This contribution, entitled “A Sample Draft with a Tendency towards Curtailing Freedom”, critically examines the planned project of a standardised police act (Musterpolizeigesetz). This template legislation is discussed by Markus Thiel in the preceding article. Firstly, the lead commission’s approach to standardise “the maximum that is permissible from a constitutional point of view” is considered misguided. It makes extremely one-sided use of the legislator’s corridor between freedom and security, and jeopardises the project as a whole - a project that makes sense in itself. Secondly, the legal concept of “impending danger”, which has already found its way into recent amendments to state police legislation, is criticized linguistically, constitutionally, and politically. The attempt is made to achieve the necessary police-law defence against terrorism through careful adjustments, rather than by overcoming the tried and tested constitutional dogma of the terms “danger” and “responsibility”. Thirdly, reasons are given for why preventive police detention infringes European and constitutional law. Detention is imposed without the existence of a concrete danger, or for a period exceeding 14 days. It is recalled that, in terms of legal history and comparative law, preventive detention is a typical instrument of the state of emergency and of regimes of injustice.
{"title":"Ein Musterentwurf mit Schlagseite zulasten der Freiheit","authors":"B. Pieroth","doi":"10.3790/verw.53.1.39","DOIUrl":"https://doi.org/10.3790/verw.53.1.39","url":null,"abstract":"This contribution, entitled “A Sample Draft with a Tendency towards Curtailing Freedom”, critically examines the planned project of a standardised police act (Musterpolizeigesetz). This template legislation is discussed by Markus Thiel in the preceding article. Firstly, the lead commission’s approach to standardise “the maximum that is permissible from a constitutional point of view” is considered misguided. It makes extremely one-sided use of the legislator’s corridor between freedom and security, and jeopardises the project as a whole - a project that makes sense in itself. Secondly, the legal concept of “impending danger”, which has already found its way into recent amendments to state police legislation, is criticized linguistically, constitutionally, and politically. The attempt is made to achieve the necessary police-law defence against terrorism through careful adjustments, rather than by overcoming the tried and tested constitutional dogma of the terms “danger” and “responsibility”. Thirdly, reasons are given for why preventive police detention infringes European and constitutional law. Detention is imposed without the existence of a concrete danger, or for a period exceeding 14 days. It is recalled that, in terms of legal history and comparative law, preventive detention is a typical instrument of the state of emergency and of regimes of injustice.","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":"1 1","pages":"39-62"},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70201379","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}
In Germany, the competence to legislate on the powers of the police, as far as the prevention of threats to the public security and not the investigation and prosecution of criminal offences is concerned, lies with the Länder. A working group of representatives of the Länder and the federal state is currently drafting a new model Police Act for Germany, i. e. template legislation that will become an important point of reference for the legislative activities of the Länder. This article examines the merits of this project and comments on some decisions the working group has already taken. It argues that it cannot be the aim of the project to try to achieve full uniformity of police law in Germany. The decision of the German consitution to entrust the Länder (and not the federal state) with police powers should not be undermined. The real purpose of the project should be to reach a consensus on some basic dogmatic notions of police law. It shows that there is currently a great amount of dogmatic uncertainty which could be clarified by the project. The aim of the working group, which is to set out police powers within and at the limits of the constitution, raises the question whether the constitutional limits of police law have been drawn too tightly by the constitutional court and by academic debate. It is highly unusual that an area of the law is so heavily determinded by constitutional law as is the case with police law in Germany. A main focus of the article deals with the question of whether the new Act should embrace the notion of “drohende Gefahr” (impending danger), which was considered by the constitutional court and recently introduced by the Bavarian legislator. Normally preventive police powers are linked to the precondition that the police can demonstrate a “konkrete Gefahr” (a concrete danger, i. e. a sufficient likelihood) of a threat to public security. “Drohende Gefahr” (impending danger) means, that there is indeed a sufficient likelihood of such a threat but one cannot foresee yet when, where and how exactly the threat will materialise. The article shows that “drohende Gefahr” is nothing new in essence, but just a borderline case of “konkrete Gefahr” which is now defined in a more precise manner. Finally the suggestions for detention powers of the police are analysed.
{"title":"Projekt Musterpolizeigesetz - eine Stellungnahme","authors":"Markus Möstl","doi":"10.3790/verw.53.1.21","DOIUrl":"https://doi.org/10.3790/verw.53.1.21","url":null,"abstract":"In Germany, the competence to legislate on the powers of the police, as far as the prevention of threats to the public security and not the investigation and prosecution of criminal offences is concerned, lies with the Länder. A working group of representatives of the Länder and the federal state is currently drafting a new model Police Act for Germany, i. e. template legislation that will become an important point of reference for the legislative activities of the Länder. This article examines the merits of this project and comments on some decisions the working group has already taken. It argues that it cannot be the aim of the project to try to achieve full uniformity of police law in Germany. The decision of the German consitution to entrust the Länder (and not the federal state) with police powers should not be undermined. The real purpose of the project should be to reach a consensus on some basic dogmatic notions of police law. It shows that there is currently a great amount of dogmatic uncertainty which could be clarified by the project. The aim of the working group, which is to set out police powers within and at the limits of the constitution, raises the question whether the constitutional limits of police law have been drawn too tightly by the constitutional court and by academic debate. It is highly unusual that an area of the law is so heavily determinded by constitutional law as is the case with police law in Germany. A main focus of the article deals with the question of whether the new Act should embrace the notion of “drohende Gefahr” (impending danger), which was considered by the constitutional court and recently introduced by the Bavarian legislator. Normally preventive police powers are linked to the precondition that the police can demonstrate a “konkrete Gefahr” (a concrete danger, i. e. a sufficient likelihood) of a threat to public security. “Drohende Gefahr” (impending danger) means, that there is indeed a sufficient likelihood of such a threat but one cannot foresee yet when, where and how exactly the threat will materialise. The article shows that “drohende Gefahr” is nothing new in essence, but just a borderline case of “konkrete Gefahr” which is now defined in a more precise manner. Finally the suggestions for detention powers of the police are analysed.","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":"53 1","pages":"21-38"},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70201271","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}
Es freut mich ungemein, dass Untersuchungen, die die „actio“ (lat. Klaghandlung, Klage, Klagrecht) im Titel führen, nach wie vor die Gemüter erhitzen. Über etwas, das die Leute langweilt, hätte ich nicht schreiben mögen. Insofern ist meine erste Absicht, das Verhältnis von materiellem und prozessualem Verwaltungsrecht verstärkt in den Blick der theoretisch-dogmatischen Aufmerksamkeit zu rücken, offenbar aufgegangen. Ob auch meine zweite Absicht, etwa Überzeugendes dazu zu schreiben, gelungen ist, liegt im Auge der Betrachter. Nicht wirklich überzeugt ist Andreas Funke, der seine ausführliche Erwiderung auf meine Dissertationsschrift im vorvergangenen Heft dieser Zeitschrift versöhnlich, aber bestimmt beschließt: Das von mir sogenannte und kritisierte „Anspruchsmodell des Verwaltungsrechts“ habe für ihn „weiterhin die Nase vorn“.
{"title":"Aktionenrechtliches Denken im Verwaltungsrecht","authors":"Johannes Buchheim","doi":"10.3790/verw.52.4.577","DOIUrl":"https://doi.org/10.3790/verw.52.4.577","url":null,"abstract":"Es freut mich ungemein, dass Untersuchungen, die die „actio“ (lat. Klaghandlung,\u0000Klage, Klagrecht) im Titel führen, nach wie vor die Gemüter erhitzen.\u0000Über etwas, das die Leute langweilt, hätte ich nicht schreiben mögen.\u0000Insofern ist meine erste Absicht, das Verhältnis von materiellem und prozessualem\u0000Verwaltungsrecht verstärkt in den Blick der theoretisch-dogmatischen\u0000Aufmerksamkeit zu rücken, offenbar aufgegangen. Ob auch meine\u0000zweite Absicht, etwa Überzeugendes dazu zu schreiben, gelungen ist, liegt\u0000im Auge der Betrachter. Nicht wirklich überzeugt ist Andreas Funke, der seine\u0000ausführliche Erwiderung auf meine Dissertationsschrift im vorvergangenen\u0000Heft dieser Zeitschrift versöhnlich, aber bestimmt beschließt: Das\u0000von mir sogenannte und kritisierte „Anspruchsmodell des Verwaltungsrechts“\u0000habe für ihn „weiterhin die Nase vorn“.","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43469796","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}
The public administration is in a state of change and is confronted with ever new challenges. To cope with that it seems appropriate to incorporate new theories into the field of administrative science. Accordingly, two theory offers from the social sciences are used, the Actor-Network-Theory as well as the Sociology of Conventions, and their utility and limits for public administration theory are examined. The aim is to inaugurate a pragmatic theoretical enrichment for the administration and to show how application-oriented science of public administration can benefit from such a theoretical offer.
{"title":"Pragmatic Turn in der Verwaltungswissenschaft","authors":"Michael Vollstädt","doi":"10.3790/verw.52.4.553","DOIUrl":"https://doi.org/10.3790/verw.52.4.553","url":null,"abstract":"The public administration is in a state of change and is confronted with ever new challenges. To cope with that it seems appropriate to incorporate new theories into the field of administrative science. Accordingly, two theory offers from the social sciences are used, the Actor-Network-Theory as well as the Sociology of Conventions, and their utility and limits for public administration theory are examined. The aim is to inaugurate a pragmatic theoretical enrichment for the administration and to show how application-oriented science of public administration can benefit from such a theoretical offer.","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49432201","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}
Courts of auditors fulfil a key function within a state’s constitutional structure. One of their most important responsibilities is to strengthen the citizens’ trust in the state and in politics by controlling the state‘s financial management. In order to perform this task, the courts of auditors need thorough insight into administrative proceedings, even in those that contain personal data. Therefore, the external financial control can come into conflict with the involved persons’ right to informational self-determination. If the GDPR applied in full to the courts of auditors’ processing activities, this could - in turn - interfere with their constitutionally protected independence. On closer examination, it becomes clear that audit and data protection authorities maintain a special relationship of cooperation. Their respective competency of control is reciprocally limited as required by their particular independence. As a consequence, courts of auditors have to be treated in analogy to courts of justice, which the GDPR explicitly privileges. Thus, courts of auditors are subject to data protection law, but (inter alia) released from the data protection authorities’ supervision.
{"title":"Finanzkontrolle und Datenschutz","authors":"T. Kienle, M. Martini","doi":"10.3790/verw.52.4.467","DOIUrl":"https://doi.org/10.3790/verw.52.4.467","url":null,"abstract":"Courts of auditors fulfil a key function within a state’s constitutional structure. One of their most important responsibilities is to strengthen the citizens’ trust in the state and in politics by controlling the state‘s financial management. In order to perform this task, the courts of auditors need thorough insight into administrative proceedings, even in those that contain personal data. Therefore, the external financial control can come into conflict with the involved persons’ right to informational self-determination. If the GDPR applied in full to the courts of auditors’ processing activities, this could - in turn - interfere with their constitutionally protected independence. On closer examination, it becomes clear that audit and data protection authorities maintain a special relationship of cooperation. Their respective competency of control is reciprocally limited as required by their particular independence. As a consequence, courts of auditors have to be treated in analogy to courts of justice, which the GDPR explicitly privileges. Thus, courts of auditors are subject to data protection law, but (inter alia) released from the data protection authorities’ supervision.","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46799100","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}
Enforcement action doctrine has been plagued by considerable controversy from the very beginning. In particular, the term “rejection of the administrative act” in Section 113 Paragraph 5 First Sentence VwGO is deemed incompatible with enforcement action‘s purpose, for the administrative authority’s decision to reject the desired act is not the very matter under judicial review. Rather, the court is required to only determine whether the nonexistence of the desired act is unlawful (and whether plaintiff has a right to the act) - irrespective of any express rejection by an administrative authority. Section 114 First Sentence VwGO precipitates further unease. While allegedly devised to curtail courts’ authority to review exercise of discretion, its wording suggests quite the opposite (“also reviews…” instead of “only reviews…”). However, legislator’s choice of words should be taken at face value to the extent possible. The article therefore explores a textual interpretation that seeks to better reconcile statutory wording and doctrine. While the term “rejection” signifies that the continued nonexistence of the desired administrative act has been individuated thru the administrative authority’s decision, the term does nevertheless refer to the continued nonexistence itself, and not to the authority’s rejection of the act. In order to apply this finding to cases where the desired administrative act is at the authority’s discretion, the reason for the unlawfulness of the “rejection” requires specification. Before issuing the administrative act with which the act desired by the claimant is rejected, the authority needs to devise an individual rule on how to exercise discretion in the case at hand. If this individual rule does not conform to the purposes of the statutory provision that grants discretion, then it is void. The wording of Section 114 First Sentence VwGO (“also reviews…”) clarifies that the court’s authority extends to reviewing validity of the individual rule. The article concludes with a look at the results’ relevance for action to rescind an administrative act, and for administrative discretion doctrine in general.
{"title":"Verpflichtungsklage und Verwaltungsermessen","authors":"S. Meyer","doi":"10.3790/verw.52.4.501","DOIUrl":"https://doi.org/10.3790/verw.52.4.501","url":null,"abstract":"Enforcement action doctrine has been plagued by considerable controversy from the very beginning. In particular, the term “rejection of the administrative act” in Section 113 Paragraph 5 First Sentence VwGO is deemed incompatible with enforcement action‘s purpose, for the administrative authority’s decision to reject the desired act is not the very matter under judicial review. Rather, the court is required to only determine whether the nonexistence of the desired act is unlawful (and whether plaintiff has a right to the act) - irrespective of any express rejection by an administrative authority. Section 114 First Sentence VwGO precipitates further unease. While allegedly devised to curtail courts’ authority to review exercise of discretion, its wording suggests quite the opposite (“also reviews…” instead of “only reviews…”).\u0000However, legislator’s choice of words should be taken at face value to the extent possible. The article therefore explores a textual interpretation that seeks to better reconcile statutory wording and doctrine.\u0000While the term “rejection” signifies that the continued nonexistence of the desired administrative act has been individuated thru the administrative authority’s decision, the term does nevertheless refer to the continued nonexistence itself, and not to the authority’s rejection of the act. In order to apply this finding to cases where the desired administrative act is at the authority’s discretion, the reason for the unlawfulness of the “rejection” requires specification. Before issuing the administrative act with which the act desired by the claimant is rejected, the authority needs to devise an individual rule on how to exercise discretion in the case at hand. If this individual rule does not conform to the purposes of the statutory provision that grants discretion, then it is void.\u0000The wording of Section 114 First Sentence VwGO (“also reviews…”) clarifies that the court’s authority extends to reviewing validity of the individual rule.\u0000The article concludes with a look at the results’ relevance for action to rescind an administrative act, and for administrative discretion doctrine in general.","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46860417","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}
In case the civil claim for return doesn’t help the public archive to recover dispossessed public archive material, it’s in question if the archive versus the material’s possessor has got a public-law claim for return by virtue of the public law of things. That’s generally not the case, contrary to a now as ever held opinion: If the archive - precisely: the public subject of the archive - has lost not only the possession but also the property right of the archive material, the archive is able to realize the recovery of the archive material neither by administrative action nor by action for performance through the administrative court. The same applies in case the archive hasn‘t lost its property right of the archive material but isn‘t able to realize the civil claim for return because of its statutory limitation. Here, too, a public-law request for return based only on the presumed public law of things is unsuccessful. Something different applies to the Free State of Saxony and the Free State of Thuringia: Recently the state legislator has conceded a public-law claim for return to the public archives versus the possessor of dispossessed public archive material - a novelty in the entire public law of things. However, because of the constitutional property guarantee (Article 14, section 1 of the German Basic Law) the relevant state law (Section 8, paragraph 2, sentence 3 Saxon Archives Act; Section 2, paragraph 1, sentence 4 Thuringian Archives Act) has to be interpreted in conformity with the constitution: The state law grants the archives a public-law claim for return which is cognizable by action for performance through the administrative court. But only, although at least, versus the archive material’s possessor who isn’t the material’s proprietor. This applies mutatis mutandis to other (i. e. non-archival) public things. In so far, however, because of the property guarantee (Article 14, section 1 of the German Basic Law) legislative amendments can be taken into consideration at most and only concerning unique specimens which are irreplaceable for public purposes: cultural assets with a unique character.
{"title":"Zum Anspruch öffentlicher Sachherrn auf Herausgabe entzogener öffentlicher Sachen kraft öffentlichen Sachenrechts","authors":"A. Janssen","doi":"10.3790/verw.52.4.529","DOIUrl":"https://doi.org/10.3790/verw.52.4.529","url":null,"abstract":"In case the civil claim for return doesn’t help the public archive to recover dispossessed public archive material, it’s in question if the archive versus the material’s possessor has got a public-law claim for return by virtue of the public law of things. That’s generally not the case, contrary to a now as ever held opinion: If the archive - precisely: the public subject of the archive - has lost not only the possession but also the property right of the archive material, the archive is able to realize the recovery of the archive material neither by administrative action nor by action for performance through the administrative court. The same applies in case the archive hasn‘t lost its property right of the archive material but isn‘t able to realize the civil claim for return because of its statutory limitation. Here, too, a public-law request for return based only on the presumed public law of things is unsuccessful.\u0000Something different applies to the Free State of Saxony and the Free State of Thuringia: Recently the state legislator has conceded a public-law claim for return to the public archives versus the possessor of dispossessed public archive material - a novelty in the entire public law of things. However, because of the constitutional property guarantee (Article 14, section 1 of the German Basic Law) the relevant state law (Section 8, paragraph 2, sentence 3 Saxon Archives Act; Section 2, paragraph 1, sentence 4 Thuringian Archives Act) has to be interpreted in conformity with the constitution: The state law grants the archives a public-law claim for return which is cognizable by action for performance through the administrative court. But only, although at least, versus the archive material’s possessor who isn’t the material’s proprietor.\u0000This applies mutatis mutandis to other (i. e. non-archival) public things. In so far, however, because of the property guarantee (Article 14, section 1 of the German Basic Law) legislative amendments can be taken into consideration at most and only concerning unique specimens which are irreplaceable for public purposes: cultural assets with a unique character.","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43247750","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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