Äußerung von Beamten im Konflikt mit Dienstpflichten

2018 ◽  
Vol 51 (2) ◽  
pp. 265-300
Author(s):  
Klaus Herrmann
Keyword(s):  
Civil Servants ◽  
Constitutional Court ◽  
Present Contribution ◽  
General Duty ◽  
Basic Law ◽  
The Status ◽  
German Constitution ◽  
Federal Constitutional ◽  
Administrative Courts ◽  
Historical Developments

Summary Over the past decades, the adjudication handed down by the German administrative courts has consistently derived from the principles of the professional civil service (Grundsätze des Berufsbeamtentums) enshrined in Article 33 paragraph 5 of the Grundgesetz (GG, Basic Law) and in the blanket clauses of the Beamtenstatusgesetz (BeamtStG, Act on the Status of Civil Servants) as well as the Civil Servants Acts applicable at the Federal and the Land levels the duties of civil servants, judges, and soldiers to adhere to the German Constitution and to be loyal to it, to maintain their impartiality, and to protect the respect in which their employer is held, as well as the trust that their employer and the general public place in them, in any statements they may make as part of their service, but also outside of an official context. The present contribution sets out the historical developments and milestone decisions in this regard, such as the judgment handed down by the Bundesverfassungsgericht (Federal Constitutional Court) of May 22nd, 1975, which refused to grant employment as civil servants to applicants seeking such employment who were involved with the Deutsche Kommunistische Partei (DKP, German Communist Party). Furthermore, the contribution addresses the various consequences, based on their severity, which violations against the duty to adhere to the German Constitution, to remain neutral, and to exercise restraint will have, along with the consequences of violations of the duty to observe secrecy in all matters pertaining to the service. Based on the circumstances of the cases adjudicated by the courts, the requirements made on civil servants’ conduct and the „red lines“ constituting a dereliction of official duties when crossed are discussed. Where the punishment under disciplinary law of violations of said duties is concerned, the administrative courts premise their decisions on the assumption that civil servants, judges, and soldiers are aware of what is expected of them. However, the articles’ main focus is on how the duty of neutrality was derived, in terms of jurisprudence, in the court rulings most recently handed down on the „Lights out!“ call by the mayor of a city in North Rhine-Westphalia. The municipal leader had instructed all city-owned buildings to turn their lights off, on the evening of an assembly that had been previously registered with the city administration, in the interests of damaging the attractiveness of the demonstration and its overall impact. While the administrative courts have relied, in dealing with that particular call to action and with other statements made in the battle of public opinion, on the general duty of the state to remain objective and to adhere to the principle of neutrality where party politics are concerned, the present contribution highlights the fact that the duty of neutrality as stipulated by the laws governing civil servants must not be disregarded when this group of people voices religious or political sentiments, nor must the official duties subject to sanctions under disciplinary law be ignored.

International Treaties and The German Constitution

2019 ◽  
pp. 171-190
Author(s):  
Stefan Kadelbach
Keyword(s):  
German Law ◽  
Foreign Affairs ◽  
European Convention ◽  
Constitutional Court ◽  
International Treaties ◽  
Basic Law ◽  
The Status ◽  
German Constitution ◽  
Federal Constitutional

This chapter deals with the making, status, and interpretation of international treaties under the German Constitution. It describes the interrelationship of the different institutions in treaty-making and shows how a comparatively old provision of the German Basic Law has been adapted slowly to new circumstances over the past decades. Thus, even though foreign affairs has remained a domain of the executive, several developments have contributed to an enhanced role of Parliament over time. These developments are partly due to the role of special sectors of law such as EU law and the law governing the use of force and partly due to changes in constitutional practice. As for the status of treaties in German law, the Federal Constitutional Court has developed a stance according to which treaties generally share the rank of the legal act that implements them into domestic law. A notable exception is the European Convention of Human Rights, which has assumed a quasi-constitutional rank by means of consistent interpretation. Some reference is made to other continental systems to assess how far different constitutions bring about certain features; various systems appear similar in many respects at first sight, whereas features in which they differ may be a source of inspiration for future constitutional practice.

scholarly journals The Ban on Strike Action by Career Civil Servants under the German Basic Law: How the Federal Constitutional Court Constitutionally Immunized the German Legal Order Against the European Convention on Human Rights

2020 ◽  
Vol 21 (2) ◽  
pp. 223-239
Author(s):  
Matthias Jacobs ◽  
Mehrdad Payandeh
Keyword(s):  
Human Rights ◽  
Legal Order ◽  
Civil Servants ◽  
European Convention ◽  
Constitutional Court ◽  
Fundamental Freedom ◽  
Basic Law ◽  
European Court ◽  
German Constitution ◽  
Federal Constitutional

AbstractThe Federal Constitutional Court has decided that the prohibition to strike for career civil servants, as it has traditionally been part of the German legal order, is in compliance with the German Constitution. The Court thereby put a (provisional) end to a long-lasting debate on how to solve the tension between the fundamental freedom to form associations under Article 9(3) of the Basic Law, which arguably encompasses a right to strike, and Article 33(5) of the Basic Law, which protects the traditional principles of the career civil servants, which arguably encompasses the prohibition to strike. Through recognizing that the ban on strike action by career civil servants is not only allowed but required under the German Constitution, the Constitutional Court navigates the German legal order on a potential collision course with the European Convention on Human Rights and the European Court of Human Rights. In this context, the Constitutional Court on the one hand reaffirms the openness of the German constitutional order towards international law in general and human rights and the European Convention on Human Rights in particular. On the other hand, the Court somehow marginalizes the role of the European Court of Human Rights and threatens to not follow the Court should it hold that the European Convention on Human Rights demands a right to strike also for career civil servants.

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.

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.

German Constitutional Law

2019 ◽  
Author(s):  
Bumke Christian ◽  
Voßkuhle Andreas
Keyword(s):  
Constitutional Law ◽  
Case Law ◽  
Equal Treatment ◽  
Constitutional Court ◽  
Basic Law ◽  
German Constitution ◽  
Federal Constitutional ◽  
Book Covers ◽  
The Right ◽  
German Constitutional Law

This book provides a comprehensive summary of German constitutional law, in particular the case law of the German Federal Constitutional Court. It provides first-hand insight into the complex principles of the Basic Law, or Grundgesetz (GG), and an authoritative introduction to the history of the German constitution, the Basic Law, and the methodology of the Federal Constitutional Court. As well as an analysis of the general principles of German constitutional law, the book covers the salient articles of the German constitution and offers relevant extracts of the Court's most important decisions on the provisions of the Basic Law. It provides notes and discussions of landmark cases to illustrate their legal and historical context and give the reader a clear understanding of the principles governing German constitutional law. The book covers the fundamental rights catalogue of the Basic Law and offers a comprehensive account of its intellectual moorings. It includes landmark jurisprudence on the equal treatment of same-sex couples, life imprisonment, the legal structure of property, the right to assembly, and the right to informational self-presentation. The book also covers the provisions and respective case law governing the state structure of Germany, for instance the recent decisions on the prohibition of the far-right German nationalist party, and the Court's jurisprudence on European integration, including the most recent decisions on the OMT program of the European Central Bank.

On the Status of the EU’s Democratic Legitimacy after Lisbon

2017 ◽  
Author(s):  
Dieter Grimm
Keyword(s):  
German Law ◽  
Public Authority ◽  
Democratic Legitimacy ◽  
Constitutional Court ◽  
Basic Law ◽  
European Democracy ◽  
European Public ◽  
The Status ◽  
Federal Constitutional ◽  
The Eu

This chapter examines the status of the EU’s democratic legitimacy after Lisbon: the treaty, which forms the legal foundation of the EU, and the 2009 judgment of the German Federal Constitutional Court, which declared that the German law ratifying the treaty was compatible with the Basic Law, Germany’s constitution. One of the Lisbon Treaty’s declared goals is to strengthen European democracy. This chapter first considers the levels of creating and organizing European public authority and the exercise of European public authority before discussing the European Parliament’s limited role in terms of approving decisions. It then asks whether the notion that EU is democratically deficient is accurate, suggesting that the necessary degree of democratization in the EU depends on the scope of its powers and on the extent of its autonomy from the Member States. Finally, it explores the question of de-legitimation through Europe’s democratic deficit.

Lisbon in Karlsruhe: Maastricht's Epigones At Sea

2009 ◽  
Vol 10 (8) ◽  
pp. 1201-1218 ◽  
Author(s):  
Christoph Schönberger
Keyword(s):  
Democratic Legitimacy ◽  
Constitutional Court ◽  
The European Union ◽  
Federal States ◽  
Basic Law ◽  
German Constitution ◽  
Federal Constitutional ◽  
History Of ◽  
The Moment ◽  
German Federal Constitutional Court

On 30 June 2009, the Second Senate of the German Federal Constitutional Court handed down its long-awaited decision on the compatibility of the Treaty of Lisbon with the German Constitution, the Basic Law. It was no surprise that the Court upheld the constitutionality of the treaty. Even the plaintiffs could not have imagined in their wildest dreams that the Court would actually say “no”. What is more than disturbing, however, is the tortuous way in which the Court's vast and verbose opinion purports to be justifying the approval of the treaty. There is probably no other judgment in the history of the Karlsruhe Court in which the argument is so much at odds with the actual result. To the point of perplexity and bewilderment, the reader of the opinion is hardly able to find any reasons supporting the outcome of the case. At the moment when the Court approves the most far-reaching revision of the European founding treaties since Maastricht, it does not present any serious argument supporting the conclusion it has reached, except sketchy evocations of a principle of “openness towards European law” it finds enshrined in the Basic Law and brief solemn reminders of a murderous past. Instead, the main thrust of the argument is a ringing indictment of European integration based on a certain idea of egalitarian and majoritarian parliamentary democracy that the Court derives from the Basic Law. Unfortunately, this standard of democratic legitimacy can only describe certain centralized states; it is unable to account for federal States, including Germany, and cannot be made to fit the federal system of the European Union.

The Federal Constitutional Court in Germany and the “Southwest Case”

1952 ◽  
Vol 46 (3) ◽  
pp. 723-731 ◽  
Author(s):  
Gerhard Leibholz
Keyword(s):  
Supreme Court ◽  
Constitutional Court ◽  
Federal Law ◽  
Basic Law ◽  
Federal Constitution ◽  
The Supreme Court ◽  
German Constitution ◽  
Federal Constitutional ◽  
Constitutional Tribunal ◽  
The Republic

The new German Constitution, the Basic Law for the German Federal Republic of May 23, 1949, provides in Article 92 that the highest judicial power shall be vested in a Federal Constitutional Court. Although the Bonn Basic Law thus created a new institution, it is an institution with a precedent in the former Weımar Constitution of 1919. In accordance with the latter, the Constitutional Tribunal (Staatsgerichtshof) had jurisdiction over constitutional controversies within any Land which had no tribunal of its own for the adjustment of such controversies, as well as over controversies, other than civil law matters, among the various Laender or between the Reich and one of the Laender. And the Supreme Court (Reichsgericht), as the highest authority, could establish finally whether disputed Land statutes were compatible with the federal Constitution.The Basic Law, however, grants the new Federal Constitutional Court considerably wider jurisdiction than that accorded either to the Constitutional Tribunal or to the Supreme Court under the Weimar Constitution. The Federal Constitutional Court must, above all, arbitrate both disputes which may arise among the constitutional organs of the Republic, the so-called “federal constitutional” cases, and the so-called “conflicting rules” (Normenkollisionen) cases—the latter designating disputes involving the compatibility of the written federal law or Land law with the Basic Law, as well as the compatibility of the Land law with the federal law.

The Decision of the Bundesverfassungsgericht of March 3, 2004 Concerning Acoustic Surveillance of Housing Space

2004 ◽  
Vol 5 (11) ◽  
pp. 1337-1348 ◽  
Author(s):  
Jutta Stender-Vorwachs
Keyword(s):  
Legal Status ◽  
Constitutional Court ◽  
Constitutional Change ◽  
Basic Law ◽  
German Constitution ◽  
Federal Constitutional ◽  
Acoustic Surveillance ◽  
Political Background ◽  
The Right ◽  
German Federal Constitutional Court

On March 3, 2004, the Bundesverfassungsgericht (German Federal Constitutional Court) decided that the regulations in the Strafprozessordnung (StPO – Code of Criminal Procedure) concerning acoustic surveillance of housing space (the so called “Großer Lauschangriff“) partly violate the Grundgesetz (GG – German Constitution or Basic Law). Article 13.3 of the Basic Law itself, which in 1998 integrated the right to acoustic surveillance of housing for reason of prosecution into the Basic Law, was nonetheless found to be constitutional. In the following comment, the legal status, the political background of the constitutional change in 1998 and the essential content of the Court's decision shall be examined in detail.

scholarly journals The Basic Law at 60 – Equality and Difference: A Proposal for the Guest List to the Birthday Party

2010 ◽  
Vol 11 (1) ◽  
pp. 67-87 ◽  
Author(s):  
Susanne Baer
Keyword(s):  
60Th Birthday ◽  
Constitutional Court ◽  
Constitutional History ◽  
Birthday Party ◽  
Basic Law ◽  
50Th Birthday ◽  
German Constitution ◽  
Federal Constitutional ◽  
Willy Brandt

This birthday gives rise to many considerations. Some reflect upon achievements – the German constitution, named “Basic Law”, has proven to work although many did not believe in it when it was framed. Others emphasize desiderata. Sabine Berghahn commented at the 50th birthday that it has developed “far too slowly and [some] has even gone completely wrong.” Jutta Limbach, former President of the Federal Constitutional Court, observed that constitutional history was “anything but regal, but very difficult and full of obstacles.” Former Chancellor Willy Brandt famously called the constitution “a snail on thin ice.” So what is missing when we analyze the Basic Law, and what should be finally added - as spirit, in interpretation, in clarifying words? I will try to point to achievements and show what might still be lacking. This is what studies in constitutionalism always do. To do justice to the occasion, I will also think about who we should invite to celebrate this birthday. More precisely, if we are to celebrate the 60th birthday of Article 3 of the Basic Law, which is the equality guarantee, and which has been amended since its birthday, I will encourage you to think about who should come to this party.

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