Intoduction Flashcards
When was the German nation founded and what was it before?
1871 and before it was a patchwork of states, kingdoms, etc., connected only by the German language.
How was called the time between WWI and WWII?
Weimarer Republik, 1919-1933
Since when does the actual German State exist and how is it called?
Federal Republic of Germany (Bundesrepublik Deutschland) exists since 03.10.1991, after the fall of the Berlin Wall (09.11.1989)
How many German states are there?
16 states (Bundeslaender), from which 3 (Berlin, Hamburg, Bremen) are city-states. Those states are aggregated in a Federal State (Bundesstaat). In this 2-level system, each one of them can make laws, specially public law.
What is the name of the German Constitution and why is it called that way?
Grundgesetz dates from 23.05.1949. It’s not called Verfassung, because the people who made it for Western Germany (BRD) thought about the divided Germany as a temporary situation and wanted that the reunited German people, not only one state, make a Constitution. However, even after the reunion it’s still called Grundgesetz.
What was the main purpose of the Grundgesetz?
The GG was a response to national socialism and its main purpose was to ensure that something like a dictatorship would never happen again. The Weimarer Reichsverfassung had some shortcomings, that enabled Hitler to get power. To avoid that, the GG addresses this problems by:
* Protection of the GG by an own Constitutional court (BvG; not for constitutional questions)
* Give parliament more competences and disempower the president
What were the shortcomings of the Weimarer Reichsverfassung and their consequences?
- The president had a strong position -» now: weak position of the president with stronger chancellor
- There was no percentage hurdle for the parliament (fragmentation of parties) -» now 5% hurdle
- No guarantees of eternity
- Vote of no confidence not constructive
- People elected the president directly -» now: representative system (people can’t vote for laws or people, but only for representatives)
How many fundamental rights are there in Germany and where can one find them?
There are 19 fundamental rights, located at the very beginning of the Grundgesetz.
Can fundamental rights be restricted?
Yes, all but the first, referring to human dignity. Also, you need constitutional law to restrict fundamental rights.
What are the steps for solving a case involving fundamental rights?
- Scope of protection
a) personal scope (who)
b) material scope (what)
Identify the fundamental right, who and what is protected - Encroachment:
Identify the encroachment (any state action that impairs or prevents an individual from exercising fundamental rights) - Justification
3.1 Legitimate purpose
Why was the fundamental right encroached?
3.2 Suitability
Was the encroachment action suitable?
3.3 Necessity
Was there no other milder way to obtain the same result?
3.4 Proportionality
Was the encroachment action proportional to the pursued goal?
Where can the principles of the German State be found?
In article 20 GG
Which are the principles of the German State?
Republic (The head of state is elected)
Democracy (The power is given by the people)
Welfare State (State provides social justice and security)
Federal State (the power is divided between different levels; conjunction of different states, thar form a Federal State)
Rule of Law (all state authorities and people must obey the law
Can the GG be changed?
Yes, according to article 79 GG, the constitution can be changed with a 2/3 majority in both chambers (Bundestag and Bundesrat). However, two articles of the GG can’t be changed at all: articles 1 and 20.
What is the eternity guarantee (Ewigkeitsgarantie)?
It refers to article 79 III GG, that states the fact that 2 articles of the GG cannot be changed: article 1, regarding human dignity and article 20, regarding the States principles.
What is a State?
According to Jellinek, a State requires state power, a territory and population.
How’s the German parliament structured?
On the Federal level, the German parliament has two chambers: the Bundestag and the Bundesrat.
The Bundestag defends people’s interests in general, and one votes directly in one’s city or community for one’s representative.
The Bundesrat defends the interests of the states and is influenced only indirectly by people, since the government of the state sends a representative.
On the states’ level, each of the 16 states has a parliament, too, but with only one chamber, representing its people’s interests.
How’s the structure of the Bundestag?
The Bundestag defends people’s interests in general, and the representatives are elected in 299 electoral districts, directly by the people. There must be at least 598 members (in theory the double of the electoral districts), but in reality, there are 733. The representatives form fractions (5% +) or groups (-5%, because of the 5% hurdle to get into parliament, groups only occur when a party divides after an election).
How’s the structure of the Bundesrat?
The Bundesrat defends the interest of the states, and the 69 representatives of the 16 states are sent by the states’ governments. Depending on the population, each of the 16 states sends 3 to 6 representatives, who, usually are bound by the instructions of their state’s government.
How’s the normal legislation process?
The government (or a fraction) initiates a law proposal (max. 3 times for the same proposal) and passes it to the Bundestag. The proposal is worked in committees (Anschluss) and if the majority of the Bundestag approves the proposal, it is passed to the Bundesrat. If here’s a majority, too, it’s passed to the president, to sign it.
If the Bundesrat does not agree, what normally occurs if the law would result in expenses for the states, there will be a Vermittlungsausschuss, trying to intermediate.
What kind of laws are there in Germany?
There are two kinds of laws:
Einspruchsgesetz is an objection act, meaning that if the 1st parliament, the Bundestag approves, but the 2nd, the Bundesrat rejects the law proposal, it goes back to the first parliament and if they approve it again, it’s passed as a law.
Zustimmungsgesetz is a consent act, meaning that the rejection of the law proposal by the Bundesrat cannot be overrun but the Bundestag. Those kinds of laws cover delicate matters like constitutional of financial subjects.
Who holds the main legislative competence?
According to article 30 GG, the main legislative competence is on the states’ level, that have own parliaments, and own executive (courts), but in practice, there is something like a shared competence. However, in practice, the Federal State has taken more and more power and the only matter that remains truly to the States is education.
What kind of legislative competences are there?
There are two groups of competences: Unwritten and written.
Unwritten competences can result from:
* By nature (national flag and anthem)
* Annex competence (you have the competence and to exercise it, you need the annex competence)
* ???
Written competences are, according to article 70 GG, divided into:
* Exclusive competences: in a range of listed (article 73 GG) areas (passport system, air traffic,…) only the Federal State has legislative competence
* Competing competences: both, the States and the Federal State have legislative competence. The States can legislate if the Federal State hasn’t done it (article 72 I GG) and IF and SOFAR it is necessary to have the same rules in all states, the legislation is competence of the Federal State (article 72 II GG).
What happens if different organs are in conflict about competence?
They can go to court. First to the administrative and lastly to the Constitutional Court.
What kind of constitutional reviews are there?
- Abstract review: representatives of the parliament ask for a constitutional review
- Concrete review: a judge can present a concrete case to the constitutional court, if he thinks the law he needs to apply might be against the constitution
What are the four procedures
- Bund-Länder-Streit: when a state and the Federal State don’t agree
- Organ dispute: when different organs, of the same level, don’t agree
- Abstract review: representatives of the parliament ask for a constitutional review
- Concrete review: a judge can present a concrete case to the constitutional court, if he thinks the law he needs to apply might be against the constitution
What is the vote of no confidence?
The chancellor himself (Vertrauensfrage) or a party (Misstrauensvotum) can propose a confidence vote regarding the chancellor. Therefore, unlike in the Weimarer Republik, a new candidate must be proposed.
What happens after a vote of no confidence?
If the chancellor does not reach a majority there are 2 options: the government continues with a minority, or he asks the president for the dissolution of the parliament and elections must be held in 60 days’ time.
What is the difference between a constructive and a destructive vote of no confidence?
Since 1945, the chancellor has the biggest power. He/ She nominates the ministers, determines policy guidelines and bears responsibility for them. This is called Richtlinienkompetenz. There is no limit on terms.
What are the president’s competences?
Unlike in the Weimarer Republik, nowadays, the president has little power and is mostly a state representative who represents the interest of all people in Germany. He’s at the end of the legislative process, with the signature of the law. However, he cannot control the law’s content.
What if the president must sign a law he thinks is against the GG?
Most of the doctrine says that he is not obliged to sign a law that is manifestly unconstitutional.
What does the resort principle mean? How can the chancellor break it?
The resort principle means that every minister is exclusively responsible for its area. However, since the chancellor has Richtlinienkompetenz, he defines the guidelines.
Which are the principles of electoral law?
The elections are:
General
Direct
Free
Equal
Secret
What kind of electoral law is applied in Germany?
The Bundestag is elected by a personalized proportional system (Verhaeltniswahlrecht). One has two votes: one to vote directly for a representative of the electoral district and the other to vote for a party, who will send a representative. In theory, there are 299 seats for the representatives of the electoral districts elected directly and another 299 seats for the ones sent by the parties.
How are the mandates called which surpass the legally foreseen number of 598 people?
Ueberhangmandat: more seats of the representatives of the electoral districts
Ausgleichsmandat: more seats of the representatives sent by the parties
What is the rationale behind the personalized proportional system?
The rationale behind the personalized proportional system is to guarantee the same proportion between the parties in the Bundestag as regarding the second vote, the one for the party. Thus, the second vote, the one for the party, is more important, because it will determine the weight of the party in the Bundestag.
What two types of state administration exist?
Direct administration: on the state and federal level, with rules for the country
Indirect administration: power is conferred to corporations (e.g. ARD and ZDF), privates, foundations (e.g. for a museum), establishments, etc.
How are the laws in administrative law characterized?
Administrative law laws are characterized by discretion.
What forms of discretion exists?
Discretion: the authority has various possible measures and is responsible for making a lawful, appropriate and expedient selection -» kann
No discretion: The legal consequence in these cases is mandatory, with no room for maneuver -» muss
Discretion reduced to zero: Despite, in theory, various possible measures exist, in the concrete case only one decision can be made without error. This can be assumed if a severe impairment is to be expected or already exists.
What is a discretionary reduction to zero?
Discretion reduced to zero: Despite, in theory, various possible measures exist, in the concrete case only one decision can be made without error. This can be assumed if a severe impairment is to be expected or already exists.
What are the reasons for mistakes of discretion?
There are three mistakes of discretion:
Underuse or non-use of discretion: authority does not exercise the discretion to which it is entitled because it has not even recognized that it is entitled to any discretion
Excess of discretion: Administration chooses a legal consequence not provided for by law. The legal consequence is generally inadmissible or only in specific cases
Misuse of discretion: authority does not correctly recognize the meaning and purpose of the law and bases its decision on erroneous considerations
What are the elements of an administration act?
An administration act must be:
1. a sovereign measure (not among privates)
2. taken by an authority (no constitutional organs, no privates, except entrusted ones)
3. to regulate (aimed at bringing about a legal consequence, no preparatory measures, no real acts)
4. an individual case (individual addresses)
5. in the field of public law (the crucial norms can be found in public law)
6. intended to have direct legal effect externally (leaves the realm of public administration)
How can an administration act be announced?
There are 3 ways to announce an administrative act:
Written announcement: delivery by post or by handing over a written notice
Oral announcement: for example by the means of a police order on site, may be sufficient. Such administrative acts are usually only valid for a short period of time
Public announcement: In rare cases, for example in the case of administrative acts with many addressees, the administrative act can be announced by public announcement
Which legal proceedings exist in administrative law?
There are 4 legal proceedings in administrative law:
Action of Rescission (Anfechtungsklage): can remove an administrative act
Writ of Mandamus (Verpflichtungsklage): may require an authority to issue an administration action
Action for Performance (Allgemeine Leistungsklage): can require an authority to implement a real act
Action for declaratory judgment (Feststellungsklage): determination of the existence or non-existence of a legal relationship
