The German Constitutional Court and the European Arrest Warrant: 'Cryptic Signals' from Karlsruhe

In an important 2005 judgment, the German Federal ConstitutionalCourt declared void the German Act that was meant to implementthe European Union Framework Decision on the European ArrestWarrant. However, according to the Constitutional Court, theFramework Decision itself did not necessarily provoke a breachof the German Constitution. If the German legislator had madeadequate use of the tolerance provided by the Framework Decision,he could have avoided any conflict with the Constitution. While,at first sight, the Court's criticism solely seems to referto German national law, a closer look at some statements thatdeal with European law reveals a high potential for future disagreementbetween the German Constitutional Court and European institutions:they do not share the same view as to the development of Europeancooperation in criminal matters.     

The European Arrest Warrant and the Sovereign State: A Marriage of Convenience?

The article aims to analyse the extent to which mutual recognition and mutual trust in the criminal law area are developing in the EU in the context of the implementation of the European Arrest Warrant (EAW). First, an overview of the decisions of the Constitutional Courts in Germany, Poland, Cyprus and Czech Republic will be given. These decisions are evidence of a tension, on the one hand, between mutual recognition and state sovereignty and, on the other hand, between the powers of the European institutions in criminal matters and the fundamental rights of the individual. Second, national case‐law in the UK, Belgium, Spain and Italy will be examined. Third, an analysis of the recent decision of the European Court of Justice of 3 May 2007 will be carried out. Finally, a global assessment of the EAW will be made. Is this instrument effectively promoting normative mutual trust among the judicial authorities in the EU? Should it be amended or is it the wrong response at the wrong time? Some suggestions will be put forward, in light of what is considered to be the nature of the EAW and the birth of this instrument as part of the mutual recognition agenda.     

欧洲逮捕令在欧盟成员国国内的适用问题研究

欧洲逮捕令是在欧盟范围内取代传统引渡制度而施行的一种逮捕和移交人犯的国际刑事司法合作新机制.规范欧洲逮捕令的框架决定对欧盟成员困具有强制约束力,但不具有直接效力,各成员国必须采取必要措施以使本国国内法与框架决定的规定相符合.欧洲逮捕令在有的成员国遭遇宪法问题,有的成员国在适用时表现出对其他国家法律制度的不信任,还有一些国家的国内转化法存在着与框架决定不尽一致的规定.但从总体上来看,欧洲逮捕令在欧盟范围内已得到全面执行并取得了初步成功.     

CASES: European Arrest Warrant Cases and the Principles of Non‐discrimination and EU Citizenship

This case comment provides an analysis of the recent judgment in Wolzenburg (C‐123/08), delivered on 6 October 2009 not yet reported (Grand chamber) concerning the application of the EU principles of nondiscrimination and citizenship to the European Arrest Warrant cases. It also considers the impact of the Lisbon Treaty as well as the implications of the Citizenship Directive 2004/38/EC for this area of law.     

Mutual Recognition in European Judicial Cooperation: A Step Too Far Too Soon? Case Study—the European Arrest Warrant

Abstract: The European arrest warrant (EAW) is the first and most striking example of the extensive judicial cooperation in criminal matters that is beginning to take place in the European Union. Replacing traditional extradition between EU member states, including the ten accession countries after May 2004, it will operate on the basis of mutual recognition of judicial decisions, thus taking extradition decisions out of the hands of politicians. It rests on the presumption that criminal justice systems are equivalent throughout the EU and that the rights of the defence, in particular, are safeguarded adequately and in a comparable way EU‐wide. However, before the EAW has even been implemented, a number of practical problems are beginning to emerge, in particular in relation to the protection of individual rights and legal certainty in the European judicial space. The way in which these problems are tackled will be a litmus test of the respect for fundamental rights across the EU in the field of justice and home affairs. This article highlights the problems inherent in the rapid development of the principle of mutual recognition and suggests ways in which these problems can be addressed allowing for full protection of fundamental rights within a fully functioning European area of freedom, security, and justice. The EAW will be used to illustrate the prominent features of the emerging landscape of judicial cooperation in criminal matters, providing as it does the most radical example of developments in this field so far and their implications for fundamental rights.     

Bridging the gap between facts and norms: mutual trust,the European Arrest Warrant and the rule of law in an interdisciplinary context

The rule-of-law-backsliding in some Member States has subverted not only one of the EU fundamental values but also trust among national authorities when implementing European Arrest Warrants (EAW). However, when evaluating the execution of EAWs issued by countries experiencing rule-of-law crises, the Court of Justice of the EU (CJEU) sought to preserve judicial cooperation and imposed a rather “top-down” view on mutual trust among Member States. This approach seemingly disregards the (dis)trust which has emerged in the EU due to rule-of-law-backsliding and fails to acknowledge the psycho-sociological nature of trust. Drawing on the trust literature, the paper offers novel conceptual elements to rethink mutual trust in the EAW framework. Notably, it critically assesses some of the gaps in the CJEU's interpretation of mutual trust and advances suggestions to embed empirical considerations in the conceptualisation of this principle to bridge the gap between trust in practice and in principle.     

欧洲逮捕令及其对我国区际移交逃犯的启示

欧洲逮捕令是在欧盟范围内取代引渡制度而施行的一种逮捕和移交逃犯的国际刑事司法合作新模式。它的理论基础是相互承认原则。欧洲逮捕令是对传统引渡制度的变革和创新,它取消了本国国民不引渡原则,对特定性原则进行限制适用,对严重犯罪取消双重犯罪原则,在程序上更为简化快捷。它对我国建立便捷高效的区际移交逃犯制度具有很好的启示作用。     

Applying social psychology: The case of redistributions in unified Germany

Large redistributions between West and East will be necessary within the unified Germany for a long time. The perceived justice of these redistributions is discussed, applying theory and evidence from social justice research and research on prosocial behavior. Views about just distributions and entitlements vary according to the preferred principles of distributions and according to attributions of responsibility for existing inequalities. It is, hypothesized that acceptance of redistributions in West Germany depends on whether the East is seen as having been unjustly disadvantaged after World War II when it was assigned to the influence sphere of the Soviet Union. This fact can be considered in analogy to an exploitation of the East by the West. On the other hand, the economic, problems in the East may also be considered self-inflicted by the former communist regime. A key question is what the attitudes of the population in the former GDR had been toward the communist regime. If the population is considered the victim of the regime, it is entitled to get support; if it is considered to have been sympathetic toward the regime, this is not the case. Acceptance of redistributions depends not only on their justice but also on their efficiency. The relative weight of justice and efficiency depends on the reasons given for the support. If support means repaying debts that were accumulated during the preceding period of being undeservedly privileged in the West, justice will remain the dominant criterion. If support is justified by actual neediness of the East, it will only be granted as help to self-help. Claims for discontinuity of support are expected if it will not be efficient in a near future. Some dangers concerning the integration of the two populations are outlined by listing some potential conditions for a growing distance and reciprocal discrimination up to a reciprocal ethnification between the Eastern and the Western populations.     

Restructuring "Germany Inc.": The Politics of Company and Takeover Law Reform in Germany and the European Union

The reform of German company law by the Control and Transparency Law (KonTraG) of 1998 reveals the politics of corporate governance liberalization. The reforms strengthened the supervisory board, shareholder rights, and shareholder equality, but left intra‐corporate power relations largely intact. Major German financial institutions supported the reform's contribution to the modernization of German finance, but blocked mandatory divestment of equity stakes and cross‐shareholding. Conversely, organized labor prevented any erosion of supervisory board codetermination. Paradoxically, by eliminating traditional takeover defenses, the KonTraG's liberalization of company law mobilized German political opposition to the European Union's (EU) draft Takeover Directive and limited further legal liberalization.     

The Emergence of a European Private Law: Lessons from 19th Century Germany

As regards the emergence of a European private law in our time,this article shows that lessons can be learnt from the historyof unification of regionally defined private law in the GermanConfederation (1815–1866). An important lesson is thatthe Europeanization of private law will be anything but a spontaneousprocess. Moreover, like the members of the German Confederationalmost 200 years ago, the members of the current European Unionwill not have an equal say in the debate about unification ofprivate law. Now, as then, economic interdependencies betweenthe respective members will come into play. That is to say,the members the economies of which are relatively less dependentupon the economies of other members than vice versa are poisedto have a larger say in the debate.     

构筑以检察批捕权为主导的审前司法审查制度

一、刑事审前程序和审前司法审查制度 在中国的刑事诉讼活动中,有没有审判前的司法审查制度?这样的制度应该由哪一个主体(机关)来主持进行?这个问题在中国目前的法律框架中还找不到一个清晰的答案,其实连给这样的制度或程序下一个明确的称呼和准确的定义也是极为困难的.就"审判前程序"这一概念而言,在西方国家,特别是在英美法系国家,基于审判中心主义,专指法庭对案件审理前的法庭准备程序.     

德国及欧盟反垄断法中的商标许可合同

TRIPs协议原则上规定了应对知识产权许可合同中阻碍技术转让的滥用知识产权限制竞争行为进行控制,而且还列举了知识产权许可合同中几种典型的滥用知识产权的限制竞争行为,如:独占性回授、不争条款及强制搭售.但对于其他滥用知识产权限制竞争行为,以及不同许可合同中滥用知识产权限制竞争行为是否应采取不同的措施,却留给了成员国内法自行解释,并没有明确做出强制性统一规定.