuer à être jugées par les tribunaux français sur la base du principe de la compétence universelle. Cette question s’est posée après que la Cour a décidé, en novembre 2021, qu’un suspect syrien ne pouvait être jugé pour « complicité de crimes contre l’humanité » au motif que la loi syrienne ne prévoit pas cette incrimination exacte. Cette décision a été un désastre pour les acteurs du dossier syrien et, plus généralement, pour tous ceux qui sont engagés dans la lutte contre l’impunité. La Cour de cassation vient de clarifier cette interprétation et de revenir sur sa décision, au grand soulagement des acteurs de la société civile impliqués dans le dossier, au premier rang desquels les collègues syriens.

A Short History of Prosecuting Crimes under International Law in Germany

Abstract This article takes the 20th anniversary of the entering into force of the German Code of Crimes against International Law (Völkerstrafgesetzbuch, CCAIL) as an opportunity to offer a historical review of the prosecution of international crimes in (West-)Germany. Starting from the post-World War II period, it flags early milestones, including efforts to hold accountable before German courts those involved in Nazi atrocities, in state oppression in the German Democratic Republic, in violations of international humanitarian law during the Yugoslav wars, and in dictatorship crimes in Argentina. This article then focuses on the practical implementation of the CCAIL and presents, at a glance, major trends, flaws and lessons learned over the past 20 years. It identifies four major phases: standstill, build-up, implementation and consolidation. This article concludes with a call for German judges and prosecutors to step up their efforts to contribute to a uniform and universal enforcement of international criminal law.

From the Experts's Office: Presence of third parties during the expert's clinical assessment - Comments on the german federal social court judgment from 10/27/2022

From the Experts's Office: Presence of third parties during the expert's clinical assessment - Comments on the german federal social court judgment from 10/27/2022

PERBANDINGAN DESAIN PENGUJIAN KONSTITUSIONAL PADA MAHKAMAH KONSTITUSI FEDERAL JERMAN DAN INDONESIA

This research is based on the weaknesses of constitutional review design in Indonesian and how the best design in Germany. This normative legal research is analysed using legislation and comparative approaches. The results showed that the German and the Indonesian Constitutional Courts had the same design and practice of constitutional review. The German Constitutional Court has complete authority, namely the abstract judicial review, concrete judicial review, and constitutional complaints. While the Indonesian Constitutional Court is only given the abstract judicial review and does not have a concrete judicial review and constitutional complaint authority, in practice, some applications are characterized by both. The design of abstract judicial review between the German and Indonesian Constitutional Courts has the same object of disputes but differences in the party applying. The object of the dispute on the concrete judicial review at the German Constitutional Court is the implementation of laws relating to court cases. The objects of petitions for constitutional complaints are judicial decisions, laws, and others.

Legal consolidation and practice of law of the renvoi institute in the romano-germanic legal system

The article is devoted to the study of the renvoi doctrine on the example of the countries of the Romano- Germanic legal system: France, Germany and Italy. The author analyses in detail the decisions of the courts that have established precedents for the application of this doctrine. The author points out that France is considered to be one of the founding states of the renvoi doctrine and the term «renvoi» became world famous after the Forgo judgment. The author analyses the cases in which the French courts have applied the principle of deference to resolve conflicts of law. Examples of changes in French legislation that excluded the rules of deference for decisions in inheritance matters are given. The author analyses in detail the French statute on reference to the legislation of other states and the rules of interpretation of legislation in cases where it refers to France or other countries. The process of creation and implementation of the Code of Private International Law in France is considered.
 The author highlights the practical aspects of the use of deference in France and notes that, despite the existing doubts and problems, deference is becoming increasingly acceptable and widespread in the practice of private international law. The author analyses the peculiarities of German conflict of laws in the context of situations where a backward reference to the law of a third state which is not a member of the European Union (EU) is made.
 It is established that in the practice of German courts, the concept of implied deference is used to achieve justice and ensure predictability and stability in the resolution of international disputes. It makes it possible to preserve the principles of foreign law while using national law for this purpose.
 The author examines the issue of retroactive reference in Italian law, which requires that a court apply conflict of laws rules to a case on its own initiative. The article provides examples of a court decision in a case where the issue of application of the renvoi doctrine arises.

The Work of Many Bodies: Wet Nurses and Dynastic Reproduction at German Courts, c. 1650–1750

The Work of Many Bodies: Wet Nurses and Dynastic Reproduction at German Courts, c. 1650–1750

Individual Private Rights of Action under the Platform-to-Business Regulation

This article explores the availability of individual private rights of action under the Platform-to-Business Regulation. It is argued that Member States are required to provide for such remedies for the benefit of business users of online intermediation services and corporate website users. Individual rights of action are necessary, first, to ensure an adequate and effective level of overall enforcement and, second, to effectuate the implicit rights that must be inferred from the obligations the Regulation imposes on providers of online intermediation services and search engines. To make this case, we illustrate the practical relevance and deficiencies of individual rights of action using several German court cases; examine the key elements of the Regulation’s ‘visible’ enforcement architecture; apply the ECJ’s case lines on implicit individual rights and private rights of action as a non-specified enforcement tool; and provide an analysis of the potential added value and perceived weaknesses of individual rights of action as a mechanism to enforce the Regulation. Platform-to-business regulation 2019/1150, private enforcement, individual rights of action, online intermediation services, online search engines, amazon marketplace, platform economy, choice-of-court agreements, principle of effectiveness

Protection against the breach of choice of court agreements: A comparative analysis of remedies in English and German courts

In fixing the place and provider for the resolution of disputes in advance, choice of court agreements increase procedural legal certainty and the predictability of litigation risks. Hence, their protection is crucial. This article undertakes a functional comparison of the remedies for breach of exclusive choice of court agreements in English and German courts, painting a picture of different approaches to a common problem. English courts, now no longer constrained by EU law, employ an entire arsenal of remedies, most strikingly the anti-suit injunction and damages effectively reversing a foreign judgment. In contrast, German courts exercise greater judicial restraint, even though damages for the breach of a choice of court agreement have recently been awarded for the first time. Against this backdrop, two distinct but interrelated reasons for the diverging approaches are identified and analysed, the different conceptions of choice of court agreements and the different roles of comity and mutual trust.

SEP-Based Injunctions: How Much Has the Huawei v ZTE Judgment Achieved in Practice?

Competition law has played a significant role in the area of standardisation for many years. This article focuses on the use of injunctions based on Standard Essential Patents (SEPs). The landmark 2015 Huawei v ZTE judgment of the European Court of Justice (CJEU) established certain core principles with regard to both the general applicability of EU competition law to standardisation and to the specific issue of SEP-based injunctions. The aim of this article is to examine to what extent those principles are being lived up to in the EU jurisdiction where most SEP-related litigation takes place—Germany. In order to do so effectively, it is first necessary to outline the competition context of standardisation and examine both the European Commission’s general policy approach and its case enforcement practice in relation to SEP-based injunctions. This article is therefore structured as follows: section B begins by analysing the relevance of competition law in the standardisation arena. Section C then describes the European Commission’s approach to SEPs and competition law, both in terms of general policy and as regard the specific issue of SEP-based injunctions, with Section D outlining the approach taken by the CJEU in Huawei v ZTE. Section E then describes how various German courts have examined SEP-based injunctions after Huawei v ZTE, with Section F concluding by assessing to what extent the judgments in question are consistent with Huawei v ZTE and the consequences of that assessment.

Independence of the courts and judges in Germany and the Land ofThuringia in the light of the case law of the Court of Justice. Casestudy analysis of the reference for a preliminary ruling broughtby the Landgericht Erfurt in the case of A.G.E. p. BAG (C-276/20)

On the basis of the pending case A.G.E. v. BAG (C-276/20) before the CJEU, the author attemptsto present the issue of the independence of the judiciary and independence of judgesin the Federal Republic of Germany with the emphasis on the regulation of the Free State ofThuringia. The axis of the problem is the question of whether the Erfurt Regional Court isconsidered to be a "court" within the meaning of Article 267 TFEU and thus the admissibilityof a question for a preliminary ruling. The point of reference will be the existing case law of theLuxembourg Court, in particular the judgment in VQ v. Land Hessen (C-272/19). The analysisof the reference for a preliminary ruling prompts interesting comparative considerations betweenthe Polish and German (federal and Thuringian) regulations on the status of judges, includingtheir appointment and promotion. The aim of the article is to show the German court'sdoubts regarding the interference of the legislative and executive powers with the principle ofjudicial independence. The article may prove interesting in the context of the ongoing heateddiscourse on the rule of law and changes in the judiciary in Poland.

New Histories of Law and Rights in Twentieth-Century Germany

On 1 March 2022, German Foreign Minister Annalena Baerbock accused the Russian President Vladimir Putin's government of waging a war of aggression against Ukraine. Speaking at the General Assembly of the United Nations (UN), she drew explicit links to the Nazi war of aggression in order to legitimise sanctions against Russia as she stressed the UN's mission to work for peace enshrined in the UN charter. Twelve months earlier, in February 2021, the Higher Regional Court in Koblenz sentenced a forty-four-year-old Syrian citizen to four and a half years’ imprisonment. Based on the ‘shared values of humanity’, the verdict made headlines as the court explicitly cited the universal jurisdiction principle enshrined in the Völkerstrafgesetzbuch (VStGB) that had been enacted in 2002 to bring German law into accordance with the Rome Statute of the International Criminal Court.1 Since 2002, German courts have adopted these international law principles and legal norms in a series of legal actions against foreigners to prosecute crimes against humanity.

Overlap Between Article 102 TFEU and Sector Regulation: Case C-721/20 DB Station & Service v ODEG

The Court of Justice ruled on 27 October 2022 on a request for a preliminary ruling from the Kammergericht (Higher Regional Court of Berlin) in a civil proceeding between DB Station & Service AG and ODEG Ostdeutsche Eisenbahn GmbH concerning reimbursements of alleged unfair infrastructure charges. DB Station & Service is a subsidiary of Germany’s state-owned railway incumbent tasked with managing stations, whereas ODEG is a private new entrant using railway infrastructure for passenger transport. It is the latest ruling in a series of disputes before German and EU courts concerning the competence to review those charges and the provisions applicable thereto. The judicial review of railway infrastructure charges in Germany has, for more than a decade, given rise to many fundamental questions related to the interplay between national civil law and EU law, EU primary law and secondary law, and the competences of regulatory bodies and national courts. It would go far beyond the scope of this article to give a comprehensive overview of all aspects of this fascinating saga. However, some background knowledge on the Court of Justice judgement in DB Station & Service is necessary in order to understand its implications.

An Empirical Analysis of Credibility Assessment in German Asylum Cases

AbstractThis study analyzes empirically how 236 German court decisions assess the credibility of asylum seekers’ accounts of their persecution. In their reasoning, the courts rely on generally accepted content-based credibility criteria, including consistency, level of detail, and timeliness of the claim. But they also rely on conduct-based criteria, which have been resoundingly discredited in the relevant scientific literature. Too rarely, the courts considered confounding factors such as cultural distance or interpreter mistakes. They need to be more aware of their duty to confront applicants with negative credibility criteria. Article 4 (5) Qualification Directive played no role whatsoever in the sample analyzed in this study, which can be explained by specifics of German asylum law.The human judgment that is required in the balancing of credibility criteria and confounding factors is problematic for its subjectivity but unavoidable. Attempts at replacing this human credibility assessment with seemingly objective technical means have led to arbitrary decisions and encroached gravely on applicants’ human rights. While the credibility assessment procedure employed in German courts is far from flawless, it can produce convincing decisions. It should be further refined and provided with safeguards to arrive at decisions that are as rational and objective as possible.

Medmix Wins German Court Ruling on Counterfeit Static Mixing Tips

Medmix Wins German Court Ruling on Counterfeit Static Mixing Tips

Germany ∙ Recent Decisions from German Courts in Facebook Scraping Cases: Compensation of Non-Material Damages or Not?

Germany ∙ Recent Decisions from German Courts in Facebook Scraping Cases: Compensation of Non-Material Damages or Not?

The Significance of the 5 May 2020 Judgment of the Constitutional Court of the Federal Republic of Germany (Weiss II) for the Process of Integration of the European Union Financial Market

Since the financial crisis of 2007/2008, we have been dealing - at the level of the European Union - with a special "dialogue" between the European and German courts. The subject of this "dialogue" is the decisions of the European Central Bank on the program for the purchase of public sector assets on secondary markets. The ECB's activity, as well as the involvement of the national central banks of the Eurosystem in the implementation of these decisions, has been met with dissatisfaction by German politicians, culminating in the title judgment of the Constitutional Court of the Federal Republic of Germany. In the paper, the author analyzed the judgments, particularly from the perspective of the process of integration of the European Union financial market and the importance of the judgments for this process taking into account the key principles of EU law: proportionality and supremacy of EU law.