Intersektionale Ansätze in Gleichstellungsgesetzen

Gender equality laws have existed in public administration in Germany since 1998. These laws specify the constitutional requirement of gender equality on the basis of article 3(2) of the German Constitution. Considering the background of present discussions in Germany concerning inclusion and diversity in public administration, this article analyses possibilities to address intersectional discrimination, including racial discrimination and discrimination based on different socio-economic backgrounds. Therefore, the following critical analysis focuses on possible intersectional approaches in German gender equality laws. The article presents the primary existing constitutional provisions and simple legal rulings, while also taking a ‘de lege ferenda’ perspective. To this end, the article suggests concrete wording for new legislation and for the amendment of existing laws.

Online-Wahlen zu Parlamenten als modernes Instrument demokratischer Partizipation in Zeiten von Pandemie und Digitalisierung

The Corona pandemic, which has been going on for over a year, has Germany tightly in its grip. More than ever before, the digitalisation deficit in administration and business, which was already frequently noted, has become visible. Yet modern technologies can help to maintain social life or even to reverse restrictions that have occurred due to pandemic events. Where pen and paper used to be unavoidable, digital formats can now be used. Elections to parliaments are a particularly important field of application. They are a direct expression of democracy and indispensable for a free and pluralistic society. For this reason, progressive digitalisation must also be made fruitful in this area and online voting must be used for a contemporary electoral technology. This article is therefore dedicated to the challenges of online elections to parliaments in the age of digitization.

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

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.

Durchsetzungsdefizite bei Gleichbehandlungsgeboten am Beispiel des Gender Pricing

Gender Pricing is a widespread phenomenon. According to various studies, women-specific products and services often are more costly than comparable versions of products and services for men. As products made for women are frequently coloured pink, Gender Pricing is referred to as “pink tax”. European anti-discrimination legislation imposes restrictions on gender-related price discrimination. The 2004 Gender Directive bans discrimination in the field of goods and services. In principle, the directive prohibits any less favourable treatment of men or women by reason of their gender. Nevertheless, the additional price added on products intended for women is widely accepted. This raises the question of whether Gender Pricing points to a lack of law enforcement. Against this backdrop, the scope of the legal restrictions imposed on Gender Pricing will be analysed. Subsequently, the challenges of implementing anti-discrimination laws must be taken into account. Finally, conclusions will be drawn on possible courses of action to enhance their mandatory strength.

Diskriminierung wegen der sozialen Klasse durch Alkoholverbote?

In Germany, police laws of the Länder contain regulations on banning alcohol in public places. Despite attracting the attention of legal scholars and courts, the issue whether alcohol bans discriminate on grounds of social class has been overlooked. The article examines this issue through the lens of homelessness. We begin by evaluating the legal basis for alcohol bans in Saxony, which was reformed in 2020. To address this question, we first examine the concept of “social class”, which though not explicitly recognised in the Basic Law, is closely linked to the listed characteristic of “origin” and is, in any case, protected by the general principle of equality. Finally, besides emerging in individual cases, we demonstrate why current legislation already creates potential for discrimination through indeterminate legal terms.

Die Figur eingriffsähnlicher Vorwirkungen: Zum Klimabeschluss des Bundesverfassungsgerichts

The Federal Constitutional Court declared the transformation path to climate neutrality as established by the legislature in the Climate Protection Act to be unconstitutional. Not mainly the result of this climate decision but the reasoning of the Federal Constitutional Court is spectacular. Above all, the innovation in the German “Dogmatik” of fundamental rights is surprising. The Federal Constitutional Court does not modify its jurisprudence on the duty to protect resulting from fundamental rights but rather adheres to it and finds that “currently” the duty is not violated, nonetheless not ending its examination there. With the concept of advanced interference-like effects of fundamental freedom rights, the Court refers to fundamental rights as rights of defense against the state. This has caused irritation, remains partially vague and should be used as an opportunity to take a closer look at the new figure of advanced interference-like effects in the context of intertemporal safeguarding of freedom.

Die Wiedereinführung von Grenzkontrollen im Schengen Raum: ein unverhältnismäßiges, unwirksames und unzulässiges Mittel der Pandemiebekämpfung

In March 2020, during the first wave of the COVID-19 (Coronavirus SARS-CoV-2) pandemic in Europe, several Member States, including the Federal Republic of Germany, saw fit to resort to the reintroduction of border controls with some of their neighbours, including the Grand Duchy of Luxembourg. This reintroduction was then justified by the urgency and the need to contain the spread of the virus. So that there is no misunderstanding: these were exclusively identity checks and checks on documents authorizing their holders to cross borders and not health checks to detect carriers of the virus. This contribution aims to establish, using the example of the German-Luxemburg border controls, that the use of this extraordinary means does not stand the test of its effectiveness, proportionality and even less of its legality. To the extent that the perpetrator was himself a victim of this extraordinary measure, he may be forgiven for the somewhat militant character of the following lines. The German Minister of the Interior, Mr Horst Seehofer, who took this decision on behalf of Germany, may have invoked the European Union (EU) Border Code as the legal basis for his decision to reintroduce internal border controls in the Schengen area, but it must be questioned whether he has complied with the letter and spirit of this regulation. An in-depth analysis of the provisions of this Borders Code (I.) shows indeed that the unilateral decision taken by Minister Seehofer was taken arbitrarily (II.) and does not stand the test of its validity under Union law (III.)