Der Parlamentsvorbehalt in der Corona-Krise

2020 ◽  
Vol 53 (4) ◽  
pp. 469-500
Author(s):  
Armin von Weschpfennig
Keyword(s):  
Infection Control ◽  
Fundamental Rights ◽  
Control Law ◽  
Executive Orders ◽  
Liability Law ◽  
Liberal Democratic ◽  
Legal Literature ◽  
General Clause ◽  
Aid Programs ◽  
State Liability

Crises are not only a test for society, they also pose a challenge to the legal order. This is revealed by the worldwide handling of the Coronavirus SARS-CoV-2 and the COVID-19 disease with a clarity that until recently probably nobody thought possible. Even in liberal democratic states, far-reaching restrictions on personal freedoms have been imposed, including lockdowns. In addition to questions of proportionality, the scope of the parliamentary prerogative in the Corona crisis has been under discussion in Germany since March 2020. Contrary to some voices in legal literature, even serious encroachments on fundamental rights can be justified, at least temporarily, by executive orders based on the general clause under infection control law and its cursory clarifications. Though, as the duration and complexity of crisis management increases, so too does the constitutional exigency for fundamental decisions by the legislature. The question of parliamentary prerogative also arises in the discussion about compensation payments, for example, for closure of businesses and other establishments during the lockdown. Since special provisions of infection control law often do not apply, some advocate a recourse to unwritten state liability law. However, this law is only geared to selective compensation and does not usually provide a legal basis for state liability in the Corona crisis. Here, too, the legislature must make improvements, if encroachments on fundamental rights – namely on the freedom of property – are no longer deemed proportionate without financial compensation. When assessing proportionality, however, the numerous aid programs must be taken into account.

scholarly journals Assessing the Public Administration’s Intention in EU Economic Law: Chasing Ghosts or Dressing Windows?

2016 ◽  
Vol 18 ◽  
pp. 93-121
Author(s):  
Albert SANCHEZ-GRAELLS
Keyword(s):  
European Union ◽  
Public Administration ◽  
Public Procurement ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
The Public ◽  
Economic Law ◽  
Right To Good Administration ◽  
State Liability

AbstractHere I reflect on the role of subjective or intentional elements in EU economic law prohibitions, particularly in relation to rules concerning public administration. From a normative perspective, it is desirable to suppress the need for an assessment of subjective intent and to proceed with an objectified enforcement of such prohibitions. With this in view, I consider public procurement and Member State aid rules as two examples of areas of EU economic law subjected to interpretative and enforcement difficulties due to the introduction – sometimes veiled – of subjective elements in their main prohibitions. I establish parallels with other areas of EU economic law – such as antitrust, non-discrimination law and the common agricultural policy – and seek benchmarks to support the main thesis that such intentional elements need to be ‘objectified’, so that EU economic law can be enforced against the public administration to an adequate standard of legal certainty. This mirrors the development of the doctrine of abuse of EU law, where a similar ‘objectification’ in the assessment of subjective elements has taken place.I draw on the case law of the Court of Justice of the European Union to support such ‘objectification’ and highlight how the Court has been engaging in such interpretative strategy for some time. The paper explores the interplay between this approach and more general protections against behaviour of the public administration in breach of EU law: the right to good administration in Article 41 of the Charter of Fundamental Rights of the European Union and the doctrine of State liability for infringement of EU law. I conclude with the normative recommendation that the main prohibitions of EU economic law should be free from subjective elements focused on the intention of the public administration.

17. Article 10: freedom of expression

2021 ◽  
pp. 360-389
Author(s):  
Howard Davis
Keyword(s):  
Hate Speech ◽  
Freedom Of Expression ◽  
Fundamental Rights ◽  
European Convention ◽  
Liberal Democratic ◽  
Key Points ◽  
Liberal Democratic Society ◽  
The Right ◽  
The Impact ◽  
Domestic Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter focuses on Article 10, one of the fundamental rights acknowledged in a liberal, democratic society—freedom of expression. Article 10 is a qualified right which reflects the idea that there can be important and legitimate reasons as to why freedom of expression may need to be restricted in order to protect other important rights and freedoms. While the first paragraph of Article 10 establishes a general right to freedom of expression, its second paragraph identifies the only bases upon which the right can be restricted. Restriction of the freedom of expression is subject to scrutiny by the courts, and its necessity must be established by the state. In particular the chapter discusses human rights in the context of political speech and the impact of restraints on hate speech.

Staatshaftung im Ausnahmezustand

2020 ◽  
Author(s):  
Philipp Siegert
Keyword(s):  
International Law ◽  
The State ◽  
Legal Responsibility ◽  
State Of Emergency ◽  
State Action ◽  
Liability Law ◽  
Constitutional State ◽  
The First World War ◽  
State Liability ◽  
First World

The First World War represented the 'primordial experience' of the modern constitutional state with the state of emergency. Guided by the question of the legal responsibility of the state under such circumstances, this comparative study examines state liability law in Germany and France between 1914 and 1918. Categories of 'legitimate' and 'illegitimate' state action that were missing or even contradicted each other in pre-war international law were sanctioned by the peace treaties. Despite further turning points in the 20th century, the basic elements of today's international order can be traced back to decisions made in 1919. This applies in particular to the responsibility of states under international law, which is elaborated against the background of the liability law of both countries concerning destruction, expropriation and economic war measures.

Die Präventionswirkung des Staatshaftungsrechts

2021 ◽  
Vol 54 (2) ◽  
pp. 189-222
Author(s):  
Torben Ellerbrok
Keyword(s):  
The State ◽  
Public Official ◽  
Economic Analysis Of Law ◽  
Preventive Effect ◽  
German State ◽  
State Sector ◽  
Liability Law ◽  
The One ◽  
State Liability ◽  
Liability Claims

This contribution addresses the question of whether and to what extent state liability law has a preventive effect. The question focuses on whether the (mere) existence of claims under state liability law creates an incentive to prevent unlawful actions against citizens. Cases in which an incentive is created for an individual public official (individual preventive effect) are differentiated from those in which an incentive is created for the state as an organisation (organisational preventive effect). Based on an economic analysis of law, the article demonstrates – in abstract terms and detached from concrete bases for claims – that both effects can occur: On the one hand, liability claims can prevent public officials from deliberately making unlawful decisions and as well as increase the diligence and so the probability of a lawful decision. On the other hand, liability claims can influence an organisation in the state sector in such a way that those responsible strive to ensure lawful decisions by means of the improved structuring and scrutiny of the decision-making process. To establish the specific preventive effect of an individual claim under (German) state liability law, it is necessary to consider its specific structure. The allocation of liability and the possibility of an internal recourse determine whether the preventive effect achieved is (more) an individual or an organisational one. The decisive criteria for the intensity of the preventive effect include the type, extent, degree of collectivisation, and limitations of the liability claim as well as its enforceability. Regardless of the necessary differentiation, it may be concluded that the claims of German state liability law emphasise an organisational preventive effect. While they implement the preventive effect to some extent overall, they do not fully do so. There are viable reasons for this restraint, considering the at times contrary objective of an efficiently acting administration. As a result, as this contribution concludes, from a legal policy perspective, a preventive effect also depends on considering additions and alternatives to state liability law.

3. The Sources, Forms, and Individual Remedies of EU Law

2020 ◽  
pp. 26-46
Author(s):  
Nigel Foster
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
Primary Sources ◽  
Eu Law ◽  
European Court ◽  
Questions And Answers ◽  
Charter Of Fundamental Rights ◽  
State Liability ◽  
The Eu

The Concentrate Questions and Answers series offer the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flowcharts. This chapter includes questions on a wide variety of often overlapping points concerned with the sources of European Union (EU) law. The EU sources of law are the Treaties, Protocols, and the EU Charter of Fundamental Rights, which are regarded as primary sources. There is then the secondary legislation to consider which can be enacted by the institutions of the Union by virtue of the powers given by the Member States and contained in the Treaties. Additional sources of law in the EU legal order are agreements with third countries, fundamental rights, general principles, and the case law of the European Court of Justice (CJEU) establishing, amongst other case law developments, the doctrine of direct effects, supremacy of EU law, and state liability.

Public Morals and the European Convention on Human Rights

2014 ◽  
Vol 47 (3) ◽  
pp. 361-378 ◽  
Author(s):  
Roberto Perrone
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Freedom Of Expression ◽  
Fundamental Rights ◽  
European Convention ◽  
The Public ◽  
General Clause ◽  
Protection Of Human Rights ◽  
The Right

The protection of ‘morals’ appears frequently as a limitation on the exercise of fundamental rights, both in international covenants and in constitutional charters. The European Convention for the Protection of Human Rights is not an exception, and ‘public morals’ may be called upon to justify the restriction of several important rights granted by the Convention, such as freedom of expression or the right to respect for private and family life. To avoid arbitrary restrictions of these rights it is important to understand the meaning of this general clause. This article aims to suggest a reading of the ‘public morals’ clause that singles out its scope and its boundaries.

COMPREHENSIVE OIL SPILL LIABILITY AND COMPENSATION LEGISLATION

1989 ◽  
Vol 1989 (1) ◽  
pp. 513-514
Author(s):  
Charles R. Corbett ◽  
David M. Bovet
Keyword(s):  
United States ◽  
Oil Spill ◽  
Oil Spills ◽  
The United States ◽  
State Governments ◽  
Federally Funded ◽  
The Public ◽  
Liability Law ◽  
Alternative Measures ◽  
State Liability

ABSTRACT Comprehensive oil spill liability and compensation legislation has eluded the United States for about 12 years, despite the fact that well-crafted legislation would benefit all interested parties. The public would be better protected from catastrophic effects of oil spills; industry (both oil and shipping) would be provided reasonable limits of liability (or alternative measures); and state governments would become full partners in federally funded oil spill responses. Most of the parties who would be affected by oil spill legislation have made substantial contributions and shown increased flexibility since 1984. Still, one major hurdle must be crossed before legislation can become a reality: state liability law preemption.

Courts and Judicial Review

2020 ◽  
pp. 720-746
Author(s):  
Li-Ann Thio
Keyword(s):  
Judicial Review ◽  
Separation Of Powers ◽  
Fundamental Rights ◽  
Administrative State ◽  
Liberal Democracies ◽  
The Rule Of Law ◽  
Developmental States ◽  
Liberal Democratic ◽  
Rule Making

The legal culture, political context, and organization of any one national state is key to apprehending the role of courts and judicial review in upholding the rule of law and the administrative state. Constitutional principles like the separation of powers, basic rights, and governance priorities like efficiency will shape the scope, intensity, and grounds of judicial review, which actors are susceptible to it, and questions of standing. Different ideological communities place varying emphasis on these factors. Models of judicial review, based on the French special administrative courts or English common law courts of general jurisdiction, were first developed in Western liberal democracies. These have been influential exports beyond Europe, although susceptible to autochthonous adaptations informed by local culture and exigencies. This chapter examines the chief features of courts and judicial review in Western liberal democracies, where the function of judicial review has gone beyond ensuring legality and conformity of administrative processes to standards of substantive and procedural fairness, to include protecting fundamental rights and promoting participatory democracy in the rule-making process. It examines how judicial review operates, similarly or distinctly, under other government regimes beyond liberal democratic orders, within non-liberal developmental states with communitarian cultures and socialist legal systems.

scholarly journals The Action for Damages as a Fundamental Rights Remedy: Holding Frontex Liable

2020 ◽  
Vol 21 (3) ◽  
pp. 532-548
Author(s):  
Melanie Fink
Keyword(s):  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
International Courts ◽  
Liability Law ◽  
National Courts ◽  
Court Of Justice ◽  
Legal Accountability ◽  
Accountability Gap ◽  
The Eu

AbstractFrontex has become one of the major players in European external border management. As its powers and resources have increased, so have the challenges surrounding its compliance with fundamental rights. A major concern continues to be how to ensure legal accountability for fundamental rights violations that occur in the context of its activities. While Member States can be held accountable before their own national courts and before international courts, neither of these options are available in relation to Frontex. But it can be brought before the Court of Justice of the European Union to account for the conformity of its conduct with EU law. This Article explores the potential of the EU action for damages to offer a remedy for fundamental rights violations committed by Frontex. It identifies where public liability law falls short of providing a remedy for fundamental rights violations committed by EU bodies, explores the possibilities to close that gap, and assesses the implications this has for Frontex’s liability. The Article argues that the action for damages may be the means to close the accountability gap in the specific case of Frontex, but also more generally in circumstances where EU administration is delivered in the form of informal or factual conduct. If it is to fulfill that role, the CJEU would have to lower the threshold for EU liability where fundamental rights are concerned.

scholarly journals Mitgliedschaftseingriff und Normprägung

2020 ◽  
Author(s):  
Jan-David Geiger
Keyword(s):  
Company Law ◽  
Fundamental Rights ◽  
Core Area ◽  
General Assembly ◽  
Shareholder Rights ◽  
Material Control ◽  
Legal Literature ◽  
Statutory Law ◽  
Legal Consequences ◽  
Fundamental Line

The book analyses a commonly used line of argument, known as “infringement of shareholder rights”. Courts and legal literature try to derive specific, unwritten legal consequences from an infringement of shareholder rights, such as, for example, the material control of the general assembly’s resolutions and unwritten responsibilities of the general assembly in company law or the so-called doctrine of a “core area” of shareholder rights. This line of argument supposes that legislators and the parties of a shareholder agreement may infringe shareholder rights by drafting deficient statutory or contractual rules. To the contrary, statutory and contractual rules define the substance of shareholder rights. Following the well-known doctrine stating that fundamental rights are defined by statutory law [“normgeprägte Grundrechte”] shareholder rights could be described as “normgeprägte Rechte” [rights defined by statutory law]. Therefore, a fundamental line of argument in company law is revealed to be a striking misconception, whose methodical consequences are to be analysed in detail.

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