Pub Date : 2019-02-28DOI: 10.1093/LAW/9780198808091.003.0028
Bumke Christian, Voßkuhle Andreas
This chapter discusses the relevant provisions of Art. 70 et seq. of the Grundgesetz (GG) with regard to legislation, and more specifically the division of legislative power between the federal government and the states. The division of powers between the federal state and the states means that, for each area, either one is responsible. In the case of conflicts between federal and state law, it generally suffices to determine that either the federal state or the state lacks the required legislative power. This observation probably remains accurate even after the federalism reforms of 2006. The chapter first considers the apportionment of legislative power between the federal state and the states after the 2006 federalism reforms, focussing on the exclusive legislative powers of the federal state and its newly regulated concurrent legislative power, before analysing the Federal Constitutional Court's jurisprudence concerning legislative powers and the legislative process.
{"title":"28 Arts. 70 et seq. GG: Legislation","authors":"Bumke Christian, Voßkuhle Andreas","doi":"10.1093/LAW/9780198808091.003.0028","DOIUrl":"https://doi.org/10.1093/LAW/9780198808091.003.0028","url":null,"abstract":"This chapter discusses the relevant provisions of Art. 70 et seq. of the Grundgesetz (GG) with regard to legislation, and more specifically the division of legislative power between the federal government and the states. The division of powers between the federal state and the states means that, for each area, either one is responsible. In the case of conflicts between federal and state law, it generally suffices to determine that either the federal state or the state lacks the required legislative power. This observation probably remains accurate even after the federalism reforms of 2006. The chapter first considers the apportionment of legislative power between the federal state and the states after the 2006 federalism reforms, focussing on the exclusive legislative powers of the federal state and its newly regulated concurrent legislative power, before analysing the Federal Constitutional Court's jurisprudence concerning legislative powers and the legislative process.","PeriodicalId":335867,"journal":{"name":"German Constitutional Law","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121873607","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-02-28DOI: 10.1093/LAW/9780198808091.003.0025
Bumke Christian, Voßkuhle Andreas
This chapter considers the relevant provisions of Art. 28 para. 2 of the Grundgesetz (GG) with regard to municipal autonomy. There are two contrasting views on what this autonomy means: the first argues that autonomy is the management of the community's own affairs, whereas the second describes it as indirect state administration. The chapter first examines the Federal Constitutional Court's jurisprudence concerning the question of whether Art. 28 para. 2 GG and the corresponding provisions of state constitutions guarantee the continued existence of individual municipalities and districts. It then discusses the responsibilities of municipalities in regulating the administration of local affairs, focussing on the principle of substantive allocation of responsibilities and the scope of the guarantee of municipal self-government. It also analyses the right of municipalities and associations of municipalities to carry out certain tasks independently, noting that the guarantee of independence guarantees local government entities as traditional ‘sovereign rights’.
{"title":"25 Art. 28 para. 2 GG: Autonomy of Municipalities","authors":"Bumke Christian, Voßkuhle Andreas","doi":"10.1093/LAW/9780198808091.003.0025","DOIUrl":"https://doi.org/10.1093/LAW/9780198808091.003.0025","url":null,"abstract":"This chapter considers the relevant provisions of Art. 28 para. 2 of the Grundgesetz (GG) with regard to municipal autonomy. There are two contrasting views on what this autonomy means: the first argues that autonomy is the management of the community's own affairs, whereas the second describes it as indirect state administration. The chapter first examines the Federal Constitutional Court's jurisprudence concerning the question of whether Art. 28 para. 2 GG and the corresponding provisions of state constitutions guarantee the continued existence of individual municipalities and districts. It then discusses the responsibilities of municipalities in regulating the administration of local affairs, focussing on the principle of substantive allocation of responsibilities and the scope of the guarantee of municipal self-government. It also analyses the right of municipalities and associations of municipalities to carry out certain tasks independently, noting that the guarantee of independence guarantees local government entities as traditional ‘sovereign rights’.","PeriodicalId":335867,"journal":{"name":"German Constitutional Law","volume":"1970 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130229693","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-02-28DOI: 10.1093/LAW/9780198808091.003.0014
Bumke Christian, Voßkuhle Andreas
This chapter deals with the inviolability of the home, a fundamental right guaranteed by Art. 13 of the Grundgesetz (GG). Art. 13 GG offers protection to a spatially defined area in which one may do as he or she pleases undisturbed and unobserved. It thus secures the spatial aspect of the ‘right to be left alone’ which the Federal Constitutional Court created in the Microcensus Decision. The Court's ruling in a case concerning acoustic surveillance of the home illustrates the liberal manner by which this right has been interpreted. The chapter first examines the Court's jurisprudence regarding the scope of protection for the right of inviolability of the home, focussing on cases relating to express dry cleaning and tenants' property, before discussing the question of interference with this right, along with the constitutional justification of such interferences, especially with regard to search of a home.
{"title":"14 Art. 13 GG: Inviolability of the Home","authors":"Bumke Christian, Voßkuhle Andreas","doi":"10.1093/LAW/9780198808091.003.0014","DOIUrl":"https://doi.org/10.1093/LAW/9780198808091.003.0014","url":null,"abstract":"This chapter deals with the inviolability of the home, a fundamental right guaranteed by Art. 13 of the Grundgesetz (GG). Art. 13 GG offers protection to a spatially defined area in which one may do as he or she pleases undisturbed and unobserved. It thus secures the spatial aspect of the ‘right to be left alone’ which the Federal Constitutional Court created in the Microcensus Decision. The Court's ruling in a case concerning acoustic surveillance of the home illustrates the liberal manner by which this right has been interpreted. The chapter first examines the Court's jurisprudence regarding the scope of protection for the right of inviolability of the home, focussing on cases relating to express dry cleaning and tenants' property, before discussing the question of interference with this right, along with the constitutional justification of such interferences, especially with regard to search of a home.","PeriodicalId":335867,"journal":{"name":"German Constitutional Law","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131639674","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-02-28DOI: 10.1093/LAW/9780198808091.003.0016
Bumke Christian, Voßkuhle Andreas
This chapter examines the three fundamental rights guaranteed under Art. 16 and 16a of the Grundgesetz (GG): a prohibition on the deprivation of citizenship and limits on the loss of German citizenship, a ban on the extradition of Germans, and the right to political asylum. It begins with a discussion of the Federal Constitutional Court's jurisprudence regarding protection of citizenship, more specifically revocation of fraudulently obtained citizenship and the provision allowing agencies to challenge official acknowledgements of paternity by German men. It then considers cases relating to protection against the extradition of Germans before analysing the asylum law, with particular emphasis on political persecution, the concepts of ‘safe third countries’ and ‘secure country of origin’, and limitations on the right of asylum.
{"title":"16 Arts. 16 and 16a GG: Protection from Extradition and Deprivation of Citizenship, and Asylum Law","authors":"Bumke Christian, Voßkuhle Andreas","doi":"10.1093/LAW/9780198808091.003.0016","DOIUrl":"https://doi.org/10.1093/LAW/9780198808091.003.0016","url":null,"abstract":"This chapter examines the three fundamental rights guaranteed under Art. 16 and 16a of the Grundgesetz (GG): a prohibition on the deprivation of citizenship and limits on the loss of German citizenship, a ban on the extradition of Germans, and the right to political asylum. It begins with a discussion of the Federal Constitutional Court's jurisprudence regarding protection of citizenship, more specifically revocation of fraudulently obtained citizenship and the provision allowing agencies to challenge official acknowledgements of paternity by German men. It then considers cases relating to protection against the extradition of Germans before analysing the asylum law, with particular emphasis on political persecution, the concepts of ‘safe third countries’ and ‘secure country of origin’, and limitations on the right of asylum.","PeriodicalId":335867,"journal":{"name":"German Constitutional Law","volume":"161 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114362988","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-02-28DOI: 10.1093/law/9780198808091.003.0006
Bumke Christian, Voßkuhle Andreas
This chapter discusses Art. 5 of the Grundgesetz (GG), which guarantees freedom of communication, art and science. It first considers the jurisprudence of the Federal Constitutional Court concerning the scope of protection for freedom of opinion, focussing on the importance of such freedom in a democratic community, consequences flowing from the importance of freedom of opinion, and limits on the protective scope of freedom of opinion. The chapter then examines the scope of protection for freedom of information, freedom of the press and freedom of broadcast before analysing the limits on the reservation of the fundamental rights protected in Art. 5 GG, with emphasis on the problematic nature of limits imposed by general laws, the doctrine of reciprocity and the principle of proportionality, and the balancing of interests between freedom of opinion and a protected legal interest. Finally, the chapter describes the scope of protection for artistic freedom.
{"title":"6 Art. 5 GG: Freedom of Communication and Art","authors":"Bumke Christian, Voßkuhle Andreas","doi":"10.1093/law/9780198808091.003.0006","DOIUrl":"https://doi.org/10.1093/law/9780198808091.003.0006","url":null,"abstract":"This chapter discusses Art. 5 of the Grundgesetz (GG), which guarantees freedom of communication, art and science. It first considers the jurisprudence of the Federal Constitutional Court concerning the scope of protection for freedom of opinion, focussing on the importance of such freedom in a democratic community, consequences flowing from the importance of freedom of opinion, and limits on the protective scope of freedom of opinion. The chapter then examines the scope of protection for freedom of information, freedom of the press and freedom of broadcast before analysing the limits on the reservation of the fundamental rights protected in Art. 5 GG, with emphasis on the problematic nature of limits imposed by general laws, the doctrine of reciprocity and the principle of proportionality, and the balancing of interests between freedom of opinion and a protected legal interest. Finally, the chapter describes the scope of protection for artistic freedom.","PeriodicalId":335867,"journal":{"name":"German Constitutional Law","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114607175","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-02-28DOI: 10.1093/law/9780198808091.003.0001
Bumke Christian, Voßkuhle Andreas
This chapter presents an overview of the general theory of fundamental rights, which are embodied in the German Basic Law, or Grundgesetz (GG), as a fundamental component of the idea of a democratic constitutional state which is open — that is, embedded in the international community of states. The fundamental rights in GG combine private, social, and political ideals of freedom into an overarching conception of a free, legally regulated and socially structured community. The chapter considers who may claim fundamental rights (natural persons, legal persons), the duty of the state to uphold fundamental rights, effects of fundamental rights, and institutional guarantees protected by fundamental rights. It also discusses the state's duty to protect, the effects of fundamental rights on private parties or third parties, and further effects of fundamental rights.
{"title":"1 General Theory of Fundamental Rights","authors":"Bumke Christian, Voßkuhle Andreas","doi":"10.1093/law/9780198808091.003.0001","DOIUrl":"https://doi.org/10.1093/law/9780198808091.003.0001","url":null,"abstract":"This chapter presents an overview of the general theory of fundamental rights, which are embodied in the German Basic Law, or Grundgesetz (GG), as a fundamental component of the idea of a democratic constitutional state which is open — that is, embedded in the international community of states. The fundamental rights in GG combine private, social, and political ideals of freedom into an overarching conception of a free, legally regulated and socially structured community. The chapter considers who may claim fundamental rights (natural persons, legal persons), the duty of the state to uphold fundamental rights, effects of fundamental rights, and institutional guarantees protected by fundamental rights. It also discusses the state's duty to protect, the effects of fundamental rights on private parties or third parties, and further effects of fundamental rights.","PeriodicalId":335867,"journal":{"name":"German Constitutional Law","volume":"73 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126422676","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-02-28DOI: 10.1093/LAW/9780198808091.003.0030
Bumke Christian, Voßkuhle Andreas
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.
{"title":"30 Arts. 83 et seq. GG: The Execution of Federal Laws and the Federal Administration","authors":"Bumke Christian, Voßkuhle Andreas","doi":"10.1093/LAW/9780198808091.003.0030","DOIUrl":"https://doi.org/10.1093/LAW/9780198808091.003.0030","url":null,"abstract":"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.","PeriodicalId":335867,"journal":{"name":"German Constitutional Law","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116688601","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-02-28DOI: 10.1093/LAW/9780198808091.003.0011
Bumke Christian, Voßkuhle Andreas
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.
{"title":"11 Art. 10 GG: Privacy of Correspondence, Post, and Telecommunications","authors":"Bumke Christian, Voßkuhle Andreas","doi":"10.1093/LAW/9780198808091.003.0011","DOIUrl":"https://doi.org/10.1093/LAW/9780198808091.003.0011","url":null,"abstract":"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.","PeriodicalId":335867,"journal":{"name":"German Constitutional Law","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124968557","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-02-28DOI: 10.1093/LAW/9780198808091.003.0004
Bumke Christian, Voßkuhle Andreas
This chapter discusses the general right to equality, which provides for equality before the law for all persons. It first provides an overview of the general principle of equality and the provisions contained in Art. 3 of the Grundgesetz (GG) requiring equality before the law (para. 1) and equal treatment of the sexes (para. 2), as well as provisions forbidding discrimination (para. 3). It then considers the three steps adopted by the Federal Constitutional Court to examine the principle of equality: unequal treatment under the law, equal treatment in fact within strict limits, and a general prohibition on arbitrariness. It then examines the jurisprudence of the Court with regard to the principle of equality and the prohibition on differentiation. It also analyses the equality of men and women under Art. 3 para. 2 GG and the legal consequences of violations of Art. 3 GG.
{"title":"4 Art. 3 GG: Equality Before the Law","authors":"Bumke Christian, Voßkuhle Andreas","doi":"10.1093/LAW/9780198808091.003.0004","DOIUrl":"https://doi.org/10.1093/LAW/9780198808091.003.0004","url":null,"abstract":"This chapter discusses the general right to equality, which provides for equality before the law for all persons. It first provides an overview of the general principle of equality and the provisions contained in Art. 3 of the Grundgesetz (GG) requiring equality before the law (para. 1) and equal treatment of the sexes (para. 2), as well as provisions forbidding discrimination (para. 3). It then considers the three steps adopted by the Federal Constitutional Court to examine the principle of equality: unequal treatment under the law, equal treatment in fact within strict limits, and a general prohibition on arbitrariness. It then examines the jurisprudence of the Court with regard to the principle of equality and the prohibition on differentiation. It also analyses the equality of men and women under Art. 3 para. 2 GG and the legal consequences of violations of Art. 3 GG.","PeriodicalId":335867,"journal":{"name":"German Constitutional Law","volume":"45 12","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114060384","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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