scholarly journals Some Kind of Right

2020 ◽  
Vol 21 (S1) ◽  
pp. 40-44
Author(s):  
Jud Mathews
Keyword(s):  
German Law ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Eu Member States ◽  
Right To Be Forgotten ◽  
Federal Constitutional ◽  
The Right ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional ◽  
Specific Reason

AbstractThe Right to Be Forgotten II crystallizes one lesson from Europe’s rights revolution: persons should be able to call on some kind of right to protect their important interests whenever those interests are threatened under the law. Which rights instrument should be deployed, and by what court, become secondary concerns. The decision doubtless involves some self-aggrandizement by the German Federal Constitutional Court (GFCC), which asserts for itself a new role in protecting European fundamental rights, but it is no criticism of the Right to Be Forgotten II to say that it advances the GFCC’s role in European governance, so long as the decision also makes sense in the context of the European and German law. I argue that it does, for a specific reason. The Right to Be Forgotten II represents a sensible approach to managing the complex pluralism of the legal environment in which Germany and other EU member states find themselves.

scholarly journals The Federal Constitutional Court Rules for a Bright Future of Constitutional Pluralism

2020 ◽  
Vol 21 (S1) ◽  
pp. 27-30
Author(s):  
Matej Avbelj
Keyword(s):  
Legal Order ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Bright Future ◽  
Right To Be Forgotten ◽  
Federal Constitutional ◽  
The Right ◽  
Constitutional Pluralism ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

AbstractThe ruling of the German Federal Constitutional Court in the Right to be forgotten II case is an example of constitutional pluralism in action. It demonstrates how a pluralist-minded court can elevate itself from and above the constitutional confines of its own legal order. By integrating the material standards of another legal order in its own review of constitutionality a national constitutional court contributes directly to the strengthening of the fundamental rights of individuals against the national authorities within the overall system of European legal order.

Judicial Review of Economic (and Monetary) Policy: The National Courts

2020 ◽  
pp. 245-285
Author(s):  
Menelaos Markakis
Keyword(s):  
European Central Bank ◽  
National Level ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Economic Rights ◽  
Social Challenges ◽  
National Courts ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

This chapter examines the jurisprudence of national courts on crisis-related measures. The material presented in this chapter will be divided into two parts. First, this chapter will examine some of the most important judgments delivered by courts in lender states during the Euro crisis, the emphasis being on the jurisprudence of the German Federal Constitutional Court. These cases primarily focus on the effects of financial assistance mechanisms and revised EU fiscal governance rules on the principle of democracy, parliamentary prerogatives, and national budgetary powers. A further strand of case law focuses on the measures adopted by the European Central Bank. Second, this chapter will look at review by national courts in borrower states, the principal focus being on social challenges brought by austerity-hit litigants in Greece. The comparative analysis sheds light on the different types of challenge facing courts in borrower and lender states, as well as the different starting points and the subtle differences in the reasoning provided by courts in their judgments. As regards borrower states in particular, the twin challenge is to examine to what extent litigants had any success in challenging in national courts the bailout conditions; and the extent to which arguments about civil or socio-economic rights had purchase at national level. The chapter further looks at review by national courts in other jurisdictions, as well as review by supranational and international courts or bodies. Last, it puts forward a number of ideas on fundamental rights adjudication in times of economic crisis.

scholarly journals The Constitutional Status of Karlsruhe’s Novel “Jurisdiction” in EU Fundamental Rights Matters: Self-inflicted Institutional Vulnerabilities

2020 ◽  
Vol 21 (S1) ◽  
pp. 19-26
Author(s):  
Karsten Schneider
Keyword(s):  
Fundamental Rights ◽  
Constitutional Court ◽  
The Novel ◽  
Eu Law ◽  
Binding Effect ◽  
Basic Law ◽  
Federal Constitutional ◽  
Eu Fundamental Rights ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

AbstractThe First Senate of the German Federal Constitutional Court (FCC) has recently introduced the express promise that where EU fundamental rights take precedence over German fundamental rights, the Court itself could directly review, on the basis of EU fundamental rights, the application of EU law by German authorities. There are, however, differences between the Basic Law as the relevant standard of review and other standards of review that are dangerous to ignore. The constitutional status of the FCC’s jurisdiction depends crucially on whether the Court relies on the constitution or on EU fundamental rights. If the constitutional status of the novel jurisdiction covered any binding-effect, and that is a big if, the FCC still would not safeguard the unity and coherence of Union law. Leaving aside the fact that the First Senate is confined to reversing and remanding (unable to enforce anything directly), no beneficial effect on legal certainty grows apparent. Any binding-effect of the novel jurisdiction only provides for consistency without finality. And to venture further into the question: Even if anyone welcomed this novel kind of consistency without finality (virtually “provisional consistency”), this oddish consistency would still be a localized consistency, i.e. in German courts only.

scholarly journals National Constitutional Courts as Guardians of the Charter: A Comparative Appraisal of the German Federal Constitutional Court's Right to Be Forgotten Judgments

2020 ◽  
pp. 1-21
Author(s):  
Clara RAUCHEGGER
Keyword(s):  
Primary Source ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
Federal Constitutional ◽  
Eu Fundamental Rights ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

Abstract The binding legal force that the Charter acquired with the Treaty of Lisbon has led some national constitutional courts to adopt an entirely new approach to EU fundamental rights. Most notably, the Austrian Constitutional Court, the Italian Constitutional Court, and the German Federal Constitutional Court have explicitly made the Charter a yardstick of constitutional review. This article compares and contrasts the approaches of these three courts to the Charter. It shows that the strategies of the Austrian and German Constitutional Courts have many characteristics in common, including that national constitutional rights are treated as a primary source and the Charter as a mere secondary benchmark in the majority of cases. The most distinctive feature of the Italian Constitutional Court's strategy is that it mainly aims to prevent ordinary courts from circumventing constitutionality refences by directly applying the Charter. The article concludes by arguing that it has many advantages when national constitutional courts adopt the Charter as a yardstick of constitutional review. It is for the constitutional courts and the CJEU to ensure that these benefits are not outweighed by some serious drawbacks of constitutional review in light of the Charter.

scholarly journals Inconstitucionalidad de la exclusión del derecho de voto del art. 13 inc. 2 y 3 de la Ley federal electoral de Alemania / Unconstitutionality of the exclusion of the right to vote in Article 13, sub-sections 2 and 3 of the Federal Electoral Law of Ger

2019 ◽  
pp. 123-163
Author(s):  
Gonzalo Dell'Orsi
Keyword(s):  
Constitutional Court ◽  
Bundesrepublik Deutschland ◽  
Universal Suffrage ◽  
Federal Constitutional ◽  
Constitutional Right ◽  
National Constitution ◽  
The Right ◽  
Electoral Law ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

El Tribunal Constitucional Federal Alemán declaró la inconstitucionalidad del art. 13 inc. 2 y 3 de la ‘Ley Federal Electoral’, por considerar que dicha normativa vulneraba el derecho constitucional del voto universal, reglamentado en el artículo 38, inc. 1, primera oración de la ‘Ley fundamental para la República Federal Alemana’, y el principio de no discriminación por discapacidad, reglamentado en el artículo 3, inc. 3 segunda oración de este último cuerpo normativo.   The German Federal Constitutional Court declared the unconstitutionality of sections 13, sub-sections 2 and 3 of the Federal Electoral Law, on the grounds that such legislation violated the constitutional right to universal suffrage, regulated in section 38, sub-section 1, first sentence of the Germans National Constitution, and the principle of non-discrimination on the basis of disability, regulated in section 3, sub-section 3, second sentence of the Germans National Constitution   [1] En alemán Bundeswahlgesetz (BWahlG). [2] En alemán Grundgesetz für die Bundesrepublik Deutschland (GG).

scholarly journals Resolución del Tribunal Constitucional Federal alemán sobre el art. 217 del Código penal alemán

2020 ◽  
pp. 213-225
Author(s):  
Gonzalo Dell'Orsi
Keyword(s):  
Assisted Suicide ◽  
Personality Development ◽  
Criminal Code ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Federal Constitutional ◽  
The Right ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

Con fecha 26 de febrero de 2020, la cámara segunda del Tribunal Constitucional Federal Alemán declaró la inconstitucionalidad y nulidad del art. 217 del Código Penal Alemán. Este artículo, en su redacción luego de ser modificado en el año 2015, amenaza en su primer inciso con pena privativa de la libertad a quien promoviera de manera comercial la asistencia al suicidio. En dicha oportunidad, los Magistrados entendieron y decidieron de manera conjunta sobre seis recursos de inconstitucionalidad, y concluyeron en que la norma atacada vulnera los siguientes derechos constitucionales: el derecho al libre desarrollo de la personalidad (art. 2. inc. 1 en conexión con el art. 1 inc. 1); el derecho a la libertad (art. 2 inc. 2 segunda oración en conexión con el art. 104 inc. 1); y el derecho a la libertad de trabajo (art. 12 inc. 1).   On 26 February 2020, the second chamber of the German Federal Constitutional Court declared section 217 of the German Criminal Code unconstitutional and void. This section, as amended in 2015, threatens in its first paragraph with prisión sentence for anyone who commercially promotes assisted suicide. On that occasion, the judges considered and decided jointly on six constitutional appeals, and concluded that the rule attacked violated the following constitutional rights: the right to free personality development (article 2, paragraph 1, in connection with article 1, paragraph 1); the right to liberty (article 2, paragraph 2, second sentence in reference to article 104, paragraph 1); and the right to freedom of work (article 12, paragraph 1).

scholarly journals The Federal Constitutional Court Decisions: „The Right to be Forgotten I” and „The Right to be Forgotten II” – The Expectation of Increased Cooperation with the Concurrent Need to Maintain Independence

2020 ◽  
pp. 69-88
Author(s):  
Magdalena Jaś-Nowopolska ◽  
Daniel Mengeler
Keyword(s):  
Fundamental Rights ◽  
European Court Of Justice ◽  
Constitutional Court ◽  
Eu Law ◽  
Court Of Justice ◽  
Right To Be Forgotten ◽  
European Court ◽  
Federal Constitutional ◽  
The Right ◽  
Eu Fundamental Rights

The article discusses the decisions “Right to be forgotten I” and “Right to be forgotten II” of 6 November 2019 by the Federal Constitutional Court, which redefine the relationship of cooperation between the Federal Constitutional Court and the European Court of Justice in the area of fundamental rights. The Court has decided for the first time that where EU fundamental rights take precedence over German fundamental rights, the Court itself can directly review, on the basis of EU fundamental rights, the application of EU law by German authorities. In the first part, the article presents the previous system, including the precedence of application of EU law and its exceptions (ultra-vires review; identity review), as well as the controversial question of the interpretation of Article 51 (1) of the Charter of Fundamental Rights, which is decisive for the applicability of the fundamental rights under the Charter. The focus is on the constitutional background of the German Basic Law for the protection of fundamental rights in the European multi-level system. Against this background, the second part of the article presents the facts and reasons for the decisions “Right to be forgotten I” and “Right to be forgotten II”. This is followed by an analysis of the consequences of these decisions for the protection of fundamental rights and cooperation between the European Court of Justice and the Federal Constitutional Court. In particular, the way in which fundamental EU rights can now be enforced before the Federal Constitutional Court is described in greater detail. The concluding part provides an overview of the open questions, risks and opportunities of this approach. Here the article illustrates the significant impact of the two decisions on dogmatic and procedural matters.

Sign in / Sign up

Export Citation Format

Share Document