Вопросы реализации принципа верности федерации в Федеративной Республике Германия

Protection of constitutional identity in light of the jurisprudence of the Constitutional Court of the Republic of Poland – a comparative study

L’affaire Outright Monetary Transactions (OMT), qui a vu s’opposer le Tribunal constitutionnel fédéral allemand et la Cour de justice de l’Union européenne (CJUE) sur la question de la conformité au droit de l’Union européenne de l’action de la Banque centrale européenne (BCE) lors de la crise des dettes souveraines de 2010-2012, constitue sans aucun doute, à ce jour, l’illustration la plus éclatante de la controverse relative à l’existence (ou non) d’une mutation constitutionnelle tacite du mandat de la BCE. Dans son arrêt du 21 juin 2016, le Tribunal constitutionnel fédéral confirme la conformité du programme monétaire OMT au droit de l’Union et à la Loi fondamentale allemande, mais n’en maintient pas moins de « sérieuses objections » à l’encontre du raisonnement de la CJUE, témoignant ainsi de la persistance de certaines tensions entre, d’une part, les interventions de la BCE et, d’autre part, les dispositions du Traité sur le fonctionnement de l’Union européenne (TFUE) relatives à ses compétences.

Background: Civil servants are adults that cut across all ages, educational status, and social class. This study describes and compares dental service utilization among federal and state civil servants in Port Harcourt and identifies the determinants and barriers to the utilization of dental services among these groups. Materials and Methods: This study was a comparative cross-sectional study carried out among Federal and State civil servants in Port Harcourt, Rivers State, Nigeria. The study units were selected using multistage sampling technique. Data were collected using pretested self-administered questionnaires and analyzed using the Statistical Package for Social Sciences version 20.0. Results: A total of 638 participants comprising of 313 and 325 civil servants from the federal and state civil service respectively, completed and returned the questionnaires.Only 143 (22.4%) of the participants had visited the dentist in the past 1-year, this is made up of 80 (25.6%) federal and 63 (19.4%) state civil servants. Most of the federal workers 55 (68.8%) and state workers 45 (71.4%) had visited the dentist based on need. Participants with tertiary education were significantly more likely to utilize dental services (P = 0.009). The reasons for nonutilization of dental services reported among the respondents were no need for treatment 59%, cost of treatment 20%, being scared 13.5%, and fear of infection 10.3%. Conclusion: Dental visits were based on the need for treatment. Whereas education was a determinant of dental service utilization, perceived lack of treatment and cost of treatment constituted barriers to utilization of dental services.

The relevance of the topic is due to the fact that there is a need to transform the personnel policy and personnel technologies in the public service. At this, it is necessary to revise the elements of personnel policy for the public sector. To improve the efficiency of personnel technologies in the state civil service of the Chuvash Republic, we propose to use the experience of the civil service and personnel department of other regions. The purpose is a detailed analysis of modern state personnel policy in the public service. The scientific novelty of the work represents proposals for improving the personnel policy in the public service, taking into account other regional practices. The author studied the practice of compliance with the legislation on the civil service in various areas, compiled a table on the problems of personnel policy in the civil service and measures to solve them. At this, the database "Best personnel practices in the state civil and municipal service" (2015–2019) was reviewed. The experience of organizing complex work on personnel management in Leningrad region is interesting. To develop the personnel policy in the public service, it was proposed to introduce the sector of corporate culture and social and labor relations not only in the public service in the Chuvash Republic, but in other regions as well. Currently, the approach to personnel policy in the public service is too formal. There is a tendency to change the approach to personnel policy in the public service in terms of its flexibility and there is a need to improve it. This is evidenced by the various practices of implementing the personnel policy in the public service at the regional levels. Thus, the approach to personnel policy may be different, one of which is proposed in this article.

This article deals with constitutional identity review by the German Federal Constitutional Court (FCC). While identity review is often discussed merely as an instrument of judicial contestation by which the FCC challenges the European Court of Justice and its stance on the primacy of EU law, this article shows that both the aim and the effect of identity review go far beyond judicial conflict. In fact, identity review produces significant preventive and deterrent effects on (national) EU policies, which come into play well before any judicial conflict. By means of preventive identity review, the FCC has created a fog of identity, a dark field of potential unconstitutionality, which considerably limits the scope of policy choices in advance and even irrespective of whether or not these policies would ultimately be judged to be unconstitutional. As for the defensive dimension of identity review, the article addresses the complexity of the (too often simplified) conceptual relationship of identity review to other modes of review such as ultra vires review and the Solange case law. It shows that identity review has gradually become the conceptual heart of the FCC’s defensive triad. Identity review, constitutional identity, fog of identity, German Federal Constitutional Court, preventive and defensive identity review, eternity clause, principle of democracy, NGEU, European Arrest Warrant III, PSPP, Unified Patent Court, Right to be forgotten I and II, Banking Union, Egenberger

Introduction/Main Objectives: The COVID-19 pandemic forced the Ministry of Finance of the Republic of Indonesia to carry out a digital transformation by employing the concept of the Flexible Working Space (FWS) to ensure its civil servants can use the Work From Anywhere (WFA) system, including the Work From Home (WFH) system. These concepts are expected to help civil servants to optimize their performance. Background Problems: FWS has been practiced for two years, but detailed information on how the civil servants’ green work behavior has helped in maintaining their performance has not been investigated. Novelty: The researchers also studied how the digital transformation has changed the working practices among civil servants at the Ministry of Finance, and do they employ more green practices now? Discussion about the civil servants' green work behavior during this digital transformation is still limited. Research Methods: This study applied a qualitative technique to analyze the data obtained from an online qualitative survey, focus group discussions (FGD), observations and docu­mentation. These research data were validated through a triangulation approach before being analyzed using the theory of planned behavior (TPB). Finding/ Results: The positive aspects of the Ministry of Finance’s digital transformation, which occurred during the pandemic, are civil servants can work faster, more efficiently, more flexibly, and they are more focused, but they have less contact with other people. While the identified disadvantage is that the internet network is occasionally unstable, thus disrupting the learning and discussion processes. The civil servants at the Ministry of Finance had used several green practices before the pandemic began, such as saving water, saving electricity, and to some extent they had gone plasticless and paperless. After the pandemic happened and FWS was implemented, these practices became more prominent, producing better results compared to the results before the pandemic. The pandemic also brought other advantages, including carbon emissions reductions and time savings. Conclusion: The FWS concept in the Ministry of Finance changed the work behavior related to the digital transformation, and the green work behavior of the civil servants. This is based on the TPB which includes attitudes, subjective norms, and behavioral control. Digital transformation using the FWS concept has had positive and negative impacts on the civil servants' green work behavior, and in maintaining their performance.

Several changes to the Common Commercial Policy (CCP) effectuated by the Treaty of Lisbon extend the competences of the Union and are thus in line with this development. According to Art. 207(1) S. 1 TFEU, the CCP is to be “based on uniform principles,” including but not limited to the sector of “foreign direct investment.” The regulation of this sector is novel to the TFEU, as the corresponding stipulation of the TEC (Art. 133 [1]) made no mention of it at all. The Treaty has thus extended the scope of application of the CCP by including foreign direct investment. Admittedly, the transfer of competences between the Union and Member States are not new to the process of European Integration - if anything, the issue of correctly allocating responsibilities to Union or State level has always dominated this process. Nonetheless, the development of foreign direct investment is of utmost importance at the moment, due to the following reasons: 1. On the one hand, following the Treaty of Lisbon's implementation, several hundred Bilateral Investment Treaties remain in force between Member States and Third Party States. This can be seen as a direct consequence of the Union's former lack of competences in this policy area, which only allowed for the regulation of a limited field, including, for example, questions of market access. Given the new competency of the Union, one is faced with the fate of these treaties. This paper seeks to focus on this issue. As a first step towards a viable solution, one has to identify the extent of the Union's new competence. This is an endeavour which is complicated by the ambiguous wording of Art. 207(1) 1TFEU with regard to “foreign direct investment.” As a matter of fact, a heated debate has developed over the wording in question. Does Art. 207(1) 1 TFEU apply to all kinds of foreign direct investment or only to such investment that leads to the acquisition of control of undertakings? This question must not be taken seriously, for it determines whether the Union can act independently in the area of foreign direct investment or is forced to act in conjunction with the Member States, by means of so-called mixed agreements. The future fate of national Bilateral In-vestment Treaties also hinges on the interpretation of Art. 207 TFEU, as modifications based on Art. 351(2) TFEU (ex-Art. 307(2) TEC) will only be possible if the Union's competences regarding the CCP cover this area. 2. A much more general issue of equal importance is the overall relationship between Union law and those obligations of Member States that are derived from public international law. Namely, are the Member States required to amend or even withdraw from treaties that interfere with the newly extended competences of the Union? How far does the proverbial “new legal order of international law” have to commit to the principle of “commitment to international law” (Volker-rechtsfreundlichkeit) without neglecting its own statutes? 3. This leads to the question of which principles of Union law could be used to resolve the arising issues. Here, Art. 351(2) TFEU and its previous incarnations have constituted the main focus of discussion in recent years. It must not be over-looked though that this stipulation and its application to specific cases are heavily influenced by the fundamental aims and principles of the Union Treaty, especially comprised of the principle of effet utile, the principle of union loyalty, the principle of uniform application, as well as the general aims and values of the Union (Art. 2 TEU). 4. An interpretation of Art. 351 TFEU cannot be undertaken without at least a look at three (nearly identical) recent judgments of the Court of the European Un-ion on the topic of Bilateral Investment Treaties, which focused on Art. 307 TEC (the pre-Lisbon Art. 351 TFEU) and solved many persistent issues regarding the stipulation. 5. Last but not least, the German Federal Constitutional Court's (FCC) famous Lisbon judgment of June 2009 must not go unmentioned, for it thoroughly discussed - among many other things - the extension of CCP. If the judgments of the CEU represent the Union's side of the coin, the judgment of the FCC represents the Member States'. Both of the sides’ exact influence on the future application of the newly extended Union competences and the fate of the Member States' BITs is closely related to the issues covered here.

The German Federal Constitutional Court (FCC) has found that there are no constitutional objections against the Lisbon Treaty. At the same time, the FCC imposed limitations to future integration by identifying a number of state functions that are non-amenable to integration and which have to be retained at the national level. This article examines the scope and content of these core competencies. It also discusses to what extent the criteria used by the FCC for the determination of core competencies might reflect a European-wide standard for the determination of limits to the transfer of competencies to the European Union. The article concludes that the judgment clarifies the limitations of the transfer of competencies, even though the criteria used by the FCC cannot claim to produce the set of inalienable sovereign powers that were recognized as such throughout the Union.

The article is devoted to the classification of the civil service and theoretical approaches to the role of the civil service in this system, as well as an analysis of the practice of the Republic of Uzbekistan. Despite the fact that since 2019, the concept of “state civil service” has been used in the legislation and practice of our country, the presence of problems regarding its boundaries and differentiation in other types of state service determines the relevance of the topic. The article analyzes the role of the state civil service in the civil service system, the differences and specific features of the state civil service from special service sectors, and substantiates considerations about which service sectors are included or not included in the state civil service system. The views of domestic and foreign scientists on the classification of public service and the theories proposed by them were studied in a chronological style based on the principles of systematization, determinism, and scientific methods such as statistical, comparative-analytical, generalization, comprehensive analysis of scientific sources, logic, formal-legal, induction, and deduction. Based on the theories of domestic and foreign scientists, analysis and correlation of the legislation of our republic, as well as the experience of developed foreign countries, a number of practical proposals and recommendations were developed. In particular, authors definitions of the concepts of “state service” and “state civil service” were given. The main features of the difference between the state civil service and other types of public service have been systematized. Also, in order to eliminate the legal gaps that have arisen in the process of classifying the civil service, it was noted that the Law of the Republic of Uzbekistan “On the Civil Service System” will be adopted and the types of civil service will be clearly defined in it, and conceptual ideas regarding the main content of the draft law were proposed.

Introduction. The article deals with the implementation of effective programs for additional professional education of state civil servants, carried out in accordance with the list of priority areas for additional professional education of federal state civil servants, and also within the framework of the state order. The peculiarity of the implementation of such programs is the need to ensure compliance with the general list of training program themes approved by a specially authorized state body and to provide certain educational results through the application of the competence approach.Materials and methods. Practical materials are used for the implementation of additional professional education programs implemented at the MGIMO in 2012-2015 on the order of the Ministry of Labor and Social Protection of the Russian Federation. The theoretical basis for the study is general scientific and special methods, such as the dialectical and formal-logical method, as well as comparative analysis and synthesis.Results of the study. Based on the analysis of applicable normative legal acts, as well as the experience of implementing specific educational programs, it is shown that one of the main approaches to their implementation is a competence approach that allows integrating the requirements to the level of qualification (competence) of a civil servant into the state training programs, implemented by the leading universities of the country. The use of the competence approach also allows coordinating the educational results of various types of training programs with the requirements of their initiators and employers.Discussion and conclusion. As a result of the analysis, it is concluded that there is a need for a systematic approach to the implementation of various types of supplementary professional education programs for federal state civil servants based on the creation of unified program descriptors as well as on lists of the competencies of civil servants, which makes it possible to coordinate the content of programs and requirements for their educational results.

Purpose. This study represents methods to determine constitutionally guaranteed minimum payment (alimentation) to judges and civil servants in Germany. Methods. Based on the constitutional enshrinement of civil service in Art. 33 para. 5 of Constitution it is demonstrated that Constitution gives rise to a requirement for “appropriate remuneration” of judges and civil servants, and that this requirement is enforceable (before administrative courts). It is shown how the vague legal term of “appropriateness” is construed in the case law, in particular of the Federal Constitutional Court, in order to determine a specific amount of appropriate remuneration in every case. Results. Recent case law of the Federal Constitutional Court provides a method for calculation of the appropriate remuneration of judges and civil servants, which stems exactly from the Constitution. In this context, a tension between case law and statutory law, that ultimately determines a remuneration level, is also discussed. Conclusions. This study comes to the conclusion that the Federal Constitutional Court in 2015, in its fundamental decision on the alimentation principle in interests of civil servants and judges, has convincingly established how (constitutionally guaranteed) appropriate remuneration shall be determined. The Federal Constitutional Court enforced the claim of civil servants and judges in individual cases. The lawmaker and the administrative courts are bound by the calculation method developed by the Federal Constitutional Court and apply it in practice.

Lands with Wilderness Characteristics, Resource Management Plan Contraints and Land Exchanges: Cross-Jurisdictional Management and Impacts on Unconventional Fuel Development in Utah's Uinta Basin

The relationship between the German Federal Constitutional Court and the CJEU has been constantly reformulated and reshaped since the inception of the European Union. As Karlsruhe is not willing to accept the unconditional supremacy of EU Law, it has developed constitutional thresholds concerning the application of EU Law in the national legal order. Starting with its Solange I and Solange II case law, the Constitutional Court held that EU Law and the jurisprudence of the CJEU have to provide for a certain level of fundamental rights protection, which is required as a minimum by the German Constitution. It is the task of the CJEU to guarantee the protection of fundamental rights throughout the EU in every single case, while the Federal Constitutional Court would, in collaboration with the CJEU, restrict itself to only ensuring the general compliance with minimum requirements in fundamental rights protection. Another constraint for the applicability of EU Law in the national legal order is found in the so called ultra vires review. The Federal Constitutional Court asserts the right to declare EU legislation not applicable, if it exceeds the competence of the EU in a manifest way (according to the Honeywell criteria). In its Lisbon decision, the German Constitutional Court formulated its third tool of constitutional judicial control over EU law: the identity control. While at first it was assumed that this was only a theoretical assertion of national limits to EU law, the Court finally activated this control method for the first time in its Identity Control I decision in December 2015. The Court asserted its function to review sovereign acts determined by Union law if this was indispensable to protect the constitutional identity guaranteed by Art. 79 para. 3 of the Basic Law (GG). Against this background, the article analyses the procedural and substantive requirements of this new constitutional control tool and contrasts it with the Solange II and ultra vires review. It suggests that the new identity control is not a re-shaped form of the former fundamental rights control and cannot be seen as a Solange III. This is because the Constitutional Court, by way of identity review, guarantees, unconditionally and in any individual case – not only generally – the protection of fundamental rights that is indispensable according to Art. 23 para. 1 sentence 3 in conjunction with Art. 79 para. 3 and Art. 1 para. 1 GG. However, the hypothesis is put forward that ultra vires control is only a special form of identity review. The former is also enshrined in Art. 23 para. 1 sentence 3 in conjunction with Art. 79 para. 3 GG and is justified by the mandatory requirements concerning democratic legitimacy and the rule of law posed in Art. 79 para. 3 GG. The criteria formulated in the Honeywell decision by the Constitutional Court can therefore also be derived from the substantive content of constitutional identity. However, the ultra vires control should nevertheless keep its role as a separate review method. It formulates the specific requirements set by the identity control in the area of transgression of competences and is therefore more easily applicable for constitutional judicial practice. The last part of the paper examines the latest decision by the Federal Constitutional Court dealing with the question of restricting the precedence of Union law due to constitutional thresholds, namely the OMT-Case. Unexpectedly, the court addresses the dogmatic question of the relationship between ultra vires control and identity review and the decision confirms the findings and conclusions in this article in essential parts. Both the OMT and the Identity Control I decisions are milestones in shaping the relationship between the European and the national legal order, which have, however, in the present cases not provoked a clash between the CJEU and the Federal Constitutional Court. Yet, it is still for the future constitutional court prac

The authors of this paper are four practitioners each of whom has many years of experience working in the Federal government and also has pursued doctoral studies in public or business administration. Three ideas developed in this paper are that: (1) the Federal civil service has been changed from being a model workplace to a much less desirable one; (2) although downsizing has been touted as an efficiency and economy measure, lower level employees experienced the most cuts and (3) the current practice of replacing Federal employees with private corporations costs much more. Over the past two decades private sector workplaces in the United States, and now the Federal government workplace, have experienced so much change that previous theories, concepts, models, and expectations no longer hold. Just as private industry workplaces have been changed by downsizing, reorganizations, mergers, elimination of middle management, and outsourcing, so, too, has the Federal government workplace been fundament...

In recent years the state legislator has been observed to have had a tendency (especially in regard to first appointments), to no longer appoint professorial posts for life but to initially fix a probationary period. Not only may the quality of the candidate be examined by these means but they also make possible a more flexible budgetary concept. Hereby arises the question as to in how far such regulations are compatible with the General Act on Equal Treatment (AGG = Allgemeines Gleichbehandlungsgesetz) and the EU – Council Directive 2000/78/EC.Because significantly more young candidates are affected by the limited period of their initial appointments, these regulations are a case of indirect unequal treatment on grounds of age. This is justified if there is a legitimate aim and if it is appropriate and necessary. Such a justification is not given with standards which are especially disadvantageous towards professors in their first appointments, because these have already proved their quality in the qualification phase and therefore there is a lack of a sufficient amount of diversified criteria. According to the view of the author however, indirect disadvantages are legitimate if these have a budgetary motive and as long as they are not aimed at the person as a candidate as such but at the type of position they hold. As long as the European Court of Justice has not established an infringement of European law in an at least similar case the case must be permitted to appear before the Federal Constitutional Court (Bundesverfassungsgericht) on the grounds of legal certainty.If limitations are allowed which are illegal according to both European and Constitutional law, then only the salaried professors can demand permanent employment. This is a different situation for temporary civil servants. The civil servant status will not become ipso jure a permanent one. There is also no possibility of laying down national law in accordance with the guide lines. Alone the possibility of a claim for unlimited employment under communal law seems a possibility but in the outcome must be rejected.