German National Reports on the 20th International Congress of Comparative Law (Rechtsvergleichung Und Rechtsvereinheitlichung) 9783161564024, 9783161564031, 3161564022

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Rechtsvergleichung und Rechtsvereinheitlichung Herausgegeben von der Gesellschaft für Rechtsvergleichung e.V.

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German National Reports on the 20th International Congress of Comparative Law Edited by

Martin Schmidt-Kessel

Mohr Siebeck

IV Martin Schmidt-Kessel serves as General Secretary of the German Association of Comparative Law. He holds a Chair for German and European Consumer and Private Law and Comparative Law at the University of Bayreuth and heads there the Centre for Consumer Law.

ISBN 978-3-16-156402-4 / eISBN 978-3-16-156403-1 DOI 10.1628/978-3-16-156403-1 ISSN 1861-5449 / eISSN 2569-426X (Rechtsvergleichung und Rechtsvereinheitlichung) The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliographie; detailed bibliographic data are available on the Internet at http://dnb.dnb.de. © 2018 Mohr Siebeck Tübingen. www.mohrsiebeck.com This book may not be reproduced, in whole or in part, in any form (beyond that permitted by copyright law) without the publisher’s written permission. This applies particularly to reproductions, translations and storage and processing in electronic systems. The book was typeset by Computer Staiger in Rottenburg a.N., printed on non-aging p ­ aper by Gulde Druck in Tübingen, and bound by Großbuchbinderei Spinner in Ottersweier. Printed in Germany.

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Preface by the editor The XXth International Congress of Comparative Law will be organised from July 22 to 28 at the Kyushu University in Fukuoka (Japan). The Congress is the internationally leading forum for the discussion of comparative law subjects and takes place every four years. The line of congresses mirrors the development of comparative law and the cities in which they were organised – Vienna, Washington D.C., Utrecht, Brisbane, Bristol, Athens, Caracas, Teheran or The Hague – denominate the rhythm of the whole discipline. The more than twenty sessions of the XXth Congress find their subjects in all legal disciplines, starting from legal theory and dealing also with classical questions of civil and commercial law, constitutional law and administrative law and criminal law. The German Association of Comparative Law by this book presents the German national reports delivered to the 20th Congress. The German comparative law academia thereby contributes to this congress on the variety topics presented by the International Academy of Comparative Law. At the Fukuoka Congress the national reports will become part of the considerations and will support the General Rapporteurs appointed by the Academy for the respective sessions. One large focus of the topics of the 20th Congress is on questions of multiculturalism, identity and language, which do not only concern methodological aspects of comparative law but also certain areas of law like family law or transgender. Another set of topics refers to choice and information with particular questions connected to consumer protection (choice of court agreement, information duties, price terms, crowdfunding or travelling and leisure contracts). Several contributions show how much the digitalisation of the legal order, the economy and the society has reached also comparative law and in particular how important data protection and e.g. the right to be forgotten are for national legal orders, harmonisation or unification of the law and for comparative law. The volume gives an overview over the state of discussions within the German academia. The order of the reports presented in this book refers to the systematic order proposed by the International Academy of Comparative Law, while the internal structure of the reports in most cases is based on questionnaires sent out from the General Rapporteurs to the National Rapporteurs. Usually the National Rapporteurs have organised their reports along the list of questions in these questionnaires.

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Preface by the editor

The considerable number of publications concerning the Fukuoka Congress which does not only consist of the several collections of national reports published on behalf of the several national associations of comparative law. Many General Rapporteurs will bring together all the national reports and the general report in a separate volume, to which herby is made reference. Furthermore, the International Academy of Comparative Law will publish all the general reports in an extra volume, to which the reader is also referred. Editing this book on behalf of the German Association of Comparative Law I am indebted to Ms. Judith Zölke, Ms. Eva Weigel and Ms. Pia Kraus and the whole team of my chair, who supported me in preparing the various papers collected in this book for publication. I also owe thanks to the team of our publisher, in particular Ms. Daniela Taudt and Ms. Ilse König, who helped to bring about this book in time. Bayreuth, Mai 2018

Martin Schmidt-Kessel

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Table of Contents Preface by the editor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   V Jan Thiessen Comparative Law and Multicultural Legal Classes: Challenge or Opportunity? A legal-historical account from Germany . . .    1 Johanna Croon-Gestefeld Property Meeting the Challenge of the Commons . . . . . . . . . . . . . . . . . . . .   15 Katharina Erler/Martin Schmidt-Kessel The Use of the UPICC in Order to Interpret or Supplement German Contract Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   39 Stefan Grundmann Language in Law and in German Universities’ Legal Education . . . . . . . . .   61 Anne Sanders Conditions of the Recognition of the Civil Status of Transsexual and Transgender People . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  117 Andreas Spickhoff Legal Questions concerning Medical Malpractice Liability: Substantive Law and its Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  143 Anatol Dutta Multicultural Challenges in German Family Law . . . . . . . . . . . . . . . . . . . . .  161 Boris Schinkels Information/Disinformation of Consumers Including Negotiation . . . . . .  183 Matthias Weller Optional Choice of Court Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  209

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Marc-Philippe Weller/Leonhard Hübner/Luca Kaller Private International Law for Corporate Social Responsibility . . . . . . . . . .  239 Wolfgang Hau Anti-Suit Injunctions in Judical and Arbitral Procedures . . . . . . . . . . . . . . .  269 Matthias Fervers/Beate Gsell Control of Price Related Terms in Standard Form Contracts . . . . . . . . . . .  283 Sebastian Mock Groups of Companies – Les groups de sociétés . . . . . . . . . . . . . . . . . . . . . . .  307 Tobias H. Tröger Regulation of Crowdfunding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  397 Moritz Brinkmann/David Rüther/Bianca Scraback Security Rights in Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  429 Klaus Tonner Legal Aspects of Cruises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  465 Stefanie Schmahl The Fight against Poverty and the Right to Development in the German Legal Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  483 Lars Viellechner “Friendliness” towards Others: How the German Constitution Deals with Legal Pluralism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  511 Jürgen Kühling The Right to Be Forgotten . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  547 Bettina Weisser Confidentiality of Correspondence with Counsel as a Requirement of a Fair Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  563 Christina Breunig/Martin Schmidt-Kessel Data Protection in the Internet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  589 Joachim Münch Legal Professions and the Transfer of Real Estate . . . . . . . . . . . . . . . . . . . . .  615

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Dirk Hanschel Climate Change and the Individual . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  635 Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  659

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Comparative Law and Multicultural Legal Classes: Challenge or Opportunity? A legal-historical account from Germany Jan Thiessen

A. Introduction From a recent German point of view, “multicultural legal classes” is a topic that does not even seem to exist. Of course, many law students today in Germany have very heterogeneous backgrounds with respect to nationality, ethnic origins or religious traditions.1 However, the majority of legal lectures in Germany are still held in German, regardless of the linguistic capacities of the students. German law schools and German legal scholars still teach predominantly these legal skills that are demanded by public employers in Germany. 2 This is why German law students, who seek for jobs as judges, prosecutors or civil servants, mainly focus on German civil law, German criminal law, German admini1 

For the recent situation see the statistics in Sekretariat der Ständigen Konferenz der Kultusminister der Länder in der Bundesrepublik Deutschland (ed.), Studierende ausländischer Herkunft in Deutschland von 1993 bis 2001, 2003; Isserstedt/Schnitzer, Internationalisierung des Studiums. Ausländische Studierende in Deutschland, Deutsche Studierende im Ausland. Ergebnisse der 16. Sozialerhebung des Deutschen Studenentwerks (DSW) durchgeführt durch HIS Hochschul-Information-System, 2002, p. 5 et seq. For a local example aside from legal studies see Feldhaus/Logemann, Student sein – Ausländer sein – eine Repli­kationsstudie über die soziale Situation und Integration ausländischer Studierender an der Universität Ol­ den­burg, 2002, p. 17 et seq.; Meinhardt/Zittlau, Bildungsinländerinnen an deutschen Hochschulen am Beispiel der Universität Oldenburg. Eine empirische Studie zu den erfolgshemmenden Faktoren im Studienverlauf und Empfehlungen zur Verbesserung von Studienleistungen durch HochschullotsInnen, 2009, p. 15 et seq. For the historical situation of students from abroad in Germany see Siebe, “Germania docet”. Ausländische Studierende, auswärtige Kulturpolitik und deutsche Universitäten 1870 bis 1933, 2009, p. 11 et seq. 2  Martinek, in: Ritsumeikan Law Review 30 (2013), p. 203 et seq. For the historic roots of this phenomenon see Krause, in: Baldus/Finkenauer/Rüfner (eds.), Juristenausbildung in Europa zwischen Tradition und Reform, 2008, p. 95 et seq. Broader historical surveys on legal education are presented by Rüfner, in: Baldus/Finkenauer/Rüfner (eds.), Bologna und das Rechtsstudium. Fortschritte und Rückschritte in der europäischen Juristenausbildung, 2011, p. 3 et seq.; Keiser, (2001) JURA – Juristische Ausbildung 31, p. 353 et seq.

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strative law, German constitutional law and so on.3 In everyday life, German courts and authorities do not care too much for globalization, Europeanization or post-colonial notions, even in cases they better should do so.4 While this picture may appear to be a caricature of reality, it has to be emphasized that Germany has indeed a long tradition of integrating people of different origins under the “roof” of a uniform or unified law. In that sense, Germany has been well prepared to cope with the demands of “multicultural legal classes” for a long time. In my contribution, I would like to illustrate this assertion on the basis of three well-known examples from legal history. First, I will recall how the reception of the re-discovered Roman law in the middle ages shaped a landscape of nearly worldwide-accepted legal rules and institutions (II.). In a second step, I will show how the labourious codification of the German Civil Code became a cornerstone of the belated national unity of Germany (III.). Finally, I will have a look at the European harmonization of law as a work in progress (IV.). More generally, I will focus on private law and on legal education, since these are junctions that connect these three historic paths.

B. From Roman Law to Ius Commune As we all pretend to know, the digests were re-discovered in Northern Italy during the 11th century.5 From that time onwards, Roman law has been taught, studied, interpreted, annotated and discussed throughout the Western world and beyond.6 Much is known about the scholars who taught Roman law at universities.7 Something is also known about their students, apart from those who 3  Still

more or less valid is Schweitzer, in: Schwind/Brauneder (eds.), Rechtsstudium für das Europa von morgen, 1991, p. 39 et seq., 46 et seq.; cf. Kison, Juristenausbildung in der Europäischen Union. Der Einfluss der europäischen Bildungspolitik auf die Regelungen der Mitgliedstaaten unter besonderer Berücksichtigung der Rechtslage in der Bundesrepublik Deutschland, 2014, 167 et seq.; Martinek (n. 2), p. 207. More positively on German legal education especially in an international context is Müller-Graff, in: Baldus et al. (n. 2, 2011), p. 275 et seq. 4 German courts are obliged to observe the primacy of European law, see SchmidtRäntsch, in: Riesenhuber (ed.), Europäische Methodenlehre. Handbuch für Ausbildung und Praxis, 3rd edn. 2015, p. 521 et seq. 5  Stein, Römisches Recht und Europa. Die Geschichte einer Rechtskultur, 1996, p. 76 et seq. For the origins of the Codex Florentinus see Kaiser, in: Schmidt-Recla/Schumann/ Theisen (eds.), Sachsen im Spiegel des Rechts. Ius Commune Propriumque, 2001, p. 39 et seq.; Kaiser, in: (2001) Zeitschrift der Savigny-Stiftung für Rechtsgeschichte 118, p. 133 et seq. Lange, Römisches Recht im Mittelalter, vol. 1, 1997, p. 60 et seq. 6  Stein (n. 5), p. 80 et seq.; Rainer, Das römische Recht in Europa. Von Justinian zum BGB, 2012.  7  Fried, Die Entstehung des Juristenstandes im 12. Jahrhundert. Zur sozialen Stellung und politischen Bedeutung gelehrter Juristen in Bologna und Modena, 1974, p. 87 et seq.; Stein (n. 5), p. 80 et seq., 91 et seq., 95 et seq.; Wieling, in: Baldus et al. (n. 2), p. 52 et seq.;

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became scholars themselves.8 In the very beginning, the majority of these students, a rare species anyway, may have come from Northern Italy.9 Two to five centuries later, however, universities had also been established in several European territories north of the Alps.10 Accordingly, their students originated from several European territories as well.11 Thus, when Roman law was taught in Bologna, Paris, Oxford or Heidelberg, it was taught in front of ‘multicultural classes’ avant la lettre. Furthermore, it was taught by a multicultural staff, as scholars, as well as students, moved regularly between universities, territories and countries.12 The subject matter, though, was ostensibly not a multicultural one from the outset. At least from the 16th century onwards, the legists13 – scholars and students (and courts and lawyers) – used editions of the digests or of the Corpus Iuris Civilis, which may resemble one another in general, but nonetheless remarkably vary in detail.14 The uniform subject matter united jurists of different origins. These jurists, as well as other academics, shared a common language, both in a linguistic and in a juridical sense.15 Jurists of different origins were not dissociated among each other, but with regard to non-jurists, regardless of their origins. Nevertheless, jurists did not live in perfect harmony under the ius commune.16 Indeed, Roman law was not, and is not, a homogeneous body at all. At Lange (n. 5), p. 151 ff.; Lange/Kriechbaum, Römisches Recht im Mittelalter, vol. 2, 2007, p. 435 ff.; Lepsius, in: Zeitschrift für Europäisches Privatrecht 2015, p. 313, 316 et seq.  8  Schmutz, Juristen für das Reich. Die deutschen Rechtsstudenten an der Universität Bologna 1265–1425, 2000; Gramsch, Erfurter Juristen im Spätmittelalter. Die Karrieremuster und Tätigkeitsfelder einer gelehrten Elite des 14. und 15. Jahrhunderts, 2003; Schwinges, Studenten und Gelehrte. Studien zur Sozial- und Kulturgeschichte deutscher Universitäten im Mittelalter, 2008, p. 119 et seq.; Fuchs, Dives, pauper, nobilis, magister, frater, clericus. Sozialgeschichtliche Untersuchungen über Heidelberger Universitätsbesucher des Spätmittelalters (1386–1450), 1995.  9  Lange/Kriechbaum (n. 7), p. 46 et seq. 10  Zonta, in: Sanz/Bergan (eds.), The heritage of European universities, 2nd edn., 2006, p. 27 et seq.; Rüegg, in: Sanz/Bergan, loc. cit., p. 41 et seq.; Sanz/Bergan, in: Sanz/Bergan, loc. cit., p. 51 et seq.; Moraw, Gesammelte Beiträge zur deutschen und europäischen Universitätsgeschichte. Strukturen – Personen – Entwicklungen, 2008, p. 64 et seq.; Wieling, in: Baldus et al. (n. 2), p. 47, 55 et seq.; Lange/Kriechbaum (n. 7), p. 32 et seq., 72 et seq., 102 et seq., 123 et seq.; Gramsch (n. 8), p. 69 et seq. 11  Zonta, in: Sanz/Bergan (n. 10), p. 32 et seq.; Müller, Geschichte der Universität. Von der mittelalterlichen Universitas zur deutschen Hochschule, 1990, p. 21 et seq.; Ridder-Symoens, in: Rüegg (ed.), Geschichte der Universität in Europa, vol. 1, p. 255 et seq.; Garcia y Garcia, in: Rüegg loc. cit., p. 352 et seq.; Lange/Kriechbaum (n. 7), p. 114 et seq. 12  Zonta, in: Sanz/Bergan (n. 10), p. 27, 33 et seq.; Lange/Kriechbaum (n. 7), p. 38 ff., 111 ff. 13  This paper cannot deal with the huge influence of canon law on European legal culture; on that see Helmholz, The Spirit of Classical Canon Law, 1996. 14  Troje, (2004) Tijdschrift voor Rechtsgeschiedenis 72, p. 61, 63 et seq., 73 et seq. 15 Cf. Zonta, in: Sanz/Bergan (n. 10), p. 27. 16  On the concept of ius commune Bellomo, in: Theisen/Voß (eds.), Summe, Glosse, Kommentar. Juristisches und Rhetorisches in Kanonistik und Legistik, 2000, p. 9 et seq.;

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the time when Roman law was re-discovered, it already had been continuously altered, first in transition from the Roman republic to the principate, then in the light of Christianity under the Byzantine Emperor Iustinian, during the encounters of Western Roman law with the customary law of the so called ‘Germanic’ tribes, and not least in the age of oblivion when it was only applied by the church.17 Alteration was the default setting of Roman law and continued to be when Roman law was received by European jurists in the middle ages and in early modernity. Which part of the Corpus Iuris Civilis was still ‘good law’ under entirely different surroundings, compared with late antiquity? This was the crucial question lawyers and scholars were asking themselves from the middle ages to the modernity. Roman law was adopted by lawyers, courts and legislators but it was bound to be adapted for contemporary purposes and for local usage. Local consuetudes diffused with the ius scriptum.18 Actually, this process already started at university, where each scholar and each student had to match the subject matter of the classes with the underlying premise people had in mind about what the law should be, according to their particular experiences.19 As regards the topic of this panel, we can summarize that the study of Roman law was challenged by multicultural classes, whereas the pluralism of local customary law was challenged by having to adopt a, at first glance, uniform common law. People readily changed their minds when studying Roman law, whereas the notion of what Roman law was itself changed due to the input of multicultural students, who eventually became scholars, lawyers or judges themselves. Actually, it is quite the same phenomenon that could be observed with respect to medieval Latin, or the English language today. A foreign language itself is affected and, in consequence, changed by a majority of non-native speakers. 20

Repgen, in: Haferkamp/Repgen (eds.), Usus modernus pandectarum. Römisches Recht, Deutsches Recht und Naturrecht in der Frühen Neuzeit. Klaus Luig zum 70. Geburtstag, 2007, p. 157 et seq. 17  Stein (n. 5), p. 31 et seq., 48 et seq., 61 et seq., 68 et seq., 73 et seq.; for the impact on legal education see Stolfi, in: Baldus et al. (n. 2), p. 9 et seq.; Liebs, in: Baldus loc. cit., p. 31 et seq.; Wieling, in: Baldus et al., loc. cit., p. 47 et seq. 18  Luig, Römisches Recht, Naturrecht, Nationales Recht, 1998, p. 31 et seq. 19  For medieval studies see Walther, in: Speer/Berger (eds.), Wissenschaft mit Zukunft. Die ‘alte’ Kölner Universität im Kontext der Europäischen Rechtsgeschichte, 2016, p. 221, 236 et seq. 20  Leonhardt, Latein. Geschichte einer Weltsprache, 2009, p. 235 et seq.

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C. From the end of the Holy Roman Empire to the German Civil Code In 1806, the Holy Roman Empire of German Nation “passed away”. How could Roman law exist without the Roman Empire, without the Roman Emperor?21 Were the German territories about to lose their ius commune, their common law? With respect to the long history of the reception of Roman law, it is surprising that such questions arose. In fact, neither the Holy Roman Empire nor the Roman Emperor explicitly introduced Roman law as a new source of law. 22 In 1495, the procedural code for the Imperial Supreme Court (Reichskammergerichtsordnung) acknowledged, that the court should base its judgments on the “Empire’s Common Law” (“nach den Reychs gemainen Rechten”), and it also determined that half of the judges’ bench should be staffed by “educated jurists” (“der Recht gelert und gewirdigt”). 23 The “Empire’s Common Law” had become common to the Empire and to the “educated jurists” a long time before the common court was established.24 Thus, in principle, the ius commune could persist in practice without the Empire as long as “educated jurists” decided on the law suits. “Educated jurists”, however, were the very profession that constituted a threat for the so-called enlightened monarchs who claimed to make law in a manner that no judge and no lawyer could have any doubt with respect to what the law was. 25 In a famous treatise of 1749, the Francophile Prussian King Frédéric le Grand demanded that an ideal corpus of laws should be designed in a way to regulate all public affairs like a perfect clockwork: “Clear and precise directives would never cause conflicts; they consisted of a distinguished choice of the best what civil laws provide, accompanied by a prudential and simple application of these laws with respect to the customs of the nation.”26 In this quo21  Haferkamp, American Journal of Comparative Law 56 (2008), p. 667, 676; Haferkamp, Die historische Rechtsschule, 2018, p. 62 et seq. 22  Luig (n. 18), p. 319 et seq.; Haferkamp, in: Haferkamp/Repgen (n. 16), p. 25 et seq. 23  Ordnung des Kayserl. Cammer-Gerichts zu Worms, aufgericht Anno MCCCCXCV, in: Neue und vollständigere Sammlung der Reichs-Abschiede, Welche von den Zeiten Kayser Conrads des II. bis jetzo, auf den Teutschen Reichs-Tägen abgefasset worden sammt den wichtigsten Reichs-Schlüssen, so auf dem noch fürwährenden Reichs-Tage zur Richtigkeit gekommen sind, vol. 2, 1747, p. 6 et seq. (§§ 1, 3). For the ‘law in action’ see Oestmann, Rechts­v ielfalt vor Gericht. Rechtsanwendung und Partikularrecht im Alten Reich, 2002, p. 431 et seq. 24  See n. 16. 25  Kuhli, Carl Gottlieb Svarez und das Verhältnis von Herrschaft und Recht im aufgeklärten Absolutismus, 2012, p. 180 et seq.; Beales, Enlightenment and Reform in Eigh­ teenth-century Europe, 2005, p. 35 et seq., 44 et seq.; Birtsch, in: Birtsch/Willoweit (ed.), Reformabsolutismus und ständische Gesellschaft. Zweihundert Jahre Preußisches Allgemeines Landrecht, 1998, p. 47 et seq. 26  Dissertation sur les raison d’établir ou d’abrogér les lois, in: Friedrich der Große, Phi-

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tation, the monarch implies the dichotomy of the received Roman law and the local, or national, customs. By this, he touched on the topic of multiculturalism of law. He did not deny the necessity to build a new code on the grounds of the Corpus Iuris Civilis. Nonetheless, he insisted that the new code he ordered to elaborate on in 1780, had to be short and simple, to make sure that, according to Montesquieu, “les juges de la nation ne sont […], que la bouche qui prononce les paroles de la loi; des êtres inanimés, qui n’en peuvent modérer ni la force ni la rigueur”.27 As a result of this “simplification”, “many educated jurists” should “lose their mystic reputation“, they should “be deprived from their subtleties’ stuff”, and “the whole corps of advocates should become useless”. 28 The code that was only finalized after Frederic’s death, may have been simple but it was not short at all. However, from the perspective of Frederic’s successor, it was, in fact, too modern. Therefore, it was not implemented until the second partition of Poland required a uniform code both for Prussia and the occupied territories of Poland. 29 A multi-ethnic population was exposed to a uniform code, which originated from multi-ethnic sources, although the multi-ethnicity of the code differed from the multi-ethnicity of those who were subject to the code. Other famous codes of that era match this pattern. The French Code Civil of 1804 was introduced in certain European territories, with the result of several translations of the Code.30 The Austrian General Civil Code of 1811 also applied to some specific territories of Austria, which later became (part of) independent states.31 losophische Schriften/Frédéric le Grand, Œuvres philosophiques, Potsdamer Ausgabe/Édition de Potsdam, Berlin: Akademie Verlag, 2007, p. 286 (“Des ordonnances claires et précises ne donneraient jamais lieu au litige; elles consisteraient dans un choix exquis de tout ce que les lois civiles ont eu de meilleur, et dans une application ingénieuse et simple de ces lois aux usage de la nation.”). 27  Montesquieu, De l’Esprit des Lois, Livre XI, Chapitre VI, in: Œuvres de Monsieur de Montesquieu, edition 1764, vol. 1, p. 391. 28 Abdruck der allerhöchsten Königl. Cabinets-Order die verbesserung des justiz-­ wesens betreffend, 14 April 1780, in: Novum corpus constitutionum Prussico-Brandenburgensium Praecipue Marchicarum, vol. 6, 1781, column 1935, 1942 (“so werden freylich viele Rechtsgelehrten bey der Simplification dieser Sache ihr geheimnißvolles Ansehen verlieren, um ihren ganzen Subtilitäten-Kram gebracht, und das ganze Corps der bisherigen Advocaten unnütze werden”). 29  Janicka, in: Dölemeyer/Mohnhaupt (eds.), 200 Jahre Allgemeines Landrecht für die preußischen Staaten, 1995, p. 437 et seq.; Finkenauer, in: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte – Germanistische Abteilung 113 (1996), p. 40, 54 et seq., 88 et seq., 156 et seq. 30  Dölemeyer, in: Dölemeyer/Mohnhaupt/Somma (eds.), Richterliche Anwendung des Code civil in seinen europäischen Geltungsbereichen außerhalb Frankreichs, 2006, p. 1 et seq. 31  For the unification of private law within the Austrian territories Schennach, in: Dölemeyer/Mohnhaupt (eds.), 200 Jahre ABGB (1811–2011). Die österreichische Kodifikation im nationalen Kontext, 2012, p. 71 et seq.; for the reception of Austrian Law in Liechtenstein and the Thuringian territories see Berger, in: Dölemeyer/Mohnhaupt loc. cit., p. 177, 189 et

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From 1806 to 1815 – between Napoleon’s victories and defeat – German scholars discussed the necessity of a German Civil Code. Once again, a code was in demand that could embrace several legal traditions – Roman, Prussian, French, Austrian and others. At this time, Germany was divided into numerous sovereign territories. The battles for liberation against Napoleon triggered national sentiments beyond the political borders. According to Anton Friedrich Justus Thibaut, Professor of Roman Law in Heidelberg, “the Germans could not be happy in their civil relationships, if it was not for a civil code which should be drawn up with joint efforts of all German [territorial] governments and be implemented throughout Germany”. The new code had to be “clear, unambiguous and exhaustive”, “wise and appropriate”. It was supposed to refrain from simply replicating Roman law. Instead, it had to be “elaborated with German strength, in a German spirit”.32 The contents of this code, however, remained unclear, for no one could define what “German strength” or “German spirit” was. Throughout the entire 19th century, the so-called Germanist legal scholars, especially those who called the reception of Roman Law a “national disaster”33, tried to demonstrate what was “German” about “German Privat Law”34. Not surprisingly, Thibaut’s antipode Friedrich Carl von Savigny, Professor of Roman Law in Berlin, could easily refute Thibaut’s proposal as a delusion35, caused by “an entirely unenlightened educational impulse”. Savigny criticized in particular, that the philosophers and jurists of the age of enlightenment had “lost any sense for the grandness and peculiarity of former times and for the natural evolution of nations and constitutions, hence for everything that makes history beneficial and fruitful”.36 Admittedly, Savigny did not plead for multiculturalism. Quite the contrary, he opined that there was an interdependseq.; for certain Italian territories see Ranieri, in: Dölemeyer/Mohnhaupt loc. cit., p. 199, 201 et seq.; for Poland see Malec, in: Dölemeyer/Mohnhaupt loc. cit., p. 255 et seq.; for Czechoslovakia see Skř epjpková, in: Dölemeyer/Mohnhaupt loc. cit., p. 255 et seq. 32  Thibaut, Ueber die Nothwendigkeit eines allgemeinen bürgerlichen Rechts für Deutschland, 1814, p. 12 et seq., 26 (“daß die Deutschen nicht anders in ihren bürgerlichen Verhältnissen glücklich werden können, als wenn alle Deutschen Regierungen mit vereinten Kräften die Abfassung eines […] für ganz Deutschland erlassenen Gesetzbuchs zu bewirken suchen”; “klar, unzweydeutig und erschöpfend”, “weise und zweckmäßig”, “mit Deutscher Kraft im Deutschen Geist gearbeitet”). 33  Beseler, Volksrecht und Juristenrecht, 1843, p. 42 (“die unbedingte Reception des voll­ ständigen Materials und die Unterdrückung und Verkrüppelung des eigenen Rechtslebens, welche nothwendig daraus folgten, bleiben immer ein Nationalunglück, welches der Patriot nur beklagen kann, wenn es auch aus der Verkettung der Verhältnisse wie mit Nothwendigkeit hervorgegangen scheint”). 34  On the origins of “Deutsches Privatrecht” Luig (n. 18), p. 395 et seq.; for the 18th and 19th centuries see Schäfer, Juristische Germanistik, 2008, p. 77 et seq., 395 et seq. 35  Savigny, Vom Beruf unsrer Zeit für Gesetzgebung und Rechtswissenschaft, 1814, p. 155 et seq. 36  Savigny (n. 35), p. 4 (“ein völlig unerleuchteter Bildungstrieb”; “Sinn und Gefühl für die Größe und Eigenthümlichkeit anderer Zeiten, so wie für die naturgemäße Entwicklung

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ency between law and people, or between law and nation: “From the beginning of documented history, civil law already possesses a certain character, inherent to the people, as well as its language, customs, constitution. […] This organic interrelation between the law and the nature and the character of the people proves itself also during the progress of eras, and, also in this regard, it has to be compared with the language. […] Therefore, the law grows with the nation, emerges from the latter and finally dies off, when the nation loses its pecu­liar­ ity.”37 Despite the latent racism which is implied in terms like “nations of noble origins”38 or the “peculiarity” of nations, Savigny acknowledged an interrelation between law and culture.39 Only the “strict historical method of jurisprudence” could make “veritable useful sources of law out of the common law and the state laws”. This method “pursues to retrace every given matter back to its roots in order to unveil its organic principle, so that everything which is still alive will be separated by itself from that which has already died off and only belongs to history”.40 Consequently, these matters of law, that still belong to the living cultural heritage of a nation, will persist. In the end, “the historic substrate of law, that impedes us now everywhere, will be scrutinized down to the bottom, so that it will enrich us. Then, we will have an own national law, which will not lack a powerful language. Then, we can pass the Roman law to history, and we will achieve not only a weak imitation of the Roman conception but an entirely own and new conception.” 41 So where is the connection between these well-known quotations and “Comparative Law and Multicultural Legal Classes”? Law is formed by various sources, and it is, in turn, source itself of various new forms. At Thibaut’s and Savigny’s time, law in Germany was not only a juxtaposition, but even a blend of Roman and Prussian law, Roman and Bavarian law, Roman and Saxon law, and so on.42 A new German civil code had to include all these different traditions and different cultures. This implies, that all these different traditions had to be acquired, and compared with each other by the legislators. And inder Völker und Verfassungen, also alles was die Geschichte heilsam und fruchtbar machen muß, war verloren”). 37  Savigny (n. 35), p. 8 (“Wo wir zuerst urkundliche Geschichte finden, hat das bürgerliche Recht schon einen bestimmten Charakter, dem Volke eigenthümlich, so wie seine Sprache, Sitte, Verfassung.”), 11 (“[D]ieser organische Zusammenhang des Rechts mit dem Wesen und Charakter des Volkes bewährt sich auch im Fortgang der Zeiten, und auch hierin ist es der Sprache zu vergleichen.”; “Das Recht wächst also mit dem Volke fort, bildet sich aus diesem, und stirbt endlich ab, so wie das Volk seines Eigenthümlichkeit verliert.”). 38  Savigny (n. 35), p. 8 (“bey Völkern edler Stämme”). 39  Savigny (n. 35), p. 11 et seq., 45 et seq., 52, 115 et seq.; see in contrast Thibaut (n. 32), p. 33, 50 et seq., 55 et seq., 58 et seq. 40  Savigny (n. 35), p. 117 et seq. 41  Savigny (n. 35), p. 133. 42 Cf. Thibaut (n. 32), p. 13 et seq.; Savigny (n. 35), p. 14, 18, 27 et seq., 37 et seq., 83 et seq., 111 et seq., 135 et seq., 149, 151 et seq.

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deed, the elaboration of the German civil code at the end of the 19th century was a product of comparative law.43 Outside Germany, it is hard to imagine that the various regions of Germany constituted, and in a way, constitute sovereign states up to the present day. In fact, the German federal states maintain their own embassies in Berlin and in Brussels. Although German nationality may foster a sense of identity, being born in Berlin, Hamburg, Munich or Frankfurt can cause strong feelings of diversity.44 Upon the occasion of the fiftieth anniversary of the German Imperial Supreme Court in 1929, the “citizenship” of the judges was not specified as “German”, but instead as “Bavarian”, “Prussian” or “Hanseatic”.45 These ties were so powerful, that elder Prussian judges were allowed to retire prior to their regular pension age so they did not have to study the new civil code of 1900.46 Although the remaining judges of the Supreme Court had to apply the unified German Civil Code of 1900, they stuck to their regional tradition for at least one more decade.47 Here comes to mind that Savigny dealt not only with legislation but also, and above all, with legal education.48 The “strict historical method of jurisprudence” was also a method of education, not merely a scholarly program.49 The study of Roman law should enable its students to stay in touch with their prospective colleagues abroad. This included other German territories, regardless of whether there was a code or not.50 The same postulate re-occurred after the promulgation of the German Civil Code in 1896.51 For more than three decades, Roman law remained an essential part of legal education in Germany. The Nazis eventually broke with this tradition.52 Needless to say, their ideology was the very opposite of any kind of multi-culturalism. 43  Zimmermann, in: Schmoeckel/Rückert/Zimmermann (eds.), Historisch-kritischer Kommentar zum BGB, vol. 1, 2003, p. 9. 44  See already Thibaut (n. 32), p. 8. 45  Lobe, Fünfzig Jahre Reichsgericht am 1. Oktober 1929, 1929, p. 337 et seq. 46 Gesetz, betreffend die Versetzung richterlicher Beamten in den Ruhestand vom 13. Juli 1899, Gesetz-Sammlung für die Königlichen Preußischen Staaten, p. 123. 47  Thiessen, Unternehmenskauf und Bürgerliches Gesetzbuch. Die Haftung des Verkäufers von Unternehmen und Unternehmensbeteiligungen, 2005, p. 103 et seq., 106 et seq.; Thiessen, in: Auer et al. (eds.), Privatrechtsdogmatik im 21. Jahrhundert. Festschrift für Claus-Wilhelm Canaris zum 80. Geburtstag, 2017, p. 71 et seq. On the judicature prior to 1900 Geyer, Den Code civil “richtiger” auslegen. Der zweite Zivilsenat des Reichsgerichts und das französische Zivilrecht, 2009, p. 25 et seq.; Löhnig, Rechtsvereinheitlichung trotz Rechtsbindung. Zur Rechtsprechung des Reichsgerichts in Zivilsachen 1879–1899, 2012, p. 45 et seq. 48  Savigny (n. 35), p. 48 et seq., 111 et seq., 117 et seq., 125 et seq., 136 et seq., 153 et seq.; cf. Thibaut (n. 32), p. 31 et seq. 49  Haferkamp (n. 21, 2018), p. 51 et seq., 95 et seq. 50  Savigny (n. 35), p. 141 et seq., 151 et seq. 51  Luig, in: Rechtshistorisches Journal 5 (1986), p. 291 et seq. 52  Landau, in: Stolleis/Simon (eds.), Rechtsgeschichte im Nationalsozialismus. Beiträge zur Geschichte einer Disziplin, 1989, p. 11 et seq.

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D. From national law to European legal harmonization After the defeat of the Nazi regime, Germany and Western Europe were re-constructed in the spirit of European unity.53 The legal harmonization started very early, though not with regard to civil law and legal education. Back then, today’s European Union was a “European Economic Community” that was built on coal and steel in first place.54 Commerce comes first, civilian society comes second – in the words of Bertolt Brecht: “But till you feed us, right and wrong can wait!”55 It was the same procedure that had already been adhered to in 19th century Germany, when a Uniform Commercial Code was promulgated in 1861, while the Civil Code followed almost four decades later.56 In post-war Europe, however, another reasoning was essential. The Germans, who were responsible for starting two world wars were to be embedded within a network of peace, freedom and democracy.57 These values could only prevail under conditions of economic prosperity. Private law was indirectly affected, as it was prohibited to restrict economic competition by private contracts under the rules of anti-trust law, which was one of the first subjects of legal harmonization.58 Whereas national experts took part in the building of European legislation and administration, the ordinary citizen (or the “consumers”) went on to live as subjects of their respective national law for more than two decades.59 Thus, legal education did not really open up to European law until the fall of the Iron Curtain. European unification was one of the grand narratives that were told after the socalled “End of History”.60 It was the more credible, the more European citizen experienced a Europe without borders, both with regard to trans-European tourism and consumption patterns.61 European law was transmitted by consumer protection law into the legal sphere, which is inhabited by everyone. In this way, it eventually became part of basic legal education.62 53 

Loth, Building Europe. A history of European unification, 2015, p. 20 et seq. Loth (n. 53), p. 28 et seq. 55  Brecht, The Threepenny Opera, in: Three German Plays, 1963, p. 200. 56  Flume, in: Comparative Legal History 2 (2014), p. 46, 47, 57, 64 et seq. 57  Doering-Manteuffel, Wie westlich sind die Deutschen? Amerikanisierung und Wester­ nisierung im 20. Jahrhundert, 1999, p. 44 et seq. 58  Weitbrecht, Kartellrecht in der Europäischen Union – von den Anfängen bis heute, in: Siekmann et al. (eds.), Festschrift für Theodor Baums, 2017, vol. 2, p. 1377 et seq. 59  On the emergence of European Consumer Protection Law Schmidt-Kessel, in: Gebauer/Teichmann (eds.), Europäisches Privat- und Unternehmensrecht, 2016, p. 238 et seq. 60  Fukuyama, The End of History and the Last Man, 1992, p. 39 et seq.; Germond, in: Larres (ed.), A companion to Europe since 1945, 2009, p. 208 et seq. 61  From a historical point of view Rosenberg, in: Leffler/Westad (eds.), The Cambridge history of the Cold War, vol. 3, 2010, p. 489 et seq. 62  Schweitzer (n. 3), p. 42 et seq. 54 

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European law is multicultural law by definition. Although there is a European Union citizenship, most people who come to Brussels or Luxemburg do not consider themselves as coming from Europe, but rather identify as Belgians, Greeks, Portugese or Swedish, regardless if they are legislators, lawyers or lobbyists. National traditions influence the nascent European law just as well as the interpretation, application and, not least, teaching of promulgated European law.63 Nevertheless, the traditional canons of legal interpretation that are used in Germany are complemented by specific European legal methods.64 If national law originates from European legal harmonization, national law has to be interpreted in a way that gives effect to the intentions of the European legislator.65 The same rule applies, if national law conflicts with prevailing European law. If it is doubted what European law specifies in a particular law suit, the case has to be referred to the European Court of Justice.66 If the national law is not open to an interpretation that provides conformity with European law, the national legislator is forced to amend the national law, failing which the European Commission may bring the matter before the Court of Justice of the European Union.67 Thus, it is obvious that national law is strongly influenced by European law. However, legal transplants68 also go the opposite way. Uncertainties in the interpretation of European law can both be caused and be solved by national traditions.69 So if a litigant, a lawyer or a judge questions the interpretation of European law or the interpretation of national law in the light of European law on the occasion of a law suit that is presented before a national court, it is quite often the case that these questions emerge with regard to a specific solution of the relevant problem in the respective national tradition which seems to differ from European law. And if an Advocate General or a judge at the European Court of Justice is appointed to find a solution in accordance to European law, he or she may find this solution unconsciously in accordance to his or her own national experience.70 Fortunately, or unfortunately – depending on your perspective – the one who initiates the procedure and the one who decides the case quite often originate from different national traditions. National traditions evolve at least partly from legal education. If the majority of the curriculum is primarily dedicated to matters of national law, students will consequently be primarily influenced by national law. The more European 63 

Baldus/Raff, in: Gebauer/Teichman (n. 59), p. 154 et seq. See the contributions in: Riesenhuber (n. 4). 65 See Leible/Domröse, in: Riesenhuber (n. 4), p. 146 et seq.; Roth/Jopen, in: Riesenhuber, loc. cit., p. 263 et seq. 66  Treaty on the Functioning of the European Union, Sec. 267. 67  Treaty on the Functioning of the European Union, Sec. 258. 68  Watson, Legal transplants. An approach to comparative law, 2nd edn. 1993, p. 21 et seq. 69  Baldus/Raff (n. 63), p. 156 et seq. 70  An example for this is presented by Baldus/Raff (n. 63), p. 156. 64 

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law becomes part of the domestic curriculum, the more students will be influenced by European law and its multicultural origins. If European law is taught and studied throughout the European Union, European universities may appear as one single giant multicultural legal class. Professors who teach European law have often attended universities and have passed their exams in other European countries. Students who are interested in European law quite often move to other European countries to study abroad or for private or professional reasons. Their national tradition travels with them, and their European experience returns with them back to their home country. It is quite the same story as it has been told above with regard to the reception of Roman law. It is no coincidence that the tradition of the Roman ius commune has been praised, and criticized, as a magic formula for the European legal harmonization.71 Given that Europe had its common law for centuries, why should it miss out on its own new common law any longer? If ius commune was enshrined in various European codifications, could it be actually released from them and resurrected in the shape of a uniform European Civil Code?72 This tempting, or threatening, perspective is confronted with the very same question that had been asked during the first cycle of life of the ius commune. Which part of the ius commune can serve as current law of today under entirely different surroundings, compared to the middle ages and early modernity? Unfortunately, this is not only an issue of practicability but of politics. Nowadays, European unification has lost much of its attractiveness73, and so has European law.

E. Some concluding remarks Multiculturalism is a phenomenon that is closely linked with law. This is in particular true with respect to legal history. The concept of multiculturalism implies that various cultures can at least coexist or even accommodate each other. Indeed, law was, and can be up to the present day, exploited as an instrument of colonialization. In that respect, law is utilized to suppress indigenous legal cultures. However, these indigenous legal cultures resist colonialization at least in the sense that they are merged when it comes to the application of the foreign law to the respective colonialized country. By doing so, foreign law will be altered by indigenous legal cultures, so that it will be applied to its home country in an altered way.74 While this process might remain unnoticed for a long time, various legal cultures can coexist or accommodate each other delib71 

On the controversy Kötz, in: Rechtshistorisches Journal 13 (1994), p. 505 et seq. With respect to legal education Willoweit, in: Schwind/Brauneder (n. 3), p. 13 et seq. 73  Wassenberg, in: Moreau/Wassenberg (eds.), European Integration and new Anti-Europeanism, 2014, vol. 1, p. 27 et seq. 74  Duve, in: Max Planck Institute for European Legal History Research Paper Series 72 

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erately. This is particularly the case, if various sovereign countries opt for political, economic or legal unification or harmonization. As a result, the respective national legal cultures will become part of a new transnational legal culture.75 However, this process will not succeed without transnational, or multicultural, legal education, within the cultural context of the respective country in which law is taught.76 I would like to close my contribution with a little anecdote. The last step of the German state examination in law consists of an oral examination, in which a group of four or five students is examined by a group of three examiners. Each student has to be examined in the three main fields of law – namely civil law, public law and criminal law – each of which has been subjected to Europeanization. After each part of the examination, the examiners discuss the students’ performance in their absence. When I was part of an examination committee at Tubingen University some years ago, we recapitulated all questions and answers in detail. In the end, we agreed that all of our four students had achieved the same result. All of them passed their examination with the same grade, “above average”. I remember this particular examination so well, because our four students had very different origins. The first student was born in Berlin, the second one in Stuttgart, the third one in Kazakhstan and the fourth one in Paraguay. Indeed, all of our four students grew up in South-Western Germany. They attended the same kinds of school, they attended the same university, they studied the same subject and they passed the same examination. And all of them became highly-qualified jurists. I have to admit that I was moved by this experience. Law and legal education can be a level playing field for young people, wherever they come from.

2017:2, https://ssrn.com/abstract=2976301, p. 8; Duve, in: International Journal of Legal Information 44 (2016), p. 28, 31 et seq. 75  Schulze, in: Assmann/Brüggemeier/Sethe (eds.), Unterschiedliche Rechtskulturen – Konvergenz des Rechtsdenkens/Different Legal Cultures – Convergence of Legal Reasoning, 2001, p. 9 et seq.; van Gerven, in: Assmann et al., loc. cit., p. 49 et seq. 76  Willoweit, in: Schwind/Brauneder (n. 3), p. 9 et seq., 14 et seq., 20 et seq.; Jutras, in: Assmann et al. (n. 75), p. 75 et seq.; Sellers, in: Klabbers/Sellers (eds.), The Internationalization of Law and Legal Education, 2008, p. 1 et seq.; Klabbers, in: Klabbers/Sellers (eds.), The Internationalization of Law and Legal Education, 2008, p. 7 et seq.; Grossman, in: Klabbers/ Sellers, loc. cit., p. 21 et seq.; Basedow, in: van Caenegem/Hiscock (eds.), The Internationalisation of Legal Education. The Future Practice of Law, 2014, p. 1, 6 et seq.

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Property Meeting the Challenge of the Commons Johanna Croon-Gestefeld*

A. General outline of the German property regime I. Legal categories corresponding to the notion of the commons In the introduction to the questionnaire, panel organizer Mattei suggests a definition of commons, according to which commons are ‘the opposite of property,’ and part of neither public nor private property. Referring to a proposal that sought to include the concept of commons in the Italian Civil Code1, he further describes commons as goods that produce utilities that are functional to the fulfilment of fundamental human rights and the free development of any human being. German law does not have an established legal concept capturing all the elements that make up the definition suggested in the introduction. German property law centres on the concept of private ownership. The Basic Law, the German Constitution, guarantees protection of private property as a fundamental right (Art. 14(1) Basic Law). Statutory law vests in the owner, ‘to the extent that a statute or third-party rights do not conflict,’ the power to deal with his property ‘at his discretion and exclude others from every influence’ (§ 903 German Civil Code, Bürgerliches Gesetzbuch, hereafter BGB). Within the legal framework, natural as well as legal persons can own property and rely on the rights just mentioned. Since the state – or its subdivision such as a Land or municipality –, has the status of a legal person, it can also hold ‘private’ property. The state does not enjoy constitutional protection of its property, as the constitution cannot entitle and put obligation on the state at the same time2, but statutory private law applies in relation to its property.

*  I would like to thank Cornelius Kniepert, LL.B., for his research support. 1  Commissione Rodotà: per la modifica delle norme del codice civile in materia di beni pubblici, https://www.giustizia.it/giustizia/it/mg_1_12_1.wp?facetNode_1=0_10&facetNode _2=0_10_21&previsiousPage=mg_1_12&contentId=SPS47617, last accessed 07.11.2017. 2  BVerfGE 15, 256, 262; 21, 362, 369 ff.; 62, 354, 369; 70, 1, 16.

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However, focusing exclusively on property owners’ entitlements would cover the situation insufficiently. Whilst Article 14(1) Basic Law guarantees property as an individual right, it also states that its ‘content and limits shall be defined by the laws.’ Thus, the configuration of property, meaning the kind and extent of power, an owner has over a thing, depends on the legal framework in place. In addition, Article 14(2) Basic Law explicitly lays down social obligations of the owner, holding that ‘property entails obligations. Its use shall also serve the public good.’ Therefore, private owners are never entirely free to utilize their property as they please. They are bound by laws that seek to balance the owner’s interests with those of third parties, such as neighbours or the general public.

II. A German legal concept of commons? As shown supra (I.), a concept of the commons, meeting all the criteria set out by the introduction to the questionnaire, is foreign to German law in force today. However, legal concepts exist that cover parts of the notion captured under the broad term commons. To begin with, the Basic Law contains a provision on the national objective of promoting sustainability. Article 20a Basic Law states that ‘[m]indful also of its responsibility toward future generations, the state shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.’ In addition, German law knows the concepts of cultural heritage (Kulturerbe) and natural heritage (Naturerbe) as mentioned in the Convention Concerning the Protection of the World Cultural and Natural Heritage (UNESCO-Convention)3. Furthermore, some conceptions in European law are vaguely similar to the conception of commons in the introduction. Through the mechanisms of direct effect and supremacy of EU law4, as well as by the implementation into national law, they became part of German law. The Water Framework Directive5 is an example at hand. One of its purposes is to promote ‘sustainable water use based on a long-term protection of available water resources’ (Art. 1 lit. b Dir. 2000/60/EC). § 1 Federal Water Act (Wasserhaushaltsgesetz, hereafter WHG) transposes the requirement into German law.

3  The UNESCO-Convention entered into force in Germany on 23 November 1976, BGBl. 1977 II, 213. 4  Direct effect – Case 26/62 Van Gend en Loos [1963] ECLI:EU:C:1963:1; supremacy – Case 6/64 Costa v ENEL [1964] ECLI:EU:C:1964:66. 5  Dir. 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, OJ L 327/1.

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Moreover, a concept of common usage (Gemeingebrauch) exists in German public law. If a thing is dedicated to common usage, the general public is allowed to utilize it according to its purpose without having to obtain a special permit6. Statutory law governs whether a thing is intended for common usage. For example, § 7(1) Federal Highway Act (Bundesfernstraßengesetz) stipulates that public roads are accessible to all; § 25(1) WHG puts above-ground water into (limited) common usage7; and § 59(1) Federal Act on Nature Conservation and Landscape Management (Bundesnaturschutzgesetz, hereafter BNatSchG) grants all persons the permission ‘to enter the open landscape … for purposes of recreation.’ How the concept of common usage is applied in actual cases is explained in greater detail infra (B.IV.1. and B.V.). Turning to past conceptions of commons, a historical investigation yields the result that ‘commons’ have existed in Germany in the form of Allmende. Of course, a caveat should be added that the modern concept of commons is not necessarily the same as the dated concept of commons, and that the legal environment under which Allmende thrived was completely different from contemporary conditions8. Allmende denotes pastures, forests, roads, and water streams, which were not in the hands of a private owner but could be used by all members of a community9. They came into existence in the late Middle Ages, and were scattered over the area now constituting Germany. Characteristic for Allmende was the extensive manner of their land use, meaning that many people could let their flocks graze on the pastures or chop wood in the forests without entirely consuming the resources offered. Since Allmende were not open to everybody, but to members of a specific community, and since grazing times as well as forest stand had to be organized, their utilization became regulated and sometimes even a judiciary was established. With a few exceptions, Allmende have disappeared due to a variety of factors10: Agricultural and forestry developments made it possible to use pastures and forests more intensively, neighbouring noblemen or gentlemen farmers incorporated pieces of land in their real estate, and, as communities developed into municipalities (with own legal personality), ownership of Allmende land was often transferred to the munici 6 ­BVerwGE

100, 70, 74; 116, 67, 68. Papier/Durner, in: Ehlers/Pünder (eds.), Allgemeines Verwaltungsrecht, 2016, 825.  8  On the limited validity of historic comparisons with respect to the concept of Allmende Zückert, in: Helfrich/Heinrich-Böll-Stiftung (eds.), Commons. Für eine neue Politik jenseits von Markt und Staat, 2014, 159, 163.  9  Zückert, in: Jaeger (ed.), Enzyklopädie der Neuzeit, vol. I, 2005, col. 211. 10 See Brakensiek, Gemeinheitsteilungen in Europa. Neue Forschungsergebnisse und Deutungsangebote der europäischen Geschichtsschreibung, Jahrbuch für Wirtschaftsgeschichte 2000(2), 9, 12; Pass, Die Reformen im Dorf. Gemeinheitsteilungen im Beziehungsgeflecht dörflicher Gesellschaften, Jahrbuch für Wirtschaftsgeschichte 2000(4), 71; Zückert, Allmende und Allmendeaufhebung. Vergleichende Studien zum Spätmittelalter bis zu den Agrarreformen des 18/19. Jahrhunderts, 2003, 207 ff.  7 

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pality11. Within today’s legal framework, Allmende land is best conceptualized as private property of an agricultural cooperative.

III. Commons as a topic of legal academic debate The topic of commons is discussed in the academic debate in Germany, even if not prominently. Especially a debate on reconceptualising the property order or introducing commons as a collective kind of property is lacking. Commons appear in discussions in different contexts. They are a feature in debates on sustainability and conservation of earth’s resources for future generations. In these deliberations on ‘global commons,’ participants focus on the non-exclusionary element of commons, using the concept to depict the uniqueness of water, clean air, or uncultivated soil. Given the global dimension of the topic and the multiple connections between environmental protection and international law, the discussions are not limited to the German system. Rather, German scholars contribute to the international debate, at times centring on the situation in Germany12. The topic of commons also surfaces in legal evaluations of occurrences in the sharing economy, especially in the realm of copyright law. Wielsch has analysed copyright law from the perspective of systems theory13 and proposed that authors’ rights should be thought of less in terms of individual subjective rights and more in terms of their social function14. In addition, the terms ‘creative commons’ or ‘science commons’ – in English, without translation – have found their way into the debate15. The ‘creative commons’-movement has its origins in the USA, and deals with the question of how works of art or science can be made available to the general public without infringing authors’ copyrights, given the new technological possibilities of sharing data16. Since German 11  BFHR 56, 396 with reference to Gierke, Deutsches Privatrecht, Bd. I, 1895, 576 ff. How much influence each of these causes had on the disappearance of Allmende is a subject of debate among historians, see Brakensiek, in: Jaeger (ed.), Enzyklopädie der Neuzeit, vol. I, 2005, col. 214 ff. with further references. 12  Halfmeier AcP 216 (2016), 717, 754; Bosselmann, Earth Governance: Trusteeship of the Global Commons, 2015. The latter underwent legal training in Germany and is now Professor at the University of Auckland (NZ). 13 See Luhmann, Soziale Systeme. Grundriß einer allgemeinen Theorie, 1984; ibid., Das Recht der Gesellschaft, 1993. 14  Wielsch, Zugangsregeln, 2008, 47. 15 E.g. Dreier, in: FS für Gerhard Schricker, 2005, 283; Dreier/Schulze/Dreier, 5. Aufl. 2015, UrhG Einl. para. 23; Wagner MMR 2017, 216. 16 See Wagner MMR 2017, 216, 217. Under creative commons licencing, ‘the licensor grants the licensee a worldwide, non-exclusive, permanent and irrevocable licence to multiply, show, adapt and disperse a work. The licensee has to name the author and inform about the licensing conditions each time he or she shows or disperses the protected work’ (Wiebe, in: Spindler/Schuster (eds.), Recht der elektronischen Medien, 2015, § 31 UrhG para. 21).

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authors and media consumers participate in the exchange of data over the internet etcetera, German copyright lawyers also discuss the ideas of ‘creative commons’ or ‘science commons.’ This leads me to a more general observation: legal scholars tend to take up the notion of commons, when they gain momentum in neighbouring sciences such as sociology17 or economics18. In addition, there is quite a lively debate on the protection and administration of ‘collective goods’ or ‘public goods’ (Gemeinschaftsgüter)19. In interdisciplinary research, legal academics, together with economists and psychologists, explore whether the market or the state offers a better institutional framework for administrating these goods. Leading in this type of research are the works by the Max Planck Institute for Research on Collective Goods20.

IV. Public property and its alienability When approaching the topic, it seems imperative to give an overview of the German public property regime. As stated supra (A.I.), the state, or state entities, can hold private property. In addition, the German legal system knows ‘public property’ (öffentliches Eigentum). However, the subtleties of the conception are rather peculiar. The state can establish ‘solid’ state ownership under public law, but has seldom availed itself of this option. Merely the Road Law of Hamburg (Hamburger Wegegesetz), the Water Law of Hamburg (Hamburger Wasser­ gesetz), and the Water Law of Baden-Württemberg (Baden-Württembergisches Wassergesetz) subject certain roads, flood control installations, or riverbeds to

17  For an overview, see Helfrich/Heinrich-Böll-Stiftung (eds.), Commons. Für eine neue Politik jenseits von Markt und Staat, 2014; Helfrich/Bollier/Heinrich-Böll-Stiftung (eds.), Die Welt der Commons. Muster gemeinsamen Handelns, 2015. 18  See e.g. Ostrom, Die Verfassung der Allmende (transl. Schöller), 1999. 19  For further reading, see Engel, Die Verwaltung, 1997, 429; Zacher, in: FS für Peter Lerche, 1993, 107. Zacher’s conception of collective goods is embedded in an understanding of law that centres on the role of the individual within a community, see ibid., in: Maydell/ Eichenhofer (eds.), Abhandlungen zum Sozialrecht, 1993, 209 (esp. 227); ibid., in: FS für Franz Knöpfle, 1996, 413; ibid., in: Becker/Ruland (eds.), Abhandlungen zum Sozialrecht II, 2008, 281. 20  Collective goods/public goods are not the same as commons. Pursuant a differentiation between private (consumption) goods and collective (consumption) goods coined by Samuelson (The Review of Economics and Statistics 1954, 387), collective (consumption) goods are non-excludable, as well as non-rivalrous. That is to say that ‘each individual’s consumption of such a good leads to no subtraction from any other individual’s consumption of that good’ (387). In contrast, commons are said to be non-excludable, rivalrous goods, meaning that each individual’s consumption reduces the availability of the good for all other individuals. Despite this difference, I mention collective goods in this context because the estimation whether a good is rivalrous or non-rivalrous can be difficult to assess, and because certain things such as clean air are sometimes referred to as collective goods, and sometimes as commons.

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state ownership21. Furthermore, the term ‘public property’ is understood in a broader sense to denote the state’s exercise of control over things. The conventional method that the state uses for this purpose is to prescribe an easement on private property by an act of state22. For example, the state has owner-like powers over public highways, while the individuals, whose plots the highways were built upon, remain the private owners of those plots. That said, the state owns things that are absolutely not alienable. The obligation not to alienate certain parts of public property is written in the German constitution. The recently altered Article 90(1) Basic Law states that the Federation remains owner of motorways and highways, and that the property of these motorways and highways is inalienable23. It continues to stipulate that the Federation may attend to the task of administering the motorways with help of an enterprise organized under private law. The enterprise then belongs to the Federation, and its property is inalienable as well (compare Art. 90(2) Basic Law). Hence, constitutional safeguards have been put in place that prohibit far-reaching privatization of the German road system. Furthermore, Article 87e(3) Basic Law regulates that ‘[f]ederal railways shall be operated as enterprises under private law.’ It continues, ‘the Federation shall retain a majority of the shares’ of such an enterprise, if its business activity is the maintenance of the railway infrastructure. Consequently, complete privatization of the railway system is constitutionally precluded as well24.

V. Remedies against privatization of the commons Before I present potential remedies, a few words on the understanding of ‘privatization’ within the German legal system are in order. The term ‘privatization’ denotes different degrees of influence over the supply of public goods by the state. There is ‘formal privatization,’ in which the state can use organizational types of private law, 100 percent controlled by the state, to provide public services25. Jurisprudence employs the term ‘functional privatization’ to label the delegation of public services to private suppliers in such a way that control and governance remain with the public authorities26. On the other end of the spectrum, we find ‘material privatization,’ describing the unlimited 21 See

Papier/Durner (Fn. 7), 819. 9, 373, 380; 19, 85, 90; 21, 319, 327; 48, 98, 104. In the decisions, the German Federal Court does not use the term ‘easement’ but speaks more generally of public rights to usage. 23  Gesetz zur Änderung des Grundgesetzes (Art. 90, 91, 104b, 104c, 107, 108, 109a, 114, 125c, 143d, 143e, 143f, 143g) of 13 July 2017, BGBl. 2017 I, 2347. 24  See BeckOK GG/Remmert Art. 87e para. 8. 25 See Knauff, in: Schmidt/Wollenschläger (eds.), Kompendium Öffentliches Wirtschaftsrecht, 2016, § 6 para. 11. 26  Ibid., para. 13. 22  BGHZ

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­ elegation of public services or transfer of public property to legal entities und der private law27. When German courts deal with the issue of privatization – be it in its formal, functional, or material form –, they are usually not confronted with direct challenges against privatization. Instead, they hear complaints of unsuccessful tenderers, who argue that they should have been chosen over their competitor28. However, the Federal Administrative Court addressed a direct challenge against privatization in one of its judgments (BVerwG, 27.05.2009 – 8 C 10/08)29. A municipality had privatized the management of a Christmas market. A merchant, who had formerly been selling his goods at the market and had subsequently been denied participation by the private management enterprise, sued the municipality, arguing that it was illegal to delegate the management to a private enterprise. The Federal Administrative Court agreed with the plaintiff, and held that the complete privatization of the Christmas market constituted a violation of the guarantee that certain municipal affairs had to be self-governed by the municipality (Art. 28(2) Sentence 1 Basic Law). It stated that the organization of the market was part of public services, and that the municipality had failed to retain possibilities to influence the private organizers. The case, which was subject to heavy criticism 30, illustrates two aspects. First, for a plaintiff to have locus standi, he or she must show that the privatization potentially infringes upon his or her individual rights (compare § 42(2) Code of Administrative Court Procedure, Verwaltungsgerichtsordnung, hereafter VwGO). This may be the case if his or her former legal relation with the public authorities is impaired by the privatization. With help of a declaratory action under public law (Feststellungsklage, Art. 43 VwGO), he or she can then challenge the privatization. Second, in the example, the Federal Administrative Court criticised the ‘material privatization’ of the Christmas market, or more precisely the fact that the municipality had retained no influence whatsoever over the private organizer. However, had the municipality retained a modicum of control over the privately organized market management, the Court would have most likely accepted the privatization. Apart from the presented option to bring a declaratory action before an administrative court, there is an additional legal means to challenge privatizations at the Länder level. Individuals can instigate proceedings to hold a referendum on the repurchase of previously privatized state property. For example, a citi-

27 

Ibid., para. 12. for ‘replacing competition complaint’ BVerfG DVBl 2004, 431 ff.; for ‘negative competition complaint’ BVerfG NJW 2005, 273, 274 f.; BVerfG NVwZ 2009, 977 ff. and for ‘positive competition complaint’ BVerfGE 82, 209, 229. 29  BVerwG DVBl 2009, 1382. 30  Kniesel GewArch 2013, 270; Schoch DVBl 2009, 1533; Winkler JZ 2009, 1169. 28  See

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zens’ initiative in the Land Hamburg successfully demanded that the Land buy back the power supply, gas, and district heating system31.

VI. Remedies against nationalization of the commons German law provides individuals with means to challenge nationalizations. Again, before I enter into these remedies, I consider it useful to explain the legal framework concerning nationalizations. Bearing in mind that ‘nationalization of commons’ is not a term commonly used in the German jurisdiction, the German constitution mentions two distinct legal concepts that may be connected to nationalization, namely socialization (Sozialisierung) and expropriation (Ent­ eignung). Socialization aims at a general transformation of the property system32. In contrast, expropriation concerns concrete cases in which individual owners lose their property status in favour of the state, or in favour of private persons, if the proceeding indirectly increases the public good33. Article 15 Basic Law states that ‘[l]and, natural resources and means of production may for the purpose of socialization be transferred to public ownership or other forms of public enterprise’ in return for compensation. Thus, constitutional law allows for the socialization of goods that may be – for the purposes of this analysis – called commons. So far, however, the state has not made use of the power vested in it by Article 15 Basic Law34. The provision is valid, but carries no weight in descriptions of the law applied. Further elaboration is therefore unnecessary. Article 14(3) Basic Law deals with expropriations. Pursuant Article 14(3) Sentence 1 Basic Law, ‘[e]xpropriation shall only be permissible for the public good.’ In addition, the state may order expropriation only ‘by or pursuant to a law’ (Art. 14(3) Sentence 2 Basic Law), and must provide compensation (Art. 14(3) Sentence 2 Basic Law). Expropriations rarely take place in Germany, because they are measured against the standard of proportionality35. Few reasons can justify the severe infringement of property that goes along with expropriation. However, the state has other ‘expropriative measures’ to its avail. It can define owners’ rights and duties in a general and abstract manner, and thereby shape their property position (Inhalts- und Schrankenbestimmung). For example, the laws allowing for a building to be put on a preservation order limit the rights of property owners to renovate their buildings as they please. And 31  For further information, see http://www.hamburg.de/energiewende/4110666/ergebnisvolksentscheid/, last access 07.11.2017. 32  Depenheuer, in: Mangoldt/Klein/Starck (eds.), GG, Art. 15 para. 11. 33  See BVerfGE 70, 191, 199 ff.; 72, 66, 76; 101, 239, 259; 104, 1, 9 f.; 112, 93, 109; 114, 1, 59; 115, 97, 112. 34  Depenheuer, in: Mangoldt/Klein/Starck (eds.), GG, Art. 15 para. 3. 35  BVerfGE 24, 367, 404 f.; 45, 297, 321.

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the Federal Act on Nature Conservation and Landscape Management limits real estate owners’ powers to exclude the public from their premises (compare § 59 BNatSchG, see supra A.II.). Since the Basic Law stipulates that ‘property entails obligations’ (Art. 14(2) Sentence 1 Basic Law), owners must accept lawful changes to their legal status, which stem from such Inhalts- und Schrankenbe­ stimmungen, without compensation. Only if an Inhalts- und Schrankenbestimmung restricts enjoyment of their property position to an extreme extent, are they entitled to compensation36. As far as expropriation is concerned, the individual owner affected thereby has legal means to his or her avail to challenge it. If the expropriation is based on an administrative order pursuant to a law (compare Art. 14(3) Sentence 2 Basic Law), he or she can lodge an objection against the expropriation order with the competent authority (§§ 68 et seq. VwGO). Should the authority not rescind the order, the owner can file an action for voidance before an administrative court (Anfechtungsklage, § 42(1) Alt. 1 VwGO). In the debate on expropriation, it had been disputed for a long time if an owner, who considered the expropriation order to be illegal, had the option to nevertheless accept the expropriation, and contend successfully for higher compensation. In a landmark decision, the Federal Constitutional Court ruled that such an approach to expropriation was contrary to constitutional law (Naßauskiesung – BVerfG, 15 July 1981, BVerfGE 58, 300 et seq.). Consequently, owners must first challenge the expropriation order before they can take legal action to at least claim higher compensation for the objected expropriation. For legal disputes merely concerning the compensatory amount, the owner can bring a suit before a civil court (Art. 14(3) Sentence 4 Basic Law). In the less common case that the expropriation is based directly on a law (meaning that no further administrative action is necessary), challenging the expropriation is more difficult for the affected owner. The owner can challenge actual acts, which the administration performs in the expropriation, before an administrative court (allgemeine Leistungsklage). However, the court has no competence to declare the expropriation law void because this power is reserved to the Federal Constitutional Court. Should the court consider the law to be illegal, it has the possibility or – if it is the court of last instance in the case – the obligation to submit to the Federal Constitutional Court a reference for 36  For completeness’ sake, German law further knows enteignenden Eingriff and ent­ eignungsgleichen Eingriff. Enteignender Eingriff describes a situation, where the owner is entitled to compensation because he or she experiences unbearable, atypical and unexpected proprietary side-effects of an otherwise lawful administrative act (see BGHZ 57, 359, 366; 91, 20; BeckOK GG/Axer Art. 14 para. 138). In the event of an enteignungsgleicher Eingriff, an unlawful act of the state infringes the owner’s property position. The owner may then claim compensation if his or her property was particularly severely affected by the act (see BGHZ 117, 240, 252; Maunz/Dürig/Papier GG Art. 34 para. 37).

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a preliminary ruling (Art. 100(1) Basic Law). Subsequently, the Federal Constitutional Court may declare the expropriation law void (§ 31(2) Act on the Federal Constitutional Court, Bundesverfassungsgerichtsgesetz). The same legal proceedings allow for a challenge of Inhalts- und Schrankenbestimmungen. Since they also have the character of (abstract and general) norms, they likewise can only be challenged indirectly, and assisted by the preliminary reference procedure.

VII. Private property and other constitutional positions Property is considered a fundamental right in Germany. Its protection is enshrined in the Basic Law. Article 14(1) Sentence 1 Basic Law states: ‘Property and the right of inheritance shall be guaranteed.’ Given its fundamental status, the constitution protects property in multiple ways. First, an individual is protected against state measures negatively impacting his or her property (Abwehrrecht). Second, the constitution ensures that the concept of property may not be changed in ways that completely devaluate the position of private owners (Einrichtungsgarantie). Third, the constitutional protection also is effective in relations between private parties. Though the Basic Law only places obligations on public entities, private parties are indirectly bound by the constitution (mittelbare Drittwirkung). German courts have to take the Basic Law’s fundamental rights into account when judging in private law disputes (Lüth – BVerfG, 15 January 1958, BVerfGE 7, 198 et seq.). Consequently, private parties also have to abide by the constitutional standards because their actions can be subject to judicial scrutiny, and must be in accordance with the law. In the event that the constitutionally protected position of an owner conflicts with constitutionally protected positions of other individuals, these positions are reconciled through the balancing of the competing rights. For example, if an industrial plant emits toxic fumes, the owner’s right to utilize his or her property (Art. 14(1) Basic Law) is balanced against the neighbours’ right to health and well-being (Art. 2(2) Basic Law). As the example illustrates, property is not an absolute right, neither are the other fundamental rights under the Basic Law – except for human dignity guaranteed by Article 1(1) Basic Law. Thus, in the abstract, property does not take priority over nor is subordinate to other fundamental rights. Nonetheless, in a concrete case, an owner’s position may be considered more or less important than that of another individual relying on her right to life, health, work, etcetera. The situation ought to be assessed differently when property is in conflict with human dignity. As ‘[h]uman dignity shall be inviolable’ (Art. 1(1) Sentence 1 Basic Law), it cannot be balanced with other fundamental rights, including property37. In the event of such a conflict, 37  BVerfGE

75, 369, 380; 93, 266, 293.

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the position of the individual justified in relying on human dignity always takes precedence.

VIII. Limits to the exclusionary power of private property in land When approaching the topic it is important to stress that the power of the owner to decide who is allowed to stay on his or her premises enjoys great protection under German law. The owner’s power of exclusion (see § 903 BGB) is the standard; each limitation of the standard needs to be justified. Regardless, there are exceptions to the rule, both in private and in public law. An owner must tolerate other people on his or her land in case of necessity. Pursuant to § 904 Sentence 1 BGB, ‘[t]he owner of a thing [annotation: this includes land] is not entitled to prohibit the influence of another person on the thing if the influence is necessary to ward off a present danger and the imminent damage is disproportionately great in relation to the damage suffered by the owner as a result of the influence.’ Similarly, § 1004(2) BGB states that an owner’s claim for removal from her property or injunction against violations of her property ‘is excluded if the owner is obliged to tolerate the interference.’ For example, should there be a flood, causing people to swarm to the highest place in the area, their ‘trespass’ on that plot is justified. Another justification for a private non-owner to access the land is, if the piece of land has been dedicated to common usage (Gemeingebrauch, see supra A.II.) under public law. In that case, the non-owner need not rely upon a special permission by the owner or a public body in order to stay on the property. Examples of territories under common usage are public highways, public waterways, open landscapes, forest areas, and beach sections. A particular case of necessity – the right of way of necessity – is governed by § 917 BGB. It stipulates that the owner must, if the neighbour’s ‘plot of land lacks the connection to a public road necessary for the due use,’ tolerate the use of his land by his neighbour until the necessary connection has been created. In return, the owner can claim compensation from the neighbouring real estate owner benefitting from the right of way. An additional right of way of necessity, which may limit the power of the owner to exclude other individuals from his premises, is the right of way of necessity with respect to forest estates (e.g. § 28 Forest Law Baden-Württemberg, § 15 Forest Law Saarland, § 12(2) Forest Law Schleswig-Holstein).

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B. Specific sectors and cases While part A of the questionnaire dealt with the general outline of national property regimes, part B turns to specific cases, considering how they would be assessed in the different national jurisdictions. The intention behind the ‘factual approach’38 is to have respondents reflect on the circumstances of a case, and think beyond the concepts that they would usually associate with the object of study in their judicial jargon39.

I. Housing John, Orri, Sekela and Satoshi, desperate to find a home at an affordable cost, together with their families (including several children) inhabit homes in a development project, suspended due to delayed authorizations. The four friends and their families work on both the buildings and the land to enhance their living conditions (for instance, by painting the walls and adding a little garden). After a couple of months, the legal manager of the land discovers the four families and attempts to remove them. The families refuse to leave and the manager brings a claim against them. The company, which owns the land and that the legal manager is working for, can bring a claim against John, Orri, Sekela, Satoshi and their families to clear the land. In the field of property law, two potential bases for the claim stand out40: First, the company may rely on § 1004 BGB. Pursuant the norm, an owner can demand to stop the interference with his or her property by any­ one, if he or she is not obliged to tolerate the interference. Second, should the exclusion from the property be comprehensive, meaning complete retention of possession, the company may rest its claim upon § 985 BGB. According to § 985 BGB, the owner may require the possessor to return the thing, unless the possessor has a right to possession (compare § 986 BGB)41. From the facts of the case, it is evident that the company is the owner of the land, and that John, Orri, Sekela, Satoshi and their families are its possessors. 38 

Sacco, The American Journal of Comparative Law 1991, 1, 29. Ibid., 28. This technique of informing about legal systems for comparison has been used by the Common Core Approach to European Private Law. For further information on the approach, see Bussani/Mattei Columbia Journal of European Law 1996, 339. 40  The company may also rely on its rights as a possessor in order to substantiate its claim. Pursuant § 861 BGB, a former possessor has a right to have a current possessor restore the lawful state, if the current possessor has gained possession of the thing by unlawful interference, viz. against the will of the possessor. Such a claim to retake unlawfully gained possession may be excluded, if the deprivation or interference of possession is permitted by law (compare § 858(1) BGB). In addition, the company may bring an unjust enrichment claim against the families, comp. § 812(1) Sentence 1 Alt. 1 BGB. 41  Staudinger/Gursky (2012) § 958 para. 86. 39 

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The contentious point is whether the former must tolerate the interference, or if the latter have a right to possession. I interpret the circumstances mentioned in the example to the effect that there is no legally accepted justification for the families’ interference with the property of the company. The fact that the development project has been suspended and the homes were unutilized at the time of their moving in does not qualify as justification under German law in its present state. John, Orri, Sekela, Satoshi, and their families must find alternative housing on the market. Should they be unable to afford rent on the open market, they could apply for a housing subsidy granted by the state42. Should they encounter other difficulties in the apartment search, and run the risk of becoming homeless, they could turn to public agencies for help. These agencies offer programmes that shelter people in public facilities, or in private hotels or guest houses paid by the state. At times of particularly low supply of affordable housing, the state can take additional steps to allocate housing. For example, after World War II, it passed the Housing Management Law (Wohnraumbewirtschaftungsgesetz) to assign vacant apartments to people in need. And when a large number of refugees entered Germany in 2015, the Land Hamburg passed a law that allowed for the seizure of private estates in return for compensation in case additional housing should become necessary43. The Hamburg law is no longer in force because it contained a sunset clause that went into effect at the end of March 201744. The case at hand mentions additional circumstances that deserve further inspection: It is stated that John, Orri, Sekela, Satoshi and their families have made improvements to the estate during their stay. The question arises of how much these ameliorations have to be taken into account when it comes to the claim of eviction. German property law addresses this arrangement. Under certain conditions, the possessor may claim reimbursement for outlays on the thing under his or her control (§§ 994 et seq. BGB). As long as the possessor has not returned the thing to the lawful owner, he or she has a right to retention until reimbursement (compare § 1000 BGB). Yet, German law differentiates between kinds of possessors and types of outlays when it comes to reimbursability of the latter. The strongest position for reimbursement is held by a possessor who did not know about his or her wrongful possession, and acted in good faith when making necessary improvements to the thing. The weakest position is held by a possessor who ‘obtained the thing by an intentionally committed tort’ (§ 1000 BGB), or made only useful (not necessary) improvements to the thing. As far as John, Orri, Sekela, Satoshi and their families are concerned, first should be noted that they knew or should have known about the illegality of their stay on 42 

The Housing Benefit Act (Wohngeldgesetz) governs such situations. Gesetz zur Flüchtlingsunterbringung in Einrichtungen, HmbGBl. 2015 I, 245. 44 § 3(1) Gesetz zur Flüchtlingsunterbringung in Einrichtungen. 43 

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the estate. Therefore, German law does not consider them particularly worthy of protection. In addition, the examples of improvements given were the painting of walls and the laying out of a little garden. These are outlays which under German law would not be considered as necessary, entitling to compensation (compare § 994 BGB), but as merely useful improvements (compare § 996 BGB). Thus, the owning company does not have to reimburse John, Orri, Sekela, Satoshi, and their families for these improvements imposed upon its property. On the procedural side, the company owning the development needs to bring a claim of eviction against John, Orri, Sekela, Satoshi and their families. To protect inhabitants against surprising or unforeseen eviction orders, the title obtained by the court may only be enforced against those individuals named in the eviction order (compare § 750 ZPO)45. The law grants further protection to unlawful residents, as an injunction that would force the inhabitants to immediately leave the estate is granted only in extreme cases (compare § 940a ZPO). Yet, ultimately, John, Orri, Sekela, Satoshi and their families do not enjoy protection against injunction, because they have moved onto the estate by an act of unlawful interference.

II. Health Care Together with other people from her neighbourhood, Emanuela has organized a volunteer non-profit medical clinic in what appeared to be an abandoned building offering free services to irregular migrants who have no health insurance. Soon after, Syntech Corporation, the owner of the building, realizing that the market value of the building has increased since they acquired it, decides to sell it at a profit. Syntech would like Emanuela and her volunteers out of the building within a few days in order to sell it, and initiates an eviction action. Many people in the area are upset by this news. Emanuela defends. The answer to question B.II. is similar to the one with respect to question B.I. As the owner of the estate, Syntech has a claim against Emanuela and her fellow volunteers to vacate the building (§ 985 BGB or § 1004 BGB). Emanuela and her fellow volunteers have had no right to take possession of the building. They neither signed a contract with the owner Syntech, which would have allowed them to occupy the building (compare § 986 BGB), nor does the law provide justification for the interference with Syntech’s property. That said, two aspects that distinguish case B.II. from case B.I. require a more detailed analysis: namely the medical character of the institution and the impression of an abandoned estate. First, the fact that Emanuela and the other volunteer workers use the premises to run a non-profit medical clinic offers no valid justification for the seizure of possession of the building. The necessity 45 

See further MüKoZPO/Heßler, 5. Aufl. 2016, ZPO § 750 para. 51.

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justification, which holds that an owner has to tolerate the influence of others on his or her property ‘if the influence is necessary to ward off a present danger and the imminent damage is disproportionately great in relation to the damage suffered’ (§904 BGB), does not apply. It is my understanding of the facts that Emanuela and the other volunteers can find alternative means of accommodation on the open market. Thus, they are obliged to take the steps necessary to find a location for rent or to buy real estate. In this context, it should be mentioned that installing a clinic on the estate might also violate public zoning law. German law regulates where medical institutions may be operated. For example, if a development plan designates an area to be used almost exclusively for habitation, medical institutions such as clinics may only be run in the area by way of exception (compare § 3 Federal Land Utilization Ordinance, Verordnung über die bauliche Nutzung der Grundstücke). Consequently, opening a clinic on the estate would also be illegal from a public law point of view, if the clinic was situated in a housing area and installed without administrative permission. Second, should the apparent abandonment of the building give cause to a different assessment in question B.II. than question B.I.? This is not the case. Under German law, a substantial period of time needs to pass before the position of a real estate owner, who does not actively utilize his or her property, is devalued. Only after a ‘plot of land has been in the proprietary possession of another for thirty years’ may the owner be excluded from his or her property (§ 927 BGB). What is more, a public notice procedure has to take place for the exclusion46. A real estate owner cannot merely ‘abandon’ his or her property, either. Pursuant § 928 BGB, ‘[t]he ownership of a plot of land may be relinquished by the owner declaring the waiver to the Land Registry and the waiver being registered in the Land Register.’ Accordingly, by not using the building for some time, Syntech has not waived its property rights in a legally relevant way.

III. Food Marta, Mattias, and Madison, together with their families and neighbours, cultivate a communal garden on a vacant plot of land as a food source. Max Corporation, the owner of the plot of land, discovers the three families and tells them to leave. Max Corporation brings a claim against the three families for their removal and the removal of the food grown by the families on its land.

46  In addition, ‘[w]here the owner is registered in the Land Register, the public notice procedure is admissible only if he is dead or missing and a registration in the Land Register that required the approval of the owner has not been made for thirty years’ (§ 927(1) Sentence 3 BGB).

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In my answer to question B.III., I can extensively refer to the answer given to question B.I. Marta, Mattias, Madison and their families have no right to stay on the plot of land, and Max Corporation will be successful in bringing an eviction order against them. As far as the communal garden is concerned, the garden is an improvement to the plot of land. It therefore needs to be considered if the planting of the garden is a ‘necessary’ or merely a ‘useful’ outlay, which Marta, Mattias, Madison and their families can claim compensation for (compare §§ 994 et seq. BGB). Given that they knew or should have known about the illegality of their stay on the plot of land, that the cultivation of the garden was not necessary to maintain the plot of land, and that the owner of the land had no use for the garden, the male-fide possessors may not claim compensation. This leaves open to assessment what is supposed to happen to the produce of the garden. In this regard, it is useful to differentiate between the produce still being connected to the soil, and that already separated from the soil. The produce still in the ground belongs to the property of the owner, Max Corporation. Pursuant § 94(1) BGB, ‘[s]eed becomes an essential part of the plot of land when it is sown, and a plant when it is planted.’ Furthermore, § 93 BGB stipulates that essential parts, that is ‘[p]arts of a thing that cannot be separated without one or the other being destroyed or undergoing a change of nature (essential parts) cannot be the subject of separate rights.’ In other words, the owner of the plot of land is also the owner of its produce, and may enjoy his or her property at his or her discretion. The law comprises similar provisions with regard to the harvested produce. After separation from the soil, the rule is that the harvest also belongs to the owner of the plot of land where the products were grown (compare § 953 BGB). Exceptions are made in the event that a person other than the owner is entitled to appropriate foods that were produced on the soil (compare §§ 954 et seq. BGB). Since Marta, Mattias, Madison and their families were not entitled to appropriate the fruits and vegetables grown, but rather acted in bad faith when they took possession of the real estate owned by Max Corporation, these exceptions do not apply to their case. Instead, they have to surrender the produce to Max Corporation, or in case the produce has already been consumed, pay compensation. On a final note, the example points to an investigation into whether a conception of the right to food – most likely understood as part of the right to life and health (Art. 2(2) Basic Law) – may trump private property in a balancing exercise. In the German legal system, it is unlikely that the two positions would clash in a way that would make it necessary to give priority to the right to food. The state offers financial support to persons in need, through either social benefits47 or unemployment benefits48. People are supposed to buy their food on the 47 

48 

Social Security Code XII (Sozialgesetzbuch XII). Social Security Code II and III (Sozialgesetzbuch II und III).

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open market. Actions that people undertake to supply themselves with food, which impair someone else’s property, are considered unnecessary, and therefore not tolerated by the German property regime.

IV. Water 1. Rural Maya, Malik, and Mei depend on the water of Flumia, a nearby river. The three villagers together with other villagers in the area build aqueducts and an irrigation canal from the river to their respective homes and fields. After a few years, a private corporation diverts the water of the Flumia River. Soon after, Maya, Malik, and Mei realize that water no longer flows to the aqueducts and irrigation canal from the river. Maya, Malik and Mei sue. Water regulation has been the issue of comprehensive new codification in the last years. The Federal Water Act (WHG), substantially influenced by the European Water Framework Directive, governs the ownership situation as well as the usage of water in Germany. In addition, there are water laws at the Länder level, which contain further regulations49. § 4(2) WHG stipulates that water-streams aboveground and groundwater cannot be subject to property rights. Yet, this does not mean that one is not allowed to use water. Water usage is subject to different levels of regulation, depending on its intensity. According to § 25 WHG, the usage of waters aboveground is organized as common usage (see A.II.). Hence, every person may use the waters, as long as he or she respects the rights of others. On a second level, owners of land through which the water streams as well as persons entitled by such owners, may use the water to satisfy their personal needs (§ 26 WHG). They, too, have to consider the rights of others, but are otherwise free to use the water more intensively than users relying on common usage. On a third level, when the intensity of water usage is highest, the user needs special permission by the competent authorities to divert water, etcetera (comp §§ 8 et seq. WHG). For example, the owner of a factory requires authorization, if he or she seeks to channel large amounts of water off a nearby river to power the production in the factory. With respect to the case at hand, it is therefore necessary to determine (a) the intensity of water usage by the private corporation on the one hand, and by Maya, Malik and Mei on the other hand, as well as (b) their respective ownership positions with regard to the land through which the river Flumia streams. Starting with the situation of the private corporation, apparently it interferes heavily in the flow of water of Flumia. Such interference requires specific au49  Pursuant Art. 72(3) Nr. 5 Basic Law, Länder have the competence to pass water acts that differ from the provisions of the Federal Water Act.

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thorization. Considering that the effects of the irrigation are as extreme as stopping the flow in the aqueducts downstream, it is unlikely that the corporation has obtained a permit. As a result, public authorities may become active and prohibit further diversion of water. As far as Maya’s, Malik’s and Mei’s situation is concerned, it is also questionable that they are allowed to divert the water. If I interpret the facts as stating that they are not owners of the land through which the river flows, they may only use it under the conditions of common usage. Diverting water via the means of aqueducts and irrigation canals most likely exceeds water usage as allowed under common usage, because it leads to people downstream having less water to their avail. Consequently, Maya, Malik and Mei most likely require permission for their water usage as well. 2. Urban Jose, Jasmine, and Horatio are three friends that inhabit an apartment together in a city, Flumiapolis. Following a large increase in the price of water (200 percent in one year), the three friends fail to pay their water bills. After failing to pay their third bill, the water management cuts off their access to the water supply. Jose, Jasmine and Horatio sue. In order to answer question B.IV.2., it is useful to first enter into the regulations on water supply. The supply of water is a public task assigned to the municipalities50. They are free to organize the water supply under either public law or private law. In case they opt for organization under private law, they nevertheless remain responsible for the water supply. Under German law, municipalities are obliged to provide individuals with water. Should the supply be organized publicly, the claim is direct; should the supply be organized privately, the claim is indirect, meaning that the municipality is required to influence the private suppliers so as to ensure water supply. If a contractual relation between a water supplier and a consumer exists, the relation can be of either a public law or a private law nature. Common are relations governed by private law. With regard to the dealings between water suppliers and private consumers, these contracts are subject to more intense regulation and control of their content than other contracts for reasons of consumer protection. If general terms and conditions govern the contracts, the provisions of the Ordinance on the General Provisions of Water Supply (Verordnung über Allgemeine Bedingungen für die Versorgung mit Wasser, hereafter AVBWasserV) are applicable. Pursuant § 33 AVBWasserV, the supplier may discontinue the supply if the consumer has not paid despite an overdue notice, and if the supplier has threatened to cut off supply two weeks in advance. In the event of repeated failure to pay, the supplier may terminate the contract altogether. On 50 § 50

WHG; Maurer, Allgemeines Verwaltungsrecht, 2011, § 3 para. 25.

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the other hand, the supplier is not entirely free in setting the prices for water. Price increases are conditional on factors directly attributed to the water supply (compare § 24(3) AVBWasserV). Although the supplier may increase the prices for water supply, such specification of performance ‘is binding on the other party [the consumer] only if it is equitable’ (§ 315(3) BGB). Courts can amend the payment conditions if they consider them to be non-equitable51.. Applied to Jose’s, Jasmin’s and Horatio’s situation, they most likely have a valid claim against the water supplier to reconnect them to the water supply. The increase in the price of water of 200 percent in one year seems excessive. Under this premise, the payment condition was not binding on them, and they had the right to refuse the full payment of the bill. In the legal proceedings, the court may set a more reasonable price for the water, which will then have to be paid by Jose, Jasmin and Horatio. Consequently, the claim for reconnection to the water supply is conditional upon counter-performance of paying for the water already received against the price determined by the court. The situation may have to be assessed differently if the large increase in price was justified. If, for example, a severe drought has affected the water supply in the Flumiapolis region, making new drilling necessary to ensure the supply, the payment conditions may have been equitable. In the latter case, Jose, Jasmin and Horatio have to pay the outstanding bills in their entirety before they can claim reconnection to the water supply.

V. Nature Hamid, Heba, and their two children used to spend many weekends walking and playing in one of the few green areas at the outskirts of the city where they live. The land belongs to a private owner who lives in a small house near the lake. Corporation C acquires the green area and converts it into a members only country club. Hamid and Heba sue. A local environmental group also sues claiming access to what they consider a natural commons. Under German law, it is possible for Hamid and Heba to sue Corporation C for access to the land, but it is uncertain if the court will grant the claim. Hamid and Heba may try to rely on the protection of common usage (see A.II.), as it is guaranteed under environmental law. § 59(1) Federal Act on Nature Conservation and Landscape Management (BNatSchG) allows everyone recreational access to the free landscape on roads and paths as well as on unused areas for recreational purposes52. Since Corporation C prevents Heba and Hamid from 51  On the legitimacy of review of prices, which privately organized persons charge for public services, see BGHZ 73, 114, 116; 115, 311, 316; 195, 144, 151. 52  Similar provisions can be found at the Länder level, e.g. Arts. 26 ff. Bavarian Act on Nature Preservation.

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entering the territory, the latter could argue that the former prevents them from exercising their right to common usage. In a similar case, the Federal Court of Justice decided that a claim seeking to enforce common usage can be based on an analogous application of § 1004 BGB53. This means that a person entitled to common usage may defend his or her right to common usage against interferences in a similar manner to an owner defending his or her property (on §1004 BGB, see B.I.). However, it is difficult to assess if the conditions for common usage pursuant to § 59 BNatSchG are met based on the information given in the example. The areas, which Hamid, Heba and their children want to visit, have to be part of a free landscape for them to have a case. Free landscapes, which can be part of private property, are commonly understood as bigger areas outside closed settlements54. They are characterized by their natural, untouched appearance55. According to the example, a small house is located on the site of the country club. In dealing with the case, the competent court would therefore have to assess if the house catches visitors’ eyes, and lets the area appear as developed instead of as a free landscape. Should the court conclude that the area is a free landscape, Corporation C would have to tolerate that visitors who are not members of the country club walk on the roads and paths crossing its property. However, a further obligation to tolerate access off the tracks seems unlikely, because grounds, where members of a country club can pursue their leisurely activities, are per definition not unused areas. As far as the locus standi of the local environmental group is concerned, it cannot sue Corporation C to open its premises for common usage pursuant § 59 BNatSchG. Environmental law grants rights to participation to environmental groups (compare §§ 63 et seq. BNatSchG). However, these rights mainly concern landscape conservation planning, and do not cover the right to take legal actions, which aim at enforcing common usage. Nevertheless, the environmental group may indirectly commence legal proceedings against Corporation C. The example states that it is a local environmental group seeking common usage. Thus, its members are likely to live near the area in question, and may claim – just like Hamid and Heba – that they are personally affected in their individual right to common usage if Corporation C bars them from access to the area.

53 

BGH NJW 1998, 2058. Comp. OVG Berlin NVwZ-RR 2009, 914, 915. 55  BayObLG NVwZ 1983, 503, 504. 54 

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VI. Territory Yellowriver is a small village sitting within a large and remote forest area. The government grants to Gold Masters Corporation permission to dig seeking for gold in order to develop a nearby mine. Aware of the high polluting risks of gold extraction to the nearby river, villagers erupt in protest and attempt to stop the project by legal means. Do they have any available action to protect the river – either as individuals or as an endangered community? Generally speaking, the inhabitants of the village have legal means to their avail to take action against the mining project. They may lodge an objection against the permission for gold-digging with the public authority that has granted the permission (§§ 68 et seq. VwGO). If the objection does not induce the authority to revoke the permission, they can file an action of voidance against the permission before the competent administrative court (Anfechtungs­ klage, § 42(1) Alt. 1 VwGO). They are allowed to do so because they can claim that the permission for mining potentially violates their right to health and well-being (§ 42(2) VwGO). A possible future pollution of the river cannot be excluded to lead to diseases or ailments of people living near the stream and relying on its water. In their action of voidance, the villagers might claim that the procedure for granting the mining permission has not been conducted properly, and that the obligatory standards aimed at ensuring environmental protection have not been adhered to. Under German mining law, mining companies must devise a plan for their activities (§§ 51 et seq. Federal Mining Act, Bundesberggesetz, hereafter BBergG). Performing an environmental impact assessment is mandatory in this procedure if a company wants to extract gold (§ 52(2a) BBergG in connection with § 57c BBergG, § 1 Sentence 1 Nr. 1 Ordinance on the Environmental Impact Assessment of Mining Projects, Verordnung über die Umweltverträglichkeitsprüfung bergbaulicher Vorhaben, hereafter UVP-V Bergbau). Thus, the inhabitants have to bring mistakes or omissions in the environmental impact assessment to the court’s attention, if they want to be successful. Regarding the question of whether they can appear as an endangered community in legal proceedings, it needs to be stated that the concept of an ‘endangered community’ is foreign to German law. That said, there is an option for taking collective legal action. According to the Environmental Appeals Act (Umweltrechtsbehelfegesetz, hereafter UmwRG), an accredited environmental group may also challenge the permission just like the individuals who are directly affected by the impending mining (compare § 1(1) Nr. 1 lit. b UmwRG in connection with § 1 Sentence 1 Nr. 1 UVP-V Bergbau). The group has locus standi, without having to show an infringement of its own, or its members’, rights (compare § 2 UmwRG).

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VII. Culture State funding to a non-profit local theatre is cut in response to austerity measures; as a result the theatre will be sold to a private company that wants to operate the theatre at a profit. Evgenia, Misha, and Katia are actors, and along with other concerned citizens that protest the sale and other workers, they occupy the theatre, and continue the theatre’s programming for the public through a combination of volunteer work and donations. The municipality brings suit to evict against Evgenia, Misha, Katia, and the other actors. From the information given in the example, it appears that the local theatre belongs to the municipality. Consequently, the state is owner of the theatre. This raises the issue of whether an eviction of the actors needs to be assessed according to private property law or public law. In the comparable situation of a ban on entering public facilities, courts consider whether the original reason for the visit was to conduct private or public business. The ban on entering a public theatre of a visitor, who had misbehaved on several occasions, was considered to be governed by public law56. One may infer from this decision that the request of the municipality for the actors (formerly) employed by the municipality to leave the property is also governed by public law. As a result, the case would most likely unfold as follows: The municipality would issue an administrative act against the actors telling them to leave the premise. In the event they should not obey the summons, the municipality could resort to force, especially police units, in order to clear the building. On the other hand, Evgenia, Misha, Katia, and the other actors would have the option to lodge an action of voidance (Anfechtungsklage, § 42(1) Alt. 1 VwGO) before an administrative court to challenge the administrative act. Yet, they are unlikely to succeed as there is no reason for why they have to occupy the theatre in order to perform. They could just as well enact their plays at a different site. The fact that they are active in the field of culture does not lend additional substance to their position. Variation: Assume that the actors obtain permission to stay and to use the theatre provided that they run it as a commons in the interest of culture and future generations. What legal form should they use to this purpose? I understand the phrase ‘run it as a commons’ to imply that all actors are involved in the decision making processes to the largest extent possible, and that they do not intend to run the theatre to draw profit. Under these circumstances, the actors should organize themselves in the form of a non-commercial association (§ 21 BGB). Such an association has legal personality (compare § 21 BGB), and is therefore capable of entering into legal relations. In addition, the organizational structure of an association provides members with ample opportuni56 

VG FFM NJW 1998, 1424.

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ties for participation. Non-commercial associations have two organs. The board represents the association in its external relations (§ 26 BGB); the meeting of the members appoints the board (§ 27 BGB), and decides on the general affairs of the association (§ 32(1) Sentence 1 BGB).

VIII. Climate Diletta, Flavio, and Antonella became aware of the reality of climate change when their school teacher decided to work on reading materials that were circulated at the time of the 2015 Paris Agreement on Climate Change. Although just turned 18 years old, all the three of them took the information quite seriously and started to worry about the gloomy expectations they learnt about: dangerous rise in the global temperature, water scarcity, droughts, forest fires, possible displacement of populations, etc. After the scandal involving the Popcar Corporation, concerning the manipulation of computer systems for the control of emission in cars, Diletta, Flavio, and Antonella are struck by the quite feeble sanctions inflicted to the car manufacturer – not only in their jurisdiction. For this reason, Diletta, Flavio, and Antonella decide to take action in the interest of future generations. They sue their government and the global corporation Popcar. The example is based on the diesel scandal, with which the German public and jurisdiction have been occupying themselves for some years. With respect to legal action against the government, summarizing the actual litigation before answering the hypothetical may provide some insights. Under German environmental law, which is influenced by EU Directives, the competent authorities shall draw up clean air plans which help reduce fine particulate air pollution (compare § 47 Federal Immission Control Act, Bundes­ immissionsschutzgesetz). If these plans are insufficient to improve air quality to such an extent that the limits of pollution prescribed by EU law are met, the authorities can be sued. Individuals that are directly affected in their health by the insufficient plans have standing (§ 42(2) VwGO). Furthermore, the Federal Administrative Court decided – considering case law of the European Court of Justice57– that environmental associations also have locus standi58. One environmental association, the Deutsche Umwelthilfe, has been particularly active in suing public authorities with the aim of them having to improve their clean air plans59. Up to now, courts have not imposed driving bans on diesel auto­ motives. However, should the clean air targets, which Germany has committed 57  Esp. Case C-237/07 Janecek [2008] ECLI:EU:C:2008:447 and Case C-240/09 Slovak Brown Bear [2011] ECLI:EU:C:2011:125. 58 ­BVerwGE 147, 312. 59  See e.g. VG Düsseldorf NVwZ 2017, 899.

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itself to, continue to be missed, courts may themselves issue driving bans for heavily polluted cities in the future (BVerwG, 27.02.2018 – 7 C 26.16 and 7 C 30.17. As far as Diletta, Flavio and Antonella are concerned, they could sue the authority responsible for setting up a clear air plan in their region, if the air pollution limits are exceeded, and if these transgressions affect their health. Alternatively, they could bring their cause to the attention of a formally recognized environmental association, and convince its members to sue the public authorities. Direct action against Popcar, however, is less likely to be successful. I assume that none of the persons mentioned are owners of Popcar vehicles. They would thus need to derive any claims against Popcar from a non-contractual basis. A damage claim pursuant German tort law (§ 823(1) BGB) could be an option. In this case, Diletta, Flavio or Antonella would have to prove that Popcar’s manipulated cars have had a negative impact on their health. I estimate that providing evidence for the impairment of their health, as well as showing causality between the impairment and Popcar’s manipulation, will be very difficult, if not impossible.

39

The Use of the UPICC in Order to Interpret or Supplement German Contract Law Katharina Erler/Martin Schmidt-Kessel

A. National legal interfaces for the UPICC In general, there is no explicit or specific legislation under German Law, which allows the use of the UPICC to interpret or supplement German contract law. However, even without explicit legislation and as a matter of principle, the principles under certain conditions may be used in various ways for the supplementation or interpretation of German contract law. First, the UPICC may be utilized for the interpretation of commercial contracts. Second, the UPICC may be used for the interpretation of German national provisions on contract law. Third and less relevant for the matter in consideration, the UPICC may influence the legislative process regarding the development of German national provisions. Some provisions under German contract law, indeed, refer to “trade usages” or “customs”. With regard to contract interpretation, Section 157 of the German Civil Code1 states that contracts are to be interpreted as required by good faith, taking customary practice into consideration. Especially for commercial contracts, Section 346 of the German Commercial Code2 sets forth that all acts and omissions as between mercantile traders must be interpreted as regards their significance and effect with reference to mercantile usage and customs. Moreover, Section 242 BGB provides the famous “good faith” principle, which implies that an obligor has a duty to perform according to the requirements of good faith, taking customary practice into consideration. However, whether the UPICC represent “trade usages” or “customs” as referred to in these provisions had not been yet the object of German court decisions. As for the interpretation and supplementation of German contract law, German courts focus on the domestic legal system and its interpretation me­ 1  2 

German Civil Code, Bürgerliches Gesetzbuch, in the following referred to as “BGB”. German Commerical Code, Handelsgesetzbuch, in the following referred to as “HGB”.

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Katharina Erler/Martin Schmidt-Kessel

thods. Frequent references to the UPICC in German courts’ decisions are currently not recognizable. As judicial practice is concerned, in recent practice only one case of this type is known in Germany:3 The Landgericht Frankfurt am Main (District Court) dealt with the interpretation of the nomination principles for the Olympic Games 2008 in Peking. It referred to the famous rule of interpretation contra proferrentem, which is well known under German contract law and states that ambiguous contract terms, which are proposed by one of the contract parties, shall be interpreted to the detriment of this party.4 Particularly remarkable is the fact that as a central source for reference to the contra proferrentem rule the Landgericht referred to the previous decision of the German arbitration court for sports5, which applied the contra proferrentem rule by explicitly referring to Article 4.6 of the UPICC. German literature on the contra proferrentem rule was quoted by the Landge­ richt too, but subsequently. It, therefore, appears that the UPICC were at least one of several elements from which the Landgericht drew its conclusions. The subsequent decisions of the Oberlandesgericht Frankfurt a.M.6 (Higher regional court) and of the Bundesgerichtshof7 (Federal court), however, did not draw on the UPICC. For the European stage, the opinion of Advocate General Geelhoed submitted to the Court of Justice of the European Union, however, referred to the UPICC already: in its observations on the case Tacconi v. HWS he explicitly referred to Article 2.15 of the UPICC, which introduces a pre-contractual liability where negotiations on a contract are broken off in bad faith.8 Advocate General Geelhoed, in fact, tried to supplement and fill a gap of the EU-Brussels I Convention – a predecessor of what today is known as the Brussels Ia-Regulation (EU) 1215/2012 –, which did not (as the Regulation does not) recognize a particular concept of pre-contractual liability. By using Article 2.15 of the UPICC as a starting point of analysis, Advocate General Geelhoed seemed to invoke the Principles as a source of general principles of law.9 In contrast CJEU in its

3  This picture may be derived from the UNILEX information database (“www.unilex. info”) as well as German database sources, such as “juris, Das Rechtsportal” and “beck online_Die Datenbank”. 4  Busche, ‘§ 157 BGB’, in Rebmann/Säcker (eds.), Münchener Kommentar zum Bürger­ lichen Gesetzbuch, m.n. 8. 5  German arbitration court for sports, D.f. 12/17/09, DIS-SV-SP-02/08, p. 10. 6  Oberlandesgericht Frankfurt a.M., D.f. 12/20/2013, in SpuRt 2014, 74 f. 7 Bundesgerichtshof, D.f. 10/13/2015, in BGHZ 207, 144 f. 8 CJEU, D.f. 17 September 2002, Tacconi v. HWS, C-334/00, m.n. 55. Cf. the case note by Schmidt-Kessel, Zur culpa in contrahendo im Gemeinschaftsprivatrecht, Zeitschrift für Europäisches Privatrecht 4/2004, p. 1019–1033. 9  Meyer, The Unidroit Principles and their Impact on European Private Law, Unif. L Rev. 2002–4, p. 1223.

The Use of the UPICC in Order to Interpret or Supplement

41

following decision did not integrate these observations and, indeed, did not refer to the UPICC. As for German arbitral tribunals, at least one (published) decision did already apply the UPICC, but apart from this here also no significant numbers of application do exist.10 This singular published German arbitral decision was rendered even before the final version of the UPICC was released.11 As in that case, a radical change of circumstances existing at the time of the conclusion of the contract was invoked, the arbitral tribunal referred inter alia to the draft provisions on hardship12 contained in the UPICC as an additional argument and especially to prove that the principle of hardship is accepted on an international level.13 Whereas, on international level, the by far largest portion of arbitral decisions listed in the UNILEX database are those, in which the UPICC are applied for interpretation and supplementation of domestic law (78 out of total 194 arbitral decisions).14 Furthermore, as another example of analysis of unpublished arbitral decisions shows, any type of reference to the UPICC appears in only 5,5 per cent of all proceedings for the years 2002 to 2004.15 Furthermore, only few authors of the legal literature even mention the ­UPICC as for the matter of interpretation or supplementation of German contract law. The major part of German commentaries on the German Civil Code, which play an important role for the decision-making practice in Germany, is not referring to the UPICC at all.16 As a possible reason for missing references to the UPICC, the German legal system in general is presumed to be complete, so that interpretation or supplementation by German courts would normally be drawn entirely on material within the national system.17 However, under certain circumstances German courts or arbitral tribunals may refer to the UPICC. This is, of course, only 10 

See Berlin Arbitration Court, D.f. 03/18/91, in Wirtschaftsrecht 1991, p. 161. Bonell, The UNIDROIT Principles in Practice: The Experience of the First Two Years, Unif. L Rev. 2007, 34, p. 40. 12  See Article 6.2.2 of Unidroit Principles of International Commercial Contracts 2010. 13  Maskow, Hardship and Force Majeure, 40 Am. J. Comp. L. 657 (1992), p. 666. 14  http://www.unilex.info/dynasite.cfm?dssid=2377&dsmid=13621&x=1 (Date of consultation 10/23/17). 15  Emmanuel Jolivet, Les Principes d’UNIDROIT et pratique contractuelle et d’arbitrage, Unif. L. Rev. 2008, 127, p. 129. 16  Do not mention the UCIPP at all: Busche, in Münchener Kommentar zum BGB, § 157 BGB; Wendtland, in BeckOK BGB, § 133 BGB and § 157 BGB; Hefermehl, in Soergel Bürgerliches Gesetzbuch mit Einführungsgesetz und Nebengesetzen: BGB, § 133 BGB; Wolf, in Soergel Bürgerliches Gesetzbuch mit Einführungsgesetz und Nebengesetzen: BGB, § 157 BGB; Singer, in Staudinger, BGB, § 133 BGB; Roth, in Staudinger, BGB, § 157 BGB. But see Busche, in Münchener Kommentar zum BGB, § 133 BGB, m.n. 14, quoting Article 4 of the UPICC with regard to the “falsa demonstratio non nocet” principle. 17  Michaels, Preamble I: Purposes of the PICC, in Vogenauer/Kleinheisterkamp, Commentary on the Unidroit Principles of International Commercial Contracts (PICC), m.n.111. 11 

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possible, if German courts or arbitral tribunals are generally allowed to refer to the UPICC for these purposes. Within the German legal system, it is highly disputed, whether the UPICC may be applied by courts or arbitral tribunals and which legal effects might arise from their character as international “soft law”18. This is particularly true for cases, where parties did not choose the UPICC as governing law – a situation, where it is, indeed, doubtful whether this would be accepted before German courts at all19 – and the courts themselves apply the UPICC as for interpretation and supplementation of German contract law. It is important to emphasize that the influence that the UPICC may have for the matters of interpretation and supplementation in general differs considerably depending upon whether their application is used by a German court or a German arbitral tribunal. 20 Due to the general possibility for arbitral tribunals to decide ex aequo et bono under certain circumstances, the application of soft law may, indeed, be possible for arbitral tribunals, while the situation before state courts might differ. 21 As a starting point, however, the traditional theory on trade usages, which stands behind the recognition of the UPICC under German law, justifies the effects of trade usages in two ways directly on grounds of German national contract law: on one hand, one may argue that trade usages may only take effects by including them as “implied terms” in a contract, on the other hand22, one may refer to customary (trade) law generally recognized by German courts. 23 It is of crucial importance that the legal effects of trade usages under § 346 HGB and 18  The Governing Council of UNIDROIT, in “Introduction to the 1994 Edition” p. xiv, itself stated that the UPICC are “not a binding instrument and that in consequence their acceptance will depend upon their persuasive authority”. 19  See infra, footnote 28. 20  As discussed for the German legal system by Canaris, Die Stellung der “Unidroit Principles“ und der “Principles of European Contract Law” im System der Rechtsquellen, in Basedow (ed.), Europäische Vertragsvereinheitlichung und deutsches Recht, p. 18 f.; ­Wichard, Die Anwendung der UNIDROIT Prinzipien für internationale Handelsverträge durch Schiedsgerichte und staatliche Gerichte, RabelsZ 1996, 269, p. 276; from an international perspective: Michaels, Umdenken für die UNIDROIT-Prinzipien, Vom Rechtswahlstatut zum Allgemeinen Teil des transnationalen Vertragsrechts, in RabelsZ 2009, p. 866; Bonell, Soft Law and Party Autonomy: The Case oft he Unidroit Prinicples, 51 Loy. L. Rev. 2005, 229, p. 241. 21  Herber, “Lex mercatoria” und “Principles” – gefährliche Irrlichter im internationalen Kaufrecht, in Internationales Handelsrecht, 2003, 1, p. 8. 22  Spickhoff, Internationales Handelsrecht vor Schiedsgerichten und staatlichen Ge­r ich­ ten, RabelsZ 1992, 116, p. 130; According to Oser, The Unidroit Principles of International Commercial Contracts: A Governing Law?, 2008, p. 77, this view has also internationally been adopted by Article 9(2) of the UN Convention on Contracts for the Sale of Goods (CISG). 23  Blaurock, Übernationales Recht des Internationalen Handels, in ZEuP 1993, 248, p. 258.

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customary (trade) law differ: Customary law as a source of law independently raises mandatory legal effects on its own, whereas trade usages under § 346 HGB themselves cannot obtain the status of a source of law and may not displace mandatory German law. 24 The UPICC, however, were explicitly introduced as “soft law” by its authors.25 Furthermore, it requires coincidental development of trade customs or a general strengthening of the Principles by trade practice in other ways, to consider the UPICC as elements of the customary trade law. 26 It is worth mentioning that this traditional way to determine the legal character and the effects of the UPICC on grounds of national laws is consistent with the traditional conflicts-of-laws approach. 27 It should be only mentioned as a margin note that German scholarship strongly disputes, whether parties may choose the UPICC as governing law at all. 28 Some authors, however, refer to the UPICC as international general principles or the lex merca­ toria to justify their application. 29 First, by German courts the UPICC may be applied directly as trade usages under § 346 HGB. In general, local usage under German law may both, first, serve as an argument for interpretation of contracts and, second, complement the contract by implying terms under § 346 HGB.30 Assuming German law governs the contract under conflict-of-laws rules, § 346 HGB may as a transformation rule transforming the usage into legally relevant norms31 introduce the possibility to apply the UPICC as trade usages beyond the simple use as an argument for interpretation under § 157 BGB as a special form of customary

24  Schmidt, in Münchener Kommentar zum HGB, § 346 HGB m.n. 16; Canaris, Handelsrecht, § 22, m.n. 34. 25  Bonell, Soft Law and Party Autonomy: The Case of the Unidroit Principles, 51 Loy. L. Rev. 2005, 229, p. 231; Drobnig, in Festschrift Steindorff, p. 1151; Canaris, Die Stellung der “Unidroit Principles” und der “Principles of European Contract Law” im System der Rechts­quellen, in Basedow (ed.), Europäische Vertragsvereinheitlichung und deutsches Recht, p. 15; Riesenhuber, System und Prinzipien des Europäischen Vertragsrechts, p. 47. 26  Oser, The Unidroit Principles of International Commercial Contracts: A Governing Law?, 2008, p. 80. 27  Blaurock, Übernationales Recht des Internationalen Handels, in ZEuP 1993, 248, p. 258. 28  The majority view argues clearly against such an option for the parties as far as understood in a real conflicts of law sense: see Martiny, in Münchener Kommentar zum BGB, Art. 3 Rom I-VO, m.n. 32–35. For the opposing view see McGuire, Grenzen der Rechtswahlfreiheit im Schiedsverfahrensrecht? – Über das Verhältnis zwischen der Rom-I-VO und § 1051 ZPO, Zeitschrift für Schiedsverfahren – SchiedsVZ 2011, p. 257. 29  C.f. infra sub C. 30 Bundesgerichtshof, in Neue Juristische Wochenschrift 1990, 1724: A local usage or custom which is followed for some period of time may serve as an argument in the interpretation, if the local usage concerns the branch or activity of the parties. 31  Blaurock, Übernationales Recht des Internationalen Handels, in ZEuP 1993, 248, p. 258.

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practice.32 § 346 HGB also applies to international trade usages and customs, admittedly with the limits of German mandatory law.33 It is worth mentioning that no Court decisions are reported, which refer to the UPICC as trade usages citing § 346 BGB. However, these findings do not surprise because of the particular prerequisites for pleading and proving trade usages.34 A party referring to a trade usage has to present and if necessary prove concrete facts, from which the establishment of a concrete trade usage may be drawn. The mere reference to a catalogue like the UPICC would not suffice and usually not really help in fulfilling these prerequisites. Most of German legal literature on § 346 BGB does usually not refer to the Principles.35 Second, the UPICC as trade usages may subsequently be applied within the supplementary interpretation of contracts i.e. the implication of terms in fact by the judge. The supplementary function of trade usages for contract interpretation under German law is based on both, the explicit reference to customs in § 157 BGB and the commonly known principle of good faith under § 242 BGB.36 This intervention, however, by the judge into the contract requires the determination of a gap within the contract.37 By these means, the UPICC may be applied, if there is a gap within the contractual agreement, and, therefore may even replace non-mandatory law.38 Third, German Courts may also apply the UPICC with regard to the interpretation of the law of contracts itself, i.e. provisions of the BGB. Where the German legal system contains a provision, which governs the relevant situation but is incomplete or vague, the UPICC may be used for the interpretation of that rule. Above all, this is especially true for the principle of good faith under § 242 BGB, since many rules of the UPICC may be considered as an elaboration of good faith also under national law.39 Especially where domestic law refers to 32 Bundesgerichtshof,

D.f. 12/01/1965, in Neue Juristische Wochenschrift 1966, p. 502; Schmidt, in Münchener Kommentar zum HGB, § 346 HGB, m.n. 8. 33 Bundesgerichtshof, in BGHZ 62, 71; Bundesgerichtshof, in Neue Juristische Wochenschrift 1993, 1798, especially referring to “international trade usages”, which may be directely applied without further requirements: Bundesgerichtshof, in Monatschrift für Deutsches Recht 1985, p. 50 m.n. 55. 34  See in particular Bundesgerichtshof, in ZIP – Zeitschrift für Wirtschaftsrecht 2018, p. 81 = Beck-Rechtsprechung 2017, 136793. 35 Exception, but only referring to the Principes merely in the context of lex mercatoria: Schmidt, in Münchener Kommentar zum HGB, § 346 HGB, m.n. 18. 36  Wolf, in Soergel Kommentar zum BGB, § 157 m.n. 69. 37  Busche, in Münchener Kommentar zum BGB, § 157, m.n. 38 with further references. 38  Wolf, in Soergel Kommentar zum BGB, § 157 m.n. 73. From a comparative perspective see Schmidt-Kessel, Implied Term – auf der Suche nach dem Funktionsäquivalent, in Zeitschrift für vergleichende Rechtswissenschaft 96 (1997), p. 101–155. 39  Hartkamp, The Use of the Unidroit Principles of International Commercial Contracts by National and Supranational Courts, in Unidroit Principles for International Commercial Contracts: A New Lex Mercatoria?, ICC Publication n. 490/1, 1995, 253, p. 259.

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transnational or comparative law, the UPICC may serve as interpretative material.40 However, there is no general principle of interpretation of statutes in the light of such international (or common European) principles. German contract law does not entail an explicit reference of provisions to transnational or comparative law. The UPICC, however, may also be applied without explicit reference when using the German methods of interpretation of law. In general, these methods contain four classical arguments, which suggest that a term may be interpreted: (1) literally, (2) historically, (3) systematically, and by (4) the purpose of the provision.41 Furthermore as a fifth method, which was originally referred to for the interpretation of constitutional law42 and which was transferred to the methods of contract law interpretation too, the comparative interpretation of law was discussed in academic writing but also by Judges43. Hence, the UPICC may play a role for interpretation of German contract law at least on two stages of interpretation: for interpreting vague terms by their purpose and from a comparative perspective. To deal with cases with foreign relation properly, the UPICC might serve as available means of knowledge for judges, who may apply those in the context of the interpretation of vague terms as to their purpose.44 More importantly, the idea of using comparative law for interpretation of the law may lead to an indirect application of UPICC. Where German contract law should be interpreted on a comparative basis, the UPICC may deliver material for interpretation. However, under German contract law international conformity, besides the conformity with European law where national provisions implement European law, is generally assumed to be less important.45

40 

Michaels, Preamble I: Purposes of the PICC, in Vogenauer/Kleinheisterkamp, Commentary on the Unidroit Principles of International Commercial Contracts (PICC), m.n. 114. 41  Lüderitz, Auslegung von Rechtsgeschäften, p. 10. For a critical review see Schmidt-­ Kessel and MaNamee, European Contract Law, in Riesenhuber (ed.), European Legal Methodology (2017), p. 405–434. 42  Häberle, Grundrechtsgeltung und Grundrechtsinterpretation im Verfassungsstaat, Juristenzeitung 1989, 913, p. 916. 43  See e.g. the former President of the Bundesgerichtshof, Odersky, Harmonisierende Auslegung und europäische Rechtskultur, in Zeitschrift für Europäisches Privatrecht, 1994, p. 1–4. 44  Wichard, Die Anwendung der Unidroit Prinzipien für internationale Handelsverträge durch Schiedsgerichte und staatliche Gerichte, in RabelsZ 1996, 269, p. 299 with reference to Sonnenberger, in Münchener Kommentar zum BGB, Einleitung IPR m.n. 442 (1993); see also Michaels, Preamble I: Purposes of the PICC, in Vogenauer/Kleinheisterkamp, Commentary on the Unidroit Principles of International Commercial Contracts (PICC), m.n. 117. 45  That is true for many jurisdictions: Michaels, Preamble I: Purposes of the PICC, in Vogenauer/Kleinheisterkamp, Commentary on the Unidroit Principles of International Commercial Contracts (PICC), m.n. 118.

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It this respect, it is worth mentioning that the UPICC result from the socalled analyzing comparison of laws, which tries not to just represent the lowest common denominator, but to improve the law by adopting what is thought to be the best solution.46 This raises the doubts, whether this source of the ­UPICC is well fitted for the purposes of comparative law interpretation of domestic norms. However, until now, there is no decision of German Courts existent, which applies the UPICC that way. As already mentioned above, the situation differs as to the use of the UPICC before German arbitral tribunals. Arbitral tribunals are not necessarily bound to apply a particular domestic law, but may also base their decision on international principles.47 For the international stage, Article 28(1) of the 2006 UNCITRAL Model Law states that the “arbitral tribunal shall decide the dispute in accordance with […] rules of law”, which introduces the opportunity to apply also rules of law with supranational or international character.48 Furthermore, Article 21 of the ICC rules of Arbitrations also refers to “rules of law” rather than domestic laws. It needs to be emphasized, that arbitral tribunals under Article 21(2) are especially encouraged to take into account any relevant trade ­usages. Moreover, arbitral tribunals are allowed to decide ex aequo et bono, which gives them more flexibility to apply the UPICC. From a German perspective, German arbitral tribunals are less flexible than those on an international level. Article 23 of the German DIS arbitration rules of 1998 contains in its paragraph 1 and 2 explicit conflict-of-law rules, which restricts the latitude of flexibility of the arbitral tribunals. As an exception, the tribunal may decide ex aequo et bono (paragraph 3). However, in all cases, the tribunals according to paragraph 4 shall take in account the usages of trade applicable to the transaction. For this reason, without the parties choosing the governing law it is necessary for German arbitral tribunals to justify the application of the UPICC on grounds of German contract law.49 Therefore, the situation before German arbitral tribunals with regard to the material reasoning of the application of the UPICC does not differ.50 46  Basedow, Uniform Law Conventions and the Unidroit Principles, Unif. L. Rev. 2000, 129, p. 130; Grundmann, Law merchant als lex lata Communitatis – inbesondere die Unidroit Principles, in Dierichsen/Fischer/Medicus/Pirrung/Wagenitz, Festschrift Rolland, 145, p. 156. 47  Bonell, Soft Law and Party Autonomy: The Case of the Unidroit Prinicples, 51 Loy. L. Rev. 2005, 229, p. 241. 48  Brödermann, Die erweiterten Unidroit Principles 2004, in Recht der internationalen Wirtschaft, 2004, 721, p. 726. This possibility was also enacted in many domestic arbitration laws worldwide already in 2004: Bonell, Soft Law and Party Autonomy: The Case of the Unidroit Prinicples, 51 Loy. L. Rev. 2005, 229, p. 241 with further references. 49  Brödermann, Die erweiterten Unidroit Principles 2004, in Recht der internationalen Wirtschaft, 2004, 721, p. 727. 50  See above. However, the application of conflict-of-law issues, in fact, might differ before arbitral tribunals, see the conflict-of-law rule in § 1051(1) and (3) of the German Civil

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Finally, the UPICC may play a role as model for German legislators. In fact, the UPICC together with the Uniform Nations Convention on Contracts for the International Sale of Goods (CISG) played an important role as to the reform of the law of obligations of the German Civil Code (BGB) in 2002.51

B. UPICC as evidence of a general consensus on German law There is no decision of a German Court or arbitral tribunal which used the ­UPICC as evidence of a general consensus on the law applicable for contracts. So far, arguing with a general consensus on common principles apart from those dealt with in the civil law codification (like the principle of good face in § 242 BGB) does not form part of the German tradition of contract law. Lawyers usually seek for a basis within the codification like they do with the so-called fault principle in § 276 BGB. However, as already mentioned above, the UPICC through trade usages under § 346 HGB may be applied for the interpretation and supplementation of vague terms and provisions of German contract law.

C. Other cases of use of the UPICC German courts and arbitral tribunals, apart from two cases of little relevance52, did not use the UPICC for the purpose of interpreting or supplementing German contract law. However, German courts and arbitral tribunals did not refer to the UPICC as a general body of contracts law or in combination with the UN Convention on Contracts for the International Sale of Goods (“CISG”) or as the so called lex mercatoria either. The same holds true for other sets of principles like the Principles of European Contract Law or the Draft Common Frame of Reference. Although courts or arbitral tribunals until now did not make use of it, German legal scholarship discusses the possibility to apply the UPICC as general principles of law or lex mercatoria extensively.53 Some scholars are taking the Procedure Code and McGuire, Grenzen der Rechtswahlfreiheit im Schiedsverfahrens­recht? Über das Verhältnis der Rom I VO und § 1051 ZPO, Zeitschrift für Schiedsverfahren – SchiedsVZ 2011, 257. 51  Schlechtriem, 10 Jahre CISG – Der Einfluss des UN-Kaufrechts auf die Entwicklung des deutschen und internationalen Kaufrechts, in Internationales Handelsrecht 2001, p. 12 f.; from an international perspective: Michaels, The Unidroit Principles as global background law, Unif. L. Rev. 2014, 643, p. 656. 52  Cf. supra sub A. 53  Cf. supra sub A.

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view, that the UPICC may be applied as general principles, which are effective or, at least, compatible with the law in the relevant states.54 This approach sometimes relies on Article 38(1) of the Statute of the International Court of Justice, which also poses general principles of law recognized by civilized nations, and is based on the argument, that by using the methods of comparative law the solutions of most of the important legal systems will be detected and applied.55 Some authors advocate, indeed, that independently from any national law an international commerce law has been developed.56 Courts may under this view, hence, not rely on any national law provisions or rules to apply the UPICC, but may use the UPICC directly as part of the lex mercatoria. Arguing against the application of the UPICC, some authors emphasize that soft law does not comply with legal and legislative minimum requirements and courts and arbitral tribunals would be overstrained by comparing law systems and thereby detecting general principles.57 Furthermore, legal academics stress that the UPICC might be applied by German courts and arbitral tribunals for the interpretation or supplementation of the UN Convention on Contracts for the International Sale of Goods (“CISG”). CISG itself is regarded as being domestic58 and object to German court/arbitral decisions autonomously as an international treaty (Article 1(1) let. a) or through conflict-of-law rules as national German law (Article 1(1) let. b).59 There is a broad discussion in German academic writing as to, whether Article 7 CISG could serve as a legal basis for the application of the Principles. Article 7 states that when interpreting CISG regard is to be had to its international and uniform character and the observance of good faith in international trade. Furthermore, Article 7 refers to general principles, on which CISG is based on, for issues that are not expressly settled in it. In this context, German academics discuss not only whether the UPICC are such “general principles”, but also whether CISG is “based on them”. Some authors emphasize that the UPICC were introduced after CISG and, therefore, cannot be the basis of 54  Langen, Vom internationalen Privatrecht zum Transnationalen Recht, Neue juristische Wochenschrift 1969, 358, p. 360; Blaurock, Übernationales Recht des Internationalen Handels, in ZEuP 1993, 248, p. 260 m.w.N. 55  Blaurock, Übernationales Recht des Internationalen Handels, in ZEuP 1993, 248, p. 261. 56  Schmidt, in Münchener Kommentar zum HGB, § 346 HGB, m.n. 16; Hoffmann, “Lex mercatoria” vor internationalen Schiedsgerichten, IPrax 1984, p. 106; Rietlewski, Die Lex mercatoria in der schiedsrichterlichen Praxis, SchiedsVZ 2007, p. 131 with further references. 57  Wichard, Die Anwendung der Unidroit Prinzipien für internationale Handelsverträge durch Schiedsgerichte und staatliche Gerichte, in RabelsZ 1996, 269, p. 285. 58  Zeller, The Unidroit Principles of Contract Law; Is there Room for their Inclusion into Domestic Contracts, in Journal of Law and Commerce 2006, 115, p. 123. 59  Brödermann, Die erweiterten Unidroit Principles 2004, in Recht der internationalen Wirtschaft, 2004, 721, p. 728.

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CISG.60 Many scholars argue that the UPICC pursue different objectives than CISG and may not be consulted as general principles for neither the interpretation nor supplementation of CISG.61 However, Article 9 of CISG requires the supplementary application of trade usages and practices and, especially, unless otherwise agreed usages of international trade.62 Therefore, the UPICC might be applied for the interpretation and supplementation of CISG through the good faith principle, as general principles or international trade usages.63 On the other hand, where contract law provisions of the German codification are analyzed within larger commentaries like the most famous Staudinger-Commentary, many authors refer to the well-known sets of principles of contract law like the UPICC as part of their comparative introduction to the respective parts of their commentary. So far, these references have neither been criticized nor significantly influenced the discussion within German law. However, the UPICC share this fate with all considerations based on comparative law.

D. The rules of UPICC and their counterparts in German contract law German law provides for a concrete counterpart for the large majority of the provisions of the UPICC. German participants in the several groups, which drafted the principles and influenced the emergence of the rules in the inter60  Drobnig, Substantive Validity in the Unidroit Principles for International Commercial Contracts, Am. Journ. Comp. Law. 1992, 40, p. 635. 61  Michaels, RabelsZ 1998, 580, p. 606; Herber, “Lex mercatoria” und “Principles” – gefährliche Irrlichter im internationalen Kaufrecht, in Internationales Handelsrecht, 2003, 1, p. 8; Drobnig, Substantive Validity in the Unidroit Principles for International Commercial Contracts, Am. Journ. Comp. Law. 1992, 40, p. 635; with doubts: Ferrari, Das Verhältnis zwischen den Unidroit Grundsätzen und den allgemeinen Grundsätzen internationaler Einheitsprivatrechtskonventionen, in Juristenzeitung 1998, 11, p. 16; for the application of the UPICC: Basedow, Die Unidroit Prinzipien der Internationalen Handelsverträge und die Übereinkommen des einheitlichen Privatrechts, in Basedow/Hopt/Kötz (eds.), Festschrift Drobnig, 1998, 19, p. 25; Magnus, Allgemeine Grundsätze im UN-Kaufrecht, RabelsZ 1959, 469, p. 492; Bonell, The Unidroit principles in practice: The Experience oft he First Two Years, Uniform L. Rev. 1997, 30, p. 37; Brödermann, Die erweiterten Unidroit Principles 2004, Recht der Internationalen Wirtschaft 2004, 721, p. 729; Bonell, Symposium Paper: The Unidroit Principles of International Commercial Contracts: Achievements in practoce and Prospects fort he Future, 17 Austl. Int’L.J. 117, 2010, p. 181. 62  According to Ferrari, Das Verhältnis zwischen den Unidroit Grundsätzen und den allgemeinen Grundsätzen internationaler Einheitsprivatrechtskonventionen, in Juristenzeitung 1998, 11, p. 16, Article 9 serves as a conflic-of-laws rule rather than introducing the possibility to apply the UPICC in an objective way. 63  Brödermann, Die erweiterten Unidroit Principles 2004, Recht der Internationalen Wirtschaft 2004, 721, p. 729.

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national discussion, might have played a significant role in establishing rules answering most policy questions dealt with in the German codification also within the principles.

I. Negotiations in bad faith The German counterpart to Article 2.1.15 (Negotiations in bad faith), § 311(2) BGB, establishes a pre-contractual relationship between the parties negotiating including an obligation to negotiate in good faith, breach of which leads to a quasi-contractual liability for culpa in contrahendo. The text of the German provision in § 311(2) BGB reads as follows: “(2) An obligation with duties under section 241 (2) also comes into existence by 1. the commencement of contract negotiations 2. the initiation of a contract where one party, with regard to a potential contractual relationship, gives the other party the possibility of affecting his rights, legal interests and other interests, or entrusts these to him, or 3. similar business contacts.” 64

In general, the parties are also free to cancel the negotiations under German law. However, the party, which cancels the negotiations may be liable for the expenses of the other party, if the closing of the contract was deemed to be save and the other party canceled the negotiations without any valid reason.65 This rule also follows from the general principle of good faith under § 242 BGB. Loss, which was incurred by reliying on the negotiations has to be compensated. However, as a difference to the UPICC under German law there is no explicit example of bad faith as in Article 2.1.15(3). Therefore, German law remains open for different cases of bad faith.

II. Interpretation and content of the contract As German law neither did take over nor develop strong rules on interpretation from previous codifications or the different instances of reception of the Roman law but mainly formulates some broader principles dealt with mainly by the first instance judges, there is no surprise, that court practice and legal writing mirrors nearly the whole range of the rules on interpretation of the ­U PICC. §§ 133, 157 BGB – as combined and understood by courts and aca-

64  The translation (as all the translations following) is provided by the Langenscheidt Translation Service (regularly updated by Neil Mussett) and published by juris GmbH, Saarbrücken, on the official web page of the German Federal Ministry of Justice. 65  For the long tradition in case law starting with the Reichsgericht see i.a. RGZ 104, 265 (267); RGZ 151, 357 (359); BGHZ 76, 343 (349); BGHZ 92, 164 (175 f.).

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demic ­writers66 – cover both, the interpretation of the statements and conduct (Article 4.2 (Interpretation of statements and other conduct)) and the interpretation of the Contract concluded (Article 4.1 (Intention of the parties)). “§ 133: Interpretation of a declaration of intent When a declaration of intent is interpreted, it is necessary to ascertain the true intention rather than adhering to the literal meaning of the declaration. § 157. Interpretation of contracts Contracts are to be interpreted as required by good faith, taking customary practice into consideration.”

Courts and legal writers also derive from the combination of both provisions the two layers of interpretation which – in theory at least – start with the intention of the party (statement) or parties (contract) before opening an objective approach referring to reasonable persons “in the shoes” of the parties.67 § 133 BGB expressly refers to the true intention rather than adhering to the literal meaning of the declaration. The interpretation of the declaration of intent needs to take into account the protection of legal transactions in general. For this reason, the interpretation as taken from § 157 BGB may not only depend on the intention of one party, but on the horizon and the possible understanding of the recipient. The range of relevant circumstances under §§ 133, 157 BGB is not a closed list and encompasses all the cases expressly named in Article 4.3 (Relevant circumstances). The wording of a clause may be overcome by the content of the whole contract and the behaviour of the parties while and after concluding the contract.68 Furthermore German law does not exclude material, which is not found in the four corners of the contractual deed. There is a rebuttable presumption that the deed containing the contract mirrors the contract completely and correctly (Vermutung der Vollständigkeit und Richtigkeit einer Urkunde).69 However, the history of the conclusion of the contract may also be relied on by the judge. Therefore, this presumption may be rebutted by reference to proven circumstances in the time of conclusion of the contract.70 Therefore, Article 4.3 only proposes more explicit examples of circumstances, to which one might refer. There are no explicit counterparts in the German codification for Article 4.4 (Reference to contract or statement as a whole) and Article 4.5 (All terms to be given effect). However, both principles of interpretation are well accepted for German law: First, courts and legal writing have developed a general prin66 See Wolf, in Soergel Kommentar zum BGB, § 133 BGB, m.n. 15 and Busche, in Münchener Kommentar zum BGB, § 133 BGB, m.n. 12 with further references. 67  Busche, in Münchener Kommentar zum BGB, § 133 BGB, m.n. 12. 68  Busche, in Münchener Kommentar zum BGB, § 133 BGB, m.n. 55. 69 Bundesgerichtshof, 07.05.2002, in Neue Juristische Wochenschrift 2002, p. 3164. 70  Wolf, in Soergel Kommentar BGB, § 157 BGB, m.n. 36.

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ciple, that no interpretation of isolated terms will take place but rather an interpretation within the whole context of the contract.71 There is also no general hier­archy among contract terms under German law, if there is no explicit established hierarchy by the parties.72 This general principle under German law seems to be consistent with Article 4.4 of the UPICC. Similarly, it is important for contract interpretation under German law not to neglect terms of the contract, when establishing its meaning in court. The appeal to the Bundesgerichtshof is open, where appellate courts or courts of first instance do not take all the contract clauses into account when interpreting the contract. On the other hand, judges are not prevented to find as a result of contract interpretation, that clauses of contract are superfluous and without any legal effect in the light of the contract as a whole. As from Article 2.1.20 (Surprising terms) it is clear from § 305c(1) German Civil Code that surprising terms are not only interpreted to the detriment of the party which introduced them73 but that those clauses are forbidden by law, when used in standard terms and conditions: “§ 305c BGB Surprising and ambiguous clauses (1) Provisions in standard business terms which in the circumstances, in particular with regard to the outward appearance of the contract, are so unusual that the other party to the contract with the user need not expect to encounter them, do not form part of the contract. (2) Any doubts in the interpretation of standard business terms are resolved against the user.”

Such clauses might also contravene the general clause on unfair contract terms in § 307 BGB. In so far, no great differences are to be noticed. However, one may recognize that German law introduces explicit objective standards of reference for determining the surprising character of terms like “circumstances”, “outward appearance of the contract” and “so unusual”.

III. Currency of payment The German Civil code also contains a counterpart to Article 6.1.9 (Currency of payment), which reads:

71 Bundesgerichtshof, 10.22.1990, in Neue Juristische Wochenschrift-Rechtsprechungsreport 1990, p. 613. 72  Schmidt-Kessel, in Schlechtriem/Schwenzer (eds.), Kommentar zum Einheitlichen UN-Kaufrecht – Das Übereinkommen der Vereinten Nationen über Verträge über den internationalen Warenkauf (CISG), Article 8 CISG, m.n. 30. 73  For the German version of the principle of an interpretation contra proferentem see § 305c(2) German Civil Code.

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“§ 244 BGB Foreign currency obligation (1) If a money debt stated in a currency other than the euro is payable within the country, then payment may be made in euros unless payment in the other currency has been expressly agreed. (2) Conversion occurs at the rate of exchange in effect in the place of payment at the time of payment.”

Deviating from Article 6.1.9(1) UPICC the German rule only privileges the German currency, i.e. the Euro, and does not apply for other currencies and countries.74 The introduction of the Euro led to a broader territorial scope of application, which now covers all territories where the Euro is established as ­legal tender.75 Whether the provision presupposes German law being lex contractus is much debated. The rules on conversion rates are more in parallel. Article 6.1.9(4) UPICC is usually covered by way of damages.

IV. Rights to terminate for breach German law also provides for counterparts to the general right to terminate for breach under Article 7.3.1 (Right to terminate the contract). The respective rules in the General law of obligations read: “§ 314: Termination, for a compelling reason, of contracts for the performance of a continuing obligation (1) Each party may terminate a contract for the performance of a continuing obligation for a compelling reason without a notice period. There is a compelling reason if the terminating party, taking into account all the circumstances of the specific case and weighing the interests of both parties, cannot reasonably be expected to continue the contractual relationship until the agreed end or until the expiry of a notice period. (2) If the compelling reason consists in the breach of a duty under the contract, the contract may be terminated only after the expiry without result of a period specified for relief or after a warning notice without result. Section 323 (2) applies with the necessary modifications. (3) The person entitled may give notice only within a reasonable period after obtaining knowledge of the reason for termination. (4) The right to demand damages is not excluded by the termination. § 323: Revocation for nonperformance or for performance not in conformity with the contract (1) If, in the case of a reciprocal contract, the obligor does not render an act of performance which is due, or does not render it in conformity with the contract, then the obligee may revoke the contract, if he has specified, without result, an additional period for performance or cure. 74  Schmidt-Kessel/Kramme, in Prütting/Wegen/Weinreich, BGB Kommentar, § 244, m.n. 14. 75  Schmidt-Kessel/Kramme, in Prütting/Wegen/Weinreich, BGB Kommentar, § 244, m.n. 16.

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(2) The specification of a period of time can be dispensed with if 1. the obligor seriously and definitively refuses performance, 2. the obligor does not render performance by a date specified in the contract or within a specific period and the obligee, in the contract, has made the continuation of his interest in performance subject to performance being rendered in good time, or 3. there are special circumstances which, when the interests of both parties are weighed, justify immediate revocation. (3) If the nature of the breach of duty is such that setting a period of time is out of the question, a warning notice is given instead. (4) The obligee may revoke the contract before performance is due if it is obvious that the requirements for revocation will be met. (5) If the obligor has performed in part, the obligee may revoke the whole contract only if he has no interest in part performance. If the obligor has not performed in conformity with the contract, the obligee may not revoke the contract if the breach of duty is trivial. (6) Revocation is excluded if the obligee is solely or very predominantly responsible for the circumstance that would entitle him to revoke the contract or if the circumstance for which the obligor is not responsible occurs at a time when the obligee is in default of acceptance. § 324: Revocation for breach of a duty under section 241(2) If the obligor, in the case of a reciprocal contract, breaches a duty under section 241 (2), the obligee may revoke the contract if he can no longer reasonably be expected to uphold the contract. § 326: Release from consideration and revocation where the duty of performance is excluded (1) – (4) omitted (5) If, under section 275 (1) to (3), the obligor does not have to perform, the obligee may revoke; section 323 applies with the necessary modifications to the revocation, subject to the proviso that it is not necessary to specify a period of time.”

The general rule may be found in § 323 BGB to which §§ 324, 326(5) BGB add two special cases. The Rücktritt dealt with in these provisions is functionally of retroactive effect (§§ 346–348 BGB) similar to the consequences of termination under Article 7.3.6 UPICC without nullifying the contract76, which might be the reason for the somewhat uneasy official translation of Rücktritt by the word revocation. It is important to stress, that dogmatically under §§ 323, 324, 326(5) BGB the contract as such remains intact but changes the “direction” of performances in to a restitutionary relationship. The prerequisites of Rücktritt are mainly enshrined in the classical German Nachfrist-Lösung in § 323(1) BGB making time of the essence, from which §§ 323(2), 324, 326(5) BGB provide for some exceptions which come close to the list in Article 7.3.1(2) UPICC. These rules are slightly modified by some rules for specific contracts like § 440 BGB (lack of quality in sales contracts) and § 635 BGB (lack of quality in certain service contracts, i.a. construction contracts). 76  This would have led to restitution under the rules of unjustified enrichment (§§ 812– 822 BGB) instead of the “contractual restitution” under §§ 346–348 BGB.

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For long term relationships § 314 BGB provides for a separate remedy for termination, the Kündigung, which in its consequences comes very close to the restitutionary consequences dealt with in Article 7.3.7. UPICC. The provision not only applies to cases of breach of contract but to all cases of serious reasons to bring the contract to an end. It is flanked by several similar provisions for special contracts, e.g. § 543 BGB (lease and hosing) and §§ 626, 648a BGB (services). Termination for breach under § 314 BGB also presupposes a Nachfrist, § 314(2) BGB, which is not necessary where one of the cases of § 323(2) BGB applies or the breach leads to another serious reason to end the contractual relationship. The Kündigung produces no restitutionary effects apart from counterbalancing advance performances not provided with consideration before the contract ends.

V. Interest The German counterparts to Article 7.4.9 (Interest for failure to pay money) and Article 7.4.10 (Interest on damages) form part of the general regime of delayed (contractual and non-contractual) performance in §§ 286–289 BGB and the general rule on interest in commercial contracts in § 353 of the German Commercial Code (HGB) and read: “§ 247: Basic rate of interest (1) The basic rate of interest is 3.62 %. It changes on 1 January and 1 July each year by the percentage points by which the reference rate has risen or fallen since the last change in the basic rate of interest. The reference rate is the rate of interest for the most recent main refinancing operation of the European Central Bank before the first calendar day of the relevant six-month period. (2) The Deutsche Bundesbank announces the effective basic rate of interest in the Federal Gazette without undue delay after the dates referred to in subsection (1) sentence 2 above. § 286: Default of the obligor (1) If the obligor, following a warning notice from the obligee that is made after performance is due, fails to perform, he is in default as a result of the warning notice. Bringing an action for performance and serving a demand for payment in summary debt proceedings for recovery of debt have the same effect as a warning notice. (2) There is no need for a warning notice if 1. a period of time according to the calendar has been specified, 2. performance must be preceded by an event and a reasonable period of time for performance has been specified in such a way that it can be calculated, starting from the event, according to the calendar, 3. the obligor seriously and definitively refuses performance, 4. for special reasons, weighing the interests of both parties, the immediate commencement of default is justified. (3) The obligor of a claim for payment is in default at the latest if he does not perform within thirty days after the due date and receipt of an invoice or equivalent statement of payment; this applies to an obligor who is a consumer only if these consequences are

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specifically referred to in the invoice or statement of payment. If the time at which the invoice or payment statement is received by the obligor is uncertain, an obligor who is not a consumer is in default at the latest thirty days after the due date and receipt of the consideration. (4) The obligor is not in default for as long as performance is not made as the result of a circumstance for which he is not responsible. § 288: Default interest (1) Any money debt must bear interest during the time of default. The default rate of interest per year is five percentage points above the basic rate of interest. (2) In the case of legal transactions to which a consumer is not a party the rate of interest for claims for payment is eight percentage points above the basic rate of interest. (3) The obligee may demand higher interest on a different legal basis. (4) The assertion of further damage is not excluded. § 289: Prohibition of compound interest Default interest is not to be paid on interest. The right of the obligee to compensation for damage caused by the default remains unaffected.” “§ 353: Merchants may claim interest from each other on claims under bilateral commercial contracts from the day on which the claim is due. Interest on interest may not be claimed under this article.” 77

German law differentiates between interest on the basis of a payment due and interest for delayed payment. As a rule, interest for failure to pay money under German contract presupposes a qualified delay as defined by § 286 BGB. For most commercial contracts78 the duty to pay interest only depends on the money being due only, cf. § 353 HGB. In both cases interest does not prevent the creditor from claiming damages for delay, see § 288(4) BGB. Qualified delay under § 286(1) BGB does not only presuppose a payment due but usually also a specified demand for performance, the so-called Mahnung translated with “warning notice” by the official translation of the German Civil Code. Moreover, § 286(4) BGB states a fault requirement also for interest organized as a no-fault defense to be pleaded and proven by the debtor. However, with monetary obligations German courts are very reluctant to accept a nofault defense and has established a significantly high threshold for reasonable care in the sense of § 276(2) BGB.79 For B2B-contracts this standard has to be concretized with a view to the standards of responsibility under Art. 3(1) lit. b and Art. 4(1) lit. b Late-Payment-Directive 2011/7/EU which originally had 77 

Our Translation. HGB presupposes merchants in the formal sense of §§ 1–6 HGB (usually obliged to register under § 14 HGB), which follows a more traditional, 19th century approach of commodity trade and does by far not apply to all professionals. 79 See Schmidt-Kessel/Kramme, in Prütting/Wegen/Weinreich, BGB Kommentar, § 286, m.n. 24. 78 § 355

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been built on the famous force majeure defense in Art. 79 CISG. Some German authors argue that errors of law would not excuse the debtor in those cases.80 Important exceptions to the requirement of Mahnung are dealt with in §§ 286(2) and (3) BGB. First exception in § 286(2) no. 1 BGB contains the classical rule of dies interpellat pro homine: Where the time for performance within the contract is determined by an exact date, Mahnung is not needed. The second exception (§ 286(2) no. 2 BGB) refers to the case that time for performance depends on a certain event, e.g. the declaration to bring the contract to an end. However, German academics discuss whether the qualified delay is established with the event itself or only after a reasonable period starting with the event. A serious refusal to perform under § 286(2) no. 3 BGB also replaces the Mahnung requirement because such specified demand would be a superfluous formality only. Based on the Late-Payment-Directive 2011/7/EU § 286(3) BGB establishes a fourth particular exception to the Mahnung-requirement, which mainly applies to commercial contracts: The delay starts to be qualified (and interest becomes due without Mahnung) if a price due, i.e. a monetary counter performance, has not been paid within thirty days after invoice. 81 Finally, § 286(2) no. 4 BGB provides of a general clause as the most general exception to the Mahnung requirement; it applies in case of particular reasons, which, weighing the interests of both parties, justify the immediate qualified default. The standard default interest rate under German law is a flexible one referring to certain European Central Bank interest rates as defined in § 247 BGB, the so-called basic rate, which for the first half of 2018 is fixed to -0,88 %. For interest for qualified delay of payment in B2B contracts § 288(2) BGB adds a span of 8 % to the basic rate. For the first half of 2018 a debtor in qualified delay has to pay a rate of 7.12 %. The interest rate due under § 353 HGB is fixed to 5 %, see § 352(2) HGB. In case of conflict of § 288 BGB and § 353 HGB the higher rate prevails. Therefore, the particular rule for interest under a commercial contract is not of a significant practical relevance for the time being. §§ 286, 288 BGB also apply to damages claims and, therefore, also form the counterpart to Article 7.4.10 (Interest on damages). § 353 HGB as well applies to claims for damages.

80 See Schmidt-Kessel/Kramme, in Prütting/Wegen/Weinreich, BGB Kommentar, § 286, m.n. 25. 81  When the time of the invoice reaching the price debtor remains uncertain in court, the 30 days period starts when the performance the price has to be paid for has been rendered, see 2nd sentence of § 286(3) BGB.

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E. Linguistic discrepancies as an exceptional gap unlikely to be filled by UPICC German law does not provide for an explicit rule similar to Article 4.7 (Linguistic discrepancies). Apart from § 184 GVG, the act generally organizing the courts and courts structure for civil and criminal matters, provisions as to language are only exceptionally found in German law.82 There is only little case law and academic writing on language risks altogether83 where publications do not deal with international contracts.84 However, filling this gap by referring to Article 4.7 (Linguistic discrepancies) is very unlikely: A rule providing the general preference of the drafting language would contravene the very open German approach to contract interpretation.

F. Courts using other parts of UPICC So far there have been only two published decisions in Germany, which refer to the UPICC, one of a German local court and one of a German arbitral tribunal.85 As mentioned above, in the first decision the Landgericht Frankfurt am Main (District Court) dealt with the interpretation of the nomination principles for the Olympia Games and referred to the contra proferrentem rule, which is well known under German contract law and states that ambiguous contract terms, which are proposed by one of the contract parties, shall be interpreted to the detriment of this party.86 By reference to the previous (and unpublished) decision of the German arbitration court for sports87, which applied the contra proferrentem rule quoted Article 4.6 of the UPICC in an indirect manner. In the second decision the Berlin arbitral tribunal referred in its decision inter alia to the draft provisions on hardship88 contained in the UPICC as an 82  The provisions, which could found usually transpose EU Directives into German law, like §§ 356a(3) and (4), 483, 484 (3) BGB or articles 241, 242 § 2, 246b § 1 I Nr. 17, 246c Nr. 4, 248 § 2 EGBGB. Bus see § 2250(3) BGB for particular types of wills. 83  See i.a. Bundesarbeitsgericht, in Neue Zeitschrift für Arbeitsrecht 2014, 1076 (on the conclusion of an employment contract with an employee of a foreign mother tongue). Moreover Maier-Reimer, Vertragssprache und Sprache des anwendbaren Rechts, in Neue Juristische Wochenschrift 2010, p. 2545 and Armbrüster, Fremdsprachen in Gerichtsverfahren, in Neue Juristische Wochenschrift 2011, p. 814. 84  See e.g. Schmidt-Kessel, in Schlechtriem/Schwenzer, CISG-Commentary, Art. 8, m.n. 41–43 (arguing for a rule like article 4.7. mainly on the basis of the PUICC). 85  Cf. supra sub A. 86  Busche, ‘§ 157 BGB’, in Rebmann/Säcker (eds.), Münchener Kommentar zum Bürgerlichen Gesetzbuch, m.n. 8. 87  German arbitration court for sports, D.f. 17.12.2009, DIS-SV-SP-02/08, p. 10. 88  See Article 6.2.2 of Unidroit Principles of International Commercial Contracts 2010.

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additional argument and especially to prove that the principle of hardship is accepted on an international level.89

G. Reasons for the limited relevance of UPICC in German court practice It has become clear from the previous sections of this national report, that the UPICC are of no significant importance in German court practice. This is astonishing to a certain extent because the UPICC are cited by several major commentaries to the BGB and are therefore – compared to other international instruments – rather well-known in Germany. A first important reason for the reluctant position of German courts in applying the UPICC follows from private international rules. Art. 3(1) Rome I-Regulation regulating the choice of law for contracts only allows to choose a national law in the sense of a state-based law. Following the nearly unanimous view of European and in particular legal academics a non-national instrument may not be opted for by the parties. A “choice of law” for the UPICC would be treated like a simple referral to standard contract terms. UPICC would then be object to the German rules of unfair contract terms, which also apply to B2B-contract. The uncertainty, which follows from this fairness control, makes choice of UPICC not very attractive. The Unidroit Principles do – at least usually but probably always – not comply with the strict requirements to the applicability of international usages in commerce as established by § 346 HGB. So far, nor rule of the UPICC had come close as being plead or proven as being or mirroring international contract practice in general or at least of a certain branch. Finally, German general contract law turns out to provide for a comprehensive and also conclusive system, which usually is developed autonomously. Apart from Article 4.7 (Linguistic discrepancies) German law provides for counterpart rules to all articles of the UPICC considered here. In the only gap case found here for German law the application of the UPICC would contravene general principles of contract interpretation under §§ 133, 157 BGB. Without a gap German legal methodology would be open theoretically to have the interpretation of provisions like in the Civil Code and the Commercial Code inspired by the models established by the Unidroit Principles. However, such openness so far has not been taken over in court practice.

89  Berlin Arbitration Court, D.f. 03/18/91, in Wirtschaftsrecht 1991, p. 161; Maskow, Hardship and Force Majeure, 40 Am. J. Comp. L. 657 (1992), p. 666.

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Language in Law and in German Universities’ Legal Education Stefan Grundmann

A. Survey This contribution is about language in law and legal education and points to the fact that reduction to one global language carries the risk to impoverish law, namely its pluralism that conveys as well the idea and the essence of pluralism in societal models. The contribution also explains the steps taken in Germany (as well as in Europe) to counter this trend. This is, after all, a country report on plurality of languages in German universities’ legal education (but not limited to this). Über die Schönheit von Sprache kann man streiten. Vielleicht sind die Sonette und Dramen Shakespeares in der Tat noch schöner als diejenigen Goethes, wie mein bester Freund mich seit Jugendtagen zu überzeugen sucht (aber auch als die Balladen und Dramen Schillers?). Jedenfalls jedoch ist Mehrsprachigkeit so wichtig für die Vielfältigkeit von Geist, einen echten Austausch – und auch Streit – von Ideen, damit nicht zuletzt auch Sozialmodellen und ihrer Sinnhaftigkeit, dass der Beitrag in den konzeptionellen Teilen auch in Deutsch vorgetragen wird (Annex 1) und desgleichen in Französisch (Annex 2). Denn diese beiden sind die Gründungssprachen von Rechtsvergleichung. Allein der (ausführlichere) technische Überblick zu fremdsprachlichen Angeboten an/mit deutschen rechtswissenschaftlichen Fakultäten (unten II.) wird aus Platzgründen allein in Englisch abgedruckt. La langue – c’est une arme, et en me référant en ceci librement aussi à Foucault, je soutiens dans cet article que le plurilinguisme, en droit, de nos jours, est considéré surtout comme un obstacle où il devrait en vérité être entendu comme un des plus grands pouvoirs. Les parties conceptuelles sont donc données dans les trois langues, seul le récit plutôt technique de la situation concrète dans les universités allemandes (en bas, section II.) y faisant exception.

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B. By Way of Introduction: A Few Foundational Words on the Importance of Language and its Diversity in Law Law is language based. Legal education therefore is language oriented – more than many other studies, even if beauty of writing may be a strong impact factor of research more generally (at least) in social sciences, also in ‘more sober’ and ‘more rigorously formal’ economics.1 There are voices that compare the exegetic thrust in law to that in theology or philology. 2 A prominent contemporary legal philosopher has aligned legal writing and practice with Shakespeare’s plays – putting original legal interpretation on an equal footing with original interpretation of, say, Hamlet.3 In knowledge theory, a majority trend coming close to unanimity points into the direction that language informs or influences formation of thought and language – strongly, very strongly, perhaps even as the major factor of all.4 These few considerations – reduced to their very essence – already convey one core message: language forms thought, thought about legal and societal models. Hence, reduction to one language is completely at odds with a world of multiple legal and societal models and even more at odds with a world in which pluralism of societal models – a form of individualism – is seen as being paramount and foundational also from a normative perspective. One may point to the fact that pluralism in legal and societal models and beliefs is even seen as a foundational value enshrined in constitutions (at least in the Western world).5 1  J. Vogel, The spectre of capital (Stanford: Stanford University Press, 2017) (original: Das Gespenst des Kapitals, Zurich: Diaphanes, 2011), passim; H. Putnam, The Collapse of the Fact/Value Dichotomy and Other Essays (Cambridge: Harvard University Press, 2002), p. 135–146 (chapter 8 on the role aesthetic values, such as ‘elegance,’ in scientific conduct); C. Lee and P. L. Lloyd, ‘Beauty and the Economist: The Role of Aesthetics in Economic Theory’, 58 Kyklos 65–86 (2005). 2 See, e.g., Hans-Georg Gadamer, ‘Classical and Philosophical Hermeneutics’ (2006) 23 Theory, Culture & Society 29–56, at 30; id., Hermeneutik I. Wahrheit und Methode, Gesammelte Werke, vol. 1 (Tübingen: Mohr (Siebeck), 1990 [1960]) 334; Emilio Betti, L’ermeneutica come metodica generale delle scienze dello spirito, G. Mura (ed.), (Roma: Città Nuova 1987); Francesco Viola and Giuseppe Zaccaria, Diritto e interpretazione. Lineamenti di teoria ermeneutica del diritto (Roma-Bari: Laterza 1999). 3  J. Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason (Oxford, Oxford University Press, 2009), p. 299–322 (chapter 12 on ‘interpretation’). 4 Ground-breaking L. Wittgenstein, Tractatus Logico-Philosophicus (London: Kegan Paul, Trench, Trubner & Co., 1922); even more so id., Philosophical Investigations (Chichester et al.: Wiley-Blackwell, 2009 [1953]); see also A. Goldman, ‘The Sciences and Epistemology’, in: P. Moser (ed.) The Oxford Handbook of Epistemology (Oxford: Oxford University Press, 2002) 144–176, at 154 et seq. 5 See, M. Delmas Marty, Le pluralisme ordonné (Paris: Seuil, 2006). From the French constitutional law discourse: J-B. Auby, La globalisation le droit et l’État (Paris: LGDJ, 2010). Similarly from a German constitutional law perspective: P. Häberle, Die Verfassung

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One may even go so far to say that the global legal community, if it does not want to betray to some extent the foundational value of pluralism, has a moral duty to foster (much more vigorously and actively) a form of discourse that is based on a variety of languages. In my own faculty at Humboldt University, the first holder of the chair of comparative law and private international law after the fall of the wall, Axel Flessner, a cosmopolitan man who put enormous energy into the research and education relating to the Europeanization of private law,6 very strongly and consistently upheld the flag of German language. He did so for legal scholarly writing, for educational offers, more broadly for the participation in the international discourse in law – at least, as he once specified in a conversation with me, for Humboldt university and at least for a country like Germany. Thereby he equally upheld – and this is still more important and indeed paramount – the flag of the autonomy of German scholarly thinking in law, of practice of law “made in Austria, Germany, Switzerland”, and even of the societal models they depict. Indeed, while this may not be of similar importance for small countries or less important universities, it may be paramount for leading universities in jurisdictions that really substantially have shaped and still shape legal thought – other than that in the Anglo-American world. Axel Flessner therefore blamed me for having accepted and indeed proposed the name of ‘European Law School’ for the network described below and the title of ‘Juriste Européen’ for those who have successfully completed its curriculum and the Master exams in three European countries (in three languages).7 It did not help that I insisted on the fact that this institution and curriculum is, in its essence, about multiplicity of languages (‘plurilinguism’), of styles and of models – more than any other offer and model existing before. Similarly, he will blame me for writing this account in English and perhaps not even ‘forgive’ me for the mere fact that, at the end, I add a shorter variant of this text in German (and also in French), containing all major arguments. (by so doing, I am, of course, forced also to play with the paradox of choosing the language which I master less elegantly for the longer version, also accepting the disadvantage that virtually all non-native speakers face when they choose as the intellectual arms the ‘mother tongue’ spoken by prince Hamlet). des Pluralismus: Studien zur Verfassungstheorie der offenen Gesellschaft (Königstein am Taunus: Athenäum, 1980); R. C. van Ooyen, M. Möllers (eds.), Verfassungs-Kultur: Staat, Europa und pluralistische Gesellschaft bei Peter Häberle (Baden-Baden: Nomos, 2016). 6  Among his main accomplishments is the installation at Humboldt University in 1996 of a German Research foundation funded curriculum of structured PhD studies on the ‘Europeanisation of Private Law’ – for nine consecutive years. For the broad array of PhD theses written in this framework, see, for instance https://www.rewi.hu-berlin.de/de/lf/oe/gkpwr. Among the writings by A. Flessner, see Juristische Methode und Europäisches Privatrecht, Juristenzeitung 2002, 14–23. 7  See below section IV.

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The latter does not even constitute the most important paradox related to language in law and its formative power in the creation of thought, especially legal thought. While Flessner never really formulated this idea in my presence, his consideration is particularly strong if seen as being categorical – and Flessner’s way of arguing, his insistence on keeping German as a language of discussion, scholarly writing and teaching was categorical indeed. In my view, Flessner’s argument is strongest if taken as a plea for pluri-linguist legal education and discourse. Namely so because reduction of the global discussion to one language, a lingua franca, carries the risk that a good number or even most of the ideas developed in the larger part of the world, in their native languages, is de facto excluded from the discourse or strongly reduced in importance. This risk is exacerbated by a dominant attitude in the global discussion of law to see a diversity of languages mainly as an obstacle to a common discourse and much less as a chance for richer, more nuanced, more pluralist discussion of legal and societal models. This implies that poverty in languages is seen as constituting the most efficient arrangement of discussion while it could also well be perceived as an intellectual shortcoming – reducing knowledge and diversity in the global discourse(s). History would seem to tell us that the former risk does indeed crystalize all over. If, for instance, Thomas Piketty with all his originality, puts much of the essence of Karl Marx – or later of Hugo Sinzheimer – into economic models and into modern English8 – as an educated and globally educated French-born scholar addressing (mainly) an English speaking global audience – this creates an absolute hype in the social sciences.9 The question how much is Marx, how much Sinzheimer, and where the originality of Piketty is really starting cannot be asked at a global level – because there is not large enough an audience linguistically educated to an extent that allows for such a global conversation and even if Piketty would have liked such a discourse (and actually started out in French 8 See Th. Piketty, The Capital in the Twenty-First Century, (Cambridge: Harvard University Press, 2014); original: Th. Piketty, Le Capital au XXIe Siècle, (Paris: Le Seuil, 2013) and Das Kapital im 21. Jahrhundert (Munich: Beck, 2014) and earlier Th. Piketty, The Economics of Inequality, (Cambridge: Harvard University Press, 2015); original: Th. Piketty, L’économie des inégalités, (Paris: Décourverte, 1997) and Ökonomie der Ungleichheit – eine Einführung, (Munich: Beck, 2016). Relating back, among others, to K. Marx, Das Kapital – Kritik der politischen Ökonomie, (vol. 1; Hamburg: Meissner, 1867) (vols. 2 + 3 edited by F. Engels 1885 and 1894, also Meissner); K. Marx, Le Capital – Critique de l’économie politique, (vol. 1; Paris: M. Lachâtre, 1872); but also H. Sinzheimer, Grundzüge des Arbeitsrechts (Jena: G. Fischer, 1921) passim and Arbeitsrecht und Rechtssoziologie – Gesammelte Aufsätze und Reden (edited by O. Kahn-Freud and Th. Ramm, Frankfurt/M.: Europäische Verlagsanstalt, 1976); see, for instance, S. Blanke, Soziales Recht oder kollektive Privatauto­ nomie? Hugo Sinzheimer im Kontext nach 1990, (Tübingen: Mohr Siebeck, 2005). 9  See for instance St. Kaufmann/I. Stützle, Kapitalismus. Die ersten 200 Jahre. Thomas Pikettys “Das Kapital im 21. Jahrhundert” – Einführung, Debatte, Kritik (4th edn., Berlin: Bertz + Fischer, 2015).

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and German). State borders become almost a barrier that can be neglected – une quantité négligeable – as compared to language borders in the global intellectual discourse, for instance in law, but also more generally in core social sciences. This first example is, however, still relatively unimportant. Just to ‘reinvent’ (pervasively) is one risk. Still more important is the risk that core trends are left out and do not influence the global discourse (adequately) and therefore also often do not share in the impact of scholarly thinking on real world developments. One of the most striking developments – separating as well large parts of the U.S. development (not that of the whole Anglo-American world) from that in most other jurisdictions – is often (and convincingly) seen in the impact that law and economics exercises on the evaluation and the development of legal solutions. If this is one of the most important kinds of interplay between disciplines for law and legal thinking nowadays, the choice of which approach should be endorsed would seem to be paramount indeed. In comparison to nowadays’ law and economics as shaped mainly in U.S.-American academia and practice as of the 1960s – from Ronald Coase, Guido Calabresi via Oliver Williamson to Richard Posner and others –,10 another strong academic and legal practice approach on the relationship between law and economics is often almost neglected. This alternative approach – the ordo-liberal school – had a considerable impact on the development mainly of public interest regulation in Europe and most prominently in Germany, much stronger than its relatively modest role in the global academic discussion would suggest.11 The development of both 10  See namely R. Coase, ‘The Problem of Social Cost’, 3 Journal of Law and Economics 1–44 (1960); id., ‘The Nature of the Firm’, 4 Economica 386–405 (1937); G. Calabresi, ‘Some Thoughts on Risk Distribution and the Law of Torts’, 70 Yale Law Journal 499–553 (1961); id., The Cost of Accidents – A Legal and Economic Analysis (New Haven, Yale University Press, 1970); id./D. Melamed, ‘Property Rules, Liability Rules and Inalienability – One View of the Cathedral’, 85 Harvard Law Review 1089–1128 (1972); O. Williamson, ‘Transaction-Cost Economics: The Governance of Contractual Relations’, 22 Journal of Law & Economics 233–261 (1979); id., The Economic Institutions of Capitalism (New York/London: MacMillan, 1985), esp. chapter 1: Transaction Cost Economics (distinguishing one ‘Antitrust’ and one ‘Efficiency’ branch which have to be assessed against each other); for the broader context of theories preceding (most of) these papers and being based on these papers later on, see, S. Grundmann, in: S. Grundmann/H.-W. Micklitz/M. Renner, New Private Law Theory – Global European, Social Sciences Based (Cambridge: Cambridge University Press, 2018), chapters 3 and 17; seminal as a textbook based on these theories: R. Posner, Economic Analysis of Law (Boston: Little, Brown, 1973), now Economic Analysis of Law (9th edn., New York: Aspen, 2014). 11 See F. Böhm, ‘Privatrechtsgesellschaft und Marktwirtschaft’, ORDO 17 (1966), 75– 151; partial translation into English: F. Böhm, ‘Rule of Law in a Market Economy’, in: A. Peacock/H. Willgerodt (eds.), Germany’s Social Market Economy: Origins and Evolution, (London, Macmillan, 1989), p. 46–67; W. Eucken, Grundsätze der Wirtschaftspolitik (7th edn., Tübingen: Mohr Siebeck, 2004), p. 278 et seqq. (1st edn., Tübingen: Mohr, 1952, p. 241 et seqq.); the most important comments on and further developments of this theoretical approach are: E.-J. Mestmäcker, ‘Macht – Recht – Wirtschaftsverfassung’, Zeitschrift für das gesamte Handelsrecht (ZHR) 137 (1973), 97–111; id., ‘Auf dem Weg zu einer Ord-

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approaches was different both in substance and in method. They differed in substance – very roughly speaking – insofar as the latter favoured more robust public interest regulation, for instance required more solid proof of advantages to all market participants if (exceptionally) restrictions of competition should be allowed – while the former increasingly favoured a ‘more economic approach’ in which any future economic advantage was to be set-off against the losses caused by restrictions of competition. This difference in substantive solutions is not really important in our context. Both approaches differ, however, also in method and do so insofar as the law and economics approach shaped in the U.S. soon adopted more stringently economic models as benchmark, a clear orientation towards total welfare and efficiency considerations, and a strong inclination towards calculus on the basis of certain assumptions (the latter only after Coase and some of this not being fully welcome by Calabresi) – while the ordo-liberal approach did not rely on formalizations and tended more to a consideration of potential advantages and disadvantages in real world scenarios and historic contexts, strongly influenced by the existing legal and political institutions, and favoured a more substantive balancing of advantages and disadvantages and plausibility checks. This is not the place to formulate, let alone to elaborate a profound judgement on both trends, but rather to point to three consequences from such difference (as exemplified in this one example). (1) The difference between both approaches is enormous, the law and economics approach having the main advantage of being so readily ‘applicable’, but also the main shortcoming of basing its results on assumptions that often abstract (strongly) from real world settings and often fail to have plausibility checks. One could speak in the one case of an approach more rigorously based on a formalisation and calculus, in the other of a value based approach that is more reality oriented but formally less precise. (2) Despite the importance of the difference, the latter is relatively little discussed and therefore we are relatively little aware of the comparative advannungspolitik für Europa’, Festschrift v. der Groeben (Baden-Baden: Nomos, 1987), p. 9–50; id., ‘Franz Böhm’, in: S. Grundmann/K. Riesenhuber (eds.), Private Law Development in Context – Private Law Scholars and Development in Germany and Beyond, (Antwerp/Cambridge: Intersentia, 2017), p. 31–56; see also S. Grundmann, ‘The Concept of the Private Law Society after 50 Years of European and European Business Law’, European Review of Private Law (ERPL) 2008, 553–581; and for the context and the impact the concept had later on: S. Grundmann, in: S. Grundmann/H.-W. Micklitz/M. Renner, New Private Law Theory (last footnote), chapter 6. In German literature,, the theory has lately aroused increased interest again, see K. Riesenhuber (ed.), Privatrechtsgesellschaft: Entwicklung, Stand und Verfassung des Privatrechts (Tübingen: Mohr Siebeck, 2007); F. Möslein (ed.), Private Macht und privatrechtliche Gestaltungsfreiheit (Tübingen: Mohr Siebeck, 2015); for a good view on the theory from an international perspective, see G. Schnyder/M. Siems, ‘Ordoliberal Variety of Neoliberalism’, in: S. J. Konzelmann/M. Fovargue-Davies (eds.), Banking Systems in the Crisis: the Faces of Liberal Capitalism (London/New York: Routledge Taylor & Francis Group, 2013), p. 250–268 (the title, however, rather questionable or even misleading).

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tages and disadvantages of the two approaches either.12 We do not really discuss whether dependence on models and calculus does not exclude large parts of lawyers’ communities from the discourse to a larger extent than an approach that is more principle and value oriented. (3) This lack of discussion is by no means limited to the Anglo-American world, but would seem to be influenced by the virtual lack of a pluri-linguist global discussion platform. This lack of pluri-linguist global discussion would seem to have different outcomes on both sides of the Atlantic – namely that an alternative approach is more easily neglected in the Anglo-American world, but also that, in jurisdictions such as those of continental Europe, the law and economics approach as shaped in the U.S. is either ‘followed’ or rather rebutted, not discussed, modified and transformed. It might well be that law and its discussion globally have to pay a high price for the global unwillingness at least to learn and to follow discourses in a few (additional) ‘global’ languages. If a calculus and model oriented approach to transnational economic transactions was not able to detect the flaws of a process bundling masses of sub-prime loans via securitization and outsourcing into SPVs, manufactured into CDO/CDS under the guidance of global rating agencies and then rated by them, with an investor community relying collectively and in a uniform way on the correctness of such models, might not the existence of alternative approaches in a global discourse have been helpful to cast doubt? Approaches that favour more robustness and plausibility checks instead of ‘exact’ calculus. After all, we say today that the flaws leading to the crisis have not been obvious only “by hindsight”. These considerations pose the question of who has responsibilities in maintaining enough linguistic diversity, and they explain as well why Flessner is right at least in categorical terms when insisting on German as a tool for explaining a whole legal world of thought. It would seem rather obvious that in such an endeavour of maintaining richness of views those have an increased responsibility who convey ideas developed in jurisdictions that still have the chance to be heard in a global discussion. This plea for more diversity – in languages and hence in societal models – can remain realistic only if one admits that the circle of languages consistently participating in a global discourse will (and must) remain relatively restricted even in a global discourse community more adequately shaped than that based on English only.13 If in such a global discourse 12 See

W. Fikentscher/Ph. Hacker/R. Podszun, Fair Economy (Heidelberg et al.: Springer, 2013) chapter 1; see also E.-J. Mestmäcker, A Legal Theory without Law – Posner v. Hayek on Economic Analysis of Law (Tübingen, Mohr Siebeck, 2007) (and also his writings named in the last footnote). Also R. Coase was still hostile towards models and calculus, but transaction cost and institutional economics took another path. 13  This article is not the place to discuss the possible structure and the prerequisites of such a changed global discourse community. Typical market structures would, however, seem to imply that 5–10 ‘offers’ is still a manageable size and that more is difficult to handle. If then diversity in societal models constitutes one or even the core aspect, probably French

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Europe may still have an additional voice – besides English – French, German and perhaps Spanish (see last footnote) would appear to be the most obvious candidates. Similarly, in those jurisdictions those universities have a particular responsibility that still attract globally to a large extent – and Axel Flessner’s Humboldt university is one of the relatively few in Germany that quite blatantly does so. Therefore, it is difficult not to see Axel Flessner’s point when he insists so much on sticking to German as a language to convey ideas about legal and societal thought. The responsibilities are, however, not only with those who bring in jurisdictions of the type described and those who shape discourses from such globally visible universities outside the Anglo-American world. If law is about fairness and social sciences discussion should be shaped such that it can most adequately further the common understanding and welfare, responsibilities for a more diversified discourse environment are probably just as much and perhaps even more with the Anglo-American world itself. This may sound counter-intuitive, but it could well be still more convincing if the impetus for a discourse rich in languages and hence in legal and societal models came as well – and very prominently – from key institutions and key players in the Anglo-American world.14 The role of the U.S. may even be paramount in this as it is not renowned for taking in ideas and diversity views from other parts of the world very easily (some even speak of ‘academic imperialism’). Opting for diversity, formulating a plea of diversity would seem particularly convincing if based on the particular strong position of those who start from the dominant language. We will come back to these questions – more from a perspective of comparative law approaches – after the survey on German universities’ pluri-linguist offers in legal education. My suggestion may sound bold, perhaps even naïve. I would hope, however, that while this will not be mainstream, for instance in the US, cutting-edge scholarship might find some interest in such developments and fostering it.

and/or German (for Europe), Chinese, Arabic, and one or two languages of the global South (among them probably Spanish or perhaps Portuguese) could be ‘natural’ candidates. The core challenge would then be to create enough ‘overlapping knowledge or discourse’ among them – and not always only via the one common and thereby dominant channel of English – in a global social sciences community. 14  There is some discussion – mainly between German scholars globally trained, but teaching on different sides of the Atlantic – on the perceived ‘superiority’ of U.S.-American and European approaches to law: see M. Reimann, ‘The American Advantage in Global Lawyering – Dreizehnte Ernst-Rabel-Vorlesung’, RabelsZ 78 (2014) 1–36; and H. Micklitz, ‘A European Advantage in Legal Scholarship?’, in: R. van Gestel/H. Micklitz/E.L. Rubin (eds.), Rethinking Legal Scholarship – a Transatlantic Dialogue, (Cambridge: Cambridge University Press, 2017), p. 262–309. The question of what role language – and the shaping of a multi-language discourse community – play or would play in all this, is little or not at all considered.

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C. Survey on German Universities’ pluri-linguist offers in legal education In the following, a survey is given on German Universities’ offers related to a teaching of legal content in another language. Three kinds of offers would seem to stand out and are taken up in turn. (1.) Courses taught in other languages than German are often required in the German general final law exam, the socalled State’s exam (‘Staatsexamen’), organized by the Ministry of Justice of each ‘Land’ (state), such as Bavaria, in a good number of cases by several states jointly, and comprising all the legal core areas.15 Hence, this type of foreign language courses/requirements applies – wherever it applies – to all lawyers leaving German universities with the regular law degree (close to 100 %). (2.) Curricula and study courses for foreign students (more accurately: requiring a law degree other than the German State Exam) leading to Master degree at German universities. These courses can be found in German, but as well in other languages, mostly English. (3.) Genuine double degree programmes, with integration of genuine university leaving exams both in a German and in a foreign university. Issues of funding – so important for the actual impact – will be shortly taken up in this section and section 4. below. The genuine double degree programmes constitute, of course, the most fully integrated one and go well beyond the other two, more modest offers – namely when it comes to foreign language education of students of German law. This segment is made use of by about 10 % of the students studying for a German law degree. There is one offer though which still goes well beyond such double degree offers as well. This is 15  The

state exam consists of an exam on all major areas of national law (with its European Law underpinnings), composed of 6–10 cases to be solved in approx. 5 hours each, i.e. in 6–10 consecutive days (in writing), supplemented by oral examinations on all these areas (typically 4 x 1 hour plus the presentation of a case taken from practice – with the materials –, handed out an hour before the exam itself). Approx. 5 hours each, i.e. in 6–10 consecutive days (in writing), supplemented by oral examinations on all these areas (typically 4 x 1 hour plus the presentation of a case taken from practice – with the materials –, handed out an hour before the exam itself). The exact content (exam cases/questions) and the examiners are determined by a sub-section of the Ministry of Justice of that State (or several States jointly). In some (few) universities, part of the exam is as well – and typically in addition – an exam (case) on European Law proper. This is so also in the European Law School scheme (see below IV.). This ‘state part’ of the state exam is credited at 70 % to the overall grades. The rest of the credits is decided on by the universities themselves, based on special curricula for specialisation. For one example of a set of specialisation curricula, see https://www.rewi.hu-berlin.de/ de/sp/2015/sp. Often, as in this case, there are specialisations offered with respect to subject matters – for instance the law of the enterprise (in the broad sense) or IP law –, with respect to theoretical foundations (legal history and philosophy) or as well with respect to putting law into practice (drafting, dispute resolution, pleading etc.), the latter often in conjunction with teaching practitioners. The credits for these specialisation courses amount to 30 % of the overall grades.

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the European Law School network (Berlin/London/Paris/Rome/Amsterdam) that will be taken up separately (see below IV.), also because it is based on additional and more sophisticated educational and policy considerations (see below III.). A few more specialised courses – for instance in law and economics – come closer to this polycentric study arrangement and will be taken up below as well.

I. Foreign Language Requirements/Courses in the State Exam (German final exam in Law)16 1. Overall Framework Nowadays, in virtually all catalogues for the State Exam in the different Länder, in a number of cases catalogues applying to several of them jointly, there is some type of a requirement to have finished a law course or several law courses in a foreign language. In some cases, this is or these are English language based courses, in the majority of cases, however, the language to be chosen is left open, with some discretion (a catalogue of a few languages) or full discretion (limited, however, to the existing offer). Thus, virtually 100 % of graduates acquiring the traditional German law degree, nowadays have to have passed some kind of foreign language requirement. In a good number of cases, these law courses are also designed to convey knowledge of the jurisdiction(s) in which that language is the official language. For instance English taught courses are then on UK or U.S. Law or also on common law more generally, French taught courses on the Law of France (and potentially others), Portuguese taught courses on the Law of Portugal and/or of Brazil etc. (the so-called “Fremdsprachiges Rechtsstudium”, “FRS”). While this used to be an extraordinary feature in the 1980s – attracting many students namely to Passau university –, many universities followed later and have now extended programmes. The example of Humboldt university is to the point where one of the most extended programmes – if not the most extended one (with Heidelberg and Munich) – is offered today, but has been ‘imported’ from Passau by a former Passau professor in the 1990s. These ‘FRS’-programmes are so manifold that only a list of the most extended ones is given in the following (see below b)) – followed by a much shorter list of those universities which allow for some part of their studies to be taken abroad (see below c)). While these two possibilities both have a relevance within the State Exam scheme, they differ substantially with respect to importance and role. The requirement of following foreign language taught courses at German universities (below b)) is one of the requirements to be admitted to the State 16  This survey has been sent to all law faculties in Germany and their amendments have been integrated. We are particularly grateful for this help.

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Exam and is applicable to all students, while the schemes listed below c) are much more extended in time and substance and replace the university part of the State Exam and therefore are credited for 30 % of the latter. Conversely, they apply to a much more restricted student body, certainly not more than 10 % of the students opting for this scheme even in the universities offering this possibility. 2. List of Universities with Extended Programmes of Foreign Law Taught in Mother Tongue (“Fremdsprachiges Rechtsstudium”, “FRS”) The most important offers of foreign law taught in foreign languages (in their official language) are listed below. In a good number of cases, the foreign language taught courses in foreign law are also part of the (more extended) double degree programmes (if this university has such a scheme), i.e. are used in both contexts. The list – given in alphabetical order of the city – is not exhaustive, as it is very long anyhow. Similar, less extensive offers can be found on the websites of still more universities as well. a) Augsburg University [http://www.jura.uni-augsburg.de/de/lehre/fra/], offers in US-American, Chinese, French, Japanese, Polish, Russian, Spanish, Turkish Law – all in the official languages of those countries/jurisdictions; b) Berlin University (Freie Universität) [http://www.jura.fu-berlin.de/stu dium/studiengang_rechtswissenschaft2015/04_Module/modul_fremdspra cheAB.pdf], offers in English, French, Italian or Spanish Law – all in the official languages of those countries/jurisdictions or as well language courses in these languages. c) Berlin University (Humboldt) [https://www.rewi.hu-berlin.de/de/ip/cert/ frs], requirement as so-called BZQ II, offers in US-American, Brazilian, Chinese, English, French, Italian, Polish, Russian, Spanish, Turkish Law – all in the official languages of those countries/jurisdictions.17 d) Bielefeld University [http://www.jura.uni-bielefeld.de/angebote/fremdsprachen/ffa/ and https://ekvv.uni-bielefeld.de/kvv_publ/publ/Studiengang_ Vorlesungsverzeichnis.jsp?id=29188817], offers in US-American, English, French, Russian, and Turkish Law – all in the official languages of those countries/jurisdictions. e) Bochum University (Ruhr) [http://www.ruhr-uni-bochum.de/zfi-jura/ index.html#], offers courses on common law (US-American, English, South African), French, Spanish and Turkish Law – all in the official languages of those countries/jurisdictions.

17 Additional offers in Augsburg (Japanese), Bochum, Frankfurt/Main, Würzburg (South African), Heidelberg (Arabic), Munich and Saarland University (Greek), Munich and Trier (Portuguese) and Würzburg (Latin-American, Subsahara-African). The programme in Bonn is particularly nuanced for English law.

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f) Bonn University with one more extended programme in English and also a higher degree (with possible extension of the exam period) [https://www.jura. uni-bonn.de/studium/lehrangebote/fremdsprachen/ffa-auf-unicertr-stufe-iii/ and https://www.jura.uni-bonn.de/studium/lehrangebote/fremdsprachen/ffalpp-auf-unicertr-stufe-iv/], and one ‘regular’ programme for other languages [https://www.jura.uni-bonn.de/studium/lehrangebote/fremdsprachen/ internationale-rechtsterminologien/], offers in US-American, English (more extended version, English legal system, English case law and court system), French, Italian, Russian, Spanish, Turkish Law – all in the official languages of those countries/jurisdictions. g) Bremen University offers a number of foreign/EU law courses in English, particularly within the LL.B. degree course Comparative and European Law and the LL.M. degree course Transnational Law (both Hanse Law School), foreign language certificate (English) required within the State exam course, based on a written exam in an English taught law course or legal English course [https:// www.jura.uni-bremen.de/studium/staatsexamen/fremdsprachenschein/], occasionally Turkish law courses taught in Turkish. h) Cologne University (Albertus Magnus) with a specific certificate on US-American Law [http://www.us-recht.jura.uni-koeln.de/1935.html] and additional offers on foreign legal terminology [http://www.zib.jura.uni-koeln. de/14779.html]. i) Düsseldorf University (within the double degree with Cergy-Pontoise, see below 3.) [https://www.dfh-ufa.org/studium/studienfuehrer/mode/detail/id/ rechtswissenschaften/pointer/0/], very extended offer in French Law (Business, Labour and Social Law), in French. j) Frankfurt (Main) University (Goethe) [http://www.jura.uni-frankfurt. de/43078948/4fremdsprachige-Rechtskenntnisse3], offers in US-American, English, French, Italian, South African, Turkish Law – all in the official languages of those jurisdictions/countries. k) Freiburg University (Albert-Ludwig) with one more extended programme in English and French [http://www.jura.uni-freiburg.de/de/institute/ioeffr5/ franzoesische-rechtsschule/deutsch-franzoesische-rechtsschule] [French Law School with specific certificate] and in European, International and foreign law [https://www.jura.uni-freiburg.de/de/zusatzprogramme/europaeischesinternationales-und-auslaendisches-recht], offers in English and French as the official languages of those countries/jurisdictions. l) Halle University (Martin-Luther) with one more extended programme in English and French, but also International Law [http://www.jura.uni-halle. de/studium_lehre_pruefung/studium_lehre/lehrveranstaltungen/_fachspez._ fremdspr.-ausb.__i_/], can be replaced by moot court participation. m) Hamburg University [https://www.jura.uni-hamburg.de/studium/ lehrveranstaltungen/fremdsprachenangebote.html], offers in English, French,

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Polish, Spanish, Turkish and Russian Law – all in the official language of those countries/jurisdictions. Also the specialisation (Schwerpunkt) can be taken in English (https://www.jura.uni-hamburg.de/en/einrichtungen/instituteseminare/institut-recht-oekonomik/lehre/schwerpunkt.html) and more lectures are given in English for foreign students. n) Heidelberg University (Ruprecht-Karl) [http://www.jura.uni-heidelberg. de/studium/internationales/fremdsprachige_veranstaltungen.html], offers in US-American, Arabic, Brazilian, English, French, Italian, Polish, Portuguese, Spanish, Turkish Law – all in the official languages of those countries/jurisdictions. o) Jena University (Friedrich Schiller), besides the Law & Language Center [http://www.rewi.uni-jena.de/Studium/Law+_+Language+Center-p-1853. html] with an ‘Introduction to the English Legal System’, more extended offers [http://www.rewi.uni-jena.de/Studium/Law+_+Language+Center-p-1853. html and for a LL.B. http://www.rewi.uni-jena.de/LLB.html] are on US-American, English, French, Russian, and Spanish Law – all in the official languages of those countries/jurisdictions. p) Kiel University [http://www.jura.uni-kiel.de/de/StuPrue/ffazertifikat], in English on US-American and English Law (with certificate, running over four terms). q) Konstanz University [https://www.jura.uni-konstanz.de/studium/staats examensstudiengang/vorlesungsverzeichnisse/aktuelles-vorlesungsverzeichnis/] with offers on English, French, Italian, Spanish and Turkish Law – all in the official language of those countries/jurisdictions. r) Leipzig University [https://www.jura.uni-leipzig.de/studium/studiengang-rechtswissenschaft/fremdsprachennachweis/], offers in US-American, English, French, and Russian Law – all in the official languages of those countries/jurisdictions. s) Mainz University [http://www.jura.uni-mainz.de/369_DEU_HTML. php], offers in US-American, English, French, Italian, and Spanish Law – all in the official languages of those countries/jurisdictions. t) Marburg University with offers on US and UK Law (Common Law) and Italian Law – all in the official languages of those countries/jurisdictions, and a course on domestic and international commercial arbitration taught in English. u) Munich University (Ludwig-Maximilian) [http://www.jura.unimuenchen.de/fakultaet/fachsprachenzentrum/index.html], offers in Chinese, English, French, Greek, Italian, Portuguese, Russian, Spanish, and Turkish Law – all in the official languages of those countries/jurisdictions. v) Münster University [https://www.jura.uni-muenster.de/de/studium/ studienmoeglichkeiten/ffa-fachspezifische-fremdsprachenausbildung/ organisatorisches/], offers on the common law, International Law, and in French and Spanish Law – all in the official languages of those countries/juris-

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dictions. Some of these courses can also be recognized in some branches of the university exam (Schwerpunktbereich). w) Osnabrück University [https://www.jura.uni-osnabrueck.de/studium/ fremdsprachliche_fachausbildung/], offers in US-American, Chinese, English, French, Spanish and Polish Law – all in the official languages of those countries/jurisdictions. x) Passau University with one more extended programme in English , leading to a Certificate of Studies in European, Comparative and International Law (CECIL) [http://www.jura.uni-passau.de/internationales/studienangebote/ cecil/lehrveranstaltungen/], and “regular” offers [http://www.sprachenzen trum.uni-passau.de/fremdsprachenausbildung/ffa/ffa-fuer-juristen/] in US-American, English, French, Italian, Russian, and Spanish Law – all in the official languages of those countries/jurisdictions. y) Regensburg University with two programmes, one on the AngloAmerican Legal System [http://www.uni-regensburg.de/zentrum-sprachekommunikation/sfa/kursangebot/englisch/index.html#EnglischJura] and one on Russian Law [http://www.uni-regensburg.de/rechtswissenschaft/ oeffentliches-recht/manssen/ostwissenschaftliches-begleitstudium/index.html], both running over four terms. z) Saarland University [https://www.uni-saarland.de/fakultaet/r/lehre/ terminologie.html], offers in English, French, Greek, Italian, and Spanish Law – all in the official languages of those countries/jurisdictions. z1) Trier University [https://www.uni-trier.de/index.php?id=63522] (impressively extended, 4–6 terms), offers in US-American, Chinese, English, French, Italian, Japanese, Portuguese, Spanish, and Turkish Law – all in the official languages of those countries/jurisdictions. z2) Tübingen University [https://www.jura.uni-tuebingen.de/studium/ lehrveranstaltungen/] with offers in US-American, English, French, Turkish and Russian Law – all in the official languages of those countries/jurisdictions.z3) Würzburg University [https://www.jura.uni-wuerzburg.de/studium/ fachsprachen-und-auslaendisches-recht/aktuelles/] offers in US-American, English, Australian/New Zealand, French, Italian, Latin-American, Polish, Russian, Spanish, Subsahara-African and Turkish Law – all in the official languages of those countries/jurisdictions.

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3. List of Universities Allowing the Year of Specialisation to be Passed Abroad (“Schwerpunkt im Ausland”) In some universities, the year of specialisation that is at the discretion of each university (see above footnote 15) and for which they establish the curricula and the requirements (within certain limits set by the German Lawyers’ Act)18 follows a regime which allows for substitution by a parallel curriculum at a university abroad. This requires a particular clause in the state bylaws on the State Exam and therefore is not completely at the discretion of the universities. In such cases, the year abroad – with all exams – counts 30 % to the German State Exam – after recognition and transfer of grades into the German grading system. This possibility is much more exceptional than the one to do courses in a foreign language at the domestic (German) university (above b)). This more extended scheme is offered at – the two Berlin universities (Freie Universität, http://www.jura.fuberlin.de/international/studierendenaustausch/outgoings/anerkennung/sch werpunkt2sem.html, and Humboldt Universität, https://www.rewi.huberlin.de/de/ip/out/sp), on the basis of the express authorization of the Berlin bylaws that to my knowledge were path-breaking in this respect (and a condition for developing the European Law School scheme, below section IV.), and at – Bonn University (https://www.jura.uni-bonn.de/fileadmin/Fachbereich_ Rechtswissenschaft/Einrichtungen/Pruefungsausschuss/Rechtsgrundlagen/ Amtl._Bek._1535–3_SPB-PO_2015.pdf). – Düsseldorf University (see http://www.jura.hhu.de/dfs.html, https:// www.dfh-ufa.org/studium/studienfuehrer/mode/detail/id/rechtswissen schaften/pointer/0/). – Heidelberg University, in one specialisation area, European and International Capital Market and Financial Services Law (https://jura.urz.uni-hei delberg.de/mat/materialien/uni_hd_jura_material_14895.pdf) and for the written thesis forming part of the requirements (http://www.jura.uni-hei delberg.de/studium/Studienarbeit.html#Ausland). – Jena University (§ 12 of Jena’s regulation on the specification curriculum). – Kiel University, in particular cases (see http://www.eastlaw.uni-kiel.de/ de/schwerpunkt). – Mainz University, with Glasgow University (see http://www.jura.unimainz.de/auslandsbuero/373.php#Schottisches_Recht). – Passau University (see http://www.jura.uni-passau.de/studium/auslandsstudium/schwerpunktbereich-auslaendisches-recht/). – Saarland University (see https://www.uni-saarland.de/fakultaet/r/ interessenten/studium/schwerpunktbereiche.html). 18 

See § 5d (2) DRiG (Bundesgesetzblatt – official Gazette. I p. 1474).

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– Würzburg University (see https://www.jura.uni-wuerzburg.de/stu dium/rechtswissenschaft/erste-juristische-pruefung/schwerpunktbere ichsstudium/stpro-2008-stand-2016/s-14-franzoesisches-recht/ and https:// www.jura.uni-wuerzburg.de/fileadmin/02000100/studium/Studienplan/2017-11-20_-__WS_-Studienplan_Beschluss_Fakultaetsrat.pdf) In some of the double degree programmes, the same possibility is offered, if continued towards a state exam (see below 3., namely Berlin, Cologne, Düsseldorf, Erlangen-Nürnberg, Munich, Potsdam, Saarbrücken), some, such as Marburg University, recognise only single subjects taken abroad (https://www. uni-marburg.de/fb01/studium/spbs/schwerpunktbereich_dateien/schwerpunktbereichpruefungsordnung_170713.pdf).

II. Master Programmes (LL.M.) at German Universities (in German and foreign language) 1. Overall Framework Many German universities offer LL.M. in their law faculties, a good number in German, namely those on German law and sub-areas of it, the others, targeted on specific areas (almost) exclusively in English. While both types of offers cannot always be neatly distinguished, offers of the first type are designed for and targeted to students having a law degree from foreign universities, not to domestic students from less prestigious universities – as is often the case in the U.S. –, as the main benchmark for quality in Germany is the State exam anyhow. At least this type of offers therefore has to do with cross-border legal education and hence also multi-language skills – albeit mostly for students from other countries than Germany (on these curricula, see list below b). A large number of these curricula are on business law – in Germany and beyond. Conversely, the more topic related curricula are designed for students and practicing lawyers from Germany or abroad. The more specialised curricula can be related to a legal area – reflecting typically a particular strength, also in research, of the particular university – or to a methodological approach (on these offers, see list below c). These curricula, while not excluding views on German law as well, are more on the inherent structure of these areas or comparative law than on German law content. This is the reason for which these curricula are typically targeted to students and practicing lawyers irrespective of their jurisdiction of origin, and more often are taught in English. The German Academic Exchange Service keeps the list of offers of both types updated and covers the whole range of offers.19 19 See https://www.daad.de/deutschland/studienangebote/international-programmes/ en/?p=l&q=°ree[]=2&fos=1&subject[]=250&fee[]=0&sortBy=1&page=1&display=list#.

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2. Master Programmes (LL.M.) on German Law (or Large Sub-Areas) Genuine master programmes (LL.M.) on German Law – taught in German – are so numerous that only a few very significant ones are named in the following. 20 They can be found at: – Berlin University (Humboldt) with its master programmes on German and European Law and Legal Practice (https://www.rewi.hu-berlin.de/de/ip/ master/dteur/index.html). – Bochum University (Ruhr) with its general programme on German Law (http://www.ruhr-uni-bochum.de/zfi-jura/llmRUB.html) and its programme on criminology, criminalistics and police science (http://www.makrim.de/). – Bonn University with its general programme on German Law for foreign graduates with a wide range of specialisation possibilities (https://www.jura. uni-bonn.de/auslandskoordination/internationales/master-im-deutschenrecht-llm/) – Cologne University (Albert Magnus) with its master on German Law for foreign graduates (http://www.zib.jura.uni-koeln.de/llm.html). – Frankfurt (Main) University (Goethe) with its general programme on German Law for foreign graduates (http://www.jura.uni-frankfurt.de/39838982/ LL_M_-fuer-im-Ausland-graduierte-Juristinnen-und-Juristen) – Frankfurt (Oder) University (Viadrina) with a general programme (https:// www.rewi.europa-uni.de/de/studium/master/Magister.html), but more wellknown its German-Polish Law programme (https://www.rewi.europa-uni. de/de/studium/polnisch/master_gplaw/index.html). – Heidelberg University with its general programme on German Law (since 1987) (http://www.unifr.ch/rectorat/reglements/pdf/92421.pdf). – München University (Ludwigs-Maximillian) with its general Programme on German Law for foreign graduates (http://www.jura.uni-muenchen.de/ studium/studiengaenge/aufbaustudiengaenge/aufb_dr/index.html). 20 For a full list see https://www.azur-online.de/bildung/deutsche-ll-m and the following universities: Bayreuth (https://www.uni-bayreuth.de/de/studium/masterstudium/ LLM_auslaendische_juristen/index.php), Bielefeld (http://www.jura.uni-bielefeld.de/an gebote/dokumente_ordnungen/ordnung_legum_magister), Freiburg (https://www.jura. uni-freiburg.de/de/internationales/incomings/ll-m), Gießen (https://www.uni-giessen. de/fbz/fb01/fakultaet-institutionen/dekanat/studiengaenge%20abschluesse/Magister/ llm), Jena (http://www.rewi.uni-jena.de/Studium/Studieng%C3 %A4nge/Rechtswissen schaft+f%C3 %BCr+au%C3 %9Ferhalb+des+Geltungsbereiches+des+Grundgesetzes+gra duierte+Juristen+%28LL_M_%29-p-117.html), Konstanz (https://www.jura.uni-konstanz. de/studium/llm-im-deutschem-recht-fuer-auslaendische-juristen/), Marburg (https://www. uni-marburg.de/de/studium/studienangebot/master/m-grudtschre), Osnabrück (https:// www.jura.uni-osnabrueck.de/studium/studiengaenge/llm_deutsches_recht.html), Passau (http://www.uni-passau.de/master-deutsches-recht/), Potsdam (http://www.jura-potsdam), Regensburg (http://www.uni-regensburg.de/rechtswissenschaft/fakultaet/internationales/ llm/index.html) and Tübingen (https://www.jura.uni-tuebingen.de/studium/llm/).

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– Münster University with its general programme on German Law for foreign graduates (https://www.jura.uni-muenster.de/de/international/masterdeutsches-recht-ll-m/). – Würzburg University with its master programme on German Law for foreign graduates (https://www.jura.uni-wuerzburg.de/studium/postgrad uales-studium/aufbau-und-masterstudiengaenge/llm-fuer-im-ausland-gra duierte-juristen/). – Saarbrücken University with its general programme on German Law ((http://http://martinek.jura.uni-saarland.de/llm_en.html) and specially a programme on German Law, that is taught in French (http://llm.cjfa.eu/). More typical are, however, master programmes (LL.M.) on business law in particular, some still rather strongly related to German law, others rather loosely. In the following, we name only those in foreign language – there are, of course, numerous specialised master programs on specific topics in German. 21 The foreign language curricula on business law are offered namely in: a)  Berlin University (Freie Universität) with its Master of Business, Competition and Regulatory Law (MBL-FU) (http://www.jura.fu-berlin.de/en/ studium/masterstudiengaenge/mbl-fu/index.html), all in English, in particular for practicing lawyers. b)  Berlin (Polytechnic) University (Hochschule für Wirtschaft und Recht) with its master programme on Business Law in an International Context (LL.M.) (http://www.hwr-berlin.de/studium/studienangebot/fb-1-kurzform/ unternehmensrecht-im-internationalen-kontext/), partly in English, partly in German, but anchored at the economics department. c)  Bucerius Law School, Hamburg (the only outstanding private law school), offering the Bucerius Master of Law and Business (LL.M. or MLB) (see https:// www.law-school.de/master/?utm_source=daad&utm_medium=listing&utm_ campaign=brand-mlb), all in English, with the main purpose of ‘exploring a company’s lifecycle’. d)  Cologne University (Albertus Magnus) with its master programme on German-Turkish business law, (Deutsches und Türkisches Wirtschaftsrecht, see http://www.dtm.jura.uni-koeln.de), taught in Cologne (German) and Istanbul (Turkish), mainly for Turkish or double nationality/origin students. The programme can be studied as a double degree programme (for more double degree programmes in Cologne – French and Italian –, see below 3.). e)  Mannheim University with its (strongly interdisciplinary) master of Comparative Business Law (M.C.B.L., Mannheim/Adelaide or only Mannheim) (see https://www.jura.uni-mannheim.de/studium/master-of-comparativebusiness-law/), all taught in English. 21 See

https://www.azur-online.de/bildung/deutsche-ll-m.

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Finally, there are also a few master programs mainly oriented towards EU Law. These are the following ones: a)  Hamburg University with its Master European and European Legal Studies (see https://europa-kolleg-hamburg.de/en/master-programmeeuropean-­legal-studies/at-a-glance/