German Federal Constitutional Court Research Articles

Economic Constitutionalism in the EU and Germany – The German Constitutional Court, the European Court of Justice and the European Central Bank between Law and Politics

Abstract The relationship between the European Union (EU) and its member states has recently been the subject of several legal proceedings in the German Federal Constitutional Court (GFCC) and the European Court of Justice. The backdrop to the underlying controversies were policies instituted by the European Central Bank (ECB) dealing with the economic and monetary situation in various member states in the context of the sovereign debt crises to influence interest rates, combat deflationary tendencies and keep inflation under but close to the ECB’s 2% inflation target. Especially so-called outright monetary transactions (OMTs) and the corresponding OMT-program and a particular high volume public sector asset purchasing program (PSPP) announced by the ECB have been controversially discussed. Legally, the controversies are about the prohibition for the ECB to finance debt held by the EU or member states (Article 123 TFEU) and about the delineation of economic policy (Article 119 et seq. TFEU), which lies in the hands of the members states, and monetary policy (Article 127 et seq. TFEU), which is exclusively in the hands of the ECB. The GFCC in its decisions propagated a restrictive approach emphasizing the role of the member states and pointing to the doctrines developed by it around ultra vires acts and so-called identity review. This paper attempts to shed some light on this controversy and argues that beyond the legal controversy lies a deeper problem of the relationship between judicial and political decision-making that the GFCC should exercise restraint in exercising its functions and remember its own doctrine of “open constitutional norms” developed in a different context but applicable here as well.

Consequences of the temporaneous lack of admissibility of involuntary medication in the state of Baden-Wuerttemberg: not less drugs, but longer deprivation of liberty

After the decisions of the German Federal Constitutional Court in 2011 and the Federal Supreme Court in 2012, involuntary treatment was not approvable for a period of seven months in the State of Baden-Wuerttemberg. Previous analyses of routine data had demonstrated that at that time in a rather small group of patients, aggressive incidents and coercive interventions had significantly increased and then decreased to the previous level after the new legislation came into force. The changes concerned a relatively small group of involuntary patients. Based on an analysis of medical charts in 6 hospitals, this study aimed to investigate 1) whether refusal of prescribed medication became more frequent in that period and 2) how frequently antipsychotic medication was administered without coercion. We conducted a longitudinal intra-individual comparison and included all of the patients with schizophrenic and manic disorders who had been admitted in the period without the option of involuntary treatment and in a defined control period one year before as well (N = 174). Thus, study group and control group were identical. In the period without the option of involuntary treatment, patients remained involuntarily committed significantly more frequently (+ 26 %) but only insignificantly longer. Length of stay and number of mechanical restraints remained unchanged, number of seclusions doubled, and some patients could not leave the ward for long periods of time and had frequent readmissions. Persistent refusal of prescribed medication was significantly more frequent (+ 130 %, p < .001). However, the percentage of patients who received an antipsychotic drug during their hospital stay did not differ (96.0 vs. 96.6 %). The dosage at discharge as calculated in chlorpromazine units tended to be even higher during the period without option of involuntary treatment (+ 7.9 %, p = .06). All differences concerned both voluntary and involuntary patients. Without the option of involuntary treatment, persistent refusal of medication and different forms of deprivation of liberty increased. Nevertheless, oral antipsychotic treatment was realized in nearly all cases until discharge.

Refusing Medication Therapy in Involuntary Inpatient Treatment-A Multiperspective Qualitative Study.

Objective: Between June 2012 and February 2013, two decisions by the German Federal Constitutional Court restricted the so-far common practice to use involuntary medication in inpatients who were involuntarily hospitalized. Up to then, involuntary medication was justified by a judge’s decision on involuntary hospitalization. It could be applied according to clinical judgment even against the declared will of a patient. Since then, all domestic laws related to involuntary treatment had to be revised. For several months, involuntary medication was allowed only in an emergency. We were interested in the impact of the changed legal framework on the experiences of inpatients, their relatives, and clinical professionals during that time. Methods: Thirty-two interviews were analyzed qualitatively using a grounded theory methodology framework. Results: As a consequence of the restrictions to involuntary medication, special efforts by nursing and medical staff were required concerning de-escalation, ward management, and the promotion of treatment commitment in inpatients who refused medication. Family caregivers were also under strong pressure. They wanted to help and to protect their relatives, but some also welcomed the use of coercion if the patient refused treatment. Most of the interviewed patients had not even noticed that their rights to refuse medication had been strengthened. They complained primarily about the involuntary hospital stay and the associated limitations of their everyday lives. While patients and family members evaluated the refusal of medication from a biographical perspective, the mental health care professionals’ focus was on the patients’ symptoms, and they understood the situation from a professional perspective. It was obvious that, in any of the four perspectives, the problem of feeling restricted was crucial and that all groups strived to gain back their scope of action. Conclusion: The temporary ban on involuntary medication questioned the hitherto common routines in inpatient treatment, in particular when patients refused to take medication. Each of the different groups did not feel good about the situation, for different reasons, however. As a consequence, it might be indispensable to increase awareness of the different perspectives and to focus the efforts on the establishment of nonviolent treatment structures and practices.

‘제3의 성’의 법적 인정 : 2017년 10월 10일 독일 연방헌법재판소 판결을 중심으로

이 글은 제3의 성과 관련한 독일 연방헌법재판소의 결정을 중심으로 간성인 사람들의 법적 지위에 관해 살펴본다. 간성이란 성별이 생물학적으로 모호해 성별을 구분하는 특성들이 명확하게 남성이나 여성에 해당하지 않는 상태를 이른다. 간성은 아직까지 우리사회에서 생소한 개념이지만, 여러 국가에서 이들의 인권과 법적 지위에 관한 논의가 활발해지고 있다. 간성으로 태어난 이들에 대한 의학적 개입, 이들의 성정체성과 동떨어진 성별등록으로 인한 인권침해 문제가 관심사로 떠오르고 있다.BR 신분은 “법제도 내에서 개인의 위치”이며, 신분등록의 추정적 효과는 다른 법적 영역에도 영향을 미치게 된다. 성별등록은 개인의 성별에 대한 국가의 승인과 연계되며, 성별분류는 개인의 성정체성에서 매우 중요한 의미를 가진다. 독일은 2013년 신분법 개정으로 간성에 해당하는 이들이 성별을 따로 기재하지 않도록 하는 규정을 두었으나, 2017년 10월 연방헌법재판소는 이에 대해 헌법불합치 결정을 내렸다. 연방헌법재판소는 기본법 제1조 제1항과 제2조 제1항에 따른 일반적 인격권은 성정체성을 보호하며, 이는 지속적으로 남성으로도 여성으로도 분류될 수 없는 사람들의 성정체성도 보호한다고 판시하였다. 또한 기본법 제3조 제3항 제1문이 지속적으로 남성이나 여성으로 분류될 수 없는 사람들을 성별에 따른 차별로부터 보호한다고 밝혔다. 이에 따라 출생등록이 강제되지만 남성과 여성이 아닌 다른 성별의 적극적인 등록이 허용되지 않는다면, 지속적으로 남성으로도 여성으로도 분류되지 않는 사람들의 두 기본권이 침해된다고 판단했다. 연방헌법재판소는 성별등록 제도 자체를 폐기하거나, 간성인 이들에게 통일적이고 적극적인 방식으로 성별을 등록할 수 있도록 하는 방안을 제시했다.BR 이에 따라 개정돼 2019년 1월 1일부터 시행 중인 신분법은 출생아의 성별을 출생등록부에 등록할 때 기존 성별 표기인 여성, 남성, 미기재 외에도 ‘다양’(divers)을 표기할 수 있도록 했다. 그러나 성별 변경 시 의사의 증명서를 제출해야 한다는 점에 대한 비판, 성별과 관련된 다른 법적 영역에 대한 개정이 미비한 점에 대해 비판하는 의견도 있다. 독일의 신분법 개정은 가족법, 노동법 등 관련된 법률 영역에도 영향을 미칠 것이다. 이 글이 아직 이 분야에 대한 관심이 부족한 국내에서 간성인 사람들의 인권과 법적 지위에 대한 주의를 환기시키는 역할을 할 수 있기를 기대한다.

W poszukiwaniu remedium na bezradność jednostki wobec unikania przez sądy krajowe pytań prejudycjalnych do TSUE – stanowisko ETPCz i sądów konstytucyjnych państw członkowskich

Preliminary reference to the CJEU is one of the most important achievements of the EU law. In the multicentric legal system it becomes a kind of guarantee to ensure a uniform interpretation of the EU law by courts of the Member States. However, not only is preliminary ruling an aid for judges, who adjudicate cases connected with EU law, but also it might create a possibility for individuals to have their EU rights protected. Unfortunately, EU law does not predict any effective measure, which would protect individual, when a court of the Member State unlawfully refuses to make a preliminary reference. An interesting phenomenon is an attempt to fill this gap by the European Court of Human Rights and constitutional courts of the Member States (especially the German Federal Constitutional Court) in recent years. In their case law, refusing to make a preliminary reference by courts, which are obligated to do that, was qualified as a violation of the right to a fair trial (ECHR) or the right to a lawful judge (constitutional courts). The aim of this article is to consider hitherto situation and to discuss it from the perspective of Polish law.

Building Judicial Authority: A Comparison Between the Italian Constitutional Court and the German Federal Constitutional Court

This paper examines the foundations of the Italian Constitutional Court’s authority by comparing it with that of the German Federal Constitutional Court. In comparison to the German Court, la Corte had to build its authority on a particularly weak legal basis. However, it succeeded in developing a dynamic of “power in weakness” which explains important features of the Italian Constitutional Court: its exceptionally cooperative relationship with the ordinary courts, its terse style of reasoning, its deliberate low profile in public opinion, its activist interaction with the legislature, and its tactical dialogue with the EU Court of Justice.

The application of the Charter of Fundamental Rights of the EU by the German Federal Constitutional Court with references to the other federal courts

The German Federal Constitutional Court (FCC) applies the Charter of Fundamental Rights of the EU (ChFR) if German law is “determined” by EU law. The interpretation of article 51.1 ChFR which regulates the applicability of the ChFR is narrower than that of the Court of Justice of the EU. The FCC which has recognized, with some reservations, the primacy of supranational over national constitutional law maintains its concept of constitutional identity defined according to the intangibility clause of article 79.3 Basic Law (BL). If human dignity (article 1 BL and the fundamental State structures as enumerated by article 20 BL) are concerned, the FCC does not apply the ChFR regardless of article 51.1FCh but the identity concept. Overall, the references of the FCC to the ChFR are relatively scarce.

Elections, Public Awareness, and the Efficacy of Constitutional Review

AbstractScholars have long recognized the importance of timing in political decision making. In this article, I consider the potential for the strategic timing of court decisions involving the constitutional review of statutes. As courts lack the ability to directly implement their decisions, scholars have identified an attentive public as invaluable for judicial authority. Building on this literature, I argue that the proximity of a national election increases awareness and thereby creates an environment conducive to the assertive exercise of constitutional review. I then present evidence of the electoral cycle’s effect on decision making at the German Federal Constitutional Court.

German Constitutional Court Considers Self-Defence Against Non-State Actors a Tenable Interpretation of Article 51 of the Un Charter

In its Order of 17 September 2019, the Second Senate of the German Federal Constitutional Court considered the question of whether the right to individual or collective self-defence under Article 51 of the Charter of the United Nations included the use of armed force against non-State actors such as the so-called “Islamic State” (ISIL). The decision has been interpreted as condoning the use of force by Germany and other Western States against ISIL in Syria. However, this is not what the Court did. The Federal Constitutional Court simly held that neither the wording nor the object and purpose of Article 51 of the UN Charter preclude the application of the right of self-defence to attacks committed by non-state actors operating on the territory of a third country. The present paper presents the relevant parts of the Court's judgment (in English translation) and puts the decision in perspective. It shows that the Federal Constitutional Court’s contribution to the debate on the scope of the right to self-defence under Article 51 of the UN Charter is much more limited than suggested by commentators.

Democracy and (the essential content of) fundamental rights: marching in line or precarious balancing act?

ABSTRACT This article addresses the question of how democracy and fundamental rights interplay, and compares German and South African law for this purpose. The author argues that democracy requires and presupposes fundamental rights, but that these two values do not always align, and then deals with the question of how to reconcile democracy and fundamental rights in case of conflict. The potential conflict between the two values is sometimes reflected in the relationship between Parliaments as the embodiment of democracy and the Constitutional Courts as the embodiments of fundamental rights (the so- called "counter-majoritarian dilemma"). However, the author rejects the recent critique by some scholars that the German Federal Constitutional Court structurally exceeds its powers vis-a-vis the German Parliament and that there is a permanent judicial overreach. On the contrary, the author argues that Constitutional Courts do not have sufficient tools to counter a democratic backsliding, i.e. the incremental erosion of democracy. Since the author considers democratic backsliding to be a greater and more acute threat to democracy than judicial overreach, he presents the view that the guarantee of the essential content of a right delineates the minimum of a fundamental right in a democratic society. This view is explained using freedom of expression as example. Keywords: German Constitution, Grundgesetz, Constitutional comparison, Essential content of a right, Freedom of expression, Separation of powers, Democratic backsliding, Counter-majoritarian dilemma, Constitutional courts, Democracy, Fundamental rights, Preconditions of democracy

Die Wandlung des Grundrechtsschutzes durch das Bundesverfassungsgericht – Recht auf Vergessen I und II als „Solange III“?

The relationship between the fundamental rights as laid down in the German Constitution and the fundamental rights contained in the Charter of Fundamental Rights of the European Union has been exceedingly conflict-prone ever since the early days of the European Union. Related thereto is the ongoing controversy on the judicial prerogative of the German Federal Constitutional Court (BVerfG) within that system. Thus, two big players in the European multi level system, i.e. the BVerfG and the European Court of Justice (ECJ), clash with their judicial powers and diverging interests. With its two recent decisions, 1 BvR 16/13 and 1 BvR 276/17 of November 6, 2019, the First Senate of the BVerfG introduced a far-reaching change in its approach of protecting basic rights by clarifying the relationship between the EU fundamental rights and the fundamental rights of the German Constitution. At the same time, the BVerfG has made a strong effort to maintain its position within the multilevel cooperation of the constitutional courts of EU member states, particularly in relation to the ECJ, which by both sides is referred to as a "cooperative relationship". This article explains the repercussions of the aforementioned judgments on the protection of fundamental rights in the European multi-level system.

Euroscepticism and the European parliament: The mutual legitimization paradox

The European continent is moving away from a long-term tacit consensus on the desirability of deepening of European integration and entering a period of uncertainty and turbulence. The rise of the Euroskeptics on the European political scene creates without a doubt a discomfort among pro-European political forces. This prevents the democratic capacity of this process to be perceived, and in particular, the contribution of Euroscepticism channeled in the European Parliament, since it is the only organized political opposition in the EU institutional order which in terms of procedure leaves little room for that. Political movements and parties that express doubts about the benefits of the EU are certainly gaining legitimization by entering the European Parliament. However, on the other hand, this may have one unintended consequence. They contribute to the democratic legitimization and the reduction of the democratic deficit of the institution which they more or less radically challenge. They do so in the context of limited legitimization conferred to the European Parliament within the institutional structure of the EU. At first glance, the paradox of Euroscepticism being a threat to the EU and at the same time of reducing its democratic deficit is explained in this paper by the use of the German Federal Constitutional Court expressed in the famous judgment on the constitutionality of the Treaty of Lisbon. In addition to normative considerations, the paper also contains a shorter political review on the rise of Euroscepticism and its perspective. The author concludes that a conditional mutual legitimization of Euroscepticism and the European Parliament is emerging as a new political reality.

Does the Federal Constitutional Court Ruling Mean the German Financial Market is Efficient?

Following the landmark ruling by the German Federal Constitutional Court in Karlsruhe on 7th February 2014 in which they endorsed the efficient market hypothesis, we present evidence on the efficiency of the German financial market. Introducing a new variance bound test based on the Component-GARCH model of volatility to analyse the long- and short-runs effects on the efficiency of the German financial market, we test the price volatility of three markets: DAX stock index, German sovereign debt index as provided by Barclays and Bloomberg, Euro gold index by the World Gold Council and Euro currency index by the Bank of England. The results seem to be indicating a relatively strong acceptance of the efficient market hypothesis in both the short and long runs in all the observed financial markets.

Beyond Sexual Binaries? The German Federal Constitutional Court and the Rights of Intersex People

In a recent judgment, the German Federal Constitutional Court held that it was unconstitutional to require every person's sex to be entered on the birth register, without providing for a third option for intersex persons. This article examines the intersex judgment in view of the Court's earlier jurisprudence on the rights of trans persons. It argues that this judgment was enabled, to a significant extent, by the fluid understanding of sex and gender identity shown in those judgments, and by the elaboration in those cases of the relationship between sexual freedom, human dignity and equality. It also comments on the possible relevance of the intersex judgment for South Africa, in view of some of the parallels and differences between German and South African constitutional jurisprudence.&#x0D; &#x0D;

Höchstrichterliche Rechtsprechung zum Planungsrecht

Abstract In the last five years (2014– 2018) judgements of the German Federal Administrative Court (Bundesverwaltungsgericht) have significantly influenced the German planning law (Baugesetzbuch). This article provides a representative overview of these decisions. It also explains their influence on the German planning law with a particular emphasis on the law of urban landuse planning (Bauleitplanung) and building consents (Baugenehmigung). The article also takes into account some decisions of the German Federal Constitutional Court (Bundesverfassungsgericht) as well as the German Federal Court of Justice (Bundesgerichtshof). Both courts have adjudicated on compensation for expropriation. Furthermore, the German Federal Constitutional Court has given advice on the preservation of deficient plans whereas the German Federal Court of Justice also delivered judgements on urbanistic contracts.

When a right-wing extremist political party appeals to European integration and a constitutional court takes the national perspective…A comment on the Nationaldemokratische Partei Deutschlands judgment BVerfG, 2 BvB 1/13

With Regulation 1141/2014, the EU has inaugurated a truly transnational political party system as well as a potential conflict between national and European governance – or so the Nationaldemokratische Partei Deutschlands has recently argued when faced with party ban proceedings before the German Federal Constitutional Court. The party contended that its representation in the European Parliament and membership in a political party at European level established exclusive European governance and denied the competence of the Federal Constitutional Court for national proceedings. The court, by contrast, summarily dismissed the Nationaldemokratische Partei Deutschlands’s arguments, maintaining its own exclusive authority, and failed to engage in a substantive legal assessment of recent developments in European party law. In this paper, I argue that precisely such a thorough analysis of the newly emerging intertwinement between national and European law as a consequence of Regulation 1141/2014 would have been in order. The Nationaldemokratische Partei Deutschlands’s arguments need to be taken more seriously than the Federal Constitutional Court allows, despite, or perhaps more accurately because, of their highly strategic invocation of European integration: the European argument cannot rest with the extremist party alone, who, elsewhere a most imminent opponent of the European idea, now uses it to challenge national law.

Formen und Funktionen des exekutiven Geheimnisschutzes

Transparency is still all the rage in public law. In most constitutional democracies, all executive decision-making must be “visible and understandable”, as the German Federal Constitutional Court has put it. At the same time, however, few people doubt that the executive branch must protect vital or dangerous information in certain cases. But how exactly can executive secrecy be justified in constitutional terms? And how can we make sure that executive secrecy does not undermine our pursuit of a visible state? This article takes up the challenge to develop a theory, which integrates executive secrecy into the grammar of democratic constitutionalism.

Mixed Signals of Europeanization: Revisiting the NPD Decision in Light of the European Court of Human Rights' Jurisprudence

The Article revisits the German Federal Constitutional Court's NPD decision and the concept of militant democracy regarding party bans in German constitutional law. It argues that the Court's new definition of the free democratic basic order approximates its jurisprudence to the standards developed by the European Court of Human Rights. The Article also compares the German and European standards for party bans. It assesses the respective required risks for democracy that a party needs to pose in order to justify a party ban. In this respect, it is argued that the German standard—though elevated—still falls short of the threshold under European human rights law. Finally, the NPD's anti-constitutional—but not unconstitutional—character is examined, and a recent constitutional amendment to exclude extremist political parties from party financing is evaluated.

Unpacking Unconstitutionality: Examining the Varieties of Judicial Decisions

To study the efficacy of constitutional review, scholars have focused on a court’s willingness to declare legislation unconstitutional. This approach typically dichotomizes decisions as either invalidating or upholding legislation, ignoring the considerable variation in how a court can declare a law unconstitutional. Many courts can declare a law null and void, which takes immediate effect, or they can declare a law incompatible with the constitution, which leaves the law in effect until the legislature passes a replacement. Consequently, some rulings require immediate compliance while others delay compliance. I argue that the importance of public awareness for overcoming the threat of noncompliance affects how courts decide which type of decision to issue. Examining the German Federal Constitutional Court, I find evidence that the expected impact on public awareness influences the type of decision issued. These results have implications for the study of judicial politics in general and constitutional review in particular.

Germany’s New Militant Democracy Regime: National Democratic Party II and the German Federal Constitutional Court’s ‘Potentiality’ Criterion for Party Bans

Germany’s New Militant Democracy Regime: <i>National Democratic Party II</i> and the German Federal Constitutional Court’s ‘Potentiality’ Criterion for Party Bans