Conferral of Festheft on Jürgen Basedow

MPI for Private Law, Hamburg 19.10.2009

On September 29, 2009 Jürgen Basedow  celebrated his 60th birthday. In keeping with the Festschrift tradition, the Institute marked the occasion by compiling a celebratory edition of the Rabels Magazine for International Private Law containing contributions from Basedow’s students, which was presented on the 19 October as part of a jubilee celebration. Reinhard Zimmermann opened the ceremony, greeting guests both in his capacity as a Director of the Institute and as long term friend and colleague of Jürgen Basedow. In his opening speech he praised Jürgen Basedow as deserving of this honour, particularly for the wide international focus he developed early in his career, for his broad ranging academic achievements and for his ability to combine a range of differing tasks and perspectives, pointing to the diversity of roles he has played as testament to this fact – ranging from consultancy functions to formally established positions, such as the Chairperson of Humanities for the Max Planck Society and the Chairperson of the Monopoly Commission.

The first presentation of the evening, titled “From Rome to Rome via Brussels: Remarks on the Law Applicable to Contractual Obligations Absent a Choice by the Parties” was given by Franco Ferrari, Professor at the Università degli Studi di Verona, who presented his examination of Article 4 of the new Rome I Regulation, and compared it to the previous regulation in the EC Convention on the Law Applicable to Contractual Relations and to Commission proposals for the Rome I Regulation. He focused particularly on the concessions provided in the third paragraph, which according to Ferrari, despite its new tighter formulation, still have exactly the same effect in practice as the previous regulation (Article 4(5) EVÜ). The result is a lack of fundamental change in the relationship between the concessionary clause and its interaction with paragraph 1 and 2, only providing the trigger for its application.

Ferrari then addressed the question of which criteria should be tackled under an independent interpretation of the terms contained in the Rome I regulation, particularly linkages to Article 4(1). He referred specifically to the “concerted interpretation” contained in the 7th recital which requires consistency with other EC international private and civil law instruments. After some examination, he concluded in light of differing legislative aims that this consistency was not absolutely necessary, using the narrow interpretation of regulations for determining jurisdiction designed to protect defendants under the EuGVO as an example. In conclusion Ferrari introduced further possibilities for interpretation which could also be employed for other EC instruments such as the UN Law on International Sales.

Jürgen Basedow contributed heavily to the subsequent open discussion. Sharing his agreement for Ferrari’s findings, he explained that overly strict conflict of laws provisions, as provided in Article 4 of the Commission proposals for the Rome I Regulations, have already proven difficult in the USA.

This was followed by Wolfgang Wurmnest, a former Senior Research Fellow at the Institute, and Professor at the Leibniz University in Hannover, who spoke on anti-trust regulations in his presentation “Kartellrechtliche Grenzen on Parallelhandelsbeschränkenungen durch marktbeherrschende Parmaunternehmen”, (Anti-trust Regulations for Parallel Trading Restrictions on Market Leading Pharmaceutical Companies”) and providing a glimpse into a further field of Basedow’s interest, European competition law.

The presentation was based on attempts to contain the arbitrage profits made by wholesalers and brokers through the one-sided introduction of supply quotas by market leading pharmaceutical companies. These deals generally seek to exploit regulatory price differences for medicinal products between member states.

Following an explanation of the terms ‘parallel trading’ and a brief overview of the national and European regulatory framework for pharmaceutical companies, Wurmnest proceeded to examine the economic and anti-trust assessment of parallel trading restrictions. Here he spoke on the current European case law provided by Lélos v. GlaxoSmithKline, which provided neither an exemption for pharmaceutical products, nor an uncompromising application of Article 82 EG, showing instead a far greater tendency towards mediated assessment. Wurmnest agreed with the EuGH approach, the establishment of a “normal benchmark” taking into account the particularities of national price regulations and the beneficial effect on competition provided by parallel trading within the anti-trust law supply quota systems. Producers of pharmaceutical products however must be provided with a mechanism which enables them to restrict excessive parallel trading of their products.

Placing a mere restriction on the obligation to contract would allow market leaders to refuse to deliver abnormally large orders. However, a “safety margin” must be established, to ensure the social obligations of pharmaceutical companies are satisfied, and to prevent shortages in medical supplies.

The subsequent discussion focused predominantly on the question of whether a more consistent application of competition rules was required, to reach the goal of opening up a previously segmented market and achieve a uniform European market.

Following the discussion, Axel Metzger, a former Research Fellow, now Professor at the Leibniz University of Hannover and representative for all students, spoke of the “school of Jürgen Basedow” describing it as liberal in every way, concluding by presenting Jürgen Basedow with a bound copy of the Festheft.

Jürgen Basedow offered his thanks to the guests who attended the evening, those who presented their work, and all who contributed to the Festschrift. In particular he thanked Hans Hermann Seiler who first brought the Max Planck Institute to his attention during his studies and Ulrich Drobnig and Ernst-Joachim Mestmäker, his academic mentors.