Freedom of Exporting in Germany – At the Discretion of Courts and Export Agency BAFA? Some recent developments

Harald Hohmann

doi:10.5771/1435-439X-2018-4-455

Inhalt
- Kapitel Ausklappen | EinklappenAutorenSeiten
- 405–406 Titelei/Inhaltsverzeichnis 405–406
- 407–408 The Professional Vita of Werner Meng Torsten Stein Torsten Stein 407–408
- 409–420 The Day After: Access to the Single Market in Times of Brexit, Equivalence and Extraterritoriality Michael Hahn Michael Hahn 409–420
- 421–436 The Changing Structure of International Trade Law Thomas Cottier Thomas Cottier 421–436
- 437–454 Legal Issues Regarding The Representation Of The Euro Area In The International Monetary Fund (IMF) Maria Meng-Papantoni Maria Meng-Papantoni 437–454
- 455–470 Freedom of Exporting in Germany – At the Discretion of Courts and Export Agency BAFA? Some recent developments Harald Hohmann Harald Hohmann 455–470
- 471–498 The Trade Wars of President Trump as a Threat to the Rule Of Law and to Constitutional Democracy Ernst-Ulrich Petersmann Ernst-Ulrich Petersmann 471–498
- 499–510 Small tensions: EU state aid and international investment law Marc Bungenberg Marc Bungenberg 499–510
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ZEuS Zeitschrift für Europarechtliche Studien , Seite 455 - 470

Freedom of Exporting in Germany – At the Discretion of Courts and Export Agency BAFA? Some recent developments

Autoren

Harald Hohmann

DOI
- doi.org/10.5771/1435-439X-2018-4-455
- ISSN print: 1435-439X
- ISSN online: 2942-3589
Abstract

By the help of two cases, the author demonstrates the impact of the Constitutional freedom of trade: In the Protective Vests Case, if BAFA/Courts were forced to answer the detailed questions of the User’s Guide, the answers concerning repression goods/repression country would very likely have been different; but the Court decided, that this EU document may not limit the discretion of BAFA. In the Iran Case, a narrow interpretation of the Iran list position was required, due to the conflict with international law: Lack of justification by Art. XXI c GATT, there was violation of Art. XI GATT (individual protection under Nakajima) and of national/EU rights of freedom of trade; but the Court decided, that such a Constitutional interpretation cannot be done due to the clear wording of the Iran list position. Nevertheless, the author remains optimistic concerning the freedom of trade: in the last years, there are ca. 5 or more cases per year, in which the exporter lodges a law suit against BAFA for denial of export licenses (instead of a symbolical importance in the sixties); however, all must agree, that only a concrete danger justifies an intervention into this basic right (an abstract danger is sufficient only in case of compensation for the intervention or for danger investigations). Important would be to eliminate a very generous interpretation of foreign affairs risks, and to use the examining competence and applying established principles of administrative, Constitutional and international law, as already Prof. Meng has pointed out.
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