German Legislator Research Articles

German Legislators’ Conceptions of Democracy and Process Preferences: Results from a New Survey

ABSTRACT Democracy’s resilience arguably depends on political elites’ loyalty to the political system. How do elected representatives understand democracy and their own role in it? We present results of a survey conducted among German legislators in state parliaments and the Bundestag in 2022. We start by mapping the scope and content of consensus and dissent where principles of democracy and their institutionalisation are concerned and go on to hypothesise that congruence between one’s own conceptions of democracy and established institutions and practices is generally higher among established and government parties’ representatives but also dependent on ideological inclinations. Our results are overall reassuring, showing a relatively low level of polarisation in attitudes to democracy, and have implications for the study of political elites, for diagnoses of political polarisation in Germany and for the possibility and feasibility of institutional reform.

DO HARD CASES MAKE BAD LAW? THE EFFECTIVENESS OF GERMAN’S APPROACH TO STRENGTHEN FINANCIAL MARKET INTEGRITY

Background: As a direct consequence of the Wirecard scandal from 2020, which brought the work and, above all, the cooperation of the executive board, supervisory board, and external auditors into the focus of the legal discussion, the German legislator adapted the Stock Corporation Act and also the German Corporate Governance Code has been adapted. Executive board members of Wirecard have been subjected to a criminal investigation after reporting fake revenues and air bookings worth billions. The German Stock Exchange, the Federal Institute for Financial Services Supervision, the Financial Reporting Enforcement Panel, the auditing firm, and the Wirecard supervisory board were all criticized for failing to detect the problem earlier. Former Wirecard stockholders lost money, and lawsuits were filed seeking compensation from the statutory auditor, Wirecard AG, and former board members. Research purpose: Following the formal amendment of the law and the GCGC, the focus is now on the effectiveness of the law and the GCGC in practice. The purpose of this study is to assess whether the German solution to strengthening financial market integrity is effective. Research hypothesis: It is hypothesized that German corporate governance requires additional improvements and further reforms. Methods: The analysis of academic literature, journal and magazine articles, reports, and other relevant literature has enabled the author to empirically build the hypothesis of this document and to identify and address major issues that require further amendments in law as well as and additional studies. Conclusions: The reform of the German law has a substantial impact on the work of companies, its main bodies and statutory auditors. It is evident that certain provisions require modification, and further reforms are both expected and necessary to address the gaps. Aspects of trust, transparency, control and monitoring need to be in the focus of the legal discussion as well as the internationalization of stock corporations with the overarching goal to ensure financial market integrity and to regain trust in German companies.

От locatio operarum к contratto d’opera: возмездное оказание услуг в истории итальянского права

In the article are regarded three stages of services agreement formation in Italian law. Author demonstrates adaption of the Roman Law contract locatio-conductio in Middle Ages and Modern Period and steading forthcoming of differences characterizing this contract across European borders. The fi rst stage of services agreement codifi cation is revealed with the Italian Civil Code of 1865. In the article are explained causes of changes happened at the second stage of codifi cation and the main features characterizing services agreement at the modern Italian Civil Code of 1942. The conducted research shows that after infl uence of French and German legislators Italian scholars produced universal rules for conducting any operation. At the same moment, that rules does not exclude the necessity to divide services agreement from other contracts.

The ‘Total-Legalization’ of Cannabis in Germany: Legal Challenges and the EU Free Market Conundrum

Abstract The German government plans the ‘total-legalization’ of cannabis i.e. a state regulated market for recreational cannabis by 2024. Unlike Canada or Uruguay the German legislator plans to comply with the international treaty regime which strictly prohibits cannabis except for medical and scientific purposes. Concerning the equally prohibitive EU law the German government coalition follows a legal strategy of re-interpreting relevant provisions and exploiting legal loopholes. This article will outline this strategy and analyse the complex problems it raises under international and EU law. It will demonstrate that the German government has embarked on a risky endeavor as the international treaty regime as much as EU crime and drug policies give little room for legal maneuvers. Major issues such as the curbing of drug tourism and the compliance with free market rules remain widely unsolved.

German Trade Tax Structuring for Renewable Energy Components of Real Estate Transactions

In this article, the authors outline the relevant aspects of trade tax in connection with green energy components of real estate transactions and then describe some improvements that have recently been introduced by the German legislator in order to make the use of renewable energy components more attractive.

Politicians’ Social Welfare Criteria – an Experiment with German Legislators

Politicians’ Social Welfare Criteria – an Experiment with German Legislators

Politicians' Social Welfare Criteria: An Experiment with German Legislators

Politicians' Social Welfare Criteria: An Experiment with German Legislators

ALMAN HUKUKUNA GÖRE KASTEN İŞLENEN HAKSIZ FİİLDEN KAYNAKLI ALACAK NEDENİYLE İCRA TAKİBİNDE İŞÇİ ÜCRETİNİN HACZEDİLEMEZ KISMININ MAHKEME TARAFINDAN BELİRLENMESİ

İşçi ücretinin haczi konusu, Alman Medeni Usul Kanunu (deutsche Zivilprozessordnung; dZPO) m. 850 ve devamı hükümlerinde düzenlemektedir. dZPO m. 850c ise, işçi ücretinin haczedilemez miktarını ayrıntısıyla düzenlemektedir. dZPO m. 850c/1 hükmü şu şekildedir: "İş ücreti, ödendiği döneme bağlı olarak aylık 1.178,58 Avro, haftalık 271,24 Avro veya günlük 54,25 Avro tutarından daha fazla değil ise haczedilemez". Ancak bu hüküm, borçlunun veya alacaklının özel, bireysel ihtiyaçlarının söz konusu olduğu somut olaylarda hem borçlu hem de alacaklı açısından haksız sonuçlara, adaletsizliklere yol açabilir. Alman kanun koyucusu ortaya çıkacak bu haksız sonuçları, adaletsizlikleri göz önünde bulundurarak dZPO m. 850f hükmünü getirmiştir. dZPO m. 850f hükmüyle, dZPO m. 850c'nin genel düzenlemesiyle ortaya çıkabilecek sakıncalar, somut olaya uygun dengelemeyle (somut olay adaleti gerçekleştirilerek) ortadan kaldırılabilecektir. Çalışma konumuzu oluşturan dZPO m. 850f'nin 2. fıkrası, kasten işlenen haksız fiilden kaynaklı alacağın alacaklısı yararına, dZPO m. 850c'deki işçi ücretinin haczedilemez tutarının azaltılmasına imkan vermektedir. dZPO m. 850f/2 hükmü şu şekildedir: "Kasten işlenen haksız fiilden kaynaklı alacak nedeniyle icra takibi yapılırsa, icra mahkemesi alacaklının talebi üzerine iş ücretinin hazcedilebilir kısmını madde 850c'de öngörülen sınırlamaları dikkate almadan belirleyebilir; fakat borçluya gerekli geçimini ve devam eden kanuni nafaka yükümlülüklerine yerine getirmek için gerekli olan kadarı bırakılmalıdır". Çalışmamızda işte dZPO 850f/2 hükmü incelenmeye çalışılacaktır.

Co-Authorship in Russia and Germany: General and Special

The paper analyzes the provisions of Russian and German legislation on the regulation of co-authorship relations. The study revealed the following features. By virtue of the Civil Code of the Russian Federation, the joint work of several persons can be carried out in the mode of both separate and inseparable co-authorship, including intermediate modes allocated doctrinally. The German legislator names only inseparable co-authorship as a basis for the appearance of co-authors, all other cases are covered by the regime of linked works. Co-authorship can only arise if there is a joint creative work, which implies the understanding of the co-authors that they work together (subjective criterion), as well as a single period of time, being at the same «stage of production», the existence of an agreement between the co-authors, etc. (objective criterion). German jurisprudence clarifies: co-authorship is not excluded in the case of incremental contributions, but it assumes that each participant has made his own creative contribution, subject to a common idea. It is not required that the co-authors simultaneously participate in all stages of the development of the work. Accordingly, the so-called vertical division of labor is possible, in which the co-authors rely on already created preliminary versions of the work, as well as the horizontal division of labor, when the co-authors simultaneously create separate parts of the work, which then merge into a single work. The presumption in Russia of equal contribution of co-authors to the creation of a common work is applied in Germany on a subsidiary basis, if it is objectively impossible to determine this contribution. The main regulators of the rights of co-authors (authors) in Russia and Germany are the law and the contract, sometimes a court decision. The use of a work created by co-authors is carried out jointly, taking into account the principle of good faith, which is explicitly present in German law and follows from a systemic interpretation of the Civil Code of the Russian Federation.

Tied Agents within the ECSPR Regime

The European Crowdfunding Service Provider Regime allows the intermediation of securities, loans and other admitted instruments for crowdfunding purposes up to five million Euro. Crowdfunding offers above five million Euro continue to be subject to national crowdfunding regimes, which may be regulated under MiFID.
 The authors discuss how existing MiFID licenses can be used in parallel to a license under ECSPR, with a focus on tied agents who operate under a so-called liability umbrella (investment firm or credit institution) holding a MiFID license.
 In Germany, the law implementing MiFID states that tied agents can operate “solely [in the name,] for the account and under the liability of” an investment firm or credit institution acting as liability umbrella. This raises the question, whether a tied agent can hold a license under ECSPR itself at the same time. However, the authors argue that both MiFID and ECSPR as well as the intent of the German legislator provide for the fact that one can hold an ECSPR authorization and at the same time be appointed as tied agent of a MiFID investment firm or credit institution.

Legal status of “unaffiliated” strikes in Germany

The article examines some issues in determining the legal status of 'unaffiliated' strikes in Germany. The German right to strike is extremely limited. Under German case law, 'unaffiliated' or 'wild' strikes — work stoppages not involving trade unions — are prohibited in Germany. The European Social Charter allows such work stoppages, and the Committee of Experts urges the German legislator to take into account the interests of workers who have joined together to defend their collective rights and take part in a strike even without the involvement of trade unions. Through long negotiations and attempts by workers to defend their professional interests the first court decisions on the relative legality of such strikes and the revision of the precedents of the Federal Labour Court of the last century are emerging.

“The High Mass of Democracy” —Why Germany Remains Aloof to the Idea of Electronic Voting

Despite the increase in citizens' use of absentee voting and examples from other countries, so far Germany remains aloof to the idea of introducing electronic voting as another form of convenience voting to its political elections. Apart from intra-party elections, no changes in the direction of electronic voting are considered in the current debate about an electoral reform. What are the reasons for the German aloofness toward electronic voting? In this article, we focus on party positions and institutional, as well as legal considerations, to provide a comprehensive answer to this question. From a normative point of view, the question of electronic voting is inextricably linked to the concept of electoral integrity, as the latter is pivotal to determine a democratic mode to select trusted representatives. Therefore, this paper first discusses the opportunities and risks for electoral integrity associated with electronic voting. Based on these considerations, we then explore reasons for the hesitancy of German legislators. To this end, we conducted expert interviews with German MPs and considered open-source documents related to the German debate about electronic voting. Our paper contributes to research on party positions on electronic voting, by relating the topic to questions about electoral integrity and considering political parties' reasoning, as well as legal and institutional constraints in the German context. We find that the main reasons provided by party representatives circle around concerns about transparency, security, accuracy, and the value of the voting act itself.

Termination of Criminal Prosecution followed by the Imposition of Duties and Regulations on the Accused as an Alternative Way to Resolve a Criminal Law Conflict in the German Criminal Procedure

Given the Russian tendency to expand the scope of non-rehabilitating grounds for termination of criminal prosecution/case, the paper examines the legal regulation and law enforcement practice of termination of criminal prosecution with the imposition of various duties and regulations to the accused as one of the alternative ways to resolve a criminal conflict within the framework of the German criminal procedure. The German criminal procedure has a lot in common with the Russian one; both are formed on the principle of lawfulness, or legality. At present, both Russian and German legislators are looking for alternative ways, in addition to procedural coercion or the threat of its use, to resolve the conflict in the process, which contribute to the humanization of criminal legislation, reducing the number of convicts, procedural economy. One of such alternatives in the German criminal procedure is the termination of criminal prosecution followed by the imposition of duties and regulations on the accused. The possibility of termination of criminal prosecution on this basis is provided not only in the Criminal Procedure Code of the Federal Republic of Germany, but also in various sectoral laws, for example, the German Narcotics Law, the German Youth Court Law. An analysis of the statistical data of the Federal Statistical Office in Germany from 2016 to 2020 on the termination of criminal prosecution followed by the imposition of certain duties and regulations to the accused shows the priorities of the German law enforcement officer in terms of choosing individual duties assigned to the accused and, if properly performed, entailing the termination of criminal prosecution. Despite the wide choice of duties and regulations, the law enforcement officer mainly uses the few duties imposed on the accused in order to terminate criminal prosecution. However, the very possibility of a wide choice of potentially possible duties and regulations indicates an individualized approach to the participants of the criminal law conflict in the German criminal procedure, which makes it possible to take into account the interests of all parties to the conflict.

The German transposition of Article 17 of the Copyright DSM Directive and its ‘presumed legal use’: incompatible with EU law or a model for balancing fundamental rights in the age of upload filters?

ABSTRACT • With its Copyright Service Provider Act, the German legislator implemented its final version of Article 17 CDSMD into national law as of 1 August 2021. After the compatibility with European Union (EU) law was rightly doubted in previous drafts, the situation in the final implementation is now different. With the introduction of ‘presumed legal use’, a mechanism was found that is to locate somewhere between a presumption and an exception or limitation. • The classification is of utmost practical relevance because this construction is found in neither Article 17 CDSMD nor Article 5 InfoSoc Directive.1Therefore, if the mechanism of ‘presumed legal use’ is considered as an exception or limitation, compatibility with EU law can hardly be justified. This article explains the German regulatory mechanism and the considerations behind it and presents arguments for and against compatibility with European law. • The thesis is that the mechanism in its current form is unlikely to meet the requirements under EU law. At the same time, there are good reasons for such an implementation, as it meets the challenges for a balance between fundamental rights probably in the best possible way under the current EU legislative framework.

The digital “militant democracy”: An analysis of platform regulation in Germany and at EU level

Germany introduced with the Network Enforcement Act in 2017 and the Interstate Media Treaty in 2021 a novel approach to platform regulation which goes further than in many other jurisdictions that have few or no or comparable measures in place. The new provisions could be seen as either ambitious or as going too far in meddling with the workings of private online actors. This paper examines the relevant measures in light of the notion of a “militant democracy”. Germany has been classified as a militant, democratic state given how its constitution and regulatory frameworks respond to anti-democratic threats. A link can be made between the objective of militant democracy and the German approach to hate speech. The foundation for both is the protection of human dignity, which constitutes an absolute value under the German constitutional law and may not be balanced with other fundamental rights. Examining the Network Enforcement Act and the Interstate Media Treaty, this paper finds that the classification of Germany as a militant democracy holds true in an online context. These measures are direct responses to novel threats to a fruitful public discourse, to the human dignity of individuals and ultimately to the democratic system at large. In its response to these threats, the German legislator adopts a divided approach towards online platforms, regarding the latter both as a potential ‘breeding ground’ for online hate, as well as potential allies when it comes to actions against infringements by individuals. This paper will discuss the nuances and challenges of the German approach and draw a comparison with the relevant provisions of current and future EU law, such as the E-Commerce Directive and the Digital Services Act. Despite sharing many of the same objectives, points of (potential) collision between the German and EU approaches are identified. Ultimately, both legislators have identified the need to act against online hate and online threats to a democracy, including a need to provide a stricter framework for platforms. The legislative measures discussed in this paper are some of the first instruments which pursue these goals in the field of platform regulation and oftentimes precision is still lacking in the formulation of relevant provisions.

Of Carbon Budgets, Factual Uncertainties, and Intergenerational Equity–The German Constitutional Court’s Climate Decision

AbstractThe German Federal Constitutional Court’s climate decision provides a nuanced acknowledgment of climate change’s constitutional relevance. In this Article, the author critically assesses how the Court innovatively sought to capture the intergenerational equity dimension of climate mitigation through a combination of negative and positive duties stemming from constitutional law. The Article demonstrates how despite progressive findings on intergenerational equity and the innovative invocation of negative duties, the operative part of the decision turned out to be rather limited. Because of remaining uncertainties about the allowable national carbon budget, the Court was unable to require the legislator to enact a stricter reduction path. The author argues that the Court could have narrowed remaining uncertainties, without engaging in judicial activism, by adopting an international and constitutional minimum approach to calculating the national budget and by adjusting the burden of proof. Finally, the Article highlights how the German legislator, by going beyond what was required by the Court “trapped itself” on an ambitious reduction path, opening opportunities for future constitutional complaints.

Open Source Software Library for Thermo-Hydro-Mechanical Coupled Processes in Python

Abstract. This contributed poster shows the current state of development of a finite element implementation as part of an open source software library (OSSL) for the simulation of thermo-hydro-mechanical (THM) coupled processes. The reliable handling of numerical methods is fundamental for the understanding of scientific interrelationships and thus, a crucial prerequisite for modeling THM scenarios, as well as for the understanding and evaluation of preliminary safety investigations during the site selection process for the storage of high-level radioactive waste. There are several motivations for developing an in-house OSSL, which will allow us to: Build capacity and maintenance within BASE (Federal Office for the Safety of Nuclear Waste Management) regarding issues of the numerical modeling of safety-relevant aspects on the long-term safety analyses specified by the German legislator in the site selection process. Develop a collection of known benchmarks and evaluation examples for the comparison of different software tools, applying a uniform interface to simplify the use of the available highly specialized open source codes. Diversify the testing possibilities regarding the preliminary safety investigations by means of our own, independent modeling software. Document basic THM scenarios for internal or, if necessary, public technical training, e.g., density-driven fluid flow (Fig. 1), convergence in salt, temperature propagation in the repository area, crack development, diffusive or advective mass transport. Ensure transparency and, in principle, might allow for appropriately proven-quality (validated) and documented simulation tools for the public regarding questions about the preliminary safety investigations during the site selection process. The development of the OSSL is mainly based on the scripting language Python, which allows the necessary flexibility for the diverse fields of application and at the same time enables maximum transparency for all aspects of the source code. To ensure the high quality of the software, state of the art development tools are used (e.g., version control, automated tests, and documentation generation). Figure 1 shows our preliminary simulation results of the so-called Elder problem (Elder, 1967), a popular standard benchmark for thermo-hydrogeological coupling in which fluid motion in a porous medium is driven by buoyancy forces.

Influence of the COVID-19 pandemic on the number and duration of care counselling provided by outpatient care services

HintergrundAls Reaktion auf die COVID-19-Pandemie hat der deutsche Gesetzgeber die Rahmenbedingungen für die Pflegeberatung nach § 37 Abs. 3 SGB XI geändert. Die hauptsächlich durch ambulante Pflegedienste erbrachte Pflegeberatung muss (befristet bis zum 31.12.2021) nicht mehr in der Häuslichkeit der Pflegebedürftigen erfolgen, sondern ist auch per Telefon oder online möglich. In 2020 war zudem die bestehende Verpflichtung zur Inanspruchnahme einer Pflegeberatung für Pflegegeldbeziehende für einige Monate ausgesetzt.ZielBeschrieben wird der Einfluss der COVID-19-Pandemie auf Anzahl und Dauer der von ambulanten Pflegediensten erbrachten Pflegeberatungen nach § 37 Abs. 3 SGB XI. Ein besonderes Augenmerk liegt auf der Frage, wie sich die Aussetzung der Beratungsverpflichtung auf die Inanspruchnahme von Pflegeberatungen ausgewirkt hat.MethodeSekundäranalyse von über 43.000 Datensätzen der BARMER Pflegekasse in Bayern, die ursprünglich zum Zwecke der Abrechnung gesammelt und gespeichert wurden. Auswertung in erster Linie mittels Zeitreihenanalysen und anderer deskriptiver Statistiken. Zusätzlich wurde die Korrelation zwischen der wöchentlichen Anzahl der Pflegeberatungen und den dem Robert Koch-Institut gemeldeten COVID-19-Fälle in Bayern ermittelt.ErgebnisseEnde März bis Mitte April 2020 verringerte sich die Zahl der Beratungen gegenüber Februar 2020 um fast 80 %. Für diesen Einbruch der Beratungszahlen war die Sorge vor einer Ansteckung mit SARS-CoV-2 entscheidend. Ermöglicht wurde der Rückgang aber zusätzlich durch die am 27.03.2020 beschlossene Aussetzung der Beratungspflicht. Die Aussetzung der Beratungspflicht allein hat in Bayern zu einem Rückgang zwischen 44 und 49 % geführt. Die vorliegenden Daten zeigen ferner, dass telefonische Pflegeberatungen im Durchschnitt kürzer sind als Präsenzberatungen.SchlussfolgerungenDie vorliegenden Daten deuten darauf hin, dass nur rund die Hälfte der Pflegeberatungen von Pflegebedürftigen in Anspruch genommen würde, wenn die in § 37 Abs. 3 verankerte Beratungsverpflichtung dauerhaft wegfiele. Außerdem enthalten sie Hinweise darauf, dass Beratungen bei einer Abrechnung nach Zeit im Durchschnitt kürzer sind als bei einer Abrechnung mittels Einsatzpauschalen.

Excluded by crisis management? Legislative hyperactivity in post‐2015 Germany

AbstractThis article examines the legislative measures taken by Germany since 2014 to manage the “refugee crisis” and analyses the potential effects on the rights and the well‐being of asylum seekers and persons with protection needs at large. By taking a closer look at the reasoning given in the respective legislative documents we will show the link between the recent changes in the national asylum and migration law and the underlying migration management framework. The article concludes that Germany has seen a shift from a management to a securitization approach, the latter entailing a special emphasis on deportation (“return turn”) rather than focusing on accommodation and integration of those seeking protection. Acting in a mere “crisis mode”, the German legislator has implemented an exclusion paradigm that incrementally substituted the prior inclusive policies over time.

La pubblica Amministrazione in Germania nell’era dell’Intelligenza Artificiale: procedimenti completamente automatizzati e decisioni amministrative robotiche

Fully automated administration has recently entered the general law on administrative procedure in Germany with the introduction of § 35a VwVfG as part of a comprehensive reform of digital administration. The general rule on the fully automated administrative acts has been introduced with a certain caution by the German legislator, who has excluded its application in case of discretionary decisions, however, there is room for a broader application of the provision. As is now known, the many advantages of total automation also conceal dangers not only for the protection of the citizen but also for the Administration itself. The procedure then becomes the place to achieve a digitization compatible with the guarantees of the rule of law, confirming the functionalist approach and the attention to protection that characterize the German legal system.