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Sentenza 238/2014 has led to a sharp dissonance between the international law of state immunity as interpreted by the International Court of Justice (ICJ) and Italian constitutional law as understood and applied by the Corte Costituzionale. While the interpretation and application by the Italian Constitutional Court (ItCC) of the access-to-courts provision in the Italian Constitution may not have been inevitable, this does not remove the need for finding a solution to the stalemate between international and domestic law. On the one hand, the easy solution, namely that the rejection of German state immunity from jurisdiction does not necessarily remove immunity from execution into German property, appears unlikely to be accepted by the ItCC because it would give stones rather than bread to the complainants and render court access a futile exercise. On the other hand, bringing Sentenza to its logical conclusion would result in Italy having to return to Germany what Italian courts took from her by requiring compensation—either by way of the general international law of restitutio in integrum, which the Corte Costituzionale has neither contemplated nor contradicted, or by way of the 1961 Treaty between Germany and Italy in which Italy promises to indemnify Germany against any further claims. Thus, a compromise would have to distinguish between full access to the Italian courts notwithstanding international immunity—as required by the ItCC—and substantive law, which could accept a more symbolical recognition of the suffering of the victims. That recognition could stem from a direct source other than the two states involved, such as a common fund, and address only the small group of immediate victims who were unjustly, if arguably legally, excluded from the previous compensation scheme of the 1960s. It is by no means certain, however, whether such an outcome would be acceptable to all sides—including the Corte itself. Thus, legal certainty would have to be established as quickly as possible so that the victims can still receive at least symbolic compensation.

The criticism that the recourse to Article 9 instead of Article 7 has a negative impact on legal certainty has several facets. The most important aspect is certainly that commitment decisions are de facto only scarcely appealed. Critics stress above all that the use of commitments reduces the likeliness that a judicial precedent is created which contributes to the clarification of the law. However, there are also other issues that raise commentators’ concerns: The absence of clear criteria when the commitment procedure applies; the lack of a right of the concerned undertaking to a commitment decision; the room left by Article 9 to the Commission’s power to prioritise cases; and the effects of commitment decisions on the practice of the competition authorities and courts of the Member States. The present chapter will organise the assessment of the mentioned aspects in a first section that deals with the disadvantages of the Article 9 procedure in terms of legal certainty. The second section will then place an emphasis on an advantage of the adoption of a commitment decision in terms of legal certainty that, it is submitted, has to date been paid too little attention: The fact that a commitment results in precise and enforceable obligations.

The Commission’s use of commitment instead of infringement decisions is criticised for three reasons: The relaxation of the link between harm and remedy; the relaxation of procedural safeguards; and the negative impact on legal certainty. In the view defended throughout the present study, most of the criticism is not justified. There is no need for reform.

So far, the present study has argued that most of the criticism that is levelled at the Commission’s use of commitment decisions is not justified. In the view defended here, the recourse to the Article 9 instead of the Article 7 procedure entails only a modest relaxation of the link between harm and remedy and of the procedural safeguards; it entails also only a modest negative impact on legal certainty. It is submitted that these modest shortcomings are, from an abstract point of view, acceptable in view of the consensual nature of commitments and of their underlying goal of procedural economy. This conclusion applies without prejudice to the necessity to balance the respective costs and benefits of Article 7 and Article 9 in each individual case according to the circumstances of the case at hand.

Today, standards are the foundation of almost all technical developments. They are the basis for companies that want to penetrate national and international markets and they also provide legal certainty. In our society, standards ensure trust and safety and bundle developers’ resources in order to create safe and manageable products in a goal-oriented manner.

The obligation to recover illegal and incompatible State aid, even though it is a basic principle of the system for controlling State aid, is not absolute. For example, this obligation would be overridden in cases involving protection of the general principles of EU law, legitimate expectations or legal certainty. This chapter, after examining the EU’s practice in applying these principles, will look at two recent examples of State aid cases in Spain in relation to this issue, one of which concerned financial goodwill and the other, the Spanish tax lease. Finally, some observations will be made about the recent legislative developments in Spain with respect to the recovery of fiscal State aid.

This contribution seeks to provide an answer to the question how much regulatory innovation TRIPS allows. It starts from the premise that TRIPS fosters innovation—and actually legal regimes should also profit from the benefits of an innovative structure. This, however, clashes with traditional concepts of legal certainty. The benefits outweigh the costs of a less certain, more open legal regime. The debate on regulatory competition pays some attention to this. The authors thus analyse the TRIPS Agreement with specific focus on the regulatory power and pressure exerted by rules in TRIPS. For this endeavour, they apply an institutional perspective and turn to regulatory techniques used in TRIPS. Regarding the regulation of intellectual property in TRIPS, different mechanisms can be distinguished that have a different impact for the member states. To make this plain, the authors “code” the different instruments used in the Agreement with numbers attaching more extreme numbers to rules that have a high intensity of regulation. In a second step, the authors analyse the meta-structure of TRIPS to find out how open it is for adaption. Several different approaches towards TRIPS are included. In both instances, the authors point to the possibilities of change. A shift towards a more innovation-friendly, more open, more flexible regulatory regime would make TRIPS a “learning treaty”.

The harmonization of the legal framework for criminal enforcement of intellectual property rights (IPR) at the regional and international level has since its inception been a sensitive and difficult issue, mainly due to the diverging moral and cultural legal conceptions of negotiating parties and because of strong sovereignty issues traditionally raised by criminal law. Against this background, the current international provisions on the subject established in Article 61 of the TRIPS Agreement only provide for a minimum standard level on criminal measures for the infringement of intellectual property rights. This situation was perceived by many developed nations as the result of an ineffective multilateral approach and led them to advance precise and tougher TRIPS-plus provisions on criminal enforcement in bilateral, plurilateral or regional agreements. These efforts to strengthen the criminal framework in an undifferentiated manner caused strong counter-reactions and even led to the overall rejection of intellectual property rights protection in certain cases. The general tendency to criminalize end users in relation to copyright infringements on the Internet is a good example.

This chapter addresses the legal outlining of the supervisory review process. There is an apparent contradiction between principles-based insurance supervision on the one hand and, on the other hand, legal certainty along with foreseeability of supervisory action under art. 36 of the Solvency II Directive. With this in view, the chapter next examines the objectives and subject matter of the supervisory review process, with particular scrutiny given to requirements relating to solvency and governance. The powers of supervisory authorities to remedy weaknesses and deficiencies are then taken up.

As mentioned, this analysis focuses on some recognized major, fundamental aspects of the rule of law, such as separation of power, protection of fundamental/human rights, supremacy of law, and independence of courts and judges. Regarding legal certainty, it will especially concentrate on one crucial reason for different levels of certainty in the “West” and in China: the mentality of rule-making.

This chapter will lay out the policy goals that MOFCOM pursues in its substantive merger control assessment and show whether MOFCOM has hereby succeeded to reconcile the different policy objectives of Chinese merger control. As discussed above in Sect. 5.1.2.2, the main gateways for non-competition objectives to enter MOFCOM’s assessment are Articles 5, 27 No. (5), and 28 sentence 2 of the AML. It has been proposed in Sect. 5.3 that MOFCOM should focus on competition-related goals for the sake of China’s long-term economic development, and it will be assessed below whether MOFCOM’s enforcement practice is consistent with the suggested standard. Moreover, it will be examined whether MOFCOM’s application of the AML provides legal certainty to business operators involved and conforms with to international standards.

After having summarised the merger decisions that MOFCOM has published until December 2013, the following chapters will position the written merger control law and MOFCOM’s enforcement practice into the broader context of competition policy. As discussed above in Chap. 5, Chinese merger control encompasses a number of different policy goals, including industrial policy considerations, and MOFCOM’s enforcement practice has to fulfil the benchmarks that are inherent in the Chinese Constitution and the AML itself. The practical implementation should be transparent and grant legal certainty, as required by the principle of the rule of law. Further, MOFCOM should achieve an appropriate balance between the conflicting goals of Chinese merger control. These two criteria will, in the following, constitute the substantive standards against which MOFCOM’s enforcement practice is measured.

To recapitulate, this thesis was aimed at analysing and answering the following research questions

This chapter will analyze the infringement liability for Internet service providers (ISPs) and safe harbor regulations. This chapter will first provide a definition of ISPs and the significance of setting up the legal certainty of their liability and exemptions. This chapter will also analyze indirect liability and safe harbor rules for ISPs established by common law cases. The influential safe harbor rule developed by the Sony case, contributory and vicarious liability developed from American landmark cases, and authorization and joint tortfeasor liabilities developed from Commonwealth landmark cases will be discussed. This chapter will then proceed to analyze a couple of liability and immunization rules enacted by statutes, including the notice and takedown regime, counter notification regime, and the subpoena procedure or Norwich Pharmacal order. This chapter will then elaborate on the recent developments in the conditions for ISP safe harbors and the remedies against ISP indirect infringement, taking the graduated response policy from the French government and injunction orders against ISPs in European courts as example. In this part, the approach of the graduated response policy, the influence of such a policy on copyright owners, ISPs and public users, and China’s response to such a policy will be further discussed. Typical cases in which ISP injunctions were granted will be analyzed to indicate the proportionality that courts should take into consideration when deciding whether to approve such remedies. This chapter will finally suggest recommendations to establish certainty for ISP liability and safe harbors in general and for China’s digital copyright reform on ISP issues in particular. Recommendations include the establishing of certain standards for important factors in the indirect liability of ISPs, reforming notice and takedown regimes by incorporating a grace period and exceptions, adopting a Norwich Pharmacal procedure to guarantee the privacy of subscribers and taking a multitude of approaches to better provide certainty for ISP liability.