Pub Date : 2019-02-28DOI: 10.1093/law/9780198808091.003.0029
Bumke Christian, Voßkuhle Andreas
This chapter discusses the relevant provisions of Art. 80 of the Grundgesetz (GG) with regard to the issuance of executive orders. Under the Grundgesetz, only the federal government, a federal minister, or state governments may create executive orders, and only to the extent that they are expressly authorised to do so by a parliamentary law. The chapter first examines the Federal Constitutional Court's jurisprudence concerning the scope of Art. 80 GG, focussing on the delegation of law-making power to the executive in the form of authorisation to promulgate executive orders. It then considers the specificity of the delegation of powers, with emphasis on the four formulas developed by the Court: foreseeability formula, autonomous decision formula, program formula and clarity formula. It also analyses the requirement of citation for authorities which create an executive order, the procedure for issuing executive orders, and executive orders which require consent by the Bundesrat.
{"title":"29 Art. 80 GG: Issuance of Executive Orders","authors":"Bumke Christian, Voßkuhle Andreas","doi":"10.1093/law/9780198808091.003.0029","DOIUrl":"https://doi.org/10.1093/law/9780198808091.003.0029","url":null,"abstract":"This chapter discusses the relevant provisions of Art. 80 of the Grundgesetz (GG) with regard to the issuance of executive orders. Under the Grundgesetz, only the federal government, a federal minister, or state governments may create executive orders, and only to the extent that they are expressly authorised to do so by a parliamentary law. The chapter first examines the Federal Constitutional Court's jurisprudence concerning the scope of Art. 80 GG, focussing on the delegation of law-making power to the executive in the form of authorisation to promulgate executive orders. It then considers the specificity of the delegation of powers, with emphasis on the four formulas developed by the Court: foreseeability formula, autonomous decision formula, program formula and clarity formula. It also analyses the requirement of citation for authorities which create an executive order, the procedure for issuing executive orders, and executive orders which require consent by the Bundesrat.","PeriodicalId":335867,"journal":{"name":"German Constitutional Law","volume":"18 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":"134230451","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/9780198808091.003.0013
Bumke Christian, Voßkuhle Andreas
This chapter discusses freedom of occupation, a fundamental right guaranteed by Art. 12 of the Grundgesetz (GG). It first examines the Federal Constitutional Court's jurisprudence regarding the scope of protection for occupational freedom, focussing on cases that emphasise the importance of occupational freedom to the human personality, consequences of the personal interpretation of occupational freedom, and restrictions on the guarantees afforded by the scope of protection. It then considers the reservation of authority to regulate the practice of an occupation, with emphasis on the three-step theory of regulatory authority. It also analyses the issue of interference with the right to choose an occupation, along with the definition of occupations. It concludes by giving examples of the step theory in operation, one for an objective condition on entry and another for a subjective condition on entry.
{"title":"13 Art. 12 GG: Occupational Freedom","authors":"Bumke Christian, Voßkuhle Andreas","doi":"10.1093/LAW/9780198808091.003.0013","DOIUrl":"https://doi.org/10.1093/LAW/9780198808091.003.0013","url":null,"abstract":"This chapter discusses freedom of occupation, a fundamental right guaranteed by Art. 12 of the Grundgesetz (GG). It first examines the Federal Constitutional Court's jurisprudence regarding the scope of protection for occupational freedom, focussing on cases that emphasise the importance of occupational freedom to the human personality, consequences of the personal interpretation of occupational freedom, and restrictions on the guarantees afforded by the scope of protection. It then considers the reservation of authority to regulate the practice of an occupation, with emphasis on the three-step theory of regulatory authority. It also analyses the issue of interference with the right to choose an occupation, along with the definition of occupations. It concludes by giving examples of the step theory in operation, one for an objective condition on entry and another for a subjective condition on entry.","PeriodicalId":335867,"journal":{"name":"German Constitutional Law","volume":"1 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":"130934892","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/9780198808091.003.0023
Bumke Christian, Voßkuhle Andreas
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).
{"title":"23 Art. 21 GG: Political Parties","authors":"Bumke Christian, Voßkuhle Andreas","doi":"10.1093/law/9780198808091.003.0023","DOIUrl":"https://doi.org/10.1093/law/9780198808091.003.0023","url":null,"abstract":"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).","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":"114497268","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/9780198808091.003.0032
Bumke Christian, Voßkuhle Andreas
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.
{"title":"32 Art. 103 GG: Right to a Lawful Hearing, Ban on Retroactive Punishment, and Ban on Multiple Punishments for the Same Crime","authors":"Bumke Christian, Voßkuhle Andreas","doi":"10.1093/LAW/9780198808091.003.0032","DOIUrl":"https://doi.org/10.1093/LAW/9780198808091.003.0032","url":null,"abstract":"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.","PeriodicalId":335867,"journal":{"name":"German Constitutional Law","volume":"325 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":"114230467","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/9780198808091.003.0019
Bumke Christian, Voßkuhle Andreas
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.
{"title":"19 Art. 20 GG: Democracy","authors":"Bumke Christian, Voßkuhle Andreas","doi":"10.1093/law/9780198808091.003.0019","DOIUrl":"https://doi.org/10.1093/law/9780198808091.003.0019","url":null,"abstract":"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.","PeriodicalId":335867,"journal":{"name":"German Constitutional Law","volume":"75 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":"121952256","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/9780198808091.003.0010
Bumke Christian, Voßkuhle Andreas
This chapter deals with freedom of association which is guaranteed by Art. 9 of the Grundgesetz (GG). It first reviews the Federal Constitutional Court's decision concerning the constitutionality of the Codetermination Law of 1976, which expanded the rights of employees to jointly participate in corporate decision making. It then examines the Court's jurisprudence regarding the scope of protection for freedom of association, including the freedom to form income tax assistance associations. It also tackles the question of interference with the right of freedom of association, along with the constitutional justification of such interferences. Finally, it analyses the scope of protection for the fundamental right to form labour groups and employers' associations — or coalitions — to safeguard and improve working and economic conditions, focussing on cases relating to replacement of striking workers and wage-replacement payments in labour disputes.
{"title":"10 Art. 9 GG: Freedom of Association","authors":"Bumke Christian, Voßkuhle Andreas","doi":"10.1093/law/9780198808091.003.0010","DOIUrl":"https://doi.org/10.1093/law/9780198808091.003.0010","url":null,"abstract":"This chapter deals with freedom of association which is guaranteed by Art. 9 of the Grundgesetz (GG). It first reviews the Federal Constitutional Court's decision concerning the constitutionality of the Codetermination Law of 1976, which expanded the rights of employees to jointly participate in corporate decision making. It then examines the Court's jurisprudence regarding the scope of protection for freedom of association, including the freedom to form income tax assistance associations. It also tackles the question of interference with the right of freedom of association, along with the constitutional justification of such interferences. Finally, it analyses the scope of protection for the fundamental right to form labour groups and employers' associations — or coalitions — to safeguard and improve working and economic conditions, focussing on cases relating to replacement of striking workers and wage-replacement payments in labour disputes.","PeriodicalId":335867,"journal":{"name":"German Constitutional Law","volume":"112 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":"126959625","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/9780198808091.003.0021
Bumke Christian, Voßkuhle Andreas
This chapter discusses the federalism principle as articulated in Art. 20 of the Grundgesetz (GG). It first examines the Federal Constitutional Court's jurisprudence concerning the idea that the federal government is an ‘entire state’ (Gesamtstaat). In particular, it considers the doctrine of the ‘tripartite federal state’ (‘entire state’ of the Federal Republic of Germany — federal government — states) and shows that the federal government is the entire state based on the doctrine of the ‘bipartite federal state’. It also explores the notion that the federal government is the ‘community of states’, the community of the federal government and the states, and the homogeneity of the federal and state governments. Finally, it explains the principle of loyalty to the federal state and the ensuing requirement of ‘federalism-friendly conduct’.
{"title":"21 Art. 20 GG: The Federal Principle","authors":"Bumke Christian, Voßkuhle Andreas","doi":"10.1093/LAW/9780198808091.003.0021","DOIUrl":"https://doi.org/10.1093/LAW/9780198808091.003.0021","url":null,"abstract":"This chapter discusses the federalism principle as articulated in Art. 20 of the Grundgesetz (GG). It first examines the Federal Constitutional Court's jurisprudence concerning the idea that the federal government is an ‘entire state’ (Gesamtstaat). In particular, it considers the doctrine of the ‘tripartite federal state’ (‘entire state’ of the Federal Republic of Germany — federal government — states) and shows that the federal government is the entire state based on the doctrine of the ‘bipartite federal state’. It also explores the notion that the federal government is the ‘community of states’, the community of the federal government and the states, and the homogeneity of the federal and state governments. Finally, it explains the principle of loyalty to the federal state and the ensuing requirement of ‘federalism-friendly conduct’.","PeriodicalId":335867,"journal":{"name":"German Constitutional Law","volume":"4 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":"124066284","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/9780198808091.003.0020
Bumke Christian, Voßkuhle Andreas
This chapter discusses the principle of social state as articulated in Art. 20 of the Grundgesetz (GG). In contrast to the democracy principle, GG contains only a few provisions which can be assumed to be specific manifestations of the social-state principle. As a result, interpretation and application of the principle become problematic. As an objective right, the social-state principle requires the state to provide actual benefits. Art. 1 para. 1 GG, in combination with the social-state principle, justifies a claim ‘to the guarantee of a minimum livelihood in accordance with human dignity’. The chapter examines the Federal Constitutional Court's jurisprudence concerning individual social benefits that may be provided by the legislature to fulfill its obligations under the social-state clause, with particular emphasis on long-term care insurance, and the state's obligations under the social-state principle to create and maintain public social-welfare facilities.
{"title":"20 Art. 20 GG: The Social State","authors":"Bumke Christian, Voßkuhle Andreas","doi":"10.1093/LAW/9780198808091.003.0020","DOIUrl":"https://doi.org/10.1093/LAW/9780198808091.003.0020","url":null,"abstract":"This chapter discusses the principle of social state as articulated in Art. 20 of the Grundgesetz (GG). In contrast to the democracy principle, GG contains only a few provisions which can be assumed to be specific manifestations of the social-state principle. As a result, interpretation and application of the principle become problematic. As an objective right, the social-state principle requires the state to provide actual benefits. Art. 1 para. 1 GG, in combination with the social-state principle, justifies a claim ‘to the guarantee of a minimum livelihood in accordance with human dignity’. The chapter examines the Federal Constitutional Court's jurisprudence concerning individual social benefits that may be provided by the legislature to fulfill its obligations under the social-state clause, with particular emphasis on long-term care insurance, and the state's obligations under the social-state principle to create and maintain public social-welfare facilities.","PeriodicalId":335867,"journal":{"name":"German Constitutional Law","volume":"48 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":"132873237","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/9780198808091.003.0026
Bumke Christian, Voßkuhle Andreas
This chapter deals with equal access to civil service which is guaranteed by Art. 33 of the Grundgesetz (GG). It first examines the Federal Constitutional Court's jurisprudence regarding the importance of the civil service to a democratic state founded on the rule of law before addressing the question of access to civil service, with emphasis on the performance principle and the procedures which safeguard it. It then analyses the Court's so-called ‘Radicals decision’, in which it ruled that the duty of political loyalty was one of the traditional principles of the professional civil service, and the scope of the functional reservation of Art. 33 para. 4 GG. It also explains the prohibition of strikes by civil servants, along with the traditional principles of the professional civil service. Finally, it describes the traditional principles of the civil service as individual rights comparable to fundamental rights.
{"title":"26 Art. 33 GG: Equal Citizenship, Civil Service","authors":"Bumke Christian, Voßkuhle Andreas","doi":"10.1093/law/9780198808091.003.0026","DOIUrl":"https://doi.org/10.1093/law/9780198808091.003.0026","url":null,"abstract":"This chapter deals with equal access to civil service which is guaranteed by Art. 33 of the Grundgesetz (GG). It first examines the Federal Constitutional Court's jurisprudence regarding the importance of the civil service to a democratic state founded on the rule of law before addressing the question of access to civil service, with emphasis on the performance principle and the procedures which safeguard it. It then analyses the Court's so-called ‘Radicals decision’, in which it ruled that the duty of political loyalty was one of the traditional principles of the professional civil service, and the scope of the functional reservation of Art. 33 para. 4 GG. It also explains the prohibition of strikes by civil servants, along with the traditional principles of the professional civil service. Finally, it describes the traditional principles of the civil service as individual rights comparable to fundamental rights.","PeriodicalId":335867,"journal":{"name":"German Constitutional Law","volume":"193 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":"124305326","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/9780198808091.003.0008
Bumke Christian, Voßkuhle Andreas
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.
{"title":"8 Art. 7 GG: School","authors":"Bumke Christian, Voßkuhle Andreas","doi":"10.1093/law/9780198808091.003.0008","DOIUrl":"https://doi.org/10.1093/law/9780198808091.003.0008","url":null,"abstract":"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.","PeriodicalId":335867,"journal":{"name":"German Constitutional Law","volume":"6 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":"128074571","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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