The Constitution as an Objective Order of Values: The Interpretation of the Basic Law by the German Federal Constitutional Court

2014 ◽  
Author(s):  
Maarten Stremler
Keyword(s):  
Constitutional Court ◽  
Basic Law ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

Public Sector Purchase Programme (PSPP) Case

2021 ◽  
Vol 192 ◽  
pp. 451-511
Keyword(s):  
European Union ◽  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
European Central ◽  
Court Of Justice ◽  
Basic Law ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

451Economics, trade and finance — European Monetary Union — Fiscal sovereignty — Public debt — Monetary policy — Economic policy — European Union — Asset purchase programme — Quantitative easing — Central banks — European Central Bank — European System of Central Banks — BundesbankTreaties — Treaty-making powers — Constitutional limitations on treaty-making powers — Transfers of powers by States to intergovernmental and other transnational authorities — Whether compatible with constitutional prerogatives of national parliament — Overall budgetary responsibility — Basic Law of GermanyInternational organizations — European Union — Powers — Member States as masters of the treaties — Principle of conferral — Whether Union having competence to determine or extend its own powers — Principle of subsidiarity — Court of Justice of the European UnionRelationship of international law and municipal law — European Union law — Interpretation — Application — Judgment of Court of Justice of the European Union — Weiss — Principle of proportionality — Whether application of EU law having absolute primacy — Whether German Federal Constitutional Court having absolute duty to follow judgment of Court of Justice of the European Union — Compatibility with Basic Law of Federal Republic of Germany — Openness of German Basic Law to European integration — Whether purchase programme ultra vires — Whether ultra vires acts applicable in Germany — Whether having binding effect in relation to German constitutional organsJurisdiction — European Union institutions — Whether jurisdiction of German Federal Constitutional Court extending to Court of Justice of the European Union and European Central Bank — Whether acts of EU institutions subject to national constitutional review — Ultra vires review — Review of core identity of national constitution — Whether application of EU law having absolute primacy — Whether absolute duty to follow judgment of Court of Justice of the European Union — The law of Germany

The Decision of the Bundesverfassungsgericht of April 12, 2005 – Concerning Police Use of Global Position Systems as a Surveillance Tool

2005 ◽  
Vol 6 (7) ◽  
pp. 1085-1092 ◽  
Author(s):  
Nicole Jacoby
Keyword(s):  
Constitutional Court ◽  
Personality Profile ◽  
Global Positioning Systems ◽  
Positioning Systems ◽  
Basic Law ◽  
Global Positioning ◽  
German Constitution ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

On April 12, 2005, the Bundesverfassunsgreicht (German Federal Constitutional Court) ruled that regulations in the Strafprozessordnung (StPO – Code of Criminal Procedure) concerning police use of global positioning systems (GPS) did not violate the Grundgesetz (GG – German Constitution or Basic Law) so long as the investigators did not use the technology in conjunction with other surveillance methods that could lead to the construction of a personality profile of the suspect observed. The following comment examines the facts of the case and evaluates the Court's decision in detail.

scholarly journals Globalization and the Law: Deciphering the Message of Transnational Human Rights Litigation

2004 ◽  
Vol 5 (12) ◽  
pp. 1499-1520 ◽  
Author(s):  
Peer Zumbansen
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Constitutional Court ◽  
Basic Law ◽  
European Court ◽  
Federal Constitutional ◽  
The Law ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

On 14 October 2004, theBundesverfassungsgericht(BVerfG – German Federal Constitutional Court) voided a decision by theOberlandesgericht(Higher Regional Court) Naumburg, finding a violation of the complainant's rights guaranteed by theGrundgesetz(German Basic Law). The Decision directly addresses both the observation and application of case law from the European Court of Human Rights under the Basic Law's “rule of law provision” in Art. 20.III. While there is a myriad of important aspects with regard to this decision, we may limit ourselves at this point to the introductoryaperçucontained in the holdings of the case. One of them reads as follows:Zur Bindung an Gesetz und Recht (Art. 20 Abs. 3 GG) gehört die Berücksichtigung der Gewährleistungen der Konvention zum Schutze der Menschenrechte und Grundfreiheiten und der Entscheidungen des Europäischen Gerichtshofs für Menschenrechte im Rahmen methodisch vertretbarer Gesetzesauslegung. Sowohl die fehlende Auseinandersetzung mit einer Entscheidung des Gerichtshofs als auch deren gegen vorrangiges Recht verstoßende schematische “Vollstreckung” können gegen Grundrechte in Verbindung mit dem Rechtsstaatsprinzip verstoßen

Streikverbot für Beamte – sowohl verfassungs- als auch konventionsgemäß? Kritische Anmerkungen zum Urteil des BVerfG vom 12.6.2018

2018 ◽  
Vol 101 (4) ◽  
pp. 376-394
Author(s):  
Shu-Perng Hwang
Keyword(s):  
International Law ◽  
Public Law ◽  
Civil Servants ◽  
Constitutional Court ◽  
Federal Republic Of Germany ◽  
Public International Law ◽  
Basic Law ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

This article critically approaches the recent decision of the German Federal Constitutional Court regarding the ban on strikes for civil servants. It shows that the judgment cannot be seen as a decision committed to international public law, as some scholars suggest. By once more adopting a material understanding of Art. 33 para. 5 Basic Law and thereby not only confirming the constitutionality, but in particular the constitutional status of the ban on strikes for civil servants, the court holds on to the absolute primacy of the Basic Law that is not to be undermined by the ECHR or the jurisprudence of the ECtHR as a means of interpretation. The reference to the need to contextualize the jurisprudence of the ECtHR as well as the emphasis on the national particularity of the Federal Republic of Germany clearly indicate that, by developing a state-centred principle of commitment to public international law, the court does not seek to align and harmonize the requirements of the ECHR and the Basic Law by developing a state-centred principle of commitment to public international law but rather to achieve a delimitation of competences between the spheres of the ECtHR and the Federal Constitutional Court.

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.

Casenote–– The Fundamental Right to the Guarantee of a Subsistence Minimum in theHartz IVDecision of the German Federal Constitutional Court

2011 ◽  
Vol 12 (11) ◽  
pp. 1961-1982
Author(s):  
Stefanie Egidy
Keyword(s):  
Social Benefits ◽  
Constitutional Court ◽  
Social Law ◽  
Hartz Iv ◽  
Basic Law ◽  
Subsistence Minimum ◽  
The Social ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

In February 2010, the German Federal Constitutional Court (Bundesverfassungsgericht) issued a ruling on the so-called “Hartz IV legislation.” The ruling dealt with the law on social benefits according to the Second Book of the German Code of Social Law and was based on the “fundamental right to the guarantee of a subsistence minimum” derived from the declaration of human dignity in Article 1(1) of the German Basic Law in conjunction with Article 20(1), the principle of the social welfare state.

Subsidiarity and Judicial Review in German Federalism: The Decision of the Federal Constitutional Court in theGeriatric Nursing ActCase

2003 ◽  
Vol 4 (3) ◽  
pp. 223-236 ◽  
Author(s):  
Markus Rau
Keyword(s):  
Elderly Population ◽  
The Elderly ◽  
Constitutional Court ◽  
Geriatric Nursing ◽  
Steady Growth ◽  
Basic Law ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional ◽  
Geriatric Nurses

On October 24, 2002, the Second Senate of theBundesverfassungsgericht(German Federal Constitutional Court) issued its ruling in theGeriatric Nursing Actcase. The eagerly expected judgment not only puts an end to the discussion on the Federation's legislative powers in the field of geriatrics, which has occupied German politicians and constitutional scholars since the mid-1980s, when the drop in the number of applicants for geriatric nursing jobs and the steady growth of the elderly population have led to calls for a standardization of the education for geriatric nurses at Federal level. More importantly, the decision brings clarity to the question of the justiciability of the so-calledErforderlichkeitsklausel(“necessity clause”) laid down in Article 72 para. 2 of the Basic Law.

scholarly journals Inconsistencies – The German Federal Constitutional Court on the European Arrest Warrant

2006 ◽  
Vol 2 (2) ◽  
pp. 209-226 ◽  
Author(s):  
Christian Tomuschat
Keyword(s):  
European Union ◽  
Constitutional Court ◽  
The European Union ◽  
Arrest Warrant ◽  
Basic Law ◽  
Democratic Principle ◽  
European Arrest Warrant ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

Features European Arrest Warrant – Article 16(2) German Basic Law, which allows exceptionally for the extradition of German nationals, not read in the light of the European Union integration clause in Article 23(1) Basic Law – Complaint of violation of the democratic principle put in perspective – Preservation of the statehood of Germany – Lack of proportionality in and procedural defects of the implementing Act

Unantastbare Menschenwürde

2019 ◽  
Author(s):  
Justus Quecke
Keyword(s):  
Human Dignity ◽  
Alternative Interpretation ◽  
Constitutional Court ◽  
Basic Law ◽  
Federal Constitutional ◽  
The Law ◽  
German Federal Constitutional Court ◽  
Difficult Cases ◽  
German Federal Constitutional

The German Federal Constitutional Court considers Article 1(1) of the country’s Basic Law to be an inalienable right. Accordingly, the impairment of human dignity cannot be justified by balancing it against other constitutional principles. Legal scholars, however, increasingly reject this understanding of the law as irrational or theoretically impossible. In this volume, Justus Quecke examines the content of these objections and the challenges associated with an absolute understanding of human dignity. He develops an alternative interpretation of human dignity, according to which the semantics of actions determine whether human dignity has been violated. In addition, he shows how ‘reasoning by example’ can operationalise an absolute understanding of Article 1(1) of the Basic Law in difficult cases.

Casenote –– Euro Rescue Package Case: The German Federal Constitutional Court Protects the Principle of Parliamentary Budget

2011 ◽  
Vol 12 (11) ◽  
pp. 2071-2075 ◽  
Author(s):  
Sebastian Recker
Keyword(s):  
Financial Aid ◽  
International Organizations ◽  
Case Law ◽  
Constitutional Court ◽  
Federal Republic Of Germany ◽  
European Monetary ◽  
Basic Law ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

In its Aid Measures for Greece and Euro Rescue Package case, the German Federal Constitutional Court affirmed the Parliament's budget authority to provide financial aid measures to the European Monetary Union. The judgment conforms to the German Federal Constitutional Court's case law concerning the transfer of sovereign power to international organizations and reaffirms that German participation in international organizations is linked to constitutive pillars of the German Basic Law. One of these pillars is the Principle of Parliamentary Budget. This principle provides that any financial aid package has to be approved by the Parliament of the Federal Republic of Germany (Bundestag) before guarantees can be given to other states by the Federal Government. In its holding, the German Federal Constitutional Court ruled that the aid measures for Greece and the euro rescue package were consistent with the Principle of Parliamentary Budget and German Basic Law.

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