{"title":"Zur Rezeption empirischer Forschung und psychologischer Verfahrenstheorie in der verwaltungsrechtlichen Debatte zur Akzeptanz des Stromnetzausbaus","authors":"Langenbach, Pascal","doi":"10.3790/verw.55.2.191","DOIUrl":"https://doi.org/10.3790/verw.55.2.191","url":null,"abstract":"","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46410400","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}
{"title":"Regulatorische Weiterentwicklung eines klimapolitischen Dilemmas: Der Einsatz von CCS und CCU als Negativemissionstechnologien","authors":"Weber, Ruth","doi":"10.3790/verw.55.2.219","DOIUrl":"https://doi.org/10.3790/verw.55.2.219","url":null,"abstract":"","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42415668","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}
{"title":"Sachverhaltsermittlung im Verwaltungsverfahren zwischen Verfahrensrecht und materiellem Recht","authors":"L. Hartmann","doi":"10.3790/verw.55.1.91","DOIUrl":"https://doi.org/10.3790/verw.55.1.91","url":null,"abstract":"","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44905704","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}
{"title":"Was kann das Allgemeine Verwaltungsrecht vom Steuerrecht lernen?","authors":"R. Seer","doi":"10.3790/verw.55.1.25","DOIUrl":"https://doi.org/10.3790/verw.55.1.25","url":null,"abstract":"","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43430504","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}
{"title":"Was kann das Allgemeine Verwaltungsrecht vom Sozialrecht lernen?","authors":"S. Rixen","doi":"10.3790/verw.55.1.1","DOIUrl":"https://doi.org/10.3790/verw.55.1.1","url":null,"abstract":"","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42152528","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}
Financial solidarity for the economy, which has been severely affected by the pandemic, is appropriate and is constitutionally required in essence, but it is not a task of state liability. The necessary aid for hundreds of thousands of businesses far exceeds the functional limits and legitimacy of the general legal institutions of liability for lawful state action (“Aufopferungshaftung”). They are also not a subject of statutory protection against infection (“Infektionsschutzgesetz”). The state, which may be constitutionally obligated to take far-reaching and drastic protective measures in the event of an epidemic, must not be prevented from fulfilling this obligation by the burden of of legally determined financial compensation on a big scale. And the legislator of infection protection law cannot responsibly make such a regulation aimed at compensating ex ante incalculable economic losses. The thesis that is sometimes put forward of a right to compensation for the Corona losses of affected companies based in the fundamental rights also proves to be problematic. Shutdown measures against certain industries or types of trade that can plausibly justified by legitimate reasons – particular risk of infection, lesser need for the vital functions of society and the economy – do not violate the principle of equality. They are therefore not special sacrifices in the sense of compensation law. Furthermore the principle of proportionality is sufficiently elastic to justify pandemic-related restrictions without financial compensation. Fundamental rights do not really provide a more precise and stringent standard for the task incumbent on society of distributing the unequal Corona burdens than does the welfare state principle. The Corona pandemic and its economic consequences should therefore not be taken as an incentive to commercialize fundamental rights on a scale previously not thought possible for good reasons. Instead, in the face of the concrete situation of a pandemic, politically negotiated and parliamentarily accountable ad hoc aid programs of the legislature or the empowered governments are far better suited to meet the enormous challenge.
{"title":"Entschädigung für Corona-Schutzmaßnahmen: Grundrechtshaftung oder soziale Hilfen?","authors":"M. Cornils","doi":"10.3790/verw.54.4.477","DOIUrl":"https://doi.org/10.3790/verw.54.4.477","url":null,"abstract":"Financial solidarity for the economy, which has been severely affected by the pandemic, is appropriate and is constitutionally required in essence, but it is not a task of state liability. The necessary aid for hundreds of thousands of businesses far exceeds the functional limits and legitimacy of the general legal institutions of liability for lawful state action (“Aufopferungshaftung”). They are also not a subject of statutory protection against infection (“Infektionsschutzgesetz”). The state, which may be constitutionally obligated to take far-reaching and drastic protective measures in the event of an epidemic, must not be prevented from fulfilling this obligation by the burden of of legally determined financial compensation on a big scale. And the legislator of infection protection law cannot responsibly make such a regulation aimed at compensating ex ante incalculable economic losses. The thesis that is sometimes put forward of a right to compensation for the Corona losses of affected companies based in the fundamental rights also proves to be problematic. Shutdown measures against certain industries or types of trade that can plausibly justified by legitimate reasons – particular risk of infection, lesser need for the vital functions of society and the economy – do not violate the principle of equality. They are therefore not special sacrifices in the sense of compensation law. Furthermore the principle of proportionality is sufficiently elastic to justify pandemic-related restrictions without financial compensation. Fundamental rights do not really provide a more precise and stringent standard for the task incumbent on society of distributing the unequal Corona burdens than does the welfare state principle. The Corona pandemic and its economic consequences should therefore not be taken as an incentive to commercialize fundamental rights on a scale previously not thought possible for good reasons. Instead, in the face of the concrete situation of a pandemic, politically negotiated and parliamentarily accountable ad hoc aid programs of the legislature or the empowered governments are far better suited to meet the enormous challenge.","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45154559","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}
Case law in environmental and climate protection matters in recent years has been characterised by an expansion of access to justice. This can largely be attributed to the relevant legal framework under international and European Union law. In Germany, this development is reflected in the case law on the scope of application of the Umwelt-Rechtsbehelfsgesetz (Environmental Remedies Act), which essentially creates a representative action for environmental associations. The impact of environmental associations is particularly evident in air quality law. In recent years, however, also the protection of individual rights has once again attracted the attention of the courts. The Court of Justice of the European Union has confirmed its broad understanding of natural and legal persons’ enforceable rights that contribute to the realisation of environmental protection. This provides a further example of the different standards of protection at the levels of the Member States and the European Union. While the CJEU promotes the guarantee of effective legal protection by the national courts, it abides by a restrictive understanding of access requirements at the Union level – especially for the action for annulment, as in the Carvalho judgment. By contrast, the climate decision of the German Federal Constitutional Court illustrates the potential of individual (fundamental) rights protection for climate protection. Comparing the CJEU’s and the FCC’s recent case law therefore only reinforces the impression that the CJEU is not a genuine constitutional and fundamental rights court.
{"title":"Rechtsprechungsbericht zum Umwelt- und Klimarechtsschutz seit 2018","authors":"A. Schwerdtfeger","doi":"10.3790/verw.54.4.573","DOIUrl":"https://doi.org/10.3790/verw.54.4.573","url":null,"abstract":"Case law in environmental and climate protection matters in recent years has been characterised by an expansion of access to justice. This can largely be attributed to the relevant legal framework under international and European Union law. In Germany, this development is reflected in the case law on the scope of application of the Umwelt-Rechtsbehelfsgesetz (Environmental Remedies Act), which essentially creates a representative action for environmental associations. The impact of environmental associations is particularly evident in air quality law. In recent years, however, also the protection of individual rights has once again attracted the attention of the courts. The Court of Justice of the European Union has confirmed its broad understanding of natural and legal persons’ enforceable rights that contribute to the realisation of environmental protection. This provides a further example of the different standards of protection at the levels of the Member States and the European Union. While the CJEU promotes the guarantee of effective legal protection by the national courts, it abides by a restrictive understanding of access requirements at the Union level – especially for the action for annulment, as in the Carvalho judgment. By contrast, the climate decision of the German Federal Constitutional Court illustrates the potential of individual (fundamental) rights protection for climate protection. Comparing the CJEU’s and the FCC’s recent case law therefore only reinforces the impression that the CJEU is not a genuine constitutional and fundamental rights court.","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44612044","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}
Efficiency in Environmental Administrative Law – on the Role of Law and Environmental Economics With respect to economic theory there is a demand for more “efficient” law, especially when it comes to environmental law. The“law and economics” strand of research, however, remains (at least under this rubric) strongly influenced by civil law issues. Against this background, the question arises to what extent the methods and arguments usually applied in the economic analysis of civil law can be transferred to public law. So far, environmental administrative law has not been the subject of a cohesive economic theory, but rather of multiple approaches (here referred to as “economic analyses”) that are rapidly becoming more differentiated. These are applied rather selectively and are often only potential economic analyses because they are suitable and relevant for environmental law but have not yet really been activated in this respect. A full-scale transfer of legal economic concepts from the economic analysis of civil law is certainly not possible. Precisely because of the recognition of this fact, intensive and intensifying efforts have been made in environmental economics for about 50 years to develop an adapted methodological casuistry for (public) environmental issues. These adaptations affect both the understanding of efficiency, the institutions analyzed, as well as the challenges of uncertainty and contextual assurance. The result may not yet be fully convincing as “Law and Environmental Economics”, but a methodological approach to the object of knowledge and its particularities in environmental law cannot be denied. In this regard, “economic analysis” seems to be fruitful and expandable for environmental law without further ado, but in an adapted and specific form. For example, the objection that judicial efficiency control of the administration (and the legislature) is institutionally impossible and materially undesirable (e. g., with respect to the separation of powers) must give way to more differentiated considerations.
{"title":"Effizienz im Umweltverwaltungsrecht – zur Rolle ökonomischer Analysen des Umweltrechts","authors":"E. Gawel","doi":"10.3790/verw.54.4.545","DOIUrl":"https://doi.org/10.3790/verw.54.4.545","url":null,"abstract":"Efficiency in Environmental Administrative Law – on the Role of Law and Environmental Economics\u0000With respect to economic theory there is a demand for more “efficient” law, especially when it comes to environmental law. The“law and economics” strand of research, however, remains (at least under this rubric) strongly influenced by civil law issues. Against this background, the question arises to what extent the methods and arguments usually applied in the economic analysis of civil law can be transferred to public law.\u0000So far, environmental administrative law has not been the subject of a cohesive economic theory, but rather of multiple approaches (here referred to as “economic analyses”) that are rapidly becoming more differentiated. These are applied rather selectively and are often only potential economic analyses because they are suitable and relevant for environmental law but have not yet really been activated in this respect. A full-scale transfer of legal economic concepts from the economic analysis of civil law is certainly not possible. Precisely because of the recognition of this fact, intensive and intensifying efforts have been made in environmental economics for about 50 years to develop an adapted methodological casuistry for (public) environmental issues. These adaptations affect both the understanding of efficiency, the institutions analyzed, as well as the challenges of uncertainty and contextual assurance. The result may not yet be fully convincing as “Law and Environmental Economics”, but a methodological approach to the object of knowledge and its particularities in environmental law cannot be denied. In this regard, “economic analysis” seems to be fruitful and expandable for environmental law without further ado, but in an adapted and specific form. For example, the objection that judicial efficiency control of the administration (and the legislature) is institutionally impossible and materially undesirable (e. g., with respect to the separation of powers) must give way to more differentiated considerations.","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42942670","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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