Constitutional law

Question 1

What are the constitutional principles established in Article 20 of the German Basic Law (GG), and what is the “Right of Resistance”?

Answer 1

1. The Federal Republic of Germany is a democratic and social federal state.
2. All state authority is derived from the people, exercised through elections, votes, and specific legislative, executive, and judicial bodies.
3. The legislature is bound by the constitutional order, and the executive and judiciary are bound by law and justice.
4. All Germans have the right to resist anyone attempting to abolish the constitutional order if no other remedy is available.

Question 2

What are the key features of a republic as a form of government in contrast to a monarchy?

Answer 2

1. A republic emphasizes governance without inheritable (vererbare) positions, contrasting with a monarchy.
2. Its principles align closely with democratic ideals, including popular sovereignty and equality.

Question 3

What are the key components of representative democracy under Article 20(1), (2), and 38 GG in Germany?

Answer 3

Popular Sovereignty: The people hold ultimate power, expressed through elections or elected representatives.

• Majority Principle: Decisions are based on the majority’s choice.
• Legitimation of State Actions:
  => Personal: Elections or a chain of delegation (e.g., parliament representatives).
  => Factual: Substantive parliamentary oversight and approval.
• Equality of Votes in Elections: Restrictions are only permissible if justified by compelling reasons.

Question 4

What is the role of referendums and the democratic reservation of laws in the represenative democracy in Germany?

Answer 4

1. Referendums and Polls: Generally inadmissible (unzulässig), reinforcing the representative democracy system.
2. Democratic Reservation of Laws:

• Important laws protecting fundamental rights and principles must be passed democratically (principle of materiality).
• Major decisions should be made by elected representatives, respecting the separation of powers.

Question 5

How does the German Basic Law address the integration of European Union (EU) law?

Answer 5

• EU laws must be incorporated into national law.
• Significant legislative tasks must remain with the Bundestag (German federal parliament) to preserve national sovereignty.

Question 6

What does the material and formal guarantee of the rule of law under Article 20(3) GG entail?

Answer 6

Article 20(3) GG ensures the rule of law by:

• binding the legislature to the constitution and the executive and judiciary to law and justice.
• It guarantees formal legality (adherence to procedures and legal norms) and material justice (protection of fundamental rights, proportionality, and fairness).

Question 7

What are the key elements of the rule of law (Rechtsstaat) in Germany?

Answer 7

1. Separation of Powers (Gewaltenteilung): Division of state power among legislative, executive, and judiciary to prevent abuse.

• Precedence of the law: State actions must align with laws.
• Reservation of the law: Certain actions require explicit legal authorization.

3. Legal Certainty (Rechtssicherheit): Clarity and protection of legitimate expectations, avoiding arbitrary decisions.
4. Predictability of Decisions (Voraussehbarkeit): Legal decisions must be predictable to foster trust in the system.
5. Proportionality (Verhältnismäßigkeit): Balances objectives and means, avoiding excessive measures.

Question 8

How does the rule of law apply at different levels of state action (powers) ?

Answer 8

1. Executive: Governed by the principle of lawful administration (Gesetzmäßigkeit der Verwaltung), ensuring government actions comply with laws.
2. Judiciary:

• Guarantee of Justice (Justizgewähr): Citizens are entitled to legal remedies and judicial protection.

Question 9

What does “proportionality” mean in the context of the rule of law in Germany?

Answer 9

Proportionality (Verhältnismäßigkeit) ensures that:

• State actions balance their objectives and the means used.
• Measures taken are appropriate and avoid being excessive or unnecessary.

Question 10

What is the general purpose of the separation of powers in Germany, as stated in Art. 20(2)(2) and (3) GG?

Answer 10

• The separation of powers distributes governmental tasks among different institutions to ensure a balance of power and prevent abuse.
• It involves dividing power among the legislative, executive, and judiciary branches.

Question 11

What are the roles of the three branches of government under the separation of powers?

Answer 11

1. Legislative (Parliamentary Legislation):

• Creates laws that provide a binding legal framework for other branches.
• Ensures that administration and judiciary operate within these parameters.

2. Executive (Administration):

• Implements laws and decides on factual matters.
• May act through statutory instruments (material laws) based on parliamentary legislation

3. Judiciary:

• Ensures legal examination and compliance by reviewing administrative and legislative actions.

Question 12

What is the principle of practical concordance in the separation of powers?

Answer 12

• Practical Concordance: Harmonious cooperation among the branches ensures effective governance.
• Examples:
  -The administration executes laws created by the legislature.
  -The judiciary ensures these laws are correctly applied and legally compliant.

Question 13

What is the Doctrine of Materiality (Wesentlichkeitstheorie) in the context of the Reservation of Laws (Gesetzesvorbehalt)?

Answer 13

Important government actions, especially those impacting fundamental rights or key responsibilities, must be approved by formal laws to ensure democratic accountability.

Examples:

• Legislative Reservation: Actions encroaching on fundamental rights (e.g., privacy, freedom of speech) must be based on a parliamentary law.
• Non-Applicability: Some actions (e.g., closing a public institution) may not require legislative approval.
• Administration of Services: Preventive measures like press subsidies, supporting freedoms proactively, may also require formal laws.

Question 14

How does the Reservation of Laws (Gesetzesvorbehalt) ensure the allocation of legal tasks?

Answer 14

The authority to intervene is interpreted case-by-case, allowing flexibility while ensuring actions remain within legal limits.

This strikes a balance between:

• Administrative Freedom: Granting flexibility to administrators.
• Parliamentary Oversight: Ensuring democratic control and accountability.

Question 15

What is the Principle of the Federal State under Art. 20(1) GG, and how are legislative and administrative powers distributed?

Answer 15

1. Legislation:

• Legislative powers primarily rest with the Länder (states), except where the Grundgesetz (GG) assigns competences to the federal government (Art. 70(1) GG).
• Practical Implication: Länder handle areas like culture, local affairs, and police, while significant powers are federal.
• Federal Law Supremacy: Federal law prevails over Länder law in case of conflict (Art. 31 GG).

2. Administration:

• Administrative tasks are primarily carried out by the Länder (Art. 30, 83 GG), even for federally enacted laws.

Question 16

What is the Homogeneity Principle (Art. 28(1) GG) and how does it limit the autonomy of the Länder?

Answer 16

• Ensures uniformity in governance across all Länder.
• Limits Länder autonomy by requiring adherence to constitutional principles, such as democratic and rule-of-law standards.

Question 17

What is Federal Loyalty (Bundestreue) and how does it support the federal system?

Answer 17

• Refers to the obligation of mutual cooperation between the federal government and the Länder.
• Promotes coordination and prevents conflicts between the federal and state levels of government.

Question 18

What are the key components (federal powers and procedures) of Parliamentary (Formal) Legislation under Art. 70 ff. GG?

Answer 18

1. Legislative Powers:

• Parliaments at federal and Länder levels can make formal laws.
• Areas like foreign policy are reserved for the federal government.
• Both federal and Länder governments can legislate, but federal law takes precedence under specific conditions.

2. Federal Legislative Procedure:
   => Interaction between Bundestag and Bundesrat:

• Consent Laws: Require Bundesrat approval for constitutional amendments or laws impacting Länder sovereignty or finances (e.g., Art. 79(2), 84(1), 104a GG).
• Objection Laws: Bundesrat can only raise objections for other laws.

3. Implied Federal Competences: Powers arising naturally to address issues closely tied to federal jurisdiction (e.g., annex competence).

Question 19

What is the role of Executive Implementing Legislation (Statutory Instruments) under Art. 80(1) GG?

Answer 19

1. Authorization Basis: Statutory instruments must be explicitly authorized by law, specifying their content, purpose, and scope (citation requirement).
2. Delegation of Regulatory Competences:

• Federal government can delegate regulation-making powers to Länder governments, but not to individual ministers unless authorized by statute.
• Sub-delegation is allowed under specific statutory provisions.

Question 20

What additional roles and rules apply to legislative competences in Germany?
(Municipalities and Hierachy)

Answer 20

1. Autonomous Public Bodies: Municipalities (Gemeinden) can pass bylaws for self-governance, subject to supervisory approval.
2. Hierarchy of Norms: Lower-level rules (e.g., bylaws or statutory instruments) must align with higher-ranking laws, including federal, EU, and international law.