German Courts Research Articles

Punitiveness of society and criminal policy in six Central European countries

The countries of Central Europe are home to diverse penal cultures but rare comparative studies typically focus only on national penal codifications or on cross-country measures of public attitudes towards crime and punishment. This article compares three dimensions of punitiveness – penal legislation, actual sentencing practice of the courts, and punishment preferences of the general public – in six jurisdictions: Austria, Czechia, Germany, Hungary, Poland, and Slovakia. Punishment preferences features new data from the Central European Social Survey, in which respondents were asked to recommend suitable sentences for five hypothetical crimes. We found public preferences relate closely to the domestic judicial practice but less so to the maximum penalties provided in a country's penal code. In particular, participants based in Germany proved far less punitive than others, which echoes the penal moderation of German courts.

Opt-Out Implied Licenses in Copyright Law: from Search Engines to GPAI Models

Abstract Traditionally, the doctrine of implied license is consistent with the default of copyright law, because it requires evidence of a clear grant. Currently, US and German courts have implicitly applied an extended doctrine of implied licenses in the search engine context: opt-out implied licenses. This article calls for legislative recognition of opt-out implied licenses and identifies the unique mechanism and independent position in copyright law. Furthermore, two criteria, i.e. efficiency and balance, are proposed to assess the applicability of the doctrine. The proposed criteria can guide legislators in crafting legal norms that the opt-out implied license applies in specific contexts. On this basis, this article makes the case that opt-out implied licenses have some implications for training general-purpose AI models (hereinafter ‘GPAI models’) using copyrighted materials and that the proposed criteria can help better design and improve the law.

“The right to die”? On voluntary retirement and related obligations of the state. A study based on the law enforcement practice of the Highest Courts of Germany and the ECHR

The article examines the problems of the “right to death” – a constitutional and legal guarantee that recognizes the right of a person to end his own life at his discretion. This issue was initially considered as a downside, a kind of negative dimension of the right to life (Part 2 of Article 2 of the Basic Law of Germany). However, the focus has changed over time; the discussion is currently being conducted in the context of the right to personal self-determination. Within the framework of this article, the analysis is carried out on the basis of the law enforcement practice of the highest courts of Germany and the European Court of Human Rights. The point of contact of the German courts can be considered the recognition of the right to voluntary retirement as an act of individual self-expression, the realization of personal choice. The legal structure of the right to personal self-determination presupposes the establishment of a close connection between the right to general freedom of action (Part 1 of Article 2 of the Basic Law of the Federal Republic of Germany) and the guarantee of human dignity in accordance with Part 1 of Article 1 of the Basic Law of the Federal Republic of Germany. At the same time, the counterargument is not considered convincing, according to which the recognition of the “right to death” entails the impossibility of further personal self-realization and therefore contradicts the “life-affirming” spirit of the Basic Law, expressed, in particular, in part 2 of Article 2, since the very realization of the desire to end life is considered as an act of self-realization, which falls under constitutional protection. This constitutional and legal concept, developed by the Constitutional Court of the Federal Republic of Germany, is shared by the rest of the highest judicial instances of Germany, which complement it, in particular, by establishing state obligations to assist persons who wish to voluntarily end their own lives. The European Court of Human Rights has not yet had the opportunity to express its position on this issue, however, trends in the development of its law enforcement practice indicate that it is likely sooner or later to join the legal line of the German courts. The author identifies the argumentative shortcomings of the fundamental prerequisites for justifying the right to voluntary retirement, demonstrating not only their internal inconsistency, but also the inadmissibility of the consequences that state support for suicidal aspirations of citizens will lead to.

A New Approach to FRAND Royalty Determination in IoT Value Chains: Insights from Connected Cars

The complexities surrounding connected cars, especially the integration of Telematics Control Units (TCUs), intensify uncertainties within their value chains. Disputes arise regarding rightful licensees and applicable rates. Standard Essential Patent (SEP) holders push for royalties from end-product manufacturers, pegged to final product prices. Conversely, manufacturers and suppliers argue for licensing directed at suppliers, restricting royalties to the TCU’s price. This discord unfolded in the legal tussle involving Nokia (SEP holder), Daimler (car manufacturer), and its supplier, litigated in German courts. This context underscores the significance behind the EU Commission’s proposal on SEP licensing issued in April 2023. Addressing escalating disputes and uncertainties surrounding Fair, Reasonable, and Non-Discriminatory (FRAND) royalty rates, the proposal aims to establish transparency and predictability in SEP licensing. In our study, we have devised a proposal aimed at reshaping this landscape. We challenge the conventional linkage of SEP royalties solely to end-product prices within intricate value chains. Instead, we advocate tying SEP royalties to the economic value attributed to the SEP, specifically focusing on connectivity within Internet of Things (IoT) applications. Our proposal suggests granting licences to the party responsible for designing the IoT component, irrespective of its role in the value chain. This functionalistic approach also proposes establishing the royalty base through technical, measurable factors like data consumption. This model offers objectivity in determining FRAND rates, potentially fostering constructive negotiations and offering environmental benefits.

The Adjudication of Slavery Crimes against the Yazidi by German Courts Evolving Jurisprudence and the Need for Rectifying Legal Amendments in German Law

This article examines the interpretation and application of relevant provisions of the German Code of Crimes against International Law (CCAIL) and the German Criminal Code (GCC) to the slave trade and slavery conduct committed against the Yazidi by the Islamic State of Iraq and the Levant (ISIL, IS or Da'esh). Specifically, the article takes an intersectional approach to reviewing in detail the cases of Sarah O (Higher Regional Court of Düsseldorf) and Taha Al J (Higher Regional Court of Frankfurt) while drawing observations from other German cases concerning slavery crimes against the Yazidi. These were in the majority, if against German nationals, conducted under the principle of active personality or, in the alternative, under the principle of universal jurisdiction. The article shows how German prosecutors and courts did not shy away from creatively grappling with slave trading, slavery and trafficking conduct committed by ISIL.Cases, such as Nadine K, demonstrate a positive evolution towards cumulative charging and convictions that afford comprehensive legal redress to persons affected by the slave trade, slavery and trafficking. Still, the absence of the slave trade as an enumerated provision of crimes against humanity and war crimes in the CCAIL can be felt and must be rectified to realise legal protection as envisioned by customary international law.

Oops, I Sampled Again … the Meaning of “Pastiche” as an Autonomous Concept Under EU Copyright Law

With the return of the Metal auf Metal case (Pelham v. Hütter) to the Court of Justice of the European Union (CJEU), the Luxembourg court will again be faced with the question under which circumstances the reproduction of parts of a sound recording requires authorisation. When the case was first argued before the EU’s highest court, it revolved around the concept of partial reproduction of a sound recording and an interpretation of the quotation exception. In addition, the defendant had proposed that national courts, in the absence of an applicable exception, could provide for flexibility by allowing creative uses purely based on fundamental rights. The Court rejected this possibility, arguing that something akin to an open norm would create legal uncertainty. Following the first ruling, Germany, where the case originated, implemented the pastiche exception of Art. 5(3)(k) of the Information Society Directive into its national copyright law. In Pelham v. Hütter II, the CJEU is asked to give guidance on the interpretation of the concept of pastiche. Following the introduction of the exception under German law, German courts had interpreted the exception broadly, allowing a variety of derivative artistic uses. This article explores the concept of pastiche from an interdisciplinary and comparative perspective. After an overview of the relevant German decisions, it explores the various non-legal meanings of pastiche before comparing the development of the notion in the copyright laws of Italy, France and some other EU Member States. Since the non-legal as well as the different national legal understandings of pastiche do not crystallise a common understanding of the notion, pastiche is subsequently developed as an autonomous concept under EU law. In distinguishing pastiche from parody, which the CJEU developed as an autonomous concept in the Deckmyn case, the article proposes that pastiche should be understood as an exception that broadly permits referential uses that have no elements of humour or mockery – as distinct from parody – but are of an artistic nature. An important role must be assigned to the three-step test, which functions as a framework to balance the interests of rightholders and users in a given case.

Isolated court determinations on the admissibility of arbitration: a case study of the German Federal Court of Justice’s recent decision on intra-EU ICSID proceedings

Abstract The German Federal Court of Justice recently confirmed that German courts can issue declarations—with binding effect for the German legal order—finding intra-EU ICSID arbitration inadmissible. While this further step in the post-Achmea dismantling of the EU investment protection system is an important, if unsurprising, development for investment protection lawyers, the procedural mechanism used, section 1032(2) of the German Civil Procedural Code (Zivilprozessordnung—ZPO), is relevant to all forms of arbitration and is available as soon as one party is seated or even just has assets in Germany. This article provides an overview of the German mechanism for isolated determination of the admissibility of arbitration. It uses the recent Federal Court of Justice decision as a model example where such an early determination allows for significant costs savings, explores the functioning of the relevant statutory provision, and highlights situations in which this may be an appropriate means of determining the admissibility of arbitration while limiting costs exposure.

EUROPEAN CLIMATE PROTECTION STRATEGY UNDER CONSIDERATION OF BUILT HERITAGE PRESERVATION

Climate change affects all areas of life. The European Union strives for climate-neutrality of their members until 2050 with the project European Green Deal. By this, the emissions of greenhouse gases should be reduced to zero by 2050 with simultaneous economic development decoupled from resource use. 600 Billion Euros the European Union will spend to lower net greenhouse gas emissions until 2030 by at least 55%, compared to 1990 levels. Climate change affects historical structures, thus by variations in groundwater levels, hydrological cycle, or intense precipitation. However, also climate protection activities such as renewable energy installations may result in negative effects. Solar panels or wind turbines do not emit carbon dioxide and other greenhouse gases but, installed nearby historical buildings, affect the historical appearance of structures. That may result in conflicts between ecological and heritage conservation interests. The authors inform about the European Green Deal and analyze effects of the planned measures on built heritage with a focus on solar and wind energy installations. They also discuss requirements from heritage preservation regulations. The manuscript analyzes how renewable energy installations may affect built heritage in its historical appearance. For that, the authors use available information about the European Green Deal, discuss current research literature and relevant German court cases. It is concluded that renewable energy installations may negatively affect the appearance of built heritage. Interests of climate protection and built preservation need to be balanced to ensure that future generations even can experience and enjoy the cultural heritage.

EUROPEAN CLIMATE PROTECTION STRATEGY UNDER CONSIDERATION OF BUILT HERITAGE PRESERVATION

Climate change affects all areas of life. The European Union strives for climate-neutrality of their members until 2050 with the project European Green Deal. By this, the emissions of greenhouse gases should be reduced to zero by 2050 with simultaneous economic development decoupled from resource use. 600 Billion Euros the European Union will spend to lower net greenhouse gas emissions until 2030 by at least 55%, compared to 1990 levels. Climate change affects historical structures, thus by variations in groundwater levels, hydrological cycle, or intense precipitation. However, also climate protection activities such as renewable energy installations may result in negative effects. Solar panels or wind turbines do not emit carbon dioxide and other greenhouse gases but, installed nearby historical buildings, affect the historical appearance of structures. That may result in conflicts between ecological and heritage conservation interests. The authors inform about the European Green Deal and analyze effects of the planned measures on built heritage with a focus on solar and wind energy installations. They also discuss requirements from heritage preservation regulations. The manuscript analyzes how renewable energy installations may affect built heritage in its historical appearance. For that, the authors use available information about the European Green Deal, discuss current research literature and relevant German court cases. It is concluded that renewable energy installations may negatively affect the appearance of built heritage. Interests of climate protection and built preservation need to be balanced to ensure that future generations even can experience and enjoy the cultural heritage.

Human Rights Standards as a Bar to Extradition from the European Union to the United Kingdom

Abstract Since 1 January 2021, the Trade and Cooperation Agreement between the United Kingdom and the European Union has regulated extradition to and from the United Kingdom and Member States of the European Union. A recent judgment of a German court denying extradition of a suspect to the United Kingdom illustrates the subtle differences between the terms and operation of the Trade and Cooperation Agreement Warrant and those of the European Arrest Warrant that had applied previously. This paper notes the absence of mutual trust as an underlying principle in the Trade and Cooperation Agreement, and the failure of the British authorities to grasp and respond to the changed criteria. At the same time, it highlights the implications of a judgment that finds that the treatment of prisoners in British prisons might be so inhuman and degrading that persons should not be extradited to face imprisonment in the United Kingdom.

„Niekończąca się opowieść” – refleksje na temat uprawnień Europejskiego Banku Centralnego

Since the financial crisis of 2007–2008, we have been dealing with a special dialogue between the European and German courts at the level of the European Union. The subject of this dialogue is the decisions of the European Central Bank on the programme 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 analyses the judgment and passes critical commentary on the Weiss II judgment.

Функционирование фразеологических единиц в текстах судебных решений по уголовным делам (на материале немецкого языка)

This article is dedicated to the study of phraseological units in texts of court decisions in criminal cases within the German legal system. The research objective is to identify legal phraseological units that repeatedly appear in a fixed form in the analyzed legal documents and hold a specialized meaning in terms of professional language. The authors distinguish types of fixed expressions and clichés, organizing them based on their usage in various structural parts of court decisions. The research novelty lies in the first examination of the characteristics of phraseological language tools in the sphere of legal practice based on German court decisions, shedding light on issues related not only to the construction of court decision texts but also to the influence of the content of structural elements on significant text characteristics of legal documents. The analysis revealed a specific set of professionally marked phraseological units regularly present in the examined texts. It was also found that such linguistic clichés act as distinct markers of the compositional organization of court decisions, representing the thematic content of corresponding sections (headings and thematic blocks), predominantly presented either as multi-word terms or as functional verbal constructions and collocations.

SEPs infringement and competition law defence in German case law

Within the debate on the role of competition law in standard essential patents (SEPs) litigation, German case law has taken centre stage because of the number of decisions handed down and its traditional patent-owner-friendly approach. As the framework handed down by the European Court of Justice (CJEU) in Huawei is usually interpreted as being opposed to the approach adopted by the German Federal Court in the Orange Book Standard decision, it is worth investigating how German courts have tackled the competition law defence in the post-Huawei scenario. The article maintains that the Federal Court’s rulings in Einwand have aligned German case law with the Huawei framework and that the attention devoted in German case law to the implementer’s obligations is consistent with the principles set out by the CJEU. Nonetheless, recent lower courts’ decisions confirm that the case-by-case detection of the licensee’s willingness is still a challenging issue.

Иностранное судебное решение и недействительность арбитражного соглашения (анализ решения Апелляционного суда г. Берлина от 18.05.2006)

The article includes an analysis of the judgment of the Court of Appeal (Kammergericht) of Berlin dated May 18, 2006, concerning the refusal to recognize and enforce the award of the International Chamber of Commerce (ICC) (place of arbitration — China). As an argument for refusal to recognize and enforce the foreign arbitral award, the Berlin Court of Appeal referred to: 1) recognition in Germany of the decision of the Wuxi People's Court to set aside the arbitral award (invalidity of the arbitration agreement); 2) invalidity of the arbitration agreement from the point of view of the applicable law. In our view, the recognition of a foreign judicial act on the annulment of an arbitration agreement contradicts the obligations of the state under the New York Convention 1958, as this international treaty reserves the possibility for the state to recognize and enforce a foreign arbitral award even despite its cancellation in the state rendering. It appears that in this matter the German court should first of all proceed from the invalidity of the arbitration agreement in terms of the applicable law (the law of the People's Republic of China).

The Artistic Use Defence in Trademark Dilution Cases – Hermès’ Legal Setback in Its Attempt to Prevent Others from Using Its Iconic Birkin Handbag

Abstract This opinion explores what constitutes a trademark parody in an artistic context and when it crosses the line of trademark infringement in dilution cases which occur beyond the traditional trademark protection from the likelihood of confusion. This is shown by analysing the latest two decisions regarding trademark parody handed down by the German Frankfurt am Main Regional Court in a case in which Hermès has suffered a setback in its attempt to prevent a fashion label from using its iconic Birkin handbag at the Berlin fashion show in 2023. While parody is considered a protected form of speech or artistic expression, no clear-cut legal rule separates a legitimate parody from an infringing use, in particular in cases of so-called mixed expressions where the reference to the protected trademark is not closely tied to commercial use but still happens outside of a purely artistic context. Compared to the statutory copyright’s flexible fair use defence, there is simply too little case law available to draw on in trademark dilution law. The few rigid defences German courts have cobbled together in trademark cases illustrate that trademark could benefit from a clearer identification of use categories. The following analysis of these decisions aims at highlighting that urgent trademark reforms are necessary in the area of art-related fair use defences. Furthermore, the following analysis will illustrate how big corporations like Hermès can fail when attempting to use trademark rights to control the meaning not only of wealth and exclusivity but also of conspicuous consumption and the equally conspicuous display of wealth, status and power in male-dominated domains.

Prawnicy tylko dla Żydów. Konsulenci z okręgu Wyższego Sądu Krajowego w Katowicach

The article is devoted to the issue of consultants, an institution introduced in the Third Reich to represent Jews in legal matters. Some of the Jewish lawyers excluded from the German bar became consultants. The article presents the legal regulation, the reasons for its issuance and its effects. Based on the personal files of three consultants from the district of the Higher National Court in Katowice, the procedure of admitting them and the conditions of their activity were presented. On the basis of court files, the manner in which they conducted their work in criminal cases was analyzed and assessed.
 A significant amount of anti-Jewish legislation was passed in Germany after Hitler seized power. Some of the newly introduced regulation also targetted lawyers of Jewish origin, whose professional activities were hindered, and eventually banned. In 1938 Jews were definitively removed from the German bar. At the same time, it was ensured that Jews would be provided with legal assistance and represented by consultants, i.e. lawyers of Jewish origin. There were clearly fewer consultants than Jewish lawyers (several in the districts in which individual higher national courts operated). Their admission was discretionary. According to sparse findings in the literature, consultants were treated adequately by the German courts and were not hindered in their access to court files, contact with clients or the possibility of submitting lawsuits. Three examined cases of consultants from the district of the Higher National Court in Katowice indicate that they enjoyed similar freedoms while performing their functions in the courts, as described in the literature. In their daily activities, however, they had to struggle with difficulties of an administrative or factual nature, which were a manifestation of discrimination and bans against Jews. Based on these three cases, it could be concluded that they were admitted to consular activity due to positive opinions among the population, the judiciary and the Gestapo, as well as their patriotic attitude during the First World War and during the Silesian Uprisings. Their exemplary professional conduct, war decorations, and even injuries sustained on the front of the Great War did not prevent the consultants from sharing the tragic fate of European Jews.

The Application Dilemma and Perfection of Trademark Dilution Theory

The theory of trademark dilution originated in German courts and was gradually adopted by American legislation in the process of practice. The birth of desalination theory also reflects the value pursued by law. Although China has not clarified the theory of trademark dilution, some courts have applied the trademark dilution theory in the process of handling actual cases. As the provisions of the trademark dilution theory are too abstract, without clear concepts and identification criteria, there are large differences in the legal application of "trademark dilution" in judicial practice. And in the actual application process, the application of relevant provisions still exists ambiguity. By analyzing the case of anti-dilution protection of Jinritoutiao, a well-known trademark registered in China, this paper draws out the problems existing in the current environment of application of trademark dilution theory. Using the methods of case analysis and normative research, this paper analyzes the defects of trademark dilution theory and its application, and gives corresponding improvement measures.

Comparative Law in Action: Applying Foreign Law in German Courts

Comparative Law in Action: Applying Foreign Law in German Courts

Victim’s Right to Compensation from the Money Launderer: A Comparative Perspective

Money laundering in Latvian law is considered a criminal offence against the interests of the financial system and the administration of justice. However, money laundering may also affect the property interests of the victim of a predicate offence whose assets due to money laundering have become unrecoverable. The study examines whether the victim can claim compensation from the launderer under Latvian law compared to Swiss and German laws. The results show that Latvian courts do not consider money laundering activities to cause economic losses to the victim, thus excluding compensation. However, payment of the value of the laundered assets may be ordered for the benefit of the victim. In contrast, Swiss and German courts acknowledge economic losses stemming from the money laundering itself, which provides a basis for compensation. Both approaches lead to different legal issues, which are analysed. Keywords: economic losses; money laundering; right to compensation.

화폐와 저작권

The main purpose of this paper is to examine currency and copyright, which have recently become hot topics in our society.
 The currency issued by the Bank of Korea is legal tender and serves as a means of payment and is also subject to monetary policy. Types of currency include bank notes, coins, and commemorative coins.
 In Chapter 2, the author looked at whether currency is a work in terms copyright, a work of applied art, small coin theory, and a public work through examples and interpretation of German legislation and Korean legislation. Personally, I think that currency sufficiently satisfies the requirements for establishing a copyrighted work. In addition, currency has a strong characteristic as a work of applied art, and in the case of coins, it is likely to fall under the theory of small coins. However, there are some questions as to whether it is a public work and, if so, who is responsible for managing it.
 In Chapter 3, after examining the legal provisions related to currency in the German and Swiss copyright laws, the author looked at the interpretation of the relevant provisions in Germany and the case of the 10 Euro commemorative coin. The German court ruled that the 10 Euro commemorative coin did not fall under the so-called official work under Article 5 of the German Copyright Act.
 In the case of stamps similar to currency, there is also a case where it is said that it is a work of official service. In the case of Switzerland, means of payment are clearly defined as works that are not protected, and I introduce a case related to the 20 Frankenbank note of 1973.
 In Chapter 4, the author developed a theory of interpretation regarding cases where private works are included in public works.
 In Chapter 5 the author briefly commented on currency and copyright and mentioned that copyright issues may also arise with commemorative coins, securities, and souvenirs in the future.