GERMANY Trends and Developments Contributed by: Ivana Mikešić and Caroline Schümann-Cohen, R & P Legal
law firms in private practice focusing on advice to businesses, banks and public bodies were evolving into. In Germany, the world of a regula - tory and public law expert was neat and orderly. Whereas transactional colleagues worked hard to professionalise workstreams, regulatory and public law experts did their best to cope and keep up. These were the early days of bank - ing and finance regulation (Lehmann was still a decade ahead). Foreign trade control was mostly about weaponry and where it could or should be moved around. Building permits for huge projects were basically first approved or rather aligned with the dominating political exponents in charge and then transitioned into a formal document issued by the competent authority; the same applied to operational permits for industrial plants or permits for infrastructure sites or mining. The actual documents were a maximum of 20 pages. Judicial review of opera - tional permits was a rare thing, and environmen - tal NGOs were at a very early evolutionary stage. The most exciting regulatory topics in Germany were the privatisation of telecommunication systems, assets and services and the deregula - tion of railway infrastructure and operation, both The present has proceeded far beyond this fairy land. Capital markets regulation has turned from a commodity into a prime compliance concern, and with this, into a vast field of legal expertise in its own right. Military micro- and macro-con - flicts have turned the world into a minefield in terms of sanctions regimes. Corruption compli - ance rules hold vast consequences for compa - nies’ ability to navigate their business interest at home and abroad and to participate in public tenders. ESG reporting standards have shaken up the hitherto innocent world of banks, insti - tutional investors and corporates. EU state aid driven by EU law. What’s Going On
regulation has curbed national interest policies in the EU member states. Public procurement rules have tightened and are getting ever more sophisticated as competitors’ appetite for judi - cial review keeps growing. Building, construction and mining get more dif - ficult in times when free space is getting scarce. Foremost, balancing the interests of NIMBYs and the public demand for better infrastructure or the erection of wind farms has grown close to impossible. The German Green party is con - sumed by this inherent antagonism: on one hand, better railway infrastructure is needed to curb health-threatening emissions from automo - tive traffic and aviation, and there is the desire to move towards power generation from renew - able sources; and yet, in building all of this, the landscape or the life of birds and beetles is not necessarily improved. This contradiction of poli - cies directly translates into actual stagnation of licensing procedures. The average procedure for a medium-sized industrial plant with medium- sized emissions takes two to three years and the final permit consists of at least 80 pages, with numerous expert opinions attached; the lists of encumbrances and conditions resting on top of an average operating permit will keep a special - ised facility and environmental manager busy for a lifetime. Not least, the demand for efficient energy sup - ply, advanced infrastructure and unobstructed transport, be it of travellers, goods or data, has developed from a mere necessity within a legal framework to an investment item, to an asset class of its own. Paradise Lost – Now Face Reality The times of regulatory-free innocence will not come back. Why not apply a sober approach.
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