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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
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Copyright Page
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Preface
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Table of Contents
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Constitutional Principles for Europe*
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I. General Issues
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1. The Subject Matter
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2. National and Supranational Principles: On the Question of Transferability
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3. Constitutional Principles in View of Varying Sectoral Provisions
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II. Founding Principles of Supranational Authority
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1. Equal Liberty
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2. The Rule of Law
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3. Democracy
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a) Development and Basic Features
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b) The Principle of Democracy and the Institutional Structure
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c) Transparency, Participation, Deliberation and Flexibility
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d) Supranational Democracy: An Evaluation
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4. Solidarity
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III. Concluding Remarks
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The Emergence of European Constitutional Law
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I. Introduction
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II. Starting Point: The Case Law
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III. Fundamental Objections
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IV. A Functional Approach?
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V. The Case for Further Constitutionalization
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VI. The Role of the European Convention on Human Rights
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VII. Conclusions
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The Legal Position of Migrants – GermanReport
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Introduction: Who Qualifies as ‘Migrant’ in the German Context?
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1. The Structure of Legal Regulation of Migrant’s Status: the Emergence of a Multi-Level System of Migration Law
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1.1. Current Dynamics
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1.2. German Migration Laws, according to their Rank within the Legal Order
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1.2.1. Constitutional Law
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1.2.2. Parliamentary Legislation
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1.2.3. Rule-Making by the Federal Government
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1.2.4. Rule-Making by the Länder Governments
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2. Legal Conceptions Used in National Legislation: ‘Alien’ as the Basic Concept of German Migration Law
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2.1. Aliens
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2.2. Union Citizens
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2.3. Refugees
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2.4. Migrant Workers
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2.5. Illegal Residents
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3. Acquiring the Status of Migrant: a Plurality of Residence Permits
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3.1. The Types of Residence Permits Under the Residence Act
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3.2. Administrative Procedures and Legal Review
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3.3. The Main Groups of Migrants in Germany, according to their Legal Status
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3.3.1. Union Citizens and their Relatives
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3.3.2. Long-Term Residents and their Relatives
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3.3.3. Migrant Workers of Turkish Nationality and their Relatives
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3.3.4. Admission for Purposes of Employment
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3.3.5. Persons with Refugees Status or Other Forms of InternationalProtection
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3.3.6. Persons whose Deportation Is Temporarily Suspended (So-Called Toleration)
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3.3.7. Admission of Migrant Groups on the Basis of Political Discretion
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3.3.8. Ethnic Germans and their Relatives
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3.3.9. Undocumented Migrants
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4. Guarantees of Migrants’ Status: Graded Integration into the German System of Social and Political Rights
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4.1. Sources of Fundamental Rights Guarantees for Migrants
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4.2. Restrictions to Political and Social Rights
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4.2.1. Political Rights
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4.2.2. Freedom of Movement
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4.2.3. Access to the Welfare System
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4.3. The New Integration Policy
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5. The Migrant and the Employer: Immigration Policy from a Labor Market Perspective
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5.1. Alien’s Access to the Labor Market: Involvement of the Federal Agency for Labor
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5.2. The Employers’ Stance on Future Immigration Policy
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5.3. Undocumented Migrants and the Issue of Illegal Employment
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6. State Protective Measures: Graded Protection against Expulsion
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6.1. Expulsion and Deportation Decisions in German Law
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6.2. Supranational and International Sources for Protection against Expulsion
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Constitutional Referendum in Germany –Country Report
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I. Introduction
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II. Terminology
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III. Historical Overview
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1. The Experience of Weimar
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a) Options for a Referendum in the Constitution of Weimar
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b) Constitutional Referenda in the Praxis of Weimar
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2. The Decision of the Parliamentary Council
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IV. Constitutional Referendum and the Basic Law (GG)
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1. The Referendum in order to Change Internal Borders
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a) Genesis and Purpose of Art. 29 GG
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b) Elements of Direct Democracy in Art. 29 GG
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(1) The Referendum Pursuant to Art. 29 (2) GG
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(2) The Right to Initiate the Process of a New Delimitation – a Popular Initiative
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(3) The Advisory Referendum in Art. 29 (5) GG
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(4) The Anticipated Referendum
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2. The Referendum to Replace the Basic Law – Art. 146 GG42
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V. Constitutional Referendum in the Constitutions of the Länder50
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1. Dissolving of Parliament before the Expiry of a Legislative Term
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2. Initiation of Legislation / Petition for a Referendum /Referendum
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3. The Plea for Referendum
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4. Amendment of the Constitution
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E-Government – Country Report on Germany
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I. Introduction
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II. What Is e-Government?
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III. The Current Status of e-Government in Germany in an International Comparison
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IV. The Significance of e-Government within the Political Agenda
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V. Policy Initiatives on e-Government
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1. The “BundOnline2005” Initiative
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2. Media@Komm and Media@Komm-Transfer
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3. Deutschland-Online
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VI. Legal Implications of e-Government
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1. Electronic Communication in Administrative Procedures
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2. Admissibility of Electronic Form
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a) Opening Electronic Access
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b) Factual Access of Electronic Declarations
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3. Replacement of Written Form through Electronic Form
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4. Transmission Difficulties
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5. Summary
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VII. E-Government Applications in Practice
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1. ELSTER
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2. E-Procurement
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VIII. Executive Summary and Outlook
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Quangos – An Unknown Species in German Public Law? German Report on the RulemakingPower of Independent Administrative Agencies
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I. What Are Quangos and where Do They Exist?
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II. Are there Independent Administrative Agencies withRule-making Powers in Germany?
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1. Direct Administration
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a) Concept
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b) The Federal Authorities
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2. Indirect Administration
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a) Concept
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b) Corporate Bodies Under Public Law
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c) Public Law Institutions
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3. Maxims and Boundaries of Administrative Body Independisation
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a) Principles
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b) Constitutional Boundaries
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III. The Agency Approach in the European Community and the U.S.
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1. European Community Law
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2. United States Law
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IV. Concluding Remarks
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Progress and the Precautionary Principle in Administrative Law – Country Report on Germany
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I. Introduction
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II. The Concept of Precautionary Action
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1. Material Content and Limits of the Precautionary Principle in German Law
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2. The Limits of Precaution: the Residual Risk
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III. The Requirements for Precautionary Action in German Constitutional Law
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IV. The Requirements for Precautionary Action in German Statutory Law
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1. Conceptual Issues
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2. Relevant Rules of Administrative Procedure and Administrative Court Procedure relating to the Burden of Proof
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3. The Draft of a General Environmental Code
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4. The Federal Pollutants Control Act
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5. The Atomic Energy Act
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6. The Gene Technology Act
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7. The Environmental Impact Assessment Act
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8. Consumer Health Protection
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9. The Chemicals Act
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10. The Fight against Terrorism and Disaster Management
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11. Other Areas
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V. Consequences for the Precautionary Principle as Applied in Administrative Law
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1. The Phases of Risk Administration
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a) Risk Assessment
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b) Risk Management: Wide Margins of Appreciation and Discretion
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2. Specific Requirements of Risk Administration
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a) Requirement of Argumentation and Clear Determination
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b) Requirements of Proportionality and Risk Comparison
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c) Requirement of Establishing Accountability
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d) Requirement of Administrative Review
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VI. The Future
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Legal Means for Eliminating Corruption in the Public Service
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I. The Factual and Legal Context
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1. The Occurrence of Corruption in Germany – Spotlights and Statistics
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2. The Legal Framework and the Scope of this Report
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II. The Legal Mechanisms for the Fight against Corruption in the Public Service
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1. Rules Safeguarding Institutions
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a) Rules Safeguarding Public Administration
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(1) Criminal Law
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(2) Administrative Law
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b) Rules Safeguarding the Integrity of Political Decision-Making
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(1) General Rules of Criminal Law
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(2) Further Rules of Conduct for Politicians
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(3) Financing of Political Parties
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2. Rules Safeguarding Transactions
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3. The Investigation of Potential Corruption
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a) Investigating Authorities
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b) Procedures and Penalties
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III. Conclusion
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Characteristics of International Administration in Crisis Areas – A German Perspective
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I. Factual Background
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II. The Legal and Institutional Framework Under GermanLaw
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1. The 1994 Constitutional Court Ruling
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2. The 2005 Federal Law on Parliamentary Approval of International Deployment of German Armed Forces
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3. Institutional Setting and Action Plan “Civilian Crisis Prevention”
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III. The Legitimacy of International Administration in Crisis Areas Under Public International Law
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1. Political Assessment
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2. Academic Debate
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IV. Linkages to Development Co-operation
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V. Perspectives
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Constitutional Guarantees of Judicial Independence in Germany
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I. Introduction: The Legal Framework
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II. The Elements of Judicial Independence in Germany
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1. Substantive Independence
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a) Independence from the Legislature
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b) Independence from the Executive
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c) Independence within the Judiciary
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2. Structural Independence
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3. Personal Independence
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III. Appointment of Judges
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1. The Necessary Qualifications for Judicial Appointment
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2. The Selection and Appointment Process
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IV. Independence of Judges while in Office
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1. Judicial Tenure
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2. The Scope of Judges’ Authority and Powers
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3. Independence and Disciplinary Supervision
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4. The Financial Independence of Judges
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V. Dismissal and Transfer of Judges from Office
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1. Grounds of Dismissal
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2. The Body Authorized to Dismiss Judges and to Make Final Decisions on Disciplinary Measures
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VI. Conclusion
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List of Contributors
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