The paper shows how the efficiency of the German supervisory board has been significantly improved in the last decade. These legal changes made the supervisory board climb to a higher position of power. In particular, the supervisory board is now significantly involved in the decision-making process on a company's overall strategic concept and on management decisions of fundamental importance. This emphasizes the future-oriented monitoring obligation of the supervisory board, which gained much more importance in the last decade. Furthermore, the new provisions increased the flow of information from the management board to the supervisory board, and they facilitated the monitoring efficiency of every single supervisory board member. In addition, several important changes improved the cooperation of supervisory board and auditors. The most recent changes strengthened the supervisory board's responsibility with regard to internal control and risk management.

The vest majority of those changes in the German supervisory board system are very welcome. However, the current regime of German codetermination as well as the excessive size of the supervisory board has to be changed. Under the important developments on the European level, the time has come to act now in this direction. The advocated concept of codetermination by consensus provides a solid basis for more flexibility in the rigid German corporate governance system. It is also desirable to further limit the size of the supervisory board to no more than twelve members. Finally, the efficiency of the corporate governance system would be improved by allowing enterprises to choose between a one-tier and a two-tier board system.

Since the 1980s Germany has developed a subtle and complex data protection jurisprudence originally designed to protect individual data subjects from rights abuses by market actors. However, the rights aggressor has increasingly been German and European law enforcement authorities. This evolving corpus of law also exhibits a singularly-German mindfulness of the historical significance of abrogating fundamental rights within constitutional democracy.

On 4 September 2009 an officer of the German Bundeswehr (German Army) in Afghanistan, Colonel Georg Klein, ordered an airstrike against two gas tanker trucks hijacked by the Taliban. In this airstrike, carried out by U.S. Air Force pilots, up to 140 people were killed, among them not only members of the Taliban but also many civilians. This raises the question of criminal responsibility of German soldiers who operate in Afghanistan. The Generalbundesanwalt (General Public Prosecutor) investigated the case and recently decided to terminate the investigations against Colonel Klein. Despite this decision not all questions are answered. I will present a more comprehensive analysis of the case, not only commenting on the decision of the Generalbundesanwalt, but also applying different factual hypotheses leading to a different legal assessment of the case. At the outset I will look back at the line of cases known as the “Road Block Cases,” and seek to explain how the criminal responsibility of German soldiers has been dealt with in the past.

Today's world has been deeply affected by globalization. Different cultures have deepened their knowledge of each other and are forced to create common solutions to worldwide problems. This has led to an increasing interest in comparing different nations’ approaches to common problems.

Modern global food supply chains are characterized by extremely high levels of concentration in the middle of those chains. This paper argues that such concentration leads to excessive buyer power, which harms the consumers and food producers at the ends of the supply chains. It also argues that the harms suffered by farmers are serious enough as to constitute violations of the international human right to food, as expressed in the Universal Declaration of Human Rights and more specifically, in the International Covenant on Economic, Social and Cultural Rights. World competition law regimes cannot ignore these human rights imperatives. To a certain extent, these imperatives can be accommodated under existing consumerist competition law theories by the interpretive mechanism of conform-interpretation. However, when one comprehends the truly global scale of modern food supply chains, it becomes obvious that conform-interpretation alone will not suffice. Instead, the protection of a minimum level of producer welfare congruent to those producers’ right to a minimum adequate level of food must find a place among the aims of any credible theory of competition law. Moreover, the same globalized nature of these food supply chains means that current doctrines of extraterritorial jurisdiction of competition control have also to be revised.

The concern for the safety and security of personnel involved in peacekeeping missions has grown in the last two decades, mainly because of the increased risks deriving from deployment in volatile environments and mandates comprising multiple tasks. This article provides an overview of the developments of international law regarding the protection of peacekeepers, with a special focus on international criminal law and its role in enhancing the safety of the personnel and objects involved in peacekeeping missions. Indeed, starting in 2008, international and hybrid tribunals have issued their first decisions and judgments against individuals indicted for war crimes and crimes against humanity in connection with attacks against peacekeepers.

After an analysis of the legal regimes established by the 1994 Convention on the Safety of United Nations and Associated Personnel and by international humanitarian law, the article examines the relevant international criminal law provisions and their application and interpretation by the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, and the International Criminal Court. It is argued that the application of the specific war crime of attacking peacekeepers, introduced for the first time in the Rome Statute in 1998, presents particular challenges, but it has also led to the punishment of a broader range of offences against peacekeepers. Furthermore, the application of this crime may contribute to the broadening of the range of punishable offences under the more general war crime of attacking civilians, thus leading to the enhancement of the protection of civilians.

For Germany 2009 was a year of constitutional anniversaries: the first democratic constitution (Paulskirchenverfassung of 1849) was promulgated 160 years ago; the 1919 Weimar Constitution would have turned 90; and finally, the country celebrated 60 years of the Basic Law, which was proclaimed and signed in Bonn on 23 May 1949. Despite its birth in the midst of economic and political turmoil and widespread disillusion with politics, the Basic Law has come to be regarded as a “success story.” As is well known, it was never meant to last – the very term “Grundgesetz” (basic law) indicated that it was intended to serve as a temporary constitutional framework until the enactment of a new constitution for the whole of Germany. Yet the Basic Law outgrew its provisional character. Today, not only the political establishment is united in praising the Grundgesetz. The scholarly assessment also has been mostly positive. The constitutional bargain struck in 1949 has been able to achieve what no previous German constitution had managed. The right and the left of the German political spectrum fashioned an enduring compromise that combined democracy, federalism and the welfare state. It is part of the story that the old anti-liberal and nationalist elite had been thoroughly delegitimized by loosing the war. Also, the Allies gave the effort an additional nudge. The progressive changes could then be implemented quite effectively by relying on the juristic culture of the Rechtsstaat that dates back to the bureaucratic legacy of, among others, the Prussian state.

This article examines the German Pfandbrief (“covered bond”) as an example of the banking practice of “originate to hold” by which mortgage debts are retained on the balance sheet of the originator and not sold on to a third party such as an investor or hedge fund. The global financial crisis (GFC) of 2008-2009 will be forever linked to the process known as “securitization” and the distribution of mortgage-backed securities throughout willing and later remorseful financial markets. But this is not the only model. As a member of the Executive Board of the European Central Bank (ECB) noted in June of 2008, “it may be worth recalling that this [originate to distribute model] is not the way banks have historically done business. Under the traditional—perhaps, I should say secular—‘originate to hold’ business model, banks extend loans to firms and households and hold them in their balance sheets until they mature or are paid off.”

There has been much discussion of the proper scope of the European Treaty articles on free movement. Central to this discussion has been a debate about the best concept around which to build free movement law, and in this debate “discrimination” has been opposed to “market access.” It is, however, the central thesis of this paper that the opposition is largely false. In general, measures which affect all market actors equally do not, as a matter of economic fact, impede market access. The non-discriminatory measures which impede market access, which some have felt it so important to bring within the Treaty, are therefore more mythical than real. This argument is made with reference to competition law and theory concerning barriers to market entry.

The German Federal Constitutional Court (FCC) has found that there are no constitutional objections against the Lisbon Treaty. At the same time, the FCC imposed limitations to future integration by identifying a number of state functions that are non-amenable to integration and which have to be retained at the national level. This article examines the scope and content of these core competencies. It also discusses to what extent the criteria used by the FCC for the determination of core competencies might reflect a European-wide standard for the determination of limits to the transfer of competencies to the European Union. The article concludes that the judgment clarifies the limitations of the transfer of competencies, even though the criteria used by the FCC cannot claim to produce the set of inalienable sovereign powers that were recognized as such throughout the Union.

“Should bankers be publicly hanged for what they have done?” During a visit to Abu Dhabi in March 2009, the author came upon this sarcastic question while reading the well-known United Arab Emirates' journal “The National.” The aforesaid question was part of an interview with Paul Koster, chief executive of the Dubai Financial Services Authority, concerning the financial crisis. He answered in the negative by saying, “There will be court cases, but public hanging is a bit extreme.” His statement has, in a way, anticipated the result of the paper at hand: There should be criminal proceedings in Germany as well; however, they should not result in draconian criminal consequences.

Legal principles are an essential element of jurisprudence. They help to systemize, to comprehend and to further develop a legal order. Although International Internet Law is quite a new legal subject, some principles begin to evolve. The article addresses five emerging core principles of International Internet Law: (1) The principle of internet freedom, (2) the principle of privacy, (3) a modified principle of territorial jurisdiction adapted to cyberspace, (4) the principle of interstate cooperation, and (5) the principle of multi-stakeholder cooperation.

In a pluralistic society, agreement over complex issues is frequently difficult to achieve. This is amply demonstrated by the question of cultivation of Genetically Modified Organisms (GMOs), where scientific uncertainty relating to potential threats to the environment or human health runs parallel with concerns over ethics, freedom of choice, and competing agricultural and economic interests. Conflict centres over the objective of free trade of GMOs and the circumstances in which restrictions may legitimately be imposed to deal with the abovementioned concerns, in particular regarding cultivation.

The aim of this working paper is to analyze the compatibility between two relevant provisions of the General Agreement on Trade in Services (GATS) under the World Trade Organization (WTO). The first is art. VII, Recognition, which seems to allow a Member to recognize standards of one or more Members—and not of others—without violating its GATS obligations, although this freedom should not be abused. The second is the general Non-Discrimination provision as of GATS art. II, since the aim of the GATS, at least as it reads in its preamble, is to provide a multilateral framework to trade liberalization in the services market on a non-discriminatory basis. Through the following pages, I will try to explain the rationale to sign Mutual Recognition Agreements (MRAs) and their impact on the GATS system. It is true that there is a general principle of transparency and openness of the MRAs, but it is necessary to get our hands dirty with the reality and understand if and how such an openness clause works.

When computer crime statutes had yet to be enacted, computer crimes were subjected to traditional criminal laws. This policy resulted in greater expense and other considerable difficulties. These problems and difficulties paved the way for the emergence of a consensus calling for legislators to intervene and enact specific computer crime legislation suited to confronting this new type of criminal activity. Many countries in the world responded by enacting new criminal legislation and many others are on their way to take similar legislative steps.

For the legislative intervention to be sound and successful two major questions should be adequately addressed; the scope of legislative intervention and the nature of computer crime legislation enacted. Regarding the first question, new criminal provisions are needed only to cover those crimes that are unique to computers themselves, other crimes in which a computer is used simply as an instrument for perpetration are either covered by existing criminal provisions or can be covered by simple amendments of said provisions. Another step that should be taken by legislators is the amendment of existing criminal laws with an aim to cover some special cases such as the cases in which the computer is used as an instrument for committing known traditional crimes, making the perpetration of such crimes easier or resulting in more dangerous consequences compared to their more traditional forms and cases in which intangible digitized property comes under threat from criminal activities.

While many countries in the world have soundly followed such a method in dealing with computer related misconducts legislatively, others have failed to do so. In some countries, the legislator has criminalized some criminal conducts that have long since been criminalized by that country's penal code. This creates conflict between criminal provisions, posing problems to prosecutors and courts alike.

Regarding the nature of computer crime statutes, the legislator is presented with two options. The first is the inclusion of the aforementioned criminal provisions in one separate code as one specific computer crime statute. The second is inserting substantive criminal provisions related to computer crimes into the existing penal law of the country. While the first method preserves the unity of substantive criminal law of the country in one code and prevents the dispersion of criminal provisions into many separate laws, the second one would, by contrast, create much-needed public awareness of computer crime.

Defining competences in EU law has always been problematic, notwithstanding the inclusion since the Treaty of Maastrict of the principle of conferred powers as central to the constitutional character of the EU. Under the principle of conferral, the Union only has those powers actually conferred by the Treaties. However, the concepts of a common market or of ‘ever-closer Union’ have a conceptual scope that potentially, in effect, negates the principle of conferral. This article argues that the framework of norm conflict offers conceptual insight into the dynamics of determining and limiting EU competence. In particular, it draws on the distinction between lex specialis and lex generalis to understand different ways of treating competence norms in legal reasoning. Following a discussion of the concept of competence norms, this conceptual framework is applied to two case studies: (1) on the right to strike and (2) the general law of external relations.

This Paper considers the jurisprudence of the Court of Justice in relation to the free movement provisions of European Community law in relation to goods, persons, services and capital within the European Union. It examines the bases used by the Court in its application of Community free movement provisions to national measures that may seek to hinder the exercise of such rights. From limited enquiry originally founded on considerations of non discrimination based on nationality, to one most recently focussed on the ‘restriction’ to the free movement right, the Paper examines the methods employed by the Court of Justice in its scrutiny of the national measure appearing to conflict with Treaty free movement rights.

The examination of the applicable free movement jurisprudence attempts to demonstrate the want of a thematically consistent underpinning within free movement case law. The Paper draws attention to the complexities and even the confusions that appear to be inherent within free movement jurisprudence and arguably evidenced within the Court's journey from ‘discrimination’ to ‘restriction’ as the basis of the enquiry with regard to the application of Treaty free movement rights. In its consideration of Case C-110/05 Commission v Italy, Case C-142/05 Åklagaren v. Percy Mickelsson v. Joakim Roos, recent jurisprudence with respect to the free movement of goods, the Paper notes that in the context of the ‘measure having equivalent effect’, the emphasis in the assessment of the national rule has shifted to an examination of the effect on market access, rather than a distinction based on the type of rule.

The following essay was the keynote delivered at the International Conference of the German Law & Society Association in Bremen, Germany, in March 2010. In seeking to understand the formation of the Association of the Sociology of Law it is important to be mindful of the context of the spirit of the 1960s and 1970s in which it arose. Sociology of law's beginnings can be traced to the start of the 20th century with especially Eugen Ehrlich, Max Weber, Hermann Kantorowicz, Arthur Nußbaum and Theodor Geiger. However, after nearly being wiped out under German National Socialism, it began to re-emerge slightly in the 1960s.

The entry into force of the Lisbon Treaty has changed the framework and possibilities of the development of European Union (EU) criminal law. Gone is the long-lived and awkward cross-pillar character of EU criminal law, as mainly a third pillar EU ‘intergovernmental’ issue but also partly a first (EC) pillar question. The Lisbon Treaty marks a new era for the criminal law as it brings it within the core of the EU law project. Nevertheless, Article 10 of the transitional protocol as attached to the Lisbon Treaty stipulates a five-year transition period before former third pillar instruments will be treated in the same way as EU acts. This paper will focus on two issues in particular. The first question that will be addressed concerns what EU law principles drive or decide the EU's involvement in criminal law. After having identified these principles the second question is whether they should drive it and if so what implications will it have for the criminal law in the future.