German Federal Constitutional Court Research Articles

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.

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.

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.

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.

Acquitted on the Benefit of Doubt … but not Proven Innocent! The Judgment of the German Federal Constitutional Court on the Next Generation EU Program

Abstract Until recently, the recognition to the European Union of the capacity to borrow from capital markets for spending purposes was considered almost inconceivable without a treaty amendment. When borrowing for spending was authorized under the Next Generation EU program to support the recovery of member states from the unprecedented consequences of the coronavirus, it was immediately faced with the suspicion that the pandemic was being used as a pretext to promote the creation of a fiscal and transfer union by the back door in violation of the principle of conferral. In its NGEU judgment, the German Federal Constitutional Court concluded that the authorization to borrow under the program could not be considered ultra vires. However, the ambiguous and controversial reasoning of the Constitutional Court gives rise to uncertainty as to whether the funding and financing model introduced by the recovery program could be used again in the future, beyond the exceptional circumstances of the pandemic. At the same time, it appears that, in this case, the Constitutional Court applied a considerably more restrained version of its ultra vires review compared to its recent case law on the asset purchase programs of the European Central Bank.

Striking a balance: the interplay of CJEU rulings and international human rights obligation with national constitutional identities

The article examines approaches to the interaction of decisions of the Court of the European Union (CJEU) and international obligations in the field of human rights with the constitutional identity of states. Attention is focused on the concepts of “national identity” and “constitutional identity”, their relationship, and the introduction of the concept of “national identity” into the European legal order after the signing of the Maastricht Treaty (1993). Attention is drawn to the fact that the primary law of the EU does not contain the concept of “constitutional identity”, but this term is widely used in the decisions of the constitutional courts of several EU member states. In these decisions, the constitutional courts raised the issue of the protection of the constitution and constitutionality in the EU member state given the harmonization of legislation and/ or ultra vires decisions.
 The article notes that the concept of constitutional identity is broad, it covers the historical, political, cultural, and legal identity of the state, as well as the connection of national law with the international and autonomous legal order of the EU. The idea of constitutional identity is dynamic and constantly evolving due to the continuous development of the states themselves.
 The analysis of various approaches to this interaction based on the German Federal Constitutional Court, Hungarian Constitutional Court, and Italian Constitutional Court was carried out. It is noted that the interaction of CJEU rulings with constitutional identities is based on the principle of primacy of the EU law, and international human rights obligations are based on the conventional feature of the “obligation of uniform interpretation” and universal standards while ignoring the constitutional tradition of the states. It means that CJEU judgments have a higher legal force than national court judgments, while international human rights obligations should become precedents for subsequent national court judgments, not lowering the national standards of human rights protection.

Sichtweisen einer Stichprobe überwiegend jüngerer Ärztinnen und Ärzte zum ärztlich-assistierten Suizid

ZusammenfassungHintergrundAm 26.02.2020 hat das Bundesverfassungsgericht den § 217 StGB, der die geschäftsmäßige Förderung der Selbsttötung unter Strafe stellte, für nichtig erklärt. Seitdem wird eine mögliche gesetzliche Neuregelung diskutiert. Ziel dieser Studie war es, Wissen, Erfahrungen und Einstellungen jüngerer Ärztinnen und Ärzte zur Suizidassistenz zu untersuchen.MethodenVon November 2022 bis März 2023 wurde eine quantitative Umfrage in Fortbildungskursen zur Notfallmedizin, Intensivmedizin und Hämatologie durchgeführt und deskriptiv ausgewertet.ErgebnisseInsgesamt wurden 1163 Datensätze (Rücklaufquote 82,1 %) ausgewertet. 90,8 % der Befragten hatten bereits Sterbende betreut. 62,3 % befürworteten eine Suizidassistenz nur bei Menschen in palliativen Behandlungssituationen, 20,1 % befürworteten Suizidassistenz unabhängig vom Gesundheitszustand des Menschen. 33,1 % wurden bereits um Suizidassistenz gebeten. 3,3 % hatten persönlich bei einer Suizidassistenz mitgewirkt. 71,0 % kannten den Inhalt des Bundesverfassungsgerichtsurteils zum § 217 nicht, 72,0 % waren über die Gesetzesvorschläge zur Neuregelung des assistierten Suizids nicht informiert. 66,4 % sahen Ärztinnen und Ärzte als die richtigen Ansprechpartner, um über die Zulässigkeit eines Suizidwunsches zu entscheiden.DiskussionDie Untersuchung zeigt, dass jüngere Ärztinnen und Ärzte einen deutlichen Unterschied in ihrer Haltung zur Suizidassistenz zwischen Menschen ohne Vorerkrankungen und solchen in palliativen Behandlungssituationen machen. Weitere Untersuchungen über die Ursachen der häufigen Unkenntnis der normativen Grundlagen sind notwendig. Die Ergebnisse legen nahe, dass mehr Aufklärungsarbeit über Suizidalternativen und palliativmedizinische Versorgungsmöglichkeiten geleistet werden muss.

Estimating costs of bedside assessment by a judge in each case of mechanical restraint in Germany after new legislation.

In 2018, the German Federal Constitutional Court decided that mechanical restraint is the most intrusive coercive measure and its use requires a judge's decision after bedside assessment if lasting longer than 30 min. Subsequently, legal changes were realized. The objective of our study was to determine the number of saved coercive episodes and saved hours in seclusion or restraint in 2019 compared to the average of the previous years, 2015-2017, as well as costs per saved episode, hour, and case saved from any coercive measure. We used data from the Baden-Wuerttemberg case registry for coercive measures, covering all 32 psychiatric hospitals of the Federal State and 435,767 admissions in the study period. Time expenditure was calculated as 3.5 h with an average of 51.95 € per working hour on the side of the justice system and 1.5 h (45.94 €/h) on the side of the hospital per case. The number of coercive episodes decreased by 10.0% from 28,181 (average 2015-2017) to 25,371 (2019). The number of hours in seclusion or restraint decreased by 17.9% from 321,956 (2015-2017) to 264,423 (2019). This resulted in the cost of 872.33 € per saved episode and 42.61 € per saved hour in seclusion or restraint. Given the correctness of our estimations, saving 1 h in coercion by less than 1 h of an expert's work might be justified from an ethical and economic perspective.

Ein gesamtstaatlicher „Transformations- und Infrastrukturfonds“ zur Stabilisierung der Schuldenbremse

Abstract With its judgement on the federal budget, the German Federal Constitutional Court has thrown the government’s financial planning into disarray. Important public investments are at stake, as the debt brake sets tight limits for the treasury and debt-financed shadow budgets. But the green transition requires public investment as the time horizons are short and the investment risk for technologies and international competition is high. A transformation and infrastructure fund (TIF) anchored in the constitution, combined with planning accelerations should be established in order to finance government investments while at the same time leaving the debt brake in the core budget untouched.

Das Klima und eine marode Infrastruktur richten sich nicht nach der Schuldenbremse

Abstract The German Federal Constitutional Court has ordered a revision of public budgets following the correct interpretation of the German debt brake. The debt brake is an obstacle to necessary public investment needed for ecological transformation of areas such as housing construction and education. The debt brake should be replaced by the golden rule of fiscal policy, which allows credit financing of public investments.

시민불복종의 법적 정당화 고찰

The general view is that civil disobedience cannot be ‘legally justified’ because it is ‘an act that violates the law’, and that the disobedient must be willing to accept the legal consequences of his or her disobedience. However, as long as the value of civil disobedience is needed to resolve the partial breakdown of the system that the representative system cannot properly handle, is it impossible to recognize the legal justification beyond acknowledging moral justification for civil disobedience that fully accepts the entire legal order? This paper starts from this question and seeks to explore the possibility of legal justification of civil disobedience in relation to positive law. This is because acknowledging the role of civil disobedience in supplementing the blind spots of the representative system and seeking ways to legalize it to a certain extent is rather a way to expand the realm of the rule of law.
 The concept of legal justification for civil disobedience is being used vaguely, with its specific relationship to positive law unclear. Therefore, first of all, it is necessary to confirm the concept of legal justification of civil disobedience in relation to the Constitution and positive laws. This must begin with distinguishing between direct and indirect civil disobedience. That’s because the legal justification of civil disobedience itself or individual acts of disobedience varies depending on whether the target rule violated by civil disobedience is consistent with or inconsistent with the target law or policy that civil disobedience aims to protest.
 Jury nullification in the US jury system is an exceptional system in which a jury acknowledges that the accused is guilty of a crime charged in a criminal trial, but finds him innocent for various reasons. As long as jury nullification, which is an important part of the jury system, is understood as a constitutional issue, the implications of jury nullification on the legal justification of civil disobedience are relevant. The device of jury nullification, which sometimes grants legal immunity to civil disobedience, provides an implication in interpreting the social rule provisions(Article 20) of our criminal law.
 As a result of a large-scale protest against the installation of nuclear missiles in Germany in the 1980s, the German Federal Constitutional Court finally discussed civil disobedience. In particular, in the 1986 decision, some Constitutional Court judges put forward a theory referred to as the constitutional influence of civil disobedience. The majority opinion in the 1995 decision, which followed over time, also presented an interpretation that respond implicitly to the theory presented by the dissenting opinion in 1986. Therefore, we will examine this theory, which provides important implications for the interpretation of the social rule.

Protecting Australian democracy: From attempting to ban the Communist Party to resisting foreign interference

The article analyses the shift of the limits of democratic tolerance in Australia. In 1950, the Australian Parliament passed an Act under which the activities of the Australian Communist Party were outlawed, and the party had to be dissolved. One year later, the High Court of Australia struck down the Dissolution Act and indicated that the "militant democracy" concept had never been a part of the Commonwealth Constitutional architecture. Thus, the interpretation of the judicial system of Australia went contrary to the findings, for instance, of the German Federal Constitutional Court, which dissolved the Communist Party of Germany in 1956. The latest developments in Oceania, such as a ban on foreign donations and the threat of foreign interference through political parties, require a new examination of the status quo of the limits of democratic tolerance in Australia and whether it has been subject to changes since the establishment of a highly liberal pathway to democratic competition.

Responsible judges or judging responsibilities? EU Court of Justice, Bundesverfassungsgericht and EU economic governance

ABSTRACT The EU's response to the COVID-19 pandemic has renewed discussions on whether the gap between responsibility and responsiveness is, to some extent, constructed. This discussion only partly applies to courts, which are important in interpreting EU crisis responses. While judges do not rule in a political vacuum, it is not their main task to please public opinion. Even if they were to be influenced by changes in public mood, judges have little incentives to claim responsiveness in their judgments. By contrast, higher courts may be considered the epitome of responsibility since they are themselves bound by the law and entrusted to decide on conflicting responsibility claims of other actors. Hence, we ask how different courts interpret responsibility – their own and that of others – during the Eurozone and the COVID-19 crises. We conduct a comparative analysis of responsibility claims in the jurisprudence of the EU Court of Justice (CoJ) and the German Federal Constitutional Court (FCC) at two crucial crisis moments. We find little evidence of judges claiming responsiveness, but important differences in the constructions of responsibility between the two courts and across crises. The gap between how the courts construct their shared responsibilities in EU economic governance has seemingly narrowed.

Transfer of Climate Litigation to Biodiversity Protection?

Abstract In recent years, constitutional courts and supreme courts have handed down important decisions on (potentially) insufficient climate protection regulation. This article analyses the climate decision of the German Federal Constitutional Court and discusses its application to biodiversity protection. It shows that despite of clarifications related to the State’s constitutional duty to protect citizens, including future generations, against the risks of climate change, the application of the decision to other urgent environmental problems remains unclear. The German standard of review grants the legislator considerable leeway in case of remaining scientific uncertainty and still relies on a clear quantification of protection needs. In contrast, the Urgenda ruling of the Dutch Supreme Court shows the way how in case of scientific uncertainty (potentially insufficient) environmental protection can be judicially reviewed while safeguarding the margin of appreciation of the legislator at the same time.

“Not Great, Not Terrible” – EU Crisis Management and Constitutional Identity Regarding The COVID-19 Pandemic

Summary The conformity of the European Union’s Own Resources Decision with the constitution was brought before the authentic interpreters of the constitutions in Finland and Germany. This paper tends to examine the so-called ‘identity review’ engaged by these interpreters regarding procedural guarantees. In Finland, the competence-related debate between the Constitutional Law Committee and the Grand Committee and their interference with the EU-law as well as the subsequent Finnish legislative process raised some serious concerns. The relevant decisions of the German Federal Constitutional Court also highlight some disadvantages of decision-making in a crisis situation, for instance, the lack of reasoning or the failure to request a preliminary ruling from the Court of Justice of the European Union. In this paper, we aim to highlight the promising and the less favourable aspects of the (quasi-)constitutional courts’ procedure.

Law and discretion in monetary policy and in the banking union: Complexity between high politics and administration

The controversy over the degree of judicial review of monetary policy decisions triggered by the contrasting Weiss judgments of the German Federal Constitutional Court and of the Court of Justice of the European Union invites an inquiry into the role of law in areas characterized by a high degree of political and technical complexity. This article singles out the structural conditions that qualify complexity in specific instances of decision-making: prognostic assessments, goal-oriented decisions, marked by uncertainty, legal indeterminacy, and discretion. These traits characterize both monetary policy decisions and some regulatory decisions taken within the banking union, such as the setting of minimum requirements for own funds and eligible liabilities (MREL) and the calculation of the leverage ratios of credit institutions (Livret A judgments). Irrespective of the very distinct formal-institutional legal frameworks of these two policy fields, in those conditions legality may be determined by the discretionary choices of the decision-maker. For this reason, they impact the court’s deployment of legal principles, namely proportionality and careful and impartial examination. This cross-sector comparison sheds light on the relative specificity of monetary policy, and leads to rejecting the transposition of a distinction between “high politics” and “ordinary administration” to EU law, as a means of both explaining and guiding different degrees of judicial review in conditions of complexity. The different constitutional relevance of monetary policy decisions and of “ordinary” banking supervision requires not a distinction that can rationalize judicial review, but a full consideration of the role that the law must have in supporting non-judicial accountability. judicial review of administrative discretion, complex technical and economic assessments, monetary policy, proportionality, banking union, principle of careful and impartial examination

Assisted suicide and the discrimination argument: Can people with mental illness fulfill beneficence- and autonomy-based eligibility criteria?

According to the "discrimination argument," it would be discriminatory and hence impermissible to categorically exclude people with mental illness (PMI) from access to assisted suicide (AS) if AS is accessible to people with somatic illnesses. In objection to this, it could be argued that excluding PMI is not discriminatory, but rather based on their inability to meet certain eligibility criteria for AS. Which criteria are deemed necessary depends on the approach taken to justifying AS. In thisarticle, we describe two distinct ethical approaches to justifying AS and the eligibility criteria they entail and examine whether PMI can fulfill these criteria. A widespread "joint" approach based on beneficence and autonomy assumes that AS is justified when it alleviates the severe and irremediable suffering of a person who autonomously requests AS. An alternative, exclusively autonomy-based approach assumes that providing AS is justified when a person's request is autonomous, regardless of whether AS is in her best interests. The latter approach underlies an important judgment of the German Federal Constitutional Court from 2020. We argue that PMI can in principle fulfill both beneficence- and autonomy-based eligibility criteria for AS, and that a blanket exclusion of all PMI from AS is thus discriminatory on either approach. However, depending on which approach is taken, there are differences regarding the subgroups of PMI that would be eligible for AS. Whether the exclusion of specific PMI is discriminatory therefore depends on how we understand and justify AS.

Talks, Dinners, and Envelopes at Nightfall: The Politicization of Informality at the Bundesverfassungsgericht

AbstractThe German Federal Constitutional Court (BVerfG) has for decades used informality to establish, build, and protect its authority. Yet, as the political landscape has shifted in recent years, in particular since the end of the Merkel-era Grand Coalition and the rise of the right-wing populist AfD, several longstanding informal practices and institutions have become politicized. Those concern extra-judicial activities of judges, regular informal meetings between the Court and the government, and privileged early access to the Court’s press releases for certain journalists. This Article first introduces various forms of informality that the BVerfG employs in its internal self-administration and the judicial-legal culture in general, before tracing how, why, and by whom the three aforementioned practices of informality are challenged. Ultimately, this Article analyzes how the Court and its judges respond to the politicization of informality, and in particular how it triggered processes of formalization of judicial behavior and changes in institutional communication.

Climate Change Litigation – A Promising Perspective?

Like climate change, climate lawsuits are a global phenomenon. Under the guise of “strategic litigation”, individuals and groups try to advance sufficient efforts to mitigate climate change by states and companies, citing constitutional fundamental and human rights. The majority of the litigation has so far been unsuccessful. With the Dutch judgments in the Urgenda and Shell cases and the decision of the German Federal Constitutional Court of March 2021, case-law precedent for concrete measures has recently become available. The article sheds light on the discussion on climate lawsuits, lets critics have their say and concludes with an outlook on the effects of these proceedings on liberal parliamentary democracies and the emergence of global ecological human rights and possibly even of nature’s rights for its own sake.

THE GERMAN FEDERAL CONSTITUTIONAL COURT APPROACHES PROPORTIONALITY ANALYSIS AS A LEGAL REASONING METHOD TO DECIDE INVOLVING COMPETING RIGHTS CASES

The research focused on the proportionality analysis (proportionality principle) as a Legal Reasoning Method to decide competing rights caseS in the German Federal Constitutional Court (GFCC) or Bundesverfassungsgericht. It is the ultimate rule of law, global constitutionalism value, and the benchmark for constitutional judges to review conflicts between individual rights and state interests. Hence, an analysis model for measuring conflicts of competence between the European Union and Germany. It is four stage assessment analysis: legitimate aims, suitable, necessary, and balancing (strict sense). The result of the research saw that it is used as a constitutional reasoning model in landmark decision cases in 2020-2022, namely: the European Central Bank asset case, the climate change case, the Election of a Vice-President of the Bundestag case, and the Bavarian Constitution Protection Act case. Based on these case reviews, it is well applied, systemised, structured, and comprehensive in each case. However, not all stages are used in competing rights analysis, especially the balancing test as the last analysis in proportionality.