Federal Constitutional Court Research Articles

The judicial response to rent controls in Europe: Protecting property rights against state’s intervention?

AbstractThis essay examines, from a legal and economic perspective, the judicial response to rent controls in the EU focusing on three courts that operate at the fundamental rights and constitutional level: the European Court of Human Rights (ECtHR), the German Federal Constitutional Court (BVerfGE), and the Italian Constitutional Court. Based on an analysis of a sample of judicial decisions rendered over time, a convergent trend emerges: these Courts have recognized and effectively protected the landlord’s property rights against rent controls that were disproportionate and could not ensure a reasonable return on investment. This trend is prominent in the jurisprudence of the ECtHR: the Strasbourg Court has contributed to reshaping the distribution of power between tenants and landlords, encouraging the transition of Eastern and Southern European Countries to the common European housing market. In both upholding and striking down rent control measures, judges generally take market value and the comparative reference price as the preferred benchmarks for fair rent price. A consumption-based and financial characterization of housing, coupled with the fundamental right to derive economic benefits as core elements of the right to property, underpin the legal reasoning of the three Courts.

Dealing with assisted suicide-knowledge, attitudes and experiences of members of the German Association for Palliative Medicine

In February 2020, the Federal Constitutional Court declared §217 of the German Criminal Code void. Ever since, assisted suicide services have been legal in Germany. This study aims to describe the knowledge, attitudes and experiences of members of the German Association for Palliative Medicine (DGP) regarding assisted suicide. Online survey with members of the DGP from July to September 2023 using Qualtrics®. The study group developed the questionnaire based on current literature; it was adapted following an initial application among young physicians and an interprofessional panel of experts with consensus voting. Data was analysed using descriptive and explorative statistics. 991 DGP-members (18%) participated, of which physicians made up 57.0% (n = 545/957) and nurses 23.4% (n = 224/957). Of the participants, 197/851 (23.1%) incorrectly stated that assisted suicide is prohibited by professional code, 430/914 (47.1%) rejected arestriction of palliative care teams to suicide prevention measures, and 766/930 (82.4%) rejected personal involvement in assisted suicide regardless of a patient's health status. For patients in palliative situations, 473/926 (51.1%) could imagine participating in assisted suicide, and 71% wantednew legislation regulating assisted suicide. There are gaps in the knowledge of the participating members of the DGP regarding the legal and professional status of assisted suicide. Further educational work is needed in this regard. The participants can more easily imagine assisted suicide for people in palliative disease trajectories. As in surveys of members of other medical societies, the attitudes of more experienced staff are reflected. Compared to younger healthcare professionals, they have amore restrictive attitude towards the concept of assisted suicide.

The Ban of Political Parties – An Analysis of the Criteria Developed by the German Federal Constitutional Court and the European Court of Human Rights and their Interconnection

It is possible to ban political parties in many modern democracies. However ideologically extreme they may be, their ban constitutes a violent interference in the political sphere and should therefore only be applied in particularly justified cases. The article analyses the relevant case law of the German Federal Constitutional Court and the European Court of Human Rights. It comes to the conclusion that the jurisprudence of the two courts is closely linked and builds on each other. Moreover, by today’s standards, it is not possible to ban a political party that has an unconstitutional programme, even if it tries to implement it aggressively and violently, as long as it is not in a position to actually implement it, i.e. it does not have the necessary political power.

Scenario Analysis in Karlsruhe: Exploring New Argumentative Steps of the Federal Constitutional Court

Abstract This Article examines scenario analysis, a disruptive argumentation technique used by the German Federal Constitutional Court (GFCC) in recent high-profile cases, such as the so-called climate protection case (Klimaschutz) and other decisions on the fundamental right to intergenerational justice (Grundrecht auf Generationengerechitgkeit). After explaining the basic argumentative steps involved in scenario analysis, for example designing scenarios, identifying stakeholders, relating scenarios to strategies, determining the main driving forces, estimating scenario probabilities, the Article sketches a normative model for rational scenario design. The normative model is used as a lens for evaluating the arguments developed by the GFCC in the climate protection case. Such evaluation also builds on game-theoretic insights and points out some weaknesses in the Court’s argument. Finally, the Article observes that, as scenario analysis is used to assess the future impact of legislative decisions, it has the effect of imposing greater constraints on legislatures.

Can the court bridge the gap? Public perception of economic vs. generational inequalities in climate change mitigation policies

Abstract Climate change and most climate policies affect and reinforce different forms of inequalities. For instance, climate change policies that aim to change consumer behavior by increasing the price tag of goods and services that cause carbon emissions often carry a disproportionately higher burden (in terms of financial cost) to those with lower incomes. They can thereby either exacerbate existing income inequalities or contribute to generating new ones. Meanwhile, refraining from engaging with climate mitigation policies will incur other detrimental societal costs: the financial burden and the harmful consequences of climate change that future generations will have to bear if nothing is done. In this paper, we examine how the immediate economic inequality citizens face from climate mitigation policies (regarding carbon taxation) weighs against the long-term generational inequalities future generations will experience. We study how both types of inequality relate to policy support for climate change mitigation policies in the context of Germany. The German case is of special interest because a recent court ruling of the Federal Constitutional Court allows us to test whether making people aware of a new legal reality can bridge the gap between the economic and generational inequality. Our findings using a between-subjects survey experiment fielded among German citizens (N = 6,319) in 2022 show that immediate economic concerns trump future generational concerns, generally making citizens less supportive of the policy. This negative support is however somewhat mitigated by the supportive signal from the court ruling.

Resocialisation through prisoner remuneration: The unconstitutionally low remuneration of working prisoners in Germany

In Germany, prisoners are obliged to work during their imprisonment in most federal states. However, prisoners currently receive very little remuneration for this work. For two decades, this remuneration has stagnated at a low level or even decreased in some federal states. In a landmark ruling on 20 June 2023, Germany's highest court, the Bundesverfassungsgericht (BVerfG, Germany's Federal Constitutional Court), recognised that the remuneration in two federal states is unconstitutionally low. As a result, for the first time in 25 years, the remuneration of prisoners will now change and – hopefully – increase significantly.

Studying Religion Critically in Universities and Schools

In this article, Wanda Alberts tries to identify the place of the critical Study of Religion in universities and schools, comparing examples for different recent developments in Germany and Britain. One decisive issue in this respect is the question if the critical Study of Religion as a discipline or as (critical) education about Religion is visible at all and if the differences to other, often much better known (often religious) approaches are acknowledged or played down. The discussed examples (a judgement of the German Federal Constitutional Court on the religious limitation of the academic freedom of professors of theology, the BA report on Theology and Religious Studies Provision in UK Higher Education and the report of the Commission on Religious Education) high light some subtleties of a complex field where important facts and distinctions remain concealed to non-specialists. With respect to RE, the article argues that these dynamics fit the concept of “smalli-indoctrination”. Referring to Katharina Frank’s empirical research on the communication of knowledge about religion (Religionskunde) it spells out the important distinctions that need to be made explicit in order to make the characteristics of a critical (secular) approach better known. “If you don’t know the difference between theology and religious studies, then you are a theologian.” (Brian Bocking)

Physician-assisted suicide - two perspectives

In February 2020, the Federal Constitutional Court of Germany issued a landmark judgement on assisted suicide. It rejected as unconstitutional a law from 2015 that prohibited "assisted suicide services". It emphasized the freedom of people to shape their own lives and deaths and to seek help in doing so. In contrast, other practical problems arise when a doctor is confronted with a request for assisted suicide at the bedside in the current situation. The different perspectives and their tensions are contrasted.

Acts of Providence: The religious latency surrounding and shaping Marbury v. Madison and the Status-Denkschrift

Franklin D. Roosevelt recommended that “like the Bible, [the Constitution] ought to be read again and again.” Gustav Heinemann portrayed the Grundgesetz as a “great offering,” whose words must become flesh. Nevertheless, does this have any bearing on constitutional adjudication? Although presidents didn’t – and more and more don’t – shy about handling their respective constitutions as bibles, have justices and constitutional scholars proceeded otherwise? Common wisdom may answer yes, they did. The aim of my study is to show that this not quite the case. I pursue it in reference to two, leading liberal democratic constitutional courts, the US Supreme Court and the German Federal Constitutional Court. This happens in three parts: (1) I will engage with court architecture, understood as a testimony to each institution’s articulation for self-justification and self-empowerment; (2) the semantic consecration of constitutional adjudication especially vis-à-vis politics, as it took place in the struggles over what was implied by the innovations pushed forward in the contexts of Marbury v. Madison, on the one hand, and of the German Constitutional Court’s Status-Denkschrift, on the other; (3) and legal-methodological debates on the relationship between the Christian Bible and constitutional provisions that run in parallel and connection to these two landmark events. My findings point out that, in face of how disruptive the differentiation between law and politics was and is, constitutional actors in 19th century United States and 20th century Germany frequently, if not invariably, relied upon religious resources to embed their positions.

Bundesbank-Verluste: Bilanzierungspraxis und etwaige Nachschusspflicht des Bundes

Abstract The Bundesbank’s balance sheet and those of other central banks in the eurozone are currently showing high “operating“ losses due to the discrepancy between the low interest bearing securities holdings from bond purchases and the now higher interest bearing commercial bank deposits. However, the current accounting practice does not reflect the associated losses in value anywhere near the market level – even though, according to the PSPP ruling of the German Federal Constitutional Court, the sale of securities before final maturity should be the rule. Even under the current valuation practice, an equity gap cannot be ruled out in the future, which is generally seen as unproblematic for central banks. However, there are risks in the context of recapitalisation by the state. Within the eurozone, national and European requirements could make such capital injections necessary.

The right to climate protection and the essentially comparable protection of fundamental rights: Applying Solange in European climate change litigation?

AbstractIn an action for annulment against the European Union (EU) Emissions Trading Directive, both the EU General Court and the Court of Justice of the EU (CJEU) found the claim to be inadmissible because the applicants did not satisfy the infamous Plaumann criteria. Conversely, at the national level, the German Federal Constitutional Court (GFCC) accepted to decide on a claim by individuals arguing that the German Climate Protection Act violated their fundamental rights. In its decision, the GFCC makes far‐reaching statements on the protection of fundamental rights in times of global climate change. Some might even argue the GFCC established a fundamental right to climate protection. By contrast, the CJEU did not yet decide on the effective protection of intertemporal rights or a right to climate protection respectively. Almost 50 years after the Solange I decision, one must ask whether there is a substantial deficit of fundamental rights protection at the EU level.

Немецкий подход к гарантированию плюрализма в сфере массовой коммуникации

Using the political and philosophical context, the article analyzes the German model of guaranteeing pluralism in the field of mass communication, the core of which is formed by the communication rights of the Basic Law of the Federal Republic of Germany, which have undergone a deep reinterpretation by the Federal Constitutional Court. Starting from the abstract politico-philosophical value of pluralism as the foundation of German democratic theory, its path is traced through its integration with general constitutional and legal principles. This integration leads to the concretization of pluralism in the communication sphere as specific regulatory provisions within constitutionalized ordinary legislation. Through the examination, the article highlights the key parameters of this model that correspond to the pluralistic theory of democracy. These parameters determine the logic of constitutional-legal regulation in the German communication sphere and influence the doctrinal aspects of fundamental rights.

Revising the ICESCR’s individual complaint mechanism: the transformative potential of a right to a “dignified minimum existence” for the CESCR’s standards of review.

Drawing from an analysis of Germany’s Federal Constitutional Court’s (FCC), the South African Constitutional Court’s (SACC), and the Inter-American Court of Human Rights’ (IACtHR) jurisprudence, this paper will assess whether their respective methods of adjudication of the right to a dignified minimum existence provide promising alternatives to the CESCR’s current standards of review (the ‘minimum core’ approach and the ‘reasonableness test.’) More precisely, this paper will weigh on the following interrogation: how might the adoption of the right to a dignified minimum existence advance the CESCR’s standards of review for individual complaints? This essay will first analyze how the non-quantifiable and abstract character of this right could offer the CESCR the possibility to circumvent the practical requirements imposed by a ‘minimum core’ approach (I); before delving into the right’s potential to re-model the ‘reasonableness test’ to help inform the CESCR’s adjudicative methodology when assessing individual complaints indicative of highly precarious circumstances (II).

Considering Future Generations in Democratic Governance

Intergenerational issues encompass various future concerns ranging from climate change to government debt, which can potentially harm the well-being of future generations. Scholars have discussed intergenerational equity and justice, and efforts to incorporate future generations in decision-making in society have been growing, including establishing future-regarding institutions. Nevertheless, democratic governance often prioritizes short-term gains over long-term benefits. This thematic issue aims to present the current state of progress and academic discourse on incorporating considerations for future generations into current decision-making. The issue comprises 10 articles with a varied focus, including on young people and those who are yet to be born. Challenges such as misrepresentation and negligence in democratic deliberation are explored, along with legal obligations grounded in human rights. Proxies for future generations in political decision-making are examined, revealing limitations in enforcing their interests. The impact of political short-termism on government responses is discussed, and the role of narratives in moral philosophy is explored. Diverse cases, including climate litigation in the German Federal Constitutional Court, highlight the complexity of addressing future generations. These articles explore and identify challenges in incorporating consideration of future generations, which could be used to catalyze studies on actions that will be taken in the future.

GERMAN FEDERAL BUDGET: RESULTS OF 2022 AND BUDGET CRISIS OF 2023

The article examines the budget crisis that occurred in Germany at the end of 2023. The results of the execution of the federal budget in terms of expenditures and net borrowings in 2022 are analyzed in comparison with the indicators of the five-year financial plan for 2022–2026, and the main deviations of the fact from the plan are identified. It is shown how the results of the 2022 budget led to an increase in the load on the 2023 budget from the point of view of the implementation of the purpose of renewing the debt brake set in the 2021–2025 Coalition Agreement. Further the events are presented that occurred during the crisis of 2023, which was caused by the decision of the Federal Constitutional Court on the incompetence of transferring net government borrowings from one year to other years (this transfer has been carried out by the ruling coalition in February 2022). Measures regarding the additional budget for 2023 and the new budget for 2024 are listed, that have been adopted by the government to implement the court verdict and return to the debt brake policy. The impact of the budget crisis on the accuracy of budget planning for 2024 is analyzed. The author comes to the conclusion: the results of 2024 will show an interruption in the barely begun post-pandemic restoration of the budget planning’s reliability.

Climate Guardians: Navigating the Future in the 2021 German Climate Verdict and Constitutional Landscape

In the realm of intergenerational justice, green constitutionalism underscores the necessity for present generations to make choices that do not jeopardize the capacity of future generations to fulfill their needs independently. The climate verdict defending the rights of future generations by the German Federal Constitutional Court (Bundesverfassungsgericht) of March 2021 was a game changer in that regard. For the first time in Germany’s climate litigation, the fundamental rights of future generations were subject to constitutional claim and enforceable. They were no longer just a normative claim. Constitutional courts can be seen as defenders of the fundamental rights of future generations where constitutions include such normative perspectives. While the Court upheld the infringement of the fundamental rights of the adolescent plaintiffs in the future, the representation of not-yet-born generations remains unclear. This article examines how the 2021 German climate verdict and constitutional provisions address the representation and protection of the interests of future generations represented by the plaintiffs concerning climate change on the one hand and discusses the potential of protecting the fundamental rights of not-yet-born future generations. The article considers the implications for intergenerational justice and explores how these legal frameworks provided by the Constitution may contribute to the formulation of sustainable policies aimed at ensuring the long-term well-being of future generations. There is an urgent need to develop an institutional regime where the needs and rights of future generations are being considered and included in decision-making processes.

Grundsteuer-Reform – auch für das Bundesmodell keine Verfassungskonformität

Abstract After the Federal Constitutional Court declared the previous property tax system unconstitutional in 2018, eleven federal states chose the so-called federal model as the new procedure. It continues to be based on the valuation of properties using the modified Valuation Act. This assumes static value ratios, which may have become significantly outdated and no longer contribute to equal taxation. In addition, the character of the property tax as a special wealth tax is extremely antiquated and is no longer constitutional.

Fundamental Rights and Limited Possibilities: The Proviso of the Possible in European Fundamental Rights Doctrine

Abstract Fundamental rights to positive state action are costly. An allocation in favor of one individual rightsholder always results in lower allocations in favor of others. The dominant approach in fundamental rights doctrine assumes these conflicts can be resolved judicially by balancing competing rights and other public needs. In practice, carrying out an in-depth balancing in resource allocation cases proves challenging but constitutional courts developed different strategies and concepts to deal with costly rights. The European Court of Human Rights applies a “wide” margin of appreciation and requires that positive state obligations do “not impose an impossible or disproportionate burden on the authorities.” Following the German Federal Constitutional Court, several constitutional courts have applied a concept known as the “proviso of the possible.” The proviso of the possible constrains positive rights and results in a wide margin of discretion granted to political authorities. This article attempts to investigate the specific meaning of the “proviso of the possible” in the context of European fundamental rights law by comparing it against alternative doctrinal concepts. The investigation aims to identify common legal principles and methods to deal with fundamental rights conflicts over scarce public resources.

Javni poredak i nužni deo

Testamentary freedom is one of the basic pillars of inheritance law in any legal system. In Eurocontinental law, it is limited, inter alia, by the right of the heir to a statutory portion (forced heirship). On the other hand, Anglo-Saxon law does not recognize the forced heirship. In Europe, there is a tendency to narrow the circle of mandatory heirs. Testamentary freedom is guaranteed in modern Constitutions, while, on the other hand, it is disputed whether the right to inheritance, guaranteed by the Constitutions, also includes the right of heirs to a mandatory portion. In German law, which is based on the decision of the Federal Constitutional Court from 2005 the right to a forced heirship is considered as a part of public order, even as a part of international public order. On the contrary, in France and Hungary, in situations of crossborder inheritance, the right to a forced heirship does not belong to the domain of international public order. Considering the language and aim of Articles 58, 59 and 66 of the Constitution of the Republic of Serbia, it is difficult to argue that the heir’s right to a mandatory share is covered by the constitutional guarantees enshrined in Articles 59 and 66. On the contrary, Article 58, which guarantees peaceful enjoyment of property rights, and Article 23 (2), guarantee freedom of testamentary disposition. The same is the case with the European Convention on Human Rights, which guarantees freedom of testamentary disposition, but not the right to inherit. A foreign law that does not recognize the right to a forced heirship is not contrary to domestic public order. It is possible that the foreign law contains some kind of functional equivalent that aims to financially secure the mandatory heirs which is the case in Anglo-Saxon legal systems. The application of the lex fori fori allong with the application of the lex successionis is contrary to the principle of fairness in Private International Law. Also, it results in dépécage which is undesirable in PIL and runs counter to the principle of the unity of inheritance property. The application of foreign law governing the inheritance in the Serbian PIL could be limited only in exceptional cases. For example, when the foreign applicable law does not recognize any functional equivalent to a mandatory portion or when the foreign applicable law does not recognize the decedent’s minor children any claim to the inheritance property, so that they remain deprived of means necessary for life and, therefore, fall under the burden of state social assistance. Also, for the application of the part of lex fori, it would be necessary that the case of crossborder inheritance is closely related to domestic legal order. For example, that the mandatory heirs are citizens of Serbia with domicile in Serbia.

Die Literaturautonomie im deutschen Rechtssystem. Grenzen, Widersprüche und literaturtheoretische Potenziale

Abstract So far, the question regarding literature’s autonomy has predominantly been discussed from a poetological and historical perspective, with legal manifestations and possibilities of aesthetic autonomy usually being neglected by literary theory. However, in no other area than in (German) jurisprudence it becomes more evident that the concept of an autonomous literary practice, or more precisely the attempt to guarantee it legally, is highly challenging and therefore comes with restrictions. On the one hand, literary practice is legally regarded as a free and autonomous social subsystem. On the other hand, it can easily lead to violations of fundamental rights, meaning that the freedom of art cannot be considered unrestricted and autonomous on a closer look. In the following, the legal challenges of guaranteeing an unregulated literary practice will be discussed based on two fundamental legal rights, namely the freedom of art and copyright laws. The discussion proves to be significant for literary studies as well, as the legal tensions that are connected to the concept of literary autonomy have an influence on the practice of literature and thus also affect its theoretical reflection in literary studies and criticism. Because autonomy can mean several things, it is necessary to define the term ›autonomy‹ as used in this article first. After clarifying the concept of autonomy for the literary context, the focus lies on the legal discourse: The legal regulations in Germany regarding freedom of art and copyrights are first presented individually. Following this, the respective difficulties in guaranteeing the aforementioned legal rights are explained. A closer look will reveal that collisions are unavoidable, and that freedom of art and copyright laws sometimes even happen to be mutually exclusive. The challenges of literature’s autonomy in legal terms becomes particularly apparent by presenting the following two potential conflicts: The first conflict concerns collisions between freedom of art and a legal right of constitutionally similarly high rank, such as personal rights. The second potential conflict demonstrates why the freedom of art can hardly ever be reconciled with copyright provisions. The first case illustrates that the freedom of literary practice sometimes collides with other legal interests and can therefore be restricted, while the second one proves that a self-contradiction within the legal system exists when it comes to the notion of unrestricted autonomy. The first conflict is discussed by revisiting the decision of the German Federal Constitutional Court regarding Maxim Biller’s novel Esra in 2007. The decision, albeit highly controversial, helps to understand why legal barriers are sometimes imposed on works of literature. Additionally, the Esra case shows the legal difficulties of enforcing a ban on novels without fundamentally calling into question the freedom of art. This is also demonstrated by the votes of the dissenting judges at the Federal Constitutional Court which further illustrate the irresolvable challenge between guaranteeing not to impose any legal restrictions on the practice of art, but sometimes doing so whenever the freedom of art collides with personal rights. As a second example, the potential conflict that can arise when using the technique of literary collage or any other that involves adopting elements of existing literary or non-literary texts is discussed. Such a case is even more likely to result in a legal dilemma as there generally is a tension between freedom of art and copyright laws: although copyright laws can be subsumed under freedom of art and even serve as supportive of it, insofar as they aim at protecting the author as the intellectual owner of a work, they are not always beneficial to the freedom of art. This is best exemplified by the aesthetic technique of literary collage, for which the implementation of elements from other texts and media is characteristic and thus might easily conflict with copyright provisions. The example of literary collage demonstrates that without legal regulations some aesthetic practices might run the risk of infringing the respective copyrights as soon as an existing work of art is utilized partially for a new one. This article concludes that the notion of literary autonomy shows to be self-contradictory when discussed from a legal perspective. This observation is not irrelevant for literary theory, insofar as literary autonomy, understood as an unregulated literary practice, thwarts its promise of freedom. As this article argues, the idea of literary autonomy therefore needs revision in literary studies, not least because of its challenging legal dimension.