scholarly journals Constitutional State and Public Administration

2021 ◽  
pp. 17-33
Author(s):  
Karl-Peter Sommermann
Keyword(s):  
Public Administration ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
State Action ◽  
Constitutional Principle ◽  
Basic Law ◽  
Constitutional State ◽  
The Social ◽  
German Constitution ◽  
Federal Constitutional

AbstractGerman public administration is rooted in the tradition of the Rechtsstaat, which aims at the protection of human dignity and individual freedom by providing rules, principles and institutions that ensure the prevention of arbitrary state action and the protection of individual rights. At supranational and international levels, the principle of the Rechtsstaat has been merging with the common law concept of the rule of law. A dynamic interpretation of the Basic Law (the German constitution) of 1949 by the Federal Constitutional Court has constantly specified and extended the normative scope of the fundamental rights, which are directly binding on the legislative, executive and judicial powers. The constitutional principle of the social state (Sozialstaat) has enhanced not only the dynamic evolution of the law, but also the creation of largely equivalent levels of infrastructure and services in the different territories of the German state.

International Treaties and The German Constitution

2019 ◽  
pp. 171-190
Author(s):  
Stefan Kadelbach
Keyword(s):  
German Law ◽  
Foreign Affairs ◽  
European Convention ◽  
Constitutional Court ◽  
International Treaties ◽  
Basic Law ◽  
The Status ◽  
German Constitution ◽  
Federal Constitutional

This chapter deals with the making, status, and interpretation of international treaties under the German Constitution. It describes the interrelationship of the different institutions in treaty-making and shows how a comparatively old provision of the German Basic Law has been adapted slowly to new circumstances over the past decades. Thus, even though foreign affairs has remained a domain of the executive, several developments have contributed to an enhanced role of Parliament over time. These developments are partly due to the role of special sectors of law such as EU law and the law governing the use of force and partly due to changes in constitutional practice. As for the status of treaties in German law, the Federal Constitutional Court has developed a stance according to which treaties generally share the rank of the legal act that implements them into domestic law. A notable exception is the European Convention of Human Rights, which has assumed a quasi-constitutional rank by means of consistent interpretation. Some reference is made to other continental systems to assess how far different constitutions bring about certain features; various systems appear similar in many respects at first sight, whereas features in which they differ may be a source of inspiration for future constitutional practice.

The Decision of the Bundesverfassungsgericht of April 12, 2005 – Concerning Police Use of Global Position Systems as a Surveillance Tool

2005 ◽  
Vol 6 (7) ◽  
pp. 1085-1092 ◽  
Author(s):  
Nicole Jacoby
Keyword(s):  
Constitutional Court ◽  
Personality Profile ◽  
Global Positioning Systems ◽  
Positioning Systems ◽  
Basic Law ◽  
Global Positioning ◽  
German Constitution ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

On April 12, 2005, the Bundesverfassunsgreicht (German Federal Constitutional Court) ruled that regulations in the Strafprozessordnung (StPO – Code of Criminal Procedure) concerning police use of global positioning systems (GPS) did not violate the Grundgesetz (GG – German Constitution or Basic Law) so long as the investigators did not use the technology in conjunction with other surveillance methods that could lead to the construction of a personality profile of the suspect observed. The following comment examines the facts of the case and evaluates the Court's decision in detail.

German Constitutional Law

2019 ◽  
Author(s):  
Bumke Christian ◽  
Voßkuhle Andreas
Keyword(s):  
Constitutional Law ◽  
Case Law ◽  
Equal Treatment ◽  
Constitutional Court ◽  
Basic Law ◽  
German Constitution ◽  
Federal Constitutional ◽  
Book Covers ◽  
The Right ◽  
German Constitutional Law

This book provides a comprehensive summary of German constitutional law, in particular the case law of the German Federal Constitutional Court. It provides first-hand insight into the complex principles of the Basic Law, or Grundgesetz (GG), and an authoritative introduction to the history of the German constitution, the Basic Law, and the methodology of the Federal Constitutional Court. As well as an analysis of the general principles of German constitutional law, the book covers the salient articles of the German constitution and offers relevant extracts of the Court's most important decisions on the provisions of the Basic Law. It provides notes and discussions of landmark cases to illustrate their legal and historical context and give the reader a clear understanding of the principles governing German constitutional law. The book covers the fundamental rights catalogue of the Basic Law and offers a comprehensive account of its intellectual moorings. It includes landmark jurisprudence on the equal treatment of same-sex couples, life imprisonment, the legal structure of property, the right to assembly, and the right to informational self-presentation. The book also covers the provisions and respective case law governing the state structure of Germany, for instance the recent decisions on the prohibition of the far-right German nationalist party, and the Court's jurisprudence on European integration, including the most recent decisions on the OMT program of the European Central Bank.

scholarly journals The Ban on Strike Action by Career Civil Servants under the German Basic Law: How the Federal Constitutional Court Constitutionally Immunized the German Legal Order Against the European Convention on Human Rights

2020 ◽  
Vol 21 (2) ◽  
pp. 223-239
Author(s):  
Matthias Jacobs ◽  
Mehrdad Payandeh
Keyword(s):  
Human Rights ◽  
Legal Order ◽  
Civil Servants ◽  
European Convention ◽  
Constitutional Court ◽  
Fundamental Freedom ◽  
Basic Law ◽  
European Court ◽  
German Constitution ◽  
Federal Constitutional

AbstractThe Federal Constitutional Court has decided that the prohibition to strike for career civil servants, as it has traditionally been part of the German legal order, is in compliance with the German Constitution. The Court thereby put a (provisional) end to a long-lasting debate on how to solve the tension between the fundamental freedom to form associations under Article 9(3) of the Basic Law, which arguably encompasses a right to strike, and Article 33(5) of the Basic Law, which protects the traditional principles of the career civil servants, which arguably encompasses the prohibition to strike. Through recognizing that the ban on strike action by career civil servants is not only allowed but required under the German Constitution, the Constitutional Court navigates the German legal order on a potential collision course with the European Convention on Human Rights and the European Court of Human Rights. In this context, the Constitutional Court on the one hand reaffirms the openness of the German constitutional order towards international law in general and human rights and the European Convention on Human Rights in particular. On the other hand, the Court somehow marginalizes the role of the European Court of Human Rights and threatens to not follow the Court should it hold that the European Convention on Human Rights demands a right to strike also for career civil servants.

scholarly journals The Constitutional Status of Karlsruhe’s Novel “Jurisdiction” in EU Fundamental Rights Matters: Self-inflicted Institutional Vulnerabilities

2020 ◽  
Vol 21 (S1) ◽  
pp. 19-26
Author(s):  
Karsten Schneider
Keyword(s):  
Fundamental Rights ◽  
Constitutional Court ◽  
The Novel ◽  
Eu Law ◽  
Binding Effect ◽  
Basic Law ◽  
Federal Constitutional ◽  
Eu Fundamental Rights ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

AbstractThe First Senate of the German Federal Constitutional Court (FCC) has recently introduced the express promise that where EU fundamental rights take precedence over German fundamental rights, the Court itself could directly review, on the basis of EU fundamental rights, the application of EU law by German authorities. There are, however, differences between the Basic Law as the relevant standard of review and other standards of review that are dangerous to ignore. The constitutional status of the FCC’s jurisdiction depends crucially on whether the Court relies on the constitution or on EU fundamental rights. If the constitutional status of the novel jurisdiction covered any binding-effect, and that is a big if, the FCC still would not safeguard the unity and coherence of Union law. Leaving aside the fact that the First Senate is confined to reversing and remanding (unable to enforce anything directly), no beneficial effect on legal certainty grows apparent. Any binding-effect of the novel jurisdiction only provides for consistency without finality. And to venture further into the question: Even if anyone welcomed this novel kind of consistency without finality (virtually “provisional consistency”), this oddish consistency would still be a localized consistency, i.e. in German courts only.

Casenote–– The Fundamental Right to the Guarantee of a Subsistence Minimum in theHartz IVDecision of the German Federal Constitutional Court

2011 ◽  
Vol 12 (11) ◽  
pp. 1961-1982
Author(s):  
Stefanie Egidy
Keyword(s):  
Social Benefits ◽  
Constitutional Court ◽  
Social Law ◽  
Hartz Iv ◽  
Basic Law ◽  
Subsistence Minimum ◽  
The Social ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

In February 2010, the German Federal Constitutional Court (Bundesverfassungsgericht) issued a ruling on the so-called “Hartz IV legislation.” The ruling dealt with the law on social benefits according to the Second Book of the German Code of Social Law and was based on the “fundamental right to the guarantee of a subsistence minimum” derived from the declaration of human dignity in Article 1(1) of the German Basic Law in conjunction with Article 20(1), the principle of the social welfare state.

Äußerung von Beamten im Konflikt mit Dienstpflichten

2018 ◽  
Vol 51 (2) ◽  
pp. 265-300
Author(s):  
Klaus Herrmann
Keyword(s):  
Civil Servants ◽  
Constitutional Court ◽  
Present Contribution ◽  
General Duty ◽  
Basic Law ◽  
The Status ◽  
German Constitution ◽  
Federal Constitutional ◽  
Administrative Courts ◽  
Historical Developments

Summary Over the past decades, the adjudication handed down by the German administrative courts has consistently derived from the principles of the professional civil service (Grundsätze des Berufsbeamtentums) enshrined in Article 33 paragraph 5 of the Grundgesetz (GG, Basic Law) and in the blanket clauses of the Beamtenstatusgesetz (BeamtStG, Act on the Status of Civil Servants) as well as the Civil Servants Acts applicable at the Federal and the Land levels the duties of civil servants, judges, and soldiers to adhere to the German Constitution and to be loyal to it, to maintain their impartiality, and to protect the respect in which their employer is held, as well as the trust that their employer and the general public place in them, in any statements they may make as part of their service, but also outside of an official context. The present contribution sets out the historical developments and milestone decisions in this regard, such as the judgment handed down by the Bundesverfassungsgericht (Federal Constitutional Court) of May 22nd, 1975, which refused to grant employment as civil servants to applicants seeking such employment who were involved with the Deutsche Kommunistische Partei (DKP, German Communist Party). Furthermore, the contribution addresses the various consequences, based on their severity, which violations against the duty to adhere to the German Constitution, to remain neutral, and to exercise restraint will have, along with the consequences of violations of the duty to observe secrecy in all matters pertaining to the service. Based on the circumstances of the cases adjudicated by the courts, the requirements made on civil servants’ conduct and the „red lines“ constituting a dereliction of official duties when crossed are discussed. Where the punishment under disciplinary law of violations of said duties is concerned, the administrative courts premise their decisions on the assumption that civil servants, judges, and soldiers are aware of what is expected of them. However, the articles’ main focus is on how the duty of neutrality was derived, in terms of jurisprudence, in the court rulings most recently handed down on the „Lights out!“ call by the mayor of a city in North Rhine-Westphalia. The municipal leader had instructed all city-owned buildings to turn their lights off, on the evening of an assembly that had been previously registered with the city administration, in the interests of damaging the attractiveness of the demonstration and its overall impact. While the administrative courts have relied, in dealing with that particular call to action and with other statements made in the battle of public opinion, on the general duty of the state to remain objective and to adhere to the principle of neutrality where party politics are concerned, the present contribution highlights the fact that the duty of neutrality as stipulated by the laws governing civil servants must not be disregarded when this group of people voices religious or political sentiments, nor must the official duties subject to sanctions under disciplinary law be ignored.

scholarly journals Das Recht der Nachrichtendienste: Missstände, Entwicklungen und Perspektiven eines Rechtsgebiets in der Findungsphase

2021 ◽  
Vol 104 (2) ◽  
pp. 91-135
Author(s):  
Tristan Barczak
Keyword(s):  
Legal Framework ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Basic Law ◽  
Intelligence Services ◽  
The Press ◽  
Intelligence Operations ◽  
Current Design ◽  
Federal Constitutional ◽  
Statutory Regulation

The law governing the German intelligence services lacks a consistent concept, is non-transparent, fragmented and in urgent need of reform. In May 2020, the First Senate of the Federal Constitutional Court held that the Federal Intelligence Service (Bundesnachrichtendienst - BND) is bound by the fundamental rights of the Basic Law when conducting telecommunications surveillance of foreigners in other countries (so-called Foreign-Foreign Strategic Surveillance), and that the statutory bases in their current design violate the fundamental right to the privacy of telecommunication and freedom of the press. The judgment put an end to the long-running discussion about whether intelligence operations abroad are suitable for statutory regulation at all. Moreover, the Constitutional Court’s decision provided the impetus for one of the most significant reforms in recent German security law. By April 2021, the amendment of the BND Act was finally on the books. It will enter into force in January 2022. It codifies important new rules about the practice, authorization and oversight of foreign data collection by the BND as well as legal requirements for Germany’s participation in international intelligence cooperation. The reform’s provisions implement the constitutional requirements, as stated in the judgement, almost literally. Nonethele⁠ss, the reform created a number of new problems and left major deficits in German intelligence law unresolved. It is far from creating a clear and consistent legal framework for the activities of the three federal intelligence services, in particular their surveillance practices. The article outlines the major shortcomings, developments and perspectives in this field of security law.

scholarly journals Democracy and (the essential content of) fundamental rights: marching in line or precarious balancing act?

2019 ◽  
Vol 23 ◽  
Author(s):  
Nils Schaks
Keyword(s):  
South African ◽  
Separation Of Powers ◽  
Freedom Of Expression ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Potential Conflict ◽  
German Constitution ◽  
Federal Constitutional ◽  
German Parliament

ABSTRACT This article addresses the question of how democracy and fundamental rights interplay, and compares German and South African law for this purpose. The author argues that democracy requires and presupposes fundamental rights, but that these two values do not always align, and then deals with the question of how to reconcile democracy and fundamental rights in case of conflict. The potential conflict between the two values is sometimes reflected in the relationship between Parliaments as the embodiment of democracy and the Constitutional Courts as the embodiments of fundamental rights (the so- called "counter-majoritarian dilemma"). However, the author rejects the recent critique by some scholars that the German Federal Constitutional Court structurally exceeds its powers vis-a-vis the German Parliament and that there is a permanent judicial overreach. On the contrary, the author argues that Constitutional Courts do not have sufficient tools to counter a democratic backsliding, i.e. the incremental erosion of democracy. Since the author considers democratic backsliding to be a greater and more acute threat to democracy than judicial overreach, he presents the view that the guarantee of the essential content of a right delineates the minimum of a fundamental right in a democratic society. This view is explained using freedom of expression as example. Keywords: German Constitution, Grundgesetz, Constitutional comparison, Essential content of a right, Freedom of expression, Separation of powers, Democratic backsliding, Counter-majoritarian dilemma, Constitutional courts, Democracy, Fundamental rights, Preconditions of democracy

Die Freiheitlich Demokratische Grundordnung im System der Grundrechte – Grundlage und Grenze verfassungsrechtlich gewährleisteter Freiheit

2020 ◽  
Vol 103 (2) ◽  
pp. 128-156
Author(s):  
Alexander Heger ◽  
Julian Schaupp
Keyword(s):  
Critical Reflection ◽  
Fundamental Rights ◽  
Value Systems ◽  
Central Position ◽  
Constitutional Court ◽  
Value System ◽  
Constitutional Order ◽  
German Constitution ◽  
Federal Constitutional ◽  
Theory Of Value

The free democratic constitutional order is a legal institution of the German Constitution which captures a central position in the rulings of the Federal Constitutional Court. Pointing towards this decisive significance for the German Constitution, it is necessary to determine the position of the free democratic constitutional order within the constitution itself and its relationship to fundamental rights. In doing so, it must be shown that the free democratic constitutional order is the value system of the German Constitution which, in turn, has a decisive impact on the interpretation of fundamental rights. The resulting consequences necessitate critical reflection on the theory of value systems and culminate in a more restrictive understanding of the free democratic constitutional order.

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