30 Arts. 83 et seq. GG: The Execution of Federal Laws and the Federal Administration

This chapter discusses the relevant provisions of Art. 83 et seq. of the Grundgesetz (GG) with regard to the execution of federal laws by the federal state and the states. In the Federal Republic of Germany, the federal state and the states are each assigned their own separate administrative powers by the Grundgesetz. The question that arises is how strict the separation of state administration vs federal administration of federal laws is required by the constitution, and whether it always makes sense. To answer this question, the chapter examines the Federal Constitutional Court's jurisprudence concerning the presumption of state responsibility and joint administration (joint execution of federal laws) between federal and state governments. It also considers the states' autonomous execution of federal laws as well as their execution of federal laws on federal commission before concluding with an analysis of the federal administration/execution of federal laws.

23 Art. 21 GG: Political Parties

This chapter considers the relevant provisions of Art. 21 of the Grundgesetz (GG) with regard to political parties. Art. 21 GG does not define the term ‘political party’ and provides only a description of its function, which is ‘to participate in the formation of the political will of the people’. There are two conceptions of political party in the literature: the model of the ‘party state’ and the model of ‘party competition’. Political parties display the elements described in both models. The chapter first examines the Federal Constitutional Court's jurisprudence concerning the definition of ‘party’ before discussing the constitutional freedom to found and organise parties, prohibition of parties, competition between political parties and equality of opportunity among parties, and party financing (private financing and state financing).

19 Art. 20 GG: Democracy

This chapter discusses the democracy principle as articulated in Art. 20 of the Grundgesetz (GG). Art. 20 para. 2 GG defines democracy in this manner: ‘All state authority is derived from the people. It shall be exercised by the people’. GG associates the concept of democracy with the concept of the state. Although the Federal Constitutional Court has avoided any reference to the principle of democracy, it has interpreted some fundamental rights in light of the principle. The chapter first considers the Court's jurisprudence regarding political will formation in a representative democracy, focussing on cases dealing with voting rights of foreigners, elections to district assemblies, popular referendum, and public-information campaigns. It then examines cases relating to exercise of state authority, with emphasis on the position of Parliament in relation to other branches of government, forms of democratic legitimation, and functional self-government.

18 Art. 20 GG: Preface

This chapter provides an overview of three of the central structural principles of the German state and legal system that are found in Art. 20 of the Grundgesetz (GG): the republic principle, the democracy principle, and the federalism principle. Also included in this group of general principles is the rule of law principle, which is implicitly contained in Art. 20 para. 3 GG. The structural principles and state goals articulated in Art. 20 GG serve three primary functions: first, as foundational norms which serve as a catch-all standard for evaluating subjects not specifically regulated by GG; second, as interpretive guidelines for other provisions of GG and for the application of (statutory) laws; and third, as classification categories to which sub-principles are assigned, including the principle of proportionality. These structural principles and state goals are often in tension; a means of reconciling them is by using the concept of practical concordance.

11 Art. 10 GG: Privacy of Correspondence, Post, and Telecommunications

This chapter deals with three independent fundamental rights guaranteed by Art. 10 of the Grundgesetz (GG): privacy of correspondence, privacy of post, and privacy of telecommunications. Under Art. 10 GG, free development of personality is guaranteed through private communication shielded from the public. The fundamental right protects the confidentiality of individual communication and is intended to compensate for the reduction in privacy which goes along with use of these technologies. The chapter examines the Federal Constitutional Court's jurisprudence regarding the scope of protection for postal privacy, privacy of correspondence and telecommunications privacy, focussing on cases relating to eavesdropping devices, online search and data retention. It also considers the question of interference with the privacy of correspondence, posts, and telecommunications, along with the constitutional justification of such interferences.

9 Art. 8 GG: Freedom of Assembly

This chapter discusses the provisions of Art. 8 of the Grundgesetz (GG) with regard to the fundamental right of freedom of assembly. It begins by reviewing the Federal Constitutional Court's first landmark decision on freedom of assembly in 1985, in which it emphasised the importance of the process of political will formation and the right of citizens to free assembly through demonstrations, noting that ‘the unhindered exercise of this freedom counteracts the consciousness of political powerlessness and dangerous tendencies of disgruntlement with the state and its institutions’. The chapter also examines the Court's jurisprudence concerning the scope of protection for the right of freedom of assembly, focussing on issues such as peacefulness in sit-in protests and the constitutionality of the registration requirement for rapidly organized assemblies. It concludes with an analysis of the question of interference with the right of freedom of assembly, along with the constitutional justification of such interferences.

8 Art. 7 GG: School

This chapter discusses the provisions of Art. 7 of the Grundgesetz (GG) concerning the state's organisational power, the freedom to establish private schools, and the legal position of parents, students, and educators. Art. 7 para 1. GG grants the state the authority — and imposes the obligation — to not stand by and allow the school system to be operated on its own, for example by commercial providers or religious or philosophical communities. Other provisions relate to religious instruction and the abolition of the pre-primary school. The chapter examines the jurisprudence of the Federal Constitutional Court with regard to the state's power to organise schools, child-rearing and instruction (for example, the issue of sex education in schools), the rights of parents concerning the care and education of children, and the rights of students in school.

2 Art. 1 para. 1 GG: Human Dignity

This chapter discusses the duty of all state power to respect and protect human dignity as set out in Art. 1 para. 1 of the Grundgesetz (GG). It first explains the scope of state protection against violations of human dignity by citing the decisions of the Federal Constitutional Court in two cases, one concerning the Aviation Security Law and another concerning the constitutionality of life imprisonment. It then considers the benefits dimension of the guarantee of human dignity, in particular the individual's claim to the level of social support necessary to live in dignity (the so-called existence minimum). It also addresses the question of whether an interference with human dignity can ever be justified, and especially whether human dignity can be limited.

32 Art. 103 GG: Right to a Lawful Hearing, Ban on Retroactive Punishment, and Ban on Multiple Punishments for the Same Crime

This chapter discusses three separate fundamental rights that are guaranteed in Art. 103 of the Grundgesetz (GG): the right to a hearing before a court, the ban on retroactive punishment and the requirement of specificity in criminal laws, and the ban on multiple punishments for the same crime. It first examines the Federal Constitutional Court's jurisprudence concerning the function and significance of the right to a hearing and the direct applicability of Art. 103 before explaining the Court's position on the timing of the hearing and the right to a hearing in relation to the procedural rules of preclusion. It also analyses the Court's decisions in cases relating to the requirement of specificity in criminal laws and the prohibition of retroactivity, including those that deal with Sit-In Protest and preventive detention.

31 Art. 92 et seq. GG: Jurisprudence

This chapter discusses the position of the Federal Constitutional Court with regard to judicial power, taking into account the relevant provisions of Art. 92 et seq. of the Grundgesetz (GG). In particular, it examines those aspects which cast light on the distinctive position of constitutional jurisprudence within the overall framework of judicial power. To this end, the chapter analyses the Court's jurisprudence, citing an instance in which it used a constitutional complaint concerning tax notices and penalties to address the concept of ‘judicial power’. It also considers a 2001 ruling by the Court, which added a functional element to the concept of the judicial power in a case involving the Election Review Court; the legal position of judges, which the Court describes as having three pillars — ‘objective independence’, ‘personal independence’, and ‘organisational independence’; and the Court's emphasis on the importance and substance of the right to a lawful judge.