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
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
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
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
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
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
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
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
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.
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
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
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
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).
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
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.
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).