German Constitutional Court Research Articles

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.

Unexpected tax refunds and capital market efficiency: Evidence from the German nuclear fuel tax

We investigate the efficiency of capital markets in reacting to a ruling of the German Constitutional Court in 2017, which led to a large unexpected tax refund for the three German-based operators of nuclear power plants. Unlike events used by prior research, this unique firm-specific event allows us to assess both, the magnitude and speed of the market reaction. With regard to magnitude, we find that the tax refund is fully impounded into stock prices within a few trading days after the court ruling. When investigating the speed of the market reaction more granularly, we show that 63% to 82% of the entire abnormal returns of the event date are already realized within the first minute after the announcement of the court ruling and, moreover, that significant market reactions occur even within 5 to 15 s.

The Search for a Balance between the Principles of Freedom of Economic Activity and Environmental Protection in German Constitutional Law

This paper examines how the Federal Republic of Germany, being one of the most powerful economies and a state with the highest sustainability ratings in the European Union, finds a balance between environmental protection requirements and economic freedom. The article focuses on the provisions of the Basic Law of the Federal Republic of Germany and the constitutional jurisprudence of the German Constitutional Court.

The German Constitutional Court – Activist, But Not Partisan?

The German Constitutional Court – Activist, But Not Partisan?

Shaming the Court: The German Constitutional Court's NGEU Reversal

Shaming the Court: The German Constitutional Court's NGEU Reversal

Quo vadis, Schuldenbremse? Über Sinn und Unsinn detaillierter Defizit- und Schuldenregelungen im Grundgesetz

Abstract The German debt brake forces the German government to target a very specific public deficit to GDP ratio. A ruling of the German constitutional court has drawn attention to the debt brake, as it is to be enforced more tightly than the federal German government previously thought. In this article, the author argues that the debt brake should be abolished. It does not do what it is supposed to do – the sustainability of public debt depends on the European Central Bank’s Dealer of Last Resort function and nothing else. As a side effect, the debt brake curtails government spending at a time of close to zero net public investment and huge requirements for more public spending.

PROSPECTS OF ECONOMIC STANDORT AMID THE CRISIS OF THE «TRAFFIC LIGHT» COALITION POLICY IN GERMANY

By the fall of 2023, the German government coalition (December 8 marked two years since the start of its activities) had developed a number of important economic bills. They were designed to increase the competitiveness of the German economic space in the context of polycrisis challenges – pandemic, energy, migration, geopolitical. But the economic policy of the Cabinet of Ministers also found itself in crisis. It acquired clear outlines after the German Constitutional Court in mid-November overturned the government’s decision taken at the end of 2021 to transfer 60 billion euros of loan funds intended to overcome the consequences of the coronavirus to the Climate and Transformation Fund to finance current government spending. The author analyzes the consequences of this decision for the planned reform steps; assesses the prospects for the formation of the state budget; characterizes the current state of the German standort, as well as the prospects for the deindustrialization of its energy-intensive sector.

Domestic courts as guarantors of international climate cooperation: Insights from the German Constitutional Court’s climate decision

Abstract Domestic courts in various countries have begun to scrutinize the political branches’ responses to climate change. A central argument against court interventions pushing an individual state’s climate actions is that the individual state cannot effectively promote climate protection, and, instead, will suffer economic disadvantages in global competition. The article counters this criticism with the thesis that judicial interventions contribute to an effective realization of climate protection if they strengthen international cooperation. To substantiate the thesis, the article draws on the economic analysis of law to examine states’ decision-making rationalities for entering international agreements. It then analyzes how judicial interventions may influence these parameters, with a particular focus on the recent climate decision of the German Constitutional Court, and embeds the domestic court decisions in an emerging public relations law that closely interlinks constitutional and international climate law.

PERBANDINGAN DESAIN PENGUJIAN KONSTITUSIONAL PADA MAHKAMAH KONSTITUSI FEDERAL JERMAN DAN INDONESIA

This research is based on the weaknesses of constitutional review design in Indonesian and how the best design in Germany. This normative legal research is analysed using legislation and comparative approaches. The results showed that the German and the Indonesian Constitutional Courts had the same design and practice of constitutional review. The German Constitutional Court has complete authority, namely the abstract judicial review, concrete judicial review, and constitutional complaints. While the Indonesian Constitutional Court is only given the abstract judicial review and does not have a concrete judicial review and constitutional complaint authority, in practice, some applications are characterized by both. The design of abstract judicial review between the German and Indonesian Constitutional Courts has the same object of disputes but differences in the party applying. The object of the dispute on the concrete judicial review at the German Constitutional Court is the implementation of laws relating to court cases. The objects of petitions for constitutional complaints are judicial decisions, laws, and others.

토지이용규제 수단에 관한 연구

The Framework Act on the Regulation of Land Use (hereinafter referred to as the “Land Use Regulation Act”) was enacted on December 7, 2005, which stipulates basic matters concerning the designation and management of areas and districts related to land use. Prior to the enactment of the Land Use Regulation Act, the Urban Planning Act enacted in 1962 introduced a use area and use area system for land use regulation. The National Land Use Management Act enacted on December 30, 1972 stipulated the preparation and determination of a land use plan according to the comprehensive national land construction system and its implementation. The National Land Use Management Act was abolished from January 1, 2003 when the National Land Planning and Utilization Act (hereinafter referred to as the “National Land Planning Act”) was enacted. Although there has been a change in the law on land use regulation, there has been no change in land use regulation through the designation of regions, districts, etc. In the attached Table of Article 5 of the Land Use Regulation Act, 243 are listed in 100 laws. Article 5 of the Land Use Regulation Act includes the following subparagraphs (i.e., areas, districts, etc. prescribed by Presidential Decree under the delegation of other laws, areas, districts, etc. under the Prime Minister's decree, ordinances, and municipal ordinances). It stipulates that it cannot be done. The Land Use Regulation Act stipulates restrictions on activities in business districts and restrictions on activities in regions and districts determined by urban and county management plans.
 According to the Framework Act on Land Use Regulation and the National Land Planning Act, restrictions on activities in use areas and districts impose a duty of action or omission to limit development activities or obtain approval or permission related to land use. Such restrictions on behavior correspond to academic restrictions on common use. There is a problem of compensation for property rights violations caused by public restrictions, but the Constitutional Court's Green Belt decision takes the separation theory taken by the German Constitutional Court and says that if there are no compensation provisions in individual laws, it cannot be compensated.
 This paper aims to examine the types of use areas and use districts, focusing on the basic law on the designation of use areas and use districts, one of the means of land use regulation, and to review the deliberation procedures for the establishment and designation of areas and districts. In addition, we would like to outline the details of restrictions on behavior in business districts, review the theory's position on whether to compensate for losses raised in connection with such restrictions, and present judicial issues while reviewing the position of the theory on the legal nature of development permission to legalize development activities.

A Comparative Study on the Constitutionalization of Abortion in Korea, On The Busy Intersection of Morality and Law

This study presents a comparative overview of certain parallel aspects in the legal history of the abortion debate as it transpired historically in the key judicial opinions in the United States and Germany, and recently in the Korean Republic. The object is to elucidate the extreme difficulty that the learned Justices of the Courts in the United States and Germany faced in attempting to objectively measure the moral values involved in the determination of maternal and fetal rights, and their inability to provide rational explanations for the initial prioritization or ultimate balancing of the rights. As a result, the Courts failed to direct and stabilize abortion regulation because their frameworks were neither proven to be equitable nor legally workable. The primary method of this study is to highlight the questionable nature of the legal frameworks of the original abortion opinions of the U.S. Supreme Court and the German Constitutional Court to demonstrate that they were guided more by the personal moral convictions of the Justices than by the dictates of the law. The goal is to offer a comparative context that begins to explore the question, whether the Korean Constitutional Court has indeed found a way to resolve the abortion debate once and for all, or alternatively, whether all protagonists in Korea ought to shift course to help avoid weakening the authority of the rule of law and its legitimacy in the public eye, by delaying any further attempt in the resolution of this controversial issue until a national debate on the dialectic results in a consensus in the public, scholarly, and ultimately legislative discourse that properly values and balances the mother’s right of self-determination with the natural right of the fetus to life.

The German Climate Verdict, Human Rights, Paris Target, and EU Climate Law

The German Constitutional Court’s climate verdict provided a re-interpretation of core liberal-democratic concepts, and it is highly relevant for liberal constitutional law in general, including EU and international law—where similar issues are currently being discussed in ongoing trials before the European Court of Human Rights and the International Court of Justice. The present article applies a legal interpretation to analyse the national and transnational implications of the ruling. The results show that the verdict accepts human rights as intertemporal and globally applicable. It applies the precautionary principle to these rights and frees them from the misleading causality debate. However, the court failed to address the most important violations of human rights, it categorised climate policy as a greater threat to freedom than climate change, and the court failed to acknowledge that the Paris 1.5-degree limit implies a radically smaller carbon budget. Furthermore, little attention has so far been paid to the fact that the ruling implies an obligation for greater EU climate protection, especially since most emissions are regulated supranationally. Against this backdrop, the EU emissions trading system demands a reform, which has to go well beyond the existing EU proposals so as to enable societal transformations towards sustainability.

After reform of the European Patent Organisation, the German Constitutional Court finds that at least a minimum judicial standard applies

After reform of the European Patent Organisation, the German Constitutional Court finds that at least a minimum judicial standard applies

Political constitutionalism in Europe revisited

AbstractThis article traces the disconnect in the constitutional study of the European Union from the Maastricht era to the euro crisis. In the Maastricht era, a discourse of ‘post‐sovereignty’ came to dominate theoretical enquiry, reflecting but also distorting a number of material developments: the ‘end of history’, the retreat of critical theory into discourse analysis and systems theory, and the prioritization of law over politics. Jürgen Habermas was a key intellectual figure in driving this ideological mix at the very moment when anti‐systemic challenges began to return, both formally and informally, as exemplified in the German Constitutional Court and the French political scene. In revisiting the idea of political constitutionalism, we can foreground this constitutional disconnect and show how it contributes to the irresolution of the subsequent euro crisis conjuncture.

국경간(國境間) 표현의 자유에 관한 비교법적 연구

While technological developments are rapidly facilitating the cross-border exchange of ideas and information, the Korean legal system continues to differentiate the treatment of domestic speech and cross-border speech. Various restrictions on grounds of expression are imposed regarding the physical movement of people and objects as well as internet speech that transcend borders. The Korean Constitutional Court has yet to explicitly acknowledge the constitutional status of cross-border expression, and the gap between protection of domestic and cross-border speech remains unaddressed. In contrast, the US Supreme Court ruling Lamont v. Postmaster General(1965) acknowledged the right to receive foreign mail under the First Amendment. Also, Holder v. Humanitarian Law Project(2020) acknowledged that content-based restrictions of speech under the direction of, or in coordination with foreign groups are subject to heightened scrutiny. The German Constitutional Court ruling of the case Leipziger Volkszeitung(1961) acknowledged the right to receive foreign information under Article 5 of the Basic Law, and in the case Ausland-Ausland-Fernmeldeaufklärung(2020), the German Constitutional Court clarified that fundamental rights vis-à-vis the German state authority is not restricted to German territory - the German state authority is bound by fundamental rights even when acting against foreigners in foreign territory. This article analyses the above decisions along with others from the US Supreme Court, the German Constitutional Court and the European Court of Human Rights with the aim of extracting lessons that may be applicable in establishing the constitutional status of cross-border speech under the Korean Constitution. Similarly to the foreign examples, the Korean Constitutional Court may be able to justify the constitutional protection of cross-border speech based on its former justification theories regarding domestic speech, and also considering international human rights standards. This can serve as a starting point for a broader and more substantial perspective of the freedom of speech that will be able to address its increasingly international aspects.

Forward to the Past: Short-Term Effects of the Rent Freeze in Berlin

In 2020, Berlin introduced a rigorous rent-control policy responding to soaring prices by capping rents: the Mietendeckel (rent freeze). The German Constitutional Court revoked the policy only one year later. Although successful in lowering rents during its duration, the consequences for Berlin’s rental market and close-by markets are per se not clear. This article evaluates the short-term causal supply-side effects in terms of prices, quantities, and landlords’ strategic behavior. We develop a theoretical framework capturing the key features of first-generation rent control policies and Berlin-specific aspects. Using a rich pool of detailed rent advertisements, predictions are tested, and further empirical causal inference techniques are applied for comparing price trajectories of dwellings inside and outside the policy’s scope. Mechanically, advertised rents drop significantly upon the policy’s enactment. A substantial rent gap along Berlin’s administrative border emerges, and rapidly growing rents in Berlin’s (unregulated) adjacent municipalities are observed. Landlords started adopting a hedging strategy insuring themselves against the risk of contractually long-term fixed low rents following a potentially unconstitutional law. Whereas this hedge was beneficial for landlords, the risk was completely borne by tenants. Moreover, the number of available properties for rent dropped significantly, a share of which appears to be permanently lost for the rental sector. This hampers a successful housing search for first-time renters and people moving within the city. Overall, negative consequences for renters appear to outweigh positive ones. This paper was accepted by Victoria Ivashina, finance. Funding: This research benefits from funding by the FNR Luxembourg National Research Fund [CORE Grant 3886] (ASSESS) and the OeNB Anniversary Fund [Grant 18767] (LocHouse). M. Fongoni further thanks the Department of Economics at the University of Strathclyde for support and acknowledges funding from the French government under the “France 2030” investment plan managed by the French National Research Agency [Reference ANR-17-EURE-0020] and from the Excellence Initiative of Aix-Marseille University - A*MIDEX. Supplemental Material: The online appendix and data are available at https://doi.org/10.1287/mnsc.2023.4775 .

위헌심사기준으로서의 비례원칙

The Prohibition of Excessive Restriction or the Proportionality Principle (hereafter as “the Proportionality”) in a broad sense refers to the basic principle or the limitation of legislative activities that the state should abide by in carrying out when it makes laws that restrict the citizens’ basic rights. In other words, laws that restrict the citizens’ basic rights must meet the qualifications of the Legitimate Law Object, the Adequate Mean, the Minimal Impairment, and the Balancing between personal interest and public interest (hereafter as “the Balancing”). The Korean Constitutional Court (hereafter as “the Court”) has so far tended to focus its arguments on the Minimal Impairment in applying the four sub-principles of the Proportionality: the Legitimate Law Object, the Adequate Mean, the Minimal Impairment, and the Balancing. However, the Proportionality is a sequential and step-by-step review structure, and ‘step-by-step review’ presupposes that each sub-principle has its own meaning. If so, the Court’s Balancing review that has been criticized as “an overdose of the Proportionality”, should now be changed. That is, the Minimal Impairment should be limited to the evaluation of “legislative alternatives”, and the degree of restriction on basic rights or the judgment of Endurance Possibility should be moved to the Balancing to make use of the merits of the step-by-step review. These changes also bring the Court on par with the trends of advanced foreign constitutional courts such as Germany (The German Constitutional Court) and Canda (the Canadian Federal Supreme Court). Moreover, by doing so, the Court can correctly establish the criteria of the Proportionality as a reviewing standard of constitutionality.

Youth movements, intergenerational justice, and climate litigation in the deep time context of the Anthropocene

After decades of ineffective state-led global climate governance that has been dominated by mostly short-term Northern political and corporate interests, we are now witnessing an increased recognition of the planetary scale of the climate crisis and its impacts on present and future life on Earth. The Anthropocene is argued to be the new geological epoch and is associated with fast-approaching planetary boundaries and a new understanding of promethean humans as a powerful geological force. The Anthropocene introduces a new context for thinking about the climate crisis and its associated multiple patterns of differentially distributed injustices, including the temporal aspects of justice. At the same time, the climate crisis prompts the need to embark on new strategies to ensure a safe and just operating space for all present and future generations within planetary limits. While traditionally marginalized in national, regional and United Nations political fora, and largely ignored by the high rhetoric of multilateral environmental agreements that have been unable to operationalize intergenerational justice in day-to-day governance, young people are now actively claiming their position as representatives of present and future generations. They do so through protests, but also through more formal avenues to deliberately assert claims for intergenerational justice. One increasingly popular and often successful strategy is climate litigation. In this paper, we explore the shift in understanding and the practicing of intergenerational justice in the deep time context of the Anthropocene, and how young people are becoming more powerful political actors that use climate litigation to ensure intergenerational justice. We briefly reflect on the 2021 decision of the German Constitutional Court in Neubauer et al versus Germany as an example of successful youth-led climate litigation.

Social Rights in Comparative Constitutional Law: Right to Health in the Perspective of the Brazilian and German Constitutional Courts

This article deals specifically with the current phenomenon of the judicialisation of social rights in Brazilian and German Constitutional Courts, taking as practical example the right to health. A progressive increase in the number of lawsuits in Brazil involving health insurance plans, expensive and experimental medicines and hospital admissions has been noted in the last years. The main obstacles to the judicial realization of social rights in Brazil are the alleged violation of the principle of separation of powers – branches of state – for decisions regarding the allocation of public financial resources, the absence of a previously prepared public policy and the impossibility of universalizing social demands due to economic-financial limitations. Nevertheless, the legal categories of the ’existential minimum’ and the ‘duty of progressivity’ have been used in the most recent decisions of the Brazilian Supreme Court as a way of realising social rights under strong influence of the German Federal Constitutional Court and international human rights law. Finally, the situation of Brazil before the Inter-American Court of Human Rights regarding the implementation of social rights in a structural context of exclusion and poverty is analysed.

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”.