GERMANY Trends and Developments Contributed by: Ivana Mikešić and Caroline Schümann-Cohen, R & P Legal
R&P Legal Berliner Straße 72 60311 Frankfurt am Main Germany
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The Times They Are A-Changing There was a time when, as a specialist in Ger - man regulation, public and administrative law, you entered a room full of international transac - tion lawyers bullying through their most recent, extravagant deal – and you did your best to cover up. Delay revealing your field of expertise until it can no longer be avoided; try not to sound German for as long as you can manage; when you finally speak (only when explicitly asked), speak in hushed tones and simple sentences; and, perish the thought, do not deliver a deal- breaker! Also cherished are fond memories from the start of the millennium, when junior colleagues in the London office who were sentenced to doing regulatory work for reasons they could or would not explain, used to fervently mutter under their breath: “Have we considered EU constitutional rights? Do we have to?” At least formally, no one in the UK will ask this question anymore – everywhere in the trans - actional world, be it in the Continental Euro - pean or the Anglo-Saxon legal sphere, the rise of regulation (vulgo: red tape) and the serious need to deal with it in a skilful and state-of-the art manner is by now an uncompromised fact. The Brussels corridors of the EU Commission –
some say, the spiritual centre of regulation in the legal world – have certainly helped to establish this fact. They clearly work like the expanding universe, for better or worse. Indeed, current practice and insider insights confirm that even in the UK, where the expectation would be that Brexit crusaders have brought about success - ful liberation from over-regulation, clients experi - ence interesting voluntary commitments on the part of governmental and executive bodies to EU law and its interpretation through the CJEU (Court of Justice of the European Union). Who would have thought? Love’s Labour’s (Never) Lost One could venture to draw up a hypothesis: reg - ulation is not necessarily red tape, and red tape in itself is not necessarily bad. It is a matter of wording, of perspective, and of course a matter of having the means at hand for dealing with it. A rise, or a perceived rise, in regulation is in fact an acknowledgement of the progressive complexity of dealings with one another: on a local level, on a national level. In fact, it no longer ends at one’s national border. While it might seem as if the idea of prevailing national interest is gaining ever more weight in the international arena, there is no denying that the density and intensity of international co-
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