Institute of Global Law

German Legal News - Constitutional Law

The Federal Constitutional Court ruled in favour of an academic who had asked a prison to distribute a pamphlet entitled “Positive in Prison” to its inmates (04.01.2005). In addition to a section on health and well-being, the pamphlet contained a chapter advising prisoners on their legal rights, which included a guide to the complaints process. The prison’s director refused to distribute the pamphlet on the grounds that it might encourage disruptive behaviour among prisoners. Overturning the judgement of the court of first instance, the Constitutional Court found that the refusal violated the academic’s freedom of opinion (Art. 5 I GG).

The Federal Constitutional Court ruled that a protester at a rally organised by the rightwing NPD party was entitled to freedom of assembly and had been illegally dispersed by the police (05.01.2005). The Court held that the Law of Assembly was primary to police law.

On 26 January, the Federal Constitutional Court declared that federal legislation prohibiting the imposition of tuition fees was unconstitutional because it violated the right of the German Länder to organise higher education. The legislation was introduced by the Social Democrat/Green Government in an effort to prevent Christian Democratic states from charging fees, which the Social Democrats believe would undermine equal opportunities.

The Commission on the Reform of Federalism was dissolved without making any recommendations after federal and state authorities failed to reach agreement on the redistribution of legislative competences and the reform of legislative procedures (17.12.2004). Failure to reach a compromise was particularly marked in the area of education.

Responding to a decision of the Federal Constitutional Court in the summer to annul legislation on assistant professorships (Juniorprofessur; see July news) the Bundestag passed an amended Bill, which seeks to address the Court’s concerns while maintaining the Juniorprofessur model (03.12.2004).

On 8 December 2004, consumer protection regulations relating to the distance selling of financial services came into force. Financial services, including insurance, loans and pension schemes, sold via the internet or by post were previously exempt from regulation.

The Federal Constitutional Court has decided (27.10.2004) that new regulations on party financing, which make it more difficult for smaller political parties to receive funding, infringe the Constitution. The regulations, which require parties either to field candidates in elections in at least three states or to receive at least 5% of the vote in one state, were scheduled to become effective in January 2005. The legislature will now have to come up with new proposals.

The speaker of the Federal Parliament (Bundestag), Wolfgang Thierse, criticised the Federal Constitutional Court at the 65th Summit of the Association of German Jurists in Bonn for interfering too heavily with legislation. Taking a judgement of the Court regarding educational matters as an example, Thierse stated that the Court was failing to distinguish areas where strict scrutiny of legislation applied from others where the legislative had greater discretion (23.09.2004).

The Federal Constitutional Court confirmed a decision of the Federal Parliament that the Christian Democratic Party (CDU) must pay back 14.4 million euros received in the form of state funding in 1998 (16.09.2004). The party received the money despite having submitted what turned out to be an incomplete financial report, which did not list secret donations to the party. On 15 February 2004, the President of the Bundestag, Wolfgang Thierse (SPD), announced that the CDU would have to pay back the funds. Further investigations are still under way. These fines will seriously damage the party and limit its potential to invest in political campaigns for some time to come. It has already announced that it wants to rent out parts of its new headquarters in Berlin and has called upon members for special donations to make up for the expected financial shortfall.

The Federal Constitutional Court admonished federal institutions for exceeding their competence by establishing a new form of assistant professorship (Juniorprofessur) under the Federal Higher Education Act (Hochschulrahmengesetz). The court held that, by altering the general qualification scheme for professors, the Federal institutions had encroached on the competence of the Länder (27.07.2004). The government wanted to make the German system more compatible with international systems.

Germany will not be staging a referendum on the new EU constitution after the liberal party (FDP) failed to obtain majority support for a referendum in the Federal Assembly (01.06.2004).

A solution concerning the content of a new Federal Immigration Act has finally been found by means of an all-party compromise (17.06.2004). The Act will replace earlier legislation which was declared void by the Federal Constitutional Court. It has taken more than a year for agreement to be reached on the new Act, the purpose of which is to consolidate legislation relating to different types and aspects of immigration, such as refugees, highly qualified workers and the integration of immigrants already residing in Germany.

New legislation to tackle the sale of alcohol and cigarettes to teenagers will make it illegal to sell alcopops to under-18s from July onwards (08.05.2003). The new law will also prohibit the sale of packets containing less than 17 cigarettes. This will prevent cigarette companies from undermining the preventive effect of increased tobacco taxes by selling smaller “pocket-money” packets.

Discussion on the comments of Professor Matthias Herdegen (Bonn) concerning human dignity (Art. 1 GG) in the latest edition of the Maunz/Dürig commentary to the Constitution has not yet died down. Meanwhile, the President of the Federal Constitutional Court, H. J. Papier, himself one of the authors of the commentary, distanced himself from Herdegen’s idea that human dignity could one day be subject to the proportionality test.

The Constitutional Court struck down a federal law forbidding the breeding of dangerous dogs (16.03.04) whilst at the same time ruling that a ban on the import of four breeds of aggressive dogs was legal. The decision came three years after the federal government introduced legislation against importing and breeding aggressive dogs. The Court’s first panel ruled that legislation to regulate the breeding of four types of dogs was a state issue and therefore the federal government had no right to pass legislation on the subject.

The Federal Constitutional Court ruled that the surveillance legislation currently in force in Germany (so-called grosser Lauschangriff), violates human dignity (03.03.2004). The legislature must now improve regulations relating to the bugging of homes. Currently, a bugging operation (limited to a maximum of four weeks) is justified if there is mere suspicion that an offence characteristic of organized crime is being committed. However, the Court held that bugging operations should only be put in place if the crime is “particularly serious” (as set out in Article 13 of the German constitution, Grundgesetz), which was especially amended to allow for the introduction of such operations. In its statement of reasons, the Court held that the sanctity of the home was closely related to human dignity and that those areas in which citizens hold confidential conversations, e.g., with family members, priests or defence counsels, must be carefully protected. The judges therefore called upon the legislature to stipulate the rules governing bugging operations in the German Code of Criminal Procedure and to place them under stricter restrictions by the middle of next year. Remarkably, two dissenting judges even held that the amendments made to Art. 13 of the Grundgesetz were unconstitutional.

The Federal Constitutional Court approved the ecological tax reform, the so-called Ökosteuer (20.04.2004). The court had to decide on several aspects of the reform, including subsidies for alternative energy and higher taxes on energy consumption. None of the objections, which were based on equality as well as on freedom rights, were successful.

Former cultural secretary Michael Naumann has been fined € 9000 for calling the Chief Attorney-General of Berlin, Karge, a “maniac” (28.01.2004). The local court in Berlin ruled that the use of such an expression was not covered by freedom of speech because the public could expect politicians to articulate themselves more sensitively. Naumann criticised the court heavily for limiting his constitutional rights in what he deemed an unfair trial.

The Federal Assembly (Bundesrat) has adopted a resolution to give railway passengers more rights (07.11.2003). Just as air travellers, passengers of railway companies should not have to rely on the goodwill of companies in cases of delay or the cancellation of trains, but rather be protected by clearly cut set of consumer’s rights.

Since 30 October 2003, minutes of federal cabinet meetings and minister committee meetings on social reforms are available online through the Federal Archive’s website at http://www.bundesarchiv.de/kabinettsprotokolle/web/index.jsp.

A public radio station is not obliged to broadcast music by any artist sending unsolicited tapes, CD, or records. The Administrative Court in Cologne ruled that the constitutional protection offered to the arts (Art. 5 Basic Law) does not include an obligation of the state to transmit pieces of art (07.10.2003). The musician had argued that the obligation to create a well-balanced radio programme prevents public radio stations from playing music produced only by major music companies.

The state of Baden-Wuerttemberg cannot forbid Muslim teacher Fereshta Ludin, a 31-year-old German of Afghan origin, from wearing a hijab in the classroom under current laws, Germany’s highest court ruled in a case pitting the right to religious freedom against the principle of church and state separation (25.09.2003). The German Constitutional Court, however, effectively sent the issue back to the state legislatures - saying the state could ban hijabs in schools if it passed a new law. Although the Constitutional Court ruled in October that a woman could not be fired from her department store job for wearing a hijab, Ludin’s case was more thorny because it pit two constitutional principles against each other: freedom of religion against the separation of church and state in public institutions. Ludin, who successfully completed her teacher’s training in Baden-Württemberg and now teaches at a private Muslim school in Berlin, had suffered a series of legal defeats in the lower courts over Baden-Württemberg state officials’ decision not to hire her. Before the Constitutional Court, Ludin argued that the Grundgesetz guarantees both freedom of religious expression and unlimited access to public jobs, regardless of religious belief. The German Constitution does not separate state and religion in a system of laicism, but aims at co-operation between state and religion.

Starting from October 2003, plenary discussions in the state parliament of Baden-Württemberg are going to be broadcasted live on the internet, Speaker Peter Straub announced (26.09.2003). Under http://www.landtag-bw.de people who are interested can follow the debates.

The Constitutional Court of Hamburg ruled that the Gambling Act also applies to online roulette. The Senate of Hamburg may thus not qualify online roulette as generally authorised (21.10.2003). The court argued that the attraction of online games is especially high. That is why the Court feels that an intense supervision of any kind of online gambling is necessary.

The State of Berlin asked Professor Dr J. Wieland to take legal action against the federal government because of the extreme budgetary emergency (Haushaltsnotlage). About 40 % of the budget is allocated only to the payment of interest, said Finance Senator Thilo Sarrazin. In spite of its own efforts (§ 12 Ma_stäbegesetz), there is no realistic chance to settle the debts in the foreseeable future (02.09.2003).

In a speech held on occasion of the 10th anniversary of the Constitutional Court of Saxonia, the Minister of Justice of Saxonia, Thomas de Maizière, warned that constitutional courts should refrain from interfering with the parliamentary process since it might imply the risk of losing political neutrality (August 2003).

Appealing parties can rely on the court of appeal to decide on the basis of the facts established by the court of first instance. Otherwise they are entitled to receive timely advice in order to adjust (BVerfG 12.06.2003).

The discussions about federalism in Germany has lead to an initiative of the states (Länder), which demand that the European Union and national governments should concentrate on core tasks and leave more room for Länder legislation. One suggestion is to turn the model of concurrent legislation (artt. 72 and 74 German Basic Law, Grundgesetz) into a legislative prerogative for the Länder, another to abolish framework legislation (June 2003).

Dr. Günther Paul (Frankfurt) has been elected President of the Constitutional Court in Hesse (05.06.2003).

Instead of generally prohibiting demonstrations in the parliament district (so-called Bannmeile), the German legislator recently enacted a more flexible rule (9 May 2003): Only demonstrations ‘which disturb the functioning of the parliamentary process’ are illegal. This became necessary because demonstrations on traditional assembly places in Berlin’s center would otherwise have had to be banned.

The Federal Constitutional Court (Bundesverfassungsgericht) held that ear witnesses of telephone calls can be used as evidence if the other side has been informed that there is a third party listening (BVerfG, 02.04.2003).

On 11 March 2003 the Bundesgerichtshof held that contractual terms allowing savings banks (Sparkassen) to cancel the accounts of political parties due to their unconstitutional aims are void as long as the Constitutional Court has not prohibited the party (see Art. 21 GG).