Recent Trends in German and European Constitutional Law - German Reports Presented to the XVIIth International Congress on Comparative Law, Utrecht, 16 to 22 July 2006

Title Page

Copyright Page

Preface

Table of Contents

Constitutional Principles for Europe*

I. General Issues

1. The Subject Matter

2. National and Supranational Principles: On the Question of Transferability

3. Constitutional Principles in View of Varying Sectoral Provisions

II. Founding Principles of Supranational Authority

1. Equal Liberty

2. The Rule of Law

3. Democracy

a) Development and Basic Features

b) The Principle of Democracy and the Institutional Structure

c) Transparency, Participation, Deliberation and Flexibility

d) Supranational Democracy: An Evaluation

4. Solidarity

III. Concluding Remarks

The Emergence of European Constitutional Law

I. Introduction

II. Starting Point: The Case Law

III. Fundamental Objections

IV. A Functional Approach?

V. The Case for Further Constitutionalization

VI. The Role of the European Convention on Human Rights

VII. Conclusions

The Legal Position of Migrants – GermanReport

Introduction: Who Qualifies as ‘Migrant’ in the German Context?

1. The Structure of Legal Regulation of Migrant’s Status: the Emergence of a Multi-Level System of Migration Law

1.1. Current Dynamics

1.2. German Migration Laws, according to their Rank within the Legal Order

1.2.1. Constitutional Law

1.2.2. Parliamentary Legislation

1.2.3. Rule-Making by the Federal Government

1.2.4. Rule-Making by the Länder Governments

2. Legal Conceptions Used in National Legislation: ‘Alien’ as the Basic Concept of German Migration Law

2.1. Aliens

2.2. Union Citizens

2.3. Refugees

2.4. Migrant Workers

2.5. Illegal Residents

3. Acquiring the Status of Migrant: a Plurality of Residence Permits

3.1. The Types of Residence Permits Under the Residence Act

3.2. Administrative Procedures and Legal Review

3.3. The Main Groups of Migrants in Germany, according to their Legal Status

3.3.1. Union Citizens and their Relatives

3.3.2. Long-Term Residents and their Relatives

3.3.3. Migrant Workers of Turkish Nationality and their Relatives

3.3.4. Admission for Purposes of Employment

3.3.5. Persons with Refugees Status or Other Forms of InternationalProtection

3.3.6. Persons whose Deportation Is Temporarily Suspended (So-Called Toleration)

3.3.7. Admission of Migrant Groups on the Basis of Political Discretion

3.3.8. Ethnic Germans and their Relatives

3.3.9. Undocumented Migrants

4. Guarantees of Migrants’ Status: Graded Integration into the German System of Social and Political Rights

4.1. Sources of Fundamental Rights Guarantees for Migrants

4.2. Restrictions to Political and Social Rights

4.2.1. Political Rights

4.2.2. Freedom of Movement

4.2.3. Access to the Welfare System

4.3. The New Integration Policy

5. The Migrant and the Employer: Immigration Policy from a Labor Market Perspective

5.1. Alien’s Access to the Labor Market: Involvement of the Federal Agency for Labor

5.2. The Employers’ Stance on Future Immigration Policy

5.3. Undocumented Migrants and the Issue of Illegal Employment

6. State Protective Measures: Graded Protection against Expulsion

6.1. Expulsion and Deportation Decisions in German Law

6.2. Supranational and International Sources for Protection against Expulsion

Constitutional Referendum in Germany –Country Report

I. Introduction

II. Terminology

III. Historical Overview

1. The Experience of Weimar

a) Options for a Referendum in the Constitution of Weimar

b) Constitutional Referenda in the Praxis of Weimar

2. The Decision of the Parliamentary Council

IV. Constitutional Referendum and the Basic Law (GG)

1. The Referendum in order to Change Internal Borders

a) Genesis and Purpose of Art. 29 GG

b) Elements of Direct Democracy in Art. 29 GG

(1) The Referendum Pursuant to Art. 29 (2) GG

(2) The Right to Initiate the Process of a New Delimitation – a Popular Initiative

(3) The Advisory Referendum in Art. 29 (5) GG

(4) The Anticipated Referendum

2. The Referendum to Replace the Basic Law – Art. 146 GG42

V. Constitutional Referendum in the Constitutions of the Länder50

1. Dissolving of Parliament before the Expiry of a Legislative Term

2. Initiation of Legislation / Petition for a Referendum /Referendum

3. The Plea for Referendum

4. Amendment of the Constitution

E-Government – Country Report on Germany

I. Introduction

II. What Is e-Government?

III. The Current Status of e-Government in Germany in an International Comparison

IV. The Significance of e-Government within the Political Agenda

V. Policy Initiatives on e-Government

1. The “BundOnline2005” Initiative

2. Media@Komm and Media@Komm-Transfer

3. Deutschland-Online

VI. Legal Implications of e-Government

1. Electronic Communication in Administrative Procedures

2. Admissibility of Electronic Form

a) Opening Electronic Access

b) Factual Access of Electronic Declarations

3. Replacement of Written Form through Electronic Form

4. Transmission Difficulties

5. Summary

VII. E-Government Applications in Practice

1. ELSTER

2. E-Procurement

VIII. Executive Summary and Outlook

Quangos – An Unknown Species in German Public Law? German Report on the RulemakingPower of Independent Administrative Agencies

I. What Are Quangos and where Do They Exist?

II. Are there Independent Administrative Agencies withRule-making Powers in Germany?

1. Direct Administration

a) Concept

b) The Federal Authorities

2. Indirect Administration

a) Concept

b) Corporate Bodies Under Public Law

c) Public Law Institutions

3. Maxims and Boundaries of Administrative Body Independisation

a) Principles

b) Constitutional Boundaries

III. The Agency Approach in the European Community and the U.S.

1. European Community Law

2. United States Law

IV. Concluding Remarks

Progress and the Precautionary Principle in Administrative Law – Country Report on Germany

I. Introduction

II. The Concept of Precautionary Action

1. Material Content and Limits of the Precautionary Principle in German Law

2. The Limits of Precaution: the Residual Risk

III. The Requirements for Precautionary Action in German Constitutional Law

IV. The Requirements for Precautionary Action in German Statutory Law

1. Conceptual Issues

2. Relevant Rules of Administrative Procedure and Administrative Court Procedure relating to the Burden of Proof

3. The Draft of a General Environmental Code

4. The Federal Pollutants Control Act

5. The Atomic Energy Act

6. The Gene Technology Act

7. The Environmental Impact Assessment Act

8. Consumer Health Protection

9. The Chemicals Act

10. The Fight against Terrorism and Disaster Management

11. Other Areas

V. Consequences for the Precautionary Principle as Applied in Administrative Law

1. The Phases of Risk Administration

a) Risk Assessment

b) Risk Management: Wide Margins of Appreciation and Discretion

2. Specific Requirements of Risk Administration

a) Requirement of Argumentation and Clear Determination

b) Requirements of Proportionality and Risk Comparison

c) Requirement of Establishing Accountability

d) Requirement of Administrative Review

VI. The Future

Legal Means for Eliminating Corruption in the Public Service

I. The Factual and Legal Context

1. The Occurrence of Corruption in Germany – Spotlights and Statistics

2. The Legal Framework and the Scope of this Report

II. The Legal Mechanisms for the Fight against Corruption in the Public Service

1. Rules Safeguarding Institutions

a) Rules Safeguarding Public Administration

(1) Criminal Law

(2) Administrative Law

b) Rules Safeguarding the Integrity of Political Decision-Making

(1) General Rules of Criminal Law

(2) Further Rules of Conduct for Politicians

(3) Financing of Political Parties

2. Rules Safeguarding Transactions

3. The Investigation of Potential Corruption

a) Investigating Authorities

b) Procedures and Penalties

III. Conclusion

Characteristics of International Administration in Crisis Areas – A German Perspective

I. Factual Background

II. The Legal and Institutional Framework Under GermanLaw

1. The 1994 Constitutional Court Ruling

2. The 2005 Federal Law on Parliamentary Approval of International Deployment of German Armed Forces

3. Institutional Setting and Action Plan “Civilian Crisis Prevention”

III. The Legitimacy of International Administration in Crisis Areas Under Public International Law

1. Political Assessment

2. Academic Debate

IV. Linkages to Development Co-operation

V. Perspectives

Constitutional Guarantees of Judicial Independence in Germany

I. Introduction: The Legal Framework

II. The Elements of Judicial Independence in Germany

1. Substantive Independence

a) Independence from the Legislature

b) Independence from the Executive

c) Independence within the Judiciary

2. Structural Independence

3. Personal Independence

III. Appointment of Judges

1. The Necessary Qualifications for Judicial Appointment

2. The Selection and Appointment Process

IV. Independence of Judges while in Office

1. Judicial Tenure

2. The Scope of Judges’ Authority and Powers

3. Independence and Disciplinary Supervision

4. The Financial Independence of Judges

V. Dismissal and Transfer of Judges from Office

1. Grounds of Dismissal

2. The Body Authorized to Dismiss Judges and to Make Final Decisions on Disciplinary Measures

VI. Conclusion

List of Contributors