On 14 October 2004, the Bundesverfassungsgericht (BVerfG – German Federal Constitutional Court) voided a decision by the Oberlandesgericht (Higher Regional Court) Naumburg, finding a violation of the complainant's rights guaranteed by the Grundgesetz (German Basic Law). The Decision directly addresses both the observation and application of case law from the European Court of Human Rights under the Basic Law's “rule of law provision” in Art. 20.III. While there is a myriad of important aspects with regard to this decision, we may limit ourselves at this point to the introductory aperçu contained in the holdings of the case. One of them reads as follows:

On the occasion of the republication of the “blue volume,” containing the proceedings of the 1986 “Critical Legal Thought: An American-German Debate” Conference at the University of Bremen Law School, much or little might be said as to the significance, promises or learned lessons of that event. The original conference conveners, like the editors of the ensuing volume, do much of that in the following pages. In fact, their recollection of the motivations and ideas driving the transatlantic event provides a marvelous view into the evolving mystery of legal thought, education and professionalism - on both sides of the Atlantic. The two accounts rightly embed the mid-1980s conference in a much larger historical context. Christian Joerges’ much-referenced account reaches back deep into the constituting phases of nineteenth-century German legal thought. David Trubek's essay is a thoughtful critical assessment of both the gaps and the overlaps between the German and the American legal cultures in the lead-up to and of the globalizing aftermath of the event.

On its website “The EU Single Market – Fewer barriers, more opportunities”, the European Commission lists the judgments by the European Court of Justice [ECJ] dealing with the free movement of capital under Art 56 EC Treaty (ex 73b). The latest update of this list is the Court's Volkswagen decision of 23 October 2007 (Case C-112/2005), which the Commission had launched against the Federal Republic of Germany on 4 March 2005. This suit, brought under Art. 226 EC Treaty, had been long coming. That the Volkswagen statute, which effectively gave the Federal government and the Land (federal state) of Niedersachsen (Lower Saxony) a veto against majority acquisition while only holding a fifth of all shares, would come into the Commission's purview, could hardly surprise, given the Commission's activity with regard to such ‘golden share’ provisions under Portuguese, French, Belgian and English company laws. The most recent decision of the ECJ in the case of Volkswagen is of interest in more than one respect. Not only does it constitute a continuation and further accentuation of a line of argument that the Court has been unfolding over past few years with regard to the Member State provisions in conflict with the EC's guarantee of the free movement of capital as laid down in Art. 56 EC.

There is currently a considerable amount of soul-searching underway by scholars on both sides of the Atlantic. For the cosmopolitanites of the academic world, the unpleasant disagreements over policy towards Iraq between Old Europe and the New World were not only unsettling but symptomatic of a more deep-seated disagreement between (former) friends. The theme of the Unidem seminar, held at the University of Göttingen on May 23-24, 2003, can be seen as sitting nicely within a desire for an explanation for this tension. Clearly underlying the organization of the conference, choice of themes and the invitation of speakers was the organizer's desire to reach a greater understanding of the difference and similarities between constitutionalism in Europe and in the United States and the reasons for and consequences of these divergences. Thus, although the Iraqi crisis obviously took place long after the theme of the conference had been conceived (and it has to be said that Georg Nolte's conferences appear to have a habit of coming hard on the heels of related dramatic events in the real world, suggesting an almost magical foresight on his part), it should nevertheless be understood as falling within this movement.

In times of a continuously expanding proliferation of investment and financing possibilities in the hands of banks, investment funds and individual capital investors, particular attention should be paid to the effects that new financial instruments are likely to have not only on concrete financing and investing modes but also on the further development of legal rules in this field. As the German capital market has been considered unable - at least until the widely marketed Deutsche Telekom IPO - to get rid of its persisting prejudice of being structurally lagging behind other countries’ systems, the legal treatment of emerging financial instruments deserves greatest attention. The rocket science of new financial instruments challenges law's aim to rightly assess the real quality of these instruments and to strike an adequate balance between the interests involved against a national policy background and EU demands. While the past few years have been a time of great legislative activity in the field of company and capital market law in Germany, only a closer look at court decisions reveals the true pressure resulting from a fast moving capital market on traditional legal perceptions. The so-called Aktienanleihe-Decision by the Federal Court of Justice, [FCJ] (Bundesgerichtshof - BGH) of 12 March 2002 marks an important step in the ongoing process of Germany's developing capital market law.