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Business Law Part 1 > fundamental rights > Flashcards

fundamental rights Flashcards

1
Q

What are the 3 main types of fundamental rights under different legal frameworks?

A
  1. Human Rights (ECHR): European Convention on Human Rights.
  2. EU Rights (CFR): Charter of Fundamental Rights of the EU.
  3. National Rights: German Basic Law (GG) and regional constitutions.
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2
Q

How are fundamental rights categorized by their purpose?

A
  • Liberty Rights: Protect freedoms (e.g., defense, participation).
  • Equality Rights: Ensure equal treatment under the law.
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3
Q

What are the 2 functions of fundamental rights in legal systems?

A
  1. Subjective Function: Provide individual claims against the state.
  2. Objective Function: Guide state actions, limit power, and provide standards for legal interpretation.
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4
Q

What is the role of fundamental rights in governance?

A

Fundamental rights protect individuals and provide a framework for laws and state actions, ensuring liberty, equality, and procedural fairness.

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5
Q

What are the 3 Steps for the
Application of Liberty Rights (German Approach)

A

Step 1: Scope of protection
=> identify persons and rights, importance in situation and society
Step 2: Interference
=> State-action or de-facto and right of protection and participation
Step 3: Justification
=> Limits on fundamental rights, limits of limits, Proportionality and general rule

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6
Q

Step 1: Scope of protection

Who has the right and against whom in the scope of protection?

Application of Liberty Rights (German Approach)

A
  1. Identify the person or group entitled to the fundamental right.
  2. Determine the party obligated to respect the right, usually the state (as per Article 1(3) GG).
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7
Q

Step 1: Scope of protection

How do you determine if a specific fundamental right applies?

Application of Liberty Rights (German Approach)

A
  • Check if a more specific fundamental right exists instead of relying on a broader general right.
    => Example: Freedom of expression vs. general freedom of action.
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8
Q

Step 1: Scope of protection

Why is it important to consider the context and importance of a fundamental right?

Application of Liberty Rights (German Approach)

A
  1. Analyze the right’s relevance and its role in the specific situation.
  2. The context can influence the strength of the legal protection.
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9
Q

Step 1: Scope of protection

How do broader societal values impact the scope of protection for a fundamental right?

Application of Liberty Rights (German Approach)

A
  1. Consider if the right promotes objective societal values.
  2. Rights that align with societal values may receive strengthened legal protection.
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10
Q

Step 2: Interference

What constitutes state action as interference under the scope of protection?

Application of Liberty Rights (German Approach)

A
  1. Any government action that restricts or makes it impossible to exercise a protected right is considered interference.
  2. Indirect or de facto interference applies only if the action targets or causes serious, intolerable effects on the right.
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11
Q

Step 2: Interference

How does Article 12 GG protect the right of participation and fairness in examinations?

Application of Liberty Rights (German Approach)

A
  1. Right of Participation: Individuals can challenge opportunities like university admissions under equality principles in Article 3(1) GG.
  2. Right to Protection in Examinations:
  • Teaching methods cannot be challenged.
  • Examination fairness is protected, focusing on proper procedure, relevant facts, consistent standards, and exclusion of unrelated factors.
  • Flexibility in evaluation ensures reasonable leeway for interpretive answers.
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12
Q

Step 2: Interference

What are the key review points for ensuring fairness in examinations under Article 12 GG?

Application of Liberty Rights (German Approach)

A
  1. Was the procedure followed correctly?
  2. Did the examiner consider all relevant facts?
  3. Were recognized standards applied consistently?
  4. Were unrelated factors excluded?
  • Flexibility: Students must be given reasonable leeway for answers open to interpretation.
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13
Q

Step 3: Justification

When are restrictions on fundamental rights valid in the context of justification?

Application of Liberty Rights (German Approach)

A

Restrictions on fundamental rights are valid only if:

  • Based on Properly Applied Constitutional Laws: Laws must align with constitutional principles.
  • Balancing Conflicting Constitutional Principles: Rights may be restricted to protect other values (e.g., public safety).
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14
Q

Step 3: Justification

What is meant by “limits of the limits” (Schranken-Schranken)?

Application of Liberty Rights (German Approach)

A

Schranken-Schranken ensure restrictions do not exceed constitutional limits:

  1. Citation Requirement (Article 19(1)(2) GG): Laws must explicitly state the restricted right.
  2. Special Barriers: Rights like human dignity (Article 1 GG) have stricter protection.
  3. No Individual Targeting: Laws cannot unfairly single out individuals or groups.
  4. Positive Guarantees (Article 19(2) GG): The core of the right must remain intact.
  5. Certainty and Proportionality (Article 20(3) GG): Laws must be clear, unambiguous, and balanced.
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15
Q

Step 3: Justification

What are the 4 steps in the proportionality test for justifying restrictions on fundamental rights?

Application of Liberty Rights (German Approach)

A
  1. Legitimate Objective: Serves a valid public purpose (e.g., public order).
  2. Suitability: Effectively achieves the intended goal.
  3. Necessity: No less severe or invasive alternative exists.
  4. Appropriateness: Benefits outweigh the harm caused to the individual.
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16
Q

Step 3: Justification

What is the general rule for ensuring justification of laws and restrictions on rights; Laws and their application must be?

Application of Liberty Rights (German Approach)

A

Laws and their application must always be:

  • Proportionate: Balanced, fair, and reasonable in wording and enforcement.
  • Focused on maintaining fairness while protecting public and individual interests.
17
Q

What is the legal basis and scope of protection for the freedom of property?

A

Legal Basis: Article 14(1) of the Basic Law.

  • Tangible and intangible assets (e.g., copyrights) are protected but not market positions.
  • Difference from Article 12:
    => Article 12 protects earning income through work; Article 14 protects enjoying and using acquired property.

Rights Under Public Law are Protected if they:

  1. Are assignable for private benefit.
  2. Are earned through significant contributions.
  3. Contribute to ensuring livelihood.
  • Inheritance Rights: Right to create a will and inherit property.
  • Institutional Guarantees: Ensures the overall property rights framework.
18
Q

What are the conditions for using property under the freedom of property?

A

The freedom to use property under the law is not absolute and comes with certain conditions to ensure it aligns with the collective needs of society.

  • Social Function: Property ownership is not just a private right but carries a public responsibility; use of property should contribute positively to society, such as providing housing, fostering economic activity, or protecting the environment.
  • Societal Responsibilities: Property owners are expected to use their property in ways that do not harm others or the public interest. This includes complying with laws such as zoning regulations, environmental protection requirements, or safety standards.
19
Q

What constitutes interference with property rights, and what are the rules for expropriation?

A

Interference: Laws (Art. 14(1)(2) GG) that redefine property rights or impact existing property.

Expropriation (Art. 14(3)): Expropriation is permitted only if it involves direct state action to deprive ownership or financial interests for a legitimate public purpose, with the provision (Bereitstellung) of adequate, market-value compensation.

20
Q

What are partial expropriations and expropriation-like acts under the freedom of property?

A
  • Partial Expropriation: Restricting property use without formal expropriation.
  • Expropriation-Like Acts: Significant limitations on property rights that are not formally classified as expropriation.
21
Q

Step 1: Unequal Treatment

What is unequal treatment?

Application of Equality Rights (Article 3 GG - German Basic Law)

A
  • Treating similar cases differently or treating different cases the same without a valid reason.
  • To identify inequality, acommon comparison criterion(tertium comparationis) is used to determine if two subjects are fundamentally the same or different.
22
Q

Step 2: Justification (Art. 3 GG)?

What are the key principles for justifying unequal treatment

Application of Equality Rights (Article 3 GG - German Basic Law)

A
  1. Can not be arbitary and must have rationale basis
  2. Proportionality test: reasonable and justified where strictnesss depends on target of inequality (gender or race, age,…) and sverness of impact
  • For Internal purpose (allowed if based on real important differences)
  • For external purpose (allowed if laws goal is important enough to justify it)
23
Q

What happens to laws found incompatible with equality rights under Article 3 GG?

A
  • The legislature retains its authority to make and revise laws.
  • If a law violates equality rights, it is declared incompatible, but:
  1. It is not automatically void.
  2. The law remains in force until amended or repealed.
24
Q

How do administrative bodies respond to findings of unequal treatment under Article 3 GG?

A
  • Administrative bodies must carefully avoid creating additional unequal treatment.
  • They follow established rules and practices to ensure decisions are not arbitrary and to maintain consistency across similar cases
25
Q

How do courts handle discrimination claims under Article 3 GG?

A
  • Courts apply a limited review, focusing on whether the unequal treatment is arbitrary.
  • They avoid reassessing the overall fairness of laws
  • This ensures courts do not overstep into legislative or administrative functions
26
Q

What is the balanced approach for addressing discrimination under Article 3 GG?

A
  1. Legislature: Must justify new inequalities but retains authority over laws.
  2. Administrators: Avoid further discrimination by adhering to consistent practices.
  3. Courts: Ensure laws are not arbitrary without invalidating them outright.
  • This approach maintains fairness while respecting legislative and administrative autonomy.
27
Q

What are the key procedural guarantees under Articles 19 and 101 GG?

A

Guarantee of Legal Protection (Art. 19(4) GG):

  • Ensures individuals can challenge administrative actions through effective legal remedies.
  • Limited if resolved via a rejected popular complaint.
  • Legal procedures must not impose unreasonable barriers.

Prohibition of Courts of Exception (Art. 101(1)(1) GG):

  • Special or ad hoc courts are prohibited. Justice must be delivered through regular, established courts.

Right to a Legal Judge (Art. 101(1)(2) GG):

  • Judicial processes must be defined by law.
  • Judges must be independent and impartial (as per Art. 97 GG).
28
Q

What are the procedural rights under Article 103 GG, and how do they ensure fairness?

A

Right to Be Heard (Art. 103(1) GG):

  • Individuals can present arguments and influence decisions during judicial proceedings.

No Punishment Without Law (Art. 103(2) GG):

  • Criminal penalties can only apply to offenses defined by pre-existing laws.
  • Prevents retroactive punishment.

Prohibition of Double Punishment (Art. 103(3) GG):

  • No one can be punished more than once for the same offense.
  • Aligns with international protections like Art. 6, 13 ECHR.
  • These guarantees ensure fairness, transparency, and justice in legal proceedings by upholding access to remedies, impartiality, and protection from retroactive or repeated punishments.

Business Law Part 1 (11 decks)

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