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Results in Journal Archiv des öffentlichen Rechts: 854

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Sebastian Müller-Franken
Published: 1 January 2017
Archiv des öffentlichen Rechts, Volume 142, pp 276-295; https://doi.org/10.1628/000389117x14956127748034

Abstract:
The article shows that since the 1930s governments around the world have tried to neutralize constitutional courts for the purpose of limiting the constitutional review of their legislation. One of the most discussed examples for suchlike ambitions was the approach of the Dollfuß-government in Austria in 1933. A more recent and quite similar example is the situation in Poland, in which the Kaczyński-government has passed bills through parliament to incapacitate the work of the court. In regard to these developments, there have been numerous discussions about how to secure the court's ability to work. Meanwhile a consensus has been formed that those laws are contrary to common European standards of constitutional law as they contradict to the supremacy of the constitution as an element of the rule of law. Contrary to the claim made by the acting governments are those laws not justified by the principle of democracy, quite the reverse they object to it. The real problem of these cases is not a matter of substantive law but rather a matter of how to deal with laws that are supposed to be unconstitutional in an ongoing proceeding. Because even if the legal system of a country follows the theory of nutility, there is no certainty whether the government will not change the constitutional process law in conflict with its constitutional court and will switch to the theory of voidability. Therefore, these cases show that the validity of the constitution depends on extralegal circumstances as the willingness of the government to follow the rules of the constitution; but for this willingness no guarantee exists. Finally, the author concludes that the success of laws trying to neutralize constitutional courts rely on the people living under the constitution which preservation by its constitutional court is at stake.
Martin Kment
Published: 1 January 2017
Archiv des öffentlichen Rechts, Volume 142, pp 247-275; https://doi.org/10.1628/000389117x14956127748016

Abstract:
Experiences of the last twenty years have shown, that it has become more and more difficult to realize complex infrastructure projects, because environmental requirements, in particular, have increased. Therefore, the administrative decision process often has been divided in many sections to simplify the administrative procedure, and section building ("Abschnittsbildung") has evolved into a common and vital procedural tool of infrastructure law. The German Federal Administrative Court has developed manifold rules concerning section building to ensure that a fragmentation of the administrative procedure does not result in legal deficits, especially deficits of legal protection. This article has analysed and systematised this jurisdiction. It has shown, that section building in administrative procedures must keep an exception, which always needs to be justified. Furthermore, section building is not allowed without consideration of the overall project and should not lead into a useless project torso. Thus, in some areas of infrastructure law (for example when public roads or highways are built) each section of the overall project has to fulfill a self-contained function and has to fit into the existing infrastructure. Apart from that section building bears special legal phenomenons, for example binding intermediate results ("fixed-points"; "Zwangspunkte"), which arise when one section of the overall project is finished and the next section has to begin where the former one has ended. These binding intermediate results have significant influence on European environmental directives. They reduce the number of main alternatives, which developers have to study, and downsize the focus of the assessment of the effects of the projects on the environment.
Markus Möstl
Published: 1 January 2017
Archiv des öffentlichen Rechts, Volume 142, pp 175-246; https://doi.org/10.1628/000389117x14956127748007

Abstract:
The refugee crisis 2015/16 led to a temporary breakdown of the European border regime (Schengen) and asylum system (Dublin). Hundreds of thousands of refugees were irregularly "waved through" to Germany which – under normal Dublin rules – would not have been responsible for most of those refugees. The German government tolerated this situation and left provisions contained in its domestic law unapplied according to which asylum seekers who have come through safe third countries must be denied entry at its borders (Art. 16a Abs. 2 GG, §18 Abs. 2 Nr. 1 AsylG). The Bavarian government asked the federal government to change this practice and even threatened legal proceedings before the constitutional court. Later it dropped that threat after the number of refugees had considerably gone down as a result of the closure of the "West Balkan route" and the EU-Turkey agreement. This article examines the constitutional duties of the federal government in situations like the one which arose during the refugee crisis 2015/16. It develops the following theses: 1. The federal government has a general constitutional duty to provide for effective border and immigration control which – in our case – is underlined and specified by Art. 16a Abs. 2 GG (no right of asylum for refugees who have come through safe third countries). Laws which serve to fulfil this duty, like §18 Abs. 2 Nr. 1 AsylG (denial of entry for asylum seekers who have come through safe third countries), must, as a matter of principle, not be left unapplied in a structural and enduring manner. 2. In a situation in which the functioning of the European border regime and asylum system is severely impaired, the Member State has, under European law (Art. 72 TFEU, Art. 4 [2] TEU), a right and, under constitutional law, a duty to fulfil its obligations as outlined in (1), in particular by temporarily applying the necessary measures at its own borders (including the enforcement of denials of entry), until a sufficient degree of functioning of the European border regime and asylum system has been reestablished. 3. The duty of the federal government to provide for effective border and immigration control is a duty which also serves to protect the interests of the German Länder, which, under German constitutional law, are states that, as far as the fulfillment of necessary state functions at their borders is concerned, have no competences of their own, but rely entirely on the federal state. Severe neglect of this duty by the federal government can, as a result, violate constitutional rights of a Land.
Sara Dietz
Published: 1 January 2017
Archiv des öffentlichen Rechts, Volume 142, pp 78-132; https://doi.org/10.1628/000389117x14894104852726

Abstract:
The relationship between the German Federal Constitutional Court and the CJEU has been constantly reformulated and reshaped since the inception of the European Union. As Karlsruhe is not willing to accept the unconditional supremacy of EU Law, it has developed constitutional thresholds concerning the application of EU Law in the national legal order. Starting with its Solange I and Solange II case law, the Constitutional Court held that EU Law and the jurisprudence of the CJEU have to provide for a certain level of fundamental rights' protection, which is required as a minimum by the German Constitution. It is the task of the CJEU to guarantee the protection of fundamental rights throughout the EU in every single case, while the Federal Constitutional Court would, in collaboration with the CJEU, restrict itself to only ensuring the general compliance with minimum requirements in fundamental rights' protection. Another constraint for the applicability of EU Law in the national legal order is found in the so called ultra vires review. The Federal Constitutional Court asserts the right to declare EU legislation not applicable, if it exceeds the competence of the EU in a manifest way (according to the Honeywell criteria). In its Lisbon decision, the German Constitutional Court formulated its third tool of constitutional judicial control over EU law: the identity control. While at first it was assumed that this was only a theoretical assertion of national limits to EU law, the Court finally activated this control method for the first time in its Identity Control I decision in December 2015. The Court asserted its function to review sovereign acts determined by Union law if this was indispensable to protect the constitutional identity guaranteed by Art. 79 para. 3 of the Basic Law (GG). Against this background, the article analyses the procedural and substantive requirements of this new constitutional control tool and contrasts it with the Solange II and ultra vires review. It suggests that the new identity control is not a re-shaped form of the former fundamental rights control and cannot be seen as a Solange III. This is because the Constitutional Court, by way of identity review, guarantees, unconditionally and in any individual case – not only generally – the protection of fundamental rights that is indispensable according to Art. 23 para. 1 sentence 3 in conjunction with Art. 79 para. 3 and Art. 1 para. 1 GG. However, the hypothesis is put forward that ultra vires control is only a special form of identity review. The former is also enshrined in Art. 23 para. 1 sentence 3 in conjunction with Art. 79 para. 3 GG and is justified by the mandatory requirements concerning democratic legitimacy and the rule of law posed in Art. 79 para. 3 GG. The criteria formulated in the Honeywell decision by the Constitutional Court can therefore also be derived from the substantive content of constitutional identity. However, the ultra vires control should nevertheless keep its role as a separate review method. It formulates the specific requirements set by the identity control in the area of transgression of competences and is therefore more easily applicable for constitutional judicial practice. The last part of the paper examines the latest decision by the Federal Constitutional Court dealing with the question of restricting the precedence of Union law due to constitutional thresholds, namely the OMT-Case. Unexpectedly, the court addresses the dogmatic question of the relationship between ultra vires control and identity review and the decision confirms the findings and conclusions in this article in essential parts. Both the OMT and the Identity Control I decisions are milestones in shaping the relationship between the European and the national legal order, which have, however, in the present cases not provoked a clash between the CJEU and the Federal Constitutional Court. Yet, it is still for the future constitutional court practice to show, if these assertions of national judicial control will suffice to keep the established cooperation between the CJEU and the Federal Constitutional Court.
Published: 1 January 2017
Archiv des öffentlichen Rechts, Volume 142; https://doi.org/10.1628/000389117x14894104852681

Abstract:
This article analyses the requirement of parliamentary approval for the deployment of armed forces under the provisions of the Basic Law that concern defence. It discusses continuity and change in its constitutional foundations and its doctrinal shape in light of the Federal Constitutional Court's recent Libya judgment of September 2015 and the reform proposals for the Parliamentary Participation Act of 18 March 2005. Reading the case law comprehensively, one can see that the requirement of parliamentary approval fulfils a 'double compensatory function'. At the outset, in the AWACS/Somalia judgment of 1994, the Federal Constitutional Court developed the requirement of parliamentary approval for the deployment of armed forces in order to keep the balance between relevant executive and legislative powers. It was intended to compensate for the broad executive powers in the progressive development of international treaties. In part, this function has been accomplished by the ensuing parliamentary practice at least for the time being. Today, the requirement of parliamentary approval essentially fulfils a 'compensatory' function of a different kind: The requirement to involve the parliament particularly compensates for the broad powers to deploy armed forces within systems of collective security. Substantially, the decision on deploying armed forces is rather underdetermined and this situation creates the need for a more demanding procedure and the involvement of parliament. Beyond its constitutional foundations, the evolution of the requirement of parliamentary approval also affects its doctrinal shape. Originally, the requirement of parliamentary approval for the deployment of armed forces was accorded a doctrinal special status. This special status can be explained by its unique function in coping with the epochal change of 1990. In later case law, and on the basis of parliamentary practice, this special status has been attenuated. The Federal Constitutional Court has gradually integrated the requirement of parliamentary approval for the deployment of armed forces into the general constitutional doctrines of the rule of law and democracy, balance of powers and the theory of 'legislative reservation' (Wesentlichkeitstheorie). This development is not only of theoretical interest, but is relevant for the question of which situation constitutes an 'involvement in armed operation' and triggers the application of the constitutive requirement of parliamentary approval. On the one hand, the Libya judgment, at least in part, questions the significance of the requirement of parliamentary approval for the rule of law and democracy. On the other hand, the judgment also values the role of the parliament and follows the general trend of including the requirement of parliamentary approval for the deployment of armed forces into the theory of 'legislative reservation' and the general constitutional balance of power doctrine.
Wolfgang Hoffmann-Riem
Published: 1 January 2017
Archiv des öffentlichen Rechts, Volume 142; https://doi.org/10.1628/000389117x14894104852645

Abstract:
In connection with digitalisation, algorithms are technical rules that are increasingly competing with law as a means for controlling behaviour. They can support, modify, or thwart the validity of law. In combination with the opportunities associated with artificial intelligence, algorithms are particularly important with respect to the handling of big data. For instance, predictive analytics use big data to identify emerging trends and patterns of behaviour and predict future behaviour. The aim of prescriptive analytics is to create strategies in order, e.g. to influence attitudes, behaviours, and social developments. Their use is associated with opportunities for the social construction of reality, knowledge, values, and attitudes and thus, with the ability to influence individual behaviour, the way public opinion is formed, and political elections. They offer considerable potential for manipulation. Since selection and control made by algorithms complements and competes with legal control of behaviour, it is important to recognise the differences between technical and legal regulation. The article addresses the special features of the types of rules and of the process for generating and applying technical and legal rules. In contrast to law that is enacted and applied at the sovereign level, the development and use of algorithms by private actors, particularly globally operating enterprises, is generally not the result of a process that is governed by the rule of law, nor is it one that is usually transparent and subject to public scrutiny. In addition, rule enforcement is changing. If an individual's behavioural options are limited by the technology itself, whether control is successful no longer depends on awareness of the rules by those affected. Control is then no longer based on "I am allowed", "I am not allowed", or "I should", which are the typical requirements for the way law works, meaning that no autonomous decision is made about rule compliance. Rather, compliance is achieved directly by limiting the actual "I can". Such rules are self-executing. The article concludes with an overview of suggestions as to how the opportunities associated with digitalisation can be exploited without jeopardising fundamental freedoms and the realisation of other interests in the common good.
Tobias Linke
Published: 1 January 2016
Archiv des öffentlichen Rechts, Volume 141; https://doi.org/10.1628/000389116x14736864053636

Abstract:
Following the elections to the German Bundestag, the Federal Minister of the Interior Hans-Peter Friedrich (CSU) informed Sigmar Gabriel as the party chairman of the future coalition partner SPD that the name of SebastianEdathy had come up in connection with a criminal investigation. Public opinion quickly adjudged that by doing so he had breached his duty of confidentiality (§ 6 BMinG and § 353b StGB). Irrespective of the legal judgement of the case, the incident raised the question of whether a minister who has acquired information in an official capacity is at liberty to use that information at his discretion or whether he must obtain prior permission from the cabinet before doing so. An analysis of the historical development of the official secrecy law since the 18th century on the one hand and the constitutional position occupied by members of the government under the Grundgesetz on the other will show that each individual minister is in principle free within the parameters of his portfolio to decide how to use the information he has acquired.
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