German Basic Law Research Articles

Report on the Academic Round Table, 30 April 2024, New York City: Freedom of Online Communication Across Transatlantic Borders

Abstract The Alexander von Humboldt Institute for Internet and Society (HIIG), the Leibniz Institute for Media Research | Hans Bredow Institute (HBI), the Columbia Global Freedom of Expression and the UNESCO Chair on Freedom of Communication and Information co-hosted an academic workshop in New York City on 30 April 2024. European and US experts examined the current state of freedom of expression on digital platforms on both sides of the Atlantic. The round table took place as part of the Year of Science 2024 in Germany. To celebrate the 75th anniversary of the German Basic Law (‘Grundgesetz’), this Year of Science has ‘Freedom’ as its central theme. This provided an excellent opportunity to examine the various understandings of freedom as it relates to communication rights and free speech between the US and Europe. The full extent of mutual learning opportunities remains untapped, and the practical implications are vast.

Exporting Constitutions – A Valuable Contribution to Nation Building or a Cementing of Conflict? A Case Study of the Export of Germany’s Basic Law (Grundgesetz)

This article analyses the impact of Germany's Basic Law on constitutions around the world to answer the question of whether the export of constitutions is a valuable contribution to nation building or a cementing of conflict. Particularly, the impact of the understanding of human dignity, the essence guarantee of basic rights (Wesensgehaltgarantie) and the organisation and functioning of the German State and its institutions will be highlighted. Malawi and South Africa will be used as examples of the impact of the German Basic Law. Comparing the constitutional setup with the practice in the country, the analysis shows that a comprehensive constitution itself does not guarantee compliance. A constitution that learns from other countries’ constitutions and their interpretation of constitutionalism is a solid but not sufficient groundwork for a locally determined nation building of a free society.

Blockade im Bundesrat – ein Resultat verfassungswidriger Koalitionsvereinbarungen in den Ländern

The legislative process of assent laws at the federal level in Germany reveals a constitutional dilemma . The parties represented in the federal government and in the federal opposition sometimes use the Bundesrat to distinguish themselves politically for or against federal politics . The result is a pre-programmed embargo of the constitutional body . This instru- mentalization of the Bundesrat not only attracts political attention; in the literature, vari- ous approaches try to solve the phenomenon by constitutional law . Based on the limita- tions of German Basic Law, this article develops a new perspective on the problem: The existing coalition agreements of the federal states disregard the constitution and are there- fore unconstitutional . At the same time, the article critically examines the state of opinion and considers alternative clauses that respect the limits of the constitution .

Editorial: Curia Locuta, Causa Finita: Some Further Conclusions from WAG

The Court’s decision in W AG on the cross-border utilization of treaty-exempt foreign losses has not only turned its back on Lidl Belgium and sparked an intense debate not only on the implications for other landmark cases, such as Marks & Spencer and K, but also on the transparency, certainty, and clarity regarding of the Court’s (substantive) ‘overruling’ of its precedents. A number of key issues following W AG have now been addressed by the German Bundesfinanzhof. In two recent judgments, it dealt with the standard of comparability established by W AG and the potential impact of the principle of equality in the light of Article 20 of the Charter and Article 3 of the German Basic Law and the ability-to-pay principle on the cross-border utilization of losses. Comparability, Marks & Spencer, Lidl Belgium, Timac Agro, Bevola, W AG, Charter of Fundamental Rights, Principle of Equality, Fallback Clause

사회국가원리의 이론적 형성과 법적 구현과정 과정에 대한 검토

The German social state theory sets its starting point in emphasizing the role of the state for the realization of individual freedom, based on Georg Wilhelm Friedrich Hege's philosophical thought of the state. Social democrats demand increased opportunities for political participation beyond the satisfaction of individual material desires. They emphasize the superiority of the state or politics over the economy in order to justify the state's intervention in the economic order to realize social justice. The tradition of social democracy that justifies the state's intervention in the economic order for the realization of socio-economic justice is reflected in Article 119, Paragraph 2 of our Constitution. This constitutional provision reflects the core elements of the social market economic order theory (Soziale Marktwirtschaft) based on Hermann Heller's theory of the social rule of law (sozialer Rechtsstaat), which succeeded Hegel's theory of state philosophy in terms of comparative constitutional law study. As a conservative social reformer, Lorenz von Stein's important achievements were to foresee the importance of social problems related to the social alienation of the proletariat, the proletariat, in the process of modern industrialization, and the political dangers of class struggle that would result from this, in advance. It can be seen that it is in the point of presenting the theory of the state related to the role of the state in solving social problems. In order to prevent the spread of the destructive nature of social problems related to the social gap between the rich and the poor and to enable the free personal development of all citizens, he set survival guarantee as a key task of the state. Stein presents the following two solutions as solutions to these problems of capitalist society: ① the end of competitive social relations, ② the dissolution, weakening, and extinction of class structure. Stein seeks a solution to end the ever-evolving class struggle and the ideology that justifies it in an independent social state (der soziale Staat) that aims for the public welfare, free from the interests of any particular class. Stein accepts Hegel's philosophy of state, which sets the guarantee of individual survival as the state's task, and recognizes the state's support for individuals without the ability to Hermann Heller's theory of social rule of law is an attempt to realize the state's efforts to realize social justice and security in the form of democracy. In this process, efforts to realize social integration by the state emerge as an important factor. After all, the core element of reformist social democracy is the pursuit of gradual social reform through democratic means. This justifies the government, which has realized democratic legitimacy, to intervene in the economic order for the benefit of the whole society. Nevertheless, modern social democracy must develop into a form that presents a new alternative to realize social justice for the state and society through new forms of reform and innovation. The various historical establishment processes of the principle of the social state and the historical development of the legal ideology supporting it have become an important cause of various legal theoretical discussions on the social state. The German Basic Law (Grundgesetz) accepts the principle of the social state (Sozialstaat) as a constitutional requirement. Although the German Basic Law does not explicitly use the concept of the social state, in Article 20, Paragraph 1 of the Basic Law, the “Social Federal State (sozialer Bundesstaat)” ｣ And in Article 28, which guarantees the homogeneity of the state constitutional order with the Basic Law (Homogenitätsklausel), the adjective and transformative expression of ｢social rule of law (sozialer Rechtsstaat)｣ is used. It is necessary to examine the state theories of constitutional thinkers such as Lonrenz von Stein and Hermann Heller,

Jannis Panagiotidis. The Unchosen Ones: Diaspora, Nation, and Migration in Israel and Germany.

Jannis Panagiotidis’s ambitious comparative study, The Unchosen Ones: Diaspora, Nation, and Migration in Israel and Germany, highlights what was common and what was distinctive in policies of the Federal Republic of Germany and Israel that privileged access to citizenship for certain immigrants belonging to the dominant ethnic or, in the case of Israel, religious group. Panagiotidis focuses especially on rejections of individual applications for treatment as Aussiedler (resettler) or oleh (someone who goes up, to Israel) that forced policy makers and gatekeepers in each country to clarify their priorities. “It was the unchosen ones who defined the chosen ones” (4). Both states justified their privileging of members of the dominant ethnic or religious group on the basis of past and current persecution. During and after the Second World War, ethnic Germans suffered both from popular hatreds created by Nazi rule and official policies of ethnic cleansing, which led to the expulsion of millions of ethnic Germans from their homes in Poland and Czechoslovakia. The West German Basic Law of May 1949, the constitution of the Federal Republic, established the right of expellees and refugees of German Volkszugehörigkeit (belongingness to the German people) to be considered German citizens once they arrived in West Germany. The 1953 law that implemented this clause extended the meaning of the term “expellee” to include all ethnic Germans living in the Soviet Union, Soviet bloc countries, and Yugoslavia even after the end of official expulsions. This continuing access to West German citizenship was “a consequence of the assumption that conditions in the old homeland [of the “expellee”] under foreign and communist rule had become unbearable” (42).

Reichweite und Grenzen der völkerrechtskonformen Interpretation des Grundgesetzes

This article deals with the constitutional limits of interpretations of the German Basic Law in the light of public international law. To this end, it first presents the jurisprudence of the Second Senate of the German Constitutional Court that has developed constitutional limits for the accommodation of public international law within the interpretation of the German Constitution. The central assumption here is, that openness to international law can only be effective within the framework of the democratic and constitutional system of the Basic Law. However, two recent decisions of the First Senate call this approach into question. The triage decision of the First Senate of 16 December 2021, and the climate decision of 24 March 2021, point to a more creative and less restrictive approach to the use of international law when interpret the German Basic law. Finally, it is argued that it is absolutely necessary to adhere to the constitutional limits established by the Second Senate, especially because of the danger of a possible autocratisation of international law. The openness of the Basic Law towards international law is not arbitrary, but in the words of the German Constitutional Court connected to “an international legal order that preserves freedom and peace”.

Sozialstaat vs. Eigentum? Philosophische Grundlagen der Sozialbindung des Eigentums

On the occasion of current discussions about property and the social binding of property (Sozialbindung des Eigentums), especially in the context of housing, this paper addresses the question of how the social binding of property can be philosophically justified. While philosophical justification models of the welfare state are usually silent on property and assume welfare state enclosure, treatises on property also rarely refer to a specific welfare state context. To fill this gap the paper discusses, in part as a response to Nozick's "non-social binding” of property, the philosophical foundations of the social binding, also laid down in the German Basic Law (Art. 14), for instance in following and discussing mainly Kant and Rawls theories of property.

Freedom of profession and protection of private property in the decisions of the Federal Constitutional Court of Germany

In this article, on the example of the decision of the Federal Constitutional Court of Germany, the correlation between the freedom of profession and the constitutional guarantee of private property in Germany will be considered. As an example, one of the early cases of the Federal Constitutional Court of Germany called “District Chimney Sweeper”, which was decided on April 30, 1952, is taken. In this case, the Federal Constitutional Court of Germany came to the conclusion that the “enterprise” of a chimney sweep is a craft in which the private law aspects of economic life completely fade into the background, and in which moments of strict public law regulation certainly dominate. This circumstance does not allow us to bring the concept of “guaranteed right to engage in a craft” under “property” in the sense of Article 14 of the German Basic Law of 1949.

Unconstitutionality of the Interest Limitation? Evidence from Germany: Adequate amount of interest expense in an enterprise and interest coverage ratio

Abstract The tax deductibility of interest expenses is an issue for companies. However, the interest limitation rule may restrict the tax-effective deduction for interest expenses of a business to 30% of the EBITDA. The German Supreme Tax Court (BFH) has submitted the interest limitation to the German Federal Constitutional Court to examine its constitutionality (BFH I R 20/15; 2 BvL 1/16). Since the interest limitation has been introduced by European secondary legislation (Art. 4 ATAD; Anti-Tax-Avoidance Directive) in all EU Member States, and the German rule corresponds exactly to Art. 4 ATAD, the decision of the German Federal Constitutional Court (BVerfG) will have a great signaling effect. The unconstitutionality of the interest limitation rule may prevent important tax policy goals of limiting tax-related debt financing of businesses and corporations from being achieved. According to the BFH, the German Federal Bar Association and the predominant opinion in the German literature, the interest limitation rule violates the ability-to-pay principle under Article 3 (1) of the German Basic Law. However, the existing analysis falls short. An economic and legal analysis of the interest limitation shows that it does not violate constitutional law. Under constitutional law, the legislator may limit the amount of the tax-effective deduction of business expenses to interest expenses that are customary in the market. In doing so, the legislator can use recognized financial ratios, such as the interest-coverage ratio (ICR) that stands behind the 30% EBITDA limit. Constitutional law does not provide for an unlimited tax deduction of interest expenses.

Enforcing Constitutional Sustainability Clauses in the Age of the Climate Crisis: Insights from Social Contract Theory on How to Take Account of Future Generations

Abstract Climate change is one of the most alarming events today, which will very likely have devastating effects on a lot of people worldwide. This paper addresses the question as to how constitutional sustainability clauses can be enforced in the age of the climate crisis. It does so by looking into some difficulties of making the notion of future generations operable. First, the paper will briefly analyze two decisions by the Austrian Constitutional Court and the Norwegian Supreme Court, which have both rejected claims based on constitutional sustainability clauses referring to future generations. This is juxtaposed with a recent decision by the Federal Constitutional Court of Germany which invigorated Article 20a of the German Basic Law and thereby also future generations. Second, this paper aims at shedding light on the notion of future generations by looking into philosophical debates on the so-called non-identity problem. The question as to how to include future generations in the social contract and selected philosophical strategies to address it are discussed and introduced to the legal discourse. This seems to be a worthwhile goal as by now several scholars from various disciplines such as geography, political science, and applied ecology have opened up a debate on the role of social contracts concerning climate change. This paper seeks to further the debate by aiming to suggest a connection between philosophical social contract reasoning and constitutional sustainability clauses taking the example of Austria, Norway, and Germany.

Immanuel Kant's concept of dignity: A philosophical ground and a case for considering human dignity as the highest constitutional value

The aim of this paper is to analyze and highlight the philosophical conceptualization of human dignity by the German philosopher Immanuel Kant and how his reflections in this regard can provide a compelling theoretical ground and an underpinning for recognizing and elevating human dignity to the pinnacle of constitutional values. Kant is one of the foremost thinkers of the Age of Enlightenment and the most prominent figure in the world of moral and legal philosophy. Many of his ideas are directly related to the concept of human dignity, Kant become one of the most frequently cited philosophers who analyzed the philosophical and ethical dimensions of human dignity. His ideas in this regard had a great impact on establishing human dignity as the highest constitutional value, especially in the German Basic Law 1949, which considers human dignity as a non-derogated value, which means that the human being is an end in itself and not a means to achieve the goals and objectives of others, including the state. Consequently, there is no justification for violating or diminishing human dignity by the state. On the contrary, the goal of the state’s existence is to promote and respect human dignity, and this is a duty incumbent upon all state authorities, executive, legislative and judicial.

Thinking like a Lawyer—Human Rights and Their Association with the Plastic Surgeon of Today

Plastic surgeons are trained to perform a wide repertoire of surgeries—ranging from standard local procedures to highly specialized operations. Therefore, plastic surgeons treat a plethora of clinical presentations and address multiple patient needs. Their daily workflow is increasingly entwined with legal topics. The concrete legal interpretation falls within the remit of legal experts. However, by understanding the legal basics of selected surgical procedures, plastic surgeons may generate synergies in patient care and clinical practice. The legal situation is to be elucidated based on the German Basic Law (GBL) and the European Convention on Human Rights (ECHR).Level of Evidence V"This journal requires that authors assign a level of evidence to each article. For a full description of these Evidence-Based Medicine ratings, please refer to the Table of Contents or the online Instructions to Authors www.springer.com/00266."

Konstytucja z 17 marca 1921 r. na tle powojennych konstytucji republikańskich w Europie 1919–1922

The Constitution of 17 March 1921 against the background of the post-war republican constitutions in Europe 1919–1922 After Poland regained its independence in November 1918, the parliament, acting as a constitutional body, enacted the Constitution of the Republic of Poland on 17 May 1921. It is worth setting this event against a broader background. After the First World War, new constitutions were created in Eastern Europe, in particular in those states that had to build their political system from scratch, for example because they appeared on the map of Europe for the first time in history or were reinstated after a long break. These states, or more precisely their elites, had to draw on foreign ideas and achievements due to lack of their own experience. For the states that chose the republican system and disregarded the solutions contained in the constitutions of the United States and Switzerland, the Third Republic of France became a very important source of inspiration, thanks to the regulations contained in the three constitutional acts of 1875, as well as constitutional practice. Admittedly, from 1879 onwards, the constitutional practice increasingly diverged from the letter of the law set out in these three acts. Another source of inspiration for some of the new states in Eastern Europe was the constitution of the German Reich, adopted in 1919. In our part of Europe, if we exclude Estonia, Finland, and Austria – which made an effort to develop their own, sometimes unique, political solutions – it can be noted that the achievements of the Third Republic, in terms of the letter of law and political practice, became a decisive source of inspiration for Poland and Czechoslovakia, while the German Basic Law served as a model for Latvia (to a greater extent) and Lithuania (to a lesser extent). The choices made by the political elites of Poland and Czechoslovakia, however, differed in one fundamental aspect. Poland took as its point of departure the constitutional practice of the Third Republic, formed since 1879, while Czechoslovakia took the letter of the Constitutional Act of 1875. This substantially and differently moulded the form of the political system of each of these states, and subsequently its functioning in practice. Already in the interwar period, it became clear that the decisions taken in Warsaw to make the Sejm the highest organ in the state, modelled after the Chamber of Deputies in France, were less “correct” than the solutions adopted in Prague. In Czechoslovakia, the principle of the separation of powers was taken as the starting point. The principle of the balance of powers was then referred to and the roles of the legislative and executive branches were precisely defined so that this balance would really exist. In this way, the smooth operation of both powers was guaranteed, not only in their relations with each other, but also on a national scale. In Czechoslovakia, the architects of the constitution took into account the principle of the separation of powers alongside the principle of their balance, while in Poland the latter principle was absent, at first in the text of the constitution, and then in practice in the years 1922–1926.

Analyzing The Risk Thresholds For Banning Political Parties After NPD II

AbstractThe recent global growth of anti-democratic sentiment has renewed the question of when a political party should be barred from the electoral arena. In modern democracies, even explicitly militant ones, constitutional mechanisms for banning political parties are rarely used. The recent decision by the German Federal Constitutional Court (BVerfG) not to ban the National Democratic Party, despite its neo-Nazi platform, is an example of this restraint, with the BVerfG introducing a new, stricter criterion called “potentiality” for the dissolution of a political party under the German Basic Law. This article draws on neo-institutionalism and comparative constitutional law to explore the democratic ramifications of three different European thresholds for banning an anti-democratic political party: the presumptive test previously used by the BVerfG, the new potentiality criterion introduced by the BVerfG, and the European Court of Human Rights’ requirement for the party in question to be an imminent threat before it can be dissolved.

The ‘Advance Interference-Like Effect’ of Climate Targets: Fundamental Rights, Intergenerational Equity and the German Federal Constitutional Court

ABSTRACT Some climate lawsuits qualify as landmark cases, because they either mark an unexpected turning point in environmental jurisprudence, or they introduce a new conceptual analysis of the law vis-à-vis the global challenge of climate change. The decision of the German Federal Constitutional Court from March 2021 meets both criteria, it has already defined climate policy and law-making in Germany, and it revolutionised the traditional concept of ‘interference’ with fundamental rights under the German Basic Law. This article examines the order and its significance for climate litigation, legislation and constitutional doctrine, and it analyses how international law defines the state’s objective to protect the climate pursuant to Article 20a Basic Law, including for future generations. On that basis, the article argues that the Court's approach towards intergenerational equity remains limited due to the perception of the carbon budget as ‘freedom budget’.

Greek Debt Restructuring Case

Two complainants brought a constitutional complaint before the German Constitutional Court. The complaint was directed against a judgement of the Federal Court of Justice (Bundesgerichtshof) that dismissed their action because the Hellenic Republic enjoyed state immunity before the German courts. in February 2012, Greece restructured its debts through a bond exchange in response to its major debt crisis. In this exchange, Greece offered its bondholders new bonds with a 53.5% percent reduction in the nominal value compared to the old bonds. The bond exchange was conditional on bondholders representing 2/3 of the aggregate principal voting in favour of the exchange, and subject to a quorum of 50% of bondholders. The complainants brought claims against the Hellenic Republic before the Regional Court of Osnabruck for the repayment of the funds that they originally paid to acquire the bonds, or alternatively, for the loss in value suffered due to deliberate immoral damage, unlawful expropriation, or unlawful interference equivalent to expropriation. In their constitutional complaints, the complainants invoked breaches of their right to a lawful judge based on Article 101(1) 1 Sentence 2, Article 100(2) and Article 25, first Sentence 1 of the German Basic Law. They also argued that the Federal Court of Justice unlawfully ruled on the scope of state immunity and failed to consult the Federal Constitution Court through the norm verification procedure. The German Constitutional Court did not accept the constitutional complaint for decision.

17 German Federal Constitutional Court, 1 BvR 2727/19, 2 November 2020

Decision-making body: German Federal Constitutional CourtCase details: 1 BvR 2727/19, 2 November 2020Primary legal issues: The relationship between labor law, constitutional law, and antidiscrimination law—Balancing freedom of expression, human dignity and nondiscrimination on the part of an employerApplicable legal provision: Articles 3 and 5 of German Basic Law (Grundgesetz – gg), §626 of the German Civil Code (Bürgerliches Gesetzbuch – bgb); §104 of the German Works Constitution Act (Betriebsverfassungsgesetz – BetrVG)Related cases: Federal Constitutional Court, 1 BvR 2459/19, 1 BvR 2397/19, 1

Die Rolle des Staates bei der Entwicklung von Arzneimitteln und Impfstoffen

Pharmaceutical research in Germany has, so far, been financed almost exclusively by private companies. Hitherto, the research-based pharmaceutical industry is one of the few sectors that has managed without any noteworthy government research subsidies. Entrepreneurial commitment is still one of the decisive factors for progress in medicine. Direct state subsidies have just played a subordinate role in the past. The fact that the Federal Ministry of Research is supporting the development of vaccines against the SARS-CoV-2-virus with a total of 1.2 billion euros therefore appears even more extraordinary. But besides financial means, the German state is involved in many other ways in the development and approval of medicines and vaccines. The national legal requirements and regulations originate from the pen of the German legislators. At the same time, through various federal institutes and institutions, the German state is involved in the approval procedure, in the release process, in the distribution and in the monitoring of medicines and vaccines. However, the German government is not obliged to participate in the development of new medicines and vaccines in a certain way and to a certain extent. Rather, the type and scope are subject to its wide margin of appreciation which is only limited by the prohibition of insufficient actions. This leeway increasingly gets smaller, the more urgent, threatening and acute a health situation is for life and health of the citizens. In urgent cases as in a pandemic situation, the state’s duty to protect (Art. 2 § 2 Clause 1 of the German Basic Law) can then oblige the state to promote and to push the development of urgently needed medicines and vaccines, although the government remains free to choose the exact way how to fulfil this duty. It remains to be seen if, under the impact of the corona pandemic, the German government will continue to undertake greater (particularly financial) efforts to promote and push the development and the approval of new medicines and vaccines, or if this – what seems more likely – remains an exception for epidemic and pandemic situations.

Generalklauseln im Datenschutzrecht

German data protection laws all provide for provisions that allow public authorities to process personal data whenever this is ‘necessary’ for the respective authority to fulfil its tasks or, in the case of sensitive data in the meaning of art. 9 GDPR, if this is ‘absolutely necessary’. Therewith, in theory, data protection law provides for a high degree of administrative flexibility, e. g. to cope with unforeseen situations like the Coronavirus pandemic. However, these provisions, referred to in German doctrine as ‘Generalklauseln’ (general clauses or ‘catch-all’-provisions in English), are hardly used, as legal orthodoxy assumes that they are too vague to form a sufficiently clear legal basis for public purpose processing under the strict terms of the German fundamental right to informational self-determination (art. 2‍(1), 1‍(1) German Basic Law). As this orthodoxy appears to be supported by case law of the German Constitutional Court, legislators have dutifully reacted by creating a plethora of sector specific laws and provisions to enable data processing by public authorities. As a consequence, German administrative data protection law has become highly detailed and confusing, even for legal experts, therewith betraying the very purpose of legal clarity and foreseeability that scholars intended to foster by requiring ever more detailed legal bases. In our paper, we examine the reasons that underlie the German ‘ban’ on using the ‘Generalklauseln’. We conclude that the reasons do not justify the ban in general, but only in specific areas and/or processing situations such as security and criminal law. Finally, we list several arguments that do speak in favour of a more ‘daring’ approach when it comes to using the ‘Generalklauseln’ for public purpose data processing.