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Anglo-German Law Journal Herausgegeben in Deutschland Vom / Published in Germany by Anglo-German Law Society E.V Anglo-German Law Journal Herausgegeben in Deutschland vom / published in Germany by Anglo-German Law Society e.V. Postfach 08 07 09, 10007 Berlin eingetragen beim AG Charlottenburg (Az.:VR 29205 B) www.agls.eu [email protected] Schriftleitung / Editorial Board: Katharina Steinbrück (Editor in Chief) Angelika Mohr Alysa Brück Hannah Deters Karin Jackwerth Luis Bausch All rights reserved The Anglo-German Law Society e.V. does not guarantee the completeness and correctness of any published articles. The Anglo-German Society e.V. does not have any influence on the current and future design and content of linked external websites. No part of this publication may be repro- duced, transmitted, in any form or by any means, electronic, mechanical, recording or otherwise, or stored in any retrieval system of any nature, without the prior, express written permission of the Anglo-German Law Society e.V.. Enquiries concerning reproducing outside these terms and in other countries should be sent to the Editor in Chief. ______________________________________________________________ Haftungsausschluss und Rechte Alle Angaben und Daten wurden nach bestem Wissen erstellt, es wird jedoch keine Gewähr für deren Vollständigkeit und Richtigkeit übernommen. Der Anglo-German Law Society e.V. hat keinerlei Einfluss auf die aktuelle und zukünftige Gestaltung und auf die Inhalte von per Link verknüpften externen Seiten. Alle in dieser Zeitschrift veröffentlichten Beiträge und Abbildungen sind urheberrechtlich ge- schützt. Manuskripte werden nur zur Alleinveröffentlichung angenommen. Der Autor versichert, über die urheberrechtlichen Nutzungsrechte an seinem Beitrag einschließlich aller Abbildungen allein verfügen zu können und keine Rechte Dritter zu verletzen. Mit Annahme zur Veröffentli- chung überträgt der Autor dem Verein das einfache, räumlich unbeschränkte Nutzungsrecht, jeweils auch für Übersetzungen, Nachdrucke, Nachdruckgenehmigungen und die Kombination mit anderen Werken oder Teilen daraus. Das Nutzungsrecht umfasst insbesondere das Recht zur Vervielfältigung und Verbreitung in körperlicher Form, das Recht zur öffentlichen Wiedergabe und Zugänglichmachung, das Recht zur Aufnahme in Datenbanken, das Recht zur Speicherung auf elektronischen Datenträgern und das Recht zu deren Verbreitung und Vervielfältigung sow- ie das Recht zur sonstigen Verwertung in elektronischer Form. Hierzu zählen auch heute noch nicht bekannte Nutzungsformen. Jede vom Urheberrechtsgesetz nicht ausdrücklich zugelassene Verwertung bedarf vorheriger schriftlicher Zustimmung des Vereins. Das gilt insbesondere für Vervielfältigung, Bearbeitung, Übersetzung, Einspeicherung, Verarbeitung bzw. Wiedergabe in Datenbanken oder anderen elektronischen Medien und Systemen. ©Anglo-German Law Society e.V. 2020 Foreword Dear Reader, When we first started working on the 2020 issue of the Anglo-German Law Journal late last year, none of us could have anticipated what this year would bring. We hope that the final product nevertheless finds you happy and healthy and that our journal might compensate, in some small way, for the lack of face- to-face discourse with colleagues near and far, which you are most likely to currently experience. The Anglo-German Law Journal was created as a means for lawyers to keep looking beyond borders and finding shared solutions. As “Brexit” nears its fi- nal chapter, we remain more determined than ever to keep working together, sharing ideas and gaining insights into each other’s point of view. For this rea- son, too, we are especially delighted to be able to share the 2020 issue of the Anglo-German Law Journal with you. In this issue, we once again present articles on a large variety of legal topics. We encounter a number of current legal issues that are relevant across bor- ders, due to our increasingly globalized and digitalized world. We gain insight into how copyright law might be adapted to tackle the challenges of the digital era and how a law rooted in the darkest chapter of Germany’s past can have unanticipated consequences when foreign movie trailers, posters and vide- ogames are marketed in Germany. We also turn our attention to fundamental questions of EU Law, which may soon lead to a political and legal crisis, as countries grapple to balance national interests and supremacy in the wake of the ever-evolving processes of integration and cooperation within the Euro- pean Union. Finally, we are pleased to publish a comparative article on the law governing companies and to dive into what is most likely unfamiliar territory for many by examining the right to exclude in Scots Law and its partial roots in German Pandectist scholarship. Once again, we thank all authors for contributing their diverse works to the Anglo-German Law Journal and all reviewers who took time to offer the au- thors thorough feedback on their submissions. The Editorial Board 3 make a mark make we Together Werden Sie Teil unseres Teams als Berufseinsteiger oder Rechtsanwalt mit erster Berufserfahrung (m/w/d) im Bereich Public Law am Standort Berlin und sorgen Sie dafür, dass unsere Mandanten grenzenlos sicher agieren können – in Deutschland und weltweit. Wir freuen uns auf Ihre Bewerbung! E [email protected] whitecase.com/careers Table of Contents AGLJ Vol. 5 2020 Inhaltsverzeichnis Table of Contents The Evolution of the Right to Exclude in Scots Law 7 Colin J. Bathgate EZB und EuGH im Ultra-vires-Netz des BVerfG 30 Die weitreichenden Folgen des Urteils des BVerfG zum Public Sector Purchase Programme der EZB Jan Fleischmann Governing Companies 64 A Comparative Analysis of the Foundations of German and English Company Law Ella Moss The Creation and Consumption of Works in the Digital Era 91 Copyright solutions between Private Ordering and Legislative Changes Finn Schädlich Productive Dialogue or Perverse Discussion? 124 An Analysis of the German and English Judicial Approaches to Supremacy of European Law Matt Richardson Fiktive Darstellungen von nationalsozialistischen Kennzeichen 156 in Filmen und Computerspielen im Rahmen des § 4 Abs. 1 Satz 1 Nr. 2 JMStV Célestine Cherrier Montrichard 5 WHERE AMBITIOUS MINDS MEET DR. PHILIPP STOECKER Counsel, Frankfurt www.YourCareerStartsWithC.com Right to Exclude in Scots Law AGLJ Vol. 5 2020 The Evolution of the Right to Exclude in Scots Law by Colin J. Bathgate* Trainee Solicitor at Gillespie Macandrew LLP, Edinburgh ABSTRACT This article is a revised version of an address given at the 10th Annual Meeting of the Association of Law, Property and Society, 18th May 2019, College of Law, University of Syracuse, Syracuse, USA. It explores how the law relating to the Right to Exclude in Scotland has changed. The historic position regarding whom could be excluded had not been clear until during the Victorian period a change in attitude towards land was seen. This gave rise to what can be termed an ex- clusionary approach to land, heralded by German Pandectist scholarship. During the twentieth century this exclusionary approach was challenged by an increased demand for access to Scotland’s land for recreation. Despite over a century cam- paigning for access rights, a Right of Responsible Access to private land was en- shrined in statute by Part 1 of the Land Reform Scotland Act 2003 which heralded an approach in keeping with the Human Flourishing Theory of property rights. * Trainee Solicitor at Gillespie Macandrew LLP, Edinburgh; LLB (Hons) (University of Aberdeen), MPhil (University of Cambridge), Dip.LP (University of Glasgow). I would like to thank Caitlin McFarlane for her comments on earlier versions of this article. I would also like to thank the reviewers of the AGLJ for their comments on the draft of this article. 7 AGLJ Vol. 5 2020 Colin J. Bathgate Introduction The right to the exclusivity of property is an issue that is encountered in all legal systems and a question that different jurisdictions have sought to find different solutions. Blackstone defined property as ‘that sole and despotic do- minion…over the external things in the world, in total exclusion of the right of the other individuals in the universe.’1 Furthermore, the Supreme Court of the United States has decreed that the right to exclude is ‘one of the most essential sticks in the bundle of rights that are commonly characterised as property.’2 At the same time, however, jurisdictions are balancing this right to private property with a desire for people to access the land around them. In Norway the allemannstrett allows access rights over all rural land as long as they ‘are exercised considerately with due care.’3 While in England the Countryside and Rights of Way Act 2000 has opened up 3.2 million acres of private land,4 or between eight and twelve percent of the country5. In Scotland there has been a debate around access to land for over one hundred years, spearheaded by James Bryce MP who introduced twelve bills regarding access to land.6 Yet despite these efforts, rights for the public to access Scotland’s land did 1 William Blackstone, Commentaries on the Laws of England, Volume 2 (2nd edn, University of Chicago Press 1979) 1. 2 Kaiser Aetna v United States (1979) 444 U.S. 164 3 John W. Mackay, ‘New Legislation for Outdoor Access: A Review of Party 1 of the Land Reform (Scotland) Act 2003’, Scottish Affairs No 59 (2007) 1, 2. 4 Jonathan Klick and Gideon Parchomovsky, ‘The Value of the Right to Exclude: An Empirical Assessment’, University of Pennsylvania Law School Faculty Scholarship (2017) 942. 5 Ken Ilganus, This Land is Our Land How we Lost the Right to Roam and How to Take it Back (Plume 2018) 72. 6 John A. Lovett, ‘Progressive Property in Action: The Land Reform (Scotland) Act 2003, 89 Nebraska Law Review (2011) 739, 759. 8 Right to Exclude in Scots Law AGLJ Vol. 5 2020 not materialise until 2003, when the public was granted a right of responsible access7 to all of Scotland’s land.8 This paper will discuss the law of exclusivity rights to land in Scotland. It will seek to provide a historical and theoretical context to the law in Scotland, which has been largely absent from scholarship.9 It will begin by discussing the status of access to land before the Land Reform (Scotland) Act 2003 (here- after the 2003 Act), public rights of way and the modern law.
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