The Constitutional Jurisprudence of the Federal Republic of Germany: Third edition, Revised and Expanded 9780822395386

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The Constitutional Jurisprudence of the Federal Republic of Germany

∂

The Constitutional Jurisprudence of the Federal Republic of Germany thir d e dition, r e v ise d a n d e x pa n de d

Donald P. Kommers and Russell A. Miller With a New Foreword by Justice Ruth Bader Ginsburg

Duke University Press

Durham and London

2012

© 2012 Duke University Press All rights reserved. Printed in the United States of America on acid-free paper ∞ Designed by C. H. Westmoreland Typeset in Arno Pro by Westchester Publishing Ser vices Library of Congress Cataloging-in-Publication Data Kommers, Donald P. The constitutional jurisprudence of the Federal Republic of Germany / Donald P. Kommers and Russell A. Miller. — 3rd ed., rev. and expanded / foreword to the 3rd ed. by Justice Ruth Bader Ginsberg. p. cm. Includes bibliographical references and index. isbn 978- 0-8223-5248-8 (cloth : alk. paper) — isbn 978- 0-8223-5266-2 (pbk. : alk. paper) 1. Constitutional law— Germany—Cases. 2. Judicial review— Germany—Cases. I. Miller, Russell A., 1969– II. Ginsburg, Ruth Bader. III. Title. KK4446.7.K66 2012 342.43—dc23 2012011594

∂ For Nancy — donald p. kommers

For Theresa, who gave me Germany — russell a. miller

Contents ∂ foreword to the third edition: Justice Ruth Bader Ginsburg xi preface to the third edition xiii ac know ledg ments xvii note on translation and judicial opinions xxi abbreviations xxv

∂ Part I German Constitutionalism 1. The Federal Constitutional Court 3 Origin 4 Jurisdiction 10 Institution 17 Process 25 Judicial Review in Operation 33 Conclusion 40

2. The Basic Law and Its Interpretation 42 New Constitutionalism of the Basic Law 43 Nature of the Polity 48 Theories of the Constitution 55 Theory of Basic Rights 59 Interpretive Modes and Techniques 62 Sources of Interpretation 70 Conclusion 75

∂ Part II Constitutional Structures and Relationships 3. Federalism 79 Territorial Organization 80 Doctrine of Federal Comity 90 Apportionment and Distribution of Revenue 95 Local Self-Government 104 Bundesrat, Reform Gridlock, and Modern Federalism 110

viii CONTENTS Division of Legislative Power 120 Cooperative Federalism 138 Implementation of Federal Law 143 Conclusion 150

4. Separation of Powers 152 Executive-Legislative Relations 153 Judicial versus Legislative Authority 164 Delegation of Legislative Power 175 Foreign and Military Affairs 189 Conclusion 214

5. Political Representation and Democracy 216 Parliamentary Democracy 216 Elections and Voting 238 Party State and Political Spending 269 Militant Democracy 285 Conclusion 300

6. Jurisprudence of the Open State 302 Basic Law and International Law 302 Basic Law and European Law 325 Conclusion 352

∂ Part III Basic Rights and Liberties 7. Human Dignity, Personal Liberty, and Equality 355 Dignity of Persons 356 Right to Life 373 Right to Personality 399 Equality 419 Conclusion 439

8. Freedom of Speech, Press, and Art 441 A Jurisprudence of Balancing 442 Reputational Interests and Offensive Speech 460 Resocialization, Privacy, Truth-Telling, and Assembly 479 Freedom of the Press and Broadcasting 502 Artistic and Academic Freedom 519 Conclusion 536

CONTENTS ix

9. Religion, Conscience, and Family Rights 538 Free Exercise of Religion 539 Minority Religions 553 Religious Practices and Symbols in Public Schools 566 Taxation, Autonomy, and Religious Societies 590 Marriage and Family Rights 600 Conclusion 620

10. Economic Liberties and the Social State 622 Nature of the Economic System 623 Right to Property 630 Occupational and Associational Rights 659 Reunification and Economic Liberties 685 Conclusion 711

appendix a: chronological chart of the justices 713 appendix b: biographical sketches of presidents and vice presidents 717 notes 725 table of cases 833 index 847 permissions 871

Foreword to the Th ird Edition ruth bader ginsburg Associate Justice, Supreme Court of the United States

∂ Exposing laws to judicial review for constitutionality was once uncommon outside of the United States. But particularly in the years following World War II, many nations installed constitutional review by courts as one safeguard against oppressive government and stirred-up majorities. The Constitutional Court of the Federal Republic of Germany has been recognized as a paradigm in this regard.1 Just as U.S. experience and decisions may be instructive to systems that have more recently instituted or invigorated judicial review for constitutionality, so too can we learn from others now engaged in measur ing ordinary laws and executive actions against fundamental instruments of government and charters securing basic rights. “Wise parents do not hesitate to learn from their children,” U.S. Circuit Judge Guido Calabresi observed, noting as illustrative the fi rst edition of The Constitutional Jurisprudence of the Federal Republic of Germany.2 A concrete example. I coauthored the Brief for the Appellant in Reed v. Reed, 404 U.S. 71 (1971), the fi rst case in which the U.S. Supreme Court, in all its long history, ever declared a statute discriminating against women unconstitutional. Reed concerned an Idaho statute that directed: As between persons equally entitled to administer a decedent’s estate, “males must be preferred to females.” The Idaho Supreme Court had upheld the law against an equal protection challenge, reasoning that nature itself had established the gender-based distinction and that the preference for males conserved judicial resources. The Reed brief contrasted two decisions in which the then West German Constitutional Court invalidated similar gender classifications. The fi rst German decision, rendered in 1959, involved provisions of the German Civil Code declaring “if parents are unable to agree, father decides,” and mandating preference for the father as representative of the child.3 Holding both provisions incompatible with the constitution’s equality norm, the German court rejected alleged differences in lifestyles and administrative convenience as justifications for the discriminatory classifications. The second decision, announced in 1963, involved preferences for sons over daughters in agrarian inheritance law. In that instance, the German court held unconstitutional a classification resting on the assumption that men are better equipped than women to manage property. 1. See Vicki C. Jackson & Mark Tushnet, Comparative Constitutional Law, 1st ed. (New York: Foundation Press, 1999), 204. 2. United States v. Then, 56 F.3d 464, 469 (2d Cir. 1995) (Calabresi, J., concurring). 3. BVerfGE 10, 59 (1959).

xii For ewor d to the Thir d Edition

I did not expect our Supreme Court to mention the German decisions, but thought they might have a positive psychological effect. Informed of the West German Constitutional Court’s reasoning, the U.S. justices might consider: “How far behind can we be?” 4 I consulted foreign and comparative legal materials in my advocacy endeavors, as the Reed brief illustrates, and I continue to do so as a judge. Foreign opinions, of course, are not authoritative; they set no binding precedent for the U.S. judiciary. But they can add to the store of knowledge relevant to the solution of trying questions. No doubt, we should approach foreign legal materials with sensitivity to our differences and imperfect understanding of the social, historical, political, and institutional background from which foreign opinions emerge. But awareness of our limitations should not dissuade us from learning what we can from the experience and wisdom foreign sources may convey. In the endeavor to gain knowledge from the problems confronted and resolutions reached by our counterparts abroad, the work of Donald P. Kommers, now joined by Russell A. Miller, is a rich resource. Offering far more than excellent English-language translations of the decisions of a renowned tribunal, Professors Kommers and Miller supply incisive analyses and commentary. I am pleased to herald the publication of this third edition of a masterful text. In addition to thoroughgoing updating, the third edition contains considerable new material and substantially recast sections. Entirely new, Chapter 6 deals with the sometimes intricate relationship between German constitutional law, on the one hand, and international and European law, on the other hand. Chapter 10, on social and economic rights, includes important property and occupational rights cases arising out of Germany’s reunification. For the fi rst time, Germany’s equality jurisprudence, featured in Chapter 7, is treated independently. Of par ticu lar note, the authors discuss the Basic Law’s requirement that the state actively pursue the achievement of gender equality through positive measures. The emphasis on substantive equality reflects a trend vibrant abroad but not similarly embraced in the United States. Federalism reforms made between 2003 and 2009 are described in Chapter 3. Chapters 8 and 9 take up developments in recent years in Germany’s free speech and religious liberty jurisprudence. Finally, in sections of several chapters, the third edition explores the Federal Constitutional Court’s attempts to balance competing liberty and security interests in the post–9/11 world. Cases presented on this trying and vitally important topic contrast, sometimes strikingly, with current U.S. jurisprudence. Brought right up to the moment by Professors Kommers and Miller, The Constitutional Jurisprudence of the Federal Republic of Germany is an engaging, enlightening, indispensable source for those seeking to learn from the text and context of German constitutional jurisprudence.

4. “A Conversation with Justice Ruth Bader Ginsburg,” University of Kansas Law Review 53 (2005): 957, 961.

Preface to the Th ird Edition ∂ The fi rst edition of this path-breaking book appeared in 1989, the year in which the Federal Republic of Germany celebrated the fortieth anniversary of its constitution, designated officially as the Basic Law (Grundgesetz). Adopted in 1949, the Basic Law marked the beginning of a new German experiment in constitutional democracy. A key feature of this experiment was the Basic Law’s provision for the creation of a constitutional court with vast powers of judicial review over legislative acts and other governmental activities. Two years later, on 12 March 1951, in compliance with this mandate, West Germany’s fi rst governing coalition enacted the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz; hereafter referred to as the fcca), authorizing the tribunal’s establishment and providing for the election of its original members. From the moment of its inception, the Federal Constitutional Court (Bundesverfassungsgericht) embraced a robust interpretation of the powers granted to it by the Basic Law. Few realized at the time that the Constitutional Court would play a vital role in shaping the politics and public philosophy of postwar Germany. Fewer still anticipated the Court’s evolution into one of the world’s most powerful and influential tribunals, serving as a model, alongside the U.S. Supreme Court, for other liberal democracies attracted by the prospect of placing fundamental law under the protection of independent courts of justice. The publication of this book’s fi rst edition coincided with comparative constitutional law’s emergence as a subject of serious scholarly inquiry. It was also a time when constitutional courts created in the post–World War II period were beginning to seriously engage one another’s jurisprudence as an aid to the interpretation of their respective constitutions. Already by 1980 Germany’s Federal Constitutional Court stood out as one of the most prominent of these postwar tribunals, not only for the fertility of the ideas folded into its constitutional decisions but also for the appeal of its jurisprudence beyond Germany’s borders. But at the time few of the Court’s decisions were accessible in English. The fi rst edition sought to fi ll this gap. One of its purposes was to bring the Constitutional Court’s leading decisions to the attention of English-speaking readers. The cases featured in translation were selected in part for their relevance to prominent areas of constitutional adjudication in the United States. The relevance seemed warranted by the similarities in the rights, values, and institutions protected by two of the world’s most advanced constitutional democracies. Yet, with their differing perspectives on liberty and democracy—born of distinct social, legal, and cultural histories—the German cases provided a challenging contrast to many of the views reflected in the decisions of the American Supreme Court. The fi rst edition exceeded all expectations. Not only was it hailed for the useful role that German constitutional thought could bring to any fresh assessment of

xiv Pr eface to the Thir d Edition

American constitutional doctrine; it also helped to generate interest in the developing field of comparative constitutional law. Owing to the book’s enthusiastic reception in the United States and abroad, a second edition was published in 1997. While adhering to the basic structure of the original volume, the second edition took into account major constitutional developments arising out of Germany’s reunification as well as the new and groundbreaking cases handed down in the 1990s on freedom of speech, religious freedom, voting rights, and the equality of women in the workplace. It also featured more recent decisions relating to the domestic application of international and European law and the deployment of German military forces abroad. Shortly after the publication of the second edition, the Federal Constitutional Court began publishing on its website English-language summaries and full translations of leading decisions in a wide variety of subject areas. By then, too, a large body of commentary on various aspects of German constitutional law was available in dozens of Anglo-American and other English-language journals and periodicals. For these reasons, it seemed initially that there would be no need for a third edition. Yet, despite the passage of time, Constitutional Jurisprudence continued to enjoy wide use in classes and seminars on German and comparative constitutional law, just as it continued to be consulted by constitutional scholars and judges alike in the United States and elsewhere. And so, encouraged by many friends and colleagues, and with the fi rst-time collaboration of Russell Miller as coauthor, work started on a new, updated edition. It was a long and arduous exercise. More than a decade of proliferating constitutional decisions and commentary had to be taken into consideration, much of it in the original German. Once again, the objective was the production of a single, user-friendly volume that would explain the main principles of the Basic Law, describe the range and character of constitutional review in Germany, and feature leading judgments of the Federal Constitutional Court in selected areas of its jurisprudence. The cases treated in the third edition have been carefully selected with the hope that they are worthy of reflective comparison with the analogous case law of other advanced constitutional democracies. That the third edition of Constitutional Jurisprudence should appear shortly after the sixtieth anniversary of the Federal Constitutional Court’s founding is a happy coincidence. Th is edition has been greatly expanded and reorganized to account for new developments in the jurisprudence of free speech, religious liberty, elections and voting, international affairs, and executive-legislative relations in the sensitive areas of foreign and military policy. Chapter 5 now includes an extended discussion of constitutional cases and issues arising out of Germany’s response to international terrorism since the 11 September 2001 terrorist attacks in the United States. Chapter 7 contains fresh material on gender discrimination and affi rmative action in a new section on equality. Similarly, recent cases on marriage and the family, including the rights of homosexual and transsexual persons, are taken up in Chapter 9, which considers religion and the rights of conscience. And, in the interest of greater coherence and clarity, several cases included originally in the chapter on dignity and personal liberty have been shifted to the chapter on freedom of speech. Finally, the chapter on

Pr eface to the Thir d Edition xv

economic rights now appears as the last instead of the fi rst chapter in Part III of this book to reflect the sequence of the provisions on fundamental rights in the Basic Law. Initially, in working on this edition, we planned two new chapters to focus respectively on the constitutional law relevant to Germany’s reunification and on the increasingly prominent interplay in the Constitutional Court’s jurisprudence between the Basic Law, European law, and international law. German unity generated numerous constitutional controversies related to electoral law, property rights, land reform, pension law, disbarment proceedings, and the occupational rights of persons dismissed from the civil ser vice and other categories of employment. Each of these controversies raised critical issues under several fundamental rights clauses of the Basic Law, prompting the Court to reexamine some of its earlier rulings under these provisions. To keep the book as a manageable single volume, however, we decided to omit this chapter and limit our discussion of the Court’s discrete reunification jurisprudence to a concluding section of Chapter 10. We think the constitutional themes and issues with which the Court grappled in relation to “economic liberties and the social state” are representative of much of the rest of its reunification jurisprudence. On the other hand, we felt that it was absolutely essential to include a new chapter—Chapter 6 in this edition—on the nexus between German constitutional law and international law and European law. A central feature of the Basic Law is its openness to participation in and constitutional engagement with supranational legal orders such as the European Union and the Council of Europe. Article 23 of the Basic Law, for example, commits Germany to the further development of the European Union, just as other provisions permit the transfer of sovereign powers to international organizations (Article 24) and incorporate into domestic law the general rules of international law (Article 25). Several of the cases featured here reveal the Court’s struggle to respect the domestic constitutional order created by the Basic Law as well as the Basic Law’s commitment to internationalism. Needless to say, these interests sometimes seem irreconcilable, perhaps most significantly when the Court has considered the force that decisions of supranational and international tribunals will have in the German legal order. Of capital importance are the Court’s Maastricht Treaty and Lisbon Treaty cases. In both judgments, the Constitutional Court raised questions about the amending treaties’ compatibility with the essential and unamendable features of Germany’s constitutional democracy. Moreover, in Lisbon, the Court set procedural and substantive limits on the further transfer of German sovereignty to the European Union. Finally, we have made two changes in the appendices. We thought it would be useful in this edition to provide brief biographical sketches of all the presidents and vice presidents who have been selected to preside over the Court’s First and Second Senates, which are independent of each other and speak in the name of the German people. These short biographies are revealing; they tell us much about the personalities of the Court’s presiding justices and the change in the pattern of their recruitment over the years. Until 1987 the president and vice president served as the presiding justices respectively of the First and Second Senates. In recent decades, however, this

xvi Pr eface to the Thir d Edition

practice has not held up. As the biographical sketches in Appendix B disclose, a president or vice president may be elected to preside over the First or Second Senate. Finally, we are dropping the appendix that included selected provisions of the Basic Law. The relevant constitutional provisions at issue in our discussion of the Court’s decisions are now presented in the various chapters and are, in any case, easily available in English-language translations on the Internet. In par ticu lar, we have relied on the official English-language version published by the German Bundestag. The most recent version of this translation by Christian Tomuschat and Donald Kommers was produced in cooperation with the Bundestag’s Language Ser vice Department. It is available at https://www.btg-bestellservice.de/pdf/80201000.pdf.

Acknowledgments ∂ Each of us used the second edition and early drafts of the third edition in our advanced seminars on German and comparative constitutional law. The response of our students—mainly doctoral candidates in political science, third-year law students, and foreign law graduates pursuing ll.m. degrees in international human rights law—has been enthusiastic, reinforcing our determination to go forward with this edition. Their critical engagement with the cases and issues featured in the volume helped us greatly to rethink certain aspects of its organization and analysis. We have benefited tremendously from the help and advice of several legal scholars, political scientists, and other academicians. For their generous assistance and helpful comments on this and previous editions, we owe a special word of thanks to Winfried Brugger, David Currie, and Walter Murphy. We regret that we will not be able to share the fruits of this effort with these departed friends and colleagues. We have relied on the advice and inspiration of other colleagues and peers, including David Beatty, Armin von Bogdandy, Michael Bothe, Sujit Choudhry, David Danelski, Erhard Denninger, Edward Eberle, Mary Ann Glendon, H. Patrick Glenn, Ran Hirschl, Vicki Jackson, Alexandra Kemmerer, Pierre Legrand, Ralf Michaels, Christoph Möllers, Vlad Perju, Peter Quint, Georg Ress, Kim Lane Scheppele, Bernhard Schlink, Eberhard Schmidt-Assman, Miguel Schor, Anja Seibert-Fohr, Torsten Stein, Klaus Stern, Christian Tomuschat, Mark Tushnet, Dieter Umbach, Uwe Wesel, Ingrid Wuerth, and Peer Zumbansen. For their significant assistance we would also like to thank these former and sitting justices of the Federal Constitutional Court: Susanne Baer, Ernst Benda, BrunOtto Bryde, Udo Di Fabio, Dieter Grimm, Renate Jaeger, Paul Kirchhof, Jutta Limbach, Gertrude Lübbe-Wolff, Rudolf Mellinghoff, Lerke Osterloh, Andreas Paulus, Helga Seibert, and Helmut Steinberger. We are also grateful to the Constitutional Court’s administrative directors Karl-Georg Zierlein (1973–98) and Elke-Luise Barnstedt (1999–2010). They graciously coordinated our visits to the Court, helping us secure access to the Court’s justices, its library, its archives, statistical information, and otherwise inaccessible decisional materials. Matching their generosity were Volker Roth-Plettenberg (the Court’s head librarian since 1992) and the Court’s chief of protocol Margret Böckel. We also received valuable assistance from so many of the Court’s clerks that we hesitate to single out any of them for fear that we will overlook someone to whom we are no less grateful. Still, it would be an injustice to fail to mention the helpful, patient, and inspiring clerks with whom we have had extensive contact, especially Felix Hanschmann, Karen Kaiser, Stefan Magen, Nele Matz-Lück, Felix Merth, Rainer Nickel, Anne Sanders, Heiko Sauer, and Christian Walter. For reading and commenting on parts of the third edition, we wish to thank Stefan Brink, Ulrike Bumke, Paolo Carozza, Edward Eberle, Thomas Flint, Richard

xviii Ac know ledg ments

Garnett, Rainer Grote, Arthur Gunlicks, Matthias Hartwig, Karen Kaiser, V. Bradley Lewis, James McAdams, Rainer Nickel, Frank Schorkopf, Anja Seibert-Forh, Christopher Whelan, Christopher Witteman, Ingrid Wuerth, Diana Zacharias, and Peer Zumbansen. Much of the work on this volume was carried out at Heidelberg’s Max Planck Institute of Comparative and International Public Law. We would like to thank the Institute’s current and former directors—Rudolf Bernhardt, Armin von Bogdandy, Karl Doehring, Jochen Abr. Frowein, and Rüdiger Wolfrum—for their generosity in providing us, at different times, with fi nancial support, office space, and ready access to the Institute’s splendid library and unsurpassed bibliographical resources. It is not an exaggeration to say that this effort would not have been possible without the camaraderie, kindness, hospitality, and stimulation that we have enjoyed while resident at the Institute, one of the fi nest research settings in the world. We have especially benefited from scholarly exchanges with the Institute’s remarkable research staff and frequent guests, including Jürgen Bast, Jochen von Bernstorff, Pia Carazo, Stephanie Dagron, Philipp Dann, Sergio Dellavalle, Thomas Giegerich, Matthias Goldmann, Rainer Grote, Alexandra Guhr, Michael Hahn, Matthias Hartwig, Holger Hestermeyer, Mahulena Hofmann, Cristina Hoss, Daniel Klein, Steven Less, Emmanuelle Mantlik, Nele Matz-Lück, Mariela Morales-Antoniazzi, Werner Morvay, Georg Nolte, Karin Oellers-Frahm, Stefan Oeter, Dagmar Richter, Anja Seibert-Fohr, Silja Vöneky, Nicola Wenzel, Diana Zacharias, and Andreas Zimmerman. Donald Kommers spent the spring semester of 2009 as the Axel Springer Berlin Prize Fellow at the American Academy in Berlin where he continued to reflect and write on aspects of German constitutional law and politics. For that support he is grateful to Gary Smith, the Academy’s gracious and capable director. Russell Miller was awarded a Fulbright Senior Research Fellowship in 2009–10. The fellowship permitted him to work on this and other comparative law projects while in residence at Heidelberg’s Max Planck Institute. He is indebted to the Fulbright Commission for that honor and generous support. Both authors have been supported and enriched in this work by their home institutions. Russell Miller wishes to thank Deans Jack Miller and Donald Burnett of the University of Idaho College of Law. Jack Miller has been especially supportive, as a friend and mentor, during Russell Miller’s academic career. Russell Miller also wishes to thank Deans Rodney Smolla, Mark Grunewald, and Nora Demleitner of the Washington & Lee University Law School. They provided encouragement and support. Russell Miller also received support for this work from the Washington & Lee Frances Lewis Law Center and the Washington & Lee Transnational Law Institute, the latter of which is directed by his cherished colleague Mark Drumbl. Donald Kommers is grateful to Deans David Link and Patricia O’Hara for all their kindness during this book’s preparation. He also wishes to thank Roger Jacobs and Edward Edmunds, Notre Dame’s head law librarians who spared no expense in procuring the materials needed for this project. Other Notre Dame law librarians to whom he owes thanks are Patti Ogden, Warren Rees, Dwight King, Carmela Kinslow, and Mary

Ac know ledg ments xix

Cowsert; for technical assistance in getting him out of computer glitches, he thanks Dan Manier, Jeff Morgan, and Susan Good. As professor emeritus, he is particularly grateful to Thomas Burish, University of Notre Dame Provost, for generously providing him with the logistical support needed for the completion of this project. For student assistance we are grateful to Ariel Brio, Brian Burchett, Frank Colucci, Melissa Brown, Michael Chambliss, Colin Littlefield, Peggy Fiebig, Jonas Callis, and Karolina Kurzawa. Matthias Schmidt came to our aide in the last years of our work on this book and, to the very end, remained a reliable assistant, insightful reader, and encouraging friend. For two years during our early work on the third edition we were assisted by Jeremy Rabideau, a Notre Dame doctoral candidate in political science. Jeremy competently and professionally dispatched a broad range of indispensable assignments, including the writing of summaries for scores of the Constitutional Court’s decisions and of the developing research from English and German language scholarship and literature. We are thankful for his role in this effort. For secretarial assistance in the Notre Dame Law School we are grateful to Lu Ann Tate, Tina Jankowski, Rebecca Ward, and the indomitable Debi McGuigan-Jones. Not to be overlooked is the wonderful cooperation we have received from Duke University Press. In particular, we would like to acknowledge the support of Duke’s senior editor, Valerie Millholland. We are especially thankful for her patience in waiting longer than expected for the arrival of the third edition manuscript. For their timely and efficient navigation of the manuscript through the stages of editing, design, and production we are most grateful to Miriam Angress, Nancy Hoagland, and Debbie Masi. Finally, we wish to thank Justice Ruth Bader Ginsburg of the U.S. Supreme Court for graciously consenting to write the foreword to this edition.

Note on Translation and Judicial Opinions ∂ Edmund Wilson once remarked that “the best translations—the Rubaiyat, for example—are those that depart most widely from the originals—that is, if the translator himself is a poet.” However sound such advice might be with respect to the translation of novels and poems, it is normally bad advice when rendering foreign legal documents into English. The judicial opinions featured in this volume are collegial in nature. They are institutional products often pounded out on the anvil of negotiation and compromise. Personalized dissenting opinions on the Federal Constitutional Court were not allowed until 1971 and since then, as now, they are relatively rare. Less than 1 percent of the Court’s published decisions have featured dissenting opinions. The deliberation and trade-offs that drive this penchant for consensus lead to judicial opinions often marked by abstract, repetitious, and convoluted prose. The job of the translator is to render such prose as much as possible into idiomatic English and to produce approximate English equivalents to the legal and technical terminology of the original German. Th is has been an arduous task for all the translators whose work contributed to the English-language case excerpts published in this volume. The fi nal result, we trust, are translations that are both readable and faithful representations of German constitutional thought. As noted in the preface to this edition, English-language translations of excerpts from the most noteworthy decisions of the Federal Constitutional Court are less rare today than they were when the first edition was published. We, the authors, translated several judgments featured in this edition; other translations were prepared for us by Mark Hepner, Peggy Fiebig, Matthias Schmidt, Catriona Thomas, and Albert Wimmer. But no one has done more to expand English-language access to the Court’s jurisprudence than Hedwig Weiland, the Constitutional Court’s staff translator. She has masterfully supervised the translation of scores of the Court’s most important decisions, sometimes on breathtakingly short notice. A number of these translations have been reproduced here, often with extensive adaptation by us. These editorial changes reflect the very different aims of her project and ours. While the Court strives to produce the most accurate translations of its decisions, we often have sought to strike the all-too-elusive balance between faithfulness to the original German and literary grace. Of course, the official decisions always remain the Court’s published German-language opinions. The Court has generously granted us the right to make use of its translations in this book. And we have relied on other translations produced under Ms. Weiland’s supervision to expedite and enrich our work. Th is collaboration has required us to correspond frequently with her. She has consistently been a gracious and insightful interlocutor. We owe her much, but above all she has our enduring respect. The opinions of the Federal Constitutional Court compete, in their length, with those of the U.S. Supreme Court. Many of them exceed five thousand words. But

xxii Note on Tr anslation and Judicial Opinions

they follow a uniform structure. The typical opinion begins with a listing of the leading sentences (Leitsätze) or propositions of law advanced in the judgment. The caption following the Leitsätze identifies the senate deciding the case, along with the date of the decision, the nature of the proceeding, and a short statement of the ruling (Entscheidungsformel). Subsequently and sequentially, in major parts of the case, the opinion proceeds to describe the factual background of the case, including the parties in dispute, the constitutional issue or issues up for decision, and the statutes or regulations requiring interpretation. It continues with a detailed presentation of the arguments on both sides, fi rst on behalf of the petitioner, then on behalf of the respondent. The opinion concludes with sections addressing the Court’s jurisdiction over the case and, fi nally, the Court’s reasoning on the merits. One practice in par ticu lar distinguishes German judicial decisions from those handed down in common-law jurisdictions. German cases do not reveal the names of the parties before the courts, a convention that also prevails at the Federal Constitutional Court. Cases are cited by number, date, and jurisdictional category. An example is the East German Disbarment Case (1995; no. 10.15) in which East German lawyers fi led constitutional complaints contesting their disbarment following reunification. The case appears as Nr. 11 in Volume 93 at page 213 of the official reports (Entscheidungen des Bundesverfassungsgerichts), cited as 93 BVerfGE 213 (1995). The opinion begins with the caption, “Judgment of the First Senate of 9 August 1995,” immediately followed by reference to “1 BvR 2263/94.” The numbers refer to the 2,263rd constitutional complaint (the jurisdictional category) fi led with the First Senate in the year 1994. (The case was combined with the similar complaints of two other lawyers.) The unnamed lawyer challenging the constitutionality of his disbarment is described simply as the “complainant.” We found it convenient, however, to label this case East German Disbarment to identify its subject matter. It is a common practice among constitutional scholars to name a case by its main topic (e.g., Abortion I Case), its institutional focus (e.g., Bundesrat Case), its documentary source (e.g., Lisbon Treaty Case), or by some other prominent feature such as the geographic location of a major event (e.g., Lebach Case) or the name of the prominent public figure involved (e.g., Princess Soraya Case or Princess Caroline of Monaco II Case). The translations in this book are confi ned largely to selected passages from the Court’s reasoning, preceded by our bracketed summary of the facts of the case and its procedural posture. The original opinions are lavish with citations to the Court’s existing decisions and to the secondary literature, including the Court’s rehearsal of the views advanced in academic treatises and commentaries on the Basic Law. With rare exceptions we have omitted string citations to the Court’s decisions and references to the secondary literature. We have translated the terms Beschwerdeführer and Antragsteller variously as “complainant,” “plaintiff,” and “petitioner.” Complainant refers to an entity ( juristic person or association) or natural person who fi les a constitutional complaint (Verfassungsbeschwerde) with the Federal Constitutional Court. All other proceedings before the Constitutional Court involve petitions or referrals by legislators, other public officials, and governmental entities. A petitioner

Note on Tr anslation and Judicial Opinions xxiii

is an agency or official who initiates one of these proceedings. We often label the plaintiff as the litigant before an ordinary court where the latter refers a constitutional issue in the pending case to the Federal Constitutional Court in an action known as a concrete judicial review proceeding. Other practices and conventions followed by the Court in deciding constitutional cases are described in more detail in Chapter 1.

Abbreviations ∂ bgb bgb1 bgh BGHSt bghz brd BVerfG BVerfGE BVerfGG BVerfGK cdu csu DIN DSU dkp dm DRiG ealg ecthr EEC EFSF eu EuGRZ fap fdp

Bürgerliches Gesetzbuch (Civil Code) Bundesgesetzblatt (Federal Law Gazette [statutes at large]) Bundesgerichtshof (Federal Court of Justice) Entscheidungen des Bundesgerichtshof in Strafsachen (Decisions of the Federal Court of Justice in Criminal Matters) Entscheidungen des Bundesgerichtshof in Zivilsachen (Decisions of the Federal Court of Justice in Civil Matters) Bundesrepublik Deustschland (Federal Republic of Germany) Bundesverfassungsgericht (Federal Constitutional Court) Entscheidungen des Bundesverfassungsgerichts (Decisions of the Federal Constitutional Court) Bundesverfassungsgerichtsgesetz (Federal Constitutional Court Act [FCCA]) Kammerentscheidungen des Bundesverfassungsgerichts (Chamber Decisions of the Federal Constitutional Court) Christlich-Demokratische Union (Christian Democratic Union) Christlich-Soziale Union (Christian Social Union) Deutsches Institute für Normung (German Institute for Standardization) Deutsche Soziale Union (German Social Union) Deutsche Kommunistische Partei (German Communist Party) Deutsche Mark (German Mark) Deutsches Richtergesetz (German Judiciary Act [GJA]) Entschädigungs- und Ausgleichsleistungsgesetz (Compensation and Equalization Payments Act) European Court of Human Rights European Economic Community European Financial Stability Facility European Union Europäische Grundrechte-Zeitschrift (European Journal of Basic Rights) Freiheitliche Deutsche Arbeiterpartei (Free German Workers Party) Freie Demokratische Partei (Free Democratic Party)

xxvi Abbr eviations

gg Grundgesetz (Basic Law) GO-BVerfG Geschäftsordung des Bundesverfassungsgerichts (Rules of Procejsc kpd kug nato nl npd pds RGSt rgz sed spd srp StGB UN weu

dure of the Federal Constitutional Court) Judicial Selection Committee Kommunistische Partei Deutschlands (Communist Party of Germany) Kunsturheber-rechtsgesetz (Art Copyright Act) North Atlantic Treaty Organization National List Nationaldemokratische Partei Deutschlands (National Democratic Party) Partei des Demokratischen Sozialismus (Party of Democratic Socialism) Entscheidungen des Reichsgerichts in Strafsachen (Decisions of the [Reich] Imperial Court of Justice in Criminal Matters) Entscheidungen des Reichsgerichts in Zivilsachen (Decisions of the [Reich] Imperial Court of Justice in Civil Matters) Sozialistische Einheitspartei Deutschlands (Socialist Unity Part of Germany) Sozialdemokratische Partei Deutschlands (Social Democratic Party) Sozialistische Reichspartei (Socialist Reich Party) Strafgesetzbuch (German Penal Code) United Nations Western European Union

1 The Federal Constitutional Court ∂ The jurisdiction of the U.S. Supreme Court extends to cases and controversies arising under the constitution and federal law. Its authority reaches even to private law when the parties in dispute are citizens of different states. By contrast, Germany’s Federal Constitutional Court (Bundesverfassungsgericht), as guardian of the constitutional order, is a specialized tribunal empowered to decide only constitutional questions and a limited set of public-law controversies. Thus, Germany ranks among those civil-law countries with a centralized system of judicial review.1 The deeply ingrained Continental belief that judicial review is a political act, following the assumption that “constitutional law—like international law—is genuine political law, in contrast, for example, to civil and criminal law,”2 prompted Germans to vest the power to declare laws unconstitutional in a special tribunal staffed with judges elected by Parliament and widely representative of the political community rather than in a multi-jurisdictional high court of justice dominated by appointed legal technicians. Another factor that encouraged the framers of West Germany’s Constitution, known as the Basic Law (Grundgesetz), to assign the function of constitutional judicial review to a single court was the traditional structure of the German judiciary and the unfamiliarity of its judges with constitutional adjudication. The German judiciary includes separate hierarchies of administrative, labor, fiscal, and social courts, while civil and criminal jurisdiction is vested in another, much larger, system of ordinary courts.3 All trial and intermediate courts of appeal are state (Land) tribunals; federal courts serve as courts of last resort. The federal courts, divided by subject matter, are at the apex of their respective judicial hierarchies. These tribunals include the Federal Court of Justice (Bundesgerichtshof) with jurisdiction over civil and criminal matters, the Federal Administrative Court (Bundesverwaltungsgericht), the Federal Finance Court (Bundesfi nanzhof), the Federal Labor Court (Bundesarbeitsgericht), and the Federal Social Court (Bundessozialgericht). Like the appellate courts generally, these tribunals are staffed by a host of judges (more than one hundred on the Federal Court of Justice alone) who sit in panels of five. The complexity of this structure and the lack of any tradition of stare decisis would have rendered an American-style, decentralized system of judicial review, in which all courts may declare laws unconstitutional, unworkable in Germany. Judicial attitudes toward constitutional review also militated against a decentralized system. The background and professional training of the 20,101 career judges (as of 31 December 2008)4 who staff the German judiciary are unlikely to produce the independence of mind typical of judges in the Anglo-American tradition. German

4 chapter one

judges usually enter the judiciary immediately after the conclusion of their legal training,5 and success is denoted by promotion within the ranks of the judicial bureaucracy. In contrast, most American judges are appointed at a later stage of their careers, usually after achieving success in public office or as private lawyers. German judges have been characterized as seeking to clothe themselves in anonymity and to insist that it is the court and not the judge who decides; moreover, the judicial task is to apply the law as written and with exacting objectivity.6 Although this portrayal of the typical German judge is less true today than it was fi ft y years ago, the conservative reputation and public distrust of the regular judiciary at the time the Basic Law was created were sufficient to ensure that the power of judicial review would be concentrated in a single and independent tribunal.7

origin German legal scholars have traditionally distinguished between constitutional review (Verfassungsgerichtsbarkeit) and judicial review (richterliches Prüfungsrecht). Judicial review, the more inclusive term, signifies the authority of judges to rule on the constitutionality of law. Constitutional review, which in Germany antedates judicial review, is associated with Germany’s tradition of monarchical constitutionalism, stretching from the German Confederation of 1815 through the Constitution of 1867 (establishing the North German Confederation) and up to and including the Imperial Constitution of 1871. During this period (1815–1918) when German constitutional thought pivoted on the concepts of state and sovereignty,8 constitutional review provided the mechanism for defi ning the rights of sovereign states and their relationship to the larger union into which they were incorporated. Judicial review, on the other hand—a device for protecting individual rights—is associated with Germany’s republican tradition, beginning roughly with the abortive Frankfurt Constitution of 1849, continuing with the Weimar Constitution of 1919, and relaunched with the Basic Law of 1949. Constitutional Review. Constitutional review appeared in embryonic form during the Holy Roman Empire. The need for unity among the principalities of the empire and peace among their warring princes prompted Maximilian I in 1495 to create the Imperial Chamber Court (Reichskammergericht), before which the German princes resolved their differences. By the seventeenth century the Imperial Chamber Court and some local courts occasionally enforced the “constitutional” rights of estates against crown princes. Compacts or treaties governed their mutual rights and obligations. Constitutional review commenced when these tribunals enforced—to the extent that their rulings could be enforced—the corporate rights of estates under these documents.9 Constitutional review in its modern form emerged in the nineteenth century.10 Again, it served as a principal tool for the resolution of constitutional disputes among

The Feder al Constitutional Court 5

and within the individual states of the German Empire and often between the states and the national governments.11 Under Germany’s monarchical constitutions, the forum for the resolution of such disputes was usually the parliamentary chamber in which the states were corporately represented. Under Germany’s republican constitutions, on the other hand, the forum was usually a specialized constitutional tribunal, the most notable of which, prior to the creation of the Federal Constitutional Court, was the Weimar Republic’s State High Court (Staatsgerichtshof). As major agencies of public law commissioned to decide sensitive political issues, these courts were independent of the regular judiciary and were staffed with judges selected by legislators. Like most constitutional courts at the state level before and after the Nazi period, the State High Court was a part-time tribunal whose members convened periodically to decide constitutional disputes. Its jurisdiction included 1) the trial of impeachments brought by the Parliament (Reichstag) against the president, chancellor, or federal ministers for any willful violation of the constitution; 2) the resolution of differences of opinion concerning a state’s administration of national law; and 3) the settlement of constitutional confl icts within and among the separate states as well as between states and the Reich. The State High Court’s membership varied according to the nature of the dispute before it; the more “political” the dispute the more insistent was Parliament on having elected its members.12 These structures and powers, which influenced the shape of the Federal Constitutional Court, highlight three salient features of constitutional review in German history. First, as just noted, an institution independent of the regular judiciary exercises such review. Second, it takes cases on original jurisdiction, deciding them in response to a simple complaint or petition, unfettered by the technicalities of an ordinary lawsuit. Finally, it settles constitutional disputes between and within governments. Constitutional review is thus a means of protecting the government from itself and also from the excesses of administrative power. But constitutional review as described here does not contemplate “judges intervening on behalf of citizens against the executive branch of government.”13 The German legal order has always distinguished sharply between administrative and constitutional law. The juridical basis of the distinction, according to Franz Jerusalem, is that the former concerns the execution of the state’s will once it is translated into law, whereas the latter concerns those organs of government constitutionally obligated to form the state’s will.14 These organs—the constitutionally prescribed units of the political system—and these alone are the subjects of constitutional review. Judicial Review. The doctrine of judicial review, unlike constitutional review, was alien to the theory of judicial power in Germany.15 A judge’s only duty under the traditional German doctrine of separation of powers was to enforce the law as written. About mid-nineteenth century, however, some German legal scholars and judges sought to cultivate ground in which judicial review might blossom. In 1860 Robert von Mohl, who was acquainted with the Federalist Papers and the work of the U.S.

6 chapter one

Supreme Court, published a major legal treatise in defense of judicial review.16 Two years later an association of German jurists, with Rudolf von Ihering emerging as its chief spokesman, went on record in favor of judicial review. Jurists attending the meeting recalled that the Frankfurt Constitution called for the creation of an Imperial Court of Justice (Reichsgericht). Th is court would have had the authority to hear complaints by a state against national laws allegedly in violation of the constitution and even by ordinary citizens claiming a governmental invasion of their fundamental rights, foreshadowing by a century similar authority conferred on the Federal Constitutional Court. Their views, however, like the Frankfurt Constitution itself, failed to take root in the legal soil of monarchical Germany (1871–1918).17 The Weimar Republic provided a climate more sympathetic to judicial review. Inspired by the Frankfurt Constitution of 1849, the Weimar Constitution of 1919 established a constitutional democracy undergirded by a bill of rights. The Weimar period also witnessed the continuing influence of the “free law” school (Freirechtsschule) of judicial interpretation,18 marking a significant challenge to the dominant tradition of  legal positivism. And although the Weimar Constitution remained silent with respect to the power of the courts to review the constitutionality of law,19 judicial review as a principle of limited government enjoyed strong support in the Weimar National Assembly. As Hugo Preuss predicted—and warned—the Weimar Constitution’s failure to expressly ban judicial review prompted courts to arrogate this power to themselves.20 In the early 1920s several federal high courts, including the Imperial Court of Justice (which was established under the monarchical regime in 1879 and survived the republican revolution of 1918 with its jurisdiction—and name—intact), suggested in dicta that they possessed the power to examine the constitutionality of laws.21 On 15 January 1924, deeply disturbed by the swelling controversy over the revaluation of debts, the Association of German Judges confidently announced that courts of law were indeed empowered to protect the right of contract and, if necessary, to strike down national laws and other state actions—or inactions that failed to safeguard property rights—on substantive constitutional grounds.22 Several months later, the Imperial Court of Justice announced that “in principle courts of law are authorized to examine the formal and material validity of laws and ordinances.”23 State courts during the Weimar period held fi rm to the German tradition that judges are subject to law and have the duty to apply it even in the face of confl icting constitutional norms. Yet even here, differing postures toward judicial review were beginning to emerge. Although most state constitutions said nothing about judicial review, some courts followed the lead of the Imperial Court of Justice by accepting judicial review in principle; however, they seldom invoked it to nullify legislation. Only the Bavarian Constitution expressly authorized courts to review laws in light of both state and national constitutions. The Schaumburg-Lippe Constitution, echoing the still-dominant German view, expressly denied this power to the courts.24 When the German states (Länder) reemerged as viable political entities after World War II, judicial review appeared once more, this time as an express principle

The Feder al Constitutional Court 7

in several Land constitutions. Perhaps because of the Weimar experience, however, these documents did not authorize the ordinary courts (with civil and criminal jurisdiction) and the specialized courts (including administrative, social, labor, and tax jurisdiction) to review the constitutionality of laws. Once again, consistent with the older and more fully established tradition of constitutional review, this authority was vested in specialized courts staffed with judges chosen by the state parliaments from a variety of courts or constituencies. In any event, as this survey of German constitutional review demonstrates, the framers of the Basic Law had plenty of precedents on which to draw in constructing their own version of constitutional democracy. Herrenchiemsee Conference. It should now be clear that judicial review in Germany did not spring full-blown from the Basic Law of 1949. It was adopted with German precedents in mind. The Allied powers did, of course, concern themselves with the reorganization of the judicial system.25 They insisted that any future government of Germany must be federal, democratic, and constitutional. A constitutional government, in the American view at least, implied the judicial power to assess the constitutionality of laws and other official acts. Judicial review was certainly implicit in the American understanding of an independent judiciary. The military governors, however, did not impose judicial review on a reluctant nation. The Germans decided on their own to establish a constitutional court, to vest it with authority to nullify laws contrary to the constitution, and to elevate this authority into an express principle of constitutional governance.26 While they were familiar with the American system of judicial review and were guided by the American experience in shaping their constitutional democracy,27 Germans relied mainly on their own tradition of constitutional review. The groundwork for the Basic Law was prepared in a resplendent nineteenthcentury castle on an island in the Chiemsee—a vast Bavarian lake—during August 1948. On the initiative of Bavaria’s state governor, Minister-President Hans Ehard, the  Länder in the Allied zones of occupation called on a group of constitutional law experts to produce a fi rst draft of a constitution to expedite the work of the ensuing constitutional convention known as the Parliamentary Council.28 The Herrenchiemsee proposals, which included provisions for a national constitutional tribunal,29 followed the recommendations of Professor Hans Nawiasky, commonly regarded as the father of the postwar Bavarian Constitution. Like many other state constitutions drafted in 1946 and 1947, the Bavarian charter provided for a state constitutional court. In cooperation with Hans Kelsen, Nawiasky had prepared a working paper proposing the establishment of a constitutional tribunal modeled after the Weimar Republic’s State High Court. Nawiasky was a strong advocate of judicial review during the Weimar period, and Kelsen was well known as the founder of the Austrian Constitutional Court.30 Claus Leusser, an Ehard associate and later a justice of the Federal Constitutional Court, also helped to draft the Herrenchiemsee judicial proposals. As a practical model for defi ning the powers of the proposed constitutional court, the Herrenchiemsee drafters relied mainly on the Weimar era’s State High Court.31

8 chapter one

The draft plan envisioned a tribunal vested with both the competence of the State High Court (i.e., its constitutional review jurisdiction) and the authority to hear the complaint of any person alleging that any public agency had violated his or her constitutional rights. Aware of the potential power of the proposed court, the conferees recommended a plan of judicial recruitment that would broaden the court’s political support. The plan included proposals for 1) the election of justices in equal numbers by the Parliament (Bundestag) and the Federal Council of States (Bundesrat), 2) the participation of both of these bodies in selecting the court’s presiding justice (president), and 3) the selection of one-half of the justices from the high federal courts of appeal and the highest state courts.32 But the drafters were at odds over how the new court should be structured; the discord centered on whether it should be organized as a tribunal separate from and independent of all other courts or carved out of one of the federal high courts of appeal.33 Parliamentary Council. The debate over the proposed court’s structure continued in the constitutional assembly, officially known as the Parliamentary Council (Parlamentarischer Rat).34 It all boiled down to a dispute over the nature of the new tribunal. Should it be like Weimar’s State High Court and serve mainly as an organ for resolving confl icts between branches and levels of government (i.e., a court of constitutional review)? Or should it combine such jurisdiction with the general power to review the constitutionality of legislation (i.e., a court of judicial review)? In line with the Herrenchiemsee plan, the framers fi nally agreed to create a constitutional tribunal independent of other public-law courts, but they disagreed over how much of the constitutional jurisdiction listed in the proposed constitution should be conferred on it as opposed to other high federal courts. The controversy centered on the distinction between what some delegates regarded as the “political” role of a constitutional court and the more “objective” lawinterpreting role of the regular judiciary. Some delegates preferred two separate courts—one to review the constitutionality of laws ( judicial review) and the other to  decide essentially political disputes among branches and levels of government (constitutional review). Others favored one grand, multipurpose tribunal divided into several panels, each specializing in a par ticu lar area of public or constitutional law. The latter proposal was strenuously opposed by many German judges, who were alarmed by any such mixing of law and politics in a single institution.35 The upshot was a compromise resulting in a separate constitutional tribunal with exclusive jurisdiction over all constitutional disputes, including the authority to review the constitutionality of laws. The fi nal version of the Basic Law extended the newly created Federal Constitutional Court’s jurisdiction to twelve specific categories of disputes (Article 93 (1)) and “such other cases as are assigned to it by federal legislation” (Article 93 (2)). Originally the Court’s jurisdiction could be invoked only by federal and state governments (i.e., the chancellor or a Land minister-president and his or her cabinet), parliamentary political parties, and, in certain circumstances, regular courts of law.

The Feder al Constitutional Court 9

The framers rejected the Herrenchiemsee proposal to confer on private parties standing to petition the Court in defense of their constitutional rights, a decision in line with the general practice of constitutional review in Weimar Germany and Austria. (As noted below, however, the individual right to petition the constitutional court was restored by legislation in 1951 and incorporated into the Basic Law in 1969.) The two main parties in the Parliamentary Council favored these limited rules of access, the Social Democratic Party of Germany (spd) because the limitations would protect political minorities in and out of the Parliament, and the Christian Democratic Union (cdu) because its members saw the limitations as equally useful in preserving German federalism.36 The interests of both political parties were also reflected in judicial selection clauses specifying that the Federal Constitutional Court shall consist of “federal judges and other members,” half “to be elected by the Bundestag and half by the Bundesrat” (Article 94). Christian Democrats were thus assured of a strong “federal” presence on the Court, just as Social Democrats could take comfort in knowing that the Court would not be dominated by professional judges drawn wholly from a conservative judiciary. Impatient to get on with the work of producing a constitution, the framers stopped there, leaving other details of the Constitutional Court’s organization and procedure to later legislation. But the Court had been given a breathtaking mandate, both in scope and in depth; its jurisdiction was unlike any German court that had preceded it and at the time was unique in comparison with other high courts of judicial review around the world. Legislative Phase. Another two years of parliamentary debate were necessary after the promulgation of the Basic Law to produce the enabling statute creating the Federal Constitutional Court. As had been the case in the Parliamentary Council, the shape of the new tribunal represented compromises between the confl icting perspectives of the cdu-led federal government, the spd opposition, and the states (represented in the Bundesrat) on such matters as judicial selection and tenure, the ratio of career judges to “other members,” the qualifications of judicial nominees, the Court’s size and structure, and the degree of control over the Court to be exercised by the Federal Ministry of Justice (Bundesministerium der Justiz).37 All participants in the debate recognized that the Court’s political acceptance would depend on broad agreement on these matters across party and institutional lines. Finally, after months of intense negotiation within and between the Bundestag and the Bundesrat, a bill emerged with the overwhelming support of the major parliamentary parties and all branches of government. The result was the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz) of 12 March 1951 (hereafter referred to as the fcca).38 In its current version, the fcca includes 121 operative sections that codify and flesh out the Basic Law’s provisions relating to the Court’s organization, powers, and procedures, important features of which are discussed below. Representing numerous political compromises, the fcca 1) lays down the qualifications and tenure of the

10 chapter one

Court’s members, 2) specifies the procedures of judicial selection, 3) provides for a two-senate tribunal, 4) enumerates the jurisdiction of each senate, 5) prescribes the rules of access under each jurisdictional category, 6) defi nes the authority of the plenum (both senates sitting together), and 7) establishes the conditions for the removal or retirement of the Court’s members.

jurisdiction The U.S. Constitution contains no express reference to any judicial power to pass upon the constitutional validity of legislative or executive decisions. In the seminal case Marbury v. Madison (1803) Chief Justice John Marshall derived the doctrine of judicial review by inference from the nature of a written constitution and the role of the judiciary.39 The Basic Law, by contrast, leaves nothing to inference. It enumerates all of the Constitutional Court’s jurisdiction. The Court is authorized to hear cases involving the following actions: Forfeiture of basic rights (Article 18) Constitutionality of political parties (Article 21 (2)) Review of election results (Article 41 (2)) Impeachment of the federal president (Article 61) Disputes between high state organs (Article 93 (1) [1]) Abstract judicial review (Article 93 (1) [2]) Federal-state confl icts (Articles 93 (1) [3] and 84 (4)) Individual constitutional complaints (Article 93 (1) [4a]) Municipal constitutional complaints (Article 93 (1) [4b]) Other disputes specified by law (Article 93 (2)) Removal of judges (Article 98) Intrastate constitutional disputes (Article 99) Concrete judicial review (Article 100 (1)) Public international law actions (Article 100 (2)) State constitutional court references (Article 100 (3)) Applicability of federal law (Article 126)

The Court thus has the authority not only to settle conventional constitutional controversies but also to try impeachments of the federal president (Bundespräsident), to review decisions of the Bundestag relating to the validity of an election, and to decide questions critical to the defi nition and administration of federal law. To these constitutionally articulated responsibilities the Bundestag has added another prominent jurisdictional power; Article 32 of the fcca permits the Court to issue a temporary injunction in par ticu lar circumstances. Each of the jurisdictional categories listed above is assigned to either the First or Second Senate. The most important of these categories involve the constitutional complaints brought by ordinary citizens, concrete judicial review, requests for temporary

The Feder al Constitutional Court 11

table 1. Federal Constitutional Court Cases, 1951–2011 Proceeding Constitutional Complaints Concrete Judicial Review Requests for Temporary Injunction Disputes between Federal Organs Abstract Judicial Review Federal-State Confl icts Unconstitutional Parties Other Proceedings Totals

Docketed

Decided

188,187 3,511 2,370

166,608* 1,261** 1,847

180 172 45 8 545 195,018

97 109 27 5 291 170,245

* Constitutional complaints decided by the senates: 4,034. The remainder were decided by three-justice committees/chambers. ** Concrete judicial review cases decided by the senates: 1,043. The remainder were decided by the three-justice chambers.

Sources: “Docketed”: Bundesverfassungsgericht, “Aufgaben, Verfahren und Organisation—Statistik für das Geschäft sjahr 2011—Eingänge nach Verfahrensarten,” available at www.bundesverfassungsgericht.de/organisation/gb2011/A-I-4.html; “Decided”: Bundesverfassungsgericht, “Aufgaben, Verfahren und Organisation—Statistik für das Geschäft sjahr 2011—Erledigungen nach Verfahrensarten,” available at www.bundesverfassungsgericht .de/organisation/gb2011/A-I-5.html.

injunctions, disputes between high organs of the national government, abstract judicial review, federal-state confl icts, and challenges to the constitutionality of political parties—importance here being measured by the number of cases fi led in each category. As Table 1 shows, constitutional complaints make up about 96 percent of the Court’s caseload. As we shall see, however, some of the Court’s most politically important work arises in other jurisdictional areas. Constitutional Complaints. A constitutional complaint may be brought by individuals and entities vested with par ticular rights under the constitution. In this sense the constitutional complaint differs from all other proceedings before the Court (except applications for temporary injunctions), because the other proceedings are limited to governmental entities, certain parliamentary groups, and judicial tribunals. After exhausting all available means to fi nd relief in the other courts,40 persons who claim that the state has violated one or more of their rights under the Basic Law may fi le a constitutional complaint with the Federal Constitutional Court. Constitutional complaints must be lodged within a certain time, identify the offending action or omission and the institution of public authority responsible, and specify

12 chapter one

the constitutional right that has been violated.41 The fcca requires the Court to accept for decision any complaint if it is constitutionally significant or if the failure to accept it would work a grave hardship on the complainant.42 The right of an individual to fi le a constitutional complaint was originally bestowed by legislation, and German citizens took advantage of this statutory right in increasing numbers over the years. By the mid-1960s the Court was awash in such complaints. Germans had come to regard the constitutional complaint as an important prerogative. From the beginning, these complaints have constituted the Court’s major source of business. In response, and with the Court’s backing, federal legislators anchored the right to fi le constitutional complaints in the Basic Law itself (Article 93 (1) [4a]). A companion amendment ratified in the same year (1969) vested municipalities with the right to fi le a constitutional complaint if a law violates their right to selfgovernment under Article 28.43 The constitutional complaint was so popu lar that no responsible public official opposed these amendments. Years later a president of the Federal Constitutional Court was moved to say that the “administration of justice in the Federal Republic of Germany would be unthinkable without the complaint of unconstitutionality.”44 According to Article 93 (1) [4a] of the Basic Law, any person may submit a complaint of unconstitutionality to the Court if one of his or her fundamental substantive or procedural rights under the constitution has been violated by “public authority.” “Any person” within the meaning of this provision includes natural persons with the legal capacity to sue as well as corporate bodies and other “legal persons” possessing rights under the Basic Law. As a general rule, only domestic legal persons are permitted to fi le constitutional complaints, although the Court has ruled that foreign corporations are entitled to fi le complaints alleging a violation of the procedural rights secured by Articles 101 (1) [2] and 103. The public authority clause of Article 93 (1) [4a] permits constitutional complaints to be brought against any governmental action, including judicial decisions, administrative decrees, and legislative acts. No ordinary judicial remedy is available against legislative acts. If, however, such an act is likely to cause a person serious and irreversible harm, he or she may fi le the complaint against the act without exhausting other remedies. Finally, over and above these basic threshold requirements, a complaint must be offensichtlich begründet or “clearly justified” (obviously stating a legally justifiable claim) if it is to be accepted and decided on its merits by one of the Court’s three-justice chambers (an internal process described later in this chapter).45 The procedure for fi ling complaints in the Constitutional Court is relatively easy and inexpensive. No fi ling fees or formal papers are required. Increasingly, complaints are prepared with the aid of a lawyer,46 even though no legal assistance is required at any stage of the complaint proceeding.47 As a consequence of these rather permissive submission rules the Court has been flooded with complaints, which have swelled in number from well under 1,000 per year in the 1950s, to around 3,500 per year in the mid-1980s, and rising from around 5,000 per year in the 1990s to a peak of more than 6,300 in 2009. The number of constitutional complaints fi led with the Court

The Feder al Constitutional Court 13

in recent years rivals the number of cases on the appellate docket of the U.S. Supreme Court. Although the Constitutional Court fully reviews all incoming complaints, slightly fewer than 2 percent are successful on the merits. Nevertheless, such complaints result in some of the Court’s most significant decisions and make up more than 50 percent of its published opinions. Concrete Judicial Review. Concrete, or collateral, judicial review arises from an ordinary lawsuit. If an ordinary German court is convinced that a relevant federal or state law under which a case has arisen violates the Basic Law, it must refer the constitutional question to the Federal Constitutional Court before the case can be decided. Judicial referrals do not depend on the issue of constitutionality having been raised by one of the parties. If a collegial court is involved, a majority of its members must vote to refer the question. The petition must be signed by the judges who vote in favor of referral and must be accompanied by a statement of the legal provision at issue, the provision of the Basic Law implicated, and the extent to which a constitutional ruling is necessary to decide the dispute.48 The Federal Constitutional Court will dismiss the case if the referring judges demonstrate less than a genuine conviction that a law or provision of law is unconstitutional or if the case can be decided without settling the constitutional question.49 As a procedural matter, the Court must permit the highest federal organs or a state government to enter the case and must also afford the parties involved in the underlying proceeding an opportunity to be heard. The parties make their representations mainly through written briefs. Temporary Injunctions. Over the Court’s fi rst sixty years its docket has been dominated by constitutional complaints and concrete judicial review proceedings. In recent years, however, applications for temporary injunctions (Einstweilige Anordnungen) have overtaken concrete judicial review proceedings as the Court’s second largest docket item. Alone among the jurisdictional provisions discussed here, applications for temporary injunctions have their basis in a statutory provision (Article 32 of the fcca enacted pursuant to Article 93 (2) of the Basic Law) and not the Basic Law itself. Temporary injunction proceedings differ from all others before the Court in one other important respect: they do not involve the resolution of a substantive constitutional question but, rather, invest the Court with the procedural authority to stay actions or measures if its ability to render a substantive ruling is threatened. Thus, temporary injunction proceedings serve to protect the power of the Court and the public’s interest in having it fulfi ll its role as protector of the constitution. In part, the rising number of temporary injunction proceedings can be attributed to the rising number of constitutional complaints. The Court’s very heavy workload is one reason for what some observers view as an overly slow resolution of its cases. It naturally follows that the length of time a complainant faces in obtaining relief from the Court factors heavily in his or her decision to pursue provisional measures. As one commentator noted, a party willing to bear the costs of bringing a constitutional

14 chapter one

complaint in the fi rst place is likely to feel an urgent need for relief as well.50 Viewed from this perspective, even the one year it takes the Court to resolve 70 percent of all constitutional complaints might seem too long a wait.51 Political strategy, as much as a concern for delayed relief from the Court, plays an equal role in the relatively large number of temporary injunction applications. Laws, executive actions, or judicial orders with time-sensitive objectives can be undermined effectively with a successful temporary injunction application regardless of the outcome in the substantive constitutional challenge, the results of which might be reached long after the fact. Th is kind of political brinksmanship is often on display in temporary injunction proceedings connected with constitutional challenges to foreign policy questions.52 Th is dynamic also highlights the fact that applications for temporary injunctions are not limited to constitutional complainants but are available in all disputes subject to the Court’s jurisdiction, including those disputes featuring entities of public authority in Organstreit proceedings or abstract judicial review proceedings. Article 32 of the fcca provides that “[i]n a dispute the Federal Constitutional Court may deal with a matter provisionally by means of a temporary injunction if this is urgently needed to avert serious detriment, ward off imminent force or for any other important reason for the common weal.” The Court applies a strict standard and usually exercises considerable reserve when confronted with requests for temporary injunctions. The requisite urgency exists only if the Court cannot act on the underlying substantive dispute in time to avoid detriment. The alleged harm will not be regarded as “serious,” the Court has said, if it is slight, temporary, correctable, or compensable. In deciding whether to issue a temporary injunction the Court invokes the so-called double hypothesis in a “weighing model.” In principle, wholly blind to the possible outcome of the underlying substantive constitutional dispute, the Court weighs two concerns: 1) the harm that would result if no injunction is issued but the challenged measures are later declared unconstitutional in the underlying substantive proceeding; and 2) the harm that would result if an injunction is issued but the challenged measures are later found to be constitutional in the underlying substantive proceeding.53 The factors to be weighed, however, obviously require the Court to  give some consideration to the possible outcome in the underlying substantive constitutional dispute. For this reason it should not be surprising that, despite the Court’s repeated insistence to the contrary, its decision on an application for a temporary injunction very frequently is indicative of the outcome in the underlying substantive constitutional matter. Disputes between High Federal Organs. Confl icts known as Organstreit proceedings involve constitutional disputes between the highest “organs” or branches of the Federal Republic. The Court’s function here is to supervise the operation and internal procedures of these executive and legislative organs and to maintain the proper institutional balance between them.54 The governmental organs qualified to bring cases under this jurisdiction are the federal president, Bundesrat, federal govern-

The Feder al Constitutional Court 15

ment, Bundestag, and units of these organs vested with independent rights by their rules of procedure or the Basic Law.55 Included among these entities are individual members of Parliament, any one of whom may initiate an Organstreit proceeding to vindicate his or her status as a parliamentary representative.56 The parliamentary party blocs (Fraktionen) also may avail themselves of the Court’s Organstreit jurisdiction.57 Early on, the Court’s plenum ruled that even nonparliamentary political parties may invoke this jurisdiction.58 They may do so in their capacity as agencies that attract votes during elections or organizers of the electoral process because, in fulfi lling these tasks, political parties function as “constitutional” or federal organs within the meaning of the Basic Law (Article 93 (1) [1]).59 If a political party is denied a place on the ballot, or if its right to mount electoral activity is infringed by one of the high organs of the Federal Republic, it can initiate an Organstreit proceeding against the federal organ in question. An Organstreit proceeding is not available, however, to administrative agencies, governmental corporations, churches, or other corporate bodies with quasi-public status.60 Abstract Judicial Review. Whereas the U.S. Supreme Court requires a real controversy and adverse parties in order to decide a constitutional question, the Federal Constitutional Court may decide differences of opinion or doubts about a federal or state law’s compatibility with the Basic Law on the mere request of the federal or a state government or of one-fourth of the members of the Bundestag.61 Oral argument before the Court, a rarity in most cases, is always permitted in abstract review proceedings. The question of the law’s validity is squarely before the Court in these proceedings and a decision against validity renders the law null and void.62 When deciding cases on abstract review, the Court is said to be engaged in the “objective” determination of the validity or invalidity of a legal norm or statute.63 The proceeding is described as objective because it is intended to vindicate neither an individual’s subjective right nor the claim of the official entity petitioning for review; the sole purpose of abstract review is to determine what the constitution means. In so doing, the Court is free to consider any and every argument and any and every fact bearing on any and every aspect of a statute or legal norm under examination. Indeed, once the federal government, a Land government, or one-fourth of the Bundestag’s members place a statute or legal norm before the Court on abstract review, the case cannot be withdrawn without the Court’s permission, a condition that reinforces the principle of judicial independence, which in turn allows the Court to speak in the public interest when necessity demands it. Federal-State Confl icts. Constitutional disputes between a Land and the federation (Bund, which consists of the national sovereign as opposed to the state sovereigns) ordinarily arise out of confl icts involving a Land’s administration of federal law or the federal government’s supervision of Land administration. Proceedings may be brought only by a Land government or by the federal government. In addition, the Court may hear “other public law disputes” between the federation and the Länder,

16 chapter one

between different states, or within a state if no other legal recourse is provided. Here again, only the respective governments in question are authorized to bring such suits. As in Organstreit proceedings, the complaining party must assert that the act or omission complained of has resulted in a direct infringement of a right or duty assigned by the Basic Law. For its part, the Constitutional Court is obligated by law to declare whether the act or omission infringes the Basic Law and to specify the provision violated. In the process of deciding such a case the Court “may also decide a point of law relevant to the interpretation of the [applicable] provision of the Basic Law.” 64 Prohibiting Political Parties. The Federal Constitutional Court’s function as guardian of the constitutional order fi nds its most vivid expression in Article 21 (2) of the Basic Law. Under this provision, political parties seeking “to impair or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional.” The article goes on to declare that only the Federal Constitutional Court may declare parties unconstitutional. To minimize any abuse of this provision, the fcca authorizes only the Bundestag, the Bundesrat, and the federal government (Bundesregierung; i.e., the chancellor and his or her cabinet) to initiate an Article 21 action against a party. A Land government may apply to have a party declared unconstitutional if that party’s organization is confi ned to the applicant’s territory. Th is jurisdiction, as with most of the other proceedings before the Court, is compulsory. Unless the moving party withdraws its petition, the Court is obligated to decide the case, even if it takes its time in doing so. As Table 1 indicates, the Court has received only eight such petitions and decided five. In two of the cases, decided early on, the Court sustained the petitions: in 1952 when it banned the neo-Nazi Socialist Reich Party (srp), and in 1956 when it ruled the Communist Party of Germany (kpd) unconstitutional.65 In 1994 the Court rejected the petitions of the Bundesrat and the federal government to have the Free German Workers Party (Freiheitliche Deutsche Arbeiterpartei; hereafter referred to as the fap) declared unconstitutional as well as Hamburg’s petition to ban the National List (hereafter referred to as the nl) from operating in its territory. The Court ruled that although the fap and the nl advanced views hostile to political democracy, neither group qualified as a political party within the meaning of the law or the constitution.66 In 2003 the petitions of the Bundestag, Bundesrat, and federal government, seeking a ban of the far-right National Democratic Party of Germany (Nationaldemokratische Partei Deutschlands; hereafter referred to as the npd), were dismissed because of the extensive, covert involvement of government security agents in the leadership of the party.

The Feder al Constitutional Court 17

institution Status. When the Constitutional Court opened its doors for business in Karlsruhe on 28 September 1951, its status within the governmental framework of separated powers, and even its relationship to the other federal courts, remained an unsettled issue. The Basic Law itself was ambivalent on the matter of the Court’s status. On the one hand, the wide-ranging powers of the Court laid down in the Basic Law and the fcca pointed to a tribunal commensurate in status with the other independent constitutional organs (Bundesrat, Bundestag, federal president, and federal government) created by the constitution. On the other hand, the Basic Law authorized Parliament to regulate the Court’s organization and procedure. Initially, the new tribunal was placed under the authority of the Federal Ministry of Justice, a situation that irritated several justices, including the Court’s fi rst president, Hermann Höpker-Aschoff. As a consequence, the justices boldly set out, in their fi rst year of operation, to defend the Court’s autonomy, foreshadowing the fierce independence they would later exercise in adjudicating constitutional disputes.67 On 27 June 1952, after months of planning, the Court released a memorandum originally drafted by Justice Gerhard Leibholz, one of its most renowned and respected members, that called for an end to any supervisory authority by the Ministry of Justice, complete budgetary autonomy, and the Court’s full control over its internal administration, including the power to appoint its own officials and law clerks. The memorandum concluded that the Federal Constitutional Court is a supreme constitutional organ that is coordinate in rank with the Bundestag, Bundesrat, federal chancellor, and federal president. Its members, then, are in no sense civil servants or ordinary federal judges but rather supreme guardians of the Basic Law entrusted with the execution of its grand purposes, no less than other high constitutional organs of the Federal Republic of Germany. Indeed, the memorandum continued, the Court has the even greater duty to ensure that other constitutional organs observe the limits of the Basic Law.68 The memorandum from Karlsruhe generated a strong tremor in Bonn, the capital of West Germany during the years when Germany was divided between the western Federal Republic and the eastern German Democratic Republic; it startled the government, angered the Ministry of Justice, and set off several years of skirmishing that yielded alignments almost identical to those that had formed in the early stages of the parliamentary debate on the structure of the proposed tribunal. Social Democrats and the Bundesrat generally supported the justices’ demands, while the cdu and its coalition parties in the Bundestag generally opposed them. The real tangle, however, was between the Ministry of Justice and the Constitutional Court, and it featured an occasional unseemly public exchange between two members of the liberal Free Democratic Party (fdp) who, as members of the Parliamentary Council, had played major roles in drafting the Basic Law. The two figures were Thomas Dehler, federal minister of justice, and Justice Hermann Höpker-Aschoff, the stately and highly respected president or “chief justice”69 of the Federal Constitutional Court.

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In 1953 the Bundestag severed the Court’s ties to the Ministry of Justice, and by 1960, with the gradual growth of the Court’s prestige and influence, all of the “demands” articulated in the Leibholz memorandum had been met.70 In Germany’s official ranking order, the Court’s president now enjoys the fi ft h-highest position in the Federal Republic, following the federal president, the federal chancellor, and the presidents of the two legislative organs (Bundestag and Bundesrat). As “supreme guardians of the constitution” the remaining justices follow behind. Eventually the justices of the Federal Constitutional Court were exempted from the disciplinary code regulating all other German judges.71 The Court’s hard-won constitutional status was best symbolized by a 1968 amendment to the Basic Law providing that the “function of the Federal Constitutional Court and its justices must not be impaired” even in a state of emergency. During such a time, the special body responsible for acting on behalf of the Bundestag and the Bundesrat is barred from amending the fcca unless such an amendment is required, “in the opinion of the Federal Constitutional Court, to maintain the Court’s ability to function.”72 Two-Senate Structure. The most important structural feature of the Constitutional Court is its division into two senates with mutually exclusive jurisdiction and personnel.73 Justices are elected to either the First or Second Senate, with the Court’s president presiding over one senate and the Court’s vice president presiding over the other. Both “chief justices” are wholly independent with respect to judicial matters before their respective senates. Finally, each senate is equipped with its own administrative office for the organization and distribution of its workload. The twin-senate idea was a compromise between legislators who preferred a fluid system of twenty-four justices rotating on smaller panels and those who preferred a fi xed body like that of the U.S. Supreme Court. More important, the bifurcation was the institutional expression of the old debate between those who viewed the Court in conventional legal terms and those who saw it in political terms. The original division of jurisdiction showed that the senates were intended to fulfi ll very different functions. The Second Senate was designed to function much like Weimar’s State High Court; it would decide political disputes between branches and levels of government, settle contested elections, rule on the constitutionality of political parties,74 preside over impeachment proceedings, and decide abstract questions of constitutional law. The First Senate was vested with the authority to review the constitutionality of laws and to resolve constitutional doubts arising out of ordinary litigation. More concerned with the “nonpolitical” side of the Court’s docket and the “objective” process of constitutional interpretation, the First Senate would hear the constitutional complaints of ordinary citizens as well as referrals from other courts. As already noted, an ordinary court that seriously doubts the constitutionality of a statute under which an actual case arises is obliged, before deciding the case, to refer the constitutional issue to the Constitutional Court for its decision.75 Th is division of labor resulted initially in a huge imbalance between the workloads of the two panels. The Second Senate decided only a handful of political cases, while

The Feder al Constitutional Court 19

the First Senate found itself flooded with constitutional complaints and concrete review cases. As a consequence, the Bundestag amended the fcca in 1956 to distribute the caseload more evenly between the senates. Much of the First Senate’s work was transferred to the Second Senate, thus eroding the original rationale of the two-senate system. The Second Senate, while retaining its “political” docket, would henceforth decide all constitutional complaints and concrete judicial review cases dealing with issues of civil and criminal procedure. The First Senate would continue to decide all such cases involving issues of substantive law. In addition, the plenum—the two senates sitting together—was authorized by law to reallocate jurisdiction in a manner that would maintain relatively equal caseloads between the senates.76 The number of justices serving on the two senates has also changed over the years. The fcca originally provided for twelve members per senate. In 1956 the number was reduced to ten; in 1962 it was further reduced to eight, fi xing the Court’s total membership at sixteen (see Appendix A).77 Considerations of efficiency, coupled with the politics of judicial recruitment,78 prompted these reductions. For all practical purposes, then, the Constitutional Court comprises two independent tribunals, although each functions in the name of the Court as a whole. Since the 1980s, however, the Bundestag has modified the ironclad rule against any intersenate ser vice by justices in two ways. First, if one senate is unable to convene because of the incapacity or unavailability of one or more of its justices—a quorum consists of six justices—a justice from the other senate may be chosen by lot to serve temporarily in the understaffed senate. The presiding justices of the two senates (the Court’s president and vice president) are excluded from serving in this substitute capacity.79 Second, upon the disqualification of a justice from participating in a particular case—even if such disqualification does not destroy the respective senate’s quorum—a replacement justice is to be chosen by lot from the other senate.80 The two senates are thoroughly independent of one another. Each senate is the Federal Constitutional Court.81 Yet this strict separation has administrative and doctrinal limits. All sixteen of the Court’s justices periodically convene as the plenum to address administrative matters relevant to the Court as a whole. The plenum, for example, issues rules on the Court’s procedure and judicial administration.82 The plenum, as noted earlier, also fairly allocates the senates’ jurisdictional assignments in order to avoid an imbalanced docket.83 As regards constitutional doctrine, the senates frequently have developed distinct approaches to common questions. But only the plenum can decide a case in the event that one senate seeks to deviate from the “legal opinion contained in a decision of the other senate.”84 Resort to the plenum in these circumstances is a matter to be decided by the senate that was originally responsible for the case, that is, the senate that wants to disregard the other senate’s jurisprudence. Nevertheless, the opposite senate decides whether its existing jurisprudence has, in fact, been implicated. It would seem, based on these rules, that one senate can compel the other to call for the plenum’s intervention.85 But the senates jealously guard against such meddling. In the Unwanted Child Case (1997; no. 4.3), for instance, the First Senate refused to heed the Second Senate’s call for the

20 chapter one

plenum by arguing that resort to the plenum is necessary only if an intentional departure from a decisive facet of the other senate’s reasoning in a similar case is implicated. The First Senate explained that a senate’s “legal opinion” is decisive if retracting it would undermine the concrete holding of the case.86 In a rare public display of tension at the Court, the Second Senate published an accompanying order objecting to the First Senate’s assertion of this very narrow standard and its conclusion that the standard had not been met in the case at hand.87 Intrasenate Chamber System. To speed up the Court’s decision-making process and ease the burden of an increasing number of cases, the internal structure of the two senates was changed in 1956 by authorizing each senate to set up three or more preliminary examining committees, each consisting of three justices, to fi lter out frivolous constitutional complaints.88 Th is was made necessary by the fact that, except under distinct circumstances, the fcca obliges the Court to admit all constitutional complaints for decision.89 As a consequence of this reform, at the beginning of each business year the senates established committees, limited however by the rule that no three justices could serve together on the same committee for more than three years.90 The Court’s president and vice president served as chairs of the respective committees to which they were assigned, as did the senior justice on each of the remaining committees. A committee could dismiss a complaint if all three of its members considered it to be “inadmissible or to offer no prospect of success for other reasons.”91 Under current procedure, if one of the three justices votes to accept a complaint—that is, if he or she thinks it has some chance of success—it is forwarded to the full senate for ordinary consideration of its admissibility.92 At this second stage, the “rule of three” controls; if at least three justices in the full senate are convinced that the complaint raises a question of constitutional law likely to be clarified by a judicial decision, or that the complainant will suffer serious harm in the absence of a decision, the complaint will be accepted for review.93 Thereafter, and on the basis of more detailed examination, a senate majority could still reject the complaint as inadmissible or trivial.94 In 1986, on the Constitutional Court’s recommendation, the Bundestag enhanced the power of the three-justice committees and renamed them chambers (Kammern). In addition to the normal screening function they had been performing, the threejustice chambers are now empowered to rule on the merits of a constitutional complaint if all three justices agree with the result and the decision clearly lies within standards already laid down in a case decided by the full senate.95 The authority to declare a statute unconstitutional or in confl ict with federal law is still reserved to the full senate.96 A chamber is not required to fi le a formal opinion justifying its refusal to accept a complaint for a decision on the merits.97 As a matter of practice, however, whether deciding a complaint on the merits or on the question of admissibility (Zulässigkeit), a chamber often accompanies its decision with an opinion that can be as short as one page and as long as several pages. Most of these decisions remain unpublished, and they are cata logued in the Court’s fi les for internal use and reference. In the past, on rare occasions and in consultation with the full senate, chamber

The Feder al Constitutional Court 21

decisions were published in the Court’s official reports. Other chamber opinions that served to clarify points of law laid down in previous cases or that were likely to command public attention might be released for publication in major legal periodicals such as the Neue Juristische Wochenschrift and the Juristenzeitung.98 In the last decade the chamber process has benefited from greater transparency. Since 1999 most chamber decisions are available at the Court’s website and, since 2003, the Court has published a limited and perhaps necessarily eclectic selection of chamber decisions in a new set of official reports. As yet another mechanism for easing the Court’s overwhelming caseload, the fcca authorizes the Court to fi ne petitioners who “abuse” the constitutional complaint procedure. Currently the Court may level a fi ne of up to € 2,600 on abusers, but it rarely does so.99 In 1986 the chambers were given the additional authority to impose a fee on any petitioner whose complaint they refused to accept because it was either clearly inadmissible or wholly unlikely to succeed. Th is practice, however, failed to decrease the number of complaints arriving at the Court, and it was eventually abandoned. By separating the wheat from the chaff, the chambers dispose of more than 95 percent of all constitutional complaints, relieving the full senates of what would otherwise be an impossible task. As useful as the chamber review system is for helping control the Court’s docket, it is not without problems. It has been the subject of several constitutional challenges, the complainant having argued in each case that a chamber’s dismissal of his or her complaint constituted a denial of the right to “the jurisdiction of his lawful judge” under Article 101 (1) [2] of the Basic Law. Since the Basic Law provides for one Constitutional Court, argued the complainants, the full senate is constitutionally required to decide every case. In the three Three-Justice Committee cases100 involving decisions by both senates, the Court ruled against the complainants on the basis of its original statutory authority to establish internal committees. In one instance, seemingly piqued by the audacity of the complainant who challenged its decision-making procedures, the Second Senate slapped a nominal fi ne on the complainant for “abusing the constitutional complaint procedure.”101 These decisions, all rendered before the right to fi le a constitutional complaint was entrenched in the Basic Law, underscored the fi nality of committee decisions unanimously rejecting complaints. In short, if a complaint is unanimously rejected, no “appeal” lay to the full senate, its sister senate, or the plenum. The constitutionalization of the complaint procedure in 1969 appeared to erode the foundation of the Three-Justice Committee cases. In recent years, however, no challenge has been hurled against the chamber system on constitutional grounds, “and in any event it is rather hard to imagine the Court undermining its own protective ramparts.”102 Other problems shadow the chamber review system. There is the chance that different standards may exist from one chamber to the next, undermining the uniformity of the Court’s jurisprudence. There has also been criticism of the quality of the chamber decisions and expressions of concern that the chambers have informally replaced the senates.103 Finally, there is some reason to wonder if the flexibility and opacity of the

22 chapter one

chamber system has led to the informal establishment of discretionary review at the Court, opening the possibility for the strategic development of jurisprudence and the erosion of subjective rights guarantees, both of which the fcca sought to avoid.104 Despite these concerns, it is clear that some form of gatekeeping procedure involving less than full senate review is necessary as a practical matter if the Court is to cope with a system that “entitles [anyone] to complain to it about virtually anything.”105 Qualifications and Tenure. To qualify for a seat on the Constitutional Court, persons must be forty years of age, be eligible for election to the Bundestag, and possess the qualifications for judicial office specified in the German Judiciary Act (Deutsches Richtergesetz). Th is means that prospective justices must have normally passed the fi rst and second major state bar examinations. Additionally, justices may not simultaneously hold office in the legislative or executive branch of the federal or a state government. Finally, the fcca provides that the “functions of a justice shall preclude any other professional occupation except that of a professor of law at a German institution of higher education” and that the justice’s judicial functions must take precedence over any and all professorial duties.106 The fcca originally provided lifetime terms for the justices of each senate who had been selected from the federal courts. The other members of the Court—justices not required to be chosen from the federal courts—were limited to renewable eightyear terms of office. The recruitment of a certain number of judges from the federal courts for the duration of their terms on those courts was expected to bring judicial experience and continuity to the Constitutional Court’s work. Parliament amended the fcca in 1970, however, to provide for single twelve-year terms for all justices, with no possibility of reelection.107 Th ree of the eight justices serving in each senate must, as before, be elected from the federal judiciary. All justices on the Constitutional Court—federal judges and other members—must retire at age sixty-eight, even if they have not yet completed their twelve-year term. The debate on judicial tenure prior to the 1970 change in the law was entangled with the question of whether justices should be authorized to publish dissenting opinions.108 As early as 1968, lawmakers, supported by a majority of the justices, seemed prepared to sanction signed dissenting opinions. But the feeling was widespread that the justices could not be expected to speak their minds if their tenure depended on the continuing pleasure of the Bundestag or Bundesrat. The justices themselves favored lifetime appointments. The government in turn responded with a bill that provided for both dissenting opinions and a twelve-year term with the possibility of reelection for a single second term of twelve years. Social Democrats, however, insisted on a single fi xed term of twelve years, conditioning their support of the dissenting opinion largely on the acceptance of this proposal. The question was not hotly contested among the political parties. A single twelve-year term, combined with the dissenting opinion, was generally thought to be an adequate solution to both the problem of judicial independence and the need for a greater measure of judicial openness on the Constitutional Court.109

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Machinery of Judicial Selection. The Basic Law provides that half the Court’s members be elected by the Bundestag and half by the Bundesrat. The participation of the Bundestag in the selection of the Court’s justices underscores the significant role the Court plays in reviewing the content and procedural integrity of the decisions of the popularly elected Parliament. It seemed appropriate then that the Bundestag should play a major role in the Court’s staffi ng.110 Similarly, the Bundesrat’s participation in the judicial selection process was meant to ensure that the Länder would have an equally significant voice on the Court.111 Several of the Basic Law’s framers assumed that preserving German federalism against centralizing tendencies would be the chief, if not exclusive, function of the Court.112 The Bundestag elects eight justices indirectly through a twelve-person Judicial Selection Committee (Wahlmännerausschuss). Party representation on the Judicial Selection Committee is proportionate to each party’s strength in the Bundestag; eight votes—a two-thirds supermajority—are required to elect.113 The Bundesrat votes as a whole for its eight justices, a two-thirds vote also being required to elect.114 Although each legislative organ elects four members of each senate, the fcca stipulates that, of the three justices in each senate “selected from among the judges of the highest federal courts, one shall be elected by one [house] and two by the other, and of the remaining five justices, three shall be elected by one [house] and two by the other.”115 Which house elects each combination is a matter of informal agreement. The Bundestag and Bundesrat alternate in selecting the Court’s president and vice president (the Bundestag was authorized to elect the fi rst president and the Bundesrat the fi rst vice president). Prior to the selection process the minister of justice is required to compile a list of all the federal judges who meet the qualifications for appointment, as well as a list of the candidates submitted by the parliamentary parties, the federal government, or a state government. The minister delivers these lists at least one week before the Bundestag’s Judicial Selection Committee or the full Bundesrat convene on the question of appointments to the Court. If either house fails to elect a new justice within two months of the expiration of a sitting justice’s term, the chair of the Judicial Selection Committee—the oldest member of the committee—or the president of the Bundesrat (depending on which legislative organ is electing a new justice) asks the Constitutional Court itself to propose a list of three candidates; if several justices are to be elected simultaneously, the Court is required to “propose twice as many candidates as the number of justices to be elected.”116 The plenum selects the list by a simple majority vote. There is, however, no obligation on the part of the Judicial Selection Committee or the Bundesrat to choose the appointee from this or any other list. The process of judicial selection is highly politicized. The Judicial Selection Committee, which consists of senior party officials and the top legal experts of each parliamentary party, conducts its proceedings behind closed doors and after extensive consultation with the Bundesrat.117 Although the parliamentary parties may not legally instruct their representatives on the Judicial Selection Committee how to vote,

24 chapter one

committee members do in fact speak for the leaders of their respective parties. The two-thirds majority required to elect a justice endows opposition parties in the Judicial Selection Committee with considerable leverage over appointments to the Constitutional Court. Germany’s two main parties, the Social Democrats and the Christian Democrats, are in a position to veto each other’s judicial nominees. The Free Democratic Party and the Green Party, traditionally smaller political blocs in the Parliament, also have won seats on the Court for their nominees. Compromise is a practical necessity in any case. Compromise among contending interests and candidacies is equally necessary in the Bundesrat, where the interests of the various states, often independent of party affi liation, play a paramount role in the selection of the justices. An advisory commission consisting of the state justice ministers prepares a short list of potentially electable nominees. The justice ministers on the commission, like certain state governors (minister-presidents) and members of the Bundestag’s Judicial Selection Committee, often are themselves leading candidates for seats on the Constitutional Court. Informal agreements emerge from the commission’s proceedings, specifying which states shall choose prospective justices and in what order. Th roughout this process the commission coordinates its work with the Bundestag’s Judicial Selection Committee. It is important to avoid duplicate judicial selections, and the two chambers need to agree on the par ticu lar senate seats each is going to fi ll and which of these seats are to be fi lled with justices recruited from the federal courts.118 While the process for the selection of Federal Constitutional Court justices lacks the transparency of the process by which justices are seated on the U.S. Supreme Court, the spirit of compromise and cooperation that prevails in Germany has, thus far, avoided the sensationalism, scandal, and personalization that sometimes seem to dominate U.S. Supreme Court appointments.119 Of course, lifelong tenure combines with the principle of stare decisis to raise, imperceptibly, the stakes in the U.S. appointment process. For all its opacity, the German process, largely as a consequence of the supermajority required for election, nonetheless has consistently produced a Constitutional Court that is reflective of Germany’s most prominent political parties, regional divisions, and confessions.120 In one respect, however, the Court has been less than representative of German society. The presidency of Jutta Limbach (1994–2002), the fi rst woman to hold the position, draws attention to the fact that the Court continues to be dominated by men. In 1951 the remarkable Erna Scheffler, who participated in the Parliamentary Council, was appointed as one of the Court’s fi rst justices. In the subsequent sixty-one years, during which more than one hundred jurists have donned the Court’s red robes and caps, only thirteen other women have found their way to Karlsruhe. In 2011 only five of the Court’s sixteen justices were women.

The Feder al Constitutional Court 25

pro cess Internal Administration. The Federal Constitutional Court achieved a major victory when it won the authority early on to administer its own internal affairs. Administrative autonomy had two notable consequences for the Court’s institutional development. First, armed with the power to prepare its own budget in direct consultation with Parliament and the Ministry of Finance, the Court was able to plan its own future. In 1964 it even won approval for an ultramodern building designed by architects and engineers of its own choosing. Second, the administrative authority of the Court’s president was substantially enlarged. While only primus inter pares in the judicial conference room, he or she is primus on all other matters of internal administration, a situation that once aggravated relations between the president and several associate justices. In 1975, after years of discord between the Court’s president and individual justices over their respective duties and powers, the Court’s plenum enacted a set of standing rules of procedure governing the Court’s internal operations that has been revised several times since.121 The rules charge the plenum, over which the Court’s president presides, with preparing the budget, deciding all questions pertaining to the justices’ duties, and formulating general principles of judicial administration. They authorize the plenum to establish several standing committees for the purpose of recommending policies dealing with matters such as record-keeping, budgetary policy, personnel administration, and library administration. The rules require the president to carry out these policies and to represent the Court in its official relations with other government agencies and on ceremonial occasions. Overall judicial administration is the responsibility of the Constitutional Court’s director, the highest administrative official at the Court. The director, like the justices themselves, must be a lawyer qualified for judicial office. Indeed, one previous director, Walter Rudi Wand, was elected to the Second Senate in 1970. Finally, each justice is entitled to four legal assistants of his or her own choosing. Legal assistants are not recent law school graduates like the law clerks that assist judges and justices in the United States. They have usually already embarked on legal careers as judges, civil servants, or professors of law. Most serve for two or three years, although some legal assistants have stayed on for longer periods.122 Decision-Making Procedure. The fcca and the Constitutional Court’s Rules of Procedure (Geschäftsordnung des Bundesverfassungsgerichts) set forth each senate’s internal practices and procedures. For its part, the fcca includes general and special provisions governing each category of jurisdiction. The Rules of Procedure deal with 1) conditions under which a justice may be excluded from a case; 2) procedures to be followed in various types of cases; 3) rights of the parties involved in litigation before the Court, including the qualifications of those legally entitled to represent them; 4) obligations of public officials and judges to cooperate with the Court in disposing

26 chapter one

of certain cases; 5) special rules accompanying the issuance of temporary orders; and 6) the manner in which decisions are made and announced.123 The procedures on judicial removal require justices to recuse themselves from a case if they are related to one of the parties or have a personal interest in its outcome.124 Recusal, however, is beyond the justices’ personal discretion. Whether a justice initiates the recusal or resists a formal challenge of bias by one of the parties, the senate decides the matter in the justice’s absence. A decision denying or upholding a voluntary recusal or a challenge to a justice’s refusal to withdraw from a case must be supported in writing and included among the Court’s published opinions.125 A justice who wishes not to be recused in the face of a recusal motion must provide the senate with a formal statement in defense of his or her involvement in the case. The statement is included in the senate’s formal opinion on the recusal. The critical issue in such cases is not whether the justice in question is in fact biased, but whether a party to the case has a sufficient reason for believing that the justice may be incapable of making an impartial judgment. These procedures have been invoked only rarely to exclude justices from participating in the decision of a case.126 The Constitutional Court’s deliberations are secret, and the justices render their decisions on the basis of the official record. The rules require that each senate decision be justified by official opinions signed by all participating justices.127 Recording the justices’ participation is vastly different from confi rming their unanimity; the fcca grants the senates the discretion to disclose or withhold information about the number of votes for or against the fi nal decision. Oral arguments are the exception; they are limited to cases of major political importance. In 2011 the Court held only seven oral arguments.128 A decision handed down on the basis of an oral proceeding is known as a judgment (Urteil); a decision handed down in the absence of oral argument is labeled an order or ruling (Beschluss). The distinction seems to be little more than a formality, for all state authorities are bound by all of the Court’s decisions. An oral argument leading to an Urteil obviously gives a case a more prominent public profi le but a Beschluss is no less important or enforceable. All decisions having the force of general law—for example, most abstract and concrete judicial review cases— must be published in the Federal Law Gazette,129 along with all parliamentary resolutions and laws. Case Assignment. Specialization is a major feature of the judicial process within the Federal Constitutional Court. As noted earlier, each senate has a specified jurisdiction. Once incoming cases have been processed in the Office of the Director, they are channeled to the appropriate senate and then passed on to the various justices according to their areas of expertise.130 Before the start of the business year, each senate establishes the ground rules for the assignment of cases. By mutual agreement, and in consultation with his or her senate’s presiding justice, each justice serves as the rapporteur (Berichterstatter) in par tic u lar cases. The ground rules for the assignment of cases are designed to take into account the justices’ interests and expertise. For example, it is typical that at least one justice of the Second Senate has a background

The Feder al Constitutional Court 27

in international law and European Union law. He or she serves as the rapporteur in cases involving international legal issues and, most prominently, Germany’s participation in supranational organizations like the European Union (eu) and international organizations like the North Atlantic Treaty Organization (nato). Another justice might take charge of cases involving tax and social security law, while still another might be assigned cases dealing with issues arising from family law. Despite this acknowledg ment of par ticu lar justices’ expertise in the assignment of cases, occasionally justices serve as rapporteurs in cases outside their specialties. The rapporteur’s job is to prepare a written document known as the Votum, the creation of which is a crucial stage in the decisional process. Aided by legal assistants, the rapporteur prepares what amounts to a major research report. The Votum describes the background and facts of the dispute, surveys the Court’s previous decisions and the legal literature, presents fully documented arguments advanced on both sides of the question, and concludes with a personal view of how the case should be decided. A Votum, which may be well over a hundred pages long, can take weeks, even months, to prepare; often it forms the basis of the fi rst draft of the Court’s fi nal opinion.131 In any calendar year each justice prepares several major Voten, studies thirty to forty others authored by other justices, draft s shorter reports (Kurzvoten)—up to four hundred per year—for the two other justices serving on a par ticu lar three-justice chamber, writes the opinion in those cases over which he or she presides as rapporteur, and prepares for the weekly conferences. Oral Argument. As already noted, formal hearings before the Court are rare, except in Organstreit and abstract judicial review cases, in which oral argument is mandatory unless waived by the major organs or entities of government bringing these cases. The rapporteur, who by this time has completed his or her Votum, usually dominates the questioning. The main function of the oral argument is less to refi ne legal issues than to uncover, if possible, additional facts bearing on them. For this reason the Court may hear from fact experts during the oral argument in order “to establish the truth,”132 as well as from the lawyers, law professors, or public officials formally advocating for the parties. The public hearing also adds legitimacy to the decision-making process in cases of major political importance, particularly when minority political parties allege that the established parties have treated them unconstitutionally. The generous time allotted to oral proceedings—a full day, or more in exceptional cases—and the Court’s readiness to hear the full gamut of argumentation on both sides of a disputed question are intended to generate goodwill and convey a sense of fairness and openness to winners and losers alike. In spite of this genuine commitment to transparency, openness, and inclusion, the Court’s oral arguments cannot be taped or broadcast. The Court has upheld this rule over constitutional free speech and media freedom challenges with respect to all German courts.133 The only exception to this rule is that the media are allowed to broadcast the fi rst, dramatic moments of the Court’s public proceedings when the justices take the bench in their resplendent red robes and caps, up to the moments just after the

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presiding justice formally opens the proceedings by announcing the fi le number and briefly introduces the case at hand. Conference. The presiding justice of each senate schedules weekly conferences to decide cases and dispose of other judicial business. Except for August and September, when the Court is not in session, conference sessions are normally held every Tuesday, frequently spilling over into Wednesday and Thursday. Voten and draft opinions of cases already decided dominate the agenda. In considering a Votum, the presiding justice calls on the rapporteur to summarize the case and justify the recommended solution. The rapporteur’s role is crucial here, for a carefully drafted and well-organized Votum usually carries the day in conference. In addition, the pressure of time often prompts justices to defer to the rapporteur’s expertise and judgment.134 Still, the rapporteur has to win the consent of his or her colleagues. It is the rapporteur’s responsibility, along with that of the “chief justice,” to marshal a majority or fi nd a broad basis of agreement. In this process skill and personality are important. A successful rapporteur solicits the views of colleagues and negotiates artfully in order to prevail in conference. Justices who lack these gift s or the full confidence of their colleagues are unlikely to see their views command the resolution of cases. If, on the other hand, the rapporteur is in the minority—and even the most influential justices occasionally fi nd themselves in this position—he or she does not necessarily lose all influence over the case; the rapporteur still has the task of writing the Court’s opinion. If the rapporteur combines political sagacity with a deft literary hand, it is possible to leave a distinct imprint on the fi nished product. A rapporteur who plans to memorialize his or her strong dissenting views in a dissenting opinion may request that the writing of the opinion be assigned to another justice, but this rarely happens.135 If the rapporteur understands the requisites of judicial statesmanship, he or she will draft an opinion broadly reflective of a wide common denominator of agreement, often representing a compromise among confl icting constitutional arguments.136 The production of such opinions—that is, opinions that reduce discord on the bench and preserve the Court’s moral authority in the public mind—is likely to be a function of the presiding justice’s capacity for leadership. The presiding justice’s task is to guide discussion, frame the questions to which there is to be a vote, and marshal the largest majority possible behind judicial decisions. Th is leadership is particularly important in the sessions in which opinions undergo fi nal and often meticulous editing. The well-settled tradition of the Court is to speak as an institution and not as a panel of individual justices. There is a significant expectation of collegiality and consensus on the Court, much as in German society generally. Thus, despite the introduction of signed dissenting opinions in 1970, the Court continues to unanimously decide more than 90 percent of its reported cases. Although the fcca requires the disclosure of the identities of the justices participating in every case, authorial

The Feder al Constitutional Court 29

responsibility for unanimous and even majority opinions remains undisclosed. In the rare instances where the Court’s institutional unanimity fractures, the Court is not required to identify which justices voted with the majority and which voted with the minority. Only the publication of a signed dissenting opinion, an even rarer departure from the Court’s prized institutional unanimity, might provide formal insight into the Court’s voting constellations. In spite of these measures, which strive to depersonalize the work of the justices, it is common knowledge among informed observers that the rapporteur in a unanimous decision is the principal author of the fi nal opinion. The institutional bias against personalized judicial opinions has tended to minimize published dissents. Since 1971, when they were fi rst allowed, through the end of 2011, there have been only 146 published dissents.137 Dissenting justices—even if they have circulated written dissents inside the Court—usually choose not to publish them or to be identified as dissenters, at least partly out of a sense of institutional loyalty. The prevailing norm seems to be that personalized dissenting opinions are proper only when prompted by deep personal convictions. As one commentator remarked, “In their justification, style and intent, dissenting opinions are a departure from the Court’s unanimity. . . . [T]hey can draw attention to the dissenting justice as a public figure, who may dissent in order to highlight his or her ethical or jurisprudential differences with the majority. . . . Such dissenting opinions can endanger the Court’s majority opinion.”138 Despite such concerns, there are signs that the Court’s deeply rooted culture of collegiality and consensus may be changing. After a burst of dissenting opinions from the Court in the years immediately following German reunification (thirteen published dissents in 1994 and 1995), the Court seemed to return to its practice of relative unanimity (six published dissents between 1996 and 2001). Since 2001 the number of published dissents has again increased, to a steady rate of about three per year. There is also increasing concern about the public, and often intensely political, profi le some sitting and retired justices have achieved. In 1994 the Court’s president, Roman Herzog, led a successful campaign for the federal presidency, to which the Court raised no objection.139 Two more recent examples may suggest a strengthening trend. On the one hand, retired Justice Paul Kirchhof played a sensational role with a brief per for mance as the “fi nance minister” in Angela Merkel’s shadow cabinet during her 2006 campaign as the Christian Democratic candidate for the chancellorship. On the other hand, the dynamic Justice Udo Di Fabio drew attention for his respected but atypically outspoken scholarship and social commentary. Caseload and Impact. Table 1 presents an overview of the Court’s workload during its fi rst six decades. These statistics, however, do not tell the full story of the business before the Court or its function in the German polity. In a given calendar year the Court receives eight to ten thousand letters, notes, or communications from individuals claiming to be unconstitutionally affected by German authorities. When these poorly articulated “constitutional complaints” are obviously inadmissible or

30 chapter one

hopelessly trivial, they are provisionally assigned to the Court’s General Register’s Office, which reviews the submissions and responds on behalf of the Court with an explanation of the legal nature of the matter that was the subject of the submission and, in light of this clarification, the General Register’s view on whether a judicial decision is at all necessary or appropriate.140 Of course, if the General Register’s Office fi nds that a judicial treatment of the submission is necessary, the case is lodged for review in the ordinary admissibility process of the appropriate senate. If, in response to the General Register’s clarification, the petitioner writes back demanding to be heard, his or her submission is lodged with one of the senates.141 Th is process highlights the fundamental aim of the General Register’s review, which is to give the petitioner an informed characterization of the submission while underscoring the petitioner’s ultimate responsibility for the “complaint.” In 2011 the General Register’s Office was confronted with 9,128 communications. It classified the great majority of these (5,983) as “petitions” or “constitutional complaints.” In 2011 the General Register lodged 1,549 petitions or complaints with the senates for ordinary admissibility review after having corresponded with the parties. The General Register assigned another 2,977 submissions to the senates for admissibility review without the benefit of correspondence between the General Register and the parties. A fi nal tranche of 4,505 submissions being handled by the General Register were closed in 2011 after its correspondence with the parties. These numbers do not necessarily add up to the total number of submissions assigned to the General Register in 2011. Th is is because the General Register’s Office often is busy wrapping up communications received in a preceding year and, concomitantly, often is not able to resolve all the communications it receives in the same calendar year.142 The General Register thus serves as an important gatekeeper. Th rough it pass only the most insistent of complainants. Th is screening function is not unproblematic. Formally, the General Register’s explanatory letters, which have the practical function of turning cases away, do not count as judicial decisions because they are not issued by judges. Nonetheless, they are often treated as judicial resolutions of the nonspecific communications received by the Court, particularly by the less-sophisticated recipients of the letters and in the Court’s statistics. These problems aside, the work of the General Register is remarkable in the following respect: through the General Register’s explanatory letters the Court bestows the courtesy of a response on every person who appeals to it. As Table 2 shows, constitutional complaints, requests for temporary injunctions, and concrete judicial review references have made up the bulk of the Constitutional Court’s very heavy docket over the last several years. The General Register, along with the chamber review process described earlier, seems to have given the Court the flexibility it needs to cope with its caseload. Just as the General Register carries the burden for the Court generally, the chamber review process permits a range of moreor-less objective and frequently undisclosed criteria to influence the summary disposition of cases and, thus, the resolution of matters that formally lay within the full senate’s competence.143 The increased number of legal assistants each justice is able

The Feder al Constitutional Court 31

table 2. Federal Constitutional Court’s Caseload Jurisdictional Category Constitutional Complaints Concrete Judicial Review Requests for Temporary Injunction Disputes between Federal Organs Abstract Judicial Review Federal State Confl icts Election Disputes Other Proceedings Totals

1951–2001

2009

2010

2011

126,962 3,147 1,157

6,308 47 148

6,251 19 132

6,036 35 103

130

2

3

9

141 35 144 451 136,647

2 0 1 0 6,508

0 1 16 0 6,422

7 0 17 1 6,208

Source: Bundesverfassungsgericht, “Aufgaben, Verfahren und Organisation—Statistik für das Geschäft sjahr 2011—Eingänge nach Verfahrensarten,” available at www.bundesverfassungsgericht.de /organisation/gb2011/A-I-4.html.

to employ (now four) works in combination with the General Register’s review and the chamber system to help manage the Court’s docket. As Joachim Wieland remarked after his ser vice as a legal assistant at the Constitutional Court, “the preparation of the decision concerning the admittance of a constitutional complaint forms, as a rule, one of the more central tasks of the legal assistants.”144 These summary processes were viewed as adequately responding to the Court’s crushing workload, such that lawmakers were persuaded at the end of the 1990s, with the Court’s blessing, to forgo granting the Court discretionary case selection authority (freies Annahmeverfahren) of the kind enjoyed by the U.S. Supreme Court. The number of concrete review references has not added much to the Court’s heavy docket. The number is surprisingly low in light of a judiciary consisting of more than twenty thousand judges. The apparent reluctance of judges to refer constitutional questions may be attributed to the strong tradition of legal positivism that continues to hold sway in the regular judiciary. Jealous of their own limited power of judicial review, judges usually resolve doubts about the constitutional validity of laws at issue in pending cases by upholding the laws or interpreting them so as to avoid questions of constitutionality, thus obviating the necessity of a referral to Karlsruhe. The constitutional complaint procedure, on the other hand, has served as an escape hatch for litigants upset with the per for mance of the judiciary. More than 90 percent of all constitutional complaints are brought against judicial decisions (Table 3). The remainder are focused on legislative or executive infringements of basic rights.

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table 3. Sources of Constitutional Complaints, 2011 Lodged With Filed Against Ordinary Courts Civil Criminal Administrative Courts Social Courts Finance Courts Labor Courts Laws and Regulations Parliamentary Omissions European, Federal, State, and Local Administrative Actions

First Senate

Second Senate

Total

1,654 59 439 516 105 102 61 12 86

771 1,412 352 1 74 0 32 5 109

2,425 1,471 791 517 179 102 93 17 195

Sources: First Senate—Bundesverfassungsgericht, “Aufgaben, Verfahren und Organisation—Statistik für das Geschäft sjahr 2011—Erster Senat— Verfassungsbeschwerden,” available at www.bundesverfassungsgericht.de /organisation/gb2011/B -II-2.html; Second Senate—Bundesverfassungsgericht, “Aufgaben, Verfahren und Organisation—Statistik für das Geschäft sjahr 2011—Zweiter Senat—Verfassungsbeschwerden,” available at www .bundesverfassungsgericht.de/organisation/gb2011/C-II-2.html .

Nearly all complaints alleging that court decisions have violated the procedural guarantees of the Basic Law are disposed of by the Second Senate. The First Senate has jurisdiction over most complaints involving claims to substantive constitutional rights such as human dignity (Article 1); life, liberty, and personality (Article 2); equal protection (Article 3); the freedom to choose a trade or profession (Article 12); and property (Article 14).145 Even though the full senates decide a mere handful of such cases—sixteen in 2011—the constitutional complaint procedure is now deeply rooted in Germany’s legal culture. The right of any citizen to take a complaint to Karlsruhe is an important factor in the Court’s high rating in public opinion polls and, perhaps, the chief reason for the development of a rising constitutional consciousness among Germans generally. Most of the Court’s political jurisprudence falls into other jurisdictional categories, particularly conflicts between branches of government, disputed elections, and federalstate controversies. Although few in number (see Table 1), the political impact of these cases is substantial.146 In general, however, the Constitutional Court is most politically exposed when deciding cases on abstract judicial review. These cases are almost always initiated by a political party on the short end of a legislative vote in the Parliament or by the national or a state government challenging an action of another level of government

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controlled by opposing political parties. The apparent manipulation of the judicial process for political purposes in these cases has led some observers to favor the abolition of abstract judicial review.147 But those who decry the judicialization of politics— alternatively, the politicization of justice—have not gained much parliamentary support for the constitutional amendment that would be necessary to abolish abstract review. Equally disconcerting for those who would eliminate the thin line between law and politics trod by the Court in these cases is the failure of the justices themselves to mount any opposition to abstract judicial review. Indeed, the elimination of abstract review would run counter to the view of constitutionalism currently prevalent in the Federal Republic: the view that the Court, as guardian of the constitutional order, is to construe and enforce the constitution whenever statutes or other governmental actions raise major disputes over its interpretation. This observation clears the way for the following consideration of the Court’s role in interpreting the Basic Law and its concomitant role in the German polity.

judicial review in operation A major function of constitutional theory in Germany, as in the United States, is to resolve “the tension between representative democracy and constitutional review in a way that both justif[ies] and regulate[s] their coexistence.”148 Numerous commentators have sought to mark the boundary between legislation and constitutional adjudication and to comprehend the fi ne line that the Federal Constitutional Court has drawn between law and politics.149 The following discussion summarizes the strategies devised to temper judicial activism with restraint, thus preserving the creative coexistence between democracy and constitutionalism. Scope of Review. The Federal Constitutional Court renders its decisions largely in declaratory form. In cases of major importance it may issue a temporary injunction against a political department of the government, pending the clarification of a constitutional question. Yet, as will be more fully explained in the next chapter, the Court normally confi nes itself to declaring laws null and void or simply incompatible with some par ticu lar provision of the Basic Law. The Court is unbound by any case or controversy requirement, which permits it to remain on the high road of broadranging, principled declarations. In this sense, the Court elevates the status of the parties. As Justice Hans G. Rupp explained, “The only marshal there is to enforce the Court’s ruling is its moral authority, the conscience of the parties concerned, and in the last resort, the people’s respect for law and good government. It is mainly this limitation which renders it less objectionable to let a court settle legal issues which are closely connected with domestic or international politics.”150 The Court’s precious moral authority is supported by two pillars. First, the Court carefully observes the governing procedure described in the earlier sections of this chapter. Second, the Court follows a number of guidelines analogous to certain

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maxims of judicial self-restraint advanced by Justice Brandeis in Ashwander v. Tennessee Valley Authority (1936).151 For example, the rule that the U.S. Supreme Court will not pass upon the constitutionality of legislation in a nonadversarial proceeding has its equivalent in the Federal Constitutional Court’s refusal to decide moot questions. We have seen that concrete judicial review references must arise within the framework of actual litigation. The justiciability of a constitutional complaint likewise depends on certain attributes of concreteness and particularity. Even cases coming before the Court on abstract judicial review require real confl icts of opinion within or among governing institutions. The Court has also traditionally refrained from anticipating a question of constitutional law in advance of the necessity for deciding it. In short, while every case properly before the Court involves a constitutional question, the Court usually refrains from deciding ancillary constitutional issues not yet ripe for decision. For example, the Court may strike down a par ticu lar federal regulation interfering with a state’s administration of federal law but decline to set forth the general conditions under which federal administrative control would prevail. The Court is also reluctant to issue temporary injunctions against government agencies about to engage in allegedly unconstitutional behavior, preferring as a matter of strategy to allow the challenged activity to proceed until the Court has had time to consider the matter on its merits.152 American legal scholars will recognize other Ashwander maxims in the Court’s general approach to constitutional disputes. A leading principle of judicial review in Germany obliges the Court to interpret statutes, when possible, in conformity with the Basic Law (Pfl icht zur verfassungskonformen Auslegung).153 If a statute lends itself to alternative constructions for and against its constitutionality, the Court follows the reading that saves the statute, unless the saving construction distorts the meaning of its provisions. The Court has also stated on numerous occasions that it will not substitute its judgment of sound or wise public policy for that of the legislature. Nor will statutes be overturned simply because the legislature may have inaccurately predicted the consequences of social or economic policy. As the Kalkar I Case (1978; no. 4.6)154 and the Codetermination Case (1979; no. 10.9)155 make plain, the Court grants a generous margin of error to the legislature. It will uphold an ordinary statute unless the statute clearly violates the principle of proportionality (Verhältnismäßigkeit), the constitutional state principle (Rechtsstaat), or some related principle of justice such as legal security, clarity, or predictability. The Court applies these same principles with respect to laws examined in the course of ordinary civil and criminal proceedings. In addition, the justices have developed several rules for limiting the number of concrete judicial review referrals from ordinary courts.156 One such rule requires ordinary courts to certify statutes for review when they are convinced that the law under which a dispute arises is unconstitutional,157 but only when a ruling of unconstitutionality would change the outcome of the case. Another is that only statutes passed since the ratification of the Basic Law qualify as subjects of concrete judicial review to be decided by the Constitutional Court. Any court

The Feder al Constitutional Court 35

may review and nullify on constitutional grounds legislation, administrative regulations, and local ordinances enacted before 1949. These so-called preconstitutional laws rank lower than laws passed since 23 May 1949.158 The Federal Constitutional Court has ruled, however, that such laws are within the scope of its concrete judicial review procedure when they have been reenacted or substantially amended under the Basic Law. The appropriate parties may nevertheless challenge an untouched preconstitutional law in an abstract judicial review proceeding.159 Finally, while the Court does not enjoy discretion akin to the certiorari power of the U.S. Supreme Court, it does have limited control over its docket through the three-justice chambers. As described earlier in this chapter, this admissibility review can, to no small degree, be instrumentalized to serve the Court’s interests, including its interest in maintaining its stock of prestige and respect. Still, it would be improper to portray the Court as unswervingly modest and restrained. It can fi nd its way into a dispute if it thinks it wise as a matter of constitutional politics. One example of this should suffice. In 1998 the Court dramatically disregarded the fundamental principle of self-restraint that holds that a party’s withdrawal of a constitutional complaint removes the matter from the Court’s jurisdiction. In the German Spelling Reform Case (1998) the Court noted that the general importance of a case might elevate the objective role of the constitutional complaint, making it more important to the broader interpretation and development of constitutional law than to the complainant’s subjective, individual interest in the protection of his or her constitutional rights. Brushing aside the complainants’ desire to avoid a ruling in the case, the Court seized the matter and upheld the reform. In so doing, the Court prompted scholarly criticism that raised concerns about effectively limiting the scope of judicial review in a democracy.160 Form and Effect of Decisions. Indeed, on fi rst impression and contrary to the mechanisms of judicial restraint mentioned in the previous section, the Court’s decisionmaking record might suggest a tribunal embarked on a path of relentless activism. By 31 December 2011, as noted in Table 4, the Court had invalidated 640 laws and administrative regulations (or par ticu lar provisions thereof) under the Basic Law. Of these negative rulings, the First Senate decided 372 and the Second Senate 268, more than 70 percent of which involved provisions of federal law, a percentage explained by the federation’s predominant lawmaking role in nearly every major area of public policy. The large majority of these rulings admittedly involved minor legal provisions, but a fair number featured important public policies in fields such as education, taxation, employment, social insurance, and labor law.161 Table 4 does not capture the distinct means by which the Court invalidates laws and regulations. The Constitutional Court may hold laws or regulations to be either null and void (nichtig) or incompatible (unvereinbar) with the Basic Law. When held to be nichtig, the statute or legal norm immediately ceases to operate. When declared unvereinbar, the statute or legal norm is held to be unconstitutional but not void; it remains in force during a transition period pending its correction by the

36 chapter one

table 4. Invalidated Legal Provisions, 1951–2011 Filed Against

Federal

State

Total

First Senate Second Senate

284 173

88 95

372 268 640

Invalidated legal provisions include federal or state laws/regulations declared void, incompatible and void, or only incompatible and not voided.

Source: Bundesverfassungsgericht, “Vom Bundesverfassungsgericht in der Zeit von 1951 bis 31.12.2011 als verfassungswidrig beanstandete Normen (nichtig, unvereinbar und nichtig, nur unvereinbar—ohne Nichtigerklärung),” available at www .bundesverfassungsgericht.de/organisation/gb2011/A-VI .html .

legislature. The latter approach has been sanctioned by the legislature and is an option the Court frequently exercises.162 These overrulings, however, are dwarfed by the number of laws or statutory norms that the Court has sustained over the years. With respect to laws that are upheld, the Court distinguishes between so-called unobjectionable (unbeanstandete) norms and those held to be in conformity with the Basic Law. Unobjectionable norms are those the Court sustains in the normal course of deciding constitutional complaints. The other category includes statutory provisions questioned in concrete judicial review cases but sustained in accordance with the principle that requires the Court to interpret a norm consistent with the Basic Law. The practice of declaring a legal provision unconstitutional but not void is one of two strategies used by the Court to soften the political impact of its decisions. Th is fi rst strategy uses admonitory decisions (Appellentscheidungen) to tender advice to the Bundestag with respect to statutes or legislative omissions that run afoul of the Basic Law or are likely to do so.163 Th is strategy of declaring a law or practice unconstitutional but not void is designed to prevent the greater hardship or inconvenience that would flow from the complete voidance of a statute. How long and under what conditions an unconstitutional but still-viable law can remain in force is a matter the Court reserves to itself to decide. The Court usually sets a deadline for corrective legislative action and occasionally directs the Bundestag to adopt a specific solution. More often the Court lays down the general guidelines within which the legislature is required to act.164 Under the second strategy, the Court actually sustains a challenged statute but warns the legislature that it will void it in the future unless the legislature acts to amend or repeal the law. Cases employing this decisional mode often involve equal protection claims arising out of statutes that deny benefits or privileges to some persons while conferring them on others.165 Such decisions are prudential judgments designed

The Feder al Constitutional Court 37

to give the legislature time to adjust to changing conditions or to avoid the political or economic chaos that might result from a declaration of unconstitutionality. By resorting to this procedure, the Court keeps the constitutional dialogue going and furnishes Parliament with the flexibility it needs to work out creative solutions to the problem under scrutiny. In some situations, however, when the Court declares a statute unconstitutional and void, it tenders “advice” that leaves little discretion to lawmakers so that the Bundestag is not left in a quandary as to what alternative policy or program would survive constitutional analysis. In the important Party Finance II Case (1966; no. 5.12), for example, the Court went so far as to tell the Bundestag that federal funding would have to be provided to minor political parties securing 0.5 percent of all votes cast in a federal election instead of the 1.5 percent limit previously established by law.166 In the well-known Abortion I Case (1975; no. 7.4), which invalidated a permissive abortion statute, the Court effectively rewrote the law, which Parliament subsequently felt obliged to pass. These rulings, like all of the Court’s decisions, including those that declare a statute or other legal provision compatible with the Basic Law, have the force of law, and as a consequence bind all branches and levels of government.167 In the Southwest State Case (1951; no. 3.1) the Court made it clear that the binding effect of its decisions also bars the legislature from reenacting a law after it has been declared unconstitutional. The binding effect principle applies to the actual ruling of a case and to the “essential” reasoning or rationale on which it is based. What constitutes “essential” reasoning, however, is not always clear. It does not embrace all arguments marshaled in support of a given result, although it seems to include those basic standards of review in terms of which a law is sustained or nullified, for these standards bind courts of law in their own interpretation of ordinary law. The one exception to the binding effect rule is the Federal Constitutional Court itself. (The rule of stare decisis does not bind the German judiciary.) While reluctant to depart from principles laid down in its case law, the Court will readily do so if convinced that it erred in an earlier ruling. Indeed, as the Census Act Case (1983; no. 7.9) underscores, constitutional provisions may themselves take on new significance in the light of changing social conditions. Whenever the Federal Constitutional Court strikes down a law in whole or in part, the effect is prospective (ex tunc). Th is rule is qualified, however, by a provision of the fcca that permits new trials in criminal cases in which a court convicts a defendant under a subsequently voided statute.168 Statutes declared incompatible with the Basic Law but not void may continue to be enforced, but only under conditions laid down by the Constitutional Court. The effect of such decisions on other courts is substantial; they may not proceed with pending cases arising under such statutes until the legislature has amended or corrected the statute in conformity with the guidelines set by the Federal Constitutional Court. It is important to remember that the Constitutional Court’s rulings are exclusively declaratory. The fcca includes a provision that actually bars direct enforcement.169 Its decisions are “enforceable” through ordinary legislation and judicial

38 chapter one

proceedings. The Court’s jurisdiction is also compulsory. It lacks a storehouse of “passive virtues” by which it might for prudential reasons avoid a ruling on a constitutional issue.170 Moreover, the Court’s declaratory authority is sweeping, for it is at liberty to range beyond the immediate issue before it and review the constitutionality of any part of a statute challenged in an abstract or concrete judicial review proceeding. To link judicial power of this character with direct executive implementation would pose an enormous threat to representative democracy in Germany. The Court’s ultimate legitimacy in the German system, as noted earlier, rests on its moral authority and the willingness of the political arms of the government to follow its mandates. But the Court is faced with a dilemma. If it is to perform its steering and integrative role in the German system, objectify the values of the Basic Law, and bring constitutional normativity into conformity with constitutional reality, it must rule, according to the modern German version of the constitutional state principle (Rechtsstaat), on a properly presented constitutional issue, even though such a ruling may thrust it headlong into a politically exposed position. The Court has learned to cope with this political exposure. For example, in cases involving disputes between high constitutional organs (i.e., separation of powers, or Organstreit, proceedings) or those brought by political minorities on abstract judicial review, the Court occasionally makes an ally of time, delaying decision until the controversy loses its urgency or is settled by political means, prompting the initiating party ultimately to withdraw the case. Largely because of this tactic, through 2011 the Court has resolved 168 of 180 Organstreit proceedings and 163 of 172 abstract judicial review proceedings.171 Judicial Review and the Polity. As this summary of constitutional review suggests, and as subsequent chapters show, the Federal Constitutional Court is at the epicenter of Germany’s constitutional democracy. “The Basic Law is now virtually identical with its interpretation by the Federal Constitutional Court,” remarked Professor Rudolf Smend on the Court’s tenth anniversary.172 By the 1990s Smend’s view was conventional wisdom among German public lawyers and constitutional scholars. Most scholars and legal professionals accept the Court as a legitimate participant in the larger community decision-making process, a remarkable achievement of postwar institution building in the Federal Republic. Professor Christian Starck, one of the Basic Law’s leading commentators, described this consensus when he referred to the Court as the “crowning completion of the constitutional state” and applauded its “decisive influence upon the development of our constitutional law.”173 We may hazard some guesses as to why Germany’s legal community accepts the Court as the fi nal, authoritative interpreter of the Basic Law. First, and most obvious, the Court functions as a specialized constitutional tribunal with clear authority derived from the constitutional charter itself. Second, a democratic legislature chooses the members of the Court just as it controls the Court’s organization and procedures. Constitutionally prescribed recruitment procedures all but guarantee that the Court

The Feder al Constitutional Court 39

is staffed by justices who are acceptable to the established political parties and broadly representative of established political interests, including the interests of the states as corporate entities within the German system. Th ird, after years of experimentation with various terms of office, including life tenure for justices elected from the federal courts, Germans settled on a simple, nonrenewable term of twelve years for each justice, the effect of which is to secure both the Court’s independence and a continuing membership profi le not too unlike that of Parliament itself. Finally, the Bundestag permitted the introduction of dissenting opinions in 1971—a practice barred in all other German courts. At the same time, the Federal Constitutional Court, like the U.S. Supreme Court, often fi nds itself in the eye of a political storm. Despite its democratic legitimacy, or perhaps because of it, the Court has developed into a fiercely independent institution and has struck down many statutory provisions and administrative regulations. A wave of public lectures, newspaper and television commentaries, articles in legal periodicals—some authored by former justices—and legal monographs have criticized the Court, although for the most part respectfully, for “judicializing politics” or “politicizing justice.”174 Some of these publications take the Court to task for many of its admonitory decisions, which, in the view of some critics, have turned the Court into a quasi-legislative institution. The previously mentioned Abortion I, Party Finance II, and Census Act cases, as well as the East-West Basic Treaty Case (1973; no. 6.1), Numerus Clausus II Case (1977), and the Aviation Security Act Case (2006) (discussed in Chapter 7) are examples of decisions faulted for improperly exceeding the limits of judicial power.175 Even more devastating, other critics have charged the Court with dampening legislative confidence and flexibility. Some argue that the Parliament legislates too much in the shadow of the Court, fearful that its laws may run afoul of some judicial order, standard, or admonition.176 These critics point to the tendency of legislators to tailor their work to anticipated Court decisions and to scrutinize constitutional cases for hints on how to shape public policy. If this tendency does prevail, the Court’s role in the polity is not exhausted by an analysis simply of its formal powers or its case law. The mere presence of the Court would seem to inhibit certain kinds of legislative activity. Th is criticism, harsh as it is, nevertheless is predicated on a shared commitment to the Court as an institution. There is another stream of commentary, however, identified mainly but not exclusively with neo-Marxist critics, that manifests far less sympathy for the Court’s institutional role in German politics. In the eyes of these critics, the Court serves as a brake on social change and is the main force responsible for the imposition of a constitutional ideology that sanctifies consolidation and stability, defends the status quo, and promotes consensus politics. There may be some grounds for this criticism, for the Court has often used its power—with prominent exceptions duly noted in the following chapters—to invalidate reforms regarded as progressive and liberalizing by large segments of German society.177 Still, the Court’s prestige remains high. A series of public opinion polls taken in recent years shows that it enjoys substantially more public trust than any other major

40 chapter one

political or social institution, including the Bundestag, the military establishment, the regular judiciary, the television industry, and even churches and universities.178 Th is public trust is also evident among former East Germans who have made appeals to the Federal Constitutional Court in significant numbers. The faith former East Germans have placed in the Court is, no doubt, grounded in the experience that, on a number of occasions mentioned in later chapters, the Court has vindicated constitutional claims originating in the new eastern states. The absence of any major political effort to curtail the Court’s powers despite its location at the center of many political storms is perhaps another manifestation of its general support throughout Germany. Even proposals by respected academic figures to abolish the Court’s controversial abstract judicial review jurisdiction,179 which the Court could well do without in light of the political manipulation that often accompanies the invocation of this procedure, have fallen on deaf ears. The Federal Constitutional Court’s durability is traceable to more than general public support. The Court owes much to Germany’s community of scholars, despite the acerbic pens of some writers. The literature on the Court, ranging from doctrinal controversy in professional journals to informed media accounts of par ticu lar cases, is comparable to the volume and sophistication of commentary on the U.S. Supreme Court. German commentators form an ever-widening interpretive community organized around a deepening interest in the Court’s work. According to Professor Peter Häberle, among the most learned of Germany’s judicial scholars, the commentators see themselves engaged in a common enterprise with the Federal Constitutional Court.180 Their constructive criticism and increasing assertiveness have been stimulated in part by the use of the Court’s own dissenting opinions.181 The high-spirited give-and-take between the justices and the commentators is an important element of German constitutional law and consciousness. That both Court and commentators see themselves engaged in actualizing the constitution in the public life of the nation undoubtedly reflects the authoritative role of constitutional commentary in argumentation before the Court and in the general influence of the professoriat on and off the bench.

conclusion Karlsruhe was the capital city of the Grand Duchy of Baden (1806–1918). During the Weimar Republic, Karlsruhe continued as the capital of the Republic of Baden (1918–33). After the Hitler regime’s defeat, the Allies reclaimed Karlsruhe as the hub of the Occupation Zone shared by American and French forces. Karlsruhe now has come to be known as “the capital of German justice” because it is the home of both the Federal Constitutional Court and the Federal Court of Justice. From its residence in Karlsruhe, the Federal Constitutional Court enjoys, as we have seen, a  breathtaking mandate, both in scope and depth. Its jurisdiction is unlike any German court that preceded it and in the time since its creation it has come to be

The Feder al Constitutional Court 41

regarded as one of the world’s most important constitutional tribunals. Symbolic of the Court’s prominence, it was not an exaggeration for Gerhard Casper to suggest in his keynote address at the state ceremony commemorating the Court’s fi ft ieth anniversary that modern Germany might properly be called the “Karlsruhe Republic.”182

2 The Basic Law and Its Interpretation ∂ The Basic Law (Grundgesetz) of the Federal Republic of Germany entered into force on 23 May 1949. Under the circumstances of a divided nation, the founders decided to write a “basic law” rather than a “constitution” (Verfassung) just as they chose to call the assembly charged with framing a new constitutional charter a “parliamentary council” (Parlamentarischer Rat) instead of a “constitutional convention” (verfassunggebende Versammlung). The founders resolved, in the words of the preamble, “to give Germany a new order to political life for a transitional period” (emphasis added), one that would end with Germany’s reunification. On that faraway day—or so it seemed at the time—the Basic Law would cease to exist. Accordingly, the Basic Law would expire “on the day on which a constitution freely adopted by [all] the German people takes effect” (Article 146).1 When that day fi nally arrived on 3 October 1990, following a remarkable series of events, German unity took place by accession under a now-superseded version of Article 23—that is, within the framework of the Basic Law itself. The decision to retain the Basic Law as an all-German constitution and to continue its designation as the Grundgesetz was not unanticipated. Over the course of the preceding forty years, particularly in the light of the huge body of decisional law created by the Federal Constitutional Court (Bundesverfassungsgericht), the Basic Law had come to assume the character of a document framed to last in perpetuity. The Basic Law has been amended dozens of times since 1949, but these alterations changed neither the basic structure of the political system nor the fundamental principles on which it was based. The most opportune moment for constitutional change occurred in 1990 when the Unity Treaty merged the two halves of Germany into a single nation-state. With their different legal, social, and economic systems, the two German states might have wished for a fresh constitutional start that would combine the freedoms of the Basic Law with cherished East German principles of solidarity. No such change took place, however, and no opportunity was granted to the German people as a whole to ratify the Basic Law.2 Minor surgery was deemed sufficient to incorporate East Germany—the German Democratic Republic—into the existing West German Constitution. Accordingly, the Basic Law was amended to reflect certain structural and representational changes resulting from West Germany’s absorption of East Germany and its eighteen million citizens.3 To allow the new German states (Länder) that once constituted East Germany time to adjust their laws to the new governing charter, particularly laws relating to abortion, property rights, and federal-state relations, the treaty temporarily suspended the Basic Law’s application to specified East German policies and procedures that would remain in force temporarily.

The Basic Law and Its Inter pr etation 43

These changes, along with several other treaty provisions, including those permitting the dissolution of certain East German institutions, spawned a large body of constitutional case law. (Special attention will be given in Chapter 10 to decisions involving property rights and occupational freedom in the context of reunification.) Although these and other reunification cases represented an important chapter in Germany’s postwar constitutional odyssey, they do not seem to have worked a change in the fundamental character or interpretation of the Basic Law.

new constitutionalism of the basic law The Constitution as Supreme Law. The Basic Law marks a radical break with Germany’s past. Previous constitutions in the democratic tradition were easily amended and judicially unenforceable. By contrast, the Basic Law defi nes itself as the supreme law of the land. As several of its provisions make clear, it controls the entire German legal order, and Articles 1, 19, 20, and 79 are, for present purposes, particularly relevant. Article 1 (3) declares that the fundamental rights listed in the Basic Law, including the inviolable principle of human dignity, “shall bind the legislature, the executive, and the judiciary as directly enforceable law.” In reinforcing this provision, Article 20 subjects “legislation” to the “constitutional order” (verfassungsmäßige Ordnung) and binds “the executive and the judiciary to law and justice.” In binding executive and judicial authority to “law” (Gesetz), the Basic Law’s founders had recreated a formal Rechtsstaat—a constitutional state (i.e., a state based on the rule of positive law, in German known as Gesetz- or Rechtspositivismus)—but now, unlike in the past, law would subordinate itself to the suprapositive notion of justice or Recht (loosely translated as law, right, or justice), one that appeared to include unwritten norms of constitutional significance. In short, the Rechtsstaat, far from being an end in itself, would now encompass the broader principle of a constitutional state. Articles 19 and 79 carry the principle of the Basic Law’s supremacy even further. Article 19 (2) bans any law or governmental action that undermines “the essential content of [any] basic right.” Article 79 (3), which contains the so-called eternity clause, bars any amendment to the Basic Law “affecting the division of the federation into Länder, their participation . . . in the [national] legislative process, or the basic principles laid down in Articles 1 and 20.” Article 1, as noted, sets forth the principle of human dignity that the state is obliged “to respect and protect,” whereas Article 20 specifies the nonamendable structural principles of the state, namely, the principles of the constitutional, federal, social, and democratic state. The Basic Law’s framers believed that the best way to realize human dignity, then and in the future, was to endow the concept with the status of a judicially enforceable constitutional right and to freeze certain principles of governance into the constitutional structure itself. Finally, the authority conferred upon the Federal Constitutional Court, as well as upon the judiciary as a whole, assures every person that the Basic Law will prevail over all legal rules or state actions that would subvert or offend it. Accordingly, Article

44 chapter two

19 (4) grants a judicial hearing to any person whose rights the state violates. Indeed, “recourse shall be to the ordinary courts” in the event that some other judicial remedy is not specified by law. Article 80 (1) of the Basic Law—yet another pillar of the Rechtsstaat—helps to protect the constitutional state against the arbitrary decisions of executive officials. It requires any law delegating power to administrative officials to specify the “content, purpose, and scope of the authorization.” In backing up this guarantee, moreover, any judge may refer questions to the Constitutional Court in cases where he or she seriously doubts the constitutionality of a statute or regulation.4 Failing these protections, individuals have the further option, once their legal remedies have been exhausted, of filing a constitutional complaint with the Constitutional Court.5 Human Dignity and Basic Rights. Germany’s new constitutionalism has placed human dignity at the core of its value system. Article 1 (1) declares: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.” The principle of human dignity, as the Constitutional Court has repeatedly emphasized, is the highest value of the Basic Law, the ultimate basis of the constitutional order, and the foundation of all guaranteed rights.6 Paragraph 2 continues: “The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.” The personal freedoms set forth in Article 2 reinforce the principle of human dignity. These include the right enjoyed by “every person” to the “free development of his [or her] personality” and to the inviolability of the “freedom of the person,” a freedom that includes the “right to life and physical integrity.” As for human personality, its development can be limited only by the “rights of others,” the “constitutional order,” and the “moral law.” Article 3 (1), the last of these general rights, secures to “all persons” equality before the law. The remaining sixteen articles of the “bill of rights” cover a long list of guaranteed rights largely associated with the Western political tradition. Several of these articles are word-for-word reproductions of corresponding articles in the Weimar Constitution of 1919. The difference is that the Weimar Constitution recognized basic rights as aspirational rather than as judicially enforceable norms. The notion of “inviolable and inalienable” rights is also sharply at variance with the spirit of earlier German constitutions, for the Basic Law is Germany’s fi rst national constitution to recognize the preconstitutional existence of guaranteed rights. The Basic Law treats such rights, contrary to the legal positivism underlying the Weimar Constitution,7 as vested in persons by nature and rooted in the universal concept of human dignity. General law (that is, positive law) may limit rights, but any such limitation would now be measured by the higher-law norms of the constitution. The Basic Law’s bill of rights traces its origin to the three major legal traditions that have shaped German life and law in the postwar era, namely, the traditions of social democratic, classical-liberal, and Christian natural-law thought. Each of these traditions has played a major formative role in German legal history; each had significant influence on the constitutional assembly of 1949; each fi nds many of its central values represented in the text of the Basic Law; and each continues its represen-

The Basic Law and Its Inter pr etation 45

tation in German political life today. The Social Democratic Party (spd) represents the socialist tradition; the Free Democratic Party (fdp) the classical-liberal tradition; and the Christian Democratic Union (cdu), together with its Bavarian affi liate, the Christian Social Union (csu), the Christian natural law tradition. In drafting the Basic Law, the representatives of these parties shed their historical antagonisms and, in a remarkable display of concord, drew willingly from the humanistic content of each tradition to create a constitution that combines the main values of each in a workable if not always easy alliance.8 At the risk of oversimplifying, one could attribute specific protections to these traditions. The classical-liberal tradition, for example, was responsible for many of the individual freedoms listed in several articles of the bill of rights (e.g., the rights to life and physical integrity [Article 2], equality [Article 3], religious exercise [Article 4], freedom of expression [Article 5], assembly [Article 8], association [Article 9], privacy [Article 10], movement [Article 11], and property [Article 14]). The socialist tradition contributed certain social welfare clauses, including provisions concerning the duties of property (Article 14) and the socialization of economic resources (Article 15). Finally, the Christian tradition added communal guarantees explicitly favoring the protection of marriage and the family (Article 6 (1)), the natural right of parents to educate their children (Article 6 (2)), and the institutional prerogatives of the established churches (Article 140). Philosophically, these traditions might be said to represent confl icting visions of the common good, yet they converge in the Basic Law around a common core of beliefs about the nature of constitutionalism and the dignity of the human person. The substantive values represented by these traditions are enormously important in the Federal Constitutional Court’s jurisprudence, although in the aftermath of reunification the traditions of sociality and solidarity that prevailed in East Germany might be added as a fourth system of values having an influence on Germany’s constitutional life. There is no debate in Germany, as there is in the United States, over whether the constitution is primarily procedural or value oriented. Germans no longer understand their constitution as the simple expression of an existential order of power. They commonly agree that the Basic Law is fundamentally a normative constitution embracing values, rights, and duties. That the Basic Law is a value-oriented document—indeed, one that establishes a hierarchical value order—is a familiar refrain in German constitutional case law. State and Morality. The Federal Republic’s constitutional system also differs from past regimes in its refusal to treat individual freedom as emanating from the state itself. The traditional theory of rights in Germany drew no clear distinction between state and society. The citizen was an organic part of the state and the state itself was an agent of human liberation.9 The German Staat and the English “state” are not equivalent terms. Der Staat is more than the body politic. It represents in Kant the perfect synthesis between individual freedom and the objective authority of law10 and in Hegel a moral organism in which individual liberty fi nds perfect realization in the

46 chapter two

unified will of the people: not arbitrary will but rather “the power of reason actualizing itself in will.”11 In brief, the Staat is considered by Hegel to be a superior form of human association, a uniting of individuals and society in a higher synthesis, a reality “in which the individual has and enjoys his freedom, [albeit] on condition of his recognizing, believing in, and willing that which is common to the whole.”12 Some features of the Basic Law, particularly its communitarian values, lend themselves to greater understanding in the light of these traditional German notions of liberty and state, notions suggestive of aspects of the Aristotelian polis as well as the early American tradition of civic republicanism.13 Nevertheless, as Leonard Krieger has pointed out, the founders of the Basic Law, mindful of the Nazi experience, discovered the “bankruptcy of the state as a liberalizing institution.” In his monumental study of the German idea of freedom, Krieger concluded that an attitude now predominates “which views the state as a morally neutral, purely utilitarian organization of public power.”14 Krieger’s assessment, while generally correct, needs to be qualified. The Basic Law as a modern twentieth-century constitution is interesting precisely because it subjects positive law to a higher moral order. Under Article 2 (1) of the Basic Law, for example, the “free development” of the human personality must conform to the “moral law.” To be sure, the Basic Law’s list of fundamental rights protects the ideological pluralism and moral diversity of the German people. But the moral law, as just mentioned, limits some rights as do certain conceptions of the human person and society found by the Constitutional Court to be implicit in the constitutional value of human dignity. The Constitutional Court itself rejects the notion of a value-neutral state. Instead, it speaks of a constitutional polity deeply committed to an “objective order of values,”15 although, as discussed later in this chapter, what this objective order means or from whence it derives is the subject of considerable disagreement on and off the Federal Constitutional Court. Judicial Interpretive Supremacy. The new constitutionalism not only establishes the Basic Law as supreme law, it also places the last word as to its meaning in the hands of the Federal Constitutional Court. The judicially enforceable constitution may be said to consist of three “documents.” The fi rst, as already noted, is the unamendable constitution established in perpetuity by the eternity clause of Article 79 (3). Indeed, as noted later in this chapter, the Constitutional Court has declared that an amendment to the Basic Law that would undermine or corrode any of its core values would be an unconstitutional constitutional amendment. The second is the amendable constitution, namely, those parts of the written text that can be altered without affecting the Basic Law’s core values. Finally, there are the unwritten or suprapositive principles implicit in such terms as justice, dignity, and the moral law, terms into which the Court has imported significant meaning. These governing principles, like the hierarchical value order the Constitutional Court has inferred from the text of the Basic Law, are an important part of Germany’s constitutional order. The judicial enforcement of constitutional values is a practice that departs measurably from the traditional judicial role in Germany. Germany’s variant of judicial

The Basic Law and Its Inter pr etation 47

review, however, differs from the American. The difference is at once subtle and profound, and it may be summarized as follows: Whereas American constitutionalism has historically entailed a creative interaction between the constitutional text and evolving political practice, German constitutionalism tends to place greater emphasis on the capacity of the formal text to influence political practice. Abstract judicial review, discussed in the previous chapter, is one manifestation of this tendency. Abstract review underscores the sovereignty and universality of constitutional norms and affi rms the essential unity of the constitution, a concept of constitutionalism seemingly related to the old notion of the Rechtsstaat that envisioned the state or polity as a purely juristic construction.16 In short, while judicial review under the Basic Law represents a major break with the legal tradition of the Rechtsstaat, it nevertheless continues to manifest elements of that tradition. Perhaps the following remarks will help to clarify this point. The American Constitution has historically served as a framework for the process of government. While the constitutional text and the polity have influenced one another, the bond between them is far from perfect.17 American pragmatism leaves a lot to chance and circumstance, shows little distress in constitutional ambiguity, and refuses to insist on the application of constitutional morality in all particulars. The Supreme Court has developed a battery of techniques to avoid constitutional decisions in certain cases and even to permit—under the aegis of the political question doctrine, the case or controversy requirement, and other devices for avoiding decision—contraconstitutional developments within the polity. The American legal mind is comfortable with the uncertainty that often prevails when, for prudential reasons, the Supreme Court declines to consider constitutional issues. Thus, the written constitution is far from coextensive with the American polity. In Germany, on the other hand, the Basic Law was designed not only to create a system of governance but also to foster a secure and preferred way of life.18 German constitutional scholars often speak of the steering, integrating, and legitimizing functions of the constitution, as if to suggest a more perfect bonding between text and polity.19 They insist on the strict enforcement of the Basic Law in all particulars, for to do otherwise would be to sanction a lawless society. In brief, there is less tolerance of uncertainty or ambiguity in constitutional matters. Confl icts between text and polity cause crises in the German public mind and commotion among legal scholars and others concerned with the proper relationship between the “normativity” of the constitution and the “existentiality” of political reality.20 Th is complex of attitudes has implications for judicial review. Abstract questions of constitutional law matter in Germany, in contrast to the Holmesian view—a predominantly American perspective—that general propositions do not decide concrete cases. Questions of constitutionality that do arise in the course of enacting legislation must be confronted, not avoided; there is, thus, a tendency to have the constitutional correctness of every important and controversial statute scrutinized by the Constitutional Court in Karlsruhe. The feeling exists that if legislation, however trivial or noncontroversial, is unconstitutional, then it is contrary to the Rechtsstaat

48 chapter two

and therefore bad for the body politic. In this spirit, Karl Heinrich Friauf has written that constitutional interpretation in Germany “forms a part of what we might call the eternal struggle for the self-realization of constitutional law in the life of the community.”21

nature of the polity Article 20, as already noted, sets forth the fundamental, nonamendable principles of the new republic. Beyond describing the polity as a “democratic and social federal state,” paragraph 2 decrees that “all state authority emanates from the people” and “shall be exercised by the people through elections and voting and by specific legislative, executive, and judicial organs.” The Basic Law thus creates a representative democracy undergirded by a system of separated powers. To ensure the realization of these values at all levels of government, Article 28 (1)—known as the homogeneity clause—declares that state and local governments “must conform to the principles of republican, democratic, and social government based on the rule of law.”22 Accordingly, Articles 20 and 28 advance several conceptions of the state that have achieved authoritative status in German constitutional law. These include the constitutional state (Rechtsstaat), the social state (Sozialstaat), the federal state (Bundesstaat), and the principle of democracy (Demokratieprinzip). The party state (Parteienstaat), a jurisprudential offshoot of the democratic principle, should be added to this mix. Constitutional State (Rechtsstaat). The term Rechtsstaat has no exact equivalent in English. Although best translated as “constitutional state,” this book also employs where appropriate the more common renderings of “law state,” “rule of law,” or “a state governed by law.” In its older and newer incarnations the Rechtsstaat embodies more than the idea of a mere government of laws.23 As developed originally in the nineteenth century, the Rechtsstaat was a “state governed by the law of reason,” one that insisted on the freedom, equality, and autonomy of each individual within the framework of a unified legal order defined by legislation and administered by independent courts of law. The traditional Rechtsstaat, while emphasizing the importance of formal liberty, was indifferent to whether the government of the day, as opposed to the timeless Staat, was monarchical, aristocratic, or democratic. It was not until later, toward the end of the nineteenth century, when the constitutional theorists Otto von Gierke and Rudolf von Gneist exercised great influence, that the Rechtsstaat began to integrate state and society and to proclaim the unity of law and the state. Although bound by laws administered by independent courts, the state took on a life of its own, undermining the individualistic rationale of the earlier Rechtsstaat. Finally, in the early twentieth century and during the Weimar Republic, the concept of the Rechtsstaat was increasingly associated with legal positivism. Written law was supreme law because it reflected the popular will, which was the ultimate basis of the Rechtsstaat’s traditional legitimacy. In this system, the courts had the duty to uphold the law as defined by statute

The Basic Law and Its Inter pr etation 49

and to ensure that all state activity was conducted according to the supreme legislative will, leaving little room for the exercise of constitutional judicial review. The Basic Law did not completely abandon the principles of the old Rechtsstaat. But the Basic Law now uses the term law (lex) in the sense of both Gesetz (statutory law) and Recht (law or right).24 Recht, however, may also be translated as “justice.” As stated in Article 20 (3), “the executive and the judiciary are bound by law and justice” (Gesetz und Recht), just as “legislation is subject to the constitutional order.”25 It bears repeating that the constitutional order of the Basic Law has been described as a value-oriented legal system. The Basic Law not only subjects law to the concept of justice; it also creates a fundamental system of values in terms of which all legislation or other official acts must be assessed. Ernst-Wolfgang Böckenförde, a former justice of the Federal Constitutional Court, puts it this way: The logic of thinking about values and justice demands that the constitution conceived along the lines of the material Rechtsstaat should lay claim to an absolute validity extending to all spheres of social life. It thus sanctions certain basic politicalethical convictions, giving them general legal validity, and discriminates against others that run counter to them. It no longer guarantees liberty unconditionally by way of formal legal demarcation; it does so only within the fundamental system of values [Wertgrundlage] embodied in the constitution.26

These values, like the concept of justice, as Böckenförde suggests, may trump liberty when they confl ict. Under the U.S. Constitution, on the other hand, liberty would often trump values—for example, the value of human dignity. In short, the social Rechtsstaat is not only governed by law; it is also perceived as a substantive charter of justice. Positive law must conform to the Basic Law’s order of values—as distinguished from guaranteed individual rights—informing the constitution as a whole. As already indicated, this expanded notion of the Rechtsstaat includes the judicial review of the constitutionality of laws and other governmental actions. As the highest institutional expression of the constitutional state principle, the Constitutional Court serves as the ultimate guardian of the Basic Law. Thus, any branch or level of government that violates the constitution or refuses to carry out a constitutional duty can be called to account in a proper proceeding before the Constitutional Court. Additionally, the Basic Law authorizes the Court to review the constitutionality of laws and to hear complaints from ordinary citizens claiming a violation of their fundamental freedoms by any agency or branch of government. These powers, together with the ability of all other judges to refer constitutional questions to the Court for resolution, impart additional normative force to the constitution. Social State (Sozialstaat). As judicially defi ned, the social state clause of Article 20 obligates the government to provide for the basic needs of all Germans. Th is commitment, however, does not mean that every social benefit conferred by law is mandated by the principle of the social state. Whether par ticu lar policies such as family allowances or educational benefits are constitutionally required by the principle of

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the social state is a matter of dispute among constitutional scholars,27 a dispute that has reached a new level of intensity in reunified Germany and under the impact of a globalized market economy. The concept of the social state, like that of the Rechtsstaat, has good pedigree in German constitutional thought.28 Its roots lie deep in the old Lutheran notion that, while the people owe allegiance to the prince, the prince in turn is bound to see to the welfare of his subjects. Th is idea fi nds its most prominent modern expression in the extant social security and protective labor legislation of the Bismarckian era. Backed by strong socialist influences and supported by Christian democracy, the social state as a concept of political order found full expression in the Weimar Constitution. Today even neoliberal, market-oriented advocates, not to mention Christian Democrats schooled in Catholic social thought, regard the Sozialstaat as an important ingredient of Germany’s constitutional tradition.29 If there was any doubt about this important ingredient of German constitutionalism, the Federal Constitutional Court put it to rest in the recent Lisbon Treaty and Hartz IV cases. In Lisbon (2009; no. 6.6), the Court described the social state as an essential part of what it described as Germany’s “constitutional identity,” a distinctiveness that cannot be sacrificed to any other value of the Basic Law. In Hartz IV (2010), the Court struck down a reform of the Federal Social Assistance Act because the Parliament (Bundestag) failed to consistently apply its methodology for establishing the “subsistence minimum,” the level of public support necessary to be consistent with the principle of human dignity.30 Nevertheless, a lively academic debate over the relationship between the Sozialstaat and the Rechtsstaat continues to engage German constitutional theorists. Formally conceived, the Rechtsstaat emphasizes the crucial importance of individual liberty, the right to choose one’s trade, and the right to acquire and dispose of one’s property. At what point do the demands and arrangements of the Sozialstaat begin to undermine the Rechtsstaat’s liberty-securing values and structures? German views range from the conservative perspective of Ernst Forsthoff, who argued that the Basic Law constitutionalizes an individualistically based, market-oriented, free enterprise economy, all the way to the left-wing view—one shared today by many former East Germans—that the Sozialstaat constitutionally requires major redistributive socioeconomic and tax policies.31 The Federal Constitutional Court’s perspective, covered at length in Chapter 10, falls between these poles. Federal State (Bundesstaat). The Basic Law defi nes Germany as a federal state and, as Article 79 (3) [3] stipulates, federalism is an unamendable feature of the Basic Law. Federalism as a constitutional principle—and requirement—is taken up in Chapter 3. It suffices here merely to mention that, in accordance with Article 79, states may change their boundaries and even merge with one another but only when this is accomplished by a federal law and confi rmed by referenda in the affected areas. Article 29 sets out these terms for territorial reorganization. Accordingly, Länder may be redefi ned or rearranged but not consolidated or transformed into a unitary polity. What is unamendable under Article 79 (3) is the division of Germany into territorial

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units or Länder and their participation in the national legislative process. Federalism is part of Germany’s ancestral heritage and arguably one of the roots of German democracy. Prior to 1849, and unlike Britain, France, and Spain—all unitary nation-states— Germany consisted of a collection of territorial governments, principalities, and free cities with their distinctive political, cultural, and religious or secular traditions. Little wonder the national constitutions of 1849, 1871, and 1919 created federations. The Frankfurt Constitution of 1849 converted the kingdoms and estates of the old German Confederation into a federal constitutional monarchy. The Imperial Constitution of 1871, designed to overcome the particularism and fragmentation of the North German Federation in the wake of an emerging capitalist economy, consolidated twenty-five states and city-states under Prussian leadership. The Weimar Constitution, fi nally, after continuing territorial adjustments, established Germany’s fi rst democratic republic consisting of seventeen states. Given this history of federated governments—and the priority the Allies gave to reestablishing local and state governments in the immediate aftermath of the war—West Germany’s constitution makers would surely have created a democratic federal republic even if the Allies had not insisted on it. But as the materials in Chapter 3 show, the precise nature of Germany’s new federal union remains a matter of some dispute among constitutional scholars. Democratic State (Demokratieprinzip). The Basic Law defi nes Germany’s political system as “democratic” in no fewer than eight of its provisions. Beyond these provisions, the principle of democracy comes into play in articles and clauses relating to elections, voting rights, political parties, freedom of speech and press, parliamentary representation, and the right to form independent associations. Each of the constitutional provisions defi ning or protecting these values and institutions has been the subject of repeated disputes before the Federal Constitutional Court. (The cases featured in Chapter 5, “Political Representation and Democracy,” incorporate the jurisprudence of democracy flowing from these disputes.) The democratic principle operates mainly through the institutions mentioned below in the section on state organization. It suffices here to note that the Basic Law provides for a system that is both parliamentary and representative, excluding all forms of direct democracy at the national level. One distinctive feature of German democracy is its intolerance of activities or ideologies opposed to or subversive of the “free democratic basic order.” These terms appear in no fewer than four articles of the Basic Law. Each permits restrictions on the exercise of certain rights if actively used to combat democracy. Article 21 (2) is among the most important of these provisions. It declares: “Political parties that, by reason of their aims or the behavior of their adherents, seek to impair or abolish the free democratic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional.” Accordingly, Germany has been described as a  “militant democracy” (streitbare Demokratie or wehrhafte Demokratie), terms adopted from the pre-war work of the exiled German jurist Karl Löwenstein by the

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Federal Constitutional Court in the famous Communist Party Case (1956). Article 18 is yet another expression of the constitutional principle that democracy is entitled to defend itself against its internal enemies. According to this provision, any person who abuses the basic freedoms of speech, press, teaching, assembly, association, or property “in order to combat the free democratic basic order” forfeits these rights. Indeed, under Article 20 (4), even ordinary “Germans have the right to resist any person attempting to do away with this constitutional order, should no other remedy be possible.”32 The notion of a militant democracy differs radically from what has been called the “value neutrality” of the Weimar Constitution. Freedom and democracy are paramount values of the “free, democratic, basic order” and their defense is the paramount duty of public officials and citizens alike. To minimize any abuse of power conferred by Articles 18 and 21, the Basic Law authorizes only the Federal Constitutional Court to order the forfeiture of rights or to declare parties unconstitutional. During the Weimar period the president of the Republic could ban parties and curtail rights on his authority under the emergency provisions of Article 48. Under the Basic Law, by contrast, the Constitutional Court retains its jurisdiction even during a state of emergency, including the authority to determine the forfeiture of basic rights under Article 18. In short, the Basic Law joins the protection of the Rechtsstaat to the principle that democracy is not helpless in defending itself against parties or political movements bent on using the constitution to undermine or destroy it. Party State (Parteienstaat). The Basic Law does not explicitly describe the Federal Republic as a party democracy but the Federal Constitutional Court has done so. In a departure from tradition as radical as judicial review itself, Article 21 of the Basic Law permits the free establishment of political parties, virtually certifying them as the chief agencies of political representation. Additionally, and in language recalling an older German theory of the state, Article 21 (1) declares that “political parties shall participate in forming the political will of the people.”33 Popu lar sovereignty is to be achieved through political parties competing in free and equal elections. In an effort to secure genuine majority rule, the constitution requires parties to organize themselves democratically and to account publicly for the sources of their funds. By characterizing Germany’s democracy as a Parteienstaat, the Constitutional Court has stamped political parties with a quasi-constitutional status. In particular, it treats parties as constitutional organs when engaged in election campaigns. Accordingly, as organs constitutionally empowered to form the people’s will for representational purposes, they may vindicate their electoral rights in Organstreit proceedings before the Court. Their status as constitutional organs for electoral purposes prompted the Court early on to recommend the public funding of political parties, a suggestion the Parliament took up almost immediately, leading to a series of important party finance cases decided by the Court between 1966 and 1993, several of which are featured and discussed in Chapter 5. Article 38, which provides for the “general, direct, free, equal and secret” election of parliamentary delegates, pulls in the opposite direction, namely toward an older, rep-

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resentative theory of democracy. Members of parliament, Article 38 declares, “shall be representatives of the whole people, not bound by orders or instructions, and responsible only to their conscience.” Here a natural-law principle—conscience—intrudes to limit the party loyalty implied, perhaps even mandated, by Article 21. The federal structure, like the theory of party responsibility, also tempers majority rule, for Land governments enjoy a corporate right to participate in the national legislative process and often exercise that right to delay or refuse their consent to bills passed by the Bundestag. In the end, the constitution seems ordained not only to achieve, under the rubric of majority rule, some degree of correspondence between public policy and popular will, but also, as a consequence of its federal structure, to serve as an instrument of political conciliation, consensus, and cohesion.34 State Organization. Further details on the organization of the state in Germany will be discussed in Part II on governmental structures and relationships. It suffices here simply to say that the Basic Law recreates most of the governmental structures established by the Weimar Constitution except for eliminating those crippling defects that facilitated Hitler’s rise to power. The Basic Law’s major structural changes were designed to stabilize German democracy. As in the Weimar Republic, authority remains divided among executive, legislative, and judicial institutions, but their relationship—or better, the constitution’s system of checks and balances—has changed. Executive authority is still shared by a federal president (Bundespräsident), a federal chancellor (Bundeskanzler), and a cabinet of federal ministers. Together, the chancellor and his or her cabinet are referred to as the federal government (Bundesregierung). The role of the president, however, is largely ceremonial. And since presidents are no longer popularly elected, as in the Weimar Republic, but rather indirectly elected by a federal convention, they are no longer in political competition with the chancellor. The key executive official is the chancellor, the leader of the largest party in Parliament, who determines the general guidelines of public policy. In addition, the chancellor’s position is far more secure than it was during the Weimar Republic. The popu lar legislative chamber, the Bundestag, whose members are elected for a four-year term, may not dissolve itself nor can it be dissolved by the chancellor. The Bundestag may dismiss the chancellor only by electing a successor, an innovation known as the constructive vote of no confidence. If a chancellor loses a vote of confidence on Parliament’s initiative and Parliament fails simultaneously to elect his or her successor by the required majority vote, the chancellor remains in office as the head of a minority government. Article 68 provides the only path toward Parliament’s dissolution. It authorizes the president to dissolve Parliament, but this power too is circumscribed. It requires that if the chancellor initiates a vote of no confidence and loses by a majority vote of Parliament’s members, only then may the chancellor request that the president dissolve Parliament and call for new elections. But the latter may not do so if he or she independently concludes that the chancellor has engineered or orchestrated a no-confidence vote merely to hold a new election in the hope of increasing his or her parliamentary majority. What is more, each of these

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political decisions is subject to review by the Federal Constitutional Court. (See Chapter 5 for a discussion of the two constitutional cases involving Article 68.) The Basic Law vests legislative power in the Bundestag and the Federal Council of States (Bundesrat). But the two chambers are not equal. The popularly elected Bundestag is the main policy-making organ of the national government. The Bundesrat is the organ through which Land governments participate in the national legislative process. Constitutionally, the Bundestag must consult the Bundesrat on all the policies it enacts, but the latter’s consent is required on proposed constitutional amendments, policies affecting the local administration of federal law, and other matters of special interest to the Länder, including laws on apportionment of expenditures and tax revenue. The Bundesrat also elects one-half the members of the Federal Constitutional Court. The two chambers are not comparable to the U.S. Senate and House of Representatives. First, the Länder do not have equal representation in the Bundesrat. Each state’s representation, ranging from three to six members, depends on its population. Second, each Land’s slate of votes in the Bundesrat must be cast as a block, a procedure that arguably gives the Länder as corporate entities much more leverage on certain issues than the American states enjoy in the U.S. Senate. Given what has already been said about courts and judges in the previous chapter, we need not dwell in this space on the powers and organization of the judiciary, except to say, once again, that German judicial organization is very different from the American system. Germany, unlike some other federal systems, does not have a dual system of federal and Land courts. The German judicial system is specialized and unitary. It features separate hierarchies of administrative, social, fi nance, and labor courts as well as ordinary courts of civil and criminal jurisdiction. All courts of fi rst instance and intermediate courts of appeal in each area of specialization are Land courts, whereas all fi nal courts of review in each of the subject-specific hierarchies are federal tribunals. The Federal Court of Justice (Bundesgerichtshof), the successor to Weimar’s Imperial Court of Justice (Reichsgericht), is the last court of appeal in ordinary civil and criminal matters. Although all fi rst instance and intermediate courts are established and staffed by the Länder, federal law defines their structures and procedures along with the qualifications and legal status of their judges. Finally, the Federal Constitutional Court stands apart from and independent of all these courts, serving not only as the guardian of the constitution’s values but also as the rudder that guides and directs the political system as a whole. In sum, the Basic Law builds on and strengthens older structures and practices in Germany’s constitutional tradition. Popular sovereignty, affi rmed once again, now manifests itself in representative institutions rather than plebiscites; political parties, fortified by a new electoral system combining single-member districts with proportional representation, organize these institutions in the public interest; a strong chancellor, unremovable save by a constructive vote of no confidence,35 stabilizes the government; the basic structure of federalism, now beyond the power of the people to amend, is established in perpetuity; separation of powers now includes the judicial

The Basic Law and Its Inter pr etation 55

control of constitutionality; and, fi nally, majority rule is overlaid with a complex system of checks and balances, not to mention the indirect election of the federal president.

theories of the constitution The Federal Constitutional Court’s approach to constitutional interpretation needs to be understood within the context of Germany’s civilian legal culture, one inviting brief comparison with the American common-law tradition. The following description of judicial decision making in Germany and the United States oversimplifies a more complex reality, but it nevertheless helps to capture the spirit of the judicial role in the two countries. The German legal mind, schooled historically in the tradition of conceptual jurisprudence (Begriffsjurisprudenz) or legal positivism, tends to envision law as a legislatively created, self-contained, rational, deductive system of rules and norms. Positing a sharp separation between law and morals—between the “is” and the “ought”—Begriffsjurisprudenz seeks to create a science of law marked by its own internal standards of validity. It strives to separate law from the domains of politics, psychology, and sociology.36 Law, in short, rests on an independent foundation of reason and logic. In this mode of legal thought the judge does little more than mechanically apply fi xed rules of law. Accordingly, fidelity to law as written is the judiciary’s major commitment.37 The American conception of law, by contrast, derives its spirit from the common law, the essence of which is captured in Oliver Wendell Holmes’s famous aphorism, “The life of the law has not been logic, it has been experience.”38 Like Holmes, Americans generally have understood law as a pragmatic enterprise. Correspondingly, they understand the concept of judicial decision making as an inductive process of reasoning open to extralegal influences and responsive to social change. Common-law judging, at least as it has emerged in the twentieth century under the influence of the realist school of jurisprudence, is more than simply applying the law as written. Its task is to solve problems, often by appealing to societal values and the perceived needs of  public policy. Historically, common-law judges have understood themselves as engaged in a creative process, one driven, as Cardozo wrote, not only by the “directive force of precedent,” but also by history and tradition.39 Law, particularly in nineteenthcentury America, was mainly judge-made law, and one of its main purposes was at once to limit the state and to promote the release of private entrepreneurial energy.40 Code-law reasoning in Germany’s civil-law tradition, like common-law reasoning in the United States, has exerted a powerful influence on the development of public law, including constitutional law. If the spirit of American public law is symbolized by figures like Holmes, Pound, Cardozo, Llewellyn, Frank, and Hand,41 the spirit of German public law is personified by legal theorists such as Jellinek, Anschütz, Laband, Puchta, Radbruch, and Kelsen.42 Similarly, if American constitutional jurisprudence locates its indigenous roots in the realism of Madison, Hamilton, and Wilson,43

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German constitutional jurisprudence fi nds its compass in the idealistic rationalism of Hegel, Kant, and Fichte.44 Th is remark may blur important distinctions among German schools of legal thought, yet the one notion that emerges relatively intact, in contrast to the United States, is the reality and ubiquity of the state. German legal theorists, sometimes to a calamitous degree, have commonly assumed that law and justice would thrive solely within the bosom of that near-perfect society known as the state. The Basic Law represents a major break from this tradition. It does not regard the state as the source of fundamental rights. The core of individual freedom, like human dignity itself, is regarded as anterior to the state. Thus, law and justice, as we have seen, now measure the validity of governmental actions, including judicial decisions. Inalienable rights, justice, values, and other such notions arguably present in the Basic Law militate against the methodology of legal positivism. And yet, for all that, the analytical approach to judicial reasoning rooted in Begriffsjurisprudenz has had a lasting influence throughout Europe, including Germany.45 German constitutional scholars, no less than the justices of the Federal Constitutional Court, have made significant attempts to build a theory of judicial decision based on reason and logic. In discussing these contrasts between legal cultures, we should observe that in both Germany and the United States, countervailing theories of law have always challenged the dominant mode of legal thought. In Germany, for example, the extent to which judges were free to depart from the will of the legislature was a central issue in legal argument during much of the nineteenth century. Begriffsjurisprudenz, while it predominated during this period, had to defend itself against the historical school of jurisprudence.46 By the same token, in the early years of the twentieth century the “free law” school of judicial interpretation and the Interessenjurisprudenz of Philipp Heck and Rudolf von Ihering assailed the prevailing school of legal positivism.47 Then too, during the Weimar Republic—against the backdrop of the continuing revolt against legal positivism—neo-Hegelian, neo-Kantian, and phenomenological schools of legal thought were developing new theories of law and judicial interpretation in an effort to overcome the “is-ought” dichotomy at the heart of legal positivism.48 Finally, after World War II, natural-law theory, breaking out afresh from both Catholic and Protestant sources, has endeavored to depose legal positivism.49 In the United States, pragmatic jurisprudence had to face similar challenges, ranging from those of David Dudley Field, Christopher Langdell, and Owen Roberts, each of whom tried to build a true science of law or judging, to those of the valueoriented natural-law “moralists” and fundamental rights “objectivists” of our own time.50 Structural Unity of the Basic Law. In its fi rst major decision—the Southwest State Case (1951; no. 3.1)—the Federal Constitutional Court underscored the internal coherence and structural unity of the Basic Law as a whole.51 “No single constitutional provision may be taken out of its context and interpreted by itself,” declared the Court. “Every constitutional provision must always be interpreted in such a way as to

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render it compatible with the fundamental principles of the constitution and the intentions of its authors.”52 Justice Gerhard Leibholz, commenting on Southwest State, elaborated: “The Court holds that each constitutional clause is in a defi nite relationship with all other clauses, and that together they form an entity. It considers certain constitutional principles and basic concepts to have emerged from the whole of the Basic Law to which other constitutional regulations are subordinate.”53 In one important case the Court alluded to the “unity of the constitution as a logicalteleological entity,” a concept traceable to Rudolf Smend’s “integration” theory of the constitution.54 Smend regarded the constitution as a living reality founded on and unified by the communal values embodied in the German nation. In Smend’s theory, the constitution not only represents a unity of values, it also functions to further integrate and unify the nation around these values.55 Yet the unity the Court has found in the constitution does not imply a single grand theory of the polity that pervades the Basic Law as a whole. Nor does it imply the absence of competing interests or values. What it does imply is the need for reconciling these interests or values. The German state’s constitutional design is multifaceted; as noted earlier, the Basic Law defi nes the political system as federal, social, and democratic, just as Germany’s democracy has been judicially characterized as a liberal and militant party state. The liberalism and militancy of German democracy has in turn been linked to the Basic Law’s principle of human dignity. The interpretive problem is to keep each of these visions of the state—federal, democratic, social, liberal, and party-directed—alive and in some kind of creative balance, so that a judicial emphasis on any one dimension within a par ticu lar context does not result in the erosion or neglect of another in some other context. Objective Order of Values. As already noted, the Constitutional Court envisions the Basic Law as a unified structure of substantive values.56 The centerpiece of this interpretive perspective is the concept of an “objective order of values,” one that derives from the gloss the Constitutional Court has put on the constitutional text. The Court had originally emphasized the negative aspect of rights. But in one of its early decisions the Court remarked, “There is no doubt that the main purpose of basic rights is to protect the individual against the encroachment of public power . . . but it is equally true that the Basic Law erects an objective order of values in the section on basic rights. Th is system of values, which centers on the dignity of the freely developing person within society, must be seen as fundamental to all areas of law.”57 Accordingly, the constitution incorporates the basic value decisions of the founders, the most basic of which is their choice of a free democratic basic order buttressed and reinforced by basic rights and liberties, all of which are crowned and informed by the master principle of human dignity. These basic values are “objective” because they are said to have an independent reality under the constitution, imposing on all organs of government an affi rmative duty to see that they are realized in practice. The notion of an objective value order may be stated in another way. Every basic right in the constitution—for example, freedom of speech, press, religion, association,

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and the right to property or the right to choose one’s profession or occupation—has a corresponding value. A basic right is a negative right against the state, but this right also represents a value, and as a value it imposes a positive obligation on the state to ensure that it becomes an integral part of the general legal order.58 One example may help illuminate this complex principle: The right to freedom of the press protects a newspaper against any action of the state that would encroach on its independence, but as an objective value applicable to society as a whole, the state is duty-bound to create the conditions that make freedom of the press both possible and effective. In practice, this means that the state may have to regulate the press to promote the value of democracy. For example, it might enact legislation to prevent the press from becoming the captive of any dominant group or interest. In addition, the Court speaks of a ranked order of values, one in which human dignity tops the ranking with the general values of liberty, equality, personal inviolability, and physical integrity following close behind. The application of this value order to specific situations, however, has been a source of confl ict on and off the bench.59 For many of the critics, an appeal to objective values is little more than open-ended judicial decision making disingenuously posturing as rationality.60 As Clarence Mann has written, “It harbors the illusions of determinate norms in the fact [sic] of unarticulated value premises and of judicial neutrality aloof from the creative search for normative content”; yet, in contrast to Begriffsjurisprudenz, it does “not necessarily exclude considerations of political reality in the construction and application of the constitution.”61 In short, it satisfies the traditional German yearning for objectivity in the sense of separating law from politics, yet tolerates the search for the social and moral purposes behind constitutional provisions. Relatedly, the Constitutional Court has occasionally spoken of certain suprapositivist norms that presumably govern the entire constitutional order. In an early case, decided in 1953, the Court, recalling the Nazi experience, rejected “value-free legal positivism.”62 The First Senate, at the time presided over by President Josef Wintrich, an influential Catholic jurist with roots in the Thomistic tradition, appeared to accept natural law as an independent standard of review.63 Since then, particularly when interpreting the Basic Law’s equality clauses, the Court has tended to speak in terms of “justice” rather than in the language of natural rights.64 Some constitutional cases, however, appear to defend such principles on a theory of legal positivism rooted in specified constitutional rights of lower and higher rank. In this reckoning, the value order of the Basic Law is an essential part of the positive legal order itself. Still, it is not altogether clear from the Court’s jurisprudence whether the suprapositivist norms underlying the constitution exist outside the text, reflect the express values of the text, or account for the hierarchical order the Court has discerned among the values constitutionalized by the framers. Whatever the answer, the hierarchical system of values found to inhere in the Basic Law is itself largely a product of constitutional interpretation. Unconstitutional Constitutional Amendments. As noted earlier in this chapter, the Federal Constitutional Court has empowered itself, under Article 79 (3), to review

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the substance of constitutional amendments that impair or diminish the immutable principles of the Basic Law.65 These essential elements include the principles of democracy, federalism, constitutional state, the social state, and the participation of the Länder in Germany’s national legislative process. They also embrace the “inviolable” principle of human dignity that “all state authority,” under the terms of Article 1 (1), has the “duty to respect and protect.” As early as 1953 the Constitutional Court proclaimed its authority to overturn a constitutional amendment on the basis of Article 79 (3).66 Since then, the Court has reviewed the substance of constitutional amendments allegedly infringing rights originally laid down in Articles 10 (privacy of correspondence and telecommunications), 16 (right to asylum), and 143 (suspending property rights under Article 14).67 More recently, in the Lisbon Treaty Case (2009; no. 6.6), the Second Senate of the Constitutional Court made the “constitutional identity” secured by Article 79 (3) a central interpretive device in its dicta expressing caution with respect to the Lisbon Treaty and the eu due to their democratic deficits. In one passage, the senate speaks of Germany’s “inalienable constitutional identity,” which it associates with the democratic or majoritarian parliamentary character of the governmental system created by the Basic Law.68 Although the senate found the act ratifying the Lisbon Treaty compatible with the Basic Law, it held unconstitutional the accompanying statute reducing the roles of the Bundestag and Bundesrat in eu affairs, thereby breaking what the senate deemed as an essential link in the chain of German democracy. In the senate’s view, there must be a direct relationship between the votes of the German people and national legislative policy. Accordingly, the senate ruled that, before the treaty could enter into force, a statute would have to be enacted granting to the Bundestag and Bundesrat sufficient rights of participation in the transfer of powers to eu institutions. The Basic Law permits the legislative transfer of sovereign powers to the eu, but it does not empower either parliamentary body to surrender any part of Germany’s constituent power to govern its own affairs. In the Court’s interpretation of Article 79 (3), the country’s national constitutional identity—particularly in the form of the federal, democratic, social, and constitutional state—cannot be altered by any treaty or constitutional amendment that compromises the principle of national selfdetermination or the essence of Germany’s sovereign statehood.69 (See Chapter 6 for a further discussion of the Lisbon Treaty Case.)

theory of basic rights The theory underlying the interpretation of basic rights in Germany is complex. Actually, it would be more appropriate to speak of theories rather than a single theory of rights. These theories include the negative and positive character of basic rights, the horizontal application of basic rights in the interpretation of private law, and normative theories rooted in various conceptions of the polity as a whole. We consider each in the order indicated.

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Dual Character of Rights. The Federal Constitutional Court has described guaranteed rights as both negative and positive as well as subjective and objective. A negative right is a subjective right to liberty. It protects individuals against the state, vindicating their right to unobstructed freedom and autonomy. A positive right, on the other hand, represents a claim the individual may have on the state. In the German understanding, positive rights embrace not only a right to certain social needs, such as a right to a minimum standard of living,70 but also a right to the effective realization of certain personal liberties. For example, in the Numerus Clausus I Case (1972; no. 10.12)71 universities were required to expand their facilities to make good on the basic right to choose one’s occupation. Yet, as we have seen in our discussion of objective values, personal freedom and autonomy are limited by the requirements of human dignity—a principle the state is duty-bound to foster and respect. The best example here is the Abortion I Case (1975; no. 7.4) in which the Court directed the state, as a general principle, to protect the life of the fetus against the constitutionally guaranteed personality right of the mother. Another way of describing the German perspective is to suggest that the Basic Law embodies a “facilitative” model of freedom as opposed to the American “privatizing” model deeply rooted in Lockean political theory. The facilitative model, as W. Cole Durham defi nes it, “[reflects] a tradition in which freedom tends to be seen not as the polar opposite of community, but as a value that must be achieved in synthesis with community.” In this setting, Durham continues, “it is natural for the state to assume a more affi rmative role in actualizing specific constitutional rights.”72 Although closely related, a positive right is not the same as an objective value. An objective value imposes a duty on the state. The state must create and maintain an environment conducive to the realization of basic values. In short, objective values speak to the organization of the state and society as a whole. A positive right, on the other hand, is an individual right or, perhaps more accurately, an entitlement that the individual may claim from the state. Reference to the positivity of rights implicates the par ticu lar situation of an individual, one who may need the state’s help to enjoy a basic right effectively, such as, for example, the right to the development of one’s personality. In this respect, the notion of a right under the Basic Law is broader than the concept of a right under the U.S. Constitution. A right in the German constitutionalist view embraces not only the right to be left alone, free of state interference, but also a claim to assistance in the enjoyment of the right. Horizontality of Rights. In the seminal Lüth Case (1958; no. 8.1)—a free speech decision—the Constitutional Court remarked that the Basic Law’s objective system of values “expresses and reinforces the validity of the [enumerated] basic rights.”73 The decision solidified the canonical status of the Basic Law as a hierarchy of objective values. The Court also spoke once again of the negative and positive character of rights. Lüth acknowledges that basic rights are indeed fundamentally negative rights against the state, suggesting that constitutional rights apply directly to public law. But Lüth goes on to say that the constitution’s objective values “reinforce the effec-

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tive power of these rights,” extending their reach indirectly into the domain of private law, affecting the relation between private parties. The indirect reach of constitutional rights into private law—their horizontal or third-party effect (Drittwirkung)— means that fundamental rights, as the Court occasionally puts it, have a “radiating effect” upon private law, requiring the latter to be interpreted in conformity with the former. Constitutional law seldom overrides private law but, rather, transforms it. More precisely, constitutional law influences the interpretation. In short, a third party—that is, one involved in a private legal dispute—may effectively invoke a constitutional value in his or her defense when sued under a provision of ordinary law, the application of which devalue the importance or significance of the constitutional value. The dispute in Lüth arose out of a lawsuit in which a popu lar fi lm director, Veit Harlan, won a civil damage award from Erik Lüth, a public information official who publicly advocated a boycott of one of the director’s fi lms. Harlan, a favorite of Nazi leaders, had produced notoriously anti-Semitic fi lms during the Th ird Reich. Exonerated after World War II, Harlan reemerged as a major fi lm director. Lüth, an active member of an organization of Christians and Jews, was outraged and sought to convince theater owners not to show Harlan’s fi lms while enjoining the public not to see them. A court found for Harlan under a provision of the Civil Code (Bürgerliches Gesetzbuch) obligating a person to compensate another for intentionally causing him or her harm contrary to “good morals.” In overturning the judgment, the Constitutional Court held that the ordinary court had given insufficient attention to the basic value of free speech, particularly in circumstances in which the community was being addressed on an important matter of general interest. In Lüth, the Court held that the ordinary court, by focusing exclusively on the director’s private interest, had ignored the effect of basic rights on private law. In this case, the ordinary court had overlooked the importance of the “objective value” or “value decision” folded into the Basic Law’s free speech provisions. Private legal arrangements, declared the Court, must be interpreted in the light of the special significance of free speech in a democratic state. The Court has taken the same view of other constitutionally cognizable rights, fi nding them equally applicable to third persons whose complaints arise out of private legal interactions like employment contracts or tortious conduct.74 There is little dispute in Germany over the acceptance of the horizontal effect doctrine. What is disputed is the extent to which a value decision or objective norm should influence the interpretation of private law. How much of a radiating effect the constitutional order of values should have in a par ticu lar dispute is to be determined by the judges of the ordinary courts. If a judge has adequately considered the significance of this order of values, the Federal Constitutional Court ordinarily allows his or her judgment to stand even if, in deciding the case de novo, the Court might have reached a different result. The Constitutional Court must be convinced that the ordinary court has not ignored the significance of the constitutional value.75 Substantive Rights Theories. The Constitutional Court’s search for a coherent theory of basic rights (Grundsrechtstheorie) has also evolved out of the concept of an

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objective system of values. Constructing such a theory, however, has not been easy. Drawing upon the broad and general language of the Basic Law, German constitutional theorists have advanced five normative theories of basic rights: liberal, institutional, democratic, value-oriented, and social.76 Each fi nds some support in the literature of constitutional theory; each draws some support from par ticu lar decisions of the Federal Constitutional Court.77 Liberal theory, based on postulates of economic liberty and enlightened self-determination, emphasizes the negative rights of the individual against the state. Institutional theory focuses on guaranteed rights associated with organizations or communities such as religious groups, the media, universities (research and teaching), and marriage and the family. Democratic theory is concerned with certain political functions incident to the rights of speech and association and the role of elections and political parties. Value-oriented theory places its emphasis on human dignity as it relates to rights flowing from the nature of personhood. Social theory, fi nally, highlights the importance of social justice, cultural rights, and economic security. Not surprisingly, scholars and judges have linked each of these theories to one or another of the conceptions of the state discussed earlier. It is possible through interpretation to regard one of these five theories as dominant. Yet each, like each conception of the state, has some basis in the text of the Basic Law. Like their counterparts in the United States, many constitutional theorists expend considerable energy debating whether or not there is an “objectively” correct interpretation of the Basic Law’s fundamental rights provisions. For its part, the Constitutional Court seems content to decide human rights disputes on a case-bycase basis, using what it regards as the most convincing argument or theory available in a given situation, an approach that is more acceptable in a system that does not abide by stare decisis. The justices can easily draw on the logic of any of the five theories because these theories are not wholly inconsistent with one another. Tensions between them do exist, and much of the work product of the Federal Constitutional Court described in this book is best understood as a playing out of these tensions.

interpretive modes and techniques Constitutional interpretation as practiced today by the Federal Constitutional Court draws on several of Germany’s competing traditions of law and judicial process. Thus, we observe styles of argument ranging from reliance on linguistic analysis to the invocation of suprapositivist norms purportedly underlying the Basic Law.78 Like the U.S. Supreme Court, the Constitutional Court employs a variety of interpretive modes, including arguments based on history, structure, teleology, text, interest balancing, and natural law. The one technique that is not formally followed in German constitutional analysis is that of stare decisis—which is unknown in the judiciaries of code-law countries—although judicial opinions, especially those handed down by the Federal Constitutional Court, typically brim with citations to prior cases. These approaches or modes of analysis have generated a critical literature in Germany as

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abundant as it is controversial. Like its equivalent in the United States, this literature is concerned largely with the legitimacy and justification of judicial decision making.79 Standard Interpretive Approaches. Any discussion of constitutional interpretation in Germany begins with the usual reference to the grammatical, systematic, teleological, and historical methods of analysis.80 In resorting to one or more of these methods, the Constitutional Court draws on the conventional approach to judicial decision making in German statutory law that originated in the formalism of the nineteenth-century school of jurisprudence known as pandectology.81 Grammatical, or textual, analysis, often the starting point of judicial interpretation, focuses on the ordinary or technical meaning of the words and phrases in a given constitutional provision. Occasionally, words and phrases are construed in a narrow legal sense, as in cases involving the rights of criminal defendants, to satisfy the technical requirements of the law. In other instances, they tend to be interpreted in terms of their plain meaning. Systematic—or structural—reasoning, by contrast, searches for the meaning of par tic u lar words and phrases by examining the constitution as a whole. Th is mode of reasoning stems from the Constitutional Court’s view of the Basic Law as a unified structure of values and relationships. Rather than focusing on the meaning of isolated words and phrases—a clause-bound approach to constitutional interpretation—systematic reasoning centers on their location within the text and the normative structure of the Basic Law as a whole. Teleological interpretation, on the other hand—a favored form of judicial reasoning in Germany—represents a search for the goal, purpose, utility, or design behind the constitutional text. Here the Court seeks interpretive guidance from the history and spirit of the constitutional order. Historical analysis, fi nally, seeks to shed light on the language and purpose of the constitutional text by reference to the Basic Law’s draft ing history. History by itself, however, seldom dictates the meaning of the constitution.82 At best, it performs the auxiliary function of lending support to a result arrived at by some other method of interpretation. Taken together, it is difficult to rank these approaches to interpretation in any fi xed order of priority. Like the U.S. Supreme Court, the Constitutional Court uses whatever approach or combination of approaches seems suitable in a given situation, except that arguments grounded in text, structure, or teleology generally prevail over those based on history.83 Constitutional justices often portray these conventional canons of interpretation as ways of discovering the “objective will”—to be distinguished from the subjective intentions—of the Basic Law’s framers. Teleological reasoning is even claimed to be objective in this sense, although the sources used in discovering the telos of the Basic Law are unclear. The constitution’s draft ing history is one source but, as just noted, history is mainly a supplementary aid to interpretation. In truth, the teleological approach is itself susceptible to the subjectivism that the canonical tradition would hope to avoid. Karl Heinrich Friauf observed that the teleological approach is a “gateway through which consideration of social policy and even the political philosophy of the justices flow into the interpretation of the constitution.”84 Justices and

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scholars do not always so readily acknowledge the creative character of constitutional interpretation. Nevertheless, most commentators are aware of the limits of these customary methods of interpretation. As Konrad Hesse, a former justice of the Constitutional Court, pointed out, the objective will thesis, so assiduously applied in statutory construction, is unsuited to constitutional interpretation.85 For one thing, no order of priority among these methods exists when their application leads to different results. For another, as Friauf suggested, there is no mechanical way of applying these methods to the open-ended words and phrases of the Basic Law. When these methods fail or if the Court is faced with a dispute involving competing constitutional values, it often resorts to ad hoc balancing. Indeed, the rhetoric of conceptual jurisprudence belies the “pragmatic, flexible and undogmatic” approach to constitutional interpretation that often characterizes the Court’s work.86 Competing Judicial Visions. The tension between objectivity and creativity that commentators have noticed in the Constitutional Court’s work product reflects a larger confl ict between competing visions of the judicial function. Two general approaches to judicial decision making emerge from the materials in this book. The fi rst approach, which distinguishes sharply between the functions of judge and legislator, is as familiar to Americans as it is to Germans. In this view, making law is not the same as interpreting it. The justice is bound to the prescribed norms of the constitution; his or her task is to discover the content of these norms and then to apply them uncompromisingly, a process known as theory of binding norms (Normgebundenheitstheorie).87 German no less than American justices have sought to perpetuate this traditional view of the judicial function. “The Court can only unfold what already is contained . . . in the constitution,” wrote Professor Ernst Friesenhahn, a former Constitutional Court justice.88 He continued, “As an independent, neutral body, which renders decisions solely in terms of law, [the Court] determines the law with binding effect when it is disputed, doubted or under attack. In doing so, [the Court] bears no political responsibility, though its decisions may have great political significance.”89 Justice Paul Kirchhof, whose twelve-year term on the Court expired in 2003, compared the judicial role to that of a soccer referee, one in which the justice merely enforces existing rules by throwing up red and yellow cards.90 Justice Gerhard Leibholz, an influential member of the Second Senate for twenty years—he served prior to the adoption of the twelve-year nonrenewable term of office—also drew a bright line between “politics” and the “political law” of the constitution.91 He distinguished between disputes of a “legal-political character which can be placed under legal constitutional control” and disputes of a “purely political nature . . . which cannot be decided according to the rules of Law.”92 Consistent with the conventional German approach to constitutional review, the Constitutional Court, in Leibholz’s view, is under a duty to explore every relevant fact and aspect of law in a case so as “to fi nd the truth objectively.”93 In a similar vein, Justice Helmut Simon, a former member of the First Senate, said that the Federal Constitutional

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Court “neither creates norms nor belongs to those political institutions responsible for the active structure of our common life or the future of the community. As an organ of the judiciary, its function, like that of other courts, is limited within the framework of a judicial proceeding, to the application and interpretation of laws originating in some other forum. . . . [It has no other power] except that of declaring acts of public authority constitutional or unconstitutional.”94 Nevertheless, a number of justices and constitutional scholars have acknowledged the inherent limits of Normgebundenheitstheorie. Professor Konrad Hesse, appointed to the First Senate in 1975 and the author of a leading treatise on constitutional law, is openly critical of the judicial function conceived as an objective process of discovery upon the application of a given methodology.95 For him, constitutional interpretation is an art flowing from the interplay between text and interpreter: the justice perceives the meaning of a constitutional text, as he or she reflects on the present, in the light of constitutional language drafted within a given historical context. In the view of Justice Ernst-Wolfgang Böckenförde, a former member of the Second Senate, constitutional interpretation requires a delicate balancing of competing values as well as competing theories of the polity expressed in such concepts as the liberal state, the social state, or the democratic state.96 Justice Dieter Grimm, a former member of the First Senate, is even more candid: “There is no pre-established difference between courts and legislatures which a par ticu lar constitution has to adopt and which an interpreter has to enforce regardless of what the constitution says. In addition, constitutional courts inevitably cross the line between law and politics [because] the constitution does not offer an unambiguous and complete standard for [reviewing the validity of legislation].”97 In Grimm’s view, this reality argues for less rather than more judicial intervention by the Constitutional Court in the political and legislative arenas.98 After eleven years on the Court, even Justice Leibholz wrote that it would be “an illusion and . . . inadmissible formalistic positivism, to suppose that it would be possible or permissible to apply . . . general constitutional principles . . . without at the same time attempting to put them into a reasonable relationship with the given political order.” Why? Because “[t]he constitutional judge cannot do anything except relate the rules [of the Basic Law] to political reality.”99 In 1971, as he was about to leave the Court, Leibholz remarked that “the existing confl ict between constitution and constitutional reality does not admit either of a purely legalistic solution in favor of the constitution, or of an exclusively sociological solution in favor of constitutional reality. Rather, this confl ict must be viewed as [a dialectical one] between normativity and existentiality.”100 Several justices have readily acknowledged that constitutional decision making requires statesmanship or a keen sense of political reality.101 Justice Leibholz, for example, conceded that the constitutional judge, “more than the ‘ordinary judge,’ [must] understand something of the essence of politics and of those social forces which determine political life.”102 Some of the justices have equated judicial statesmanship with the Court’s capacity to achieve consensus. President Wolfgang Zeidler,

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the presiding justice of the Second Senate from 1983 to 1987, during which time he served as the Court’s vice president, even ventured to observe that objectivity in constitutional interpretation manifests itself most clearly when the justices of a given senate, who collectively represent diverse career backgrounds, ideologies, and political attachments, manage to surmount their differences and reach unanimous agreement.103 Other justices see a dialectical process at work: the right answer in a given case is the product of collective decision making; a right or good decision is one that has banished disagreement in the solvent of group discussion and dialogue.104 Balancing and Optimization. Balancing rights and duties is a standard approach to constitutional interpretation in Germany, as it is in many other constitutional democracies, including the United States. Balancing is an attractive methodology. As Louis Henkin has written, it provides “bridges between the abstraction of principle and the life of facts. It bespeaks moderation and reasonableness, the Golden Mean.”105 Although the balancing approach to constitutional interpretation in the United States is controversial on and off the Supreme Court, it is the preferred approach of the Federal Constitutional Court, an early and dramatic example of which is the famous Lüth Case of 1958 (the seminal free speech decision featured in Chapter 8). In the hands of the Federal Constitutional Court, balancing implicates the so-called principle of optimality or optimization. As Robert Alexy, Germany’s leading theorist of constitutional balancing, writes, it is “one aspect of what is required by [the] more comprehensive principle of proportionality (Verhältnismässigkeit).”106 It is a matter of optimizing or maximizing competing constitutional rights or values. Alexy treats constitutional rights as “optimization requirements” that he identifies with principles instead of rules. As optimization requirements, he continues, “principles are norms requiring that something be realized [that is, competing rights] to the greatest extent possible, given the factual and legal possibilities.”107 Alexy emphasizes that balancing, as an approach to constitutional interpretation, depends above all on viewing constitutional protections as expressions of broader values or principles and not as narrow, subjective rights held by an individual. As noted earlier in our discussion of rights theories, this is precisely how the Basic Law’s fundamental rights principles have come to be understood. Interpreting rights as objective values or principles necessarily puts considerable discretion in the hands of the Federal Constitutional Court’s justices, who have been liberated from the civillaw orientation of the judiciary, charged as it is with the narrow project of interpreting and applying doctrine found in legislation. Federal Constitutional Court justices decide upon several competing values in a par ticu lar case, a fact-fi nding undertaking that looks more like common-law judging. The Federal Constitutional Court’s decisions bear the imprint of the common-law and civil-law traditions. Yet, the contextsensitive discretion that characterizes common-law judging leads to the concerns about democratic legitimacy that the restrained role played by civil-law judges is meant to address. These concerns are amplified by a balancing analysis, leading one commentator to conclude that a balancing analysis is “no more protective [of con-

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stitutional rights] than the judges who administer it.”108 Bernhard Schlink, perhaps the leading critic of Germany’s tradition of balancing in constitutional law, argues that rights susceptible to balancing are not absolute protections at all.109 But, from the perspective of the proponents of balancing on the Constitutional Court, this is the point: few rights under the Basic Law are absolute; most are qualified by reservation clauses, with the result that state infringements of these rights trigger the kind of proportionality review described next. Principle of Proportionality. The principle of proportionality, like the concept of an objective order of values, is crucial to any understanding of German constitutional decision making. The Basic Law contains no explicit reference to proportionality but, as just noted, the Federal Constitutional Court has elevated proportionality to a high constitutional principle in its own right, serving as a major tool in assessing the validity of legislation impinging on fundamental rights. The Court has described proportionality reasoning as indispensable in a constitutional state. Accordingly, proportionality is not strictly an approach to interpretation; rather, the principle is employed to justify limits on democratic rights and fundamental freedoms. The Court applies what is essentially a means/ends test for determining whether a par ticu lar right has been overburdened in the light of a given set of facts. Except for the Constitutional Court’s effort to optimize competing constitutional rights, the German approach is not unlike the methodology often employed by the U.S. Supreme Court in fundamental rights cases. In its German version, proportionality reasoning is a three-step process. First, whenever Parliament enacts a law impinging on a basic right, the means used must be appropriate (Eignung) to the achievement of a legitimate end. Because rights in the Basic Law are circumscribed by duties and are often limited by objectives and values specified in the constitutional text, the Constitutional Court receives considerable guidance in determining the legitimacy of a state purpose. The sparse language of the U.S. Constitution, by contrast, often encourages the Supreme Court to rely on nontextual philosophical or policy arguments to determine the validity of a state purpose allegedly impairing a constitutional right. Second, the means used to achieve a valid purpose must have the least restrictive effect (Erforderlichkeit) on a constitutional right. Th is test is applied flexibly and must meet the general standard of rationality. As applied by the Constitutional Court, it is less than the “strict scrutiny” and more than the “minimum rationality” test of American constitutional law. Finally, the means used must be proportionate to the stipulated end. The burden on the right must not be excessive relative to the benefits secured by the state’s objective (Zumutbarkeit).110 Th is three-pronged test of proportionality seems fully compatible with, if not required by, the principle of practical concordance. Practical Concordance. The canon that holds that protected constitutional values must be harmonized with one another when they confl ict is known as the principle of practical concordance (praktische Konkordanz). Once again, it requires the

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optimization of competing rights. In short, one constitutional value may not be realized at the expense of a competing constitutional value. In the German view, constitutional interpretation is not a zero-sum game. The value of free speech, for example, rarely attains total victory over a competing constitutional value such as the right to the development of one’s personality. Both values must be preserved in creative unity. Professor Hesse wrote, “The principle of the constitution’s unity requires the optimization of [values in confl ict]: Both legal values need to be limited so that each can attain its optimal effect. In each concrete case, therefore, the limitations must satisfy the principle of proportionality; that is, they may not go any further than necessary to produce a concordance of both legal values.”111 The application of the principle of practical concordance may be illustrated by reference to two religious freedom cases. In the Classroom Crucifix II Case (1995; no.  9.7) the Court announced that Article 7 (allowing religious instruction in the public schools) and Article 4 (securing freedom from religious indoctrination) “have to be seen together and reconciled with each other through interpretation, since it is only concordance of the aspects of legal protection under both articles that can do justice to the decisions contained in the Basic Law.”112 The Court sought to reconcile the confl icting values by requiring public schools to remove the crucifi x from classrooms attended by objecting students but to permit its display in classrooms where such students are not present. The Muslim Headscarf Case (2003), by contrast, involved a challenge to a school regulation banning teachers from wearing headscarves. Here the positive freedom of a Muslim teacher to cover her head collided with the negative freedom of students who might object on the ground of their faith. The Court required Land legislatures to resolve the tension, saying that legislators “must seek a compromise reasonably acceptable to everyone. . . . [Constitutional] provisions must be seen together, and their interpretation and influence must be coordinated with each other.” In this area, the Court noted, policies may differ from Land to Land, depending on “school traditions, the composition of the population by religion, and whether [the population] is more or less strongly rooted in religion.”113 Passive Virtues and Dialogue. Alexander Bickel maintained that the U.S. Supreme Court is often at its best when it declines to exercise jurisdiction it clearly has. These evasive strategies, which he calls “passive virtues,” include rules on standing, case and controversy requirements, the political question doctrine, and other prudential techniques for avoiding constitutional controversies.114 There are no exact equivalents to these rules in Germany. As often noted in Chapter 1, the Court may not decline to decide cases properly before it. One of its functions in the German system is to resolve even doubtful questions of constitutionality, not to avoid them. Yet, even while accepting jurisdiction, the Court adheres to canons of restraint that grant considerable latitude to legislative and executive decision makers.115 One of these, familiar to Americans, is the Court’s practice of upholding legislation when it can plausibly be interpreted to conform with the constitution (verfassungskonforme Auslegung) even when faced with an equally plausible argument against its

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validity.116 In addition, although the Court does not decline to resolve cases on their merits merely because they involve sensitive issues of foreign or military policy, it has tended to defer to the executive when the executive exercises its authority pursuant to international treaties. As a matter of principle, the Court has declared that the deployment of German soldiers in armed operations abroad requires parliamentary approval,117 but even here the Court has broadly construed the executive’s discretionary authority in military affairs. On the domestic front, fi nally, the Court has taken an equally broad view of the government’s discretionary authority to regulate aspects of the economy when necessary under the terms of Article 72 (2). The Court’s reluctance to invalidate laws passed under this provision is not unlike the Supreme Court’s deferential review of socioeconomic legislation under the due process clauses of the U.S. Constitution. In one significant development in the field of basic rights, however, the Court all but abdicated its authority to independently review secondary Eu ropean Community laws. In a case known as Solange I (1974) the Court famously ruled that Eu ropean Community law could be challenged in concrete judicial review proceedings if its compatibility with fundamental rights under the Basic Law was in doubt.118 The Court took the position that such challenges were permissible so long as (solange) the protection of fundamental rights in the Eu ropean Community was below the level of protection in Germany. Twelve years later, in Solange II (1986; no. 6.4), the Court ruled that fundamental rights “in conception, substance, and manner of implementation” in the Eu ropean Community are essentially equal to the protection of basic rights in Germany.119 For this reason the Court announced that it would no longer review Community regulations or directives in the light of these basic rights. The Court reaffi rmed Solange II in the Banana Market Regulation Case (2000), declaring as noncognizable—for the fi rst time—an administrative court reference questioning the constitutionality of regulations on the marketing of bananas as a violation of occupational and property rights.120 The Second Senate declared: “As long as the European Communities generally ensure the effective protection of fundamental rights and generally safeguard the essential content of fundamental rights, the Federal Constitutional Court will . . . no longer review [European Community legislation] by the standard of fundamental rights contained in the Basic Law.”121 The admissibility of a challenge to secondary Community law would thus depend on a clear showing that the fundamental right allegedly violated “is not generally ensured” within the European Community. In the light of the Maastricht Treaty Case (1993; nos. 5.5 and 6.5) and the Lisbon Treaty Case (2009; no. 6.6), however, primary European Community or European Union law—the treaties—are still subject to constitutional review to assess whether they infringe or erode Germany’s “constitutional identity” as specified by Article 79 (3).122

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sources of interpretation Unwritten Principles. Almost everything said so far about the nature of the Basic Law as a whole or of basic rights in par ticu lar raises profound problems of interpretation. Principles and theories such as the Basic Law’s unity, its objective value dimension, its constitutionalization of private law, and the positivity and negativity of rights have served to confer substantial interpretive authority on the Federal Constitutional Court. These principles and theories have been judicially created, but not out of whole cloth. In the Court’s view, as noted earlier in this chapter, they reflect the normative realities underlying the Basic Law, realities rooted in the dialectic between the liberal, socialist, and Christian natural-law traditions that shaped the original document, particularly the provision that subjects the legislature to the “constitutional order” and the executive and the judiciary to “law and justice” (emphasis added). Owing largely to neo-Thomist influences, the Court affi rmed the existence of “supra-positive principles of law” (überpositive Rechtsgrundsätze) that bind legislators and other political decision makers.123 But, as George Fletcher has pointed out, its later accents on individual autonomy, moral duty, and human rationality echo equally strong neo-Kantian influences,124 just as the powerful strands of social welfare theory in its case law may be said to reflect socialist egalitarian thought. These orientations have converged to produce a distinctive vision of the human person. In the Life Imprisonment Case (1977; no. 7.3) the Court defined the human person as a “spiritual-moral being” (vom Menschen als einem geistig-sittlichen Wesen) whose intrinsic dignity “depends on his [or her] status as an independent [personality].”125 But the independence affi rmed here is far from the autonomous individualism of American constitutional law. “The image of man in the Basic Law,” the Court has declared, “is not that of an isolated, sovereign individual; rather, the Basic Law has decided in favor of a relationship between individual and community in the sense of a person’s dependence on and commitment to the community, without infringing upon a person’s individual value.”126 These words have been a constant refrain in the Court’s jurisprudence. Similar lines of thought can be discerned in its view of the polity, one that rejects the self-regarding individualism of bourgeois liberalism as well as the collectivism of Marxism. Much of the Court’s case law treated in the following chapters identifies a polity that reminds Americans of Lincoln’s image of a fraternal democracy. As the abortion cases and many free speech decisions show, the social context in which men and women discover the source of their dignity—and human flourishing—cannot be ignored in a properly governed society. Accordingly, human dignity resides not only in individuality but in sociality as well. Written Text. The major source of constitutional interpretation in Germany is the documentary text adopted by the Länder legislatures in 1949 along with fi ft y-nine amendatory acts ratified between 1951 and 2011. The words and phrases of the constitution mean what they say and the Court takes them seriously. It rarely interprets

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constitutional language in a way radically different from the common understanding of the text. But as suggested in previous subsections, the Court has employed a wide range of interpretative approaches and guides to expound the meaning of the written text. These include legalistic modes of analysis along with an effort to determine the general purpose of textual provisions in the light of their historical, philosophical, and sociomoral determinants. But the constitution includes more than the documentary text. What might be called the working text arguably extends to long-established practices whose attenuation would raise serious constitutional issues. These practices include, under Germany’s system of proportional representation, the requirement that a political party garner at least 5 percent of the popu lar vote as a condition of entering national or state parliaments. Although the Court has never declared that proportional representation itself is constitutionally required,127 its abolition after sixty years of unbroken observance—except for the fi rst postreunification all-German election—could easily be contested on constitutional grounds, especially in the light of the Court’s solicitude for the rights and representational value of minority parties. An unwritten norm previously unmentioned that is now a solid part of the working text is the principle of federal comity (Bundestreue), an innovative doctrine the Court has inferred from the Basic Law’s federal structure. It requires more than the observance of formal constitutional legality; it also requires both levels of government to consult with each other when their interests confl ict or overlap.128 A 1992 change in the Basic Law actually formalized the principle of comity in the field of European affairs. When making policy in the context of the European Union, the federal government is required to keep the Bundesrat informed of its dealings.129 Even when acting under one of the European Union’s exclusive powers the federal government, according to Article 23 (4), “shall take the position of the Bundesrat into account.” Given the Court’s jurisprudence of federal comity, it seems likely that the Bundesrat would be able to validly petition the Court to hear a case when arguing that its position was not adequately taken into account by the national government. Historical Materials. The Constitutional Court occasionally draws upon historical materials to illuminate the general purpose behind a constitutionally ordained concept, value, or institution. Th is inquiry into original purpose is not always clearly differentiated from an inquiry into original intent. When appealing to purpose the Court usually considers the background or circumstances out of which a par ticu lar constitutional provision emerged. Because so many of the Basic Law’s words and phrases have been lifted from nineteenth- and twentieth-century constitutions, both state and national, the Court often fi nds it useful to explore the reasons for their incorporation into these earlier documents. For example, in determining whether the inviolability of the “home” (Wohnung) within the meaning of Article 13 (1) extends to business offices, the Court consulted the debates and commentaries on similar provisions incorporated into the Frankfurt Constitution of 1849, the Prussian Constitution of 1850, and the Weimar Constitution of 1919.130

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While admissible as sources of interpretation, these older documents pale in comparison to the significance of the Basic Law’s legislative history. Th is history includes the report of the Herrenchiemsee Conference, the body charged with preparing a working draft of the Basic Law.131 The most fertile source for examining the background and purposes of the Basic Law, however, is the daily stenographic record of the debates and decisions of the Parliamentary Council. The protocols include the proceedings of all the council’s specialized committees, together with the arguments, decisions, and voting records of its Main Committee and plenary sessions.132 The Bahá’í’ Religious Community Case (1991) is a prominent example of the supportive role the Basic Law’s legislative history plays in the interpretation of par ticu lar provisions. The Court found in the deliberations of the Parliamentary Council that the right to associate for religious or ideological purposes was encompassed within the meaning of Article 4 (1), which guarantees “freedom of faith.”133 The Court seems to fi nd the Basic Law’s legislative history particularly helpful in cases involving confl icts between levels and branches of government. For example, in the famous Flick Case (1984), which arose out of a notorious tax and party fi nance scandal, the Court invoked Parliamentary Council debates to show that a parliamentary investigative committee established under Article 44 of the Basic Law could require the executive to surrender all the relevant records in the case.134 In the equally prominent Parliamentary Dissolution I Case, (1983) the Court’s majority concluded that there was nothing in the Parliamentary Council’s proceedings that contradicted its view that the federal president could dissolve Parliament on the request of the chancellor even though the latter had the backing of a slim parliamentary majority.135 The dissenting opinion disputed the majority’s view and relied on lengthy quotations from the Council’s members.136 Th is exchange illustrates, as in American constitutional debates, that legislative history can be invoked to support more than one side of an argument over the constitution’s meaning. Judicial Precedent. In Germany’s codified legal system, judicial decisions do not qualify as official sources of law. But constitutional law is different. First, while judicial rulings apply only to the parties before them, the Federal Constitutional Court’s decisions are binding on all courts and constitutional organs.137 Second, all abstract and concrete review cases, along with decisions on whether a rule of public international law is an integral part of federal law, enjoy the force of general law. In fact, any decision declaring a law null and void or compatible or incompatible with the Basic Law must be published in the book of federal statutes known as the Federal Law Gazette,138 a practice that underscores the Court’s character as a negative legislator. Although it rejects the principle of stare decisis as such, its opinions, like those of other high courts, are studded with citations to its case law. In the Muslim Headscarf Case (2003), for example, the Court supported its reasoning by reference to no fewer than twenty-six decisions handed down between 1957 and 1999.139 Formally, judicial precedents do not bind the Constitutional Court; rather, they are marshaled to show that a doctrinal outcome in a given case is consistent with its previous interpretations

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of the Basic Law. The German understanding of the constitutional state principle—a central pillar of the Basic Law—requires a coherent body of judicial doctrine in the interest of legal certainty, predictability, and the necessity of creating a stable constitutional order. In actual practice, however, the similarities in the uses (or misuses) of precedent by the Court and other courts treated in this book are more striking than the differences.140 Academic Literature. The work of legal scholars carries as much if not more weight in the Basic Law’s interpretation than do judicial precedents. The Court relies heavily on treatises and commentaries of established legal professionals. Here it must be remembered that in code-law countries such as Germany, enacted law was the work product of legal scholars, historians, and theorists. It is no surprise, therefore, that the “ruling opinion” (herrschende Meinung) in the literature takes pride of place in the interpretation of the Basic Law. The literature is published in highly reputable law journals such as Neue Juristische Wochenschrift, Monatschrift für Deutsches Recht, Juristenzeitung, and Zeitschrift für ausländisches öffentliches Recht und Völkerrecht. These and other German law journals are edited not by amateurs—that is, law students—as in the United States, but by leading practitioners, judges, and professors of law. (Student-authored notes in these journals would be unheard of in Germany’s legal culture.) One highly regarded and often-cited commentary on the Basic Law is the loose-leaf edition of Kommentar zum Grundgesetz by Theodor Maunz, Günter Dürig, and Roman Herzog.141 Herzog was president of the Federal Constitutional Court from 1987 to 1994 and president of the Federal Republic from 1994 to 1999. Muslim Headscarf manifests the Court’s dependence on the scholarship of the professoriat and other legal experts. In its closely reasoned opinion on the meaning of constitutional provisions relating to the free exercise of religion, the Court relied heavily on interpretive commentaries by major writers on the religion clauses such as Karl Brinkman, Axel von Campenhausen, Peter Badura, Christian Starck, Joseph Listl, Roman Herzog, and Ernst-Wolfgang Böckenförde.142 (Böckenförde, like Herzog, was a former justice of the Federal Constitutional Court.) These authors are repeatedly cited as authoritative interpreters of the Basic Law. Perhaps a better measure of the importance of legal scholarship relative to judicial precedents is the standard practice of documentation in leading constitutional commentaries. For example, in the oft-cited commentary by Hermann v. Mangoldt, Friedrich Klein, and Christian Starck, only 90 of 374 footnotes in the paragraphs devoted to Article 4 (1) and 4 (2) on religious freedom include references to prior case law, and many of these precedents are employed to justify the basic orientation of the commentators.143 By contrast, a comparative examination of two leading American commentaries shows an almost exclusive reliance on the case law of the Supreme Court.144 International and Comparative Materials. One of the Basic Law’s main features, as the materials in Chapter 6 highlight, is Germany’s commitment to peace and internationalism. Th is commitment is expressed in constitutional provisions that bind

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Germany to participation in the development of the European Union (Article 23), permit the transfer of sovereign power to international institutions (Article 24), emphasize the primacy of international law (Article 25), and criminalize any preparation for a war of aggression (Article 26). Article 25 merits special attention. It declares that the “general rules of international law shall be an integral part of federal law [and] shall take precedence over [national] law and directly create rights and duties for the inhabitants of the federal territory.” Accordingly, these rules are part of Germany’s constitutional order and thus binding on all branches and levels of government. So important are these rules that the Basic Law itself requires any court to obtain a decision from the Federal Constitutional Court whenever, in the normal course of litigation, its judges doubt whether a general rule of international law is part of federal law or whether it directly creates rights and duties for individual persons.145 Under this procedure the Court frequently reviews or consults treaties, international agreements, and the decisions of international tribunals.146 The Federal Constitutional Court’s opinions contain far fewer references to the decisional materials of foreign constitutional tribunals, conveying the impression that the constitutional experience of other advanced democracies has little relevance to the interpretation of the Basic Law. It would be misleading, however, to conclude from this that the justices are oblivious to or uninfluenced by non-German constitutional materials. Many of the justices have studied or taught abroad, several in U.S. law schools, and have ready access within the Court to full sets of judicial reports from foreign and international tribunals, including the U.S. Supreme Court Reports. In par ticu lar, the Constitutional Court frequently cites the decisions of the European Court of Human Rights as an interpretive aid in defi ning the reach of constitutional rights in Germany. The European Convention on Human Rights does not have the status of constitutional law in Germany. Nevertheless, the Constitutional Court has adopted the view that “the content and state of development of the Convention are to be taken into consideration insofar as this does not lead to a restriction or derogation of basic rights protection under the Basic Law.”147 As with its decision in the Görgülü Case (2004; no. 6.3), the Constitutional Court also continues to remind ordinary courts of their obligation to follow, when and where applicable, the decisions of the Human Rights Court. In addition, the Constitutional Court’s jurisprudence now and then includes words, phrases, and sentences that suggest familiarity with the work product of other national courts of judicial review. In the famous Lüth Case (1958; no. 8.1), for example, Germany’s seminal free speech decision, the Constitutional Court’s First Senate quoted Justice Cardozo’s celebrated line that speech is “the matrix, the indispensable condition of nearly every other form of freedom,” but without citing Palko v. Connecticut, the source of the quote. In yet another free speech decision—the wellknown and controversial Spiegel Case (1966; no. 8.10) four justices cited foreign constitutional case law on whether reporters can give evidence in criminal proceedings involving treason charges.148 In the interpretation of the Basic Law, the Court seldom relies on foreign case law; rather, it deploys comparative references either as negative

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examples of doctrines or practices that should be avoided or to support positions already arrived at through the standard methods of textual, systematic, teleological, or historical analysis. Other examples of the Constitutional Court’s use of foreign legal and decisional materials are readily available. A study published in 1974 recorded twenty-four cases in which the Constitutional Court drew upon foreign judicial cases, mainly from the United States, Switzerland, France, and England.149 The Court is inclined to draw support from the constitutional practices and decisional materials of other advanced parliamentary governments facing related problems of governance under comparable constitutions,150 or, alternatively, to cite foreign practices or constitutional judicial decisions it would not wish to follow. In the recent Lisbon Treaty Case (2009; no. 6.6) the Court looked to the positive and negative electoral experiences of several constitutional democracies in measur ing the sufficiency of the European Union’s system of political representation against the requirements of the Basic Law. Since 1971, when the Federal Constitutional Court Act was amended to permit dissenting opinions, dissenting justices in par ticu lar have found guidance in foreign constitutional case law. In their dissent from the Court’s restrictive abortion decision of 1975, Justices Wiltraut Rupp-von Brünneck and Helmut Simon referred to Roe v. Wade; Justice Martin Hirsch cited Vance v. Terrayas, an American citizenship case, in dissenting from the Court’s decision in the Denaturalization II Case (1980) (upholding the denial of citizenship to an expatriate); and Justice Ernst-Wolfgang Böckenförde in his Party Finance V Case (1986) dissent cited Bob Jones University v. United States, a case involving a tax deduction dispute and contributions to political parties from “charitable institutions.”151 Other references by the Federal Constitutional Court to foreign judicial decisions could be cited, but in the light of its total workload these instances, as already noted, are infrequent. And whether such decisions are cited or discussed depends on whether the particular rapporteur (Berichterstatter) in the case is inclined to examine comparable foreign case law in the draft opinion that he or she prepares for the consideration of the full senate. Rarely, however, will a rapporteur pursue a full-scale engagement with the judicial reasoning of a foreign tribunal on a matter of constitutional interpretation under the Basic Law. Rather, he or she will cite an idea or ruling from another national court’s constitutional case law mainly to reinforce the holding proposed in the Votum. But there is no serious debate in Germany, as there is in the United States, over the propriety of citing foreign constitutional case law, when and where feasible, in the decisions of the Federal Constitutional Court.152

conclusion Th is chapter began with a description of the new constitutionalism brought about by Germany’s Basic Law. It continued with an account of the state’s political organization along with a discussion of the various principles of the constitutional order, an

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order that joins the Sozialstaat to the Rechtsstaat while enthroning federalism and a party democracy empowered to defend itself against its internal and external enemies. Other features of the Basic Law’s moral framework include its elevation of human dignity into the constitution’s master value, its corresponding limits on popular sovereignty, its list of individual rights and communal responsibilities, its submission of the legislature to the “constitutional order” and the judiciary and executive to “law and justice,” and its prohibition of any formal amendment that would erode Germany’s constitutional identity. In turn, the Federal Constitutional Court has adopted interpretive theories that reflect the deeper meaning of these factors. These theories embrace the concept of the constitution’s unity, the subjective and positive character of guaranteed rights, the objective and hierarchical order of basic values, and modes of analysis that emphasize systematic and goal-oriented teleological reasoning largely independent of the intentions of the Basic Law’s framers. Taken together, these features and theories underscore the absolute supremacy of the Basic Law over ordinary law. Finally, as subsequent chapters show, Germany’s new constitutionalism has converted the principle of constitutional supremacy into one of judicial interpretive supremacy.

3 Federalism ∂ Federalism in Germany is not a creation of the Basic Law. Modern German history can be traced through successive stages of economic and political unity, beginning with the Confederation of 1815 and ending with the highly unified federation represented by the Weimar Republic.1 The desire for economic integration provided the driving force behind the historical development of German federalism. Customs unions, uniform economic legislation, and laws designed to protect industry against parochial pressures helped to create a common market and a common identity among a people fractured by a multiplicity of sovereign kingdoms and principalities.2 Yet, much of this integration—as well as the political unity that accompanied it—was achieved under the dominance of Prussia, a German state known, variously, for its militaristic and authoritarian tradition, its efficient bureaucracy, and its innovativeness (especially with respect to higher education). After World War II, the Allies sundered Prussia in the hope of establishing greater equality among the German states. The result was the Federal Republic of Germany, with Article 20 (1) of the Basic Law mandating the establishment of the Republic as a democratic and social federal state. Nor is German federalism a fi nished product. The federalism of the Basic Law seems best characterized by change, not constancy. Th is should come as no surprise to those familiar with American constitutional history. American federalism also has undergone epochal shifts. In the last century alone the federalism pendulum has swung from the Supreme Court’s New Deal and civil rights–era jurisprudence, which led to expansive federal and centralizing authority, to the pro-state jurisprudence of Chief Justice William Rehnquist’s “New Federalism” in the 1990s. In 2006 many of the Basic Law’s federalism provisions were significantly overhauled in what has been called the “most comprehensive reform of the Basic Law . . . since its inception in 1949.”3 Focusing primarily on the power of the Bundesrat and the distribution of legislative competence between the Bund and the Länder, the 2006 federalism amendments were the fi rst of three anticipated phases of federalism reform. The second phase took place in 2009 with the passage of several constitutional amendments. Here the focus was on the sections of the Basic Law (Articles 104a to 115) known as the fi nancial constitution (Finanzverfassung), a confounding and complicated web of rules and formulae governing the distribution of taxes and revenue between levels of government. A third reform proposal would aim at redrawing the boundaries of the Länder. Its purpose is mainly to promote regulatory efficiency and create economies of scale through the merger of Länder, such as Brandenburg and Berlin. Up to now, attempts at merging the two Länder outside a broader reform

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of the constitution have failed. At this writing, too, reforms in the fi nancial constitution have not been fully implemented, and the 2006 reforms have not generated a significant body of decisions from the Constitutional Court. For this reason, we will open this chapter with a focus on the Federal Constitutional Court’s established jurisprudence with respect to territorial organization and then proceed to discuss aspects of German federalism that were unaffected by the reforms of 2006. Then, following a brief examination of the historical, political, and jurisprudential factors that led to the reforms, the areas impacted by the 2006 amendments will be considered. The 2006 reforms were in many instances a reaction to Federal Constitutional Court decisions. These decisions will guide our exploration of the federalism reforms ratified in 2006 and 2009.

territorial or ga ni zation Federalism in Perpetuity. The principle of federalism (alongside democracy, the constitutional state principle, the social state principle, and human dignity) is permanently incorporated into the Basic Law. Article 79 (3) prohibits any amendment to the Basic Law that would affect the division of the federal territory into Länder. Germany now comprises sixteen constituent states. Prior to reunification West Germany included the states of Baden-Württemberg, Bavaria, Bremen, Hamburg, Hesse, Lower Saxony, North Rhine–Westphalia, Rhineland-Palatinate, Saarland, and Schleswig-Holstein. West Berlin, although functioning in many respects as the eleventh West German state, de jure remained a protectorate of the three Western allies. Five new Länder were created out of the former East German territory and were annexed by the Federal Republic in 1990: Brandenburg, Mecklenburg-Vorpommern, Saxony, Saxony-Anhalt, and Thuringia. Alongside these new Länder, a unified Berlin emerged as a state as well. Only Bavaria and the city-states of Hamburg, Berlin, and Bremen correspond to their historical borders. The remaining states were artificially carved out of the western and eastern postwar occupation zones. The reorganization of the southwestern states in 1952, the subject of the Southwest State Case (featured below), has been the only major change in the borders of the Federal Republic’s constituent states. Several proposals have been advanced over the years to consolidate some of the existing states into larger and more integrated political and economic units, but none of these master plans for federal reorganization has succeeded.4 As Philip Blair noted with regard to the original West German Länder, the states “have taken root so fi rmly that [such plans] can scarcely be regarded as still a practical possibility.”5 In postreunification eastern Germany, however, there are plans for the merger of Brandenburg and Berlin, even though a 1996 referendum on joining the two states (Länderfusion) was defeated by the voters in Brandenburg. Since the failure of the 1996 referendum the two states have pursued a comprehensive strategy of regional cooperation across a broad range of fields, including broadcasting, education, research, culture, and judicial affairs. Th is gradual approach to territorial

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integration and reorganization may establish the groundwork for another referendum that would fi nally merge the two states. At the heart of the pressure to reorganize the Länder boundaries are the values established by Article 29 of the Basic Law, which provides that the federal territory may be reorganized to “ensure that each Land be of a size and capacity to perform its functions effectively.” Any proposal for redrawing state boundaries, including the creation of a new Land, needs the sanction of federal law and the approval of the majority of the voters in the affected territories. The proposal will not take effect if the majority in any of the affected states rejects it. Nevertheless, a proposal for reorganization can be salvaged if it satisfies two conditions. First, the reorganization must enjoy a two-thirds majority of the voters in the discrete portion of the state affected by the reorganization. Second, the statewide rejection of the proposal may not have achieved a two-thirds supermajority. Southwest State arose out of the decision of the Allied powers to divide the former states of Württemberg, Baden, and Hohenzollern into the three southwestern states of Baden, Württemberg-Baden and Württemberg-Hohenzollern. Germans bridled over this arrangement because it split up two historical states, partitioning relatively integrated political communities. Article 118 of the Basic Law sought to cope with this situation. A lex specialis, it modified the general policy of Article 29 by authorizing the southwestern states to reorganize themselves by mutual agreement.6 The most likely possibilities were the restoration of the former states of Württemberg, Baden, and Hohenzollern, or the consolidation of the three existing states into a single state. Unable to agree on a plan of reorganization, the states effectively turned the matter over to the federation. Article 118 empowered the federation to reorganize these states by ordinary legislation in the absence of a tristate agreement.7 Southwest State arose under an earlier version of Article 29, which has since been amended three times. In its original form it required the reorganization of the federal territory as a whole by federal law. A majority of voters in a region affected by a proposed boundary change had to approve the proposal in a referendum. In addition, to fulfi ll the constitutional mandate for reform, the earlier version of Article 29 (4) required the Bundestag to reintroduce the law if the reform should be rejected by the local voters in the referendum; if the law were to be reenacted by the Bundestag, a majority of voters would have to approve the measure in a national referendum. Article 118, as noted, circumvented these procedures with respect to the reorganization of the southwestern states. 3.1 Southwest State Case (1951) 1 BVerfGE 14 [When tristate negotiations collapsed in November 1950, Parliament enacted two reorganization statutes. The fi rst extended the terms of the WürttembergHohenzollern and Baden legislatures, a measure designed to avoid new state elections in April 1951 because the territorial reorganization of the states seemed

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imminent, making new legislative sessions for the parliaments in the old states unnecessary. The second specified the procedures by which the proposed federally sponsored referendum would be conducted. The proposal to merge the three states into the single state to be called Baden-Württemberg would take effect so long as a majority of voters in three of four regional electoral districts established for purposes of the referendum approved. In a proceeding that invoked the Court’s abstract judicial review jurisdiction as well as its federal-state confl ict jurisdiction, the small and cohesive 150-year-old state of Baden challenged the constitutionality of these statutes on the ground that they violated the principles of democracy and federalism: democracy because the electoral districts were created in such a way as to dilute the votes of persons casting ballots in Baden; federalism because the federal government is powerless to tamper with the legislature of an independent state. The result was the Court’s fi rst major decision and the fi rst decision in which the Court set aside a federal law.]

∂

Judgment of the Second Senate. . . . D. [First Reorganization Law]. . . . 2. . . . An individual constitutional provision cannot be considered as an isolated clause and interpreted alone. A constitution has an inner unity, and the meaning of any one part is linked to that of other provisions. Taken as a whole, a constitution reflects certain overarching principles and fundamental decisions to which individual provisions are subordinate. Article 79 (3) makes it clear that the Basic Law makes this assumption. Thus, this Court agrees with the statement of the Bavarian Constitutional Court: “That a constitutional provision itself may be null and void is not conceptually impossible just because it is a part of the constitution. There are constitutional principles that are so fundamental and so much an expression of a law that has precedence even over the constitution that they also bind the framers of the constitution, and other constitutional provisions that do not rank so high may be null and void because they contravene these principles.” From this rule of interpretation it follows that any constitutional provision must be interpreted in such a way that it is compatible with those elementary principles and with the basic decisions of the framers of the constitution. Th is rule applies also to Article 118. 3. The Basic Law has chosen democracy as the basis for the governmental system (Articles 20, 28): The Federal Republic is a democratic, federal state. The constitutional order in the states must conform to the constitutional state principle and democratic principle within the meaning of the Basic Law. The federation guarantees that the constitutional order of the states will conform to this political order. As prescribed by the Basic Law, democracy requires not only that Parliament control the government but also that the right to vote of eligible voters is not removed or impaired by unconstitutional means. . . . It is true that the democratic principle does not imply that the term of a state legislature must not exceed four years or that it can-

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not be extended for important reasons. But this principle does require that the term of a state legislature, whose length was set by the people in accepting their constitution, can be extended only through procedures prescribed in that constitution (i.e., only with the consent of the people). If the federation prevents an election scheduled by the state constitution without the consent of the people of the state, then it violates the fundamental right of a citizen in a democratic state, the right to vote, as protected by Article 28 (3) of the Basic Law. 4. Federalism is another of the Basic Law’s fundamental principles (Articles 20, 18, 30). As members of the federation, Länder are states with their own sovereign power. Th is power, even if limited in subject matter, is not derived from the federation but recognized by it. As long as it remains within the framework of Article 28 (1), a state’s constitutional order falls within the state’s jurisdiction. In par ticu lar, it is exclusively incumbent upon the state to determine the rules that govern the formation of the state’s constitutional organs and their functions. The state’s competence also includes setting regulations that determine how often and on what occasions citizens may vote as well as when and under what conditions the term of a state legislature expires. . . . Th is rule also applies equally to legislation [enacted] pursuant to Article 118. It is true that, in order to effect reorganization, the federal legislature has power to “retrench” the states of Baden, Württemberg-Baden, and Württemberg-Hohenzollern. But it cannot disturb the constitutional structures of these states as long as they exist in their entirety. One may not argue that, by eliminating the three state legislatures in the process of reorganization, the federation shortens their terms of office and consequently can also extend them for a transitional period. . . . Elimination of the state legislatures is a necessary consequence of the elimination of these states; thus [this act] does not constitute a curtailment of [the legislatures’] terms of office. By contrast, extension of the legislative terms may occur with respect to existing state legislatures. Th is extension requires a special legislative act that the federation cannot pass for the aforementioned reasons. A state cannot dispose of its legislative authority. And the federation cannot by virtue of a state’s consent obtain legislative authority that the Basic Law does not grant. Therefore, the fact that Württemberg-Hohenzollern consented to the measure taken by the federation is without legal significance. 5. Article 118 (2) only authorizes the Parliament to regulate “reorganization” and, thus, draws constitutional limits. . . . The Parliament could extend the electoral terms of the state legislatures only if . . . the “matter cannot be effectively regulated by legislation of individual states” [Article 72 (2) of the Basic Law]. Th is limitation precludes extending the terms of state legislatures. . . . Such authority remains primarily a matter for the states. . . . 6. In view of these legal restraints, practicality, political necessity or similar considerations cannot confer unfettered discretion on the Parliament to enact any regulations that seem reasonable and proper under the guise of reorganizing states. . . .

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7. . . . The Federal Constitutional Court must hold a legal provision null and void if it is inconsistent with the Basic Law. Hence we declare that the First Reorganization Law . . . is null and void. . . . Th is declaration has legal force and is to be published in the Federal Law Gazette. Th is declaration, along with the main reasons for the decision, bind[s] all constitutional organs of the federation . . . in such a way that legislative bodies may not again deliberate upon and enact a federal law with the same content, nor can the Federal President sign such a law. E. [Second Reorganization Law]. . . . 8. a. It has been asserted that a federation cannot eliminate a member state against its population’s will. As a rule, a federal constitution guarantees the existence and territory of member states. But the Basic Law expressly deviates from this rule. Article 79 (3) guarantees as an inviolable principle only that the federation must be divided “into states.” The Basic Law does not contain any guarantee for presently existing states and their borders. On the contrary, it provides—as follows from Articles 29 and 118—for changes in territorial conditions of individual states as well as for a reorganization of federal territory that may entail the elimination of one or more existing states. Th is reorganization may even be effected against the will of the population of the state concerned. . . . The Basic Law thus espouses a “malleable federal state.” . . . b. It follows from Article 29 (4), however, that an ordinary federal law cannot supersede the will of a member state’s population—only a new vote of the Parliament and a referendum of the entire federal population can do so. Thus, only the will of the population of the higher unit suffices, and not merely the will of the population of one or several neighboring states. The question [necessarily] arises, whether this principle also applies to regulations pursuant to Article 118 (2). The provision that protects a state’s existence is an outgrowth of the Basic Law’s principle of federalism. . . . Th is determination impeding interference with a state’s existence flows from the federalist principle set forth in the constitution and thus is an important basic constitutional decision. There are two arguments that the principle contained in Article 29 (4) also applies to Article 118. First, the legislative history of Article 118 might suggest this result. After all, Article 118 emerged from Article 29 only at the end of deliberations in the Parliamentary Council in the fourth reading of the law. Second, it is generally accepted that the principles contained in Article 29 (1) are also to be applied to regulations pursuant to Article 118. Nevertheless, the framers of the Basic Law . . . expressly declared in Article 118 that reorganization may “deviat[e] from the provisions of Article 29.” . . . Instead, the deliberations in the Parliamentary Council, the public discussion in the past few years, and consultations among the three state governments have produced a general consensus that the present public-law conditions in the southwest area are especially unsatisfactory and therefore ripe for immediate reorganization. Consequently, [the consensus of the people] was to endorse a fast and simple reorganization. The opposition of one state’s population must not frustrate this [reorganization]. . . .

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c. Baden claims that, aside from the principle contained in Article 29 (4), other clauses of the Basic Law recognize the democratic principle (Articles 20, 28). . . . Democracy means self-determination of the people. [Baden argues that the Second Reorganization Law] deprives the people of Baden of this right because it forces them to become part of a southwest state against their will. That, in principle, a people must themselves determine their basic order . . . certainly follows from the notion of democracy. . . . The state of Baden, as a member of the federation, is an independent body politic. Th is body politic . . . possesses the right of self-determination. Yet, it is decisive that Baden, as a member state of a federation, is not autonomous and independent but is part of a federal order that restricts its sovereign power in various respects. . . . To a certain extent a tension exists between the principles of democracy and federalism concerning the position of a member state in the federation. There can be a compromise between the two only if both suffer certain restrictions. In the case of reorga nization of federal territory consigned to the federation, it is the nature of things that the people’s right to selfdetermination in a state must be restricted in the interest of the more comprehensive unit. Within the scope of what is possible in a federal state, the Basic Law’s provisions in Article 29 and in Article 118 safeguard the democratic principle by setting forth that the bodies politic, respectively, of the federation and of the area to be reorganized will ultimately decide.

∂

Southwest State: Germany’s Marbury v. Madison. Because of Southwest State’s significance in German constitutional law the case has been compared with the U.S. Supreme Court’s Marbury v. Madison (1803).8 Marbury made it clear that the Supreme Court could refuse to enforce an unconstitutional law, and it put forth an elaborate rationale in support of judicial review. No such rationale was necessary in Southwest State because the Basic Law explicitly confers this power on the Constitutional Court. The foundational character of Southwest State is rooted, instead, in the general principles of constitutional interpretation stated therein and in the clarity— and forthrightness—with which the Constitutional Court defi ned the scope of its authority under the Basic Law. The Court boldly asserted that its judgment and the opinion on which it rests were binding on all constitutional organs, even to the extent of preventing Parliament from debating and passing another law of the same content. For the fi rst time, too, the Constitutional Court laid down a fundamental tenet of interpretation. Because the Basic Law represents a logical unity, said the Court, no clause or provision may be interpreted independently; it must be seen in relationship to all other clauses and to the constitution as a whole. Southwest State was also the fi rst case in which the Court endorsed the then-novel notion of an unconstitutional constitutional amendment. “A constitution,” said the Court, “has an inner unity, and the meaning of any one part is linked to that of other provisions. Taken as a whole, a constitution reflects certain overarching principles and fundamental decisions to

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which individual provisions are subordinate.”9 Thus, even a par ticu lar constitutional provision or constitutional amendment may be unconstitutional if it confl icts with these “overarching principles and fundamental decisions.” Democracy and federalism, said the Court, are among these overarching principles. The Court also acknowledged the existence of a higher law, transcending positive law, which binds the framers of constitutions as much as it does legislatures. In the end, the Court made it very clear that any constitutional provision or amendment in confl ict with this higher law or the fundamental principles of the Basic Law would be judged unconstitutional. Baden had argued, on the basis of the constitution’s inner unity, that Article 118 of the Basic Law is invalid because it contradicts the general policy of Article 29. Recall that Article 118 permits the reorganization of the federal territory “without regard to the provisions of Article 29.” Article 118 authorizes the federation to consolidate the southwestern states over the objection of Baden and without resorting to the national referendum required by Article 29. (With respect to the Länder of Berlin and Brandenburg, a 1994 amendment to the Basic Law—Article 118a—provides a similar exception to the policy of Article 29 pursuant to which the two Länder may be combined into a single state “by agreement between the two states and with the participation of their electorates.”) The Constitutional Court, however, sustained the procedural aspects of the referendum proposal, noting that the Basic Law, while requiring the division of the federal territory into states, does not guarantee their status quo. An otherwise valid reorganization proposal may abolish a particular state, even against the will of its population. Territorial Reorganization after Southwest State. In 1952, pursuant to a legitimate referendum and in accordance with the Court’s instructions, the new state of BadenWürttemberg, which took the place of the three former states, came into being. Unlike the hostile Jeffersonian response to Marbury v. Madison,10 the general political reaction to Southwest State was deferential and compliant. Shortly after the Court issued its Southwest State decision, Justice Gerhard Leibholz wrote: It may be said that the raging political controversies which ensued from the disputes in southwestern Germany, especially between Württemberg and Baden, subsided visibly as a result of the judgment of the Federal Constitutional Court, which was readily accepted by all parties concerned. Even at this early date there can be no doubt that the judgment of the Court had a pacifying influence on the political life of all states involved in the controversy, and that it cleared the political atmosphere considerably. Beyond that, it had a politically unifying effect which proved beneficial to the new German state as a whole.11

The mollifying effect of Southwest State also proved to be enduring. In 1970 there was another referendum on the further existence of Baden-Württemberg among the former citizens of Baden. Eighty-two percent of the participants voted in favor of the state’s existing borders. There have been no further changes in the boundaries of the original West German states. The reintegration of the Saarland into the Federal Republic, in 1959, did not

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affect state boundaries. Reunification also did not generate noteworthy territorial reorganization. The boundaries of the new Länder admitted to the Federal Republic from the former East Germany were settled in nonbinding referenda in 1990, a process that produced few changes in the territorial lines of these states. The most significant territorial impact of reunification, as noted earlier, is the still-planned merger of Berlin and Brandenburg. The only serious effort to overhaul the entire federal structure was Hesse’s attempt to compel the federation to change the boundaries of the Länder under the compulsory reorganization provision of Article 29. The Constitutional Court turned back this attempt in the Territorial Reorganization Case (1961).12 Hesse claimed that it could not adequately plan its own future as an autonomous state given the uncertainty surrounding possible federal reorganization. In the Court’s view, the time and character of territorial changes were for the federation to decide in the interest of the Federal Republic as a whole.13 By this time public sentiment for major territorial change had largely disappeared and, in 1969, Article 29 was amended to make any such change optional rather than obligatory.14 In the Oldenburg State Case (1978) a majority of the residents of the former Weimar-era state of Oldenburg, which was absorbed into Lower Saxony in 1946, voted in favor of reestablishing Oldenburg as an independent state. In addition to denying standing to those invoking the rights of the former state, the Constitutional Court held that the Bund’s authority to reorganize the federal territory was a power conferred “neither in the interest of the existing states nor for the preservation of the interests of former states.” In adhering to the basic teaching of Territorial Reorganization, the Court declared that the Basic Law permits territorial change only at the discretion of the federation and for the well-being of the entire nation.15 Nevertheless, additional amendments to the Basic Law, such as proposals to further consolidate the Länder, could radically alter the Court’s view of the federation’s discretion on the question of territorial reorganization. But in the Franken State Case (1997)16 the Court showed no sign that it would change the balance as a matter of constitutional interpretation. The Court accepted the standing of a representative of the individuals who endorsed an application seeking the creation of a new state called Franken, consisting of a region straddling the borders of Bavaria, BadenWürttemberg, and Thuringia. But the Court rejected the claim that the federal minister of the interior’s decision to refuse to proceed with a referendum on the application constituted a violation of Article 29 of the Basic Law.17 The Court held that the minister of the interior properly concluded that the proposed new state did not qualify as a “contiguous residential and economic area” as required by Article 29 (4) of the Basic Law. In support of this conclusion the Court noted that the significant amount of daily commuter traffic out of the proposed state undermined claims of the region’s economic cohesion. The Nature of German Federalism. Constitutional theorists have long disputed the nature of the federal state (Bundesstaat) created by the Basic Law. What elements of

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the unitary state (Einheitsstaat) does it contain? What elements of a confederation (Staatenbund)? Both forms of territorial organization have figured prominently in German constitutional history. Is the Bundesstaat a two-tier (zweigliedrig) or a three-tier (dreigliedrig) structure? Zweigliedrigkeit suggests that the parts (states) are subordinate to the whole (federation). Dreigliedrigkeit suggests that national and state governments—both equal and coordinate—combine to form a third “state,” namely the state as a whole (Gesamtstaat). Konrad Hesse, a leading commentator on the Basic Law and a Federal Constitutional Court justice from 1975 to 1987, defi ned the Federal Republic as a “unitary federal state,” suggesting a strong tilt toward centralism.18 Others, such as Ulrich Scheuner, accentuated the Basic Law’s federalist underpinnings.19 Still others emphasized the solidarity contained in the idea of a strong federal union. Theodore Maunz’s view is representative: “The Bundesstaat is not a battle of member states against the whole, but rather a joint effort for achieving the ends assigned to each level [of government] under the Basic Law.”20 The argument over the nature of the Bundesstaat assumed considerable importance in 1957, when the Federal Constitutional Court decided the Concordat Case (1957; no. 3.8), which involved an area of public policy over which both the states and the federation could claim competence. Concordat appeared to embrace the threetier concept. The Court upheld the legal validity of an international agreement that had been negotiated before the establishment of the Federal Republic of Germany. That agreement denied the successor Federal Republic of Germany any control over the education policy of the individual states of the federation. Several years later, however, in Territorial Reorganization (1961),21 the Court appeared to accept the twotier theory. “The Bundesstaat as the state of the whole [Gesamtstaat],” said the Court, “does not consist of an independent central state [Zentralstaat] but only of a central organization which, together with the organization of the Länder, carries out, within the sphere of operation prescribed by the Basic Law, all those governmental functions that devolve upon a unified state organization in a unified state. The Basic Law divides authority only between the organs of the federation and those of the states, whereby the Gesamtstaat arises out of an alliance among the states in the form of a federation.”22 State Government and the Principle of Homogeneity. At the most basic level, the authority of the Länder in the German federal system is determined by their relationship to the federation and the Basic Law. Th is relationship, which necessarily must be clarified before pursuing a discussion of the Basic Law’s division of legislative and administrative authority between the federation and the Länder, is inherent to federal systems. For example, to what extent must state and local governments comply with the federal constitutional order? Article 28 of the Basic Law provides the answer: “The constitutional order in the Länder must conform to the republican, democratic, social state, and constitutional state principles, . . .” Th is provision, although labeled the “homogeneity clause,” is not a prescription for uniformity in governmental organization. Article 28 (1) has been generally understood to require

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states and localities to adhere to the basic principles, including “democracy, the social state principle and the constitutional state principle.”23 Th is has been interpreted to mean representative political institutions and governmental structures indispensable to the operation of a federal state. It also incorporates the principle of subsidiarity. What is important here is local autonomy, not a par ticular structural form. In addition, the formalities of the governmental process must be organized in such a way as to make the social and constitutional state (sozialer Rechtsstaat) possible. But how much flexibility do state and local governments have in establishing institutional procedures for the adoption of public policies? Th is was a central issue in the Startbahn West Case (1982),24 the result of a controversy arising out of Hesse’s refusal to hold a referendum, as demanded by a grassroots initiative, on the Land government’s decision to expand Frankfurt’s international airport. Hesse’s state government and constitutional court rejected the proposed referendum on state constitutional grounds and refused to consider related issues of federal law deemed to confl ict with the airport expansion proposal, including the threat to the constitutional right of personality (Article 2 (1)) allegedly posed by the further destruction of the environment. The applicants (invoking the Federal Constitutional Court’s jurisdiction over “other public-law disputes”) and the complainants (prosecuting a constitutional complaint) argued that the case could not be decided by reference to the state constitution alone and that the issues in controversy would have to be settled by the Federal Constitutional Court in accordance with federal constitutional principles. In a significant victory for the Länder, the Court ruled that Hesse’s exclusive reliance on state law in refusing to proceed with the referendum did not violate a fundamental right under the Basic Law. After remarking that Land and federal constitutional law are “separate domains,” the Court said: As members of the federation, the Länder are states vested with their own sovereign powers—even though limited as to subject matter—derived not from but rather recognized by the federation. . . . The Basic Law requires only a certain degree of identity between federal and Land constitutions. To the extent that the Basic Law does not provide otherwise the Länder are free to construct their constitutional orders. Their discretion in this respect most certainly extends to determining whether the Land legislature should reserve to itself the passage of a law or provide for its approval in a popu lar referendum. 25

Article 29 of the Basic Law allows referenda on the federal level in the limited instance of territorial reorganization. The Court said that this limit on the use of referenda by the federation does not prevent the states from employing referenda in other situations. In short, no confl ict with federal prerogatives could arise in this case because the decision to hold a referendum was a matter of the Land’s discretion. The Court went on to say that its power of review in such a case was restricted to examining the constitutionality of Land law and state executive or judicial actions. Because Hesse rejected a proposed referendum measure, the Constitutional Court

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had no authority to become involved. With this the Court confi rmed the authority of a Land constitutional court to review a state law under its own constitution, even when a case before it involves a fundamental right under the Basic Law. To suggest, as the applicants and complainants had done in Startbahn West, that only the Federal Constitutional Court could hear such cases “would seriously undermine the integrity of Land constitutional law.”26 Since Startbahn West the Court has gone a step further, recognizing a Land constitutional court’s authority to review the application of federal law for conformity with state constitutional norms (recalling again that the Länder bear much of the responsibility for administering federal law), even when the relevant Land constitutional law is identical to federal constitutional protections that the Federal Constitutional Court might otherwise have been competent to examine.27

doctrine of federal comity Early on, the Constitutional Court oscillated between the two-tier and three-tier concepts of federalism.28 Eventually, however, it settled on a more pragmatic approach to the federal-state relationship in an effort to weigh and balance the vital interests of both state and national governments. Th is concern for balance and practicality induced the Court to proclaim the principle of federal comity or pro-federal behavior (Bundestreue), which obligates the federation and Länder to consider each other’s interests in exercising their authority. The doctrine of comity, which the Court invoked for the fi rst time in the Housing Funding Case (1952),29 does not appear in the text of the Basic Law. It is, rather, an unwritten principle inferred by the Court from the various structures and relationships created by the constitution. German federalism, said the Court, is essentially a relationship of trust between the federation and Länder. Each has a constitutional duty to keep “faith” (Treue) with and respect the rightful prerogatives of the other. The doctrine received special emphasis in the First Broadcasting Case. 3.2 First Broadcasting Case (1961) 12 BVerfGE 205 [The television controversy grew out of Federal Chancellor Konrad Adenauer’s effort to create a federally operated television station. One major television channel controlled by the states was already operating in the Federal Republic. Adenauer, who was also the leader of the conservative Christian Democratic Union, was at the time strongly opposed by Länder that were under the control of the center-left Social Democratic Party. Finally, and notwithstanding opposition from both Social Democratic and Christian Democratic states, Adenauer established a second television station by decree. Several Länder immediately challenged the validity of the decree, invoking the Constitutional Court’s juris-

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diction over federal-state confl icts. The Länder relied on Articles 30 and 70 (1) of the Basic Law, claiming that these provisions confer no such power on the federation. In response, the federation relied on an earlier version of Article 87 (1) as well as Article 73 (7), which conferred exclusive authority on the federation to legislate in the field of and to administer “postal and telecommunication ser vices.”30]

∂

Judgment of the Second Senate. . . . D. II. 3. b. The Basic Law regulates the legislative authority of the federation and Länder on the basis of a principle that favors the jurisdiction of the states. . . . The federation has legislative authority only insofar as the Basic Law confers it (Article 70 (1)). Thus, as a rule, federal legislative powers can be derived only from an express statement in the Basic Law. In cases of doubt there is no presumption in favor of the federation’s authority. Rather, the systematic order of the Basic Law demands a strict interpretation of Article 73 [and other provisions that confer power on the federation]. In addition, broadcasting is a cultural matter. To the extent that cultural affairs are subject to governmental regulation at all, the Basic Law has made a fundamental decision (Articles 30, 70 et seq., and 83 et seq.) that they come within the authority of the Länder. . . . Exceptions occur only when special provisions of the Basic Law provide that the federation has authority. Th is fundamental decision of the constitution, a decision in favor of the federal structure of the nation in the interest of an effective division of powers, specifically prohibits the assumption that the federation has authority over cultural matters. The federation has authority only when there is a clear exception spelled out in the Basic Law. Th is sort of provision is lacking here. 4. The public interest demands the regulation of radio communications— something only the federation can do effectively. Th is is also true of broadcasting. To prevent chaos, a number of matters must be subject to uniform regulation: allocating and delimiting the frequency ranges of stations, determining their locations and transmission strength . . . control of radio communication, protecting transmission systems from widespread and local disturbances, and implementing international agreements. Article 73 (7) makes it possible to enact uniform regulations that are indispensable to these and similar matters. But implementing this objective does not require that, in addition to technical questions of radio communication, federal law also [should] regulate the production of broadcasts. . . . 5. An historical interpretation of the term “telecommunication ser vices” does not lead to a different conclusion. . . . 6. a. The federation is not entitled to any further legislative authority over broadcasting on the basis of a nexus with the subject matter [Sachzusammenhang]. Regulating

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studio technology and program production . . . is not an indispensable requirement for regulating technical matters relating to broadcasting. [The notion of Sachzusammenhang (loosely translated, “having a nexus with the subject matter”) suggests an implied power. As used here it means that the federation may regulate a subject matter not within its express powers if it cannot avoid such regulation when making law in an area where it has express constitutional authority. One example would be the federal regulation of court fees. Th is subject is so closely related to the federal government’s authority in the fields of civil law and court procedure that any regulation of the latter necessarily involves a regulation of the former.] Transmitting programs, on the one hand, and producing programs, on the other hand, are undertakings that [legislatures] can treat separately. In this respect “broadcasting” is not a single subject matter that must be regulated uniformly by the federation. . . . c. The federation has no authority to regulate broadcasting beyond the technical aspects of transmission. . . . 7. b. The federation must . . . observe the principle of comity. . . . Th is principle would be violated if the federation today used its authority to regulate the telecommunication system so as to deprive existing broadcasting companies of the right to dispose of transmitting facilities that they own and operate. The same would be true if the federation deprived these companies of their frequency ranges and, in distributing frequencies to be used now or in the future, did not duly consider the companies in light of state regulations concerning producers of programs. . . . E. II. In the German federal state the unwritten constitutional principle of comity, the reciprocal obligation of the federation and the Länder to behave in a pro-federal manner, governs all constitutional relationships between the nation as a whole and its members, and the constitutional relationships among its members. . . . From this principle the constitution has developed a number of concrete legal obligations. In considering the constitutionality of the so-called horizontal fi nancial equalization, this Court said: “Federalism by its nature creates not only rights but also obligations. One of these obligations consists in fi nancially stronger states giving assistance within certain limits to fi nancially weaker states. . . .” Furthermore, in cases where a law demands that the federation and the states come to an understanding, this constitutional principle can create an increased obligation of cooperation on all parties concerned. . . . In the decision concerned with granting Christmas bonuses to public employees this Court held that states must maintain loyalty to the federation (Bundestreue) and, therefore, show consideration for the overall fi nancial structure of the federation and states. . . . Th is legal restraint, derived from the concept of comity, becomes even more evident in the exercise of legislative powers: “If the effects of a law are not limited to the territory of a state, the state legislature must show consideration for the interests of the federation and other states. . . .” The constitutional principle of comity can further imply states’ duty to observe international treaties

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concluded by the federation. . . . Finally, under certain circumstances, loyalty to the union can obligate a Land to use its supervisory authority over local governments to intervene against municipalities that encroach upon an exclusive federal competence. . . . In the execution of federal authority over the field of broadcasting, the principle of comity is also of fundamental importance. . . . Previous decisions show that additional concrete obligations of the Länder can be developed from this principle—obligations that surpass constitutional obligations explicitly laid down in the Basic Law. . . . The case at hand offers an occasion to develop the constitutional principle of comity in a different direction; comity also governs the procedure and style of the negotiations required in the constitutional coexistence of the federation and its constituent states as well as between the Länder inter se. In the Federal Republic of Germany all states have the same constitutional status; they are states entitled to equal treatment when dealing with the federation. Whenever the federation tries to achieve a constitutionally relevant agreement in a matter in which all states are interested and participating, the principle of comity prohibits the federation from trying to “divide and conquer,” that is, from attempting to divide the Länder, to seek an agreement with only some of them and then force the others to join. In negotiations that concern all Länder, the principle of comity also prohibits the federal government from treating state governments differently because of their party orientation and, in particular, from inviting to politically decisive discussions only representatives from those state governments politically close to the federal government and excluding state governments that are close to opposition parties in the Parliament. . . . The year-long efforts to reorganize the broadcasting system entered a new phase in early 1958 when the federal government considered drafting a federal law. After the draft of a federal law had been discussed several times during 1959 with Land representatives, the Länder, in January 1960, agreed to form a commission consisting of two Christian Democratic and two Social Democratic members of state governments. Th is commission was empowered to represent the state governments in negotiations with the federation. The federal government, however, never let this commission participate in negotiations. Only one of its members, the Christian Democratic Minister-President of the Rhineland-Palatinate, participated—not in his role as a member of the commission, but as a member of his party—in a number of debates between politicians and deputies of the Christian Democratic Union and the Christian Social Union. . . . The fact that the Minister-President of the RhinelandPalatinate informed the state governments led by Social Democratic ministerpresidents of these plans in a letter dated 16 July 1960, and at the same time invited them, together with the other minister-presidents, to a discussion of these plans on 22 July 1960, did not release the Federal Government from its obligation to confer directly with all state governments concerning the plan it had drafted. That it neglected to do so violated the principle of comity. The federal government’s behavior toward the Länder in the days leading up to the creation of the federal television broadcasting company also was incompatible with

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the principle of comity. The federal government knew that the minister-presidents of the states . . . had their fi rst opportunity to discuss the plan to create a limited partnership and a second television network on 22 July 1960. The minister-presidents, including those of the Christian Democratic Union and the Christian Social Union, did not fully accept the federal government’s proposal, but made counterproposals by a letter of 22 July 1960—thus fully informing the federal government of the result of these discussions. Nevertheless, the federal government insisted that the Länder approve the corporate contract on 25 July 1960 even though the states had played no role in draft ing the contract. The federal government’s letter, dated 23 July 1960, was mailed in Bonn on 24 July 1960 at 5:00 p.m. and reached the addressee, the MinisterPresident of Rhineland-Palatinate, on 25 July 1960 at 4:15 p.m. That is, it reached him at a time when the corporate contract had already been notarized. . . . Such a proceeding is blatantly incompatible with the principle of comity, even if the federal government had reason to be displeased with the delay tactics pursued by some Land governments. At issue here is not whether the federal government could consider negotiations with the states as having failed, allowing it to pursue an alternative course it believed to be constitutional, . . . but whether the Land governments as constitutional organs of member states of the Federal Republic of Germany could expect the federal government to disregard their counterproposals with a fait accompli. . . .

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The Jurisprudence of Comity. The Federal Constitutional Court did not invent the principle of comity. It played a significant role in the constitutional theory concerned with federal-state relations under the Imperial Constitution of 1871. The Financial Equalization Act Case (1952),31 which approved a federal statute providing for the transfer of tax revenues from the fi nancially stronger to the fi nancially weaker states (a component of the Basic Law’s fi nancial constitution, which is treated in greater depth later in this chapter), alluded to this history in assigning comity a major place in the Federal Republic’s constitutional jurisprudence. In several subsequent cases the Court seized on the principle of comity to vindicate the fi nancial interests of various Länder, even when the letter of the constitution might have suggested a contrary result.32 Still later, in the Atomic Weapons Referendum I Case (1958; no. 3.7), the Atomic Weapons Referendum II Case (1958), and the Concordat Case (1957; no. 3.8),33 the Court invoked the principle to admonish the Länder and the federation to respect the primacy of the other in their respective fields of authority. As Blair suggested, these decisions “establish for the states in their relations with each other and with the ‘greater whole,’ and for the federation in its relations with the states, a duty in constitutional law to keep ‘faith’ (Treue) and reach a common understanding” with respect to certain matters of public policy.34 In Atomic Weapons Referendum II, for example, the Court rebuked Hesse for permitting local referenda within its borders.35 The Court said that Hesse’s failure to ban the referenda (aimed at discrediting the federation’s pursuit of a defense policy that involved the procurement of nuclear weapons) violated the principle of federal comity.

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In its defense, Hesse advanced two arguments: fi rst, the federal government had itself offended the constitution by manipulating public opinion in such a way as to undermine the principle of majority rule implicit in the concept of democracy;36 second, the Land had not disregarded the principle of comity because it acted out of goodwill and in the best interest of the Federal Republic. Both arguments, said the Court, were incapable of judicial resolution. It concluded its opinion, however, by noting that a decision fi nding a violation of the principle of comity did not imply a spirit of ill will on the part of a Land or a reproach (Vorwurf) of the state. Comity, said the Court, “is exclusively an objective idea of constitutional law, and it assumes that the participants, with respect to a given subject matter, are convinced subjectively of the constitutionality of their mutual dealings.”37 After First Broadcasting the Court was less inclined to decide federal-state confl icts on the basis of an express appeal to comity. Theoretical and practical reasons prompted this result: theoretical because inferences from the structure of federalism proved to be extremely indeterminate; practical because the sharp confl icts of the 1950s paled before the advance of “cooperative federalism,” pursuant to which levels of government worked together voluntarily to achieve certain policy objectives.38 References to comity continued to appear in constitutional cases but the Court seemed to regard it as a principle of decreasing vitality. Th is was exemplified by a decision from 1976 in which the Court declared: “The principle of comity is of an accessory nature, which, unto itself, does not establish obligations (to act, to refrain from acting, or to tolerate) on the part of the federation or the Länder. This means the principle of comity can only take on meaning within a legal relationship with its basis elsewhere (whether statutory or contractual) or a legal obligation with its basis in the law.”39 After an apparent resurgence of the principle in the 1990s,40 the Court reversed course and again began to fi nd that alleged violations of comity, standing alone, did not present a constitutional question justifying the exercise of its jurisdiction. In the Pofalla I Case (2001) the Court emphasized that the principle merely is an accessory to underlying legal relationships and obligations: “comity does not in itself create a material constitutional relationship between the federation and a Land. It is of an accessory nature and does not on its own establish any independent duties for either the federation or a Land. . . . The principle of comity acquires significance only in the context of a statutory or contractual, that is to say, a legal, relationship with its basis elsewhere. It mitigates or varies those other rights and duties or supplements them with secondary duties. . . .”41

apportionment and distribution of revenue The Basic Law links federal-state competences under several provisions. These provide that certain public tasks can be carried out jointly when both levels of government consent (Articles 91a, 91b, 91c, 91e and 98 (3)). At one time the Basic Law authorized

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federal “framework” legislation to assist the Länder in meeting their responsibilities in fields such as higher education and regional planning (Article 75 [repealed in 2006]). Our present focus, however, is on Articles 104a through 115, the section of the Basic Law known as the fi nancial constitution. Here, the Basic Law thrusts the Bund and Länder into an intricate web of intergovernmental relations in the area of public fi nance and fiscal policy, relations involving the collection, apportionment, and distribution of public revenue. Several of these provisions defi ne the tax authority of each level of government and provide for the apportionment of tax revenues along vertical (from federation to Länder) and horizontal (Land to Land) lines.42 Th is system was meant to advance Germany’s postwar commitment to equivalent living conditions among the Länder. In advancing this objective, the Basic Law sought to avoid the extremes of the 1871 (Imperial) and 1919 (Weimar) Constitutions. The former made the “Reich the dependent of the states,” whereas the latter made the “states the dependents of the Reich.” 43 The tension between the federalist and centralizing impulses represented by these extremes continues to bedev il the Basic Law’s fi nancial constitution. The tension is between autonomy and solidarity (Spannungsfeld von Autonomie und Soldarität), and it seems to flow from the Basic Law’s defi nition of the Federal Republic as a “social federal state.” With its grant of autonomy to the Länder, federalism competes with the centralizing tendencies of the Basic Law’s social state principle.44 Accordingly, the Basic Law’s apportionment and distribution of public funds takes place against the backdrop of a combustible mix of state autonomy, often contentious social welfare policy, and competing claims to tax revenue. Unsurprisingly, the constitutional provisions that regulate taxation and budgetary matters have been the subject of more amendments than other parts of the Basic Law. Given the details of fiscal governance laid out in the Basic Law, one can see why. In Articles 104a through 108, for example, the Basic Law itemizes the sources of tax revenue for each level of government, provides for their distribution among these levels, prescribes a complex formula for the horizontal equalization of fi nancial resources among the Länder, and specifies the costs that the federation and Länder shall bear in meeting their obligations under domestic and European law. In addition, Articles 109 through 115 lay down the guidelines of budget management by the federation and the Länder, including such matters as deficit spending, limits on borrowing, and the auditing of revenue and spending accounts. What is more, nearly all federal laws enacted to carry out the bulk of these provisions require the consent of the Bundesrat, thus placing in the hands of the Länder enormous influence over the administration of tax and spending policies. Little wonder that the Bundestag and Bundesrat often found themselves in gridlock over fiscal policy. The federalism reforms of 2006 sought to streamline this system of fiscal relations between levels of government by cutting back on the powers of the Bundesrat and by drawing brighter lines of authority between federation and Länder. We focus attention here on fiscal and budgetary reform and reserve for later a discussion of the

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changes in the general distribution of legislative power between levels of government. The most important of the 2006 reforms involved the disbursement of funds between federation and Länder and the corresponding powers of the Bundesrat. Significant among these reforms was an amendment making it unnecessary to secure the Bundesrat’s consent to federal laws providing money grants that are to be partially funded and administered by the Länder. Another important change was the new Article 104b permitting federal grants-in-aid to the Länder and municipalities for investments necessary to maintain “overall economic equilibrium,” to equalize economic capabilities among the Länder, and to promote economic growth.45 Previously, under Article 104a, these lower levels of government had less flexibility in the investment of these funds. Th is provision differs from the old Article 104a (4) in that it limits the reach of grantsin-aid, imposes time limits and periodic reviews on such grants, and requires that the aid granted by the federation be reduced in stages over time.46 Equalization of Tax Revenue. Articles 106 and 107 of the Basic Law provide for the distribution, both vertically and horizontally, of the tax revenue in a complex, multistage system known as fi nancial equalization (Finanzausgleich). The fi rst stage of this process, laid out in Article 106, provides for the vertical distribution of tax revenue. While some minor tax proceeds are assigned exclusively to the federation or the Länder, the largest portion of these proceeds (derived mainly from income, corporation, and turnover [value-added] taxes), is shared equally between the two levels of government.47 The motor vehicle tax was another large source of revenue. Under the original version of Article 106, these tax receipts accrued to the Länder. The fiscalfederalism reform amendments of 2009, however, transferred the motor vehicle tax to the federation but the Länder were given a share of these proceeds under a federal law subject to the Bundesrat’s consent. The turnover tax, another large source of revenue, now is awarded in ratios determined by a federal law that also requires the Bundesrat’s approval. Article 107 provides for the horizontal or second stage of the equalization process. On this plane, population and production generally determine how tax revenue is to be distributed among the Länder and municipalities. For example, the states’ share of the turnover tax is distributed on a per capita basis. But federal law enacted with the Bundesrat’s consent may require the redistribution of as much as one-quarter of the states’ share of the turnover tax to Länder with per capita revenues below the average of all states combined. Article 107 (2) prescribes still a third stage of horizontal distribution aimed at “ensur[ing] a reasonable equalization of the disparate fi nancial capacities of the Länder.” Th is requirement is controversial because it calls for direct state-to-state transfers of revenue from fi nancially stronger to fi nancially weaker Länder, a status determined by a “complicated scheme that contrasts the tax revenues that a Land should have (fiscal needs) with those that it actually has (fiscal capacity).”48 Article 107 (2) completes the Basic Law’s fi nancial equalization regime with a fourth stage that permits the federation to make supplementary grants from its own revenues to the fi nancially weaker Länder to assist them in meeting their general

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fi nancial obligations. Th is system, and the federal laws enacted to implement it, have given rise to several constitutional confl icts between federal and Länder governments, and the Federal Constitutional Court has played no small role in that history, having handed down four major fi nancial equalization cases. Before discussing those cases, it is worth noting some changes made to the Basic Law’s budgeting provisions by the fiscal-federalism reforms of 2009. Article 109, for example, specifies the fiscal duties of the federation and the Länder under obligations incurred “from the legal acts of the European Community for the maintenance of budgetary discipline.” A new change also constitutionalizes a specified ratio in the amount of funding for which both levels of government will be responsible as a result of sanctions imposed by the European Union. Similarly, detailed limits on borrowing are set forth in a major amendment to Article 115. Finally, a new Article 109a establishes a Stability Council to supervise the budgetary management of both the federation and the Länder. The Federal Constitutional Court was called upon to resolve disputes arising out of the Basic Law’s command for fi nancial equalization as implemented by the fi rst federal law fi lling in the details and coordinating the regime. In the Financial Equalization Act Case, the Court sustained a horizontal, state-to-state equalization measure that required two fi nancially stronger Länder to subsidize several fi nancially weaker Länder up to specified amounts. The fi nancially stronger Länder argued that the dictated amounts violated the central principle of fi scal federalism articulated by Article 109 of the Basic Law, which declares that the federation and the Länder are “autonomous and independent of each other with regard to their respective budgets.” In sustaining the statute, the First Senate conceded that there are constitutional limits to the federation’s power to enforce horizontal fi nancial adjustments. “The equalization statute would offend the principle of federalism,” said the First Senate, “if it were to weaken the fi nancial capacity of the contributing states or lead to a fi nancial leveling of the states.” But such was not the case and, in any event, the First Senate concluded that “the Länder have duties as well as rights.” Where the fi nancially stronger Länder are concerned, one of these duties is “to assist, within limits, the fi nancially weaker Länder.” 49 In the Finance Equalization I Case (1986) the Second Senate invalidated an “equalization” statute for its failure to ensure, in accordance with an earlier version of Article 107 (2), reasonable fi nancial equalization between financially stronger and financially weaker Länder; whereupon, in a classic example of an admonitory decision (Appellentscheidung), the Court instructed the Bundestag to change the basis for allocating tax revenues among the Länder by fiscal year 1988.50 The Finance Equalization II Case (1992) involved the city-states of Bremen and Hamburg and the state of Saarland. Bremen and Hamburg argued that their transfer payments to other states were too large in view of their own outlays for the maintenance and improvement of harbor facilities that also benefited other states. The Court rejected this claim but found that Bremen had been the victim of constitutional discrimination because the city had received no transfer payments for several

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years and later received less fi nancial aid than Saarland, even though Bremen had substantially higher debts than Saarland. Finally, the Court ruled that the federation’s vertical payments to Bremen and Saarland had been too low in view of the serious budgetary problems of both Länder. Accordingly, the federation and other Länder would be required to assist both Länder with appropriate measures.51 Following the Court’s 1992 decision, the federal laws implementing the fi nancial equalization regime were reformed, in part to incorporate the new, fi nancially weaker Länder of the former East Germany in the fi nancial equalization scheme beginning in 1996. The new system took full advantage of the one-quarter redistribution of the states’ share of the turnover tax in the second stage of equalization, awarding an amount thereof to the fi nancially weaker Länder to allow them to achieve 92 percent of the average of per capita tax revenue of all Länder combined. In the horizontal state-to-state fi nancial equalization of the third stage of the fi nancial equalization process, the new system required direct interstate transfers in amounts necessary to guarantee that the fi nancially weaker Länder achieved 95 percent of the average of per capita tax revenue of all Länder combined. Finally, the new system obliged the federation to make supplementary grants in the fourth stage of equalization in amounts necessary to bring the fi nancially weaker Länder to 99.5 percent of per capita tax revenue of all Länder combined. The Länder saddled with the obligation to “pay” in this horizontal fi nancial equalization scheme had traditionally been governed by conservative parties aligned with the long-serving conservative parliament and federal government that had enacted the 1993 reform. The election of a center-left parliament and federal government in 1998 caused these fi nancially stronger, conservative Länder to chafe at the new federal master’s demand that they transfer revenues to the fi nancially weaker Länder. Only six years removed from the Court’s previous ruling and the attending, significant reform of the relevant law, the fi nancially stronger Länder again brought challenges to Germany’s confounding fi nancial constitution and its implementing legislation before the Federal Constitutional Court. Betraying a quixotic desire to put the persistent challenges to the Basic Law’s fi nancial equalization provisions to rest once and for all, the Court issued its decision in the Finance Equalization III Case. It was a comprehensive, technical, and prescriptive opinion covering eighty pages of the Court’s official reporter. 3.3 Finance Equalization III Case (1999) 101 BVerfGE 158 [The results of the fi nancial equalization scheme in 1998 were a testament to Germany’s commitment to equivalent living conditions in the various Länder. On the one hand, the top fi ve tax-generating Länder (Hesse, BadenWürttemberg, Hamburg, Bavaria, and North Rhine–Westphalia) were relegated by fi nancial equalization to the bottom of the list that accounted for the states’ total tax revenues. On the other hand, Bremen, which placed fi fteenth

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(out of sixteen) in preequalization fi nancial capacity, was catapulted into fi rst place by fi nancial equalization. Bavaria, Baden-Württemberg, and Hesse brought an abstract judicial review challenge against this fi nancial equalization regime. The Second Senate held that provisions of the Standards Regime and the Financial Equalization Regime in the omnibus Financial Equalization Act of 1993 constituted violations of Articles 106 and 107 of the Basic Law.]

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Judgment of the Second Senate. . . . [The Court began its opinion by identifying the three distinct normative layers with which it was concerned in its review of the 1993 fi nancial equalization law: 1) the Basic Law, which establishes the general principles governing the statutory appropriation and distribution of revenue; 2) the “Standards Regime” consisting of long-term allocation and equalization standards that are constantly updated by the Parliament in the context of continuous planning; and 3) the “Financial Equalization Regime,” which sets short-term allocation and equalization targets that are designed to be periodically reviewed. Because the constitutional rules governing public fi nance largely operate as an abstract system of values, the Court focused its attention on the general Standards Regime and the more detailed Financial Equalization Regime implemented by the 1993 law.] C. The Financial Equalization Act does not defi ne the standards stipulated by Article 106 and Article 107 of the Basic Law for the implementation of the fi nancial constitution with adequate specificity. . . . [The Court fi rst examined the Standards Regime.] I. 1. c. The constitution directs the Parliament to form a long-term Standards Regime that is based on a timetable that excludes or at least limits a purely interestorientated understanding of the amounts of money to be affected by fi nancial equalization. Th is contrasts with the Financial Equalization Regime, which applies those standards in up-to-date form with consideration given to actual fi nancial conditions. The fi nancial constitution requires, in Article 106 (3) and (4) and Article 107 (2) of the Basic Law, the enactment of statutory standards that fulfi ll the Parliament’s duty to anticipate the future. Th is is part of the constitutional state principle. . . . In the present context this means that the criteria for tax allocation and fi nancial equalization must be formed before their later effects become known. The requirement of a Standards Regime (Article 106 (3) [4] {1} of the Basic Law) is designed to ensure the formation of long-term principles. The Standards Regime, in its generality, provides for the future in a rational, planned way. It presupposes a certain durability of the rules it establishes. It extends its application to an indeterminate multitude of future cases. It is detached from the persons affected by the details of fi nancial equalization. It directs the attention of subsequent parliaments to their

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obligation to the future even while they are engaged in negotiating respective Financial Equalization Regimes. In these ways, the Standards Regime recalls but also directs the Parliament’s primary authority to interpret the constitution. The requisite indeterminacy is achieved if the Parliament enacts the Standards Regime without regard to the fi nancial interests of the federation and the individual Länder, circumstances that come into focus on the basis of annually changing revenue yields and fi nancial expenditures. Th is standard-setting statute must be adopted well in advance of its actual application and its continuity must be assured so that the standards it establishes are not influenced by current fi nancial interests, vested rights, and privileges. Even if a general “veil of ignorance” [citing John Rawls’s A Theory of Justice (1975)] cannot be drawn over the decisions taken by members of the Parliament, the fact that the Standards Regime exists before the Parliament begins to consider legislation for a new Financial Equalization Regime should guarantee an institutional orientation toward the constitution. Again, the aim is to develop standards without knowing the specific circumstances of their application. . . . d. The Standards Regime sets the terms by which the system of allocation and equalization under the fi nancial constitution is clarified and implemented. Regulating the equalization of fi nancial burdens must not be left to the free play of political forces. The Basic Law does not subject its carefully coordinated fi nancial constitution to the whims of the interested parties. Rather, it directs the Parliament to give fi nal shape to the requirements of the fi nancial constitution in further refi nement of the constitutional principle of federalism. The Parliament is charged with enacting a Standards Regime so that the fi nancial constitution can be clarified in up-to-date terms and the consequences of allocation and equalization can be measured accurately in relation to prevailing circumstances and can be periodically reviewed. . . . e. In passing the Standards Regime, the Parliament fulfi lls its obligation to give concrete form to and supplement the principles of allocation and equalization that  are outlined only generally in the fi nancial constitution. The Bundestag— with the consent of the Bundesrat—discharges this responsibility by adopting the appropriate standards, thus binding itself with these standards of allocation and equalization. . . . Enactment of the Standards Regime creates abstract criteria for specific fi nancial consequences allowing Parliament to give account to itself and to the general public, it ensures the transparency of the distribution of funds in accordance with the constitutional state principle, and it guarantees the budgetary predictability and foreseeability of the bases of public-fi nance autonomy for the federation and each Land. [Having ruled that the 1993 Standards Regime lacked the necessary distance from day-to-day politics and the required long-term perspective, the Court articulated the maxims that should prevail in the Standards Regime. The Court addressed each of the four phases of constitutional fi nancial equalization. In the fi rst stage, the Court explained, the vertical distribution of tax revenue is to

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be determined with a view toward necessary expenditures, fi nancial rationality, and a fair balance that avoids excessive burdens on taxpayers and ensures equivalent living conditions. In the second stage, the Court explained, the turnover tax is to be allocated on a per capita basis except when the formula is adapted to assist Länder with below-average tax revenues. It is the horizontal, state-to-state revenue transfers from fi nancially stronger to fi nancially weaker Länder, undertaken in the third stage of fiscal allocation, that has proven most controversial. Addressing these state-to-state revenue transfers, the Court’s rule for the third stage of fi nancial equalization called into question the horizontal, state-to-state transfer provisions of the 1993 Financial Equalization Act that had produced the dramatic reversal of fiscal fortunes of several of the Länder.] c. . . . Pursuant to the concept of the mutually supportive federal community, Article 107 (2) [1] and [2] of the Basic Law stipulates . . . fi nancial equalization that is supposed to reduce but not remove . . . the differences in fiscal capacity among the Länder. The Financial Equalization Regime must strike a balance between the autonomy, independent responsibility, and preservation of the individuality of the Länder, on the one hand, and the shared responsibility, based on a mutually supportive federal community, for the subsistence and independence of the other members of the federation [Bundesgenossen], on the other. . . . It is not a system for replacing the result of the primary distribution of tax . . . with a new system, which is, for example, characterized solely by the concept of the fi nancial equality of the Länder, but which no longer takes their autonomous statehood and independent responsibility into consideration. The equalization mandate imposed by Article 107 (2) of the Basic Law, therefore, does not require the creation of actual fi nancial equality for the Länder. . . . The balance between the autonomous statehood of the Länder and the mutually supportive federal community, in par ticu lar, would not be achieved if the standards of horizontal, state-to-state fi nancial equalization decisively were to weaken the ability of the contributing [fi nancially stronger] Länder to meet their obligations or lead to a leveling out of the fi nances of the Länder. . . . Moreover, the requirement to equalize the disparate fi nancial capacities of the Länder only to a reasonable extent and without establishing parity prohibits any reversal of the order of fi nancial capacities among the Länder in the context of the horizontal fi nancial equalization. . . . Financial equalization should approximate without imposing actual equality. Th is means that horizontal fi nancial equalization may reduce but not cancel out or reverse the disparities among all sixteen Länder—both those obliged to contribute to as well as those entitled to benefit from equalization. Solidarity among the states of a federation reduces differences; it does not eliminate them. [The Court then addressed the fourth and fi nal stage of constitutionally imposed fi nancial equalization. The Court explained that the federation’s supplementary grants to fi nancially weaker Länder, awarded pursuant to Article 107 (2) [3] of the Basic Law, may not merely continue the horizontal fi nancial equal-

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ization with federal funds. The federal supplementary grants, the Court said, are available to Länder that experience persistent, below average fi nancial capacity or have special burdens. Having outlined the more abstract guidelines required of the Standards Regime, the Court applied these standards to the detailed Financial Equalization Regime of 1993. The Court found a number of provisions to be incompatible with these standards, particularly the provisions concerning the third stage of horizontal, state-to-state revenue redistribution. The Court found that these provisions did too much to equalize the fi nancial capacity of the Länder. The Court identified a cap on fi nancial redistribution, which it concluded would promote solidarity while preserving state autonomy.] II. 2. d. aa. If the . . . Financial Equalization Act restores the fi nancial capacities of the fi nancially weak Länder in two stages to 95 percent of the average fi nancial capacity of the Länder, it establishes for the horizontal fi nancial equalization a reasonable balance between Land autonomy and the mutually supportive federal community. It approximates fi nancial capacities without leveling them out, it maintains the order of fi nancial capacity and, in principle, it avoids excessive burdens for the fi nancially stronger Länder.

∂

Repercussions of Finance Equalization III. The Second Senate’s decision required the revision of the Financial Equalization Act before 1 January 2005. Until that date, the constitutionally flawed 1993 law could remain in force, but only so long as a new Standards Regime, defi ning in more detail the standards by which the fi nancial constitution’s vertical and horizontal equalization scheme would be implemented, had been enacted before 1 January 2003. The new Standards Regime was enacted in September 2001 and was followed by the required comprehensive overhaul of the omnibus Financial Equalization Act in December 2001. In two novel ways the new scheme created incentives for the states to collect their own tax revenues. First, it lowered the rate at which the rich states’ above-average tax revenues are subject to direct state-to-state transfer (from 80 percent to 72.5 percent). Second, it exempted 12.5 percent of tax revenue increases over the previous year from the calculation of states’ fi scal capacity, thereby reducing rich states’ exposure to federally mandated transfers by that amount. These reforms represent timid but certain movement toward a much-debated model of “competitive federalism” that would make states’ fi scal well-being dependent on state economic and social policy. Th is, of course, represents a challenge to Germany’s commitment to equivalent living conditions. The important role played by reunification in the debate that led to Finance Equalization III also merits comment, especially because the broad reform of the omnibus Financial Equalization Act in 2001 was coupled with the extension of the 1993 Solidarity Pact. The long-standing tension between fi nancially stronger and fi nancially

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weaker Länder was exacerbated in the 1990s by the integration of the new, very poor Länder that had constituted the former East Germany. From 1996, the new Länder participated in most components of the fi nancial equalization system and benefited significantly as the recipients of revenue transfers. But pursuant to the Solidarity Pact, the formerly socialist region also was the recipient of a massive infusion of federal funds aimed specifically at invigorating the economy, renovating the infrastructure, and paying for social ser vices such as old age benefits. Again, the goal of these revenue transfers was to establish equivalent living conditions across the whole of the reunified Federal Republic. Some contended that these resources should be counted in the calculation of the new states’ fiscal capacity for the purpose of revenue distribution pursuant to the fi nancial equalization regime. In Finance Equalization III, the Constitutional Court unequivocally rejected this argument, concluding that federal supplementary grants should be aimed at addressing the special needs of the Länder, especially the unique needs of the new Länder. The regrettable but dawning reality that the renewal and economic integration of the new Länder would require a multigenerational effort led to the extension of the Solidarity Pact through the year 2019. The 2006 federalism reform added a new Article 143c to the Basic Law that ensures the viability of this Solidarity Pact. Showing further support for the fiscal facets of reunification, in 2010 a chamber of the First Senate refused to admit for review a concrete judicial review application that called into question the constitutionality of the so-called “Solidarity Supplemental Tax” or “Soli” (Solidaritätszuschlag). It is this supplement to the income tax that, in part, funds the Solidarity Pact. In refusing to admit the constitutional reference from the Finance Court of Lower Saxony, the three-justice chamber of the Constitutional Court concluded that the “Soli” was properly still levied as a supplemental tax despite the fact that it had been two decades since unification. An earlier ruling on the constitutionality of a supplemental tax, the chamber explained, had clearly established that these taxes can be regularly renewed.52

local self- government Local government is a prominent feature of Germany’s constitutional structure. The German states, Arthur Gunlicks has written, “are responsible for executing as matters of their own concern most national laws, a large majority of which in turn are given to the local governments that also serve as field agencies. Local governments also execute most Land laws in addition to the ordinances and regulations passed by the local councils in their roles as instruments of local self-government. Thus, the local level is the primary focus for the administration of the laws and regulations of all levels in Germany.”53 Th is complex, multitier system of administration is sometimes referred to as “administrative federalism,” pursuant to which “the federation carries the greatest responsibility for legislation, but the Länder are generally responsible for [its] administration. . . .”54 Administrative federalism will be discussed in

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greater detail below, but it should be noted here that the federation had increasingly sought to prevail upon both Land and municipal autonomy in the administration of the law, largely through legislated mandates. The 2006 federalism reform barely touched matters of local self-government but, significantly, it eliminated federal mandates. Gunlicks notes “[n]ew provisions . . . were added to Articles 84 and 85 that state clearly that federal laws may not transfer tasks to local governments, which means that future transfers of tasks will have to come from the Länder that retain constitutional responsibility for their localities.”55 Local government has a long history in Germany. Baron von Stein laid its foundation in the Prussian City Charter Act of 1809, and it came to full realization in the free Hanseatic cities later in the century.56 The autonomy of local government in most parts of Germany, however, was severely limited under the Bismarck Reich and, after a short renaissance under Hugo Preuss’s Weimar Constitution, it was altogether crushed during the Nazi era. After World War II, in accordance with their policy of decentralization, the Allied powers rebuilt the German political structure from the bottom up, restoring local governmental responsibility before authorizing the reemergence of the Länder. Later, when the Länder were reestablished, each Land constitution contained provisions guaranteeing local self-government, reflecting not only the policy of the occupying powers but also the precedents set by similar provisions in the Frankfurt Constitution of 1849 (Article 184), the Prussian Constitution of 1850 (Article 105), and the Weimar Constitution of 1919 (Article 127). Article 28 of the Basic Law continues this tradition by declaring: “Municipalities must be guaranteed the right to regulate all local aff airs on their own responsibility, within the limits prescribed by the laws.” What constitutes a “local affair” is a matter that occasionally works its way to the Federal Constitutional Court. For example, in 1985 the Second Senate declared that municipal fi nancial autonomy is guaranteed by the Basic Law.57 As noted earlier, the Basic Law ensures that municipalities participate in the distribution of tax revenues.58 More fundamentally, in the Hoheneggelsen Case that follows the Court considered the “core function” doctrine for discerning a municipality’s constitutionally protected sphere of authority. Article 93 (1) [4b] of the Basic Law authorizes local governments to lodge constitutional complaints against laws impinging on their right to self-government. Th is, however, is an institutional guarantee of local self-government. The Constitutional Court has thus declined to hear the complaints of individual municipalities whose existence is threatened by otherwise valid boundary changes or annexations.59 As Gunlicks notes, “[t]he institutional guarantee enjoyed by local governments protects the essential content (Wesensgehalt) of local self-government. The concept of essential content refers to activities that cannot be removed without changing the status and structure of the institution.”60

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3.4 Hoheneggelsen Case (1982) 59 BVerfGE 216 [In 1974 the spd-controlled legislature of Lower Saxony passed a law consolidating several communities into one united municipality. The communities in which two-thirds of the population lived wanted to call the new municipality “Söhlde,” while the others preferred “Hoheneggelsen.” The Land parliament designated the new municipality “Söhlde,” in keeping with the practice of naming a new entity after the largest city in the group of consolidated municipalities. After the cdu defeated the spd in Lower Saxony’s 1976 election, the Land parliament passed a new law renaming Söhlde “Hoheneggelsen.” The legislators explained that the choice of “Söhlde” had not reflected prevailing local conditions. By renaming the municipality, they wished to correct the prior mistake as well as to encourage investment in the more centrally located Hoheneggelsen. The city of Söhlde fi led a constitutional complaint on the ground that the new statute interfered with its right of local self-government in violation of Article 28 (2). The Court agreed with Söhlde.]

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Judgment of the Second Senate. . . . A. The constitutional complaint concerns the issue of whether and under what conditions a Land legislature may once again change the name of a municipality after [it has passed a law] to newly form and name the municipality only a few years earlier as part of comprehensive territorial reorganization of local government. B. . . . II. The constitutional complaint is justified. The challenged provision violates the complainant’s right of self-government (Article 28). 1. Article 28 (2) [1] guarantees local units of government jurisdiction over virtually all matters concerning the local community as well as the authority to transact business autonomously in this area. Land parliaments may impose legal restrictions on local selfgovernment if and insofar as these restrictions leave the core functions of this right intact. In determining what constitutes these core functions, one may take historical developments as well as various historical manifestations of self-government into account. [The Court went on to say that part of the historical tradition of local government sovereignty is the right to use the name it has chosen. The locality’s name conveys its legal identity and manifests its individuality. Th is right consequently falls within the essence of Article 28 (2) [1]. Nevertheless, communities have not been immune to state-imposed name changes. Accordingly, most municipal codes provide that either the Land parliament or the minister of the interior can change a municipality’s name under certain conditions. The historical fi ndings indicate that this right was one of those consigned to the sovereignty of the state. To this extent Article 28 (2) [1] contains an institutional but not an individual guarantee of municipal sovereign rights.]

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3. Yet, part of the constitutionally protected essence of municipal autonomy, as it has developed historically, is that such name changes will be made only after the municipality has been granted a hearing. This applies not only to name changes necessary within the context of reorganization procedures but also to all other cases where a municipality is to be renamed against its will. Even § 10 (2) of the German Municipal Code provided for an obligatory, prior hearing. The municipal codes of all Länder now contain this obligation, insofar as they do not already make a name change dependent upon an express petition of the municipality in question. A municipality’s right to use its properly determined name as a manifestation of its individuality and as part of the historical tradition of local sovereignty is not the only consideration that justifies its right to a prior hearing. The constitutional state principle, which holds that a municipality may not be made into the object of state action during a name change, also demands this result. The complainant received a proper hearing during the legislative proceedings. The bill of 19 June 1980 contained the following explanation of complainant’s redesignation: The original naming was an erroneous decision because the district of Hoheneggelsen is geographically the more central district of complainant; the drafters of the bill expected that the complainant would consider its central location and meaning differently in the future than it has in the past when making investments, if the municipality’s continued unchanged existence is to be assured. With this list, the drafters briefly but completely set forth the fundamental reasons for the redesignation. [The Court explained that the Land parliament may infringe on the guarantee of Article 28 (2) [1] only in the public interest and that this guideline stems from the constitutional state principle. Although the redesignation of a municipality requires that its effect on the common good be considered, ultimately the parliament determines whether a given norm is in the public interest. Consequently, the Court gives lawmakers great leeway in this evaluative judgment.] When regulating for the fi rst time an area that consolidates several local communities, the Land parliament cannot, as a rule, maintain the former names of the communities being consolidated but must fi nd a common name. For this reason the legislature has relatively broad discretion when restructuring an area—especially if the communities in question disagree about the name of the newly consolidated municipality. But once the consolidation has taken place and a new municipality with its own name has been formed, the guarantee of local self-government resumes its full weight. The Land parliament must cite overriding considerations of the public good that plausibly explain a redesignation against the municipality’s will. These are lacking in the instant case. When the Land parliament restructured the complainant in 1974, it chose the name of the largest community participating in the consolidation in view of the existing dispute between the former communities over the name that the new municipality would use, just as it had in other comparable cases. The fundamental reason for the name change by the corrective law of February 1981 was the parliament’s aim of taking

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the “central location and meaning of the district of Hoheneggelsen” into account. Further, it wanted to change prospectively the complainant’s past investment behavior, which it considered wrong. Th is aim cannot justify the violation of the complainant’s right to use its name. Moreover, it deviates from the generally applicable aims and procedures for state regional planning in Lower Saxony, according to which the municipality itself may determine the location of the center of its administrative area. No apparent reason justifies why the complainant alone should be deprived of its acknowledged right to determine its own internal development and be compelled, under threat of legal sanctions, to move its administrative center to Hoheneggelsen because of its prior investments. And this, despite the fact that the Land Lower Saxony had approved and encouraged the municipality’s investments only a few years earlier by incorporating the locality of Söhlde into the regional planning program. Further, the corrective law’s professed aim is based on a misunderstanding of the meaning and scope of the right to local self-government. Th is right vests local government with authority over developmental planning and the resulting investment decisions of individual communities to the extent that regional interests meriting protection do not make restrictions necessary. Special statutory treatment that is burdensome only to a few municipalities is inconsistent with this right; this includes treatment that aims to teach local representatives to behave the way the majority in the Land parliament wants it to in matters of local self-government, or treatment aimed particularly at teaching local representatives to heed certain local special interests when deciding upon plans and investments. The legislature also cannot justify this treatment by combining these reasons with the speculative hope of reducing tensions and facilitating integration. We need not reach the issue of whether the state’s redesignation of the complainant would have been an appropriate and reasonable means for attaining the goal pursued by the legislature, since the parliament cites no constitutionally recognized grounds for the name change that advance a public interest.

∂

The Core Functions of Local Government. When the Court speaks of the essence of communal autonomy it is referring to certain core functions (Kernbereich) of local government that must be protected against federal or state encroachment. Not all local affairs, however, are core functions. The transfer of certain powers to the federation, the expansion of cooperative federalism, and the consequent reduction in the number of policy areas deemed exclusively municipal complicate efforts to distinguish between local and nonlocal affairs. At the same time, the Court’s historical approach to determining the essence of local government “could also be used to protect newly acquired local functions.”61 German commentators are unable to agree on a complete list of functions protected by the Kernbereich theory—some reject the theory of core functions altogether—but they, like the Court, do include local rule making, internal governmental organization, and certain aspects of land-use planning as well as personnel and fi nance administration.

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The Kernbereich theory echoes the federalism controversy in the United States triggered by National League of Cities v. Usery (1976).62 Usery held that the commerce clause did not permit Congress to impair the states’ “ability to function effectively in a federal system” or to displace their “integral governmental functions.” In 1985, however, the Supreme Court overruled Usery, claiming, contrary to the approach of the Federal Constitutional Court, that any “reliance on history as an orga nizing principle [for determining the ‘core functions’ of state governments—thus rendering them immune to federal regulation] results in line-drawing of the most arbitrary sort.” 63 But as Gunlicks noted, “it is much easier for the German Court to take a position in favor of local governments, since Article 28 (2) of the Basic Law grants local governments explicit protection, while there is sharp disagreement whether the Tenth Amendment is relevant to protecting American local governments from federal incursions.” 64 Waste Disposal Case. The Federal Waste Disposal Act of 1972 laid down regulations for the collection, treatment, storage, and disposal of waste. Lower Saxony, in implementing the statute, placed the responsibility for waste disposal in the hands of county (Kreis) authorities, in effect taking this function away from lower levels of government. Rastrede, a municipality of seventeen thousand inhabitants with its own garbage pickup and disposal system, fi led a constitutional complaint under Article 93 (1) [4b] of the Basic Law, alleging a violation of its constitutional right to self-government. The Court’s decision reaffirmed the principle of local self-government, holding, as it had in Hoheneggelsen, that “the essential content of communal self-government cannot be undermined.”65 In Waste Disposal (1988) the Court affi rmed these principles concluding that “the essence of communal self-government cannot be compiled into an objectively determinable cata log of functions based on fi xed features but is merely the communal power to assume control over all affairs of a local nature that are not subsumed under powers assigned to other levels of government.”66 But the Court held that, pursuant to federal law, a Land government could legitimately assign the task of waste disposal to public corporations other than municipalities. Also, in the light of developing technologies and the administrative efficiency associated with more centralized authority, waste disposal could no longer be regarded as exclusively an affair of the local community. Waste Disposal was a cautious judgment. Economic considerations alone, said the Court, may not be allowed to defeat the principle of local self-government; in weighing economic efficiency against the value of local control, a heavy thumb must be placed on the side of the latter to ensure that the principle of self-government is given its proper place in the Basic Law’s overall governmental scheme. Waste Disposal, like other decisions considered in this chapter, reveals the active role the Constitutional Court plays as a balance fulcrum when adjudicating confl icts between competing levels of government.

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bundesrat, reform gridlock, and modern federalism The Bundesrat is the mainstay of German federalism. It was designed to safeguard the interests of the Länder.67 To accommodate the interests of the new eastern Länder, the Unity Treaty amended Article 51 of the Basic Law, changing the allocation of votes in the Bundesrat. As before, each Land is entitled to at least three voting members, but now Länder with more than two million people are entitled to four votes, those with more than six million receive five votes, and those with more than seven million receive six votes. (In the past, the largest states had five votes.) Unlike each American state’s two U.S. senators, however, these delegations to the Bundesrat represent the Länder in their corporate capacities and not the people directly. Th is means that each state’s delegation is drawn from the respective Land government, and the membership of a state’s delegation typically changes “as a result of a change in the cabinet due to Land elections.” 68 The Bundesrat is a truly federalist institution, but only so long as the scheme for casting the votes of each state’s delegation to the Bundesrat preserves the priority of Land over party. Voting in the Bundesrat. A Bundesrat delegation represents the interests of the Land government in federal lawmaking and administration. To underscore this fact and its federalist implications, and to protect against the creeping influence of party politics in the Bundesrat, Article 51 (3) of the Basic Law ordains that “[t]he votes of each Land may be cast only as a unit. . . .” Thus, a Land government speaks with one voice in the Bundesrat, without respect to the partisan makeup of that government. Th is can lead to difficulties, considering that, as is the case on the federal level, Land governments are typically formed by party coalitions, sometimes including less-than-harmonious unions. Arthur Gunlicks described such situations in these terms: “In case the Land has a coalition government and parties in the government do not agree on how to vote, the Bundesrat members from that Land will most likely abstain; this has the effect of a negative vote, since only positive votes are counted. All coalition governments sign detailed agreements before they form a government, and these include provisions concerning voting procedures in the Bundesrat.” 69 The heated debate over immigration reform legislation proposed by the spd/Green federal government in 2002 led to a breakdown in Brandenburg’s unified voting in the Bundesrat. The incident provided the Constitutional Court with an opportunity to rule on the constitutionality of voting schemes in the Bundesrat.70 3.5 Immigration Act Case (2002) 106 BVerfGE 310 [In the spring of 2002 the Bundestag passed a controversial immigration bill that was proposed and supported by the spd/Green coalition government led

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by Federal Chancellor Gerhard Schröder. Recent Land elections, however, had given the cdu/csu a majority of votes in the Bundesrat, which would have to consent before the law could enter into force. To obtain the Bundesrat’s consent, Schröder’s government had to count on Brandenburg to cast its block of four votes in favor of the bill. But Brandenburg’s government at the time consisted of a coalition between the state branch of Schröder’s spd and the state branch of his federal opposition, the cdu. When Brandenburg’s minister-president—a Social Democrat aligned with Schröder—was called upon to deliver the Land’s votes in the Bundesrat, he cast all four in favor of the bill, thereby ensuring the Bundesrat’s consent even though a cdu member of Brandenburg’s delegation loudly cast his vote individually as “no.” The chamber’s acceptance of Brandenburg’s block of votes as a “yes”—despite this voiced objection—elicited cries of foul play from the conservative parties. Federal President Johannes Rau, after considering the protests, signed the law. Six of the Länder that abstained or voted against the bill turned to the Federal Constitutional Court in an abstract review proceeding, arguing that the events surrounding Brandenburg’s Immigration Act vote in the Bundesrat did not satisfy the Basic Law’s “consent” requirement under Article 78. The Second Senate upheld the challenge over the vigorous dissents of Justices Osterloh and Lüebbe-Wolff.]

∂

Judgment of the Second Senate. . . . C. The application seeking review of the constitutionality of the statute is wellfounded. The Act to Control and Restrict Immigration and to Regulate the Residence and Integration of eu Citizens and Foreigners of 20 June 2002 [Immigration Act] is incompatible with Article 78 of the Basic Law and, hence, void. Because it contains provisions concerning the administrative procedure to be carried out by the authorities of the Länder, the whole of the Immigration Act requires the consent of the Bundesrat in accordance with Article 84 (1) of the Basic Law. There was no majority of Bundesrat votes, which is required by Article 52 (3) [1] of the Basic Law for such consent. The president of the Bundesrat was not permitted to count Brandenburg’s block of votes in favor of the Immigration Act. The president of the Bundesrat declared that the body had given its consent to the Immigration Act after the other Länder had been called on to cast their votes. But his determination had no legal effect because Brandenburg did not consent to the Immigration Act. I. The Land Brandenburg did not assent to the Immigration Act because, when the Land was called on, the votes were not cast uniformly. The variation in the votes cast by Brandenburg was not cured by the further course of the balloting process. 1. a. The Bundesrat is a collegial constitutional body of the federation that consists of delegations sent by the Land governments. It is not formed by the Länder. Article 50 of the Basic Law describes the function of this federal constitutional body in simple terms: “The Länder shall participate through the Bundesrat in the legislation and

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administration of the federation and in matters related to the European Union.” Th is participation takes place, not directly, but through the agency of the delegates to the Bundesrat who are dispatched by the Land governments. The Länder are in each case represented by their Bundesrat delegates. The votes of a Land are cast by its Bundesrat delegates. The person from among these representatives who will cast the votes of a Land is, as a rule, determined by the delegates themselves or by the respective Land government in the run-up to a Bundesrat session. The Basic Law expects that each state’s votes will be cast uniformly and respects the practice of the block vote [pursuant to which all of a Land’s votes are cast by one member of its delegation], the holders of which are designated by each Land autonomously, without, in turn, interfering in the constitutional sphere of the Land with instructions and determinations. It follows from the Basic Law’s conception of the Bundesrat that a member of a Land’s delegation to the Bundesrat can, at any time, contradict the votes cast by the holder of the Land’s block vote. In these circumstances the preconditions for accepting the block vote cease to apply. The president of the Bundesrat, therefore, accepts the vote of an individual Bundesrat delegate as having cast the votes for all the delegates of a respective Land unless another delegate from that Land casts a confl icting vote. b. The votes of a Land are to be cast uniformly in accordance with Article 51 (3) [2] of the Basic Law. The act of casting a Land’s votes occurs with the voluntary announcement of the votes of a Land. Where several votes are cast by a Land’s Bundesrat delegates, they must concur. Here, the Land Brandenburg, when called on in the voting procedure, did not cast its four votes uniformly. . . . In the present case, Bundesrat Delegate Ziel initially answered “yes” for Brandenburg, followed immediately by Bundesrat Delegate Schönbohm’s contradictory response “no.” The Brandenburg Minister-President Dr. Stolpe, and Minister Prof. Dr. Schelter—Bundesrat delegates also present—did not respond when the Land was called on. From the unambiguous declarations of Bundesrat Delegates Ziel and Schönbohm, it followed that the Bundesrat delegation from the Land Brandenburg had not cast uniform votes within the meaning of Article 51 (3) [2] of the Basic Law. The president of the Bundesrat correctly determined this as a formal matter at the time the confl icting votes were declared. 2. During the ensuing course of the ballot the inconsistent votes cast by Brandenburg’s delegation were not cured and then converted into a uniform vote of approval. The course of the ballot that followed is not legally relevant because it constituted a departure from the constitutionally required form of the voting procedure. In a voting procedure that is part of the legislative process, conduct that is contrary to the required form cannot change the legal impact of the preceding conduct, which itself did not correspond to the formal requirements. The president of the Bundesrat, as chairman, had no right to inquire of Minister-President Dr. Stolpe of the intent of the Land Brandenburg regarding its votes. Even if one were to presume such a right, the inquiry should have been addressed not only to the Minister-President, but also to Minister Schönbohm [the delegate who had cast the contradictory “no” vote].

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aa. Where ambiguities occur in the course of the ballot, the president of the Bundesrat is entitled to bring about a clarification with suitable measures and to work toward an effective vote by the Land. Th is corresponds to the Bundesrat president’s duty as an unbiased session chair, on whom it is incumbent to clearly determine the will of the Bundesrat in the legislative procedure. Article 78 of the Basic Law, in conjunction with the principle announced in the Basic Law that Germany will be a constitutional state, requires that the will of the participating constitutional bodies be determined in a way that it is attributable to them; this applies to the formal promulgation of legislation by the Bundestag, as well as to the consent of the Bundesrat. When ambiguity might require additional inquiries is a matter that can be examined by the Constitutional Court; nevertheless, the president of the Bundesrat has a prerogative for assessing and correcting any ambiguities. The right to inquire, however, ceases to apply if the uniform will of a Land clearly does not exist and, in view of the overall circumstances, cannot be expected to come into being during the course of the balloting. The intention of the Land Brandenburg to split its vote was evident. Bundesrat Delegate Schönbohm had presented his political position in unmistakable form in the plenary debate immediately before the ballot. He would not agree to the Act, he said, and he would voice his objection loudly and clearly in full knowledge of the ramifications under Article 51 (3) of the Basic Law. Bundesrat Delegate Schönbohm also had clearly outlined the goal of his conduct. He wished, with his “no” vote, to prevent Brandenburg from casting a uniform block of its Bundesrat votes. It was also generally known that the Brandenburg Land government did not have a rule for casting the Land’s votes. Some of the contributions to the plenary debate, as well as the careful legal preparation by the parties involved, demonstrate that a uniform political decision had not been reached by Brandenburg’s delegation prior to the Bundesrat session, nor was it expected to be achieved in the course of the session. Instead, the delegation’s disagreement was clear. The lack of uniformity was then formally recorded, as expected, when the Land Brandenburg was called upon to cast its votes. [Dissenting Justices Osterloh and Lübbe-Wolff did not dispute that the Länder themselves do not hold the seats in the Bundesrat, but agreed with the majority that the Länder are represented in the Bundesrat by the individual delegates. The dissenters also agreed with the majority’s conclusion that each individual member of a delegation enjoyed the right to vote, but that the Basic Law would allow that right to be exercised through a “leading” member of the delegation pursuant to the block vote procedure. Justices Osterloh and Lübbe-Wolff departed from the majority, however, in their conclusion that Brandenburg’s split vote should not be viewed as an invalid (and thus, in the view of the majority, ineffective) vote, but rather, as failing to “constitute an act of voting” altogether. Th is, the dissenters argued, necessitated the presiding officer’s efforts to obtain a vote from Brandenburg’s delegation. The dissenters then argued that, even if Brandenburg’s split vote were to be characterized as invalid, “the Land still had

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the right to correct its voting afterwards.” The dissenters also concluded that the Bundesrat president’s method for facilitating the correction and clarification of Brandenburg’s vote should not be regarded, in the majority’s unnecessarily formalistic terms, as an evident irregularity in the Bundesrat’s voting proceedure.]

∂

Power of the Bundesrat and Gridlock. The Basic Law does not place the Bundesrat on an equal footing with the Bundestag. The Bundestag is Germany’s popularly elected parliamentary body. By contrast, the Bundesrat, while not legally a parliamentary body, enjoys the right to participate in the national legislative process. The Bundesrat wields a suspensive veto over legislation generally and an absolute veto over all legislation affecting the vital interests of the Länder. A suspensive veto can be overridden by an equivalent vote in the Bundestag. Still, if the legislation affects the interests of the Länder, the Bundesrat’s consent is required. Actions constitutionally requiring the Bundesrat’s consent include proposed constitutional amendments, all laws affecting state tax revenues, and all laws and directives impinging on the administration of federal law by the Länder. An expansive interpretation of Länder competence under the last category would have the de facto result of expanding the Bundesrat’s legislative prerogatives. The practical effect of an expansion of the Bundesrat’s consent power is a serious matter because it can create friction—even deadlock—between the two legislative chambers. The attempted immigration reform of 2002 demonstrates the critical importance of the Bundesrat’s expanded power. If different political parties are ascendant in the two chambers, then the majority in the Bundesrat, capitalizing on the latter’s expanded consent authority, can all too easily block the parliamentary majority’s legislative agenda in the Bundestag. It is no longer rare for the two houses to split along partisan lines. In the early 1960s, for example, a conservative Bundestag (and federal government) squared off against a Social Democratic Bundesrat. In the early 2000s, the situation was reversed. By 2011 the roles had switched again, with Chancellor Merkel’s conservative-liberal government and parliament confronted with a Social Democratic majority in the Bundesrat. The problem of parliamentary policy being blocked by the Bundesrat fi rst occurred in the mid-1970s. The Bundesrat, dominated by Christian Democrats, wielded its authority against the Social Democratic majority in the Bundestag in a manner that virtually asserted the Bundesrat’s equality with the Bundestag in the national legislative process. The theory of co-responsibility, as several state governments called it, was a central issue in the Bundesrat Case. Blocking the will of the parliamentary majority in this manner, essentially using an almost purely federalist institution to pursue partisan ends, has brought the Bundesrat’s authority under fi re and played a large part in fueling persistent calls for federalism reform. The Abortion I (1975; no. 7.4) and Conscientious Objector II (1978) cases featured interbranch disputes highlighting the differing perspectives of the two houses.71

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When the Bundesrat objected to an abortion bill passed by the Bundestag, the latter in turn voted to override the objection, holding that the Bundesrat’s consent was unnecessary. The dispute resolved itself into a disagreement over the nature of the statute. Was it a substantive change in public policy, for which the Bundesrat’s consent would not be required, or was it a matter of administrative federalism, that is, affecting the administration of federal law, in which case the Bundesrat’s consent would be required? The Bundesrat argued that its consent was necessary because the substantive legal change vitally affected the meaning and scope of the states’ administrative procedures. The Court rejected this claim on the authority of the rule set forth in the Bundesrat Case, holding that the Länder enjoy even wider latitude than previously assumed to structure the administration of the statute and thus need not participate in the promulgation of the relevant legislation. The outcome of Conscientious Objector II, however, favored the Bundesrat. In 1977 the Bundestag modified the procedure for determining whether prospective draftees are entitled to conscientious objector status. Instead of appearing before a board to establish the sincerity of their claim—a process administered in different ways in the various Länder—applicants now automatically could receive the exemption simply by notifying the board in writing that they were conscientiously opposed to military ser vice. The statute did not receive, nor did the Bundestag seek, the consent of the Bundesrat. Pursuant to Article 87b (2), the conscription statute had authorized the Länder to implement the legislation on behalf of the federation.72 The Court held that since the statute expanded the administrative responsibility of the Länder—a responsibility transferred to the states with the Bundesrat’s consent—the Bundesrat’s consent was once again required. The newly liberalized rule on conscientious objection “fundamentally transformed civilian alternative ser vice into a second form of community ser vice,”73 thus imposing on the Länder a much greater responsibility for fi nding community ser vice jobs for conscientious objectors. Such a large shift of responsibility, said the Court, is permissible only with the consent of the Bundesrat. The upshot of these and related cases was that any law containing provisions extending or prolonging the administrative procedures of Land agencies came to require the consent of the Bundesrat even though the law as originally enacted had already received its required consent.74 Even if a subject matter is clearly within the federation’s exclusive legislative authority, and even if the law in question is silent with respect to local administrative procedures, the Bundesrat’s consent nevertheless may be necessary if the law substantially affects those procedures or effectively requires the Länder to change them in order to effectively administer the federal law.75 3.6 Bundesrat Case (1975) 37 BVerfGE 363 [The question in this case was whether a later amendment of a law that originally required the consent of the Bundesrat also is subject to an absolute veto

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by the Bundesrat, even if the amendment itself does not affect a matter requiring the Bundesrat’s consent. In 1972 the Bundestag passed the Pension Reform Act. Because the act regulated the procedures of Land administration, it required and received the Bundesrat’s approval. The Bundestag amended the act one year later, but the amendment did not change its essential content. Thus the Bundestag maintained that the amendment did not require the Bundesrat’s consent. Rhineland-Palatinate and Bavaria invoked the Constitutional Court’s abstract judicial review jurisdiction and petitioned the Court to vindicate the Bundesrat’s veto right, thereby assuring the Bundesrat a position of coresponsibility with the Bundestag in Germany’s legislative system. The Court, over a dissenting opinion from Justices von Schlabrendorff, Geiger, and Rinck, rejected this interpretation of the Basic Law.]

∂

Judgment of the Second Senate. . . . C. II. 1. . . . [The fact] that the Pension Reform Act required the consent of the Bundesrat . . . does not establish that the . . . amending act also requires such consent. Not every statute amending a law that originally required the Bundesrat’s consent is subject, for this reason alone, to the consent requirement. The Basic Law contains no provisions from which to deduce such a principle. . . . a. The distribution of authority between the federation and the Länder, as provided by the Basic Law, demands protective measures against the danger that ordinary legislation may produce distortions of the system that are not within the purview of the Basic Law. The provisions in the Basic Law requiring consent of the Bundesrat—including Article 84 (1)—serve this purpose in the interest of the Länder. Consequently, this article requires that a law containing provisions that regulate Land administrative processes receive the consent of the Bundesrat—as the federal body through which the Länder participate in promulgating federal law. By approving the Pension Reform Act in its entirety, the Bundesrat gave its approval to those parts of the act regulating the states’ administrative procedure. With its consent to the original Reform Bill the Bundesrat approved this “penetration” into the sphere of the administration of federal laws that Article 83 guarantees to the Länder. If, in a later amending act, no new “penetration” into the sphere reserved to the Länder occurs and no renewed distortion of the system results, then the amending act does not require the consent of the Bundesrat. . . . b. . . . The Bundestag adopts federal law pursuant to Article 77 (1). The Bundesrat merely participates in the legislative process (Article 50). . . . In this connection it is important to realize that the requirement of consent to a statute under the Basic Law represents an exception to the rule. Only in certain explicitly enumerated cases in which the states’ field of interest will be affected in a particularly intensive way does the Basic Law require consent. . . . The Bundesrat has no general right of control that can be derived from this principle. . . .

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c. It is true that the Bundesrat examines the entire content of every law requiring its consent, not only those provisions that bring the consent requirement into play. The Bundesrat, therefore, may refuse its consent to a law containing substantive norms as well as provisions respecting states’ administrative procedure because it disagrees with the substantive provisions. . . . d. But it does not follow from the fact that the Bundesrat’s consent applies to the entire statute that every subsequent amendment of that law also requires the Bundesrat’s consent. Rather, the view that a law requiring consent is a legislative unit speaks against a consent requirement for amending statutes. . . . The amending statute is also a technical legislative unit. The Court must independently and continually examine all prerequisites for its legislative adoption just as in the case of any other law. It must determine whether the Parliament had the authority to enact a law of this content and whether the law requires the Bundesrat’s consent by virtue of its content. If the law does not itself contain provisions requiring consent, and if it also amends no such provisions, then it does not require the Bundesrat’s consent. . . . e. A further consideration supports this result. Nothing precludes the Bundestag, in exercising its legislative discretion, from using several laws to regulate a subject. It can, for example, put the substantive provisions in one law, over which the Bundesrat only has a suspensive veto [see Article 77]. The Bundestag can then enact provisions respecting the states’ administrative procedure in another law that requires Bundesrat consent—as not infrequently happens in practice. If one accepted the argument of the Bundesrat that every amendment of a law requiring Bundesrat consent in the first instance in turn requires Bundesrat consent for later amendments, then, in the case of bifurcated legislation, only the law containing substantive provisions would require the renewed consent of the Bundesrat. What if substantive and procedural provisions were originally included in one statute that required the Bundesrat’s consent? Following the Bundesrat’s argument, subsequent amendments to this law that affect only the substantive provisions would require the Bundesrat’s consent. But it would be absurd to decide these two cases differently. . . . 2. Nonetheless, there are a number of cases in which the Bundesrat’s consent is necessary for the amendment of a law that originally required the Bundesrat’s consent. Th is is apparent when the amending law contains new provisions that, in their own right, require the Bundesrat’s consent. The same is true when the amendment affects those provisions of the original statute that triggered the need for the Bundesrat’s consent. Also included is the case in which a statute amends another statute requiring consent and containing substantive norms as well as provisions respecting the states’ administration. To be sure, the amending statute may be confi ned to substantive matters. But it might make such changes in this realm that it gives an essentially different meaning and scope to the administrative provisions it does not expressly amend. . . . [The Court went on to fi nd that the amending law in this case did not regulate Land procedure and thus held that the Bundesrat’s consent was not required.]

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Justices von Schlabrendorff, Geiger, and Rinck, dissenting. . . . Everyone agrees that the Basic Law contains no express provision requiring the Bundesrat’s consent for the amendment of every statute that itself requires such consent. It cannot in the least be deduced from this that an amendment would require consent only when it falls within the rule of Article 84 (1) or another express provision of the Basic Law—especially since, according to our decision of 24 February 1970, the Basic Law does not exhaustively list the cases in which a law requires consent. 3. a. . . . It is assumed that an imbalance between the federal legislative bodies would result, to the prejudice of the Bundestag, if the Bundesrat’s consent were to be required for every law that amends a statute that originally required the Bundesrat’s consent. But this assumption has not been proven. . . . The argument . . . that the exception would become the rule and the rule the exception is just as unconvincing. . . . b. For the instant case . . . it is quite irrelevant how we should generally determine the relationship between Bundestag and Bundesrat in the legislative process. . . . When a statute requires consent, the position of the Bundesrat is no weaker than that of the Bundestag. . . . Everyone agrees that consent to a statute means consent to the entire statute as a legislative unit. . . . . . . The amending law is, to be sure, a new legislative unit, . . . but not an . . . independent, enforceable regulation in itself; it derives its meaning only in connection with the law it amends. . . . The essential content of the amending statute necessarily becomes a part of the original statute that undoubtedly required consent because of its content and continues to require consent so long as it exists. . . . Finally, the consent requirement . . . follows from the further consideration that legislation is a political process that demands compromise. . . . The addition of new material by an amending law . . . alters the content of that compromise, and one cannot preclude the possibility—indeed it is quite likely—that the Bundesrat would not have agreed to this new compromise. . . . 4. In addition, our position is consistent with this Court’s previous decision, in which the Court held that the Bundesrat must approve all regulations issued under a statute requiring consent pursuant to Article 80 (2). It would hardly be comprehensible to assume that regulations implementing such a law . . . required the Bundesrat’s consent but that amendments do not.

∂

The Bundesrat and the Reform of German Federalism. In the Bundesrat Case the Court rejected the theory of co-responsibility. Nonetheless, the Bundesrat developed into a virtually equal player on the field of national legislation. David Conradt noted: The framers of the Basic Law anticipated that only about 10 percent of all federal legislation would require Bundesrat approval and hence be subject to the chamber’s veto. In practice, however, through bargaining in the legal committees in each house and judicial interpretation, the scope of the Bundesrat’s absolute veto power has been enlarged to the point at which it can now veto roughly 60 percent of all federal

Feder alism 119 legislation. Th is unforeseen development occurred largely because many federal laws which refer to matters not subject to Bundesrat veto nonetheless contain provisions that set forth how the states are to administer and implement the legislation. Citing Article 84 of the Basic Law, the states have argued that, since they are instructed as to how the federal legislation is to be administered, the legislation requires Bundesrat approval in both its substantive and procedural aspects.76

By jealously guarding and in some instances broadly interpreting the Bundesrat’s consent power, the Constitutional Court helped to transform the Bundesrat from the mere checking institution that it was in the 1950s and 1960s into one of the most powerful institutions in the Federal Republic.77 Moreover, in giving its consent to numerous constitutional amendments over the years, at least half of which resulted in the expansion of the federation’s power, the Bundesrat, through skillful maneuvering, ensured that its consent would be constitutionally required in the exercise of these new powers. After the adoption of a constitutional amendment in 1992 (Article 23), the Bundesrat’s power also extended deeply into the realm of European and foreign policy. Conradt noted the criticism of the expansion of the Bundesrat’s power and the role that phenomenon has played in rousing calls for reform. The enlargement of Bundesrat power . . . has prompted some students of constitutional politics to propose that the powers of the Länder and Federal Government be more explicitly stated in the constitution. . . . In recent years the growing debate over the inability of the state to enact meaningful reforms has included frequent proposals to scale back the chamber’s veto power. Th is is one topic that a new constitutional reform [is] expected to address. . . . All these developments and potential future changes make the current Bundesrat a much more political institution and thus a greater object of controversy than it was in the early years of the Federal Republic.78

The ability of the Bundesrat to block federal legislation came to a head during the early 2000s when Federal Chancellor Gerhard Schröder’s spd/Green federal government pursued a range of economic and labor-market reforms that were ultimately held at bay by the cdu-dominated Bundesrat, leading to what some critics referred to as reform gridlock (Reformstau). There was deep division in the country over the efficacy and propriety of Schröder’s “Agenda 2010” reform package, but there was broad sentiment that some reform was necessary (in the 2005 national election the cdu opposition also campaigned on a reform platform) and, in any event, Schröder’s Agenda 2010 had the benefit of a clear (if slender) majority in the Bundestag. Th is raised the question anew: Should the Bundesrat be allowed to thwart the will of the prevailing, popularly elected parliamentary majority? Criticism flowed in the other direction as well. Arthur Gunlicks noted that “according to many critics, . . . the federation has taken on too much responsibility for legislation,” choking off the power of the states through its expansive exercise of concurrent and joint-tasks legislative authority.79 Th is mutual antagonism, and the often opaque interdependence between

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the competence of the federation and the states, has come to be known as political interconnectedness (Politikverflechtung). Both sides along the partisan and federalist axes seemed to agree that a broad reconceptualization of German federalism was necessary if the Reformstau was to be broken. A broadly representative commission was on the verge of hammering out the details late in 2004, including the Bundesrat’s surrender of its veto power over some areas of federal legislation in exchange for obtaining greater authority over some fields that had come to be dominated by the federation. As the discussion in the section below will make clear, it was hardly surprising that the commission’s efforts ultimately foundered on the allocation of authority between the federation and the Länder over education policy. A year later, when Chancellor Angela Merkel engineered a “grand coalition” of Christian and Social Democrats after a razor-thin federal election, there was new hope of achieving significant changes in the division of legislative power between levels of government. The coalition parties proceeded to introduce major proposals along these lines. Earlier, in the section on apportionment and distribution of revenue, we identified important changes that the 2006 amendments wove into the “fi nancial constitution.” In the following section, we also describe related changes in the distribution of legislative power brought about by major amendments to the Basic Law in both 2006 and 2009. All these changes were designed to streamline the policymaking process in the German federal system, a process that often had been obstructed by the Bundesrat.

division of legislative power The Basic Law divides legislative power between the federation and the Länder. It reserves the bulk of such power to the Länder, but over the years much of this lawmaking authority has gravitated to the federation.80 Thus, most laws enacted in Germany are federal laws. But under the Basic Law their administration is mainly the responsibility of the Länder, with only a limited number of administrative competences allocated to the federation. Th is system of “administrative” federalism, as it often is called, encourages flexibility in adjusting national policy to local conditions.81 The system is complex, as dozens of articles in the Basic Law define the interlocking relations between federal and Land governments. Many of these articles, such as those discussed earlier in the section on the apportionment and distribution of tax revenue, contain exceedingly detailed provisions. These provisions have been the pivotal focus of numerous constitutional amendments, in many instances shift ing power from the Land to the federal level, usually to meet needs not contemplated by the framers of the Basic Law and occasionally in response to the decisions of the Federal Constitutional Court.82 Germany’s scheme of divided powers and administrative federalism was originally set forth in sections of the Basic Law dealing respectively with federal legislation (Articles 70 to 75) and the execution of federal law (Articles 83 to 91). According

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to the latter provisions, the Länder are charged with implementing federal law subject to the supervisory authority of the federal government. For this reason, most administrative authorities in Germany are Land agencies, except that federal law may provide for the uniform training of civil servants and other public employees. Federal administration is largely confi ned to those limited areas of public policy for which the federation is solely responsible. As for the division of legislative power laid out in Articles 70 to 75, the Basic Law in its earliest version included a short list of subjects over which the federation would have exclusive competence (Article 73). In addition, under Article 75, the federation was empowered to enact general provisions of law or “framework” laws on subjects such as land distribution, regional planning, and the legal status of Land public servants. Each of these areas fell under the preliminary competence of the Länder, but the federation was empowered under Article 75 to provide the overarching “framework” for carry ing out state and local laws related to these matters. Article 74, fi nally, extended the concurrent legislative authority of the federation and Länder to nearly all other fields of public policy, including civil and criminal law. The Länder could regulate these subjects as they wished but only if the federation failed to exercise its legislative rights. Article 72 (2), however, provided that the federation’s concurrent and framework authority could be exercised only when necessary to effectively regulate the field and to avoid threats to the “maintenance of legal or economic unity, especially the maintenance of equivalent living conditions beyond the territory of any one state.”83 Thus, except as otherwise provided or permitted by the Basic Law, the exercise of public authority and the discharge of public functions remained with the Länder. Th is fact, however, would change with Germany’s political and constitutional development. In the ensuing decades, social and political change transformed the face of the Federal Republic. The Basic Law’s division of legislative power between federation and Länder would change accordingly and substantially, mostly taking the form of transfers of authority to the national level. By the 1990s some twenty amendments had shifted legislative power to the federation. Th is was accomplished both by major additions to the exclusive powers of the federation and by an expanded list of subjects over which the federation would have concurrent jurisdiction, the expectations being that the federation would enact preemptive legislation in these areas to the exclusion of parallel legislation by the Länder. These new concurrent powers included the making of regulations on organ transplants, state liability, hospitalization costs, waste disposal, air pollution, weapons and explosives, the promotion of scientific research, and the production and utilization of nuclear energy. In 1969, with the enactment of the 22nd Amendment to the Basic Law, the federation’s catalogue of “framework” legislative powers under Article 75 was further extended to include “general principles governing higher education,” an area of lawmaking the federation would assertively enter to assist the Länder in meeting the ever-increasing demands of maintaining Germany’s institutions of higher learning. Equally significant was the enactment of the 28th Amendment to the Basic Law in 1971, creating a new Article 74a, which extended the concurrent legislative power of the federation to the salaries and pensions

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of judges and other members of the public ser vice. It is crucial to note that Article 74a, like the other shifts in legislative power cited, expanded the required consent of the Bundesrat because it affected the administration of federal law by the Länder. In addition, as indicated elsewhere in this chapter, the Federal Constitutional Court had often ruled in favor of the Bundesrat in confl icts over the extent of its required consent to legislation passed by the Bundestag. Reforms of 2006 and 2009. The Basic Law’s complex scheme for the division of legislative power between the federation and Länder created persistent, serious problems. On the one hand, the gathering powers of the Bundesrat, in par ticu lar its capacity to impede the will of the parliamentary majority, undermined several federal governments’ attempts to pursue policy reform. As Arthur Gunlicks noted, “[o]ne of the major goals of the proponents of reform was . . . to fi nd ways to reduce the percentage of laws requiring Bundesrat’s consent.”84 On the other hand, commentators faulted the scheme’s complexity and lack of clarity for the drift in policy making, the lack of political accountability, and Germany’s dwindling effectiveness in the European Union. “Essentially,” as Interior Minister Wolfgang Schäuble explained, the reforms fi nally adopted in 2006 “were about assigning government tasks more clearly and slightly reducing the state’s participation in federal lawmaking or reducing the number of laws requiring the states’ approval [via the Bundesrat].”85 The 2006 federalism reform significantly altered the traditional scheme of divided power, in some instances reacting to decisions of the Federal Constitutional Court that had favored the Länder. The federation still possesses only those legislative powers assigned to it by the Basic Law while the remaining unenumerated legislative authority resides in the Länder. But the federation’s legislative competence, exercised by the Bundestag,86 now includes only two broad categories, namely, exclusive and concurrent legislative authority. The federation’s exclusive legislative competence was expanded by the reforms of 2006 and 2009, now reaching subjects formerly within its list of concurrent powers. The new subjects of the federation’s exclusive jurisdiction include regulation of weapons and explosives, production and use of nuclear energy for peaceful purposes, disposal of radioactive material, defense by federal police against international terrorism in cases where certain conditions are met (legislation in this area requires the Bundesrat’s approval), care of those injured or affected by war, and protection against the exportation of cultural goods. The catalogue of exclusive federal power continues to cover foreign affairs and defense, customs and international trade, citizenship and immigration, and postal and telecommunication ser vices. Aviation and railways remain, as before, among these exclusive powers, but amendments to the Basic Law in 1992 and 1993 authorized the privatization of these institutions.87 The Länder may legislate in matters of exclusive federal legislation but “only where and to the extent that they are explicitly empowered [to do so] by federal law” (Article 71). After the reforms of 2006, the federation’s concurrent legislative powers—those shared with the Länder—were expanded to include thirty-three general subject areas. Apart from the broad domains of civil and criminal law, these jurisdictional areas

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included the equally broad fields of labor law, corporate law, public welfare, agricultural policy, economic sector legislation, land transfers, and public health (Articles 72 and 74). Among the most important of the 2006 reforms were the repeal of Articles 74a and 75. With the repeal Article 74a, the status and duties of civil servants (Beamten) of the Länder, local governments, and other public corporations (including judges) were transferred to the newly expanded list of concurrent legislative powers. The repeal of Article 75 eliminated the federation’s authority to enact “framework” laws—that is, policies requiring the coordination of federal and Land legislation, whereby the federation issued broad policy mandates while leaving the regulation of the details for the implementation of those policies to the Länder. These reforms left plenty of space for continued federal-state cooperation. But in certain respects, they also fi rmed up the powers and responsibilities of the Länder. For example, laws enacted pursuant to the federation’s old framework jurisdiction, laws now within its concurrent authority, continued in force as framework laws. But under the 2006 amendments to Article 72 the Länder are permitted to pass laws deviating from this federal legislation. In 2009, under the new Article 87d, the federation also was empowered to delegate to the Länder responsibilities over air transport administration (subject to the Bundesrat’s consent). Additional provisions added to the Basic Law in 2009 called for cooperation and cost-sharing between the federation and Länder in “planning, constructing, and operating systems of information technology.” One purpose of the 2009 changes, laid down in the 57th Amendment to the Basic Law, was to grant both levels of government the authority to specify standards for gathering intelligence and to adopt rules for exchanges between their respective informationgathering ser vices. Finally, Article 23 (committing Germany to the development of the European Union) was amended in 2009 to reinforce the principle of subsidiarity. Article 23 (1a) did so by granting the Bundestag and Bundesrat “the right to bring an action before the Court of Justice of the European Union to challenge a legislative act of the European Union for infringing the principle of subsidiarity,” meaning that such an action may be challenged—in the Bundestag by one-fourth of its members— when it interferes with a legislative competence of the federation or of the Länder. The Jurisprudence of Federalism Reform. Before proceeding to the Atomic Weapons Referendum I Case, it should be noted that the demise of the federation’s framework legislative competence was largely a consequence of decisions of the Federal Constitutional Court from 2004 and 2005. In the reformed scheme the jurisprudential focus remains on the boundary between the federation’s and states’ independent and plenary legislative authority that is marked out by Articles 71 and 74 (exclusive and concurrent legislation).88 Under the previous scheme these federal legislative powers were narrowly interpreted. In the field of exclusive legislation, in the First Broadcasting Case (1961; nos. 3.2 and 8.11), for example, the Court excluded broadcasting (as opposed to the regulation of broadcasting technologies) from the area of “ser vices in the field of telecommunication” over which the federation has exclusive legislative authority. The federation’s concurrent legislative powers also have been narrowly construed.

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Thus, the Basic Law’s theory of federalism leaves little room for a jurisprudence of implied national power. For example, in 1962 the Court struck a federal law regulating the use of explosives because it could not be justified under the concurrent power over “economic affairs.” The law, said the Court, had more to do with maintaining order and security than with furthering economic objectives.89 Ten years later Parliament circumvented the Explosives Control Case (1962) by amending Article 74 to include “weapons and explosives” among the federation’s concurrent legislative powers. But in 2006, as noted earlier, this authority was transferred to the federation’s list of exclusive legislative powers. The Court’s narrow interpretation of the federation’s legislative power as defi ned by the Basic Law is evidenced in the following case. 3.7 Atomic Weapons Referendum I Case (1958) 8 BVerfGE 104 [In the mid-1950s equipping the German army with tactical nuclear weapons was at the top of the Adenauer government’s military agenda. Social Democrats bitterly opposed the plan for nuclear armament. In an effort to show that the public opposed nuclear weapons on German soil, several Social Democratic– controlled cities and states planned to hold referenda on the issue. The Adenauer government challenged the constitutionality of these referenda as an invasion of the federation’s exclusive power over military affairs. Th is case, brought in the form of an abstract judicial review proceeding, challenged the validity of referenda in Hamburg and Bremen. The Court sustained the challenge.]

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Judgment of the Second Senate. . . . B. III. . . . In a federal state, the federal constitution limits the authority of states— and therefore the jurisdiction over which the states exercise authority. The referendum laws of Hamburg and Bremen transgress constitutional limits drawn by the Basic Law. 1. Matters of defense fall within the exclusive jurisdiction of the federation. Article 73 (1) of the Basic Law sets out the authority of the Parliament over matters of defense. Articles 65a, 87a, and 87b confi rm the authority of the federal government over matters of defense. . . . Thus, the federation has sole and plenary [legislative and executive] authority over the task of “defense” as far as it concerns the federal army and its armament. . . . Neither the two referendum laws nor the participation of the people of Hamburg and Bremen in the referenda interfere with the federation’s exclusive authority to determine or technically regulate a matter of defense—for example, arming the federal military. But that is not the decisive point. What is decisive is the clearly recognizable purpose of the referendum laws in Hamburg and Bremen. In the area of defense, especially with respect to arming the military, the federal government has

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chosen a par ticu lar policy with the Bundestag’s approval. The opposition in the Bundestag considers this policy wrong and has fought it passionately. The opposition has not been able to win in the Bundestag but believes that a majority of the people shares its view. It hopes that political pressure resulting from successful referenda will force the federal government to reverse its policy. Speeches by Social Democrats in the Bundestag have clearly expressed this belief. . . . The clear goal of these two referenda—to force the competent constitutional organs of the federation to change a decision—represents an attempted infringement upon the exclusive jurisdiction of the federation. States infringe on the exclusive, autonomous authority of federal organs not only when they try to regulate a matter themselves, but also when they schedule a referendum in an effort to pressure federal organs into changing their decisions. The infringement occurs when a state attempts to form a “will of the state” to oppose the constitutionally formed “will of the federation.” a. The same conclusion is reached if one examines legislative authority to order referenda. . . . In a merely consultative referendum the people take part in the exercise of state authority just as they do in elections and plebiscites. The general cata log of competences in the Basic Law (Articles 73–75) does not contain any provision relating to the authority of the federation or states to enact electoral laws. Nevertheless, until now it has never been seriously doubted that the federation cannot pass electoral laws for a state parliamentary election or that a Land cannot pass electoral laws for the Bundestag election. A Land cannot permit either a referendum or a plebiscite on a subject belonging exclusively to the legislative competence of the federation or a Land referendum on a matter of exclusive federal jurisdiction.

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Legislative Powers of the States. Not confronted with an implied-powers provision similar to the American “necessary and proper” clause,90 the German states possess, fully, those powers and responsibilities not expressly conferred on or exercised by the federation.91 These fully reserved—and unenumerated—powers once included cultural matters, education, hospitals, and various social ser vices. The 2006 federalism reform explicitly assigned some parts of education and health care policy to the concurrent legislative competence.92 In any event, the spectrum of unenumerated powers is short. As the Concordat Case shows, the Court has tended to guard these powers closely, probably because they are so few.93 The states’ victory in Concordat is remarkable in that a local interest prevailed over the national government’s treatymaking authority, producing a result contrary to the outcome in the U.S. Supreme Court case Missouri v. Holland (1920).94 3.8 Concordat Case (1957) 6 BVerfGE 309 [In 1933 Hitler’s regime concluded a concordat (treaty) with the Holy See. The concordat recognized the right of the Catholic Church to freedom of religion

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and control over Church properties. It also included guarantees of religious education in the public schools and state-supported confessional schools for the children of Catholic parents. In 1954 Lower Saxony, a predominantly Protestant Land, provided for nondenominational schools for all children. The federal government, at the urging of the Holy See, contested the validity of the state’s new policy, relying on the Constitutional Court’s jurisdiction over federal-state confl icts. The federal government argued that Lower Saxony had usurped federal authority to conduct foreign relations by refusing to give force to the terms of the 1933 concordat. The Court sustained the validity of the concordat under the general principles of international law but then proceeded to rule that Article 23 of the concordat, guaranteeing confessional schools, is not enforceable in states with confl icting school legislation. Th is case needs to be understood in light of the vigilance with which the Court tends to guard the narrow domain of authority the Länder have managed to reserve to themselves.]

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Judgment of the Second Senate. . . . E. II. We need not here examine the extent of the states’ obligation toward the federation to honor treaties internationally binding upon the Federal Republic of Germany. In no case could the states’ obligation toward the federation to honor the concordat’s educational provisions . . . be derived from the constitutional order created by the Basic Law. Articles 7, 30, and 70 et seq. of the Basic Law have made certain fundamental choices that shape the relationship between federation and Länder. . . . These choices reflect no such obligation. In contrast to the Weimar Constitution, these provisions establish the Länder as the exclusive custodians of cultural leadership. In the area of denominational organization of the school system, only the provisions of Articles 7 and 141 limit this exclusive authority. Th is allocation is an important element of the federal structure of the Federal Republic of Germany. 1. We must proceed from the view that the Länder alone are entitled to make law where they possess exclusive legislative authority. In Articles 30 and 70 et seq. the Basic Law very clearly expresses this principle. Only obligations arising from federal constitutional law limit the legislative freedom of the Länder in this area because the Parliament cannot pass a law in an area where the Länder have exclusive legislative authority. We must, therefore, consider as an important principle of federal constitutional law that the Länder are subject to no limitation upon their legislative authority other than that imposed by the Basic Law. Th is principle also applies to Land legislation that is in confl ict with [preconstitutional] law that has continued validity pursuant to Articles 123 (1) and (2). . . . To bind the Länder constitutionally to the educational provisions of the concordat would flatly contradict their authority to make educational law freely within the limits of the constitution.

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2. With respect to the organization of the school system along denominational lines, the Basic Law made a specific choice that rejected the possibility of constitutionally binding the Länder to the educational provisions of the concordat. Based upon the states’ freedom of action, Articles 7 and 141 of the Basic Law establish the limits within which the Länder parliaments should be confined in this particular area. . . . Th is choice is not reconcilable with the educational provisions of the concordat. . . . 3. [One] can correctly understand the meaning of Article 7 . . . only by considering the background of the entire situation surrounding the [framing of the] Basic Law for the area of educational law. From 1933 to 1945 the Hitler regime did not enforce the educational provisions of the concordat and in many cases allowed them to be violated. After the collapse of the Reich in 1945, the Länder helped to accomplish the civil reconstruction of Germany. They reconstructed civil life during a period when the entire German state was not yet capable of action. As a result, during this time the Länder could alter the Reich’s existing legal regime. Thus, the Basic Law also expressly recognized the changes the Länder made to the Reich’s existing legal regime during this period (Article 125 (2)). In the governmental structure of the Länder the issue of education had par ticu lar importance and was the subject of lively dispute; the Länder often deviated from the educational provisions of the concordat. . . . In the light of this background, the constitution’s framers had to proceed from the fact that a large part of the new educational law enacted prior to the promulgation of the Basic Law contradicted the educational provisions of the concordat. How these events are to be evaluated from the standpoint of international law cannot concern us here. . . . This legal situation . . . made it imperative for the Basic Law to state expressly any intention to constitutionally obligate the Länder to fulfi ll the educational provisions of the concordat. In view of the diversified legal situation in education among the states and the Basic Law’s choices in this area (Articles 7 and 141), the constitution could not have been silent on educational matters if it wished to oblige the Länder to observe the educational provisions of the concordat. Moreover, the Basic Law could not have been content generally to ordain the constitutional validity of domestic law corresponding to international treaties of the German Reich. This order neither removed contradictory state laws nor bound the state legislature to the continued validity of the law. 5. To understand correctly the constitutional order of the Federal Republic of Germany, one must realize that the Basic Law’s division of authority between the federation and the Länder was not a matter of apportioning the power of a totalitarian state. . . . The events from 1945 to 1949 meant more than a change in the form of government. . . . Rather, a fundamental reconstruction gave German public authority an entirely new structure and form in the federation and Länder, in place of the state organization that completely collapsed and was entirely removed after 1945. The fact that this reconstruction took place during a lag time between the development of governmental power in the Länder and the reorganization of the entire German state confronted the framers of the Basic Law with two faits accomplis. On the one hand,

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Land law had largely developed independently and to such a degree . . . that the Basic Law could not ignore it. . . . On the other hand, the Basic Law could not arbitrarily curb the authority of the Länder, if only because of their political influence. The parliaments of two-thirds of the Länder had to accept the Basic Law for it to become effective. . . . In this constitutional and political situation, the federal constitution could not guarantee the states’ acceptance of obligations contracted by the Reich government to the same extent it might perhaps have been able to do . . . had it had as its task the distribution between federation and Länder of the unlimited power of a totalitarian state. In interpreting the Basic Law, one must proceed from the inner harmony of the constitutional structure that gave the German state a new federal and democratic order in place of a totalitarian dictatorship. The supposition that the Länder are obligated vis-à-vis the federation to observe the concordat’s educational provisions is irreconcilable with the basic decisions of the constitutional structure, including the decision to confer upon the Länder supremacy over education policy. [In the next section of its opinion the Court invoked once again the doctrine of federal comity. It seemed necessary to speak of comity here as a way of bridging the gap between the right of a Land to legislate in areas within its authority and the right of the federation to have the Länder respect its international treaty obligations. “Bundestreue demands,” said the Court, “that each state consider the interest . . . of the federation, particularly . . . in the area of foreign relations, where the federation alone is competent.” The Court wished to emphasize the states’ duty of fidelity to the federation in foreign affairs even while vindicating Lower Saxony in this instance.]

∂ Arbitrating the Federal-State Relationship. The legalism inherent in German federalism contains the seeds of perpetual constitutional conflict. The Bundesrat’s efforts to challenge the centralizing tendencies of the federation have been controversial, at least in those areas for which its consent is also required. Constitutional amendments and national reform commissions, like those culminating in the 2006 federalism reform, have also been raised in response to Germany’s more severe federalist tensions. Judicial review by the Constitutional Court provides yet another venue in the struggle to chart the boundary between Land and federal authority. Most federal-state conflicts do not end up before the Court, resolving themselves politically through the mechanisms of cooperative federalism and various forms of coordinated activity among the Länder. Even when governed by different political parties, the federation and Länder have preferred bargaining over litigation as the usual method of settling their differences. “Despite the tendency, in a climate of cooperative federalism, for major developments in the federal system to pass the Court by,” remarked Blair, “rulings of the Bundesverfassungsgericht have been sought and given over a wide range of federal issues and have affected in detail the relations between the Bund and Länder.”95

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As demonstrated by Concordat, an exception to the general affi nity for political resolution of federalist confl icts has been in the vigorously contested field of education and vocational training. Th is seems to be a consequence of two factors: Germany’s long and proud educational tradition with distinct local roots and the belief held by different political camps that, as one set of commentators noted, “education bears the potential for social-engineering.”96 Not surprisingly, the commission empowered to explore federalism reform in 2003,97 prior to the creation of the more politically amenable cdu-spd grand coalition government formed after the 2005 election, broke down when it could not reach agreement on the reform of legislative competence over education policy. In the past, tensions involving education policy have flared, in par tic u lar, with respect to the federation’s exercise of its framework competence over “general principles respecting higher education” pursuant to Article 75 (1) [1a].98 The federation’s framework legislative competence was eliminated by the 2006 federalism reform thanks in no small part to this legacy. But the federation’s interest in education policy is so strong that it also has sought to avail itself of its concurrent legislative authority to gain influence over the field, even where the nexus between an enumerated power under Article 74 and education was tenuous. These cases provide another example of the Court’s tendency not to read any implied powers into Article 74. The Engineer Case for example, involved the defi nition of the scope of the federation’s concurrent legislative authority in the context of policy affecting the training and certification of engineers where the relevant concurrent power was “the law relating to economic affairs (mining, industry, energy, craft s, trades, commerce, banking, stock exchanges, and private insurance).”99 Like First Broadcasting and Concordat, the Engineer Case resulted in a victory for the Länder. Indeed, as already suggested, the vast scope of enumerated federal legislative competences has prompted the Court to guard with special vigilance the little authority that remains with the Länder under the Basic Law. In this sense the residual powers clause of Article 30 is a greater limitation on federal power than the reserved powers clause of the U.S. Constitution’s Tenth Amendment has proven to be. 3.9 Engineer Case (1969) 26 BVerfGE 246 [Article 74 (1) [11] of the Basic Law grants the federation concurrent authority over “economic affairs (mining, industry, energy, craft s, trades, commerce, banking, stock exchanges, and private insurance).” In 1965 the federal government, presumably acting under this authority, adopted a statute designed to protect the professional title “engineer.” The statute set forth educational and occupational standards for the use of the title; it did not regulate the practice of engineering. Th ree persons whose prior training failed to satisfy the new requirements lodged constitutional complaints against the statute, claiming a violation of the right to the free development of one’s personality. The Constitutional

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Court sustained the complaints after ruling that the federal law exceeded the federal government’s authority under Article 74.]

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Judgment of the Second Senate. . . . C. II. I. . . . The restriction of the [federal] regulation to “persons gainfully employed in the economy, particularly in manufacturing or other commercial enterprises,” reflects the concern originally raised against the legislative competence of the federation when the matter was being considered in the Bundesrat. By confi ning the regulation to this group, lawmakers thought that they were legitimately exercising their authority under the concurrent jurisdiction conferred on the federation by Article 74 (1) [11]. 2. The subject regulated by the Engineer Act does not involve a law relating to “economic matters” within the meaning of Article 74 (1) [11]. In contrast to the Imperial Constitution of 1871 and the Weimar Constitution of 1919, the Basic Law forbids a broad interpretation of provisions conferring authority on the federation. Article 30 underscores the legislative priority conferred on the Länder. Article 70 (1) makes this clear by providing that the Länder enjoy the right to legislate to the extent that the Basic Law does not confer legislative power on the federation. The federation is limited to the enumerated powers specified in Articles 73 through 75. “Economic matters” within the meaning of Article 74 (1) [11] extend to regulations of economic life and to commercial activities as such, particularly to the processes of production, manufacturing, and distribution of goods. Regulations pertaining to economic competition and consumer protection are also “economic matters” within the meaning of the Basic Law. Thus, the Ministry of Economics defends the Engineer Act as a measure designed to promote clarity and truth in the conduct of business. A person should be able to transact business in the knowledge that a business partner claiming to be an engineer possesses certain qualifications. The Engineer Act, however, does not accomplish these purposes. It neither prevents unqualified persons from offering engineering ser vices nor does it guarantee that business partners who claim to be engineers do, in fact, have certain credentials. . . . If such persons have engaged in engineering ser vices prior to the enactment of the law and have registered within a two-year period following its entry into force, they may continue to use the title. . . . Moreover, the Engineer Act does not purport to defi ne the professional activity of engineering. . . . Under Article 74 (1) [11], the federation may indeed regulate jobs “in commerce and industry,” defi ne the substance of such positions, and specify the qualifications needed to fi ll them. . . . 3. The federation lacks authority to pass the Engineer Act, however, because the law is not connected to a subject matter within its express authority under the Basic Law [reference here is to the principle of Sachzusammenhang, which was described in the discussion of the First Broadcasting Case (1961; nos. 3.2 and 8.11)]. Federal authority would obtain here only if a subject within the express jurisdiction of the

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federation could not be regulated without simultaneously regulating a subject not specifically within its competence. In short, encroaching upon a subject matter not within the federation’s jurisdiction must be a necessary condition for regulating a subject expressly within its power. The federation may regulate the former only when also regulating the latter. That condition, however, does not exist here. 4. Federal legislative competence also fails in this case because of the nature of the subject matter [Natur der Sache]. [Natur der Sache is a guideline for interpreting the constitution that entails deducing federal legislative authority from the subject matter to be regulated, which, according to its nature, would normally not fall within federal jurisdiction but which only the federation can effectively regulate. The argumentation must be based on an express authorization of federal legislative power and not on an authorization that has no basis at all in the constitution. Examples are the authority to determine the seat of the federal capital and to create national symbols (see Plenum Building Law I Case, 3 BVerfGE 407, 422 [1954]).] The argument that a national uniform policy on the use of the title “engineer” is feasible does not sufficiently warrant an expanded interpretation of federal power. The Federal Constitutional Court . . . has recognized federal legislative competence based upon the nature of the subject matter only if the federation, and only the federation, can regulate certain fields because they constitute, by their very nature, a most individual matter removed a priori from the legislative authority of the federation. Protection of the professional title “engineer,” to the extent that such protection is needed, does not require one uniform plan of regulation by the federation. Uniformity can easily be achieved in this instance by congruent Land laws. . . . III. Because federal lawmakers lack authority, the applicable provision of the Engineer Act is incompatible with the Basic Law. It violates complainants’ basic right under Article 2 (1) and is therefore void.

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Assessing Whether Concurrent Legislation Is Essential. In addition to the Constitutional Court’s strict construction of the legislative powers granted the federation by the Basic Law, Article 72 (2) imposed a separate limitation on the federation’s exercise of its general concurrent legislative authority (and previously on the exercise of its now-abolished framework legislative authority), requiring that such legislation be essential “in promoting equivalent living conditions in the federation or in protecting the legal and economic unity in the general interest of the federation.”100 Whether federal legislation is essential, however, was a question the Court left mainly to the political discretion of Parliament, unless federal legislation impinged upon an area of traditional Land concern.101 The 2006 federalism reform radically changed Article 72 (2):

132 chapter thr ee Th is second [section of Article 72] has now been changed so that the federation no longer has the right to pass legislation under its general concurrent powers; rather, it retains the power to pass “essential legislation” in ten areas only (Article 74 (1) [4, 7, 11, 13, 15, 19a, 20, 22, 25, and 26]). In sixteen areas it has concurrent powers without having to meet the “essential” condition, which some see as having a centralizing effect. A new § 3 states that in six other areas (Article 74 (1) [28–33]) the Länder have the right to deviate from federal laws and that these laws go into effect at the earliest six months after passage, unless the Bundesrat has agreed to a different timetable.102

It seems likely that in overhauling the federation’s authority to enact “essential” concurrent legislation, the 2006 federalism reform took cognizance of the Constitutional Court’s Geriatric Nursing Act Case which expressed a decidedly pro-state skepticism of the federation’s assertion that the challenged law was “essential.” Certainly, the Court’s strict interpretation of the term “essential” in Geriatric Nursing is relevant to the ten areas for which that is still a prerequisite under the revised Article 72 (2). In Geriatric Nursing, the Second Senate of the Constitutional Court abandoned the restraint the Court had long exercised regarding whether federal concurrent legislation was “essential” under Article 72 (2).103 Considering the aforementioned sensitivity about educational matters, it is not astonishing that the confl ict arose in the context of a federal law that sought to regulate the training and certification of geriatric nurses pursuant to Article 74 (1) [19], which still grants the federation concurrent legislative authority over the “admission to the medical profession and to ancillary professions or occupations. . . .” The Court reached the dramatic conclusion that the intent of the framers of the amendments made to the Basic Law in 1994 was to make the “essential” clause of Article 72 (2) justiciable and to deprive the Bundestag of all discretion over the matter. Some have interpreted the Court’s move as suggestive of a reinvigorated federalism jurisprudence that paved the way for the 2006 federalism reform. Th is view is supported by the fact that in exercising its review of the question, the Court recalled that “the object of the federal constitutional system is to open for the Länder independent spheres of competence for par ticu lar and differentiated regulation.”104 After having asserted its power to review the question of whether the federal concurrent legislation was essential, the Court found that the high standard of review it fashioned for resolving the case had nonetheless been satisfied. 3.10 Geriatric Nursing Act Case (2002) 106 BVerfGE 62 [A federal law affecting geriatric nursing care in relevant part established and regulated the professions of geriatric nurse and geriatric assistant. Additionally, the law involved provisions on the purpose and duration of training for a certificate to perform these ser vices. These and other provisions of the law were

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intended to regulate the field and to standardize the ser vices throughout Germany, especially in anticipation of the expected dramatic increase in demand for these ser vices necessitated by Germany’s aging population. Before the enactment of the law there were significant differences in the laws regulating the field at the Land level. Pursuant to the Court’s abstract judicial review jurisdiction, the Bavarian government challenged the federal legislation before the Constitutional Court on the ground that the federation lacked the competence to regulate the field under Article 74 (1) [19] and that, even accepting the federation’s competence to enact the law, the “essential” prerequisite of Article 72 (2) had not been met. The Court held that the federation was competent to regulate the profession of geriatric nurse under its concurrent legislative authority, but not the profession of geriatric assistant. The Court then held that the challenged regulation of geriatric nurses was essential.]

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Judgment of the Second Senate. . . . C. The abstract judicial review petition is admissible. It is well-founded insofar as it relates to the training of geriatric assistants; otherwise it is not well-founded. II. The provisions of the Geriatric Care Law concerning the professional training of geriatric nurses are, pursuant to Article 72 (2) of the basic law, essential to ensure economic unity in the national interest. 1. In the context of the balance between the federation and the Länder, special importance attaches to Article 72 of the Basic Law because it allocates legislative competences. The provision fits into the general rules governing concurrent legislation: the Länder are, in principle, competent to legislate and remain so if the federation does not act; they regain competence if the federation has ceded back to them the right to legislate under Article 72 (3) of the Basic Law because the conditions of Article 72 (2) have subsequently ceased to apply. Only when the federation assumes responsibility for a matter mentioned in Article 74 or Article 74a of the Basic Law is that matter excluded from the competence of the Länder. Article 72 (2) of the Basic Law, however, limits the competence of the federation and makes it contingent upon certain material conditions. The exclusive legislative power of the federation is unrestricted in the context of the list in Article 73 of the Basic Law. But the subject areas listed in Article 74 of the Basic Law represent limits upon the federal legislative competence. Article 72 (2) of the Basic Law forms an additional bar to the exercise of that federal legislative competence. No legislative discretion free from constitutional judicial review exists in regard to the requirements of Article 72 (2) of the Basic Law. The provision can do justice to its position within the scheme of the Basic Law, to its meaning and to the intention of the framers of the constitution, only if its requirements cannot be subjectively determined by the entity whose competence it is supposed to limit. For the purpose of restricting the scope of federal legislation to the matters specified in Article 73 et seq. of

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the Basic Law, the Federal Constitutional Court has long stressed that that limitation requires a “strict” interpretation. . . . In comparable fashion, the requirements of Article 72 (2) of the Basic Law also must be amenable to judicial review. . . . [In considering the history of the framing of Article 72 (2) and the intent of the framers of the 1994 amendment to Article 72 (2) as well as Article 93 (1) [2a], the Court concluded that the amendments had the objective of strengthening the position of the states and ensuring effective constitutional judicial review thereof. The Court explained: “In the amendment to the Basic Law a clear instruction to the Constitutional Court can be seen from the framers of the amendment: the [C]ourt should revisit its previous case law, which now requires correction.”] 4. a. The framers of the constitutional amendment intended that the essentiality clause of Article 72 (2) of the Basic Law should be made justiciable; no latitude was to be left to the federal legislature. . . . b. If the meaning of the provision lies in the protection of the Länder from further erosion of their legislative powers, then that protection will be effective only if the requirement that the legislation be “essential” is understood as a judicially reviewable restriction. The federal parliament must observe the requirements of Article 72 (2) of the Basic Law like any other constitutional restraint and must ultimately allow its enactments to be reviewed by the Federal Constitutional Court with a view to determining whether it has exceeded its competence. For the purpose of reviewing the criteria contained in Article 72 (2) of the Basic Law, a separate constitutional judicial procedure has been introduced in Article 93 (1) [2a] of the Basic Law. Since that procedure permits review only with respect to Article 72 (2) of the Basic Law, that provision would be meaningless if the legal concepts in Article 72 (2) of the Basic Law were to be understood as nonjusticiable. c. The version of Article 72 (2) of the Basic Law [that resulted from the 1994 amendment] does away with the words “to the extent that a need for regulation by federal legislation exists. . . .” Th is language in the previous version of Article 72 (2) served as a basis for the provision’s nonjusticiability. The amendment, instead, contains the criteria that legislation be “essential.” Th is change in wording further establishes the need to depart from the earlier case law of the Federal Constitutional Court. Priority for the Parliament over the Länder in the interpretation of the provision or the exercise of competence cannot be inferred from the wording of the provision; on the contrary, the right of the Länder to legislate, which exists in principle (see Article 70 (1) of the Basic Law), may be restricted only under certain factual preconditions. The scope of judicial review of those factual preconditions depends on their capacity to be ascertained and the extent of any discretion to be given to the Parliament in investigating facts and forecasting actual developments. [Pursuant to Article 72 (2), the federation was not competent to legislate in any of the fields in its concurrent legislative authority if the legislation was not essential (both as to purpose and scope) to achieving either of two objectives: the

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establishment of equivalent living conditions throughout the federal territory, or the maintenance of legal or economic unity. The Court interpreted these objectives and concluded that regulating the training and certification of geriatric nurses, as provided for in the Geriatric Nursing Act, was essential for both legal and economic unity. The Court outlined the analysis and high standards to be used in concluding whether these provisions were essential. The Court fi rst considered the standard for determining if the exercise of federal concurrent legislation is essential to achieve equivalent living conditions or economic/ legal unity. The Court then considered the standard for determining if the extent of the federal legislation is essential.] Within the structure of competences in the Basic Law, where enactments of the federation and Länder are equally capable of fulfi lling constitutional objectives, primacy belongs, in principle, to the Länder (Article 30 and Article 70 of the Basic Law). Article 72 (2) of the Basic Law takes this into account—together with the requirement that federal regulation be essential—and thereby directs the federation toward the least possible interference with the Länder’s authority to legislate. Federal regulation is, therefore, “essential” only insofar as, without it, the respective objective of Article 72 (2) of the Basic Law identified by the legislature in a par ticu lar case as the basis for its action in the specific field to be regulated (either the establishment of equivalent living conditions or the maintenance of legal or economic unity in the national interest) cannot, or cannot sufficiently, be achieved. At the same time, a prerogative for draft ing and formulating the statute must remain with the Parliament. If it has chosen a draft that has both cleared the hurdle of Article 74 (1) of the Basic Law and is also essential, in terms of its purpose and effect, in order to safeguard the legally protected interests in Article 72 (2) of the Basic Law, parts of the draft can then be removed for being over-broad only if the draft, in its entirety, and with it the effect of the statute, is not jeopardized without them. bb. No federal competence exists if enactments of Land law are sufficient to safeguard the legally protected national interests mentioned in Article 72 (2) of the Basic Law. But not every theoretical possibility of action by the Länder is sufficient in that regard. In par ticu lar, the mere possibility of identically worded Land statutes does not exclude a federal competence. Otherwise, since that possibility theoretically always exists, the concurrent legislative competence of the federation would be purposeless. The provision does not seek to delimit the federation’s legislation from that of the Länder. The purpose of the federal constitutional system is to open up for the Länder independent areas of competence for locally or regionally differentiated enactments. . . . c. The review of these requirements is the task of the Federal Constitutional Court. Insofar as present or past facts need to be ascertained for this purpose, in order to verify the correctness or completeness of the circumstances cited by the Parliament, the Court is not subject to any restrictions. For a verdict of unconstitutionality to be reached, however, the statute must be based on a defective assessment

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of facts by the Parliament, meaning that no other, applicable considerations can be invoked in its justification. . . . Taken on its own, the fact that future developments are uncertain cannot suffice to justify allowing the Parliament unfettered discretion. . . . That is because predictive judgements are based on an ascertainment of facts that, for their part, are amenable to examination and evaluation. . . . What is verifiable here, just as with the assessment of present or past factual situations, is, above all, whether the legislature has based its decision on the most complete investigation possible or whether it has overlooked relevant facts. In that regard, the requirement for the most “complete” investigation possible can reasonably relate only to facts that are material to the particu lar sphere of regulation. . . . Insofar as the uncertainties of forecasting can be eliminated by certain empirical data and reliable experiential rules, then any margin for prediction is excluded. . . . The Parliament also has a margin for prediction in the determination of future developments used to assert that the legislation is essential within the meaning of Article 72 (2) of the Basic Law. If a course of events develops other than expected, in many cases only the typically predictable risk inherent in every evaluation of complex future developments is realized. Incorrect predictions cannot, ultimately, be excluded, even when the greatest care is exercised in making them. Therefore, it must be acknowledged that, within certain limits, the Parliament, which cannot avoid forecasts, is entitled to take that risk without having to fear an adverse assessment under constitutional law. . . . The Constitutional Court’s examination of a federal statute by the standard of Article 72 (2) of the Basic Law must include the following aspects: the forecast must be based on assumptions of fact that have been carefully established or can at least be confi rmed in the course of the judicial examination; the forecast must be methodologically sustainable by an appropriate forecasting technique and this must have been followed consistently . . . ; the result of the forecast must be checked to ensure that the considerations on which the prognostic estimation is based have been disclosed with sufficient clarity or that their disclosure is at least possible in judicial proceedings on the constitutionality of laws, and that no irrelevant considerations have influenced the forecast.

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Geriatric Nursing Act Case: An Addendum. It would not be long before the Court, using its newly articulated Article 72 (2) analysis, would declare legislation enacted under color of the federation’s concurrent legislative authority to be incompatible with the Basic Law. Th is time, it was the First Senate that acted. In the Dangerous Dogs Case (2004) federal legislation prohibiting the importation, transportation, and breeding of particularly dangerous breeds of dogs (including the Pit Bull Terrier, American Staffordshire Terrier, Staffordshire Bullterrier, Bullterrier, and mixes of these breeds) was challenged by dog breeders as a violation of the right to occupational freedom secured by Article 12 of the Basic Law.105 The Court concluded that

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the law represented a limitation upon occupational freedom, and further concluded that the law did not constitute a “regulation” of the practice of a profession as permitted by Article 12 (1) because the federation lacked the competence to legislate in the field. In par ticu lar, the Bundestag had relied on its concurrent legislative authority under Article 74 (1) [1] in enacting criminal sanctions for violations of the prohibition on breeding the listed dogs. Following the standards announced by the Second Senate in Geriatric Nursing, the Court concluded that the legislation had not satisfied the “essential” prerequisite of Article 72 (2). A month after the decision in Dangerous Dogs, the First Senate shifted the federalist balance back in the direction of the federation, if only marginally. In the Shop Closing Act III Case (2004)106 the Court was confronted with a challenge to modifications to the Shop Closing Act that were enacted in 1996, two years after the 1994 amendments to the federalism provisions of the Basic Law that introduced the essentiality clause in Article 72 (2). The Court explained that if it were to employ the standards announced in Geriatric Nursing, then it would have to fi nd that the 1996 changes to the law were not “essential” within the terms of the amended Article 72 (2). Th is, however, was not the end of the Court’s analysis. As part of the 1994 amendments to the Basic Law, Article 125a also had been added, exempting from the terms of the newly amended Article 72 (2) all federal concurrent and framework legislation on the books at the time. According to Article 125a these exempted laws “remain in force” unless “[a] federal law [provides] that [they] may be superseded by Land law.”107 The Court interpreted Article 125a as leaving the authority to modify such grandfathered legislation exclusively with the federation, unless the federation exercises its discretion to empower the Länder to create a superseding legal regime. The business hours established by the 1996 version of the Shop Closing Act, the Court explained, constituted just such a minor modification squarely within the discretion of the federation and not the more comprehensive alteration of the fundamental legislative concept of the Act that would require compliance with Article 72 (2). Unanimous on these federalism matters, the Court was also unanimous in concluding that the Sunday and holiday closing requirement in the 1996 version of the Act did not constitute an unconstitutional infringement of occupational freedom and equality.108 The Court was evenly divided on the same question as regards the Shop Closing Act’s Saturday business hours, permitting those provisions of the law to survive on the strength of Article 15 (3) of the Federal Constitutional Court Act: “If the votes are equal, the Basic Law or other Federal law cannot be declared to have been infringed.”109 The controversy over the authority to liberalize Germany’s shopping hours has, in any event, been resolved in favor of the Länder by one of the reforms of 2006: “Article 74 [(1) [11]], which gives the federation concurrent powers over certain economic activities, no longer includes the right to regulate store closing hours, a power favored strongly by unions and churches (at least as far as Sundays are concerned) but seen by many others as a good example of overregulation, a considerable burden on retail establishments, and an inconvenience to German shoppers. By November 2006 some Länder [(e.g., Berlin)] had already acted to liberalize dramatically store opening hours.”110

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cooperative federalism The formal division of legislative authority established by Articles 71 through 74 (and the former 74a) belies the reality of the high level of integration and collaboration between the federation and Länder in making public policy. As Werner Heun remarked: “Although, at the beginning, the Basic Law only very sporadically provided for the shared completion of tasks, and the case law and literature derived a fundamental prohibition on mixed administration from the nature of federalism, an intensive . . . cooperation between federation and Länder, as well as between separate Länder, very quickly developed after 1949.”111 Indeed, a number of provisions of the Basic Law anticipate a kind of federal-state cooperation that is in confl ict with a strict “dual sovereignty” theory of federalism.112 For example, Article 75, which was eliminated by the 2006 federalism reform, provided for federal framework laws that were meant to be fi lled out by more detailed state legislation. The 1969 amendments to the Basic Law, including Articles 91a, 91b, and 104a, also opened spheres of shared federal and Land competences. All of these provisions of the Basic Law were altered in one degree or another by the 2006 federalism reform. Arthur Gunlicks has argued that cooperation better characterizes German federalism than a dualist “ideal” of federalism. The theory of “cooperative federalism,” Gunlicks explained, was fi rst used to describe the “reality of shared [state and federal] fi nancing and administrative responsibilities that emerged during and after the New Deal [during American President Franklin Roosevelt’s administration],”113 especially in response to the growth of the modern welfare state.114 “[B]y the 1970s,” on the heels of American President Lyndon Johnson’s Great Society program, “there were few [American] government programs that did not involve the federal government in some combination with the states and/or local governments.”115 The German era of cooperative federalism, fueled by “underlying and powerful tendencies towards unitarianism and centralization,”116 has resulted in such a thoroughgoing entanglement of the Länder and the federation in matters of policy making, fi nancial affairs, and administration that some constitutional law scholars question whether today’s Germany is really still a federal state at all. Framework Laws. Prior to the 2006 federalism reform, Article 75 of the Basic Law authorized the federal government to enact general, or “framework,” statutes (Rahmengesetze) regarding matters traditionally within the states’ domain but of a nature requiring federal participation in the interest of more uniform national policy. The relevant areas of policy included regional planning and water management, the legal status of the press, and the fi lm industry. Following constitutional amendments adopted in 1969 and 1971, the cooperative responsibility of the federation and Länder via framework legislation was extended to include the legal status of persons in the public ser vice of the Länder and general principles governing higher education. State legislation continued to dominate these fields but within preestablished federal

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guidelines. As with the federation’s concurrent legislative authority under Article 74, these federal framework guidelines had to be “essential” for the achievement of the goals identified by Article 72. The Constitutional Court interpreted the framework legislative competence as having a narrow scope. In the State Water Fees Case (1995) the Court refused to presume a federal prohibition on state fees for the withdrawal of groundwater where the relevant federal framework law was silent on the matter.117 The Court reiterated its prior case law in which it established that framework laws should not be construed to limit the legislative authority of the Länder any further than the language of the framework law makes absolutely necessary. Even the extent to which the language of the federation’s framework legislation controlled the details of a regulated matter proved to be a difficult issue requiring careful judicial consideration. In the North Rhine–Westphalia Salaries Case (1954)118 the Court concluded that “Land legislation must fit into the federal framework but must be left free to take account of the par ticu lar conditions of the state concerned; that the federal framework provisions need not be restricted to fundamental principles yet must not exceed their declared purpose of forming a boundary for discretionary regulation by the Länder nor confi ne the latter to a choice between predetermined legal alternatives.”119 If, however, the matter regulated is one in which there was a strong and legitimate interest in national uniformity, then federal legislation could provide the details with respect to that matter, assuming, of course, that the matter falls within the federation’s framework authority.120 In the Junior Professor Case the Second Senate ruled, in a 5–3 decision, that the Fift h Act for the Amendment of the Higher Education Framework Law was incompatible with the framework legislative competence provisions of Article 75 (1) [1a] and the requirement of Article 72 (2) that the legislation be “essential.” Once again engaging the highly sensitive federalism issue of education policy, the Court extended the “states’ rights” jurisprudence of the Geriatric Nursing Act Case (2002; no. 3.10) to its interpretation of the federation’s framework legislative competence. In so doing, it seems likely that it precipitated the demise of framework legislation in the 2006 federalism reform.121 3.11 Junior Professor Case (2004) 111 BVerfGE 226 [The 2002 law sought a comprehensive reform of the qualifications and payment of academics and researchers. In pushing for the reform, the newly elected spd-Green coalition government argued that Germany’s once-vaunted postsecondary institutions were losing ground in an increasingly globalized market for academics. The creation of the rank of junior professor as an introductory academic position was intended to shorten the length of time needed for entry into the academy, and this was to be coupled with a new, more flexible and competitive compensation scheme across all academic positions. The three Länder

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governed at the time by the cdu or csu brought an abstract judicial review action to challenge the federal legislation as an intrusion on the states’ competence over education policy. The Court agreed.]

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Judgment of the Second Senate. . . . B. . . . The Fift h Act for the Amendment of the Higher Education Framework Law and other Regulations, enacted on 16 February 2002, is incompatible with Article 70, and Article 75 in connection with Article 72 (2), and is therefore void. II. 2. The essential (as emphasized by the Parliament) element of the challenged law concerning the qualification and installment of professors, exceeded the acceptable framework for federal legislative authority over higher education. In terms of their nature and scope, the provisions on the junior professorship form the essential element of the legislative project. They contain detailed rules that leave the legislatures of the Länder scope only for secondary enactments. The Länder are required to adopt a staff structure that—with some minor exceptions—precludes any alternatives. The Parliament fails to appreciate that the competence to enact framework legislation does not allow it the same political scope of action as the other legislative competences. a. In the view of the federal government, the provisions in the Fift h Act for the Amendment of the Higher Education Framework Law leave the Länder sufficient scope to build on the federal legislative framework. Th is also applies to the central conceptual and normative element of the higher education reform since the Länder are given the scope to defi ne the actual conditions of employment for academic university staff and to organize the employment relations governed by civil ser vice law in more detail. As the Federal Government rightly pointed out in the judicial proceedings on the constitutionality of the statute, it is essentially left up to the Länder themselves to decide on the introduction of internal appointments, the rules governing advertising for vacancies, teaching loads, the funding and material resourcing of the junior professorship, and its relationship to the tenured professorship. But that sphere of regulation is marginal and of no consequence in light of the high degree of regulation in §§ 44 to 48 of the Higher Education Framework Law. The provisions concerning the junior professorship form an exhaustive set of operational rules covering all the essential elements; they predetermine the central concept of the junior professorship and, at most, allow the Land parliaments scope for minor additions, but no scope of substantial significance for enactments of their own. The Parliament has failed to show regard for the fact that it was the intention of the framers of the constitution and the constitutional amendment that the Länder should retain substantial legislative scope in respect of higher education. . . . b. The institution of the junior professorship is prescribed, according to the legislative concept of the Fift h Amendment Act, not as an offer of one of several possible paths to qualification, but as an obligatory standard qualification. The Länder are, thus,

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not allowed to organize this central area of higher education independently. The Länder are forced down the mandatory path of the new means of access to the professorship. Since so little room remains at the very heart of the reform project—the introduction of the junior professorship—for decisions under Land law, it is no longer possible to assume that this is an enactment of provisions on the general principles respecting higher education within the meaning of Article 75 (1) [1] {1a} of the Basic Law. . . . 4. Moreover, the provisions on the junior professorship are not justified by a necessity for uniform federal legislation, as required by Article 72 (2) of the Basic Law. a. The federation’s legislative aim, which is to shorten the path to qualification for the rising generation of academics and to promote their independence, proves neither the necessity of the provisions for the establishment of equivalent living conditions nor their necessity for the maintenance of legal unity. A federal statute is necessary within the meaning of Article 72 (2) of the Basic Law if a critical situation arises precisely as a result of differing laws in the Länder. That would be the case, for example, if living conditions were to follow unacceptably divergent trends as between the Länder or if a change of job from one Land to another were made significantly more difficult or even virtually impossible. Such critical situations are neither pleaded by the federation nor evident. The provisions in question also are not necessary for the maintenance of legal unity. No fragmentation in the law of higher education and higher education ser vice regulations had been complained of at the time of the adoption of the Fift h Amendment Act; the personal mobility of academics at German universities is moreover guaranteed. b. The change in the staff structure mandated by the Fift h Amendment Act could at best be justified under the objective of maintaining economic unity. But from this point of view, the prerequisites for federal legislative competence also are absent. . . . In any event the Parliament has not furnished any persuasive arguments that, as a result of divergent provisions on access in the individual Länder, an unsatisfactory state of affairs can be expected to arise that federal legislation alone can address. The fact that the junior professorship model of reform may not prevail as superior in a competition with other conditions of eligibility does not establish the necessity of such an enactment.

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The Sixth Act for the Amendment of the Higher Education Framework Law (2002) met a similar fate. Again invoking its framework legislative authority under Article 75 (1) [1] {1a}, the federation enacted legislation that sought to mandate Germany’s tradition of tuition-free higher education in the face of attempts by a handful of conservative state governments to experiment with tuition in their state-run universities. The legislation would have guaranteed that studies leading to a fi rst degree, and that consecutive studies leading to a second degree, remain tuition-free. In the Tuition Case (2005)122 the Second Senate ruled that the law confl icted with the constitution, demonstrating that the practice of providing free higher education to all was in need of reform amidst growing anxiety that German universities have gone far adrift of

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the international preeminence they once enjoyed. The Court found that the federal tuition regulation was within the federation’s competence to broadly regulate general principles concerning the nature of higher education, even while noting that “in the field of higher education the federation is obliged to observe exceptional restraint in the exercise of its legislative authority.” But the Court concluded that the legislation was not essential for either the “establishment of equivalent living conditions” or for the “maintenance of legal or economic unity” (Article 72 (2)). The federation’s justifications for the legislation failed to satisfy the standards set by the Court in the Geriatric Nursing Act Case (2002; no. 3.10). The Court dismissed as unfounded or inadequately supported the federation’s arguments that enrollments would decline and students would flood no-tuition or low-tuition universities if tuition schemes were instituted by the Länder. Costs, the Court noted, are only one of a complex mix of interests and values that inform a student’s selection of a university. The Court went so far as to suggest that students might prefer the improved quality in programming and ser vices a university could provide as a result of securing additional funding from tuition schemes. On the one hand, conservative-led governments in Bavaria, Hamburg, Hesse, and Lower Saxony have taken the lead in instituting tuition schemes at their universities, none amounting to more than € 500 per semester. On the other hand, politicians on the left, loudly bolstered by student groups, have decried tuition fees as contrary to Germany’s commitment to social justice. With the elimination of Article 75 in the 2006 federalism reform, at least one subject previously covered by the federation’s framework legislative competence was added to the federation’s exclusive legislative competence under Article 73 (protection of German cultural artifacts). Other subjects previously covered by Article 75 were reassigned to the concurrent legislative competence under Article 74. Joint Tasks. Articles 91a and 91b—1969 amendments to the Basic Law—defi ne areas of public policy making and fi nancing for which the federation and states shall be jointly responsible. Article 91a authorized the federation to help the Länder carry out certain duties in the fields of higher education, regional economic planning, and coastal preservation. Article 91b, adopted with the intention of providing a response to West Germany’s education crisis,123 permitted joint cooperation, “pursuant to agreements,” in educational planning, the promotion of research institutions, and projects of supraregional importance. Criticism of and official proposals to abolish the provisions have dogged Articles 91a and 91b but the Court has had little to say about the scope of these joint tasks (Gemeinschaftsaufgaben).124 The federation participates in these tasks, provided the Bundesrat consents, and as long as the community as a whole is implicated and the federal role is “necessary to improve living conditions.” Werner Heun concluded that these prerequisites are so “vague and undefi ned that review by the Federal Constitutional Court is feasible only in a limited sphere and, thus, judicial review hardly represents an effective limitation.”125 Still, the joint task provisions have received some scrutiny from the Court. In Geriatric Nursing the Second Senate distinguished the strict stan-

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dard for “essential” federal legislation under Article 72 (2) from the “necessity” requirement of Article 91a. Article 72 (2) is not satisfied, the Court explained, merely because the federation can argue that the challenged concurrent legislation might lead to improvements in the equivalence of living conditions or the maintenance of legal or economic unity across the country. Th is milder form of necessity, however, is all that is required by Article 91a (1). According to the Court, had the framers of Article 72 (2) wanted the “essential” requirement to be satisfied by merely any kind of improvement in the equality of living conditions or maintenance of legal or economic unity, they would have employed the language of Article 91a (1). Besides providing a sphere of federal-state cooperation, Articles 91a and 91b also sought to resolve rising concern about federal intrusion upon Land independence that had been fueled by increasing federal subsidization of state-based governance by means of federal grants. In this cause, Article 104a, which was added to the Basic Law as part of the 1969 reform, worked with Articles 91a and 91b to “put an end to the uncontrolled growth of federal grants”126 by clearly enumerating those circumstances in which the federation can assert direct fi nancial influence over Land policy. The 2006 federalism reform removed the references to joint federal-state tasks in higher education that had been found in Articles 91a and 91b. Article 104a was amended with a new § 4 to require Bundesrat approval of “federal laws that involve Land administration as well as Land funds.”127 The previous Article 104a (4) was recast as a new Article 104b, which aims to resolve the criticism that the federation’s grants-in-aid served as a Trojan horse through which the federation extended its influence in matters reserved to the Länder. Th is criticism is easily recognizable by those familiar with concerns over expansive and intrusive congressional exercise of federal tax and spending authority in the U.S. constitutional scheme.128 Article 104b confi nes the German federation’s influence by “limiting the reach of federal grantsin-aid [by] placing time limits on the grants and requiring periodic reviews, and in requiring that the aid granted be reduced in stages over time.”129

implementation of federal law German federalism balances the federation’s legislative priority with the states’ right “to execute federal law as matters of their own concern” (i.e., in their own right) unless the Basic Law specifies otherwise (Article 83). Land governments, as was noted earlier in this chapter, delegate the implementation of most laws (federal and Land) to still lower levels of administration.130 Thus, Land and local governments predominate in the field of public administration because they establish and operate nearly all of the country’s administrative agencies. As a consequence, the Länder are primarily responsible for putting into force most rules and regulations pertaining to the training and employment of civil servants. Incongruously, federal law controls the general legal status of civil servants, including their classification, educational qualifications, and salaries.131 Demonstrating the breadth of the 2006 federalism reform,

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this long-criticized dissonance in administrative law and policy also was corrected. Article 74a was deleted in the 2006 federalism reform and the provisions of the Basic Law addressing the status and duties of civil servants (Beamten) of the Länder, local governments, and other public corporations were transferred to Article 74, which provides for the federation’s concurrent legislative competence. Salaries and benefits for public employees in the Länder and local governments, however, are now the responsibility of the Länder. Th is was not the only change in Germany’s administrative federalism wrought by the 2006 federalism reform. One of the chief aims of the reform was to have the Länder surrender some of the lawmaking competence they had acquired through the expanded veto authority of the Bundesrat. In light of their responsibility for administering law, this could be expected to have the ancillary effect of exposing the Länder to administrative obligations for which they had little or no legislative responsibility. A way out of this difficulty had to be found in addition to the compromises that made possible the centralizing reform of the vertical division of legislative authority (Articles 70 to 74). The solution was to amend Article 84, which maintains the states’ priority in establishing administrative agencies and procedures. But the new Article 84 goes further, providing the right of a Land government to enact “deviating legislation” if federal law touches upon the administration of the law. Article 84 protects the states’ interest in administration against the federation’s stubborn insistence upon a federal regime by requiring Bundesrat approval of a law providing for the federal regulation of procedures.132 These changes were intended to bring coherence and accountability to federalstate relations in administrative matters. But the federation and the Länder do not participate in this administrative symbiosis in every instance. While limited in number, exclusive federal administrative structures exist in those areas of the federation’s exclusive legislative competence (Article 73) and in matters in which the Basic Law expressly provides for direct federal administration. Under constitutional amendments adopted in 1993, these matters include foreign affairs, federal financial administration, waterways and shipping, and the armed ser vices (Article 86). In addition, autonomous and self-governing federal agencies administer certain insurance programs (e.g., health plans, accident insurance, and pension funds). Under Article 87 (2), these programs are administered as federal corporate bodies if their “sphere of competence extends beyond the territory of one Land.” Federal-state confl icts occasionally arise under this and related provisions of the Basic Law when these federal agencies receive mandates under federal law that are alleged to interfere with the day-to-day operations of analogous Land agencies.133 The prevailing view among constitutional commentators, cited approvingly in the Chimney Sweep II Case (1983), is that the spheres of federal and Land administration are to remain organizationally separate and independent.134 The federation’s exclusive administrative competence aside, federal-state relations in the administration of the law is complex. The federal government, for example, is authorized to supervise the administration of federal law and, with the Bundesrat’s consent, even to issue directives to Land agencies. Kalkar II is a landmark case in-

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volving a clash between federal and Land administrative orders; the case draws attention to the Basic Law’s distinction between two forms of Land administration. Under Article 84 the Länder are empowered to implement federal laws as a matter of their own concern, in accord with their own procedures, and through their own agencies unless otherwise provided by law and requiring the Bundesrat’s consent. Here the line between federal legislation and Land administration is clear. Article 85, however, provides for a unique administrative mechanism referred to as “Länder administration by federal commission,” pursuant to which the Länder are empowered to administer federal law as agents of the federal government. They act as the federation’s agents when, with respect to a given subject matter, the Basic Law so declares or when the regulated matter is subject to more immediate federal control. In this situation, Article 85 (3) authorizes the highest federal official in charge of the regulated matter to issue directives to the highest corresponding Land official. Kalkar II dealt with the extent of the federation’s authority under Article 85 (3). The Court resolved the dispute in favor of the federal minister but admonished the federation to observe the principle of comity in laying down procedures to be carried out at the local level. 3.12 Kalkar II Case (1990) 81 BVerfGE 310 [Pursuant to the federation’s concurrent authority over the production of nuclear energy the Parliament enacted the Federal Nuclear Energy Act, which, among other things, regulates licensing procedures for the construction of fastbreeder reactors. (Article 87c declares that nuclear energy laws may be administered by the Länder for the federation with the Bundesrat’s consent.) Such a reactor had been under construction in Kalkar since the early 1970s. (A related decision, the Kalkar I Case [1978; no. 4.6], involved an earlier controversy arising from the decision to build the reactor.) Prompted by the nuclear disaster at the Soviet Union’s fast-breeder reactor in Chernobyl in 1986, North Rhine– Westphalia’s minister in charge of technology ordered a reassessment of the plans for the reactor’s safety system before permitting the installation of the reactor core. The federal minister in charge of environmental matters issued a contrary directive based on an earlier report that all safety measures had been met. The Land government, appealing to the Federal Constitutional Court, charged that the federal directive was beyond the competence of the national government. The Court disagreed.]

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Judgment of the Second Senate. . . . C. The application is unfounded. The federal directive is legally valid under Article 85 (3) of the Basic Law. It relates to the licensing procedure under § 7 of the Nuclear Energy Act . . . and implicates the

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authority of the Länder to execute federal laws as agents of the federation. As a procedural order, the federal directive is permissible under Article 85. 3. . . . Objectively . . . the federal order complies with the conditions of and restrictions on federal competence under Article 85 (3). The order did not violate the principle of comity. I. Article 83 empowers the Länder to enforce federal laws unless otherwise specified in the Basic Law. In principle, the Länder administer federal laws as matters of their own concern (Articles 83 and 84). The Länder are also empowered to act as “agents of the federation” in certain designated matters (Article 85 (1)). 1. The administrative agency in question here is a form of Land administration. The Länder exercise their own authority as such, and their administrative agencies act as their organs, and not as organs of the federation. Th is view is supported by the language of Article 85 (1), as well as the distribution of powers in Part VIII of the Basic Law, which distinguishes two forms of Land administration; namely, when the Länder execute federal laws in their own right and when they serve as agents of the federation, [i.e., when they derive their authority] from the federation’s administrative power (Article 86). The debates in the Parliamentary Council also proceeded on the assumption that Land and federal governments would serve as equals in administrative matters and that Land and federal agencies would be kept separate. Admittedly, the autonomy of the Länder in administrative matters is substantially restricted. Where the Länder execute federal laws in their own right the federal government exercises a supervisory power to ensure legal conformity with federal law and has the right to issue individual instructions in particular cases where it is permitted by federal statute (Article 84 (5)). The federal government has broad powers to intervene in the functioning of administrative agencies. Its supervisory power extends to ensuring the lawfulness and appropriateness of administration, for which purpose the federal government may require the Länder to submit documents for inspection and dispatch representatives to the Land administrative agency. Most important, the directives of a Land agency are subordinate to those of the federal authority; accordingly, the latter must be executed by the highest Land authority . . . (Article 85 (3)). It follows that the administrative competence of the Länder is limited by the original distribution of competences to each level of government. The Länder retain exclusive authority in the administration of their functions as against third parties; Article 85 of the Basic Law does not contemplate a federal right to interfere with this power. But this is not the case with respect to substantive decision making. Although this power resides primarily in the Länder, the federal government can vest this power in itself by exercising its power to issue orders. Th is exercise is not limited to exceptional cases and does not require justification. Article 85 (3) of the Basic Law contemplates this as a normal means of settling differences, such that the federal vision of the common good may prevail. The power of the Länder to make substantive decisions is limited only by the reservation of rights at the federal level. The legislative history of Article 85 (3) supports this view. According to the reporting committee of the Parliamentary Council, Land administrative agencies were

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to be subordinate to the will of the highest responsible federal agency. . . . Accordingly, a federal directive to a Land agency discharging functions within its competence is invalid only when the directive . . . is unconstitutionally issued. . . . II. . . . 2. Article 85 (3) of the Basic Law places additional legal restrictions on the federal power to issue directives. These restrictions relate to the nature of the directives and the substantive decision-making authority on which they are based. The order must precisely defi ne the respective spheres of federal and state competence. The subordinate agency must be able to recognize that it is the recipient of an order, and that certain standards will apply to certain administrative processes. The order must be drafted such that the recipient is able to make objective sense of it, using all the potential sources of technical and legal knowledge available in a fully equipped Land agency. In this context, previous communication with the superior federal authority may be of significance. The requirement of precision does not prohibit the use of concepts whose realization requires a judgment call. Th is is not contrary to a directional order. 3. When issuing orders, the federal government is bound by the principle of comity. Certain conditions and restrictions for the execution of competences can be derived from this. In the German federal state the entire constitutional relationship between the federation and its member states is guided by the unwritten constitutional principle of comity; that is, the federal government and the Länder must act in a manner that promotes the interests of the federation as a whole. Th is duty requires that, in exercising their functions, the federation and the Länder reasonably consider the overall interests of the federation and the concerns of the Länder. The federal government does not violate its duty solely by executing a constitutionally assigned competence. Rather, it can be deduced from the principle that the exercise must be abusive or in violation of procedural requirements. The further conclusions that can be drawn from this principle can be determined only in individual cases. . . . III. 1. According to this interpretation of Article 85 (3) of the Basic Law, the petitioning Land cannot proceed with its submission that the federal directive was incompatible with § 7 (2) or with the licensing procedures of the Nuclear Energy Act; or that it incorrectly assessed the effect of linking individual permits; or that it misconstrued the content of the prior positive assessments of the whole project. The Land cannot argue that the order restricts its execution of the constitutional duty to protect the life and health of its citizens under Article 2 (2) of the Basic Law. The execution and fulfi llment of this duty lie solely with the federal government, insofar as it issues an order within its competence. . . . 2. The order complies with the constitutional conditions and restrictions placed on the competence to issue orders under Article 85 (3). The content is procedural, as it draws the Land minister’s attention to legal opinions about the protection of property for which permits were already issued and about the collective effect of prior positive assessments. Taking the events at Chernobyl into consideration, the order annuls the previous standards of evaluation and the previous plans for the safety sys-

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tem of the reactor by raising the possibility of another expert report, thereby deviating from the position of the Reactor Safety Committee on 15 April 1987. 3. a. Contrary to the perspective of the petitioning Land, the fulfi llment of Land duties in the area of disaster prevention is not affected by this order. The order does not forbid the Land to commission a report addressing the issue of disaster prevention (e.g., emergency shelters). b. Further, the order satisfies the requirement of precision. . . . 4. In issuing this order, the federal government has also fulfi lled the principle of comity. The Constitutional Court must assess not only the order, but the actions that preceded it. It is not a question whether the federal government did everything required by the principle of comity to avoid any misunderstanding on the part of the Land after issuing the order, or whether the Land for its part did everything reasonably required to understand the content of the order.

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Extending Kalkar II. In the Biblis-A Case (2002),135 another decision involving a clash over state and federal administration of nuclear energy policy, the Second Senate again acknowledged the federation’s administrative will in cases where Land administration is authorized by the federation (Article 85). In Kalkar II the Court held that “[t]he Länder retain exclusive authority in the administration of their functions as against third parties. . . .”136 In Biblis-A the Court narrowed the scope of this statebased administrative competence. Following decades of controversy, including Hesse’s persistent refusal to administratively certify the safety of the nuclear power plant known as Biblis-A, a change of government in Hesse in 1999 (from a center-left coalition to a center-right coalition) broke the logjam. The new Land government’s efforts coincided, however, with increased concern for nuclear safety on the federal level, which also reflected a change in government from a center-right coalition to a center-left coalition. The Federal Ministry of the Environment complained about numerous deficits in the draft permits prepared by the state and ordered Hesse to grant permits certifying the adequacy of safety modifications to Biblis-A only after federal supervisory approval. Meanwhile, as part of the new federal government’s broader efforts to shape energy policy, representatives of the federal government and the energy supply industry (including the operator of the Biblis-A plant) signed the so-called atomic consensus. Its appendices contained agreed-upon conditions for the operation of Biblis-A, including the following passage: “Before the end of August 2000, the federal ministry will determine measures about the acceleration of the permit procedure vis-à-vis the Hesse board of control; this will include a structuring of the process and a defi nition of the standards of evaluation.” The Hesse government, the apparent administrative authority concerned with the plant, at least with respect to policy-making implicating third parties like the operator of Biblis-A, was not a party to the atomic consensus agreement and did not attend subsequent meetings between the plant’s operator and the Federal Ministry of the Environment at which the terms of operational certifica-

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tion for Biblis-A were concluded. Hesse challenged the federal government’s actions as an encroachment on its administrative sovereignty and brought the matter to the Constitutional Court. The Constitutional Court dismissed Hesse’s petition on its merits. Speaking fi rst to the question of state administrative competence, the Court reconfi rmed that, within the scope of Länder administration by federal commission (Article 85), Land governments possess the inalienable and exclusive right to execute all administrative measures with external effects. But, having held in Kalkar II that the power to make substantive administrative policy can be claimed by the federal government at any time, the Court concluded that once the federal government has expressly or implicitly exercised this authority, it may have direct external dealings with third parties in order to prepare for the exercise of this power. Such external dealings, the Court explained, may also include “informal” negotiations and agreements of the kind associated with the “atomic consensus.” The Court explained that the administrative sovereignty of the Land would be violated in such circumstances only if the federal government were to engage in legally binding activities vis-à-vis third parties or issue statements that approximate a legally binding decision. Th is was not the case with respect to the federal government’s dealings with the operator of Biblis-A. Second, the Court addressed the question of comity, especially in respect to the federal government’s exclusion of Hesse from the atomic consensus negotiations. The Court ruled that Hesse’s administrative competence in the case was limited to the nuclear power plant, which the Court viewed as wholly distinct from the federal government’s pursuit of its broader energy policy by way of the atomic consensus. The Court found that comity had not been jeopardized by the federal government’s failure to notify and actively pursue Hesse’s participation in the formation of that policy, even as that effort incidentally affected the Biblis-A plant. The Court concluded that, in any event, the state’s interests in its administrative competences were adequately protected. Hesse had been notified of the federal government’s engagement with the matter through the federal exercise of its power to direct substantive administrative policy and through media coverage of the federal government’s efforts regarding energy policy. The Land also enjoys the effective procedural protections elaborated in Kalkar II, which must be observed before the federal government can issue an administrative instruction under Article 85 of the Basic Law. There is no protected Land interest, however, if the federal government activities involve only the informal measures that inform the federal government’s preparation of an administrative instruction, especially where the informal activity of the federal government is as far removed from the concrete administrative procedure as it was in this case. Justices Di Fabio and Mellinghoff dissented, arguing that the federal government’s interactions with the external operator of the Biblis-A plant, with their real, if ostensibly informal and incidental effects, interfered with Hesse’s administrative competence in violation of Articles 30 and 85 of the Basic Law. At the very least, the dissenting justices argued, the federal government should have been found to have

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violated the principle of federal comity by failing to inform Hesse about its plans in an appropriate and timely manner and thus denying the Land an opportunity to be heard. These cases suggest that nuclear energy was a contentious issue in Germany. In fact, as one of the most divisive social and political questions for several generations, nuclear energy reached the Court in a number of constitutional guises.137 For example, nuclear energy also was the backdrop to the seminal Brokdorf Demonstration Case (1985), which we discuss at length in Chapter 8.138 The wrangling over the Kalkar nuclear energy plant eventually led authorities to shutter the project before the core reactor was inserted. After nearly dm 7 billion in investment, Kalkar never generated a single watt of energy. The Biblis-A facility also has been switched off. As a result of the global anxiety over nuclear power that was stirred by the 2011 tsunami disaster in Fukushima, Japan, the conservative-liberal government of Chancellor Angela Merkel ordered a temporary halt to the production of nuclear energy in Germany. Ostensibly, this was to permit safety inspections of the entire network of nuclear plants. But the Biblis-A plant was never restarted. On 30 May 2011 the federal government announced plans to abandon all nuclear energy production in Germany by 2022, seemingly closing this tumultuous chapter in German political and constitutional life.

conclusion The issues and materials discussed in this chapter underscore the fluidity in the constitutional politics of German federalism. The Basic Law’s complex system of federalstate relations, including its detailed provisions on the administration of federal law by the Länder and the apportionment of tax revenue between levels of government, also reveals the extent to which government process is subject to constitutional constraints. At the same time, the 2006 federalism reform demonstrates the degree to which political pressure influences constitutional decision making. The next chapter details how a similar, if more stable, framework of legality engirds the principle of separated powers. The cases featured in this chapter provided the Court with opportunities to perpetuate its vision of the political order created by the Basic Law. Although fi rmly upholding the principle of federal supremacy in those areas of public policy expressly committed to the federal government, this vision also includes a critical and autonomous role for the individual Länder. For one thing, the Court has tended to construe strictly the long list of concurrent powers granted to the federation under Article 74, probably because a broad construction of these powers would virtually eliminate the Länder as effective units of the federal system. For another, the Court has invoked the principle of comity to impose a variety of obligations on both federal and Land governments in their relations with each other. With the Finance Equalization III and the Geriatric Nursing Act cases, the Court signaled its sympathy for a more de-

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fi ned role for the Länder in Germany’s governance, a position seemingly in line with the political will in the country at the beginning of the new millennium, at least as reflected in the changes produced by the 2006 federalism reform. Finally, in all these decisions the Federal Constitutional Court showed no modesty in intervening to judicially arbitrate the Basic Law’s scheme of federal-state relations.

4 Separation of Powers ∂ The principle of separation of powers fi nds its clearest expression in Article 20 (2) of the Basic Law (Grundgesetz), which declares that “all state authority (Staatsgewalt) . . . shall be exercised . . . by specific legislative, executive, and judicial organs.”1 The Federal Constitutional Court (Bundesverfassungsgericht), however, recognizes that this principle cannot be realized in pure form. Separation of powers is, rather, a “system of reciprocal controls” marked by numerous checks and balances.2 German constitution makers believed that they could secure liberty and avoid oppressive government by setting up a system of shared powers similar to constitutional arrangements in the United States. In their view, political power was implicitly dispersed by the Basic Law’s version of the constitutional state principle (Rechtsstaat).3 Separation of powers in the Federal Republic is unlike the division of authority among the branches of the U.S. government. For one thing, the German variant of separated powers is linked with issues of federalism, a linkage born of the federation’s preeminence in the field of legislation and the federal states’ (Länder’s) preeminence in the field of public administration. As a result, executive-legislative conflicts often resolve themselves into disputes between federal lawmakers and Land bureaucracies. Federal-Land conflicts, therefore, also implicate the principle of separation of powers. At the federal level, the Basic Law disperses authority within and among several institutions, or branches of government, that are distinctive to Germany’s parliamentary system. Executive authority is divided between the federal president (Bundespräsident) and the federal government (Bundesregierung), the latter consisting of the federal chancellor (Bundeskanzler) and his or her cabinet. The Basic Law vests legislative authority in the Parliament (Bundestag), authority sometimes exercised in cooperation with the Federal Council of States (Bundesrat). At the same time, the Basic Law confers independent rights on certain federal institutions.4 These five institutions—federal government (chancellor and cabinet), president, Bundestag, Bundesrat, and Federal Constitutional Court—are the Federal Republic’s highest constitutional organs. The Constitutional Court is primus inter pares among these federal organs because it has the authority to defi ne the others’ institutional rights and duties when resolving confl icts between them. Such disputes arrive at the Court in the form of Organstreit proceedings,5 the German equivalent of a confl ict based on separation of powers in the United States. Yet when German constitutional scholars speak and write about separation of powers, they have more in mind than the technical formalities of an Organstreit proceeding. They often see separation of powers in terms of a creative tension between the Parliament and the federal government, a view anchored in the Basic Law itself.

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Parliament elects the chancellor (Article 63), but the chancellor is responsible for setting the “general policy guidelines” of the federal government (Article 65). In addition, the constructive vote of no confidence (Article 67) reinforces the chancellor’s independence as a political leader. Indeed, Konrad Adenauer’s strong leadership during the Federal Republic’s fi rst decade led many commentators to describe the new German polity as a “chancellor democracy.”6 Ideally, under this system, a legislature made up of “representatives of the whole people, not bound by orders and instructions” (Article 38) constitutes the check necessary to control and discipline the chancellor. The unamendable principle of separated powers (Gewaltenteilung) combines with the equally entrenched principles of popular sovereignty (Volkssouveränität) and executive responsibility (Verantwortlichkeit der Regierung) to produce an accountable government marked by democratic legitimacy. But, as one commentator noted, “in practice this required separation of power between the government and Parliament no longer exists in the face of the [development] of [Germany’s] party democracy.”7 The increasing importance of political parties in the creation and election of a par ticu lar government or governing coalition has prompted constitutional theorists to highlight the importance of the opposition in Parliament rather than the opposition of Parliament as the most effective check on the “executive branch.”8 Perhaps this is why the Federal Constitutional Court ranks the principles of multiparty democracy (Mehrparteienprinzip), equality of parties (Chancengleichheit der Parteien), and the right of opposition (Recht auf Opposition) as equal to those of popu lar government, executive responsibility, and separation of powers.

executive-legislative relations The Basic Structure of Separated Powers. As in other parliamentary systems, the Bundestag chooses the head of the government (Article 63), who in turn is responsible to the legislature. Federal ministers, however, owe their primary allegiance to the chancellor. He or she effectively appoints—and dismisses—them (Article 64) and establishes the general policies within which they are constitutionally obligated to manage their respective portfolios. Within these limits cabinet officials conduct their departmental affairs “autonomously and on [their] own responsibility” (Article 65). The cabinet as a whole resolves policy disagreements between federal ministers (Article 65). The Basic Law, fi nally, does not insist on separating legislative and executive personnel. Constitutional practice in Germany allows the chancellor and members of his or her cabinet, not to mention administrative officials of lesser rank, to hold seats in Parliament. By the same token, certain members of parliament, in their capacity as parliamentary state secretaries, serve as officials within the federal ministries.9 Lawmaking. The large majority of legislative proposals in Germany are bills proposed by the federal government. The government must submit such bills to the

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Bundesrat before transmitting them to the Bundestag. In the less frequent event that a bill originates in the Bundesrat, it later arrives before the Bundestag by way of the federal government, whose views fi rst must be solicited. Legislation is therefore generally the product of a broad consensus reached by these three institutions.10 Constitutional confl icts among these institutions, as exemplified by the Bundesrat Case (1975; no. 3.6), seldom arise. After the Bundestag passes legislation, either the chancellor or the appropriate federal minister must countersign it (Article 82). A president could, according to some authorities, refuse to promulgate a statute he or she regards as unconstitutional, but such an action could trigger impeachment proceedings against the president. The validity of those proceedings would, in turn, have to be resolved by the Federal Constitutional Court. More likely, however, the legislative bodies would simply lodge a challenge to the president’s obstinacy with the Court.11 Vote of No Confidence and the Power of Dissolution. The Basic Law’s scheme of separated powers involves a system of checks and balances rare among parliamentary democracies and considerably at variance with the volatility permitted by the Weimar Constitution of 1919. In contrast to the Weimar Constitution, the Basic Law makes governmental stability a chief aim of the system’s separation of powers. To that end, the chancellor holds a more secure position in the Federal Republic’s governing system. The Basic Law provides for a vote of confidence in only two situations. First, Parliament may initiate the procedure pursuant to Article 67, but a vote of no confidence is insufficient to drive a chancellor out of office. Parliament may remove the chancellor under this provision only when a majority of its members simultaneously elects a successor, a procedure commonly known as a constructive vote of no confidence. Second, Article 68 allows the chancellor to initiate a vote of confidence and to authorize him or her, if the vote shows a lack of confidence, to request the president to dissolve Parliament and call for new elections. The decision to dissolve is the president’s alone, and he or she may decline the chancellor’s request if it seems that the motion to dissolve Parliament was little more than a political scheme on the part of the majority coalition to shore up its position by holding a new federal election. The constructive vote of no confidence and the inability of the chancellor alone to dissolve Parliament appears to have achieved a good measure of political stability in Germany. Since 1949 the constructive vote of no confidence has succeeded only once, in 1982, when the Bundestag voted Helmut Schmidt out of office after the Free Democratic Party (fdp) withdrew from the coalition government. A new alliance between the fdp and Christian Democrats elected Helmut Kohl to be chancellor by a vote of 256 to 235, the fi rst time that a postwar German government had been replaced without a national election. The chancellor has moved for a vote of confidence under Article 68 on five occasions. Chancellors Helmut Schmidt (on 3 February 1982) and Gerhard Schröder (on 13 November 2001) won their votes of confidence for the purpose of validating certain policies. But on three occasions—Willy Brandt (on 22 September 1972), Helmut Kohl (on 17 December 1982), and Gerhard Schröder

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(on 1 July 2005)—the chancellors deliberately “lost” confidence votes to the set the stage for new federal elections. The “defeat” of Chancellors Brandt, Kohl, and Schröder in these Article 68 confidence votes is qualified by the fact that each, at the time of the vote, commanded a governing majority in the Parliament. The parliamentary vote in each case essentially was an orchestrated expression of the governing majority’s will to trigger new federal elections in the hope that new elections would return them to office with a stronger mandate. To paraphrase one Social Democrat who participated in Gerhard Schröder’s maneuver in 2005, in such situations the parliamentary majority shows its confidence in the chancellor by expressing its lack of confidence. These so-called false no-confidence votes (unechte Vertrauensfragen) have prompted much critical commentary. The critics argue that they tread perilously close to endowing the chancellor with a right to dissolve Parliament at his or her whim, the very thing the clear letter of the Basic Law sought to prohibit in the name of stable parliamentary government. The result, it is argued, involves the politicians in a scheme aimed at “gaming” the constitution.12 Not surprisingly, these rare events have led to Organstreit proceedings before the Federal Constitutional Court, which held, in the Parliamentary Dissolution I Case (1983), that Helmut Kohl’s false no-confidence vote satisfied the formal requirements of Article 68 and, additionally, was justified by Kohl’s rational belief that he was confronted with “a situation of instability” (eine Lage der Instabilität), despite the fact that he was supported by a majority coalition in the Bundestag. (In fact, he recently had been elected to the chancellorship via a constructive vote of no confidence.)13 For these reasons the Court found nothing constitutionally objectionable in the federal president’s decision to dissolve the Parliament and order new elections. In the course of its opinion, the Court made clear that each of the decision makers along the way—chancellor, Bundestag, and president—is duty-bound to consider the Basic Law’s sharp limits on the power of dissolution. Each is required, independently and conscientiously, to decide whether the political divisions in the Bundestag seriously impair the ruling coalition’s capacity to govern. The Court emphasized the political nature of this judgment and underscored the fact that these cases blur the line between constitutional and ordinary politics. The Court explained that it stands ready to render its own judgment on the merits of any proposed parliamentary dissolution, but it reasoned that the president, in par ticu lar, should grant the chancellor a certain political leeway (Spielraum) in determining whether he or she is faced with “a situation of instability” that would justify dissolution and new elections. The Parliamentary Dissolution II Case, featured below, picks up where Dissolution I leaves off.14 Following a string of devastating state and local election defeats for his Social Democrats, most notably in the traditional spd stronghold of North Rhine– Westphalia, Chancellor Schröder orchestrated a failed confidence vote in 2005, even though his governing coalition enjoyed a majority (albeit by a slender thirteen votes). In his remarks to the Bundestag upon moving for the confidence vote, Chancellor Schröder complained that his ability to govern had been handicapped by the coalition’s

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slim majority in the Parliament, by division within his party and the governing coalition, by the opposition’s control of the Bundesrat (where it was successfully blocking much of the government’s legislation), and by intense special interest opposition to and not-insignificant public outrage over the government’s comprehensive reform program known as Agenda 2010. The chancellor contended that drastic measures were required to confront Germany’s economic and demographic crises, as well as the increasing challenges of globalization and the difficulties plaguing the European project. All of this necessitated, the chancellor urged, a strong and competent government empowered with a clear mandate from Germany’s voters. In televised remarks on 21 July 2005, President Horst Köhler accepted Chancellor Schröder’s litany as adequately establishing the existence of “a situation of instability.” “Our future,” the president declared, “and the future of our children stands in the balance.” Two members of the Bundestag disagreed and challenged the president’s dissolution order as an unjustified infringement of their constitutionally protected four-year term in office (Articles 38 (1) and 39 (1) of the Basic Law). The new elections ordered by the president, the parliamentarians argued, would shorten their term in office by a full year. As a matter of separation of powers, the complainants warned, legitimizing the false no-confidence vote maneuver would aggrandize the chancellor’s authority at the expense of the Parliament by providing the chancellor with an opportunity to secure support for his or her policies by threatening parliamentary dissolution. They argued that Article 68 was meant to measure the basis of the government’s power exclusively in the Bundestag, where a slim majority is sufficient to govern effectively. Th is had been repeatedly proven in Schröder’s case, the complainants explained, by his government’s ability to pass controversial legislation through the Bundestag. The complainants further contended that the opposition in the Bundestag, and even the supposed opposition within the governing coalition, should be welcomed for its democratic effect of sharpening policy and broadening the consent needed for the enactment of policy. Finally, they argued that the new Bundestag elections, should the chancellor be returned with a stronger mandate, would do nothing to alter the political deadlock between his government and the Bundesrat. 4.1 Parliamentary Dissolution II Case (2005) 114 BVerfGE 121 [Article 68 allows the president to dissolve the Bundestag if the Parliament fails to support the chancellor in a vote of confidence. Th is is exactly what happened in the vote held on 1 July 2005. Yet, considering the potential for a manipulated no-confidence vote, the Court in the Parliamentary Dissolution I Case (1983) had added a “material condition” to the formal terms of Article 68. A “situation of instability” also must exist. On the one hand, with a 7–1 majority the Court here upheld Chancellor Schröder’s “false” no-confidence vote and the president’s subsequent dissolution order. On the other hand, the majority’s characterization

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of the law governing the question could only muster the support of five justices. Justice Lübbe-Wolff wrote separately to depart from the majority’s reasoning. Justice Jentsch, the lone dissenter from the Court’s holding, also wrote separately.]

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Judgment of the Second Senate. . . . C. . . . The complaints are unfounded. The decree of the federal president from 21 July 2005, which dissolved the 15th German Bundestag and set an election for 18 September 2005, did not violate the Basic Law. The decree did not harm or threaten the complainants’ status as members of the Bundestag, a status protected by Article 38 (1) [2] and Article 39 (1) [1] of the Basic Law. . . . . II. The motion for a vote of confidence directed toward dissolution of the Bundestag is constitutional only when it complies, not only with the formal requirements, but also with the purpose of Article 68 of the Basic Law. In Articles 63, 67, and 68, the Basic Law strives for a government that is able to act. . . . 1. The constitution is aimed at ensuring that there is a government that is anchored in Parliament. The chancellor is elected by the Bundestag. In order to exercise effectively his or her mandate, the chancellor requires the continuous support of a majority in the Bundestag. Relying upon a free mandate, however, each member of parliament is entitled, and has a responsibility, to oversee the government and, within the framework of the competences of the Bundestag, to participate in shaping policy. The task of monitoring the majority falls especially, though by no means exclusively, to the opposition in the Bundestag. . . . First and foremost, in parliamentary debate, the opposition publicly monitors and criticizes the government’s actions and formulates alternatives. The majority from which the chancellor was elected typically will support “its” government and “its” chancellor in these open policy debates. Nevertheless, the parliamentary majority regularly will express criticism of the government’s political course within the parliamentary faction or the party. Thus, the parliamentary decision-making process has two distinct components. First, it consists of the relationship between the government and a parliamentary majority. Second, it benefits from the parliamentary minority’s opposition to the government. To a considerable degree that process is shaped and organized by the parliamentary parties in the Bundestag. . . . Th is does not preclude public criticism from members of parliament who belong to the government’s majority. It also does not preclude the possibility that members of parliament belonging to the government’s majority will act contrary to the will of the government. After all, members of parliament are subject only to their conscience. Still, the chancellor is especially reliant on collaboration—based on trust—with the majority’s leader or leaders so that he or she is assured that the majority in the Parliament is supportive. The leadership of the parliamentary parties will seek to ensure that, out of the parliamentarians’ freedom to be bound only by

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their conscience, an effective consensus emerges. That consensus should be compatible with the federal government’s program. In principle, the chancellor and his or her government require a dependable parliamentary majority. In this context “dependable” means that the chancellor is entitled to expect sufficient parliamentary support, in principle, for his or her political program. Whether the chancellor has that dependable support can be gauged from the outside only to a limited degree. Parliamentary and political working conditions might conceal from the public the real nature of the chancellor’s relationship with parliamentary groups. Doubts about whether the chancellor and his or her government still have a dependable parliamentary majority need not be fully and unambiguously resolved in order for concerns to exist. 2. If the chancellor is no longer able to secure the votes of the majority of the members of parliament, then this position is classified by the Basic Law as a political crisis that triggers special provisions of the Basic Law that assign responsibility for resolving the crisis to other constitutional organs. For example, with the approval of the president, it would be possible to appoint a minority chancellor, and a government can be deemed sufficiently capable of action to permit indispensable measures and laws to be adopted without the involvement of the Bundestag. . . . 3. The dissolution of the Bundestag is an interference with the freedom of a parliamentarian’s mandate that extends, by virtue of the constitution, for four years. Dissolution under Article 68 of the Basic Law is limited by the purpose of that provision. It is sufficient that the chancellor legitimately believes that the federal government’s ability to act in concert with a dependable parliamentary majority is impaired. [The Court considered the historical roots of the Basic Law’s preference for parliamentary stability, including the framers’ consciousness of the political and human rights trauma that resulted from the repeated dissolution of the Reichstag late in the Weimar era. The Basic Law’s framers, the Court summarized, reached the “conclusion that parliamentary elections held in rapid succession in times of economic and political crisis favor radical forces and may undermine general confidence in the adherence to rules of the process of forming the political will in a constitutional state.” To avoid the risks associated with parliamentary upheaval, the Court explained, the Basic Law provides that a situation of instability between the chancellor and the Bundestag can be ended only by the resignation of the chancellor or by a vote of confidence directed toward dissolution.] Accordingly, viewed in the light of the meaning of Article 68 of the Basic Law, it is appropriate for a chancellor to ask for a vote of confidence directed toward dissolution of the parliament if he or she faces policy setbacks and no longer enjoys the support of a majority in the Bundestag. The chancellor’s ability to act also is lost if he or she is forced to avoid setbacks in the Bundestag by moving away from substantial elements of a desired political program and is, instead, required to pursue different policies. The chancellor must act under the control and with the cooperation of the

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Bundestag and, to that extent, try to reach compromises on a daily basis. But the constitution does not view the government as an executive committee of parliament. A prerequisite for effective checks and balances is that the federal government also has a clear sphere of responsibility. The federal government is meant to be an independent policy-making constitutional organ that can be answerable to the Bundestag— and through the Bundestag, to the citizens—only if it has adequate independent scope for political action. . . . 4. The Federal Constitutional Court reviews the appropriate application of Article 68 of the Basic Law only to the limited extent anticipated by the constitution. [The Court noted that its role in reviewing an Article 68 dissolution process is least controversial and most circumscribed when the government’s loss of a dependable parliamentary majority is obvious, that is, when “a majority of the Bundestag behaves in an openly and persistently obstructive manner and clearly declares that it has no confidence in the chancellor, but equally avowedly cannot agree on the election of a new chancellor by the procedure in Article 67 of the Basic Law.” In these circumstances the situation of political instability required for the exercise of Article 68, in the sense of the government’s loss of a dependable parliamentary majority, is incontestable.] . . . Constitutional difficulties in the Court’s review of an Article 68 dissolution process arise when the chancellor concludes—before actually suffering policy setbacks in the Bundestag—that there is no assurance that his or her policies will be supported by a parliamentary majority. It is even more difficult to evaluate the chancellor’s conclusion if the paralyzing political effects of such a situation will only become apparent in the future. Such a “concealed” minority situation arises when, on the one hand, an organized parliamentary majority—the nominal majority required to elect a chancellor—declares its support for the chancellor and publically offers its political support, while, on the other hand, support for the chancellor’s political agenda is not effective enough to ensure the enactment of the central components of those policies. By their very nature, the erosion and the tacit withdrawal of parliamentary confidence are not capable of being presented and ascertained in court proceedings. Political disputes that have not been (legitimately) resolved in the open political process do not have to be disclosed to other constitutional organs, such as the Court. The chancellor’s estimation that he or she no longer is sufficiently able to implement his or her policies in the future is an evaluation that, in practical terms alone, cannot be reviewed unequivocally and completely by the Federal Constitutional Court. Such questions are not amenable to the usual procedural methods of obtaining information, at least not without damaging the political machinery. . . . [Confronted with this political limitation on its review of an exercise of Article 68, the Court adverted to the Basic Law’s assignment of constitutional oversight in this context to three successive constitutional organs—the chancellor, the

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Bundestag, and the federal president—each possessing the power to prevent the dissolution according to their own free political assessment. Th is, the Court concluded, helps to ensure the accuracy of claims that the federal government has lost its power to act in Parliament.] The chain of responsibility begins with the chancellor because, without his or her motion, there is no means of dissolving the Bundestag. The constitution allocates to the chancellor the sole competence to propose such a motion under Article 68 of the Basic Law. The Basic Law recognizes the elevated status of the office of federal chancellor within the system of parliamentary government in the Federal Republic of Germany. The Bundestag then decides whether, by refusing a vote of confidence, it will open the way to dissolution. There is no conceivable situation in which a chancellor could legally force Parliament, against its will, to participate in its own dissolution. Even if the governing coalition had only a narrow majority, the chancellor still could not rely on the opposition to help bring about Parliament’s dissolution. Indeed, the chancellor could not instruct cabinet ministers, who also are members of the Bundestag, to vote in a par tic u lar way on the confidence motion. The parliamentarian’s right to represent constituents without being bound by instructions takes precedence. . . . Finally, as the third constitutional organ, the president orders the dissolution according to a political assessment. In the present case, prior to announcing his decision, the president had carried out his responsibility to undertake an independent legal assessment of the requirements of Article 68 of the Basic Law. Even if, in so doing, the president is confi ned to nothing more than a review for manifest abuse by the chancellor or the Bundestag, the president’s word as a neutral authority still carries weight if the matter eventually is brought to the Court for judicial review. The Basic Law specifically inserts the president as an independent constitutional organ in this procedure. The president is competent to conduct a legal review and is qualified to set a political precedent by deciding to order or reject dissolution. The president has a number of means for conducting this legal review, including personal and confidential conversations that enable him or her to form a picture of whether the government’s ability to act in a manner that accords with the purpose of Article 68 of the Basic Law is endangered or already has been lost. The demanding mechanism of separation of powers applicable to dissolution under Article 68 of the Basic Law can be meaningfully deployed only if the Federal Constitutional Court respects the political assessment of the constitutional organs that acted on the matter before it became seized of the case. . . . . . . Due to the three-stage [political] decision-making process, the Federal Constitutional Court’s scope for review under Article 68 of the Basic Law is less extensive than in the spheres of legislation and statute enforcement. The Basic Law primarily relies on the system of mutual political control and political equilibrium between the supreme constitutional organs concerned, as established in Article 68 of the Basic

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Law. Only where standards for political conduct are laid down in constitutional law can the Federal Constitutional Court confront their infringement. [The Court credited a number of factors establishing the existence of “a situation of instability” in Chancellor Schröder’s case. Relying on Schröder’s speech to the Bundestag in support of the confidence vote, the Court cited his explanation that his Agenda 2010 reform package had created conflicts between Schröder’s Social Democrats and his government’s coalition partner, the Green Party. The Court noted that there were also calls for Schröder’s resignation from within his own party. The Court also brushed aside two of the complainants’ arguments. First, the Court dismissed the fact that leading Social Democrats had commented on the party’s continuing confidence in Schröder, concluding that these remarks referred to Schröder’s character and not his policies. Second, the Court found Schröder’s recent legislative successes to be unimportant because none of the legislation cited implicated the contentious Agenda 2010 policies. Justice Lübbe-Wolff concurred in the result (upholding the president’s dissolution order). But she wrote separately to argue that the presidential and judicial review of Article 68 no-confidence votes was both improper and ineffectual, resulting in a mere “facade of control.” Echoing the concerns of the American political question doctrine, she urged that parliamentary confidence in the chancellor is, by defi nition, a question only the Parliament can resolve. Justice Jentsch also wrote separately, but he dissented from the Court’s holding and reasoning in the case. First, he asserted a formalist critique, arguing that Chancellor Schröder had not actually lost his majority in the Parliament. He then raised concerns about the consequences for governing stability if such false no-confidence votes were accepted because they might establish a de facto right to parliamentary dissolution despite the Basic Law’s clear disapproval of such measures.]

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Impact of the Dissolution Cases. The Parliamentary Dissolution cases were extremely controversial. As former federal president Karl Carstens acknowledged—it was Carstens who dissolved the Parliament following Helmut Kohl’s false no-confidence vote—most German constitutional scholars questioned the constitutionality of the dissolution order.15 Th is view had not changed by the time the Federal Constitutional Court considered Chancellor Schröder’s no-confidence maneuver in 2005. Among the German constitutional law luminaries surveyed by the Frankfurter Allgemeine Zeitung in the weeks prior to Schröder’s no-confidence vote (including a number of former justices of the Constitutional Court) the overwhelming sentiment was against the constitutionality of the procedure.16 Yet, as others have pointed out, these cases are of unusual political delicacy. A decision against the Kohl dissolution order, one commentator wrote, might have “tarnished the credibility of the highest

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governmental organs,” including that of the president, and thus “damage[d] public confidence in the entire constitutional system.”17 The Parliamentary Dissolution cases took the form of declaratory judgments, providing the defi nitive understanding of the relevant constitutional law. The Court’s decisions have no direct effect on the challenged policies because, in Organstreit proceedings, the Court is authorized only to “interpret” the Basic Law (Article 93 (1)). The organs concerned are expected to revisit the matter and pursue a resolution in line with the Court’s ruling. Th is signals that the framers were conscious of the political sensitivity of such disputes and, accordingly, allocated limited authority to the Constitutional Court to intervene. On these terms, a decision against the validity of the dissolution orders in the Parliamentary Dissolution cases would not have caused the cancellation of the planned elections. Executive Privilege and the Flick Case. Major constitutional clashes between the Federal Republic’s highest organs occur infrequently; the Parliamentary Dissolution cases are exceptional. Some commentators have seen separation of powers more directly implicated in the Court’s exercise of judicial review. The Court’s invalidation of major social policies, together with the instructions and warnings it frequently hurls at the legislature, have led to charges that the Court has overstepped its proper bounds by encroaching on the powers of Parliament.18 Justice Wolfgang Hoff mann-Riem of the Federal Constitutional Court, however, has defended judicial review on separation of powers grounds, arguing that “[t]here had to be a third power to keep the fi rst two branches [legislature and executive] in line.”19 He went on to note the history of judicial review in Germany, including references to the failed Frankfurt Constitution of 1849 and, more prominently, its invocation by the Imperial Court of Justice (Reichsgericht) in the 1920s.20 Th is history, of course, would culminate in the establishment of the Constitutional Court under the Basic Law, a tribunal with “particularly wide-ranging” jurisdiction to review acts of the Parliament.21 Perhaps not surprisingly Gerhard Casper also took an approving view of the Court’s expansive role in his keynote address at the formal state celebration on the Federal Constitutional Court’s fi ft ieth anniversary.22 Still, sweeping exercise of judicial review does not present classic separation of powers issues in the mold of Youngstown Sheet & Tube Co. v. Sawyer (1952), or even Immigration and Naturalization Service v. Chadha (1983).23 One issue that has produced a significant comparable case in Germany is the claim of executive privilege. In United States v. Nixon (1974)24 the Supreme Court ruled that a federal court could direct the president to produce certain recordings and documents over his objection that such executive communications enjoyed an implied unqualified privilege of immunity. Similarly, in the Flick Case (1984),25 the Federal Constitutional Court ruled that the Federal Finance and Economics Ministry must deliver certain corporate records to a parliamentary committee investigating an exemption of dm 1.5 million in capital gains earned by the Flick Corporation from its sale of Daimler-Benz stock. The committee was looking into charges that influen-

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tial persons in Flick’s managerial hierarchy had “transferred” large sums of money to high civil servants and politicians in exchange for the tax exemption. The ministry refused to produce certain documents on the grounds that they contained trade and tax secrets, the confidentiality of which was required by the tax code. The Green and Social Democratic committee members petitioned the Court to order the full disclosure of the missing records. In investigating the activities of the federal government, the Court declared that a parliamentary committee’s right to take evidence under the terms of Article 44 (1) of the Basic Law includes the right to demand documentary evidence. Even as the Second Senate acknowledged the existence of a “core sphere of executive autonomy” in which “a range of initiatives, consultations, and activities is immune to parliamentary oversight,” it held that, in the circumstances of this case, the Ministry of Finance and Economics had violated Article 44 by failing to comply with the committee’s request. “Where the government is accountable to Parliament,” said the Court, “documentary disclosure is an integral part of parliamentary control.” The Court emphasized that Parliament’s right to documentary evidence of the kind sought here is an essential aspect of the principle of separated powers. Nevertheless, the Court unanimously noted that, if circumstances require, the legitimate concerns of the executive for confidentiality can be satisfied by the committee’s examination of the relevant records in closed session. The Court again endorsed the authority of the Parliament over the federal government, in the context of parliamentary investigations, in the Minority Rights in Investigative Committees Case (2002; no. 5.1).26 The Second Senate held that the minority in a parliamentary committee has a right to request the review of a point or points of evidence if they believe that these matters will prove to be critical to the committee’s fi ndings. While the case ostensibly pitted a parliamentary minority against a parliamentary majority, and thus avoided explicit separation of powers issues, the Court’s decision nonetheless prevented the executive from hiding behind its majority in the Bundestag in order to avoid parliamentary oversight.27 Th is represents a concession to the view, mentioned earlier and developed more fully in Chapter 5, that the opposition in Parliament rather than the opposition of Parliament now serves as the most effective check on the executive. A more direct example of the Court’s willingness to uphold Parliament’s prerogatives over the federal government was at stake in the Surveillance of Members of Parliament Case (2009).28 The Constitutional Court’s Second Senate reiterated Parliament’s right to seek and obtain information from the government, a right rooted as much in the democratic principles discussed in Chapter 5 (especially Article 38 (1) and Article 20 (2) of the Basic Law), as in notions of separation of powers. The Court ruled that the government had not raised adequate security concerns to justify its refusal to answer questions addressed to it by members of the Parliament. Legislative-Executive Relations and the Budget. The budgetary provisions of the Basic Law embody numerous checks and balances within and between various

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constitutional organs. The federal government must submit all tax and appropriation bills simultaneously to the Bundesrat and the Bundestag (Article 110 (3)), where legislative delay, pending further negotiation, is always possible. Expenditures in excess of budgetary appropriations require the consent of the federal minister of fi nance, who in turn may grant his or her consent only “in case of an unforeseen and compelling necessity” (Article 112). By the same token, any law that exceeds the budgetary limit proposed by the executive requires the federal government’s consent (Article 113 (1)); the federal government may even “require the Bundestag to postpone its vote on such bills” (Article 113 (1)). Should Parliament fail to approve a new budget, the federal government may, according to Article 111, continue to make the payments necessary to meet its contractual responsibilities, execute the laws, and maintain institutions established by law. In the Budget Control Case (1977)29 the Constitutional Court clarified the meaning of some of these provisions. After affi rming the paramount and exclusive authority of the legislature to establish budgetary policy, the Second Senate emphasized the duty of all constitutional organs to cooperate in the timely enactment of a budget bill. In passages that recall the principle of comity in the federal-state context, the Court announced that constitutional organs are obliged to consider each other’s interests in the exercise of their constitutional responsibilities. In the exercise of his or her authority under Article 112, the federal minister of fi nance must, if time permits, communicate and consult with the legislature for the purpose of securing its consent to an expenditure in excess of that which has been authorized. An “unforeseen and compelling necessity” within the meaning of this Article exists “only if additional expenditures have become so urgent that the draft ing and introduction of a supplementary budget or budget amendment or a postponement until the next fi scal year can no longer be viewed as a reasonable alternative after a judicious assessment of the situation.”30 The duty to communicate in these special situations also extends to the relationship between the federal finance minister and the federal government. According to the Court, the government infringes on the authority of the Parliament if, in the exercise of its special powers under Article 111, it has not received adequate information on the basis of which a decision regarding the ability of the legislature to meet the crisis might have been made.

judicial versus legislative authority The German legal system, unlike the Anglo-American, does not regard judicial decisions as sources of law. Separation of powers as understood by Montesquieu and followed in the Continental legal tradition implies a regime of positive law in which legislatures are the supreme lawmakers. The following propositions fairly well summarize the German and, for the most part, Continental theory of lawmaking and judicial authority: the focus of all lawmaking authority within the state is the

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sovereign legislature; law is a closed system of logically arranged and internally coherent rules; all legal disputes must be resolved by reference to such rules; courts of law, independent of the legislature, are the proper agencies for interpreting law; courts should interpret laws literally and in strict accordance with the legislature’s will; their function, therefore, is to administer the law as written. Th is model of the judicial role obviously exaggerates the difference between the function of courts in civil-law and common-law systems. Nevertheless, the model broadly identifies a frame of mind that helps to explain traditional German attitudes toward the development of the law and the judicial role—and the separation to be maintained between those powers. The Princess Soraya Case provided the Court with an opportunity to reflect anew on the role of courts in a constitutional democracy in which elected legislatures make the law. 4.2 Princess Soraya Case (1973) 34 BVerfGE 269 [Th is constitutional complaint arose out of a civil damage suit for defamation brought by the ex-wife of the Shah of Iran against the daily newspaper Die Welt and a freelance journalist. The complainants had published a fictitious interview with Princess Soraya in which intimate details of her private life were revealed. The German Civil Code (Bürgerliches Gesetzbuch), however, contains no specific provision for a civil damage award for an invasion of privacy. Such an intrusion instead constitutes a criminal offense. Tort recovery, however, is possible under § 823 of the Civil Code if the plaintiff can show injury to “life, body, health, freedom, property, or some other right.” The Bundesgerichtshof (Federal Court of Justice) eventually interpreted “some other right” to include the “right to personality.” But § 253 of the Civil Code bars monetary relief for nonpecuniary injuries. Recovery for such injuries is possible only “in cases provided by written law.” No law allowed recovery for the injury sustained by the plaintiff. The Federal Court of Justice nevertheless authorized recovery in the light of changing social conditions and the fundamental values of the Basic Law, one of these values being the right to protect one’s personality. The affi rmation of a money damage award was contested by the complainants in part on the ground that the courts had exceeded their proper authority under the constitution. The Constitutional Court disagreed.]

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Judgment of the Second Senate. . . . C. IV. 1. The judge is traditionally bound by the law. Th is is an inherent element of the principle of separation of powers and, thus, of the constitutional state principle. Article 20 of our Basic Law, however, has somewhat changed the traditional formulation by providing that the judge is bound by “law and justice.” The generally prevailing view

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implies the rejection of a narrow reliance upon formally enacted laws. The formulation chosen in Article 20 keeps us aware of the fact that although “law and justice” are generally coextensive, they may not always be so. Justice is not identical with the aggregate of the written laws. Under certain circumstances justice can exist beyond the positive norms enacted by the state—justice, which has its source in the constitutional legal order as a meaningful, all-embracing system, functions as a corrective of the written norms. The courts have the task of identifying justice and making it a legal reality in binding cases. The constitution does not restrict the judge to applying the language of legislative mandates to a par ticu lar case. Th is concept of the judicial function presupposes that no gaps in the written legal order exist—a condition that may be desirable in the interest of legal certainty but is unattainable in practice. The judge’s task is not confi ned to ascertaining and implementing legislative decisions. The judge may have to make a value judgment (an act which necessarily has volitional elements); that is, bring to light and implement in his or her decisions those value concepts that are inherent in the constitutional legal order, but are not, or not adequately, expressed in the language of the written laws. In performing this task, the judge must guard against arbitrariness; his or her decision must be based upon rational arguments. The judge must make it clear that the written law fails to perform its function of providing a just solution for the legal problem at hand. Where the written law fails, the judge’s decision fi lls the existing gap by using common sense and “general concepts of justice established by the community.” In principle, no one has questioned the judge’s power and duty to hand down “creative decisions” since the adoption of our present constitution. The highest courts have claimed this power from the beginning, and the Federal Constitutional Court has always recognized it. The legislature has expressly bestowed upon the highest federal courts sitting en banc [i.e., when all the senates of the federal high court in question convene to decide a case together] the task of “further development of the law.” In some areas of the law, such as labor law, this task has become particularly important because legislation has not kept up with the rapid pace of social development. The only remaining question is what limits to impose upon such creative judicial decision making. We must keep in mind that the judge is bound by written law, a principle that we cannot abandon if the constitutional state principle is to be maintained. We cannot reduce these limits to a formula equally applicable to all areas of the law and to all legal relationships. 2. For purposes of the present decision we confine the formulation of the issue to the area of private law. In this area the judge is confronted with a great codification, the Civil Code, which has been in force for over seventy years. Th is fact has dual significance. First, the judge’s freedom to creatively develop the law necessarily grows with the “aging of codifications,” with the increased distance in time between the enactment of the legislative mandate and the judge’s decision in an individual case. The interpretation of a written norm cannot always, or for an unlimited period, remain tied to the meaning the norm had at the time of its enactment. One must explore what reasonable function the norm initially served. The norm always remains in the context of the social

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conditions and sociopolitical views it affects. As these conditions and views change, the thrust of the norm can, and under certain circumstances must, be adjusted to such change. This is especially true when, between the time of enacting and implementing a law, conditions of life and popular views on legal matters have changed as radically as they have in the present century. The judge cannot, by simply pointing to the unchanged language of the written law, avoid the conflict that has arisen between the norm as written and a change in society’s substantive notions of justice. If the judge is not to be derelict in his or her duty to pronounce “justice,” legal norms must be implemented more freely. Second, as experience dictates, legislative reforms encounter particularly great difficulties and obstacles when they are intended to revise great bodies of legislation that shape the system and character of the entire legal order as does the codification of private law contained in the Civil Code. 3. The decisions presently being challenged concern an issue (i.e., the question of recoverability of money damages for injury to an intangible interest) that was already controversial when the preparatory work on the draft of the Civil Code was in progress. Criticism of the solution chosen by the legislature was immediate and has never ceased, although it did not, at that time, involve constitutional arguments. Critics referred to legal developments in other countries of the Western world that have taken a more liberal approach toward the possibility of recovering money damages for injuries to intangible interests. [The Court here cited several comparative studies.] Consequently, critics could point out that nowhere in the West did an unlawful act so frequently remain without civil sanctions as in Germany—and for the sole reason that the act had “only” caused nonphysical damages. Opponents characterized the rule as a “legislative failure” because it limited the recovery of money damages for injury to intangible interests to a few enumerated special cases—cases, moreover, selected with a certain lack of underlying concept. Criticism became even sharper after the courts, under the influence of “the constitution’s power to shape private law,” took the step of recognizing the general right of personality. The gap that existed in the available remedies for a violation of that right thus became apparent. Th is problem, the importance of which the framers could not anticipate when draft ing the Civil Code, now urgently demanded a solution responsive to a changed consciousness of legal rights and values that a new constitution influenced. One could not deduce this solution from the enumerative provision of § 253. The courts faced the question of whether to close this gap by the methods at their disposal or wait for legislative intervention. When the courts chose the fi rst alternative, they found support from the writings of influential legal scholars. For this reason legal scholars widely approved the relevant decisions of the Federal Court of Justice and of other courts from the very beginning. Th is fact illustrates that these decisions were consistent with generally recognized concepts of justice and were not regarded as intolerable restrictions upon freedom of opinion or freedom of the press. . . . To the extent that these decisions were criticized, the opponents directed their criticism less against the result the Federal Court of Justice reached than against

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the methodological and doctrinal considerations with which the courts justified the new approach. Insofar as this involves a question of methodology in private law, it is not within the Federal Constitutional Court’s province to determine the validity of the critics’ objections. But one should not overlook the fact that the majority of scholars specializing in private law apparently regard the reasoning of the courts as dogmatically unobjectionable. . . . The other alternative, to wait for legislative regulation, cannot be regarded as constitutionally mandated under the circumstances. It is true that the federal government twice has tried to bring about a legislative solution to the problem of protecting an individual’s personality right in the area of private law. But the bills drafted in 1959 and 1967 died early in the legislative process even though there was no indication of any legislative intention to perpetuate the status quo. One cannot blame the judge if, compelled to decide every case submitted and convinced that he or she cannot rely upon the uncertain future intervention of the legislature, he or she does not adhere to the literal meaning of the existing written law in a case where adherence would largely sacrifice justice. The method by which the Federal Court of Justice reached the decisions in question is constitutionally unobjectionable for a further reason: Th is method deviated from the written law only to the extent absolutely necessary to resolve the legal problem presented by the instant case. The Federal Court of Justice has not regarded § 253 in its entirety as no longer binding. Nor has it treated that provision as unconstitutional. . . . The court has left the enumerative principle expressed in § 253 intact, and has merely added one situation to the legislature’s own enumeration of situations in which money damages can be recovered for injury to intangible interests. The Federal Court of Justice found this addition to be compellingly justified by the evolution of social conditions as well as by a new law of higher rank: Articles 1 and 2 of the Basic Law. Thus, the Federal Court of Justice and other courts following its holdings have neither abandoned the system of the legal order nor have they exhibited an intention to go their own way in making policy. They have merely taken a further step in developing and concretizing basic ideas inherent in the legal order molded by the constitution, and they have done so by means that remain within this system. Therefore, the legal rule found by creative judicial decision is a legitimate part of the legal order, constituting a limitation upon the freedom of the press as a “general statute” within the meaning of Article 5 of the Basic Law. The rule’s purpose is to guarantee effective protection of the individual’s personality and dignity. These are interests at the center of the constitutional ordering of values. Protecting them in this way strengthens the effect of constitutionally protected fundamental rights in a par tic u lar area of the law. For these reasons, complainants’ constitutional arguments must fail.

∂

In 1997 the Court was again asked to consider whether the ordinary civil courts, including the Federal Court of Justice, had exceeded the narrowly construed judicial

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role by broadly interpreting the Civil Code to contemplate the characterization of unwanted children as a form of recoverable damages. In contrast to Princess Soraya, however, the objection to the Unwanted Child Case was that the ordinary court’s alleged overreaching led to the violation rather than the actualization of the core constitutional values of human dignity and personality. 4.3 Unwanted Child Case (1997) 96 BVerfGE 375 [Unwanted Child joined two tragic suits. The fi rst case involved a failed vasectomy procedure that led to an unplanned pregnancy. The second case involved the birth of a physically and mentally disabled child, the couple’s second child affected by these conditions. In the second of these cases, as part of their family planning, the parents sought the advice of medical specialists after the birth of their fi rst disabled child. The defendant doctor advised the couple that an inherited disability was extremely unlikely in their future pregnancies and that the couple should not forgo having more children on those grounds. In both cases the plaintiffs sought and were awarded, among other damages, the costs of supporting the children. The defendant doctors raised constitutional complaints against the awards in the Federal Constitutional Court. First, the defendants argued that the Civil Code did not provide for these damage awards and that the ordinary courts’ interpretation of the Civil Code to allow damages constituted a far-reaching form of progressive judicial development of the law in violation of separation of powers (Article 20 (2) and (3)). Second, the defendants argued that, even if the ordinary courts had acted within their power in interpreting the Civil Code to permit these damages, to do so would be to instrumentalize a human being in violation of the constitutional protections of human dignity and personality (Articles 1 and 2 of the Basic Law). The First Senate, in a 6–2 decision, found neither a violation of separation of powers nor basic rights in the decisions of the ordinary courts.]

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Judgment of the First Senate. . . . 2. The interpretation of these provisions by the civil courts does not exceed the limits of judicial competence arising from Article 20 (2) and (3) of the Basic Law. a. The interpretation of ordinary statute law, including the choice of the method to be used in this regard, is a matter for the ordinary courts other than the Federal Constitutional Court and is not to be examined for correctness by the latter. The Court is required only to ensure that the requirements of the Basic Law are adhered to in this regard. Article 20 (2) of the Basic Law gives expression to the principle of separation of powers. Even though this principle has not been formulated in the Basic Law in the

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sense of a strict separation of the functions and a monopolization of each individual function by a par ticu lar organ, in any event it precludes the courts from laying claim to powers that have been clearly conferred upon the legislature by the constitution. Under Article 20 (3) of the Basic Law the judiciary is bound by law and justice. It would be incompatible with that provision if the courts were to relinquish the role of a body applying laws and assume that of a legislative authority, thereby evading their obligation to be bound by law and justice. These constitutional principles do not preclude the courts from further developing the law. In view of the increased pace of change in social conditions and the legislator’s limited scope for reaction, and of the open wording of numerous statutes, the adaptation of prevailing law to changed conditions is one of the tasks of the judicial branch. Th is is especially true given the increasing gap in time between the adoption of a statutory requirement and judicial decisions in par tic u lar cases. The Court has declared this specifically with reference to the Civil Code. The courts may not, however, avoid the statute’s meaning and purpose as determined by the legislature. Their task is confi ned to giving effect to that meaning and purpose as reliably as possible under changed conditions. If the changed conditions are new types of possibilities for action and influence created by scientific and technological progress, the legal fi nding will, as a rule, consist of an expansion of the field of application of an interpretation that is already current. The legislature’s prerogative of setting the purpose of a statute will not normally be affected by this. As the development of law also affects ordinary law below the constitutional level, answering the question of whether and to what extent changed conditions necessitate new legal answers is likewise the responsibility of the ordinary courts. In principle, therefore, the Constitutional Court may not substitute its own assessment for that of the ordinary courts. From the point of view of Article 20 of the Basic Law, the Constitutional Court’s review is confi ned to evaluating whether, in developing the law, the ordinary court has respected the fundamental legislative decision and followed the recognized methods of interpretation. b. The challenged decisions meet this criterion both in respect of contractual liability for child maintenance and in respect of compensation for pain and suffering connected with a pregnancy and birth that arose against the woman’s will. With regard to contractual liability, the challenged decisions are based both on the conventional understanding of pecuniary damage, according to which, in principle, maintenance obligations may also be regarded as damage within the meaning of § 249 of the Civil Code, and on the ascertainment of damage according to the offsetting method. The Federal Court of Justice measures contractual liability against the purpose of the contract—prevention of procreation and birth of a matrimonial child, including for economic reasons—and restricts the protective scope of the contract to the spouses. The decisions are based upon the long-developed principles governing general contractual liability, which have been extended to new cases of medical professional activity. Whether a further development of the case law relating

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to damages in a different direction would have been possible does not need to be discussed here, since the Court is not required to examine questions of ordinary law concerning principles of civil law. In any case, it is in keeping with the law of medical practitioner’s liability, which has developed over many years, that, in cases of the present type, the civil law has sought appropriate solutions to reproductive medicine’s new possibilities of influence and control. It cannot be argued that the Federal Court of Justice, at the time it was establishing the extent of liability for damages, considered that restrictions were necessary. The Federal Court of Justice restricted, by means of judge-made law, the liability of the medical practitioner with regard to value judgments at the interface between damages-law and family-law issues. Th at does not call into question the method for ascertaining damages. Nor are the limits of judge-made application of the law to the facts exceeded insofar as the decisions award to the women with unwanted pregnancies compensation for pain and suffering in respect of the complaints connected with pregnancy and childbirth. The objection of an impermissible widening of § 253 of the Civil Code fails to take sufficient account of the fact that § 847 of the Civil Code expressly permits pecuniary compensation for nonmaterial damage. Insofar as the Federal Court of Justice assesses an unwanted pregnancy as an unauthorized material interference with physical integrity and, therefore, as a personal injury, it acts within the framework of conventional principles of civil law.

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Dynamics of Judicial Lawmaking. The Court emphasized its limited role in the review of the decisions of the ordinary courts, explaining that it is charged only with ensuring that constitutional standards are observed in the otherwise fully independent activities of the ordinary courts. The Court then reiterated the more dynamic view of the judiciary’s lawmaking competence that had been announced in Princess Soraya.31 Besides finding no constitutionally objectionable separation of powers issues in the case, the First Senate also found the ordinary courts’ consideration of children as a potential form of recoverable damage to be compatible with the basic rights protected by the constitution. The doctors’ right to property (Article 14 (1)) and occupational freedom (Article 12 (1)) were not implicated by the ordinary courts’ decisions. The Court also concluded that the highest fundamental value in the order created by the Basic Law, namely the protection of human dignity (Article 1 (1)), was not violated. The Court acknowledged the constitutional responsibility that befalls the ordinary courts as a result of the “horizontal effect” doctrine (Drittwirkung), pursuant to which the constitution’s “objective order of values” (as discussed in Chapter 2) extends to confl icts involving private parties. The Court then defi ned the scope of its review, limiting it to “mistakes in interpretation, which involve a fundamentally incorrect view of the meaning of a fundamental right, especially concerning the scope of its protection, and which also are of considerable weight in their material significance.”32 The Court’s majority concluded that awarding damages for unwanted children did not rise to this standard because the Federal Court of Justice’s jurisprudence focused on the costs of

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supporting an unplanned child and not on the commodification of the existence of the child itself. Th is characterization of damages, the Court noted, is common to the law governing a myriad of other private harms. The First Senate split 5–3 on whether its characterization of the human dignity of the unwanted children contradicted the Second Senate’s abortion jurisprudence. Had the majority concluded that the First Senate’s reasoning departed from that of the Second Senate, then the matter would have to be presented to the Court’s plenum (both senates sitting together as a panel of sixteen justices). Th is part of the First Senate’s judgment, and the Second Senate’s objection to the First Senate’s conclusion that there was no need to engage the plenum (the Second Senate’s objection was fi led in the form of an annex to Unwanted Child) are discussed in Chapter 1. Princess Soraya and Unwanted Child involved an attack on the judiciary for treading on the legislature’s near-exclusive competence over lawmaking. Having established that the Basic Law’s scheme of separation of powers permitted the judiciary to participate in the progressive development of the law, the Court also needed to determine whether the legislature is obliged to bring allegedly flawed legislation into harmony with the guarantees of the constitution. 4.4 Aircraft Noise Case (1981) 56 BVerfGE 54 [Pursuant to the Aircraft Noise Act of 1971, property owners complained about noise emanating from the Düsseldorf-Lohausen airport. When these actions brought them no relief, the property owners fi led constitutional complaints in the Federal Constitutional Court against the administrative authorities and the relevant statutes. The Court rejected complaints against the administrative authorities because the complainants had not yet exhausted all of their administrative remedies. The Court also rejected the complaints against the statute because the complainants had failed to fi le their complaints within one year of the statute’s enactment, as required by the Federal Constitutional Court Act. Nevertheless, the Court accepted the complaints to the extent that they alleged an unconstitutional omission on the part of the legislature. In this part of the case the complainants argued that, in enacting the noise control statute, the legislature failed to adequately consider the requirements of Article 2 (2) of the Basic Law, which guarantees the rights to life and the inviolability of one’s person. On this substantive question, however, the Court did not agree with the complainants.]

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Judgment of the First Senate. . . . B. II. . . . Until now, we have admitted complaints of this type (i.e., complaints against the legislature’s failure to consider constitutional requirements) only exceptionally

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and only when the complainant could invoke an explicit commitment in the Basic Law that essentially defi nes the content and extent of the legislature’s duty. Th is requirement is not fulfi lled here. . . . After the fi ling date for challenging the implementation of specific legislation has expired, a constitutional complaint arising out of an omission of the legislature may be considered only under the special aspect elaborated upon in more recent opinions; namely, that the legislature by its inaction might have violated a constitutional duty to amend a statute originally regarded as constitutional. Because of the great importance of noise abatement the Court has put aside these problems of justiciability so that it may clarify the issue of substantive law in this case. . . . C. I. 1. The constitutional standard under consideration is the right of physical integrity protected by Article 2 (2). Our accepted jurisprudence does not merely protect the individual rights of citizens against governmental intrusion. Rather, governmental bodies have the duty, based upon the objective legal content of Article 2 (2), to shield and promote the legal interests therein enumerated. In par ticu lar, they must protect these interests from unlawful infringement by others. . . . 2. . . . In recent opinions the Court has repeatedly explained that the legislature may be constitutionally required to amend a statute even though it was regarded as constitutional when originally enacted. In the Kalkar I Case the Court declared: “If the legislature has made a decision the basis of which has become questionable due to new, originally unanticipated developments, then it might be obliged by the constitution to examine whether or not the original decision is to be upheld under the changed circumstances. The duty to remedy this defect may be considered primarily in areas relating to basic rights if the government, by creating licensing requirements and granting licenses, has accepted responsibility for the possible impairment of basic rights. . . .” It is possible to argue that the legislature has a duty to amend the original noise control statute because the frequency of fl ights has rapidly increased since the early 1960s [when the law was enacted] and, in the meantime, the transition to jet-powered aircraft has seriously aggravated the noise situation. In addition, we agree with the complainants’ view that, in the light of these developments, the legislature may not confi ne itself to limiting the acceptable noise level to that which the current technical state of the art makes unavoidable. . . . In a legal order oriented toward the individual, the governing principle must be an assessment of what harm or danger the individual can be expected to bear after weighing competing interests. . . . II. 1. Contrary to the opinion of the complainant, the legislature has not violated any protective duty resulting from Article 2 (2) by failing to amend the statute. . . . Th is result is based on the fact that the Court, within the framework of a constitutional complaint of the type presented here, may intervene only if the legislature has manifestly violated its duty. In the Abortion I Case, and again in the Schleyer Kidnapping Case, the Court emphasized that governmental bodies (legislative and executive branches) are responsible for the form and manner in which they fulfi ll the government’s duty under

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Article 2 (2). They must decide what measures are necessary and proper for carry ing out this duty. . . . Th is limit on constitutional review seems necessary because deciding how the state is to implement its affi rmative duty to act and protect the constitution’s objective values through active legislative measures is a highly complex issue. The state’s duty to act is acknowledged here in order to ensure the citizen’s enjoyment of the basic rights secured by the constitution. Various solutions are possible depending on the assessment of the facts, the concrete legislative aims, and the suitability of the imaginable ways and means. A policy decision in this area, which often demands compromise, is subject to the principles of separation of powers and parliamentary democracy. . . . Normally, the Court may review such a decision only up to a certain point, unless legal interests of the highest importance are at stake. These considerations are of even greater weight if the issue concerns not just whether the legislature has violated its affi rmative duty to protect objective values, but whether it did so by failing to amend an existing law. The Court can find such an omission to be unconstitutional only if two factors exist. First, it must be evident that an originally valid statute is now defective because of changing circumstances. Second, notwithstanding this, the legislature has either done nothing or has taken obviously erroneous measures to remedy the situation. In the realm of aircraft noise abatement one may not disregard the fact that no reliable scientific findings are available concerning the limits of reasonable aircraft noise burdens. Additionally, because international air traffic is so complex, the legislature must have sufficient flexibility . . . to pass legislation on this matter. 2. Considering this standard of review, we cannot conclude that the legislature has manifestly neglected its duty to protect citizens against noxious aircraft noise by its failure to amend existing legislation. The measures taken since the early 1970s to carry out the statute defy such a conclusion.

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Klass Case. In a politically charged case decided three years before Princess Soraya, the Court also considered the relationship between the legislature and the judiciary. The Klass Case (1970) involved an amendment to the Basic Law that would permit wiretaps and other interferences with private letters and telephone conversations when necessary to “protect the free democratic basic order or the existence or security of the Federation or of a Land.” The amendment (Article 10 (2)) further stipulated “that recourse to the courts shall be replaced by a review of the case by agencies and auxiliary agencies appointed by the legislature.” Separation of powers was one of the grounds on which the amendment’s validity was questioned.33 The Court answered these criticisms as follows: Nor does substitution of recourse to the law by some other judicial control as provided for in Article 10 (2) [2] violate the principle of separation of powers. . . . Th is principle does not demand a strict separation of powers. In exceptional cases legislative functions may be exercised by executive and administrative bodies, or executive and administrative functions may be exercised by legislative bodies. In exceptional

Separ ation of Powers 175 cases the principle of separation of powers also permits legal protection against acts of the executive to be furnished not by courts but by independent institutions that have been appointed or established by Parliament and that operate within the framework of the executive department. The essential point is that the rationale for separation of powers, namely reciprocal restriction and control of state power, is still fulfi lled.34

delegation of legislative power The Basic Law establishes the primacy of the legislature in the making of law. Legislative authority may be delegated, but the principle of “legality of administration” (Gesetzmäβigkeit der Verwaltung) puts sharp limits on such delegations. Article 80 (1), the Basic Law’s main delegation clause, authorizes national and state executive branch officials to issue regulations (Rechtsverordnungen) having the force of law, but “the content, purpose, and scope of the authority conferred shall be specified in the law.” In addition, the legal basis of any such authorization must appear in the regulation, and “if the law provides that such authority may be further delegated, such subdelegation shall be effected by statutory instrument.” As one commentary on the Basic Law notes, Article 80 represents a “conscious departure” from the Weimar-era practice of conferring virtually unlimited discretion on executive officials to carry out the will of the lawmaker.35 The Basic Law thus imposes a high standard of rationality and accountability on the administrative process.36 4.5 Emergency Price Control Case (1958) 8 BVerfGE 274 [Sections 1 and 2 of the Price Control Act authorized the federal director of economic administration as well as the directors of the highest state administrative agencies to set prices, rents, and fees when market conditions in a given area are deplorable. To implement these price controls § 2 empowers the director of the competent administrative agency to issue administrative orders. Five citizens fi led objections to orders that forced them to use statutory prices as the basis for the rents and fees they charged to their customers. Besides challenging the administrative orders, these citizens also raised a facial challenge to the constitutionality of § 2. They contended that the provision was incompatible with Article 80 of the Basic Law because it failed to adequately define the delegation of authority according to content, subject matter, purpose, and scope. Confronted with an issue of constitutional magnitude, the courts involved set aside judicial proceedings and submitted the question to the Constitutional Court pursuant to its concrete judicial review jurisdiction. In holding § 2 of the Price Act constitutional, the Court reaffirmed the constitutional principles embodied in Article 80.]

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Judgment of the Second Senate. . . . C. VI. 2. The basic tenets of the constitutional state principle require that an empowering statute adequately limit and defi ne executive authorization to issue burdensome administrative orders according to content, subject matter, purpose, and scope . . . so that official action will be comprehensible and to a certain extent predictable for the citizen. Th is result follows specifically from the principle that an administrative agency must function lawfully, which requires . . . a limited and narrowly defi ned executive authorization for the issuance of burdensome administrative orders. Its purpose is to make encroachments by the state as predictable as possible. The statute must regulate the agency’s activity and may not confi ne itself to articulating general principles. Limiting the encroaching agency through solely procedural principles also will not suffice. A “vague blanket provision” that would permit the executive branch to determine in detail the limits of the individual’s freedom confl icts with the principle that an administrative agency must function according to law. Further, the principle of separation of powers dictates this result. If a statute does not adequately define executive powers, then the executive branch will no longer implement the law and act within legislative guidelines but will substitute its own decisions for those of the legislature. Th is violates the principle of the separation of powers. Finally, the constitutional state principle supports this holding. Th is principle requires the most comprehensive judicial protection possible from state encroachments upon the legal sphere of the individual, as guaranteed today by Article 19 (4) of the Basic Law. The judiciary’s mandate to ensure a citizen’s legal protection against encroachment on his or her rights by the state can be carried out only if the courts can review the norm’s implementation by the executive agency. For this reason as well the statute must adequately defi ne the authorization for encroachment.

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Limits of Administrative Lawmaking. Persons harmed by any governmental authority may challenge the legality of the act in question before an administrative tribunal unless federal legislation has assigned a given sphere of public law to another set of specialized (e.g., social, labor, or fi nance) courts. Administrative courts also hear disputes between governmental agencies over their respective obligations under public law. A typical administrative law case involves a complaint against a licensing agency for canceling, or failing or refusing to grant, an individual’s or legal entity’s permit to carry on some trade or activity regulated by public law. If the agency has exceeded the limits of its discretion or otherwise acted illegally, the courts may annul such action. Ordinarily such cases do not raise constitutional questions. The impact of the Basic Law on administrative law is nevertheless substantial.37 First, courts may nullify administrative regulations and executive decrees if officials abuse their discretion or their acts violate fundamental law. Second, and particularly

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within the sphere of licensing, the Court has tended “to extrapolate standards for the shaping of procedural law from the constitutional rights of individuals.”38 For example, in the Mülheim-Kärlich Case (1979) the Court found the peaceful use of nuclear energy constitutional in the face of an objection that nuclear power threatens constitutional rights to life and bodily inviolability (Article 2 (2)).39 The Court, however, cautioned that certain kinds of formalities, such as public participation in nuclear power licensing procedures, may be necessary to protect basic rights and liberties. Finally, Article 100 (1) of the Basic Law requires courts to submit their doubts about the validity of a statutory delegation to the Court for resolution. The Kalkar I Case arose when the Administrative Court of Appeals of North Rhine–Westphalia referred the Atomic Energy Act to the Court for a decision on the validity of its provisions delegating authority to administrative officials. Much of the opinion, which is featured below, deals with whether the statute adequately specified the technical and scientific standards to be used in licensing nuclear power plants. 4.6 Kalkar I Case (1978) 49 BVerfGE 89 [Section 7 (1) of the Atomic Energy Act provides that any person who constructs or operates an installation for the production or fission of nuclear fuel requires a license. Authorities may grant such a license under § 7 (2) only if the licensee “takes every necessary precaution in the light of existing scientific knowledge and technology to prevent damage resulting from the construction and operation of the installation.” On 18 December 1972 licensing authorities granted a fi rst partial construction permit for the SNR-300 fast-breeder nuclear power station in Kalkar. The owner of a farm within a mile of the station sued to have the reactor’s license revoked because the plant failed to follow certain administrative procedures under § 7 (2). A local administrative court denied his claim and rejected the argument that these procedural omissions—resulting in the permit to build the plant—compromised his rights to life and personality. In view of the awesome implications for public safety and the rights of citizens involved in the production and recycling of plutonium, the North Rhine–Westphalia Administrative Court felt that Parliament had a duty to establish more concrete criteria for the construction of fast-breeder reactors than those provided in the Atomic Energy Act. The court of appeals referred this question to the Federal Constitutional Court pursuant to its concrete judicial review jurisdiction. The Constitutional Court found no constitutional infi rmity.]

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Judgment of the Second Senate. . . . B. II. Section 7 (1) and (2) of the Atomic Energy Act are compatible with the Basic Law.

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I. a. The Basic Law does not confer on Parliament total priority in fundamental decision making. By insisting upon separation of powers it imposes limits on Parliament’s authority. The Basic Law relegates far-reaching decisions, particularly those of a political nature, to other supreme constitutional organs. Examples include the chancellor’s power to determine general policy guidelines (Article 65 (1)) and the president’s authority to dissolve the Bundestag (Article 68) and declare a state of legislative emergency (Article 81). . . . The Bundestag may check the exercise of such powers by electing a new chancellor and bringing down the federal government. . . . A monistic theory of power, incorrectly deduced from the principle of democracy, which would confer on the Parliament a monopoly over decision making must not undermine the concrete distribution and balance of political power guaranteed by the Basic Law. Other institutions and organs of political authority do not lack democratic legitimacy merely because parliamentary delegates are the only officials elected by direct popu lar vote. Legislative, executive, and judicial organs derive their institutional and functional democratic legitimacy from Article 20 (2) of the Basic Law. . . . Nevertheless, we are able to deduce from the principle of parliamentary democracy that Parliament and its decisions do have priority vis-à-vis other branches of government. We hold this to be a principle of interpretation transcending all concrete allocations of authority. . . . b. The case at bar deals with legislation, an area where the Basic Law specifically allocates authority to the Bundestag. It follows from the principle of legality that executive acts that significantly affect the freedom and equality of citizens must be based on law. 2. Section 7 (1) and (2) of the Atomic Energy Act do not violate this principle. . . . a. Separation of powers is not specifically mentioned in the constitution. Its validity, however, follows from the terms of Article 20 (3). The interpretation of this principle has undergone change in recent years, especially in the light of its democratic component. Today our established jurisprudence makes clear that the legislature is obligated . . . to make all crucial decisions in fundamental normative areas, especially in those cases where basic rights become subject to governmental regulation. . . . To determine those areas in which governmental acts require a basis in law, one must consider the subject matter and “intensity” of the planned or enacted regulation, particularly taking into account the fundamental rights granted by the Basic Law. One must also use similar criteria to judge whether the legislature has established the essential legal standards for the matter to be regulated as the constitutional requirement of a specific enactment mandates and has not left this for the administration to determine. The constitutional requirement of a specific enactment (Gesetzesvorbehalt) means that only the legislature may enact statutory restraints upon fundamental rights contained in the constitution where the language of the constitution expressly provides for such restraints. b. The normative decision whether to permit the peaceful uses of nuclear energy in the Federal Republic of Germany is a fundamental and essential decision in the

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sense that a specific enactment is constitutionally required. Th is is so because of [the decision’s] far-reaching effects on citizens, in par tic u lar on their sphere of freedom and equality, as well as on their general living conditions; and because of the kind and intensity of regulation necessarily connected with it. Only the legislature has the authority to make such a decision. The same applies to regulations fi xing the licensing of nuclear installations within the meaning of § 7 (1) of the Atomic Energy Act. . . . The legislature has decided to promote the peaceful use of nuclear energy by means of a formally enacted law—the Atomic Energy Act. This decision includes fastbreeder reactors. . . . Contrary to the opinion of the courts that earlier ruled in this case, the legislature was not bound to include in the Act a provision declaring that it was ready to accept the risks possibly resulting from such a reactor. The legislature bears the political responsibility for the consequences of its decision. . . . . . . In direct relation to whether this norm is unconstitutional because it is too vague and thus fails to meet the substantive constitutional requirement of specific enactment is the question whether § 7 of the Atomic Energy Act contains essentials precise enough to permit the licensing of the fast breeder. We must answer in the affi rmative. Section 7 (1) and (2) regulate all essential and fundamental questions of the licensing procedure and fi x with sufficient precision the requirements for the construction, operation, and modification of nuclear installations, including fast-breeder reactors. c. . . . If the basis on which the legislature relied when enacting policy is called into question by new, unanticipated developments, then the constitution may oblige the legislature to reexamine whether the original policy is to be upheld in the light of changed circumstances. . . . It is constitutionally unobjectionable that the legislature has not yet examined the fast-breeder technology and its possible consequences—for instance, the issue of atomic waste disposal. As the federal government has always emphasized, the reactor to be built in Kalkar is only a prototype. The construction and operation of this reactor do not mean a decision to use it on a large industrial scale. The reactor’s purpose is rather to help to prepare for the decision, which the legislature will make in the 1990s at the earliest. We cannot now foresee whether the court that earlier ruled in this case is correct in assuming that the industrial use of the fast breeder may lead to dangerous conditions and consequences. Suitable means may be available in the future to counter the dangers to individual freedoms that the ordinary court fears. Taking evidence on these questions would serve little purpose since these issues are mainly related to possible political developments of the most general nature. Only the future will show whether this decision to implement breeder technology will be useful or harmful. In this necessarily uncertain situation the legislature and the government primarily have the political responsibility for making what they consider pragmatic decisions within the confi nes of their respective authority. Under these circumstances it is not the function of the courts to substitute their judgment for

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that of the political branches when assessing the situation because legal criteria for such decisions do not exist. Where reasonable doubts are possible—whether or not the dangers feared by the court that earlier ruled on the case will materialize—all organs of the state, and thus the legislature as well, have the constitutional duty to make every effort to recognize possible dangers in time and to counter them by constitutional means. If, in the future, some probability of these dangers exists—in the judgment of the . . . responsible political organs—the legislature would again have a duty to act. . . . 3. Section 7 (1) and (2) of the Atomic Energy Act do not violate the constitutional requirement that laws be drafted with sufficient precision. . . . b. . . . The provisions of the statute in question make use of undefi ned legal terms such as “reliability” and “necessary knowledge” (unbestimmte Rechtsbegriffe)—terms that are not precisely defi ned. The analysis centers on whether such terms should be void on account of their vagueness. The use of these terms is constitutionally permissible. The degree of precision required depends on the nature of the matter to be regulated and the intensity of the regulation. . . . In any case, such terminology has been traditionally subject to interpretation by the legislature, executive, and judiciary. . . . Section 7 (2) [3] is also sufficiently precise. Th is provision relates to the field of technical safety. Any legislative regulation of this field . . . must confront the par ticular difficulties that reside in the nature of the matter to be regulated. When fi xing norms that keep abreast of scientific and technological developments the legislature has a number of options available for making these developments legally binding. These norms have one common feature: by using undefi ned legal terms the legislature shift s the difficulties involved in giving these terms specific, binding content and adjusting them to scientific and technological developments to the administrative and—should litigation arise—the judiciary. Thus, administrative authorities and courts have to make up the “regulatory deficit” incurred by the legislature. The law may, for example, refer to “generally recognized technical rules.” In this case, agencies and courts may limit themselves to ascertaining the majority opinion among practicing technicians when deciding whether or not the technical work materials may be brought into the stream of commerce. Th is criterion has the disadvantage of lagging behind developing technology. One way to avoid this drawback is to refer instead to the “state of the art,” which does not require general recognition and practical confi rmation but makes it more difficult for courts and agencies to establish and assess relevant facts. Section 7 (2) [3] of the Atomic Energy Act goes a step further by referring to “existing scientific knowledge,” which requires the legislature to make even stronger efforts to keep regulations abreast of scientific and technological developments. It is within the legislature’s discretion to use either undefi ned legal terms or precise terminology. Good reasons support the use of undefi ned legal terms in § 7 (2) [3]. The wording of § 7 (2) [3] of the Atomic Energy Act, which is open to future

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developments, serves as a dynamic protection of fundamental rights. It furthers the protective purpose of § 1 (2) of the Atomic Energy Act in the best possible way currently available. To fi x a safety standard by establishing rigid rules, if that is even possible, would impede rather than promote technical development and adequate safeguards for fundamental rights. Setting up rigid rules would be regression at the expense of safety. We must tolerate some uncertainty of the law, at least where the legislature would otherwise be forced to adopt impractical regulations or to refrain from any regulation at all. Both alternatives would eventually impair the protection of fundamental rights. . . . These considerations apply equally to the so-called residual risk that must be considered in the context of § 7 (2) [3]. While this provision does not allow for residual damage resulting from the construction or operation of a nuclear installation, it permits licensing even if the probability of future damage cannot be precluded with absolute certainty. The law leaves it to the executive to determine . . . the kind and extent of the risk that may or may not be accepted. With regard to the vagueness doctrine, which has the primary constitutional function of defi ning when the executive is to act vis-à-vis the legislature, § 7 (2) does not violate the constitution— especially in the light of the subject matter to be regulated. It follows from the protective purpose of § 1 (2) and (3), as well as § 7 (2) and other provisions of the Atomic Energy Act, that the legislature wants all damage, danger, and risks specific to the installation and operation of the reactor to be considered and that the probability of an accident, which may be accepted when licensing an installation, must be as low as possible. Indeed, this probability must be lower as the type and consequences of harm become more serious. By referring to existing scientific knowledge and technology, the law forces the executive agency to observe the principle of the best possible protection against dangers and risks. The legislature was not bound, however, to defi ne with precision the possible kinds and factors of risk. . . . The assessment of risks resulting from a nuclear installation depends upon a multitude of circumstances, many of which are constantly evolving. . . . In the interest of flexible protection of life and property the executive must assess and constantly adjust safety measures—a task it is better equipped to perform than the legislature. The unavoidable degree of uncertainty in assessing such risks resides in the nature of human knowledge.

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The Citation Requirement (Zitiergebot). Emergency Price Control and Kalkar I are primarily concerned with the requirement, set forth in Article 80 (1) [2] of the Basic Law, that Parliament clearly delineate the content, purpose, and scope of delegated regulatory competence in the relevant authorization statute. Article 80 (1) [3] imposes the citation requirement: “Each statutory instrument shall contain a statement of its legal basis.” The Court strictly enforced this provision in the Chicken Regulation Case featured below.

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A 1971 amendment of the Basic Law expanded the federation’s concurrent legislative authority to include “the protection of animals” (Article 74 (20)).40 Pursuant to that authority the Bundestag enacted the Animal Protection Act (Tierschutzgesetz) with the purpose of regulating industrial animal husbandry through statutes or regulations. A 1986 amendment to the Animal Protection Act elevated the legislative scheme’s concern for animal welfare and mandated that this new perspective be implemented through regulations. In par tic u lar, industrial animal husbandry was placed under statutory commands to provide animals with feeding and freedom-of-movement conditions appropriate to their breed and freedom from pain and suffering (Animal Protection Act § 2). The federal minister for food, agriculture, and forests (now the federal minister for food, consumer protection, and agriculture) was empowered under the law to specify the details of the required animal protection through regulations (Animal Protection Act § 2a). An Animal Protection Commission was created to advise the minister (Animal Protection Act § 16b). At the same time, animal protection became a concern of European policy makers. Under the auspices of the Council of Europe, the European Convention for the Protection of Animals Kept for Farming Purposes was concluded in 1976. Germany ratified the Convention in 1978. The Bundestag legislation giving domestic force to the Convention empowered the federal minister for food, agriculture, and forests to implement the recommendations of the Convention’s Standing Committee through the promulgation of regulations. In 1986 the Council of the European Economic Community also issued Directive 86/113, which established minimum standards for the protection of laying-hens kept in cages (although the European Court of Justice would invalidate the directive two years later). Against the backdrop of this domestic and European policy activity, the federal minister for food, agriculture, and forests eventually succeeded in issuing the 1987 Regulation for Keeping Chickens (Hennenhaltungsverordnung), which defi ned the conditions in which laying-hens should be kept, especially ensuring minimum standards for feeding and freedom of movement. The preamble to the Regulation for Keeping Chickens identifies § 2a and § 16b of the Animal Protection Act as the regulation’s legal basis. But, in the long process leading to the promulgation of the regulation, the federal minister for food, agriculture, and forests also had invoked the Eu ropean Convention and the Council Directive as justifications for the regulatory regime. 4.7 Chicken Regulation Case (1999) 101 BVerfGE 1 [In an abstract judicial review proceeding before the Federal Constitutional Court, North Rhine–Westphalia alleged that the Regulation for Keeping Chickens was incompatible with the Basic Law chiefly because it had run afoul of the constitution’s terms for the delegation of legislative competence. The

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Second Senate agreed and focused, inter alia, on the citation requirement Zitievgebot of Article 80 (1) [3].]

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Judgment of the Second Senate. . . . D. The Regulation on Keeping Chickens—insofar as it is still amenable to review under constitutional law following the fi ndings in section C of this decision—is unconstitutional in its entirety on account of its breach of the citation requirement laid down in Article 80 (1) [3] of the Basic Law, and must therefore be declared void pursuant to § 78 (1) [1] of the Federal Constitutional Court Act. I. According to the third sentence of Article 80 (1) of the Basic Law, a regulation pursuant to federal legislation is to contain a statement of its legal basis. Th is requires not only the enabling statute as such, but also the individual enabling provision of that statute, to be specified in the regulation. If the issuer of the regulation intends, according to his or her clearly expressed will, to make use of several bases of authority, he or she must state these in full in the regulation. 1. Within the system of separation of powers under the Basic Law the citation requirement serves the purpose of rendering the delegation of legislative competence to the executive in its statutory bases understandable and reviewable. Under the democratic and constitutional state principles, established by the Basic Law, legislation by the executive requires special authorization from the legislature. Article 80 (1) of the Basic Law lays down the requirements that these authorizations, and the regulations issued on the basis of these authorizations, must satisfy. The citation requirement in Article 80 (1) [3] of the Basic Law is intended not only to make the statutory basis of authority identifiable and thus traceable. It is also designed to make it possible to establish whether the issuer of the regulation actually intended to make use of any statutory authorization at all when enacting the provisions. The executive must, by indicating its basis of authority, ascertain the legislative program assigned to it and remain confi ned to that program. It is, therefore, not only a matter of whether the executive is actually operating within the limits of its delegated legislative power; rather, the legislative authority invoked must result specifically from the provisions that the executive itself has cited. In addition, Article 80 (1) [3] of the Basic Law serves to disclose the scope of authority to the addressee of the regulation. Th is is intended to make it possible for the addressee to check whether the regulation is in accordance with the enabling statute. Article 80 (1) [3] of the Basic Law lays down in that respect a requirement as to form based on the constitutional state principle, which is intended to make it easier to verify whether, in issuing the regulation, the issuer has remained within the scope of the authority conferred. 2. In light of the foregoing, a regulation that is based on several enabling provisions must cite these in full and, where there is overlapping content between several enabling provisions, they must be indicated together. There is no need to indicate in detail for each provision of the regulation the discrete authorizations on which it is based.

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3. The citation requirement, above all, requires the individual provision of the statute, which contains the authority, to be specified. Only in this way can it be ensured that the addressees of a regulation are able to identify its legal bases and verify their observance by the issuer of the regulation. 4. A failure to have regard to the citation requirement violates an “indispensable element of democracy based on the constitutional state principle.” Such a defect, therefore, renders the regulation void. II. 1. The Regulation on Keeping Chickens does not meet these requirements and is therefore void. In its preamble, the challenged regulation mentions as a basis of authority only § 2a (1) in conjunction with § 16b (1) [2] of the Animal Protection Act. Article 2 of the Law of 25 January 1978 ratifying the European Convention of 10 March 1976 on the Protection of Animals Kept for Farming Purposes in conjunction with the Recommendation of the Standing Committee of 21 November 1986 for the keeping of laying-hens of the species Gallus gallus, which, pursuant to Article 9 (3) of the European Convention, has become effective for Germany and must therefore be implemented at the national level, is not mentioned, although the Regulation is also based on it. It is true that neither Article 2 of the ratifying law nor Article 9 of the European Convention stipulates that the Recommendation must be implemented by a regulation having the force of law. On the contrary, Article 16 of the Recommendation leaves it up to each contracting party to implement the Recommendation by whatever method it sees fit. But, in the present case, the Federal Minister for Food, Agriculture, and Forestry also sought, by means of the Regulation on Keeping Chickens, to implement the most important elements of the aforementioned Recommendation. That is undoubtedly clear from the explanatory memorandum attached to the draft Regulation. If, according to the clearly expressed will of the issuer of the regulation, the challenged regulation also had that objective, then, in accordance with the meaning and purpose of Article 80 (1) [3] of the Basic Law, the relevant basis of authority for this had to be specified in the text of the regulation. The issuer of a regulation is not free to specify only one of several enabling provisions on which the regulation is based. The issuer of the regulation does not fully demonstrate legislative authority unless he or she indicates the other enabling provisions. By not doing so, the issuer prevents or makes difficult a review as to whether the limits of his or her power to legislate have been observed. It is not sufficient that the additional enabling provision was specified in the official explanatory memorandum to the Regulation on Keeping Chickens. Disclosure in such documents, the purpose of which is not directly legislative, does not create the publicity required by the constitutional state principle. 2. In contrast, the omission of any reference to § 21a of the Animal Protection Act does not constitute a breach of the citation requirement in Article 80 (1) [3] of the Basic Law. Section 21a of the Animal Protection Act is not, in itself, an enabling provision, for the simple reason that it does not specify any addressees (Article 80 (1) [1] of the Basic Law). Rather, it makes clear only that authorizations conferred elsewhere may also serve to implement legal acts of the European Community.

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Dynamic Interpretation and Legislative Facts. The Kalkar I Case, discussed earlier, implies a more functionalist approach to delegation and separation of powers than does Chicken Regulation. The formalism of the latter, however, is more in keeping with the Court’s early delegation jurisprudence.41 Kalkar I represents a new development in German constitutional law, standing for what might be called a dynamic interpretation of basic rights. Nuclear technology, the Court suggested, is a fast-developing field with life-threatening implications; the legislature has a duty, therefore, to keep abreast of such developments so that it may take whatever mandatory mea sures are necessary to avoid the threat to a basic right. Kalkar I grants to the legislature a certain amount of prognostic leeway (Prognosespielraum) in situations in which it cannot accurately predict the results of a par tic u lar legal regulation. But the legislature must continue to monitor the situation to ensure that the regulation does not threaten vested rights under the Basic Law. The Court’s approach in Kalkar I is one way of reconciling tensions between judicial review and majority rule. While recognizing the political character of legislative fact fi nding and the primacy of the legislature’s competence in given subject areas, Kalkar I holds out the strong possibility of judicial intervention if, in the Court’s independent judgment, newly accumulated facts should seriously challenge the original prognosis. The degree of judicial scrutiny in such cases depends on the particularity with which Parliament examines the factual basis of a regulatory plan of action.42 If this process is exacting, and if Parliament identifies the facts on the basis of which it enacts law, taking care to protect constitutional interests, then the Court will not invalidate the regulatory scheme merely because the legislature did not accurately predict the result of its action. Still, in this situation, in which regulation threatens constitutional interests, the constitutional state principle requires continuing parliamentary vigilance. The seeds of the prognosis doctrine took root in some early equal protection cases. For example, in the Widower’s Pension I Case (1963)43 the Court sustained a provision of the Social Security Act conferring benefits on a widower only if his wife had been primarily responsible for the family’s support, a limitation that did not apply to a widow. Years later, however, married women constituted a significant portion of the labor force, just as they had obtained greater equality under law within the marital relationship. By 1975, when the widower’s provision was once again challenged, the Court instructed the legislature to amend the statute in the light of these changing social conditions.44 Returning to Kalkar I, we see that this decision, like that in the Mülheim-Kärlich Case (1979),45 is a part of the long-running political controversy in Germany over the use of nuclear energy (as discussed in Chapter 3). At times, as the Kalkar II (1990; no. 3.12) and Biblis-A (2002)46 cases show, the battle has taken the form of a federalism dispute. Yet the principles of federalism and separation of powers are intertwined in German constitutional law,47 as Kalkar I and Mülheim-Kärlich demonstrate. These cases chiefly address the separation of powers concerns posed by the federation’s

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regulation of the nuclear energy industry. For example, licensing procedures in the field are complex, requiring a series of permits in the course of a plant’s construction and activation.48 Which governmental institutions are best situated to strike the balance between the required expertise, flexibility, and political accountability in issuing these permits? Governmental officials concerned about the slowness as well as the legitimacy of the nuclear licensing process have advanced proposals ranging from increased legislative participation in the process (even to the point of specifying the details of site planning), on the one hand, to narrowing the scope of judicial review over administrative decisions, on the other hand.49 Both proposals raise separation of powers questions of their own, particularly the latter, since any limitation of judicial review over administrative discretion may confl ict with the right of “any person” under Article 19 (4) to repair to a court of law when his or her rights have been violated by public authority. Kalkar I, though it sustained the delegation in question, nonetheless adheres to the prevailing German skepticism toward delegation by requiring a high threshold of specificity with respect to legislative delegations. And yet, as the Court reminds us in the Judicial Qualification Case featured below, dealing with the delegation of authority at the state level, the doctrine of separated powers requires some elasticity in its application when the three branches of government are spliced together in a system of reciprocal and mutual restraint. What is important, according to the Court, is that the core of each power be preserved from invasion by a coordinate branch. 4.8 Judicial Qualification Case (1972) 34 BVerfGE 52 [An applicant for judicial office must pass two state examinations. The state of Hesse required an examination fee. At the time of the present case, the fee for the second judicial examination amounted to dm 200, the legal basis for which was found in § 42 (1) [3] of the Judicial Training Regulation of 10 September 1965. The Hessian state government issued the Judicial Training Regulation in the form of a legal regulation, declaring § 93 (2) [1] of the Hessian Judiciary Act of 19 October 1962 to be the regulation’s legal basis. With regard to the issuance of legal regulations, § 93 provides that the state government is authorized to issue legal regulations required for the implementation of this law and to issue a judicial training regulation. Th is provision shall regulate the establishment of examination centers, the composition of the board of examiners, examination procedures, and the duration and division of the preparatory ser vice within the framework of § 5 (6) of the German Judiciary Act (a federal statute) as well as matters relating to the repeated failure of applicants to pass the second examination. The complainant passed the second judicial examination in Hesse in 1966. He had paid the required examination fee prior to taking the examination.

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Later he brought suit before the administrative court in Frankfurt am Main, claiming that the examination fee had been demanded without a legal basis. He stated further that § 93 (2) [1] of the Hessian Judiciary Act did not authorize § 42 (1) of the Judicial Training Regulation. Having lost on these claims in the administrative courts, the complainant brought a constitutional complaint to the Federal Constitutional Court arguing that uncertainty regarding the legal basis of the Hessian regulations constituted a violation of Article 28 (1) of the Basic Law. Article 28 (1) guarantees that the state governments conform to fundamental federal constitutional principles and values, including separation of powers. The Constitutional Court found no constitutional violation.]

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Judgment of the Second Senate. . . . B. II. 2. As was determined by the decision of the Hessian State Constitutional Court from 4 December 1968, § 93 (2) of the Hessian Judiciary Act (HJA) is consistent with Articles 107 and 118 of the Hessian Constitution. Therefore, § 93 (2) [1] of the HJA does not violate the principle of separation of powers, just as these Hessian constitutional provisions do not violate the principle of the separation of powers that the states must observe pursuant to Article 28 (1) [1] of the Basic Law. A state legislature can give this constitutional principle, which binds the states, concrete expression in its constitution in various ways. Article 80 (1) [2] represents only one of these possibilities; it applies only to the domain of federal legislation. Articles 107 and 118 of the Hessian Constitution contain a different way of concretizing this mandate, which, at least as interpreted by the Hessian State Constitutional Court, also satisfies this constitutional principle. a. The separation of powers is a fundamental constitutional principle for the organization and function of the state. The Basic Law provides for a distribution of political power, the harmonious cooperation of the three branches, and the moderation of political rule that results from it. The principle of separation of powers is not, however, realized in pure form in the federal arena. Numerous interconnections and balances of power exist. It is not an absolute separation of powers that we must glean from the constitutional design of the Basic Law but, rather, a system of mutual control, restraint, and moderation. Even if the separation of powers cannot be understood as meaning a clear-cut separation of the functions of political power, we must retain the distribution of weight among the three powers as outlined by the constitution. No branch may achieve predominance over another power that was not intended by the constitution. Nor may one branch deprive another of the authority needed to fulfi ll its constitutional tasks. The core functions of the different governmental branches cannot be altered. Th is precludes one of the powers from relinquishing tasks which—according to the constitution—are typically within its purview.

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The following considerations apply to the relationship between the legislature and the executive. In a free democratic and constitutional system, Parliament has the constitutional task of enacting laws. Only Parliament possesses the democratic legitimacy to make fundamental political decisions. To be sure, the Basic Law approves—as illustrated by Article 80—of “delegated” legislation to be enacted by the executive. But the executive can legislate only within limits that are prescribed by the legislature. Parliament cannot neglect its responsibility as a legislative body by delegating part of its legislative authority to the executive without beforehand reflecting upon and determining the limitations of these delegated powers. If the legislature does not satisfy this requirement, then it will shift unfavorably the balance of powers presupposed by the Basic Law in the area of legislation. A total delegation of legislative power to the executive branch violates the principle of the separation of powers. b. We also derive this conclusion from the constitutional state principle insofar as it requires that citizens be sufficiently able to evaluate the content of a regulation based on statutory authority. To the extent that a statute delegates the authority to issue regulations to the executive, the legislative intent must provide . . . a guide for the content of the regulation. The statute must give expression to the legislative intent. It must be clear whether or not the executive confi ned itself to the express limits of the delegating statute in issuing the regulation. If the content of the regulation goes beyond the legislative intent, then the issuer of the regulation has overstepped the boundaries of its delegated power. The regulation is then invalid because it has an insufficient legal basis. It is not within the Court’s authority to decide this case, which falls within the procedural provisions of Article 100 (1). But it is within this Court’s authority to decide if the statutory delegation is compatible with the aforementioned principles. c. Section 93 (2) [1] of the Hessian Judiciary Act does not transgress the boundaries established by the principle of separation of powers and the constitutional state principle for delegating the authority to issue regulations. The legislature did not relinquish its inalienable duty and responsibility. Section 93 (2) [1] preserves the fundamental priority of the legislative intent. Th is intent, which should serve as a guiding principle for the issuance of a regulation, is clearly recognizable. Section 93 (2) [1] of the Hessian Judiciary Act only grants the issuer of the regulation supplementary authority to set norms. Th is section does not contain a delegation of authority that is devoid of all content. The subject of the legal regulation to be issued by the state government is “judicial training.” The German Judiciary Act and the Hessian Judiciary Act provide an initial framework for the issuer of a regulation. The Hessian legislature particularly emphasizes examination procedures. Moreover, it is not regulating this subject matter for the first time. The legal basis for the regulatory authority over judicial training is itself tied to the existing norms concerning training regulations that were enacted on 27 November 1957. If an authorization refers to an area governed by prior regulations, then the legislature is clearly stating that the existing principles are to guide the regulating entity in issuing its rules. The legislature does not preclude any change; however, it does expect the issuer of the regulation not to depart from concepts established by the

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earlier regulations for no reason at all. Section 93 (2) [1] of the Hessian Judiciary Act is therefore not written in such general terms that it would be impossible for the executive meaningfully to comprehend the legislature’s concept for this statute. Charging fees for special administrative ser vices has long been a part of government activity. The principles of defraying expenses and proportionality are corrective guides for the issuer of the regulation. The legislature may assume that the regulating body will observe these principles. Thus, the fact that § 93 (2) [1] of the Hessian Judiciary Act does not expressly provide exact figures for a fee schedule does not jeopardize the fundamental separation of powers and legislative independence vis-à-vis the regulating executive. The fee stated in the regulation is clearly within the general limitations discussed above.

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foreign and military affairs Just as the U.S. Constitution allocates power over foreign affairs to both president and Congress, the Basic Law apportions shares of this power to the executive and the Parliament. The Basic Law, however, incorporates a more complex system of checks and balances in the field of foreign relations as well as more detailed provisions on foreign and military affairs than does the U.S. Constitution. Two fundamental points must be noted about the Basic Law’s allocation of power in these fields. First, Germany’s foreign affairs power is concentrated at the federal level. Article 73 (1) [1] of the Basic Law confers on the federation exclusive legislative authority over “foreign affairs.” In addition, Article 87 (1) empowers the federation to establish foreign and consular offices, just as Article 32 (1) authorizes it to conduct “relations with other states.” Article 32 (3), however, qualifies this exclusivity; it permits the Länder, with the federal government’s consent, to conclude treaties with foreign states in policy areas over which the Länder have exclusive jurisdiction. As the Court noted in the Concordat Case (1957; no. 3.8), the federal government’s treatymaking power may be limited to the extent that it invades these reserved powers. The federation nevertheless has primary responsibility over the broad field of foreign affairs. Second, as the following survey reveals, the Federal Constitutional Court plays a decisive role in defi ning the nature, scope, and limits of executive and legislative authority over foreign and military affairs. In these fields, although speaking often and assuredly, the Court largely employs the language of restraint. The Constitutional Court nevertheless serves as an important referee in keeping the executive and the Parliament within the boundaries of their rightful powers. What is most striking from an American perspective, however, is the Court’s deep involvement in monitoring military policy, as several cases in this section show. Distribution of the Foreign Affairs Powers. The foreign relations power falls mainly into the domain of executive responsibility. Executive authority, however, is divided between the chancellor and the president. Under Article 59 (1), the president concludes treaties, receives envoys, and represents the federation in its international relations. But

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these roles are largely ceremonial. Effective power resides in the hands of the chancellor. According to Article 63 of the Basic Law, he or she determines general policy guidelines, although in Germany’s parliamentary system the chancellor shares this power with the cabinet. Indeed, the procedural rules promulgated under Article 65 of the Basic Law require the chancellor to submit foreign policy matters of general importance to the cabinet for debate and decision, but any decision taken in this field falls within the scope of the chancellor’s general policy guidelines. Parliament also is deeply involved in the process of making foreign policy. For one thing, the executive and Parliament are far less distant from one another than in the United States. Germany’s top executive officials—the chancellor and cabinet ministers—usually also are parliamentarians. Unlike his or her cabinet ministers, however, the chancellor answers to and can be removed by Parliament, subject of course to the requirements of Articles 67 and 68.50 In addition, Parliament has extensive supervisory authority over foreign relations. The Basic Law provides for the establishment of parliamentary committees on foreign affairs and defense (Article 45a of the Basic Law) before which federal ministers may be compelled to appear. The Basic Law also establishes the parliamentary commissioner for the armed forces (Article 45b of the Basic Law), who has the responsibility “to safeguard basic rights and . . . to assist the Bundestag in exercising parliamentary control over the Armed Forces.” There also is a standing Bundestag Committee on the Eu ropean Union (Article 45 of the Basic Law). Under Article 44, fi nally, the Bundestag is obligated to form committees of inquiry into any policy matter—domestic or foreign—at the request of one-quarter of its members. As this brief summary suggests, the Basic Law incorporates a degree of executive accountability in foreign policy that is as high as any likely to be found among the world’s constitutional democracies. Executive Discretion, Parliamentary Consent, and the Treaty-Making Power. What is the constitutional process by which Germany becomes committed to international agreements in the fi rst place? Article 59 (2) of the Basic Law provides: “Treaties that regulate the political relations of the federation or relate to subjects of federal legislation shall require the consent or participation, in the form of a federal law, of the bodies responsible in such a case for the enactment of federal law.” Th ree constitutional issues have arisen based on this language. First, there have been a number of cases focused on determining whether a par ticular international agreement constitutes a “treaty that regulates the political relations” of Germany and thus requires parliamentary oversight. Second, the Court has also been asked to determine whether executive actions, taken on the basis of a “political” treaty and its required legislation, exceed the scope of the authority created by those instruments. A final issue of considerable importance is the question of the judiciary’s supervisory competence in these matters. The Petersberg Case (1952) and the Commercial Treaty Case were the first to impugn the executive’s refusal to seek parliamentary approval of a treaty. Petersberg involved an executive agreement between the Adenauer government and the high commissioners of the three Allied Powers. The treaty provided the new West German government

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more freedom to manage its own affairs and to explore ways to bring Germany into a European Economic Community. Social Democratic members of the Bundestag petitioned the Constitutional Court, claiming that the agreement was a treaty within the meaning of Article 59 (2) and thus invalid without Parliament’s approval. The Petersberg decision was significant, fi rst, because the Court granted a minority parliamentary party standing to assert its right as a constituent unit of the Bundestag and, second, because it defi ned a treaty within the meaning of Article 59 (2) as an agreement concluded with a foreign state or an international agency of equal rank. The Allied High Commission was regarded as less than that. The Commission did not represent the three Allied governments as such but rather constituted an independent organ of governance on German territory. Moreover, declared the Court, the Basic Law is “the constitution of a sovereign state” and points toward Germany’s “equal standing in the community of nations.” Unlike a treaty as envisioned by Article 59 (2), the Court reasoned, the Petersberg Agreement was the product of negotiations between unequal parties because Germany was clearly in a position subordinate to the occupying owers.51 As the text of Article 59 (2) makes clear, Parliament plays a crucial role in the treatymaking process, but that role is confi ned to two kinds of treaties: those that regulate Germany’s “political” relations and those “relat[ed] to subjects of federal legislation.” Treaties or agreements not falling into one of these two categories may presumably be concluded at the discretion of the executive. But what constitutes a treaty that regulates the nation’s “political relations” or touches on federal legislation, thus requiring legislative branch approval? These issues arose early on in the following judgment. 4.9 Commercial Treaty Case (1952) 1 BVerfGE 372 [The Paris Trade Agreement of 1950 between Germany and France removed trade restrictions on goods produced in the two countries, established currency exchange regulations, imposed quotas on certain products, and laid down conditions for the issuance of import and export licenses. The spd, led by Kurt Schumacher, objected to the government’s failure to seek the consent of the Bundestag. The main constitutional issue before the Court was whether a commercial treaty, altering the basic trade and fi nancial relations between the Federal Republic and another state, is a “political” treaty within the meaning of Article 59 (2). The Court concluded that it was not.]

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Judgment of the Second Senate. . . . C. I. 1. A treaty does not become a political treaty within the meaning of Article 59 (2) of the Basic Law merely because it deals quite generally with public affairs, the good of the community, or affairs of state. If this were so, every treaty would be a political

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treaty, and the limitation contained in Article 59 (2) would be devoid of meaning. In addition to the conditions just mentioned, a treaty must also directly affect the existence of the state, its territorial integrity, its independence, and its position or relative weight within the community of states. Political treaties in this sense are those directed at asserting, securing, or expanding one state’s position of strength vis-à-vis other states. They include treaties relating to alliances and guarantees; agreements on political cooperation; nonaggression pacts; treaties on peace, neutrality, disarmament, and arbitration; and similar international agreements. The history of Article 59 (2) permits an interpretation that does justice to constantly changing conditions. In contrast to Article 45 of the Weimar Constitution, the Basic Law has adopted broader language so as to enlarge the category of treaties, beyond alliances, that require the approval of Parliament. . . . Article 59 (2) of the Basic Law requires the participation of the legislative bodies only for those treaties that regulate the political relations of the federation. “Political relations” must substantially and directly affect the existence of the state, its position and weight within the community of states, or the order of the community of states. The content or purpose of a treaty within the meaning of Article 59 (2) must be directed at the regulation of the political relations with foreign states. The treaty itself must regulate or purport to regulate the political relations with foreign states; it is insufficient when the treaty has merely a secondary, perhaps even unintentional or unexpected effect on such relations. Even though a treaty may be of political significance for the Federal Republic—for example, it may have an important bearing on the internal political, economic, or social circumstances of the country—that does not make it a “political treaty” within the meaning of Article 59 (2) of the Basic Law. The traditional teachings of public international law generally did not regard commercial treaties as political treaties. Th is theory, however, does not in its generality correspond to the reality of present-day international relations. In special circumstances a commercial treaty may have a political character like that of a treaty of alliance; for example, where the contracting parties, by concluding a commercial treaty, intend to strengthen their economic position in competition with other states generally. In such a case, nonpolitical market relations may become power relations. Today the conclusion of a commercial treaty may possibly have more influence on a state’s position of strength within the community of states than the conclusion of a treaty of neutrality, a nonaggression pact, or a treaty of guarantee. In referring to power in this context, we do not confine ourselves to the position of states in the struggle for political hegemony; we refer generally to their relative weight within the community of states. Whether a treaty is political in the above-mentioned sense can be determined only in the individual case by reference to the special circumstances and the actual political situation of the Federal Republic and the other contracting parties. [The Court embarked on a detailed examination of the treaty’s provisions, fi nding that they were short-term measures for liberalizing trade and were not designed to fi x West Germany’s political position relative to other states. The

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Court added that, in any event, the Federal Republic of Germany, still subject to the occupying powers with regard to certain foreign policy matters, was not at that time in a position to make political decisions. It stressed more particularly that the treaty did not contain any provision indicating a desire on the part of the Federal Republic to support European integration or to acknowledge that the Saarland Territory was no longer part of Germany. The Court thus denied the political character of the treaty.] 3. In a parliamentary democracy, legislation is basically reserved for Parliament, with government and administration being assigned to the executive branch. Foreign and trade policy also belong to the executive branch. According to Article 65 of the Basic Law, the federal chancellor determines, and is responsible for, general policy guidelines. Within the limits set by these guidelines, each federal minister conducts the affairs of his or her department autonomously and on his or her own responsibility. There is a legal presumption in favor of the exclusivity of these expressly constituted competences of government. The Bundestag may not assume these functions unless expressly permitted to do so. The legislature’s sharing of this exceptional authority of the executive has been established by Article 59 (2) of the Basic Law within highly specified limits. . . . Above and beyond the two instances in which Parliament participates in the treaty-making process, Article 59 (2) has not given the Bundestag a right to intervene in the government’s zone of responsibility. Its role remains limited to the general constitutional powers of supervision. Rather than governing and administering in this field, the Bundestag controls the government. Should it disapprove of the latter’s policies, it is empowered to express its lack of confidence in the chancellor (Article 67 of the Basic Law) and bring down the government. But it is not able to conduct policy making of its own accord. [When does a treaty relate to federal legislation, thus requiring parliamentary approval in the form of a law? In answering this query the Court noted that the Basic Law’s list of enumerated powers conferred on the federation is not controlling. For example, the fact that money, coinage, and customs fall within the scope of federal legislation does not mean that a treaty related to these matters requires legislative approval. Rather, said the Court, parliamentary participation is necessary “when the federation assumes obligations that can be fulfi lled only through the enactment of a federal law.” In such a case parliamentary approval is necessary to give democratic legitimacy to a policy requiring domestic application. In the instant case, however, the executive was able to implement the commercial treaty without legislative participation. Moreover, Parliament was disempowered from acting in this instance because the powers reserved by the occupation authority precluded any internal legislation on the trade and foreign exchange provisions of the treaty. In the conclusion of its opinion the Court underscored the federal government’s primacy in the field of foreign relations.]

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NATO Strategic Concept Case. Nearly half a century after issuing its decision in Commercial Treaty, the Court was again asked to consider the meaning of Article 59 (2) in the nato Strategic Concept Case (2001).52 The Bundestag representatives of the Party of Democratic Socialism (pds), the postreunification successor to the East German Socialist Unity Party (sed), complained that the Schröder government’s assent to nato’s new Strategic Concept committed Germany to such a radically altered set of obligations under the nato regime that the document could be characterized as nothing other than a fundamental amendment of the nato Treaty ratified by Germany in 1955. Endorsed by the nato Heads of State and Government at the April 1999 celebration of the alliance’s fi ft ieth anniversary, the pds parliamentarians were particularly concerned with the new Strategic Concept’s abandonment of nato’s regional defense orientation and its embrace of a proactive, out-of-area role in crisis response situations for nato. Their concerns were underscored by the fact that nato’s bombing campaign against Serbia and Montenegro on behalf of the persecuted Kosovar Albanian minority was a month old at the time the new Strategic Concept was announced in Washington, D.C. The Kosovo campaign was widely viewed as a prototype of the expanded role proposed for nato by the new Strategic Concept. Notably, nato’s use of force had been undertaken in the absence of un Security Council approval. In the face of all this, the pds parliamentarians argued that the significant change to the nato Treaty, like Germany’s commitment to the nato Treaty in the fi rst instance, should have been submitted to the Bundestag for consent under the terms of Article 59 (2) of the Basic Law. The decision in the pds case turned, in part, on the Second Senate’s characterization of the new Strategic Concept as a “consensus paper” and a “further development and concretization” of the nato Treaty, as opposed to an amendment of the existing nato Treaty, which would have required parliamentary consent. “Article 59 (2) [1] of the Basic Law,” the Court explained, “is not accessible to an expansive interpretation.” Thus, the Court upheld the Schröder government’s endorsement of the Strategic Concept in the absence of parliamentary approval.53 In doing so the Court appeared to be at ease with an incremental shift , favoring the executive, in the balance of power between the government and the Bundestag in matters of foreign affairs.54 Other democracies have been more inclined to favor the executive on a broad range of issues, especially in the aftermath of the 11 September 2001 terrorist attacks in the United States. 55 Constitutional courts have generally adhered to the view that the principle of separation of powers does not require parliamentary oversight of the details of foreign policy making.56 The Federal Constitutional Court has taken a similar view. As the Court explained in nato Strategic Concept: The concretization of the [nato] Treaty, as well as the concretization of the integration program that was laid down together with the [t]reaty, is the task of the federal government. With reference to the traditional concept of the state in the sphere of

Separ ation of Powers 195 foreign policy, the Basic Law has granted the government a wide scope for performing its task in a directly responsible manner. If only for reasons of the adequate distribution of functions, the role of the Parliament (as legislative body) and of the judiciary in this field are restricted. Certainly, the authority concerning foreign affairs that is entrusted to the federal government in this respect is not beyond parliamentary control, and it is, like all exercise of public authority, subject to the obligations set forth in the Basic Law. But an expansive interpretation of Article 59 (2) [1] of the Basic Law, which includes the participation of the federal government in non formal further developments of the treaty basis of a system of mutual collective security, would not only result in legal uncertainty and would call the steering effect of the Consent Act into question; it would also reduce the federal government’s capability of acting in the field of foreign and security policy in an unjustified manner; moreover, it would result in a separation of state power that would not do justice to the functions of the executive and the legislative power.57

Atomic Weapons Deployment Case. In the Atomic Weapons Deployment Case (1984) the Green Party parliamentary representatives sought to vindicate the rightful powers of the Bundestag under the treaty-making provision of Article 59 (2). The Green Party maintained that by agreeing to install nuclear-equipped American intermediate missiles on German soil in the absence of statutory authority to do so, the federal government “indirectly infringed the rights of the Bundestag.”58 In response, the Court noted that an executive action, taken in conformity with existing treaty obligations—here the nato Treaty—requires no new legislation under Article 59 (2). The challenged action would have survived constitutional analysis even if it had been taken outside the treaty framework because the assent granted here would have been classified neither as a “political treaty” nor as a “matter of federal legislation” under Article 59 (2) of the Basic Law. The Court sought to clarify its understanding of Article 59 (2) as it relates to the principle of separated powers: Article 59 (2) of the Basic Law . . . allows the Bundestag some powers of participation in the making of foreign policy. . . . Yet Article 59 (2) confi nes this participation to the two situations already mentioned: “political relations” or “subjects of federal legislation”. . . . Thus, with respect to Article 59 (2), the Bundestag can neither compel the federal government to refrain from, embark upon, or break off treaty negotiations or produce treaty draft s of a par ticu lar content, nor prevent it from doing so; nor can it force the executive to conclude a treaty that requires parliamentary consent under Article 59 (2) or force the executive to terminate a treaty in international law. . . . The Basic Law does not confer on the Parliament any power to initiate foreign policy or to control its administration. Nor can the provision be taken to mean that, whenever an act of the federal government in international transactions regulates the political relationships of the Federal Republic of Germany or affects objects of federal legislation, the form of a treaty requiring legislative assent must be chosen, as the petitioner thinks.

196 chapter four Th is strict demarcation of the powers allowed the legislative bodies under Article 59 (2) of the Basic Law is an element in the separation of powers set up by the Basic Law. . . . But the concentration of political power, which would lie in assigning the Bundestag central decision-making powers of an executive nature in foreign affairs beyond those assigned to it in the Basic Law, would run counter to that structure of apportioning power, responsibility, and control laid down at present by the Basic Law. Th is is in no way changed by the fact that, at the federal level, only Bundestag members are directly elected by the people. The specific order of the apportionment and balancing of state power that the Basic Law wishes to see guaranteed must not be undermined by a monism of powers falsely derived from the democracy principle in the form of an all-embracing reservation on behalf of Parliament. Again, the principle of parliamentary responsibility for the government necessarily presupposes a core area of the executive’s responsibility. The democracy constituted by the Basic Law is a democracy under the constitutional state principle, and this means, in relation to the mutual relations of the organs of state, above all a democracy with separation of powers.59

Judicial Restraint in Foreign Affairs. As nato Strategic Concept and Atomic Weapons Deployment demonstrate, all questions arising under the Basic Law—even highly politicized matters of foreign affairs—are amenable to judicial resolution if properly initiated under one of the various procedures authorized for the adjudication of constitutional issues. The Federal Constitutional Court cannot avoid a decision by taking cover under an American-style political question doctrine.60 If no jurisdictional issue disqualifies the Court from hearing a case on its merits, then it must decide. In doing so, however, the Court often defers to the federation’s political judgment so long as that judgment remains within the boundaries of legitimate discretion. Occasionally, however, the Court will sustain a foreign policy decision of the political branches but at the same time lay down rather stringent rules for carry ing it out. A particularly dramatic example of this last situation—where judicial activism and restraint combined in an interesting mix—involved the Basic Treaty between East Germany and West Germany. In the early 1970s the West German government, controlled at the time by the spd in coalition with the fdp, sought to “normalize” the relationship between the two German states and between West Germany, the Soviet Union, and other Eastern Eu ropean nations. The Basic Treaty was the capstone of Chancellor Willy Brandt’s eastern policy (Ostpolitik). Under the treaty, West Germany and East Germany agreed to respect each other’s right to selfdetermination, “to refrain from the threat or use of force,” to improve trade relations, to cooperate in various cultural and technological fields, and to desist from any claim to represent the other in the international arena. By any standard the treaty qualified as the most crucial step taken by the two German states up to that point in the postwar era. Parliament had barely consented to the treaty when Bavaria petitioned the Court for its nullification in an abstract judicial review proceeding. Bavaria argued that the treaty contravened the Basic Law’s “precept of reunification”—the constitutional commitment

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to pursuing national unity. In response, the Court sustained the constitutionality of the treaty, declaring that flexibility and discretion were essential in meeting constitutional goals, particularly in the area of foreign policy.61 Yet, to the chagrin of the ruling coalition, the Court used the case to make wide-ranging pronouncements on the nature of the West German state and the principle of reunification. These facets of the East-West Basic Treaty Case (1973; no. 6.1) are discussed more extensively in Chapter 6. The Court’s meddling in the East-West Basic Treaty Case left no doubt that its word would be the last, even in the sensitive area of international diplomacy. In fact, the Court rebuked the federal government for trying to “outmaneuver” the First Senate, before which the case was pending, by attempting to ratify the treaty before the senate had rendered its decision. With respect to national unity, the Court declared that the goal of reunification, stated in the Preamble to the Basic Law, is legally binding on “all constitutional organs,” each of which is “required to keep the claim of reunification alive domestically, to vigorously push it in foreign relations, and to refrain from any activity that would undermine the goal of reunification.” The East-West Basic Treaty Case is reminiscent of the U.S. Supreme Court decision in Marbury v. Madison (1803)62 in one respect: It handed the government a crucial victory but qualified that victory with a lecture on the constitutional state principle and warnings about exceeding the limits of executive discretion. The Rudolf Hess Case (1980) is an equally prominent example of this mix of judicial activism and restraint.63 Hess’s son fi led a constitutional complaint in 1980 charging the federal government with failure to take the steps necessary for securing the release of his father from the Berlin-Spandau Military Prison where he had been incarcerated, alone, since 1967. (Hess had been sentenced to life imprisonment in 1945 by the Nüremberg War Crimes Tribunal.) The complaint charged that the federal government’s reluctance to undertake negotiations with the Allied governments for the purpose of liberating Hess from his isolated imprisonment violated several provisions of the Basic Law (including the right to human dignity) and the European Convention on Human Rights. The Court accepted the complaint, implying that it was justiciable, but proceeded to write an opinion in which some scholars have found the seeds of a political question doctrine.64 Hess underscores the broad discretion enjoyed by governmental organs in dealing with political matters: “The breadth of this discretion in foreign affairs has its basis in the nature of foreign relations,” said the Second Senate. “Such events are not governed solely by the will of the federation,” the Court continued, “but rather are dependent on many circumstances over which it has little control. In order to facilitate the realization of the federation’s political goals within the framework of what is constitutionally permissible . . . the constitution confers considerable discretion on foreign affairs agencies in assessing the practicality and feasibility of certain policies or actions.” 65 The First Senate reached a similar conclusion in the Schleyer Kidnapping Case (1977; no. 7.6). Whether the federation should negotiate for the release of a hostage out of respect for the right to life secured by Article 2 (2) of the Basic Law or

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resort to other actions in dealing with terrorists is a matter wholly within the discretion of the politically responsible organs of government.66 In mapping the boundaries of the deference it would show to the federation’s political organs, the Arms Deployment Case, featured below, employed language similar to that used by the U.S. Supreme Court in defi ning the political question doctrine.67 4.10 Arms Deployment Case (1983) 66 BVerfGE 39 [In 1983 several people fi led constitutional complaints against the deployment of nuclear warheads on the West German territory. Th is deployment was to be undertaken in accordance with a decision of the foreign and defense ministers of nato’s member states. On 22 November 1983 the Bundestag passed a resolution supporting the federal government’s decision. The gravamen of the complaint was that the missiles would endanger the life and health of the complainants in violation of Article 2 (2) of the Basic Law. The complainants also advanced a separation of powers argument. Article 2 (2) provides that the right to life and personal inviolability “may be encroached upon only pursuant to a law.” The Parliament’s failure to support deployment in the form of a statute, they argued, violated this provision. The Court ruled that the complaints were inadmissible.]

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Judgment of the Second Senate. . . . A. II. 5. . . . The complainants base their constitutional complaints on the following arguments: The quality of the new weapons and their deployment on European territory near the Soviet Union change the political-strategic constellation of chances and risks in favor of the United States of America. There are several possible Soviet reactions to this, each of which brings with it the risk of a destructive strike by the Soviet Union against Pershing II and Cruise missile sites. Deploying these weapons, therefore, endangers the Federal Republic’s population. In addition, the Soviet Union has announced the installation of a computer-controlled responsive-strike system that may give rise to the use of nuclear weapons in the case of even limited military operations by the member states of nato. The possibility also cannot be precluded that an atomic attack may be brought about by a technical failure in this system. Deploying Pershing II and Cruise missiles is therefore incompatible with the state’s duty to protect life pursuant to Article 2 (2) [1] of the Basic Law. The constitution’s decision to provide for national defense does not authorize the impending destruction of the Federal Republic’s entire population—or significant portions of it. It is true that the competent government authorities have the basic responsibility to decide how to fulfi ll their duty to protect life, arising under Article 2 (2) [1] of the Basic Law. But they cannot justify the installation of new weapons as a measure to protect life. The deployment of new weapons is also an inappropriate defensive measure because it neither

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averts a Soviet attack with ss-20 missiles nor permits a fi rst strike aimed at disarmament. The new weapons have no defensive value for the Federal Republic because the Federal Republic has no control over their use. If the federal government believes it must modernize its weapons, it can choose the less dangerous alternative of deploying new weapons at sea. [Complainants raised several arguments: 1) the Basic Law permits defensive weapons only; 2) Pershing II and Cruise missiles are not necessary for the defense of the Federal Republic; 3) the missiles are more dangerous than alternative means of defense (e.g., sea-based missiles); 4) American control of the weapons violates German sovereignty; and 5) deployment violates the Federal Republic’s duties under international law.] C. . . . The constitutional complaints are inadmissible. 1. To the extent that the complainants can be interpreted as assailing the conduct of non-German public power in connection with the deployment of Pershing II and Cruise missiles, their constitutional complaint is inadmissible. It is true that the protected sphere of human rights, including the basic rights and freedoms recognized in the Basic Law, applies against every form of sovereign power. Nevertheless, under Article 93 (1) [4a] of the Basic Law and § 90 of the Federal Constitutional Court Act, the remedy of a constitutional complaint can be brought only against actions of the German state. 2. To the extent that they attack conduct attributable to German sovereign power, it follows neither from the complainants’ allegations nor from other circumstances that German state action caused the asserted threat and therefore would fall within the realm of protected basic rights claimed to have been injured by an act of the German state. . . . Even accepting the complainants’ premise that deploying Pershing II and Cruise missiles increases the danger of a Soviet nuclear attack against targets in the Federal Republic, and therefore the risk to legal rights protected by Article 2 (2) of the Basic Law, it is still questionable whether the asserted violation of complainants’ life and limb by German sovereign power rises to the level of a real danger under the Basic Law. In those cases where the Court has issued an opinion on the degree of intervention necessary to endanger basic rights, it was possible to make statements about the probability that the asserted dangers would actually occur with a degree of certainty. In those cases the essential sources of risk were susceptible to investigation by scientific methods, even if such methods were naturally conditioned upon and limited by the state and type of knowledge at the time. In the present case, on the contrary, no suitable, reliable process exists by which the judge might ascertain the increased degree of danger to complainants’ life and limb. For, in dealing with the ultimate source of this danger, we are dealing with the decisions of a foreign sovereign state in the context of the general world political situation and changing political and military relations. Under the prevailing circumstances we cannot make judicially verifiable fi ndings concerning such decisions in advance. Moreover, the possible violation of

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basic rights asserted in this case does not fall within the protective purview of these rights, since basic rights are aimed at German state action; this, however, is the action complainants have attacked. b. . . . Because we lack legally manageable criteria for deciding this case, the Court cannot determine whether or not the German state action challenged by complainants has any influence on decisions of the Soviet Union that may or may not trigger the military measures (a preventive or responsive nuclear strike) complainants fear. The federal organs responsible for the foreign and defense policy of the Federal Republic must make such evaluations. Within the intended goals of the Basic Law, especially as they have been expressed in the present context in Article 1 (2) and Article 24 (2), and within the scope of what is permissible under international law, the constitutional authority of these organs for foreign and defense policy includes the authority to defend the Federal Republic effectively. It is within their political decision-making power and responsibility to decide what measures promise success. To the extent that unpredictable areas of risk remain, as will often be the case, the political body constitutionally responsible for the decision must include these considerations in their deliberations and assume political responsibility. It is not the function of the Court to substitute its opinions for the opinions and deliberations of the competent political branch of the federation over and above standard legal handicaps in this area. Th is applies equally for the question of how the state should fulfi ll its affi rmative legal duty to protect basic rights in the sphere of foreign policy and defense matters vis-à-vis foreign states. In the light of the fact that the dangerous situation the complainants presume to exist depends significantly on the political decision of a foreign sovereign state in the context of the global political situation, the Court has no legally manageable criteria for judging whether the German state action being challenged is the decisive factor in the creation of this situation, or whether it is at least contributory and therefore causal. It is quite possible that the danger of a Soviet nuclear attack, as the complainants fear, already existed before the federal government agreed to deploy the missiles, or will come into being independent of the deployment. Nor do we have legally manageable standards to judge whether one may correctly say, based on empirical knowledge, that the creation of the danger of a Soviet nuclear attack represents a change of existing circumstances “legally” connected to the conduct that complainants censure. . . . D. Th is decision is issued unanimously as to the result, with one vote dissenting as to the grounds of the judgment.

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Military Affairs Power. The framers of the Basic Law insisted on a “peace constitution.” The preamble declares that, in promulgating a new constitution, the Germans were “inspired by the determination to promote world peace as an equal partner in a united Eu rope.” 68 Further evidence of the Basic Law’s commitment to peace can be found in Article 1 (2), which provides that “the German people . . . acknowledge

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inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.” 69 In addition, Article 9 (2) permits the prohibition of associations whose aims or activities are directed “against . . . the concept of international understanding, . . .”70 Article 26 (1), fi nally, renders unconstitutional and obligates the German government to criminalize “acts tending to and undertaken with intent to disturb the peaceful relations between nations, especially to prepare for a war of aggression.”71 To be sure, there are competing clauses that might be interpreted as a “hint” that German rearmament was inevitable.72 But the Constitutional Court did not get the chance to choose between the interpretive possibilities of the original Basic Law. Chancellor Konrad Adenauer’s earliest attempt to rearm West Germany was cut short when France withdrew from plans to create a Eu ropean Defense Community, thereby rendering moot the case before the Constitutional Court that raised these fundamental constitutional questions about Germany’s security profi le.73 The peace-oriented provisions of the Basic Law soon were overshadowed by constitutional amendments pushed through by Adenauer’s supermajority government in 1954. These amendments, particularly implicating Article 79 (1) of the Basic Law, paved the way to West Germany’s nato membership and remilitarization.74 Yet the constitutional reform that facilitated Germany’s rearmament did just as much to entrench Germany’s postwar reticence about the use of force. Article 87a of the Basic Law, for example, provided that the newly formed federal armed forces were empowered to defend Germany and otherwise could be deployed “only to the extent expressly permitted by this Basic Law.”75 Thus, even as Germany rearmed and integrated into the Western security framework, constitutional law—and the Constitutional Court as the Basic Law’s authoritative interpreter—would dictate and define the function of the armed forces. Th rough the long years of the Cold War a number of social and political factors conspired to cement the consensus that the German armed forces were to be used exclusively for the purpose of defending nato territory. Surely the ever-present memories of German atrocities and suffering in World War II hardened the Basic Law’s peace orientation, largely realized by this defense consensus. In any case, the zero-sum implications of armed confrontation along the hot German front of the Cold War made it a logical imperative that “for over forty years, the [leadership of the Federal Republic of Germany] interpreted the Basic Law to mean that German military forces could only be used for defensive purposes on North Atlantic Treaty Organization (nato) territory.”76 Considering the Cold War stalemate in Europe, this was as good as saying the German armed forces might never be deployed. AWACS I Case. Few areas of constitutional law and public policy saw such dramatic change after German reunification. Beginning with the awacs I Case (1994), in which the Court considered the meaning of Articles 87a (2), 59 (2), and 24 (2) of the Basic Law, Germany embarked on a decade-long process of radically reconceptualizing the constitutional limits on the use of its armed forces. Th is reconceptualization was

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the product of several forces. First, it was an attempt to facilitate the greater geopolitical role Germany desired for itself, and would be expected to carry following reunification. Second, it was urged along by the strategic vacuum that briefly opened up at the end of the Cold War, fleetingly creating the illusion that armed force might be used in the “new world order” only for the purpose of promoting and maintaining peace under the auspices of the United Nations. Th ird, when the center-left parties (spd and Green) came to power near the end of the 1990s, the reconceptualization of the use of the armed forces was aided by their surprising abandonment of the obstructionist pacifism they had long advocated while in opposition. In short, throughout the 1990s Germany was seeking a more “normal” role for itself in the post–Cold War world. As Georg Nolte explained: “[T]he deeper issue was the self-conception of a newly reunified Germany—that is, which lessons the country would draw from its Nazi past and what future role it should play within Europe and in the world.”77 At the end of the 1980s, against the backdrop of international pressures to involve German military units in efforts to establish peace in the Persian Gulf, German political leaders still were virtually unanimous in maintaining that the Basic Law ruled out any use of the armed forces except for the purpose of defense and within the framework of the alliances covered by nato and weu (Western European Union) treaties.78 Foreign Minister Hans-Dieter Genscher (who served successive cdu/ csu-led governments from 1974 to 1992), for example, held insistently to the view that the Basic Law barred the use of German troops outside the nato-weu area, even for peacekeeping purposes. In 1990, however, supported by cogent scholarly commentary and in the face of unified Germany’s increased international influence, the consensus among political leaders against the nondefensive use of military force began to break down. A major confl ict erupted in the early 1990s when Chancellor Helmut Kohl’s government decided to deploy military forces in connection with the international community’s response to the spiraling violence and political disintegration in Yugoslavia. The confl ict developed into one of the most important chapters in postwar German constitutional politics, featuring legal warfare between the executive and Parliament reminiscent of clashes in the United States between the president and Congress over the extent of their respective authority in military affairs.79 The major difference between the German and American experiences, however, has been the willingness of the Constitutional Court to intervene in such confl icts. An example of this judicial role in the field of military affairs, awacs I, involved Organstreit challenges brought by minority party blocs in the Parliament against the federal government’s decision to order the participation of German military units in the following military operations: nato’s monitoring of compliance with the un embargo against Serbia and Montenegro; enforcement of a un resolution establishing a “no-fly zone” over Bosnia and Herzegovina; and the un humanitarian mission in Somalia.80 The Organstreit challenges asserted that each of these deployments constituted a violation of the Basic Law. The full text of the relevant Basic Law articles illuminates our consideration of the resulting Constitutional Court judgment:

Separ ation of Powers 203 Article 87a (2): Apart from defense, the Armed Forces may be employed only to the extent expressly permitted by this Basic Law. Article 59 (2): Treaties that regulate the political relations of the federation . . . shall require the consent or participation, in the form of a federal law, of the bodies responsible in such a case for the enactment of federal law. Article 24 (2): With a view to maintaining peace, the federation may enter into a system of mutual collective security; in doing so it shall consent to such limitations upon its sovereign powers as will bring about and secure a peaceful and lasting peace in Europe and among the nations of the world.

The centerpiece of the constitutional challenge to these deployments was Article 87a (2) of the Basic Law. Numerous arguments, many of them originating in the legal academy, parsed every word of Article 87a (2), focusing heavily on the historical and literal meaning behind the words “employed” and “defense.” Those parties and groups challenging the validity of these military deployments read this language literally, claiming that there could be no use of the armed forces inside or outside Germany without explicit constitutional authorization. The federal government and its defenders, for their part, argued that Article 87a (2) of the Basic Law was intended to apply to the use of the armed forces inside, not outside, Germany.81 The formal constitutional battle began when fdp members of parliament asked the Court to issue a preliminary injunction against the participation of German awacs (Airborne Warning and Control System) aircraft over Bosnia-Herzegovina as part of the nato operation. Th is was a highly unusual political move because the fdp was a junior partner in the coalition government that ordered the deployment— the very coalition against which the constitutional challenge was leveled. In a 5–3 vote the Second Senate denied the injunction pending a full review of the constitutional issues presented.82 A few weeks later, the senate unanimously rejected a separate application, fi led by the spd, seeking a preliminary injunction against the operation in Somalia.83 These two cases, along with the action against Germany’s participation in the un embargo against Serbia and Montenegro, were consolidated for a decision on the merits in awacs I. In upholding the executive’s actions in all three instances, the Court gave surprisingly little consideration to Article 87a (2), the provision of the Basic Law on which legal scholars and other commentators had focused most of their attention. Instead, the Court concentrated on Article 24 (2) and the meaning of the phrase “a system of mutual collective security.” It ruled that both the un and nato treaties constituted systems of mutual collective security within the meaning of Article 24 (2) of the Basic Law, and that the Bundestag’s approval of these treaties under Article 59 (2) was accompanied by the implied constitutional authority to fulfi ll the terms of these agreements, including, if necessary, the deployment of German military forces.84 In a complex and divided opinion exceeding one hundred pages, the Second Senate handed down several rulings. First, the senate sustained the validity of the un

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Somalia action, although three justices dissented from the majority’s view that the Bundestag’s original assent to the un Charter included an agreement to place German troops under an international command. Second, although the senate ruled unanimously that the deployment of German military units within the framework of nato and the weu (Western European Union) pursuant to un resolutions was compatible with Article 24 of the Basic Law, the justices divided 4–4 over whether these treaties covered military actions beyond the purview of nato and the weu. An even split on the Court allowed the challenged governmental action to stand. The dissenting justices (Limbach, Böckenförde, Kruis, and Sommer) argued that the nato awacs operation fell outside the original purpose of nato. To validate the operation, therefore, the government would need to amend the treaty accordingly and secure renewed parliamentary approval under Article 59 (2) of the Basic Law; anything less than this, said the dissenters, would violate the rights of Parliament. The prevailing justices (Kirchhof, Grasshof, Klein, and Winter) insisted on a more “dynamic” approach to Article 59 (2) of the Basic Law that would permit treaties to be adapted and applied to changing circumstances without going through the laborious process of being formally amended.85 With its decision in the nato Strategic Concept Case (2001) just a few years later, the Court appeared to unanimously embrace this flexible view of Article 59 (2).86 Th ird, the Court significantly qualified the victory it handed the federal government by articulating constitutional principles that greatly limit the executive’s authority to commit Germany to the use of force. Decades after the Adenauer government proposed such an interpretation, the Court held in awacs I that Article 24 (2) of the Basic Law impliedly authorized the federal government to fulfi ll its obligations under treaties like the un Charter and the North Atlantic Treaty Organization (nato), including the deployment of armed forces.87 More significantly, the Court held that any deployment of the German armed forces for nondefensive “armed operations” requires prior parliamentary approval.88 The Court could not point to a clear textual basis for this significant constitutional limitation on executive authority regarding the use of force.89 Instead, it derived the rule from constitutional history, pointing to the Weimar-era requirement for a parliamentary declaration of “war” or “peace.”90 The Court also referred to the Basic Law’s assignment of the military’s budget to the Parliament.91 The Court further explained that the rule existed as an echo of Parliament’s constitutional prerogative over treaty making in the fi rst instance, a prerogative required when obligations under a treaty call for dramatic measures like troop deployments.92 The Court concluded by underscoring that the rule reinforced the ever-fragile balance between almost plenary executive authority in foreign affairs and the principle of checks and balances inherent in the Basic Law’s scheme of separation of powers.93 With its holding in awacs I the Court vindicated Parliament’s right to decide on the deployment of the military for “armed operations.” This right explains why German policy makers commonly refer to the German armed forces, as Chancellor Angela

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Merkel did in a speech at the 2006 Munich Security Conference, as a parliamentary army (Parlamentsarmee).94 An Expanding Role for the German Armed Forces? In the decade following its decision in awacs I the Court seemed less willing to enforce strict constitutional limitations on the executive’s authority over military affairs.95 As noted earlier, the Court turned aside constitutional challenges to the federal government’s accession to nato’s new, out-of-territory, and nondefensive strategic concept.96 The military implications for Germany’s participation in the new strategic concept were obvious. At the time the new strategic concept was announced in 1999, nato was prosecuting its bombing campaign against Serbia, an action that was neither defensive nor concerned with nato territory. In spite of the fi rm assertion of parliamentary priority it had announced in awacs I, and without regard to the very evident military implications, the Court was untroubled by the fact that the federal government had committed Germany to nato’s new strategic concept without consulting the Parliament. The Court’s decision in the nato Strategic Concept Case was foreshadowed by its earlier decision in the Kosovo Case, which presented the Court with a challenge to Germany’s fi rst “active role in a peacemaking operation [during ongoing hostilities] since the Second World War.”97 The un Security Council did not approve nato’s 1999 bombing campaign against Serbia and Montenegro in response to humanitarian atrocities being committed against Kosovar Albanians. The legality of the campaign was questioned by international law scholars and peace activists around the world, and nato’s member states asserted humanitarian intervention as an emerging exception to the otherwise exclusive jus ad bellum of the un Charter. In Germany, ironically, it was Foreign Minister Joschka Fischer who took the lead in justifying the use of the armed forces before the Federal Constitutional Court.98 Foreign Minister Fischer, the leading representative of the Green Party in the spd-led Red- Green Coalition, had come to symbolize left ist pacifi sm. To the dismay of the left , however, “Fischer was fi lled with conviction on [the theme of humanitarian military intervention]. When he got into office he took the fundamental Green commitment to antiwar principles, deft ly heaved it overboard, and gave his official endorsement to Germany’s participation in the nato effort [against Serbia].”99 Only the far-left pds remained to assert the Parliament’s interests in a constitutional, separation of powers challenge to Germany’s Kosovo deployment. 4.11 Kosovo Case (1999) 100 BVerfGE 266 [The Bundestag embraced the humanitarian justification for the Kosovo deployment and authorized the participation of German armed forces in the campaign to an escalating degree in four successive resolutions. Representatives of the pds, the same party that challenged the federal government’s adoption of the

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1999 nato Strategic Concept, sought a temporary injunction against Germany’s Kosovo deployment. The pds representatives argued that the requirements of Article 24 (2) of the Basic Law had not been met because the Court, in awacs I, presupposed un authorization as a condition for any deployment pursuant to Germany’s obligations under a “system of mutual collective security.” In the absence of such un authorization, the pds representatives also argued that the Kosovo deployment constituted a violation of Articles 25 and 26 of the Basic Law. The Second Senate summarily dismissed the temporary injunction application with a brief but meaningful reference to the constitutional standards that would be implicated if the case were to be considered on its merits.]

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Judgment of the Second Senate. . . . The Basic Law empowers the federation to establish armed forces for purposes of defense and to enter into systems of collective self-defense and mutual collective security. Th is also includes the power to take part with its own armed forces in operations that are provided for within the framework of such systems and take place according to their rules. Still, the deployment of armed forces requires the prior constitutive consent of the Bundestag. In this case, the Bundestag gave its consent. On 16 October 1998 the 13th Bundestag acceded to military measures for the prevention of a humanitarian catastrophe in Kosovo. That resolution authorizes nato air operations, which are to be carried out in phases. In adopting that resolution, the Bundestag was aware that, in all probability, the operation would be carried out without authorization from the United Nations Security Council. The federal government had expressly pointed out that it nevertheless considered a nato military deployment to be justified. The Bundestag resolution of 16 October 1998, therefore, covers the current nato air strikes. The more recent resolutions of the 14th Bundestag have neither replaced nor modified the initial resolution of 16 October. They relate to specific individual questions: to an air surveillance operation that had been agreed with Yugoslavia, and to the implementation of a Rambouillet Agreement. The later resolutions refer to the resolution of 16 October 1998 and, thereby, make it clear that the 14th German Bundestag also stands by the resolution on a military operation to prevent a humanitarian catastrophe. Therefore, the rights of the German Bundestag have not been violated. Th is is true whether Article 25 of the Basic Law (the primacy of customary international law) and Article 26 of the Basic Law (securing international peace) grant the Bundestag any rights of its own.

∂

A year after the Kosovo deployment, the government of Chancellor Schröder undertook a comprehensive overhaul of Germany’s defense structure with the stated pur-

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poses of improving the armed forces’ ability to secure and defend German territory and contribute to operations around the world. Germany tested its new preparedness by contributing significantly to nato’s ceasefi re monitoring mission in Macedonia in the late summer of 2001. Chancellor Schröder was one of the fi rst world leaders to invoke the imagery of war in the immediate aftermath of the 11 September 2001 terrorist attacks in the United States, calling the attacks “a declaration of war against the entire civilized world.”100 A month later Chancellor Schröder informed the Bundestag of his desire to see Germany’s defense and security policy change to permit it to more fully contribute to the newly conceived global “war on terror” in a manner and degree equal to Germany’s post–Cold War role as an “important European and transatlantic partner, but also as a strong democracy and strong economy in the heart of Europe.”101 Th is new role, Schröder explained, would have to include “participation in military operations for the defense of freedom and human rights, for the establishment of stability and security.”102 He made specific reference in his speech to “Operation Enduring Freedom,” led by the United States and endorsed by the un and nato, which aimed at ousting Afghanistan’s Taliban government as a consequence of its longstanding support of Islamic terrorists, particularly Al-Qaeda. In mid-November 2001, Schröder coupled his request for a Bundestag resolution authorizing the deployment of German soldiers to Afghanistan with a vote of confidence in an attempt to discipline the pacifist elements in the center-left parties constituting his coalition government. Schröder won a very slender majority in the Bundestag on both matters and Germany contributed a small number of special operations soldiers during hostilities in Afghanistan, eventually increasing the size of its deployment as part of nato’s International Security Assistance Force, which has provided security during the rebuilding and democratization efforts in post–Taliban Afghanistan. The Constitutional Court approved the Parliament’s general and open-ended authorization of force deployments in support of nato’s ongoing Afghanistan operation.103 That deployment continued for years to come, growing ever more controversial as German casualties in Afghanistan increased and with the discovery in 2009 that the German military had been involved in an operation that resulted in the deaths of dozens of civilians.104 The Iraq War and the AWACS II Case. In the awacs II Case the Court put an end to its permissive review of Germany’s military activism. Perhaps not surprisingly, the case that inspired the Court to fi rmly reassert separation of powers limits on the use of force arose out of the U.S.-led invasion of Iraq in 2003. That war was extremely unpopu lar in Germany. Preternaturally attuned to the popu lar mood, in a speech inaugurating his 2002 reelection campaign Chancellor Schröder categorically objected to German participation in America’s imminent war. “I say, we are ready for solidarity,” Schröder declared, “but under my leadership this country is not available for an adventure.” He went on: “Pressure on Saddam Hussein, yes. We must see to it that the international observers are able to do their work in Iraq. But

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playing around with war and military intervention—I can only warn against this. Th at is not to be undertaken with us.”105 Some credited Schröder’s staunch opposition to a war in Iraq with salvaging his chances for a second term as chancellor, even if it could not be cleanly reconciled with his earlier enthusiasm for German military engagement, which had clearly betrayed the pacifi st core of his party. But Marco Overhaus found a unifying theme in that Germany’s military engagement in the 1990s, just as much as its bristling objection to the American-led war in Iraq, demonstrated a new “self-confidence” in Germany’s foreign aff airs. As Chancellor Schröder put it: “[T]his Germany, our Germany, is a self-confident country.”106 In spite of his strident opposition to President George W. Bush’s invasion of Iraq, Schröder nonetheless planned to send German awacs planes to Turkey, which requested nato support in anticipation of a fl ailing, aggressive gesture from Saddam Hussein’s threatened regime. As part of the nato-approved response to Turkey’s appeal for assistance, the Schröder government authorized the deployment of German soldiers to Turkey to participate in a nato awacs operation. Parliament had not approved the deployment. Representatives of the fdp in the Bundestag sought an order from the Court to temporarily enjoin German participation in nato action. The fdp argued that Germany’s participation in the nato assistance being provided to Turkey served to indirectly facilitate the invasion of Iraq and could not be characterized as routine military surveillance fl ights. The fdp argued that this was especially the case in the circumstances, including the buildup to the American-led invasion of Iraq that started on 20 March 2003. As a constitutional matter the fdp argued that deployment to such a precarious and charged setting presented the considerable risk that German armed forces, although operating exclusively in a defensive capacity in peaceful Turkish airspace, might be drawn into the Iraqi confl ict. Th is, the fdp reasoned, was tantamount to a deployment for an “armed operation,” for which the Court clearly had imposed the obligation of parliamentary approval in its interpretation of Article 24 (2) in awacs I. The Court rejected the fdp’s motion for a temporary injunction in 2003. In declining to issue the temporary injunction, the Court explained that it felt itself obliged to exercise self-restraint when asked to encroach upon the actions of other branches, especially as regards foreign affairs. The Court explained that this restraint, when considered in conjunction with the “balancing” of consequences at stake in a grant or denial of the injunction,107 counseled against approving the application. The Second Senate nonetheless underscored the gravity of the Bundestag’s right of approval in the deployment of the German armed forces and it consciously left open, for a decision in the case on its merits, the matter of defi ning the nature and kind of military engagement that would trigger the requirement of Bundestag approval. Five years later it answered those questions when it ruled on the merits of the fdp’s challenge to the 2003 deployment to Turkey.

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4.12 AWACS II Case (2008) 121 BVerfGE 135 [In an Organstreit proceeding, the fdp asked the Court to rule that the federal government had violated the rights of the Bundestag by failing to obtain Parliament’s approval for the awacs deployment over Turkey in 2003. The government responded that parliamentary approval was not required under the terms announced by the Court in awacs I because the deployment did not constitute an “armed operation” but merely consisted of routine, defensive aerial surveillance. The German armed forces, the government argued, were not expected to be involved in the use of military force. Th is, the government said, was the extent of the Court’s ruling in awacs I. In tone and substance, the Court strenuously disagreed with the government’s positions. In a decision upholding the constitutional challenge, the Court further clarified the parameters of the separation of powers between the Parliament and the executive (and by virtue of its invasive review in the matter, of the judiciary, too) in military affairs.]

∂

Judgment of the Second Senate. . . . C. . . . The application is well-founded. The respondent should have obtained the approval of the Bundestag for the participation of German soldiers in measures of aerial surveillance of Turkey from 26 February to 17 April 2003 as part of nato’s “Operation Display Deterrence,” by reason of the requirement of parliamentary approval for the deployment of armed forces under the provisions of the Basic Law that concern military affairs. I. 1. a. The Basic Law has entrusted the decision as to war or peace to the Bundestag as the body representing the people. Th is is provided expressly for the determination of a state of defense and a state of tension (Articles 115a (1) and 80a (1) of the Basic Law) and in addition it applies in general to the deployment of armed forces, including deployments in systems of mutual collective security under the terms of Article 24 (2) of the Basic Law. From the totality of the provisions of the Basic Law that concern defense and against the background of German constitutional tradition since 1918, the Federal Constitutional Court has derived from the Basic Law a general principle that every deployment of armed forces requires the mandatory approval of the Bundestag, which, as a general rule, should be given in advance. The provisions of the Basic Law that relate to the armed forces are designed not to leave the German armed forces as a potential source of power in the hands of the executive alone, but to integrate it as a “parliamentary army” into the constitutional system under democracy and the constitutional state principle. The requirement of parliamentary approval under the provisions of the Basic Law that concern defense creates an effective right of participation for the Bundestag in matters of sovereign decisions relating to foreign aff airs. Without parliamentary

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approval, a deployment of the armed forces is, as a general rule, not permissible under the Basic Law; only in exceptional cases may the federal government—in the case of imminent danger—provisionally decide on the deployment of armed forces in order that the defense and alliance capacities of the Federal Republic of Germany are not called into question by the requirement of parliamentary approval. In such an exceptional case the federal government immediately must refer the deployment to Parliament and at the request of the Bundestag recall the forces. Concomitantly, the Bundestag may not order a deployment of forces without the cooperation and approval of the federal government. The requirement of parliamentary approval is a reservation of consent that confers no power to initiate deployments. . . . b. . . . At all events, the use of the German armed forces for mere relief ser vices and the rendering of assistance abroad where soldiers are not involved in armed operations does not require the approval of the Bundestag. . . . These statements made in the previous decisions of the Court do not exhaustively defi ne the scope of the requirement of parliamentary approval under the relevant provisions of the Basic Law. The literature on constitutional law discusses the phrase “deployment of armed forces” and the question as to when German soldiers, in the meaning of the senate’s decisions, are “involved in armed operations”. . . . [The Court reaffi rmed the central elements of its decision in the nato Strategic Concept Case (2001). First, it confi rmed the holding that Parliament must approve, and therefore remains politically accountable for, Germany’s treatybased commitments (within the terms of Article 59 (2) of the Basic Law). Second, the Court emphasized the holding that the federal government has the authority to shape the development of policy within the framework of Germany’s parliamentary-approved, treaty-based commitments. Th is doctrine, the Court explained, did not resolve the question of the competence to authorize military deployments.] c. . . . The freedom of the federal government to structure its alliance policy does not include the decision as to who, on the domestic level, is to determine whether soldiers of the German armed forces will take part in a specific deployment that is ordered by the decision-making entities of an international treaty alliance. By reason of the political dynamics of an alliance system, it is all the more important that the increased responsibility for the deployment of armed forces should lie in the hand of the body that represents the people. As this senate has already emphasized, the requirement of parliamentary approval is an essential corrective to the limits of Parliament’s assumption of responsibility in the field of foreign security policy. When military force is exercised, the executive’s broad sphere of influence in foreign affairs ends. When armed forces are deployed, the Bundestag does not have the mere role of a body that only indirectly steers and monitors the situation, but instead is called upon to make fundamental, essential decisions; it bears the responsibility for armed foreign deployments of the German armed forces. To this extent, the German armed forces are a “parliamentary army,”

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despite its command structure, which places the military and operative leadership in the hands of the executive. The Bundestag can preserve its legally relevant influence on the deployment of the forces only if it has an effective right of participation in the decision on the deployment of armed forces before the military operation commences and then becomes essentially a question of military expediency. The use of armed force means not only a considerable risk for the life and health of German soldiers, but it also contains a potential for political escalation or, possibly, involvement: every deployment is capable of developing from a limited individual action into a larger and longer-lasting military confl ict, up to an extensive war. The transition from diplomacy to force is accompanied by a corresponding change in the proportions of the internal assignment of powers. The requirement of parliamentary approval creates, in this way, a collaboration of parliament and government to decide on the deployment of armed forces; this does not fundamentally call into question the executive’s own area of action and responsibility for foreign affairs allocated to it under constitutional law. For when it comes to deciding on the concrete particulars and the extent of individual deployments, the federal government retains sole competence, as it does for the coordination of the integration of forces in and with the institutions of international organizations. . . . d. . . . In view of the function and importance of the requirement of parliamentary approval, its scope may not be defi ned restrictively. Instead, in the case of doubt about the proper competence to authorize deployment, the requirement of parliamentary approval must be interpreted by the Federal Constitutional Court in favor of Parliament. In par ticu lar, when the requirement of parliamentary approval applies, it may not be made substantially dependent on the political and military evaluations and prognoses of the federal government, invoking areas of freedom for the executive to structure its policy; the executive may be granted a prerogative of assessment only in urgent cases and thus only temporarily. 3. If German soldiers are involved in armed operations, this is a deployment of armed forces that is permissible under the Basic Law only on the basis of the essential approval of the Bundestag. a. The decisive criterion for the requirement of parliamentary approval of the deployment of armed forces under the Basic Law is their involvement in armed operations; this criterion is understood by the respondent to mean that involvement of Parliament in the deployment of forces does not become necessary until, and only becomes necessary if, German soldiers actually use armed force. Such an interpretation does not follow from the rules announced in the awacs I Case (1994). If the requirement of parliamentary approval were understood so narrowly, then the Bundestag could not adequately exercise its legally relevant influence on the use of the German armed forces. . . . It is not relevant for the requirement of parliamentary approval whether armed confl icts in the sense of combat have already taken place, but whether, in view of the specific context of the deployment and the individual legal and factual circumstances, the involvement of German soldiers in armed confl icts is concretely to be expected and German soldiers are therefore already involved in

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armed operations. The Court based its conclusions in awacs I on this distinction when it spoke of an involvement not in “armed confl icts” but in “armed operations”; the very meaning of the words in the latter case does not imply that the situation must actually develop into a combat scenario. Instead, the senate held that, to determine whether there was involvement in armed operations in the individual case, the purpose of the deployment and the deployment powers must be considered in more detail. . . . b. The mere possibility that there may be armed confl icts during a deployment is not sufficient for this. . . . The requirement of parliamentary approval does not, therefore, extend to deployments where there are no indications of a specific proximity to the use of military force. For this reason, it is only the well-founded expectation of involvement in armed confl icts that subjects a foreign deployment of German soldiers to the requirement of parliamentary approval. Th is well-founded expectation differs in two ways from the mere possibility that there may be armed confl icts: aa. Firstly, there must be sufficient tangible actual evidence that a deployment, by reason of its purpose, the concrete political and military circumstances and the deployment powers, may lead to the use of armed force. For this to be the case, there must be a concrete military situation of danger which has a sufficient factual proximity to the use of armed force and thus to the involvement of German forces in an armed conflict. . . . bb. Secondly, for a well-founded expectation that soldiers in the German armed forces will be involved in armed conflicts, a particular proximity to the use of armed force is necessary. For this to apply, the involvement must be expected immediately. . . . cc. The question as to whether there is involvement of German soldiers in armed operations is subject to full judicial review; in this connection, the federal government is not granted latitude for assessment or prognosis that cannot be verified, or that can be verified only to a limited extent, by the Federal Constitutional Court. Such latitude is normally presumed to exist in the area of sovereign decisions relating to foreign affairs, because only in this way can the fundamental priority in action of the executive be enforced . . . Thus, the precondition for restraint in the intensity of the review by the Federal Constitutional Court is missing. Since the Basic Law gives the Bundestag a primary right of participation in the area of sovereign decisions relating to foreign affairs, insofar as the requirement of parliamentary approval of military deployments, there is positively no latitude for the executive to make decisions apart from its competence in urgent matters. . . . II. By this standard, the involvement of German soldiers in the aerial surveillance of Turkey by nato from 26 February to 17 April 2003 was a deployment of armed forces that, under the requirement of parliamentary approval, required the approval of the German Bundestag. Although no combat operations took place, German forces, in participating in this deployment, were involved in armed operations. 1. By carry ing out aerial surveillance of Turkey in nato awacs aircraft, German soldiers took part in a military deployment in which there was tangible actual evidence of imminent involvement in armed operations. . . .

∂

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AWACS II and Judicial Review. In awacs II the Court fi rmly reiterated that Parliament alone has the constitutional authority to decide on deployments involving “armed operations.” The decision has several facets that merit closer scrutiny. First, the Court clearly defi ned the pa rameters of this parliamentary right, noting that the language chosen in awacs I was deliberately broader than the federal government might have liked. Thus, parliamentary approval is necessary for deployments involving “armed operations” and not the narrower circumstances involving an “armed confl ict.” At one extreme, the expansive defi nition the Court gave to the phrase “armed operations” excluded deployments aimed at providing “relief ser vices” or “assistance abroad.” At the other extreme, the right of parliamentary approval is not triggered by the mere possibility of combat. The phrase “armed operation,” the Court explained, extended the parliamentary prerogative to circumstances in which no combat was under way, as might be understood if the controlling standard were “armed confl ict.” Instead, the broader standard “armed operation” required parliamentary approval of deployments for which there is a specific indication that proximity to combat creates the expectation that the German military will immediately use armed force. Significantly, the Court found a parliamentary presumption in the relevant constitutional framework. When in doubt, the Court explained, Parliament has priority with respect to the deployment of the German armed forces. Second, the Court was at pains to cast its decision as a matter of checks and balances. In tones ringing with German history, the Court said the use of force should not come to serve the aggrandizement of a par tic u lar branch or organ of government. The Court sought to neutralize the risk that a military deployment might escalate a political struggle or become a tool in political brinksmanship. Under the Basic Law, the Court insisted, military aff airs must be understood as a collaboration between the Bundestag and the federal government. Thus, the awacs II decision reaffi rmed the legislature’s right to make the “essential decision” regarding the use of force. The case also acknowledged that, after a deployment decision is reached by the Parliament, the command and operational leadership of the military resides with the executive. The Court went out of its way to reassure the federal government that its decision was not meant to call into question the responsibility for foreign aff airs the Basic Law assigns to the federal government. Th ird, the Court sought to justify its expansive framing of Parliament’s right of approval in part by sounding a cautious tone as regards the political dynamics of an alliance system. Perhaps as a subtle signal of unease over America’s apparent cynicism toward international security institutions, the Court warned that Germany should not be led into armed confl ict by foreign interests that could be framed as collective security concerns. To avoid this, deployments must be authorized by the federation’s popu lar branch. Finally, the Court clearly signaled its intent to monitor and enforce Parliament’s priority on the question of military deployments. “The question as to whether there

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is involvement of German soldiers in armed operations,” the Court emphasized, “is subject to full judicial review.” The Basic Law clearly gives the Constitutional Court jurisdiction to hear challenges to the federal government’s plans to deploy the armed forces, chiefly through Organstreit proceedings. And, as the preceding discussion reveals, the Federal Constitutional Court does not recognize a political question doctrine,108 the basis on which the Supreme Court largely has avoided reviewing challenges to executive authority over military affairs. Instead, the Constitutional Court repeatedly has been called upon to judge the constitutionality of the federal government’s security agenda. For decades, except in cases of self-defense, the deployment of the armed forces was constitutionally unacceptable in Germany, a perspective thought by many to be required under provisions of the Basic Law. Since 1994 and the awacs I Case, however, this argument has had little purchase in the Federal Constitutional Court, amounting to a major shift in constitutional interpretation. The awacs II decision did little to reverse this fundamental shift, although it restored the constitutional limits on the use of force that seemed to be softening since the end of the Cold War. Th is reaffi rmation of separation of powers chiefly vindicated the role of Parliament vis-à-vis the executive in deployment decisions. By contrast, U.S. presidents have asserted that the constitution’s war powers reside largely with the executive branch, not Congress. Direct attempts by Congress to “fulfi ll the intent of the framers . . . and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities” have met with limited success.109 The difference is largely due to the use of the political question doctrine, which has enabled the American judiciary to evade war powers questions.110

conclusion Former Constitutional Court justice Konrad Hesse, the author of a major text on the fundamental principles of the German Basic Law, wrote that the allocation of various powers under the constitution permits formation of a differentiated political structure geared to uniform cooperation and embodying the state’s capacity to act through the formal activities of its [major] organs. Thus, separation of powers reveals the details of the political structure, confers specified responsibilities, and has a rationalizing effect. Similarly, the separation of powers specifies and coordinates the more active elements of political leadership and decision making as well as the more static elements of technical and administrative rule making, and in addition safeguards the constitutional state principle in the political arena. [Th is combination of structures and relationships] not only incorporates an optimal measure of self-government but also facilitates adjustment to historical change and is therefore capable of assuring relative continuity over time. In ratio-

Separ ation of Powers 215 nalizing, stabilizing, and limiting political power, separation of powers constitutes the basic organ izational principle of the constitution.111

In the light of these remarks and of the materials contained in this chapter we can begin to perceive an essential difference between separation of powers as understood in Germany and separation of powers as known in the United States. In American constitutional theory, as Madison wrote, “each department should have a will of its own,”112 pitting ambition against ambition, as the veto power of the president might suggest. “To what purpose separate the executive and the judiciary from the legislative,” wrote Hamilton in the same vein, “if both the executive and the judiciary are so constituted as to be at the absolute devotion of the legislative?”113 In this model of separated powers—rooted as it is in Lockean and Hobbesian concepts of society and human nature—the three departments are independent and coordinate with one another. The Basic Law’s model of separated powers, on the other hand, draws on distinctly German theories of the state. Accordingly, state authority (Staatsgewalt) represents the unified will of the commonwealth as expressed in public policy formulated by parties, elections, and political representation. Unless laws adopted by Parliament offend some provision of the constitution, they represent binding decisions requiring implementation by both the executive and the judiciary. Unlike the “inevitable friction incident to the distribution of governmental power among [the] three departments” found implicit by Justice Louis Brandeis in the American doctrine of separation of powers, the German doctrine assumes that all the branches will operate under a condition of harmonious interdependence.

5 Political Representation and Democracy ∂ Democracy, like federalism, separation of powers, and the constitutional state, is a fundamental principle of the German polity.1 The Basic Law (Grundgesetz) does not, however, explicitly define the term “democracy,” which is the subject of considerable commentary in German legal literature.2 The Federal Constitutional Court (Bundesverfassungsgericht) and most commentators have tended to define German democracy by reference to related institutions and principles in the Basic Law. These include elections leading to the formation of a representative parliament. For the most part, the constitution leaves the details of the electoral process to the discretion of the Parliament, but the complicated electoral system established by law has received considerable scrutiny to ensure its conformity with a number of constitutional provisions. Political parties are given constitutional status in Germany’s democratic infrastructure, with the Federal Constitutional Court paying particular attention to the legitimacy and efficacy of the political opposition, to the rights of political minorities, and to the fairness of political financing. Germany’s history also led the framers of the Basic Law to seek to protect their new democracy from the enemies of political liberalism by providing a number of constitutional mechanisms to ensure democratic longevity and stability. As this summary of the most fundamental facets of German democracy reveals, consideration of German political representation and democracy engages a complex matrix of the following constitutional provisions: regular elections and the secret ballot (Articles 20 (2), 38 (1), and 39 (1)); indirect representation (Articles 38 (1) and 28 (1)); majority rule (Articles 42 (2), 52 (3), 54 (6), 61 (1), 63 (2–4), 67 (1), 68 (1), and 121); equality in voting for legislative representatives and equal access to public office (Articles 3 (1), 38 (1), and 33 (1) and (2)); free speech and press (Article 5 (1)); freedom of assembly and association (Articles 8 and 9); a multiparty system (Article 21 (1)); and vigilance in the protection of democratic institutions and principles (Articles 79 (3) and 21 (2)).3 Th is chapter organizes Federal Constitutional Court cases dealing with these structures and procedures under the headings of parliamentary democracy, elections and voting, the party state and political spending, and militant democracy.

parliamentary democracy Article 20 (1) of the Basic Law defi nes the Federal Republic of Germany as a “democratic state.” Paragraph 2 of the same article reinforces this provision by declaring that “all state authority emanates from the people.” The next sentence, however, emphasizes the representative character of the political system.4 The authority emanating

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from the people “shall be exercised by . . . means of elections and voting and by specific legislative, executive, and judicial organs.”5 The Basic Law establishes the Parliament (Bundestag) as the chief representative organ charged with transforming “the political will of the sovereign people into the government’s and legislature’s.” 6 As Michael Brenner explained: In a representative democracy, some special body must effectuate the principle of people’s sovereignty. Th is special body, representing the people’s will in the Federal Republic of Germany, is the German Bundestag with its parliamentary representation. It is primarily through the Parliament that the people influence the exercise of state power, which is their constitutionally guaranteed and ensured right through the principle of people’s sovereignty. . . . The Bundestag, as the central and also the only directly democratically legitimated representative body, ensures that state power is actually based on the people’s recognition and approval. It thus plays the decisive and leading role within the structure of state powers.7

After reunification, the Bundestag left its West German home in Bonn to take up residence in the spectacularly redesigned Reichstag building in Berlin. Th is had the effect of directly acknowledging Germany’s troubled history with parliamentary democracy.8 Nonetheless, one of the Reichstag building’s many poignant artifacts attests to the unequivocal link between the people and their representative body; the words “To the German People” (“Dem Deutschen Volke”) are prominently inscribed in the stonework above the main entrance. Germany is not a parliamentary democracy in the British sense of parliamentary supremacy. The Basic Law, as interpreted by the Federal Constitutional Court, controls Parliament as well as every other branch of government. The Basic Law, however, only addresses the functions and character of the Bundestag in general terms, leaving many of the relevant details to this chamber’s discretion.9 As noted in Chapter 4, Germany shares with Britain and other parliamentary systems the close nexus between the federal government and the parliamentary majority, which elects and can remove the chancellor. In Germany, it is also typical that the chancellor and his or her government ministers are also members of the Bundestag. This close nexus uniquely implicates the parliamentary minority in the constitutional separation of powers and the representation of the German people. The balance of partisan power in the Parliament, with its attendant consequences for governing authority and accountability, makes competition among political elites within the Bundestag a particularly important facet of German democracy. As Georg Ress observed, “the interest of the majority party in supporting the government will often make it impossible for it to serve as an effective counterpart. This is reflected in the Basic Law, where the parliamentary rights to control the executive are often formulated as minority rights. [For example, it] takes only one fourth of the members of the Bundestag to establish an investigative committee (Art[icle] 44 [(1)]).”10 Volker Röben argues that “Article 44 of the Basic Law is one of the most litigated institutional provisions of the constitution”

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because of the political significance and sensationalism of parliamentary investigations of the government. “The obvious interest of the parliamentary majority will . . . be,” Röben explains, “to protect its [g]overnment against the opposition.”11 The Federal Constitutional Court frequently has been called upon to protect the interests of opposition and minority parties in the Bundestag, particularly with respect to their participation in and influence over the important work of parliamentary committees. It has done so with clarity and authority by blocking the parliamentary majority from adding matters to an investigative committee’s mandate,12 by limiting the executive’s privilege to withhold evidence from investigative committees or members or Parliament,13 and by balancing an individual’s right to privacy against the important constitutional interest in an investigative committee’s effectiveness.14 The Minority Rights in Investigative Committees Case is another in this line of cases. The Court showed great concern for minorities in parliamentary investigations, directly linking the minority’s function in that context with the essence of German democracy. The case arose when, a year after losing the 1998 federal election, Helmut Kohl found himself embroiled in a party fi nancing scandal that would tarnish his reputation and force him to resign both his seat in the Bundestag and the honorary chairmanship of his party, the Christian Democratic Union (cdu). It was a sudden fall from grace for (to that point) Germany’s longest-serving chancellor and the man many Germans regarded as the father of reunification. A criminal investigation revealed, and Kohl ultimately admitted, that he had accepted secret, undeclared donations totaling several million Deutsche Marks (dm) for his party between 1993 and 1998. Th is was a violation of Germany’s strict party fi nancing laws and perhaps the constitution.15 Kohl refused to identify the donors, explaining that he had given his word that he would protect their confidences. In part, the investigation pointed toward political kickbacks associated with the sale of arms to Saudi Arabia and the sale of a former East German oil company to the French company Elf Aquitaine. The newly elected center-left majority in the Parliament, including the Social Democratic Party of Germany (spd) and the Green Party, easily satisfied the onefourth qualified minority rule of Article 44 (1) to convene a majority inquiry (Enquête) committee to investigate the party fi nancing allegations against the former Kohl government and the cdu. The committee’s initial mandate was later expanded to cover any irregularities in party fi nancing. Under this broader mandate the cdu committee members, although in the minority, pressed to have the committee investigate allegations of spd corruption. Not surprisingly, the committee’s spd majority refused to honor the requests for spd-related evidence, arguing that the minority was seeking to disrupt, undermine, and delay the committee’s work. 5.1 Minority Rights in Investigative Committees Case (2002) 105 BVerfGE 197 [The cdu minority turned to the Federal Constitutional Court, alleging violations of Articles 22 (1), 38 (1), and 44 (1) of the Basic Law. The Court made the

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requested temporary injunction moot by moving quickly to rule on the merits. But fi rst the Court had to resolve the difficult question of the application’s admissibility. In fi nding the application admissible the Court departed from an earlier decision in which it ruled that its Organstreit jurisdiction did not extend to intra-parliamentary disputes but applied only to disputes between the organs of the Federation. Contradicting this position in Minority Rights, the Court concluded that a parliamentary minority (of at least one-fourth of the parliamentarians) was especially empowered by Article 44 (1) of the Basic Law to make use of the Bundestag’s investigative apparatus and that this authority was accompanied by a right to seek the protection of this authority before the Federal Constitutional Court. Th is was true, the Court held, even in the present case where it had been the parliamentary majority that invoked Article 44 (1) for the creation of the committee. Having stretched to seize the matter, the Second Senate ruled for the cdu—the parliamentary minority—on the substance of the application.]

∂

Judgment of the Second Senate. . . . C. The applications are well-founded. . . . The respondent infringed the applicants’ rights under Article 44 (1) [1] of the Basic Law insofar as, without sufficient justification, it rejected motions by the applicants to hear evidence and did not implement motions to hear evidence that had already been passed. I. The committee’s minority, which is qualified and entitled to have the committee established pursuant to Article 44 (1) [1] of the Basic Law, has the right to have evidence taken in the committee. The minority establishing the committee has a right to have its motions to hear evidence considered by the committee’s majority; this also applies to the minority that potentially could have called for the establishment of the investigative committee. The minority’s motions to hear evidence must be granted unless the right of motion is being exercised inappropriately or improperly. The committee, that is, the committee’s majority, must give understandable reasons for the rejection of a motion to hear evidence raised by the committee’s minority. In this respect, the Federal Constitutional Court has jurisdiction to undertake only a limited review of reasonableness. Resolutions to hear evidence that have been passed on a motion of the minority also must be implemented by the committee. Nevertheless, control over the proceedings lies in the hands of the committee’s majority in each case. The majority decides on the order in which evidence is to be heard, having regard to the rights of the qualified minority, and must ensure, by appropriate rules of procedure, that the selection remains balanced, even where there is a risk of discontinuity. 1. Article 44 (1) [1] of the Basic Law confers on the Bundestag the right to establish investigative committees. Parliament is thereby given the opportunity, without the involvement of the government or administration, to obtain the information it

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regards as essential for the fulfi llment of its tasks. The main focus of the investigations invariably is on parliamentary control of the government and the administration. The right of investigation under the system of constitutional monarchy primarily was an instrument of the elected parliament against the monarchist executive. Under the conditions of the parliamentary system of government, however, the right of investigation largely has developed into a right of the opposition to have facts clarified independently of the government and its parliamentary majority. The Basic Law, therefore, has conferred on the Bundestag the right to establish an investigative committee and it has made this a duty for the majority if one-quarter of the parliamentarians request it. Article 44 (1) [1] of the Basic Law protects minorities in order to achieve a balance between parliamentary majority rule (Article 42 (2) of the Basic Law) and qualified minority rights (Article 44 (1) [1] of the Basic Law). a. The regulatory content of Article 44 (1) [1] of the Basic Law stretches beyond the duty of the Bundestag to establish an investigative committee on a motion of onequarter of its members. The tension between majority and qualified minority that the constitution accepts at the time the committee is established continues in the investigative proceedings. Irrespective of what rights of participation already flow from one’s status as a member of parliament (Article 38 (1) of the Basic Law), the members of a parliamentary party bloc (Fraktion) also may rely on the minority right enshrined in Article 44 of the Basic Law. Within the scope of the terms of reference of the investigation and subject to the majority principle, the minority seeking to establish a committee must be able to influence the decision on taking evidence. While the scope of this right of influence cannot extend further than that of the majority, it must be regarded in principle as equal in terms of weight. The majority and the qualified minority must be able to assert their ideas of what constitutes proper clarification. That interpretation, recognizing the meaning and purpose of Article 44 (1) [1] of the Basic Law, is not contrary to the intention of the framers of the constitution. . . . b. The right of the qualified minority to reasonable consideration of its motions to hear evidence also exists in the context of a majority inquiry (Enquête). In order to secure enjoyment of the procedural rights under Article 44 (1) [1] of the Basic Law, the minority entitled to establish the inquiry does not have to be constituted with an investigation motion of its own. Were this required by the constitution, the minority entitled to establish an inquiry would counter practically every majority inquiry with a minority inquiry of its own, either in parallel to the establishment of the majority inquiry or later in the event of a confl ict over the taking of evidence. That would give rise to a concurrence of investigative committees, which would be necessary only for the purpose of safeguarding rights. But the parallel committees would be politically undesirable because they would be concerned with overlapping or identical factual situations. As a consequence of this, evidence would be taken twice over, witnesses would have to testify before two investigative committees and fi les and other papers would be subpoenaed by both committees concurrently. Such a two-track approach

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to an investigation of a matter of public concern, considered necessary by the majority and the opposition minority in equal measure, would lead to a fragmentation of parliamentary business and to the risk of mutual obstruction in the fulfi llment of investigative tasks. The minority potentially entitled to establish an investigation, therefore, retains its procedural rights under Article 44 (1) [1] of the Basic Law even if it initially voted against the establishment of the investigative committee. There can be many different reasons for opposing a politically unwelcome inquiry but later wishing to cooperate with it. Nor can it be denied that there is a risk that the right of investigation, in the hands of the majority and in agreement with the government supported by it, could be directed against the parliamentary opposition. In that case the qualified minority must remain free to oppose the establishment of the investigative committee and—after the failure of such efforts—to take an active, influential role in the committee in order to secure a balanced clarification from its point of view. 2. Motions to hear evidence of the minority potentially entitled to establish the investigative committee must be complied with, provided that the right of motion is not abused. An order to hear evidence creates clarity, which is part of the committee’s agenda of clarification; this also applies to the formal rejection of a motion to hear evidence. The rejection by the majority of a motion to hear evidence of the qualified minority may not be based on the majority principle of Article 42 (2) of the Basic Law alone. Rejection requires a statement of reasons. The committee’s majority may reject motions to hear evidence of the qualified minority if it comprehensibly demonstrates that the minority is inappropriately exercising the rights conferred on it. Th is may be the case, for example, if the requested taking of evidence lies outside the investigation’s terms of reference or is unlawful, or if it is intended merely to delay or is manifestly improper. Having regard to parliamentary autonomy and to the par ticu lar nature of the investigatory procedure as an instrument for the clarification of issues in the context of political controversies, the Constitutional Court must confi ne itself to examining whether the statement of reasons given by the majority is comprehensible and whether the framework of assessment made available to the majority by procedural autonomy, in par ticu lar in interpreting the investigation’s terms of reference, has been utilized in a reasonable manner. Th is may be lacking if the reasons given for rejection do not reveal the documentary evidence for the inappropriateness of the rejected motions to hear evidence or if an interpretation of the investigative mandate is not understandable using legal methods of interpretation. 3. The committee must implement orders to hear evidence once they have been made, even if they have been requested by a qualified minority. But procedural control over the order of presentation of evidence and over the suitability of dates fi xed lies in the hands of the committee’s majority in each case. It must decide on the implementation of orders to hear evidence and ensure that the investigation’s terms of reference can be fulfi lled. Yet, the majority’s procedural control is restricted by the right of the qualified minority to reasonable participation. If, in the view of the majority, not all

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motions for evidence can be handled, it must ensure by means of appropriate rules of procedure, as contained in, for example, § 17 (3) of the Parliamentary Investigatory Committees Act that the minority is reasonably taken into consideration and that its views are heard.

∂

The Rights of Minority Parties. The Schleswig-Holstein Investigative Committee Case (1978)16 is one of the most prominent of the many cases in which the Federal Constitutional Court has been asked to vindicate the participatory rights of minority parties, particularly parliamentary parties opposing the dominant coalition.17 In Schleswig-Holstein Investigative Committee, unlike Minority Rights, the Federal Constitutional Court served in its special capacity as the constitutional court for the state (Land) Schleswig-Holstein18 and, thus, was charged with interpreting the parliamentary investigative committee provision of the Schleswig-Holstein Constitution (Article 5). The case involved the opposite of the situation in Minority Rights. Instead of a parliamentary minority being given the authority to contribute to the direction and focus of an investigative committee created by the majority, in Schleswig-Holstein Investigative Committee the Court limited the majority’s authority to manipulate an investigative committee constituted by a parliamentary minority. The Court’s opinion points out that an effective parliamentary opposition is an important aspect of the principle of separation of powers in a political system in which the same coalition controls both legislature and executive. For this reason, the Constitutional Court has vigilantly defended the rights of opposition parties unless such parties are found to reject the central core of the constitutional order. Along with the right of a qualified minority to constitute an investigative committee, the Federal Constitutional Court has considered a number of other issues involving the role of minority parties in the functioning of the Bundestag and German democracy more broadly. The remarkable rise to prominence of the Green Party provided more than a few of these cases. The Green Party, which burst onto the West German political scene in the federal election campaign of 1983,19 tested Parliament’s capacity for tolerating a party that opposed the established parliamentary parties on almost every significant public policy issue and whose unconventional political style antagonized most of the established parties. In 1983, several ecological, antinuclear, feminist, and peace groups organized themselves into a loose alliance known as the Greens, a grassroots countercultural movement disillusioned with politics as usual and the “corruption” of the established parties. They opposed the installation of nuclear missiles in Germany, the Federal Republic’s participation in military alliances, the multiparty political consensus that had been achieved in many areas of domestic policy—including the agreement to push forward with the development of nuclear energy—and even the German system of parliamentary representation. Running on this platform, the Green Party won more than 5 percent of the votes in the 1983 federal election, entitling it to twenty-seven seats in the Bundestag. More established politicians viewed the new delegation with amusement and scoffed at its

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“outlandish” proposals and behavior. Uncooperative and rancorous in these heady early days, the Green Party seemed more effective as a burr under the saddle of the traditional parties than as a unit offering concrete proposals for reordering society. These parties also distrusted the Green Party, especially in matters of national security. As a consequence, the Green Party was denied a seat on a special committee responsible for the budget of the intelligence ser vices. The Green Party Exclusion Case is one of several constitutional challenges initiated by the Green Party over the years to vindicate its institutional or representational rights.20 5.2 Green Party Exclusion Case (1986) 70 BVerfGE 324 [In 1984 and 1985 the Bundestag excluded Green Party representatives from the list of delegates elected to the special five-member Parliamentary Committee for the Control of the Secret Ser vice. Th is committee, whose members are elected by a majority of the whole Parliament and whose membership normally includes at least one representative of each parliamentary party, has jurisdiction over the budgets of the intelligence agencies. The Green Party challenged its exclusion in an Organstreit proceeding on several constitutional grounds. Most importantly, it argued that the Bundestag’s actions violated Article 38 (1), which in its view gave the Green Party a right, as “representatives of the whole people,” to be represented on all parliamentary committees. It also claimed that the secrecy of the committee’s deliberations offended Article 110 (1) of the Basic Law, which requires “all revenues and expenditures to be included in the budget.”]

∂

Judgment of the Second Senate. . . . [The Second Senate upheld the Bundestag’s procedures in this case. The Court affi rmed the basic right of an “individual representative under Article 38 (1) of the Basic Law to information that would allow him or her competently to assess the [soundness] of the budget.” Article 110 (1), however, does not “absolutely require publicity” in all circumstances. Parliament is entitled, said the Court, to “adopt a certain mode of deliberation that serves classified interests so long as it observes the principles of parliamentary democracy.” These principles were observed here inasmuch as Parliament 1) is autonomous in matters pertaining to its own procedures, 2) provided by law for a special committee to deal with budgetary proposals related to the secret ser vice, and 3) had overwhelmingly compelling reasons for proceeding in this manner. In the following excerpt, the Court underscored the parliamentary need for committee members who personally enjoy the confidence of the majority.]

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C. II. 3. a. The importance of secrecy in meetings concerning the budget of the intelligence ser vices requires a high measure of precaution. It is not the Constitutional Court’s function to weigh the particulars of how far such precautions should extend. The decision to leave this area of concern to a very small parliamentary committee is constitutionally permissible. In previous budgetary years it was also customary to confine deliberation over the budget of the secret ser vice to a very small committee, a subcommittee of the Budgetary Committee. The reasons advanced by the respondents [the federal government and president of the Bundestag] for the small size of the committee under the terms of § 4 (9) of the 1984 Budget Act are plausible. The most sensitive issues of national security are discussed in this committee. Bundestag representative Kühbacher, in hearings before this Court, noted that on the basis of the information received by the committee, one could assemble a coherent picture of the concrete operations of the secret ser vices in a way that would endanger the lives of particular individuals. Under these circumstances, to minimize the risk of disclosure, there are valid reasons for keeping the committee as small as possible. b. A majority of the Bundestag’s members chose the members of the committee. . . . Th is procedure was designed to ensure that only those delegates would be chosen who personally enjoy the confidence of a parliamentary majority. The purpose of the procedure is to make sure that the majority is convinced that the persons selected are both competent and discreet. Th is procedure is unusual and for that reason approaches the borderline of constitutionality because it is possible that the majority may not observe the proper criteria in making such decisions, but rather . . . ignore the rights of the minority and from purely political motives stack a committee with persons of their own political persuasion. That has not happened here. The five members of the committee, under the terms of the budgetary law for 1984, were selected on the recommendations of the cdu/ csu, spd, and fdp. The committee consisted of three representatives from the [coalition] parties and two from the opposition. The majority has not, therefore, abused the right of the minority. . . . [Justices Mahrenholz and Böckenförde dissented. The following extract is from Justice Böckenförde’s opinion.] I am unable to agree with the Court’s decision. The exclusion of the Green Party from participation in the budgetary deliberations concerning the secret ser vice violates principles protected by Articles 38 (1) and 20 (1) and (2). . . . I. 1. As the direct representatives of the German people, all the delegates elected to the Bundestag have the right to participate in its deliberations. The representatives as a whole make up the Parliament (Article 38 (1) [1]). Each individual delegate is a representative of all the people (Article 38 (1) [2]); jointly they make up the “representation of the people” and they are empowered by the people, in their capacity as an active citizenry, to represent the people as a whole. As a consequence, every individual representative is called upon to represent the people and to participate in the Parliament’s negotiations and decisions. Each has a

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specific and equal right to such participation. Only in this way can representatives responsibly carry out the official function for which they have been elected. Representatives are not to be divided into classes depending upon their identification with a political group or on whether they are affi liated with the majority or the minority parties. 2. What is basic to parliamentary democracy is the participation of all the representatives in negotiations conducted by the people’s representatives; this is the basis of majority rule among the representatives of the people, ensuring that all legislative decisions will be truly representative in nature and reflect the totality of the people’s will. It is precisely this general participation in the formation of the political will of Parliament—a process emanating from general intellectual and political discussion and argumentation—that legitimates the inherent right of a parliamentary majority to decide issues of public policy. One process cannot be separated from the other. Th is principle applies especially to those core functions of the Parliament, particularly the right of members to participate in the process of legislation and to pass laws dealing with the budget. Even deliberations within the type of committee established by § 4 (6) of the 1984 and 1985 budget laws are subject to this principle. Parliament may not surrender its right to deliberate by transferring certain aspects of budgetary planning to a small committee operating in secret. . . . 4. The principle of complete participation of all—including individuals and parliamentary parties—is not merely an axiom but is also an inalienable principle of a representative parliamentary democracy. A parliamentary majority thus cannot do away with this principle, not even within the framework of its admitted authority over matters of procedure. . . . 5. . . . To be sure, the Court’s majority underscores the importance of the equal participatory rights of all parliamentary parties. But the majority treats this idea as a notion or a rule, and not as an inalienable principle essential for the structuring of the representation of the people. Th is is the reason the Court . . . permits exceptions to the principle based on the factual considerations set forth in the majority decision. Admittedly, the Court tries to limit these exceptions so as to be able to restrict them to “narrowly limited exceptions.” But . . . these limitations are so general and open-ended . . . as to permit . . . a parliamentary party to be excluded from participating in parliamentary deliberation merely on the basis of unsubstantiated conjecture. The situation here clearly illustrates the arbitrariness of the Bundestag’s action. The Bundestag has never charged the representative or the parliamentary party requesting participation in its committee deliberations with failing to maintain secrecy in similar cases; nor did the Bundestag declare with certainty that the representatives from the Green Party would not maintain secrecy in the deliberations at hand. According to the oral arguments, neither the representative nor the parliamentary party was specifically asked if they were ready to maintain secrecy concerning the budgetary matters in question and the agreements already made in

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connection with these matters. The majority’s general distrust of the Green Party and the utterance of one of its members immediately following the 6 March 1983 federal elections that she felt no obligation to maintain confidentiality about information to which she had access—an utterance contradicted within the Green Party—apparently was enough. Without any further explanation and without any procedural measures, a path was chosen for deliberating on these budgetary plans that was . . . calculated to exclude the parliamentary party from participating in the deliberations. By proclaiming this procedure constitutional, the Court indicates both its recognition of the authority of a given parliamentary majority to dispose of the principle of universal participation and how little validity it attributes to this principle. Ultimately, the maxims of trust and suspicion suffice to determine when and how one will depart from it. In my opinion this is not right.

∂

Although it lost the Green Party Exclusion Case, the party could take some comfort in the strong dissenting opinions of Justices Mahrenholz and Böckenförde. These opinions laid the basis for other constitutional challenges against practices the Green Party considered equally discriminatory. In fact, the Green Party won a victory six months later when the Constitutional Court struck down a major provision of a tax statute affecting the fi nancial status of political parties.21 Justice Böckenförde wrote a separate opinion in the case saying he would have gone further to protect small parties like the Green Party. In his view, legislation that bolsters the “oligarchical” and “careerist” elements of the established parties erodes Parliament’s representative character.22 Today, the Green Party is very much a part of the political establishment. In the early 1990s the Green Party transformed itself from an “anti-party” concerned mainly with ecological issues into a responsible party Fraktion of the left , pragmatic enough to enter coalitions with the spd in several Land governments and broad enough to threaten the position of the Free Democratic Party (fdp) as the major third force in German politics. Th is process of political maturation and rising influence reached new heights in 1998 when the Green Party won more than 6 percent of the national vote, allowing it to enter into a coalition government with Gerhard Schröder’s Social Democrats. Most prominently, the Green Party’s parliamentary leader Joschka Fischer gained widespread respect as vice chancellor and foreign minister in the Schröder government. Four years later, the Green Party’s dramatic showing, with nearly 9 percent of the national vote, salvaged the government’s reelection hopes. The Green Party’s transition to a mainstream force in German politics was cemented by its historic victory in BadenWürttemberg’s state parliamentary elections in March 2011. The Green Party edged out the spd on the left , enabling them to lead a Green/spd coalition in the state, which had been governed by the center-right cdu and coalition partners for nearly six decades.

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In Surveillance of Members of Parliament (2009), another case involving the rights of the Green Party while in opposition in the Bundestag, the Court continued its tradition of protecting the interests of parliamentarians—especially those aligned with minority parties—as a feature of the Basic Law’s commitment to democracy. The suspicion in which the Green Party was held in the years after fi rst entering Parliament seems to have endured in some quarters, despite the party’s assimilation and success. After the demise of the historic spd/Green federal government, the Green Party assumed the role of parliamentary opposition to Chancellor Angela Merkel’s newly elected grand coalition (cdu/csu-spd). In 2006 members of the Green Party Fraktion in the Bundestag came to believe that, like members of an extreme-left opposition party, the German intelligence ser vices had them under surveillance. Stunned by this possibility, several Green Party parliamentarians presented the government with formal questions (referred to as kleinen Anfragen) seeking information about the nature of the surveillance, the information that was being gathered, and how the intelligence community was using the information it collected. The government refused to answer the questions, arguing that to do so would reveal—and jeopardize—the practices, strategies, methods, and current intelligence of Germany’s security ser vices. The Green Party complained to the Constitutional Court about this snub in an Organstreit proceeding. The Second Senate held that surveillance of parliamentarians posed unacceptable risks to their constitutionally guaranteed independence (Article 38 (1) and their work within the constitutionally reinforced political parties (Article 20 (2)). Th ese risks, the Court concluded, were exacerbated by the government’s refusal to provide answers to the kleinen Anfragen. In Green Party Exclusion the Court confi rmed that parliamentarians—especially those from minority Fraktionen—have the right to demand and receive information from the government. The Court reiterated that principle in Surveillance of Members of Parliament while recognizing that Parliament’s right to information may be limited for security purposes. But the Court concluded that the security concerns raised by the government were not adequate to justify its refusal to provide the information requested by the Green Party, which “would not lead to the revelation of details about the practices, strategies, methods, and gathered information” of Germany’s intelligence community. 23 Independents and Independence in the Bundestag. In the Wüppesahl Case (1989) the Court was asked to rule on the rights of an independent representative in the Bundestag.24 The Second Senate recognized the constitutional significance of parties in the Basic Law’s parliamentary and democratic scheme and acknowledged some measure of constitutional advantage for the Fraktionen in the Bundestag. But the Court insisted that all parliamentarians enjoy a core set of competences, characterized by the principles of free and equal parliamentary mandates. These principles ensure that every Bundestag deputy is a representative of the whole German people, equal to every other deputy (without regard to party membership), and responsible only to

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his or her conscience (not taking orders from his or her party).25 Article 38 (1) of the Basic Law provides the bulwark for these principles. In light of the dominant role played by parties in Germany’s democracy, commentators have explained the practical consequence of these principles in the following terms: “[a]s a matter of fact [parliamentarians] mostly adhere to their party’s line, but legally they are not obliged to do so.”26 Nonetheless, in Wüppesahl the Court ruled that the effective fulfi llment of these principles requires the parliamentary parties to grant independents access to the Bundestag’s legislative processes. The free and equal mandate enjoyed by German parliamentarians expresses some of the most fundamental precepts of representative democracy under the Basic Law. Former Federal Constitutional Court Justice Helmut Steinberger emphasized that Bundestag deputies are the chief agents of representative legitimacy in the German system. As such, it is essential that they enjoy “complete freedom of discussion and decision.”27 Parliamentary Committees and the Bundestag. As the litigation stirred up over issues of committee participation suggests, legislative committees are the immensely important work horses of the Bundestag. Orga nized by subject matter, they are empowered to hold hearings on matters referred to them and to prepare bills for parliamentary consideration. The Basic Law itself requires several permanent committees, including, inter alia, the Committees on Election Scrutiny (Article 41), Foreign Affairs and Defense (Article 45a), Petitions (Article 45c), Judicial Selection (Article 95), and the Eu ropean Union (Article 45). The Basic Law also creates freestanding committees, like the Mediation Committee “for joint consideration of bills” between the Bundestag and the Federal Council of States (Bundesrat; Article 77 (2)).28 The Bundestag’s Rules of Procedure govern the membership and the conduct of these committees. Under Rule 12 the parliamentary parties appoint committee chairs and members proportionate to the parties’ strength in the chambers as a whole. Thus, the parties play a crucial role in determining who gets appointed to which committees. In the aftermath of Wüppesahl, every member of the Bundestag is entitled to serve on at least one committee, and if he or she is an independent, the Bundestag’s president is authorized to make the committee assignment. Under Rule 57 (2), however, an independent member of a committee is not entitled to vote. 29 In the Mediation Committee Seat Assignment Case the Federal Constitutional Court considered the Bundestag majority’s prerogative to manipulate the rules for calculating committee membership. The case highlighted the tension between the competing principles of democracy present in each of the preceding cases. For example, principles of representation compete with principles of democratic governance. The former consists of free and equal elections and the requirement that subunits of Parliament mirror the composition of the Bundestag as a whole (Spiegelbildlichkeit). The latter consists of majority rule. To the benefit of the Bundestag’s minority parties and independent members, the following case once again prioritized the principle of representation.

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5.3 Mediation Committee Seat Assignment Case (2004) 112 BVerfGE 118 [Following the 2002 national elections the center-left parties narrowly retained a majority in the Bundestag, allowing spd Chancellor Gerhard Schröder’s government to remain in office for a second term. Among the newly elected Bundestag’s fi rst acts was the distribution of seats in the parliamentary committees. Largely due to the thin margin between the majority and opposition parties in the Bundestag (the spd/Green coalition enjoyed a mere nine-seat advantage), the traditional methods of calculating the partisan composition of Bundestag committees often would have assigned an equal number of seats to the majority and the opposition. For example, the sixteen seats in the powerful Mediation Committee would have been shared equally by the majority coalition and opposition parties. In light of this result the Bundestag majority sought to implement a novel accounting scheme in order to ensure that the composition of committees would reflect its thin majority in the Bundestag’s plenum. In the Mediation Committee this corrective procedure would have added one seat to the majority’s representation on the committee at the expense of one of the opposition’s seats. In an Organstreit proceeding the opposition objected to this allocation of the Mediation Committee’s seats, asserting violations of the parliamentary minority’s constitutional rights (Articles 38 (2), 40 (1), 21 (1), 20 (2), and 77 (2)). The Court gave only marginal priority to the principles of representation and majority rule on which the government relied in defending its proposed unorthodox allocation of seats.]

∂

Judgment of the Second Senate. . . . B. The admissible application is successful to the extent indicated. . . . [The Court began by emphasizing a number of fundamental principles. It reiterated the principle that Bundestag committees must conform to the principle of Spiegelbildlichkeit. The Court explained that this principle derives from twin representational values grounded in the Basic Law: the freedom and equality of members of the Bundestag. On the one hand, Article 38 (1) [2] of the Basic Law makes every member of the Bundestag “a representative of the whole people” and, therefore, equal. On the other hand, the same provision establishes that deputies are not bound by orders or instructions, but are “responsible only to their conscience.” The Court concluded that an individual Bundestag member’s freedom and equality are not compromised by his or her participation in a Fraktion. Th is rule, the Court explained, is intended to ensure that parliamentary committees replicate on a smaller scale the composition of the plenum in its concrete, organizational form characterized by the Fraktionen. It makes it possible for the committees’ tasks to be fulfi lled in a manner that satisfies the

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requirement of equality. The Court then noted that departures from these fundamental principles are permitted only if there are special grounds. The constitutional requirement to ensure a functioning Parliament is one such acceptable ground.] I. 1. e. Section 12 and § 57 (1) [1] of the Rules of Procedure of the Bundestag thus at the same time implement a derogation, required by the constitution, from the majority principle, which, according to Article 42 (2) [1] of the Basic Law, applies to decisions of the Bundestag, but, according to the second sentence of that provision, is open to other provisions of the Rules of Procedure of the Bundestag. The allocation of committee seats according to the proportional strength of the Fraktionen requires, since only whole seats can be distributed, the use of counting procedures that can lead to discrepancies in the allocation result. The Federal Constitutional Court has accepted the parliamentary practice, pursuant to which the counting procedures for a resolution under § 57 (1) of the Rules of Procedure of the Bundestag also may be selected specifically in the light of whether the chosen procedure reflects the political majority supporting the federal government in the Bundestag. Before this case, it was not necessary to consider whether the constitution justified changes to the conventional counting procedures for establishing Bundestag committees, perhaps by means of a corrective factor. After all, the Bundestag has it in its hands to increase or reduce the number of seats in a committee and thereby avoid stalemates between the governing majority and the opposition minority. In the case of the Mediation Committee, this parliamentary practice is closed to the Bundestag without the cooperation of the Bundesrat. The question therefore arises more clearly here as to how far the need for a replication of the government’s parliamentary majority is capable of influencing the principle of representation and proportionality required under Article 38 (1) of the Basic Law. That question cannot remain unanswered, because it is specifically the allocation of seats on the Mediation Committee, which is at the center of the present Organstreit proceeding. That is because, even though the Mediation Committee is not a committee of the Bundestag, the principle of proportional consideration according to Fraktion strength also applies. 2. The Mediation Committee is a permanent and joint subsidiary organ of the Bundestag and the Bundesrat provided for in the constitution. The aim of its work is to bring a specific legislative procedure to a positive conclusion either by avoiding the objection of the Bundesrat or by obtaining its consent, initially withheld, to a Bundestag enactment. Th is is to be achieved by seeking a reconciliation of interests at a higher political level and from overriding perspectives. In that respect the Mediation Committee is the institutional consequence of the fundamental decision of the framers of the constitution to involve two decision makers, the Bundestag and the Bundesrat, in federal legislation. It opens up the legislative process, in a defi ned set of circumstances, to institutional negotiated solutions.

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[The Court then outlined the unique characteristics that, to the mind of the majority of the Second Senate, counseled against permitting the Bundestag majority to recreate its majority in the composition of the Mediation Committee. The Court explained that the Mediation Committee was meant to facilitate negotiations between a likeness of the whole Bundestag, including its representative character as expressed by the proportional strength of parties in the Parliament, and representatives of the Bundesrat (Federal Council of States). The Court noted that the Mediation Committee’s independence and significant role in the legislative process distinguished it from the Bundestag committees over which the parliamentary majority exercised greater discretion.] It follows from all the foregoing that the Members of the Bundestag on the Mediation Committee must represent the relative political strengths in the plenum of the Bundestag according to the Spiegelbildlichkeit principle. Otherwise the Bundestag as a whole would be forced into the constraints of consensually predetermined procedural decisions on which it would not have had an influence satisfying the requirement of equality in accordance with Article 38 (1) of the Basic Law, even though this would not be justified by special objective reasons. II. The Spiegelbildlichkeit principle, which therefore also applies to the allocation of the Bundestag seats in the Mediation Committee, does not apply without restriction. It must, in the event of confl ict, be reconciled with the principle of the formation of a stable parliamentary majority. The status of deputies and Fraktionen, which conforms to the requirement of equality, permits differentiation where special reasons exist. The requirements of equality, which apply to participation in the process of parliamentary formation of opinion, are limited by the constitutional requirement of safeguarding the ability of Parliament to function and by the democratic principle of majority rule (Article 42 (2) [1] of the Basic Law). Where the Spiegelbildlichkeit principle and the principle that in substantive decisions the parliamentary majority supporting the government must also be able to prevail in smaller-scale replications of the Bundestag come into confl ict, then both principles are to be brought into a careful balance. 1. The majority principle is one of the sustaining principles of liberal democracy. It is true that “the majority” is not furnished with any special rights, either in the Basic Law or in the Rules of Procedure of the Bundestag, and forms a “political,” not a legal, category only constituting itself each time from case to case. But the majority principle enshrined in Article 42 (2) [1] of the Basic Law is recognized in constitutional law. According to that provision, resolutions of the Bundestag are to be passed by a majority of the votes cast; exceptions—unless provided for by the constitution itself—may be permitted by the Rules of Procedure with respect to elections. The principle of proportional representation ceases as a right to equality and protection of minority rights at the point, so to speak, where decisions are made on the substance of a matter. Only in this way can the majority of the representatives

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prevail so that the formation of the democratic will can manifest itself as the will of the majority. The Basic Law not only regulates the principle of majority rule, but also seeks to guarantee a stable parliamentary majority in keeping with the political forces that form the government. After the experiences with the presidential cabinets of the Weimar Republic, which governed without a regular parliamentary majority from the time of the Brüning government onward, the Basic Law sought to avoid such crippling discord between Parliament and government as far as possible. Evidence of that can be seen primarily in the limitation of the Bundestag to a constructive vote of no confidence (Article 67 (1) of the Basic Law), but also in the framing of the vote of confidence (Article 68 of the Basic Law). Smaller-scale replications of the Bundestag must therefore comply, in terms of personnel, with the Spiegelbildlichkeit principle, although deviations are justified to a limited extent if that is the only way of enabling the smaller-scale body to reach substantive decisions that have a realistic prospect of corresponding to the will of a political “[g]overnment majority” in the plenum. Th is applies without prejudice to the question as to whether the majority principle possesses the same influential force as the principle of representation from which public authority derives its legitimacy. 2. The function and tasks of the Mediation Committee do not require a mandatory orientation of the allocation of seats on the committee to the majority principle to such an extent that the Spiegelbildlichkeit principle would have to give way in case of doubt. The establishment of the Mediation Committee is aimed at the negotiation of compromises between the legislative bodies; this succeeds if the political opinions of key relevance to a given legislative project can be reconciled. In that regard, the normative form of the mediation procedure does not preclude the political opposition at the federal level from having a majority on the committee in certain cases. Th is ensues from a comparison of the structure of the Bundesrat and Bundestag seats and from the rules on the voting procedure in the committee. [In limiting the importance of the Bundestag’s majority in the Mediation Committee, the Court noted that the Bundesrat’s contribution to the composition of the Mediation Committee also did not seek to replicate that body’s majority. The emphasis of the Mediation Committee’s work, the Court explained, is on open and free negotiations. Th is does not require that the committee engage in conclusory activity of the kind that must respect the principle of the majority rule. Finally, the Court noted that the Mediation Committee’s rules support the conclusion that it need not replicate a governing majority.] In view of the special position and composition of the Mediation Committee, it does not follow that a careful balance between the Spiegelbildlichkeit principle and the majority rule principle is superfluous. Rather, the respondent was obliged to draft its resolution under § 57 (1) of the Rules of Procedure of the Bundestag in such a way that, even with a replication of the chancellor’s Bundestag majority (see Article 121 of the Basic Law), the allocation of seats according to the proportional strengths of

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the Fraktionen, required by § 12 of the Rules of Procedure of the Bundestag, is preserved as far as possible. [The Court concluded that the majority’s process for allocating party seats on the Mediation Committee generally satisfied the constitutional requirement of the principles of representation. Nonetheless, the Court found that, in the details, the majority’s proposal significantly departed from the Spiegelbildlichkeit principle: “The present allocation of seats . . . no longer reproduces the actual proportions of political strength in the plenum of the Bundestag to an acceptable degree.”] . . . The process therefore contradicts the principle that the sovereign expression of will embodied in the election result must be replicated as precisely as possible in Parliament and the bodies derived from it. The solution chosen by the respondent, namely assigning the strongest Fraktion in the Bundestag an additional seat on the Mediation Committee is fundamentally incompatible with the internal law of Parliament embodied in this respect in § 12 of the Rules of Procedure of the Bundestag. The distribution result challenged by the applicant cannot be justified with any of the usual methods of calculation; the “corrective factor” is contrary to the wording and meaning of § 12 [(1)] of the Rules of Procedure of the Bundestag. Th is inadequacy of proportionality expresses itself in the discrepancy between the number of a Bundestag Fraktion’s seats on the Mediation Committee and its share of the total votes cast. [Justices Osterloh and Gerhardt joined a dissenting opinion. Justice Lübbe-Wolff wrote a separate dissenting opinion. The dissenters shared separation of powers concerns over the propriety of the Court’s instructions to the Bundestag for the resolution of the allocation issue. Justices Osterloh and Gerhardt objected that the majority of the Second Senate “abridged the scope of the Bundestag’s autonomous discretion in matters of its internal rules and submitted the Bundestag to a too far-reaching internal control via the Federal Constitutional Court.”]

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The Official Propaganda Case serves as yet another example of the limits the Federal Constitutional Court has imposed on the authority of the governing majority. As it had to a qualified degree in the other cases, the Court also invoked representational principles in limiting the authority of the parliamentary majority. 5.4 Official Propaganda Case (1977) 44 BVerfGE 125 [During the federal election campaign of 1976, the German Press and Information Office and the publications divisions of several federal ministries distributed millions of leaflets, pamphlets, and brochures disclosing the records of

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and benefits conferred by various governmental agencies. Although some of these publications were informational (e.g., ser vice publications and the text of laws and treaties), many promoted the interests of the spd/fdp coalition government. In addition, funds allocated to the publication departments of various agencies were used to take out advertisements in prominent magazines and newspapers, listing the accomplishments of the incumbent government. For example, between 24 May and 26 July 1976, the news magazine Der Spiegel carried a government-sponsored advertisement, three to five pages in length, under the caption, “All in all, this government has brought you more freedom.” The general secretary and Executive Council of the cdu challenged the validity of these expenditures in an Organstreit proceeding before the Federal Constitutional Court. The following extract focuses on the Court’s discussion of parliamentary democracy in its ruling fi nding the public relations measures taken by the government during the 1976 federal election campaign to be unconstitutional. The expenditures were invalidated on three principal grounds: 1) they offended the idea of democracy within the meaning of Article 20, 2) they violated the principle of equality among political parties under Article 21, and 3) they offended the principle of free and equal elections under Article 38.]

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Judgment of the Second Senate. . . . C. I. Our consideration of Article 20 (1) and (2), taken together with Article 2 (2) guaranteeing liberty rights, leads to these conclusions: 1. In the kind of free democracy designed by the Basic Law for the Federal Republic of Germany all public authority emanates from the people by means of elections and voting and is exercised by specific organs of legislation as well as by executive and judicial authorities (Article 20 (1–2)). . . . 2. Elections can confer democratic legitimation in the sense of Article 20 (2) only if they are free. Not only must the actual act of casting the ballot remain free of coercion and undue pressure as stipulated by Article 38 (1) of the Basic Law, but the voters must be able to form and utter their opinions freely and openly. The democratic basic order established by the Basic Law lays down the constitutional conditions for a free and open process of forming the popu lar will. Th is is accomplished especially through numerous constitutional guarantees of freedom and equality as well as through institutional and procedural mechanisms such as the fundamentally public nature of Bundestag and Bundesrat meetings (Articles 42 (1) and 52 (3) of the Basic Law) or the promulgation of enacted laws (Articles 76, 77, and 82 (2)). . . . 4. The integrity of the fundamental act of democratic legitimation—that is, the election of parliamentary representatives—must be ensured. Th rough the act of voting in the sense intended by Article 20 (2) the formation of the popu lar will takes place, rising from the people to the constitutional organs, and not the other way around. Admittedly, the conduct of these constitutional organs has a rather strong

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effect on the formation of the will and opinion of the voters—conduct that is itself instrumental to the voters’ decision. Yet the constitutional organs may not in their official capacity try to influence the formation of the popu lar will by employing additional special measures during elections in order to gain control over these organs. They are constitutionally barred from identifying themselves, as constitutional organs, with political parties during election campaigns and from supporting or opposing political parties with public funds. They are particularly forbidden from influencing the decision of voters through advertising. In addition, the constitutional principle that limits the tenure of the Bundestag and the federal government does not permit the current federal government in its capacity as a constitutional organ to seek reelection, as it were, and to promote itself as the “future government.” Of course, this does not prevent a member of the federal government from entering the election campaign on behalf of a political party in a nonofficial capacity. 5. The Basic Law as a democratic governmental structure provides that basic political decisions be reached by majority rule (citing Articles 42 (2), 63 (2–4), 67 (1), 52 (3), and 54 (6)). . . . Only if the majority emerges in the free and open process of forming the popular will and public opinion—a process that requires constant renewal and in which all citizens of voting age share equally—does the decision of the majority . . . constitute the will of all. Only then does the decision generate a binding commitment for all in accordance with the idea of free self-determination for all citizens. The majority must keep the common good in mind during the decision-making process, particularly the rights and interests of the minority, whose chances of becoming a majority must neither be taken away nor curtailed. . . . Basically, all citizens, regardless of their political convictions or affi liations, bear the burden of fi nancially supporting the state. These fi nancial resources are also entrusted to the state for use on behalf of the common good. As a social, constitutional state the Federal Republic serves this purpose in many different ways, especially by supporting parts and groups in the population of a pluralistic society and its most diverse interests. . . . But this commitment to serve diverse groups does not extend to a politically vital situation, such as a parliamentary election, if the funds and potential supplied and generated by the general public are used to favor or disfavor one political party or candidate over others. The Basic Law tolerates extralegal inequalities of citizens and their political groups in the process of forming popu lar political opinion and the people’s will that culminates in the act of voting. Yet, it bars the state from taking sides during an election campaign in order to influence the competitive relations among the political powers. Organs of the state must serve everyone and remain neutral during an election campaign. . . . Justice Rottmann, dissenting. I dissent from the limitations imposed on federal government activities during the parliamentary election campaign that the majority derives from the principle of democracy and the constitutional principle of equal opportunity for political parties. . . .

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I. The senate bases its ruling on an ideal of parliamentary democracy that fails to do justice to the structure of the political party system in the Federal Republic. Furthermore, it does not sufficiently take into consideration constitutional reality since the founding of the Federal Republic. Democracy as outlined by the Basic Law is a party democracy. Political parties enjoy a legally privileged position under Article 21 (1) of the Basic Law. Article 21 (1) raises them to the level of constitutional institutions and recognizes them as active political units that our modern democracy needs to unite voters in politically active and operational groups, thus giving citizens the possibility of influencing political events. Consequently, political parties constitute a factual monopoly in the creation of constitutional organs at the federal and state levels. Without them . . . the “creative organs” of the Federal Republic cannot function, and political offices in a modern mass democracy cannot be fi lled. [Justice Rottmann went on to describe the party state under the Basic Law as having the following characteristics: 1) Political parties nominate candidates to Parliament and effectively elect the chancellor. 2) The chancellor and his or her cabinet are, respectively, the party chair and either top party functionaries or members of parliament. According to Justice Rottmann, the consequence of these two attributes of the party state is that the federal government functions as the executive committee of the ruling coalition of parties. 3) While the government has an obligation to the entire state, Rottmann argued, it actually seeks to implement its party platform. In so doing, the majority party or coalition uses its platform as one of several concepts of the common good that the people have already approved through national elections. Thus, the will of the people authorizes the ruling coalition to implement and defend its platform against the contrary efforts of the minority parties. The second prong of the dissent focused on the federal government’s past practice of using official resources during election campaigns. Rottmann traced the history of election campaigns since the founding of the Federal Republic. He then noted that the chancellor and most cabinet ministers have campaigned not only as party members but also in their official capacities, using resources of their office to do so. Hence, the idea that the federal government remains neutral during a campaign is a novel idea. Rottmann viewed the practice of using government resources to achieve reelection as an essential and characteristic part of political life as it has developed under the Basic Law.] i. . . . The Federal Constitutional Court cannot simply change past practice without prior announcement of guidelines. It cannot make changes by deriving standards from the Basic Law and calling them constitutional principles that have supposedly always restricted the actions of the federal government. Constitutional reality contradicts this. In truth, in the almost thirty-year history of the Federal Republic, po-

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litically active persons have not gleaned these constitutional restrictions on the federal government from the Basic Law. In the fi nal analysis, nobody had any knowledge of these restrictions, with the result that no federal chancellor, no federal government, no Bundestag, no political party could be familiar with these limitations, which are supposedly required by the constitution.

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Parliamentary Ossification. The Federal Republic’s parliamentary system has been subject to criticism on and off the bench. Recall Justice Böckenförde’s reference to the “oligarchical” tendency that he observed in the established parties,30 a tendency that a former president of the Federal Constitutional Court believed the Second Senate had reinforced in the Legislative Pay Case (1975).31 In 1992, Federal President Richard von Weizsäcker mounted a slashing attack on Germany’s established parties, faulting them for their ossification and lack of creativity.32 Another leading public official spoke of the “representational deficit” affl icting the German Bundestag and advocated more participatory democracy including institutional reforms such as the ballot initiative and referenda.33 Indeed, the Green Party owes much of its early success, particularly among the young, to the grassroots character of its movement as well as to its support of such reforms and other citizens’ initiatives (Bürgerinitiativen). As interpreted by the Federal Constitutional Court, however, the principle of representative, or indirect, democracy embodied in Article 20 (2) would seem to exclude any institutional reform at the national level that would interfere with Parliament’s exclusive control over legislation.34 The language of Article 20 (2) provides for the exercise of state authority “by the people through elections and other votes and through specific legislative, executive, and judicial organs.” Some constitutional scholars suggest that a liberal interpretation of the term “voting” in this provision would permit some forms of direct democracy.35 They believe that referenda on fundamental political issues and even the popu lar ratification of constitutional amendments would be good political therapy for a body politic not altogether satisfied with a sometimes stumbling and indecisive Parliament.36 The prevailing view, however, is that the adoption of plebiscitary devices at the national level would require an amendment to the Basic Law. The Joint Committee of the Bundestag and Bundesrat, a standing body of representatives from both legislative chambers that was added to the Basic Law in an amendment from 1968, seriously considered changing the constitution to permit some forms of direct democracy at the federal level.37 But the reform lacked the two-thirds vote required to amend the Basic Law. German democracy remains a representative, and primarily parliamentary, system. It is, however, a parliamentary system colored by two distinct factors. On the one hand, political parties play a significant role. Th is will be considered in more detail in a subsequent section. On the other hand, the preceding cases establish that it is not a blunt system for realizing the preferences of the parliamentary majority. Instead, the Basic Law makes important concessions to the role of minority parties and independents.

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elections and voting The major principles governing the German electoral process are set forth in the Basic Law. As with the principles of parliamentary democracy, Articles 20 and 38 are the core of the constitution’s electoral regime. Article 20 (2) provides that “the people [shall exercise all state authority] by means of elections and voting.” Article 38 (1) states that parliamentary representatives “shall be elected in general, direct, free, equal, and secret elections,” principles that also bind the states under the terms of Article 28. Article 38 (2) confers the right to vote on all citizens who have attained the age of eighteen years. Article 39 (1), fi nally, provides for legislative terms of four years. The Maastricht Treaty Case (1993; no. 5.5) bridges nearly all the concerns of this chapter. It is a comprehensive declaration of the meaning of German parliamentary democracy. As noted in Chapter 6, pursuant to the Maastricht Treaty member states were able to transfer their sovereign powers to the newly-created European Union (eu). The assignment of such powers to the eu, however, implicates certain inviolable principles of democracy secured by the Basic Law. In its Maastricht Treaty decision the Court held that principles of democracy and free elections do not bar German membership in a supranational interstate community in which decisions are made at a level removed from the national German electorate. Nevertheless, the transfer of such powers must not detract from the right of German citizens to participate in the national lawmaking process in the most prominent way provided by the Basic Law, namely, by voting. 5.5 Maastricht Treaty Case (1993) 89 BVerfGE 155 [The constitutional complaint asserted a violation of Article 38 of the Basic Law, which confers on German citizens an equal right to vote for their parliamentary representatives. Consistent with the core principle of democracy, citizen-voters participate in the exercise of state authority through their parliamentary deputies (Article 20 (2)). It was argued that, to the extent that this authority has been transferred to a supranational institution beyond the control of German legislators, citizen-voters have lost their right to participate in the national legislative process. In short, citizens’ ability to influence national policy by way of voting has been circumvented. Additionally, it was argued that the eu itself suffers from a democratic deficit, for the European Parliament lacks authentic lawmaking power and Germany’s deputies play no significant role in lawmaking at the European level. The Court rejected the complaint but set out strict limits for further European integration in order to preserve the Basic Law’s fundamental democratic commitment.]

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Judgment of the Second Senate. . . . III. B. 1. The fi rst complainant has shown that the Act of Accession may violate his equal right to vote as guaranteed by Article 38 (1) of the constitution. a. Article 38 (1) and (2) guarantee to all Germans entitled to vote the subjective right to participate in electing Bundestag representatives. The power of the state emanates from the people through the voting process. The Bundestag then exercises that power as a legislative body, choosing the federal chancellor and controlling the government. Article 38 does more than ensure that citizens have the right to elect the Bundestag and that constitutional principles will be protected in the election process. It also extends this safeguard to the fundamental democratic content of that right: the fact that any German citizen who is entitled to vote has the right to participate in the election of representatives to the Bundestag also means that he or she has the right to participate in the legitimation of state power and to influence its exercise. . . . If the Bundestag relinquishes its duties and responsibilities, especially as to legislation or the election and control of others who exercise state power, then this affects matters within the scope of Article 38 and its democratic content. Article 23 (1) of the Basic Law enables the federal legislature (under specified conditions) to grant the European Union the right to independent exercise of sovereign powers, up to the limits imposed by Article 79 (3) (see Article 23 (1) [3]). The legislature created this constitutional provision by amendment to the constitution specifically for the purposes of European integration and its progress. In doing so, it also defi ned the substance of the right guaranteed by Article 38. Where Article 23 applies, Article 38 forbids the weakening of the legitimate state power gained through an election; it also forbids any weakening of the voters’ influence on the exercise of such power by a transfer of power so extensive that it breaches the democratic principle declared inviolable by Article 79 (3) in conjunction with Article 20 (1) and (2). The complainant’s right arising from Article 38 . . . , therefore, can be infringed if the exercise of the responsibilities of the Bundestag is transferred to an institution of the European Union or European Communities so extensively that the minimum requirement of Article 20 (1) and (2) (in conjunction with Article 79 (3)) is violated, and the requirements of legitimation of the sovereign power are not met. . . . C. To the extent that the constitutional complaint fi led by the fi rst complainant is admissible, it is unfounded. In this case, when examining the grant of sovereign powers to the European Union and the communities within it, the Federal Constitutional Court can apply only the criterion of the guarantees within Article 38 of the Basic Law. Those guarantees are not violated by the Act of Accession. . . . The functions of the European Union and the powers granted to implement these functions are regulated in a sufficiently foreseeable manner; because the treaty reflects the principle of limited individual powers, the European Union does not have the power to extend its own authority, and the claiming of additional functions and powers depends on supplementing or amending the treaty; thus it is subject to the consent of the national parliaments. . . .

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I. 1. The right granted to eligible voters by Article 38 of the Basic Law to participate in the legitimation of state power and to influence its exercise by voting precludes the possibility, within the scope of Article 23, of the right being weakened through transferring functions and powers of the Bundestag in such a way as to violate the democratic principle. . . . 2. Part of the inviolable content of the democratic principle under Article 79 (3) of the Basic Law is that the exercise of state functions and powers is derived from the people, and those who exercise state power are fundamentally responsible to the people. Th is relationship of responsibility is established in varied ways, not just one form. The decisive factor is that a sufficiently effective proportion or level of legitimation be achieved. a. If the Federal Republic of Germany becomes a member of a community of states entitled to act on its own in sovereign matters, and if that community is given the right to exercise independent, sovereign powers (both of which are expressly allowed by the constitution, for the purpose of creating a unified Europe), then democratic legitimation for these purposes cannot be produced in the same way that it is for a national order, governed uniformly and conclusively by a state constitution. If sovereign rights are granted to international institutions, then the representative body elected by the people (the Bundestag) and the voting populace necessarily lose some influence over the process of forming the political will and making political decisions. Any entry into an international community results in the members of the community being bound to adhere to community decisions. [In the following passages the Court examined the Maastricht Treaty in the light of the Basic Law’s new Article 23. The Court found that the Bundestag has not been frozen out of the eu’s process of making policy. It held that since the eu is an organization of states rather than a federal state, the Bundestag retained sufficient control over its functions and powers to satisfy the constitutional commitment to the principle of democracy. In the end, the Court suggested that the legitimacy of eu policy will depend on maintaining a link between German voters, the Bundestag, and the European Parliament.] b. Thus, the democratic principle does not prevent the Federal Republic of Germany from becoming a member of a community of states organized on a supranational basis. Nevertheless, it is a precondition for membership that the legitimation derived from the people be preserved within the alliance of states. 1. According to its self-defi nition as a union of the peoples of Europe, the European Union is a federation of states seeking dynamic development. If it is to carry out sovereign tasks and exercise sovereign powers toward that aim, the national peoples of the member states must fi rst, through their own national parliaments, provide the democratic legitimation for such action. At the same time, as the functions and powers of the European Union grow, it is increasingly necessary for the people of individual states to be represented within a European Parliament that supplements the democratic legitimation and influence

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gained through the national parliaments. Th is will form the basis of democratic support for the policies of the European Union. The establishment of Union citizenship by the Maastricht Treaty has formed a legal bond between the nationals of the individual member states. Th is bond is intended to be lasting and, though it does not have the strength of common nationality that unites a single state, it provides the legally binding expression of an existing, de facto community. The influence flowing from the citizens of the Union can eventually provide the democratic legitimation of European institutions to the extent that the following conditions are met on the part of the peoples of the European Union. If democracy is to be more than merely a formal principle of accountability, it depends on the presence of certain pre-legal conditions, such as continuous free debate between opposing social forces, interests, and ideas. In the course of such debate political goals are clarified and changed, and public opinion emerges as a precursor to the forming of the political will. For this to happen, it is essential that the institutions that exercise sovereign power and implement political objectives engage in a decisionmaking process that is clear and comprehensible, and that citizens entitled to vote can communicate in their own language with the sovereign authority to which they are subject. . . . 2. Within the federation of states that constitute the European Union, democratic legitimation necessarily emerges as information about the activities of the European institutions flows back through the parliaments of the individual member states. Democratic legitimation within the structure of the Union is also provided through the election of a European Parliament, chosen by the citizens of the member states, increasing as the European nations grow closer together. Already, the legitimation provided by the European Parliament has a supporting effect. Th is effect could become stronger if the European Parliament were elected by electoral rules consistent in all member states, in accordance with Article 138 (3) of the ec Treaty, and if the Parliament’s influence on the policies and legislation of the European Union were to increase. The important factor is that the democratic bases of the European Union continue to grow in step with integration, and that as integration proceeds, a democracy thrives in the member states. . . . If the peoples of the individual states continue to provide democratic legitimation through their national parliaments, then the principle of democracy limits the extension of the European Community’s powers and functions. The origin of state power in each member state is the people of that state. It follows, then, that the Bundestag must retain functions and powers of substantial importance. . . . 3. Since . . . enfranchised Germans exercise . . . their right to participate in the democratic legitimation of institutions and agencies entrusted with power by voting in elections for the Bundestag, then the Bundestag must make decisions about German membership in the European Union, and on its continuation and development. Accordingly, Article 38 of the Basic Law is breached if an act opens up the German legal system to the application of the law of the supranational European Communities

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if that act does not establish with sufficient certainty what powers are transferred and how they will be integrated. If it is not clear to what extent and degree the German legislature has assented to the transfer of the exercise of sovereign powers, then it will be possible for the European Community to claim functions and powers that were not specifically mentioned. That would be a general authorization and therefore a surrender of powers, something against which Article 38 protects.

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Rules Governing Elections. Germany’s original electoral laws sought to achieve political stability and fair representation. To this end, German lawmakers adopted a mixed system of political representation. They also sought to prevent the rise of splinter parties by requiring a political party to meet, as a condition for entering the legislature, a 5 percent threshold of electoral success. In addition, before gaining access to the ballot, new parties had to produce evidence of electoral support, usually by collecting the signatures of a certain percentage of eligible voters. The Federal Constitutional Court, in several early cases, struck down a number of these restrictions.38 The Federal Election Act, fi rst enacted in 1956 and last revised in 2011, superseded major election statutes passed in 1949 and 1953 and governed the conduct of national elections. It incorporated the rulings of several constitutional cases while retaining the major features of the earlier statutes. The most prominent of these features was a mixed electoral system that provides for the election of half of the current 598 members of the Bundestag by a direct vote in single-member constituencies, and half on the basis of proportional representation from party lists put forward by state party organizations. Under this system each voter casts two ballots, the fi rst for a particular constituency candidate and the second for a specific party list. A federal election committee then distributes the seats among the parties in proportion to the total number of second (party-list) ballots they win throughout the country. Any party surpassing the minimum threshold of electoral success (at least 5 percent of all second-ballot votes or at least three constituency seats) qualifies for parliamentary representation. Other provisions of the election act specify the conditions for voter eligibility, regulate the process of selecting candidates, and establish rules for casting ballots, challenging election results, and fi lling vacant seats during a parliamentary term.39 The Basic Law does not prescribe any of this. The framers left the details of the electoral process to Parliament’s discretion. Germans often have debated whether to modify their system in imitation of the British–American model of single-member, winner-take-all constituencies.40 In the late 1960s, the grand coalition parties even toyed with the idea of adopting such a system with an eye to eliminating the minor parties whose entry into the Bundestag was made possible by proportional representation.41 The popu lar reaction to any manipulation of the electoral process for partisan political purposes was so hostile that the issue was dropped. Indeed, it was thought that the mixed system of constituency and proportional representation (sometimes referred to as a “mixed member-proportional” system) had assumed quasi-constitutional status.42

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But constitutional suspicions have continued to shadow the mixed memberproportional system, particularly the question whether it violates the constitutional mandate for equal suffrage. The question is legitimate because of the way proportional representation works in Germany. If a party wins 55 percent of the second (list) ballot votes (and satisfies the minimum electoral success threshold), it receives 55 percent of the seats in Parliament. The system calls for adding list candidates, in the order of their appearance on a state’s second ballot, to those who win constituency seats until the 55 percent figure is reached.43 Critics have complained that this method of counting creates a variety of potential electoral inequalities, chief among them being the phenomenon known as “overhang mandates.” In one scenario, the share of parliamentary seats won by a party that is excluded from the Bundestag for failing to satisfy the minimum electoral success threshold is divided among the surviving parties. In essence, these parties receive a windfall that makes the votes of their supporters “worth” more than the votes of the supporters of the excluded party. In another scenario, a party may win more constituency seats than it is entitled to under the parliamentary proportions determined by the second-ballot votes. In such cases, the Federal Election Act requires the expansion of the total number of Bundestag deputies (above the preordained 598 seats) to accommodate every successful constituency candidate. Again, votes for a party credited with these overhang mandates appear to be “worth” more than votes cast for a party that does not receive these additional seats. In neither scenario is the strength of a party’s representation in the Bundestag reflective of its actual strength at the ballot box. The Federal Constitutional Court had repeatedly upheld the complicated electoral system that makes these overhang mandates possible.44 But the Court left open as many questions as it resolved. In 1997 the Second Senate split evenly in the Overhang Mandates II Case and thus just barely allowed the challenged provisions of the Federal Election Act to stand.45 5.6 Overhang Mandates II Case (1997) 95 BVerfGE 335 [Following the 1994 federal election the center-right cdu won twelve more constituency seats than it was entitled to under the allocation of Bundestag seats as determined by its proportional success in the second-ballot votes. The center-left spd similarly won four additional seats. Pursuant to Articles 6 (5) and 7 (3) of the Federal Election Act, “the total number of seats . . . [in the Bundestag was] increased” by sixteen. The cdu’s twelve overhang mandates made a secure majority for the governing coalition out of what otherwise had been a narrow victory. The spd-led government in the Land Lower Saxony challenged this result in an abstract judicial review proceeding, complaining that the overhang mandates constituted a violation of the guarantee of equal suff rage provided by Article 38 (1) [1] of the Basic Law.]

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Judgment of the Second Senate. . . . I. . . . 3. For the election law, it follows from the principle of equal suff rage (Article 38 (1) of the Basic Law) that each vote must have the same value for counting purposes and the same legal chance of success. An ex ante approach is applicable in this regard. Th is requirement of equality is historically opposed to any variable weighting of votes according to the person of the voter, his or her membership of a class or his or her fi nancial circumstances; today it protects an equality of opportunities in the strict and formal sense. . . . III. The provisions in §§ 6 (5) and 7 (3) [2] of the Federal Election Law, according to which a party retains the seats won in the constituencies even when they exceed the number of its Land list mandates, without other parties receiving compensating mandates, satisfies the requirements of electoral equality under Article 38 (1) [1] of the Basic Law and preserves the equality of opportunities of the parties. 1. a. The Federal Constitutional Court has held that the election of the Bundestag—as a result of the proportional equalization to be carried out at the second stage of the election and regulated in § 6 (4) of the Federal Election Act and without prejudice to the prior direct election of the constituency candidates according to the principles of the plurality system—bears the fundamental characteristics of an election by proportional representation. Overhang mandates differentiate—in varying degrees depending on the number of overhang mandates—the success value of the votes as understood under the rules of proportional representation. Such a differentiation, however, may be compatible with electoral equality under Article 38 (1) [1] of the Basic Law as the necessary consequence of the par ticu lar character of mixed member-proportional representation, as long as the constituencies are, within the bounds of possibility, of approximately equal size. Thus, the Federal Constitutional Court has constitutionally approved of the overhang mandate, even if a majority in the Bundestag and the election of a federal government were to result exclusively from overhang mandates. In conclusion, therefore, that case law must be adhered to. . . . b. . . . It is true that the Federal Constitutional Court assumes in previous decisions that the differentiation in the proportional representation of the parties resulting from the accrual of overhang mandates, in view of the formalization of electoral equality in the system of personalized proportional representation, is not unlimited and is only permissible within narrow limits. But there is no evidence to suggest that the Court thereby intended to exclude all differentiation that goes beyond the unavoidable inequalities in the process of allocating seats according to the proportional strength of the parties. In its previous decisions the Court had no reason whatsoever to defi ne more precise limits for the permissibility of overhang mandates. At most, it can be inferred from the decisions that the number of overhang mandates must remain within limits that do not nullify the fundamental character of the election of the Bundestag as an election by proportional representation that is orientated toward the result of the votes cast for the parties. . . .

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2. Nor, as such, does the combination of proportional representation with elements of the plurality system infringe the general principle of electoral equality, pursuant to which all votes are to be given an equal chance of success. The current Federal Election Act guarantees that every voter has an equal legal opportunity with his or her fi rst and second votes, and by their combined action, to exert an influence on the result of the election. Even the possibility of overhang mandates does not lead to individual voters being presented with a chance, calculable in advance, of securing by their votes a “double” success as regards the composition of the Bundestag, which favors them unequally over other voters. a. The right to vote offers every voter the same opportunity to exert an influence on the allocation of seats and thereby on the person of the respective elected representative as well as on the proportional strengths of the political parties in Parliament. Securing overhang mandates is not the object of that electoral decision, nor a consequence of variable weighting of votes, but only the result of the electoral behavior of all those entitled to vote in the Land in question. Those voters who split their vote contribute to the emergence of direct mandates (that must be fi lled by the victorious candidates regardless of a respective party’s proportional success) just as much as those who cast their vote uniformly for the winning direct candidate in a constituency and his or her corresponding party list. . . . . IV. 1. The fundamental character of the election as proportionally representative does not allow for unlimited differentiation in the weight votes receive. It is likewise in keeping with the total number of deputies in the Bundestag, fi xed by statute for the normal case (§ 1 (1) [1] of the Federal Election Act), and with the statutory requirement that one-half of the legitimating process for that normal case is to take place in relation to individual candidates and the other half in relation to parties (§ 1 (2) of the Federal Election Act), that the number of overhang mandates should remain within limits. If those limits are exceeded, because circumstances arise in which overhang mandates occur in ever greater number from election to election, the electoral process departs from the fundamental decisions embodied in the law. Both a limitation on the discretion of the legislature, on the one hand, and a mandate to act because of the change in the actual circumstances, on the other hand, may result from these demands on the electoral process. 2. The judgment as to whether there is cause for an amendment of election law is fi rst and foremost a matter for the legislature in accordance with the legislative mandate conferred on it by Article 38 (3) of the Basic Law. Parliament must determine to what degree an increase in the number of seats is acceptable in conformity with the rule laid down in § 6 (5) of the Federal Election Act. In reaching its conclusions on this question the Parliament might refer to the numerical value that it uses to reconcile the principle of proportional representation with other constitutionally legitimate but confl icting principles. That effort has led the Parliament to give the success value of votes variable weight. For example, the principle peculiar to the system of proportional representation—namely, that the political will of the electorate for the choice of certain parties should be reflected as realistically as possible

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in the Bundestag—may be broken by a minimum percentage clause (§ 6 (6) [1] of the Federal Election Act) in order to ensure the capacity of Parliament to act and make decisions. The 5 percent minimum threshold for success, in that context, provides the legal framework for a careful balance between party electoral equality and the capacity of Parliament to function. The threshold, in relation to the normal total number of parliamentary seats, might serve here as a criterion for limiting any deviation from other principles, including that half the Bundestag should be composed of constituency seats and the other half of list seats; and that the seats should be distributed proportionally according to the result of the (second) votes cast for the parties. 3. a. According to the 5 percent minimum threshold for success, there can be no objection on constitutional grounds that the Parliament, in recognition of the present trend, has not seen any reason to depart from the current election system. The current system, in the fi rst instance, fi lls the seats awarded to a party on the basis of its success on the second ballot with direct mandates and increases the number of seats to which a party is entitled if it won more direct mandates than the total number of seats awarded to it on the basis of the second-ballot votes. The present increase in the number of seats is constitutionally acceptable;. . . . Nor is it foreseeable that the number of parliamentary seats will further increase substantially in future elections in accordance with § 6 (5) of the Federal Election Act. The factors that favor the formation of overhang mandates, but may also counteract it, are many and diverse in nature. They include an above-average share of unenfranchised persons in the constituency, a low turnout, a high number of invalid second votes, a greater number of successful parties, as well as—a factor which the legislature can influence—the unequal division into constituencies in conjunction with the distribution of the latter among the Länder, voting according to Land lists, and the allocation of two votes that are to be cast independently of one another (one for a constituency candidate and one for a list). b. Provisions of electoral law by which constitutionally permitted aims are pursued are not constitutionally objectionable simply because they also favor the formation of overhang mandates. Thus, the distribution of the seats in the Bundestag according to Land lists is rendered legitimate from the outset by the constituent-state structure of the Federal Republic. The fact that vote-splitting is allowed by statute is justified by the notion of representation rooted in the principle of democracy. As for the varying size of constituencies, which is contrary to equal suff rage, and their unequal distribution among the Länder, which also favors the formation of overhang mandates, the Bundestag has recognized a need for revision and has provided that, as part of the reduction in the number of deputies already decided upon for the coming Bundestag elections, the constituency boundaries will be redrawn. Th at revision deadline is constitutionally acceptable on the basis of unambiguously declared legislative intent. [The four opposing justices sought to distinguish the present circumstances from the Court’s earlier decisions upholding the overhang mandates. Specifi-

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cally, the opposing justices argued that changes in the electorate following reunification greatly increased the likelihood of overhang mandates. For this reason, the Court’s previous consideration of the issue had been marked by the relative rarity of overhang mandates. The increasing frequency and number of overhang mandates, however, meant the issue could no longer be ignored. The four opposing justices concluded that Germany’s election system, despite the personalized constituency facet, was primarily a purely proportional system. While they considered approaches that might nonetheless permit the personalization of a purely proportional system, the opposing four justices maintained that Bundestag seats must be distributed exclusively in accordance with the proportional strength of the parties in the second-ballot votes. Only in this way, the four opposing justices explained, can the guarantee of equal suffrage be satisfied. The constitutional solution in a purely proportional system, the four opposing justices reasoned, would be to reduce a party’s total number of constituency mandates to conform with the party’s allotment of seats based on its proportional strength.]

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Michael Brenner has explained that “[t]he principle of equality of elections . . . means not only that each vote has the same value but more importantly that each vote also has the same ‘effect’ in determining the outcome of the election.”46 With their decision in Overhang Mandates II, the four prevailing justices concluded that the Court’s review of the election system should be restrained by the legislature’s discretion over the matter. In light of this deference, the four prevailing justices could not see fit to discredit the Bundestag’s decision to emphasize the constituency votes in the overhang mandates context. Unlike the four opposing justices who found a constitutional priority for the proportional element of Germany’s elections, the four prevailing justices were of the opinion “that proportional and majority voting extended democratic legitimation to the representatives and, thus, the Parliament, each in its own, totally distinctive manner, ‘without being able to say that one or the other voting system was more advantageous from the viewpoint of representative democracy.’ ”47 Overhang Mandates II is a fragile and equivocal constitutional endorsement of Germany’s mixed member-proportional system, a system that permits a “differentiation” in the value or weight of votes as a result of the possibility of overhang mandates. The overhang mandates phenomenon is not merely a theoretical concern. In each of the last five federal elections overhang mandates have contributed to the outcome of the parliamentary vote and to the eventual establishment of governing coalitions. The governing coalition that emerged from the 2009 federal election (including the center-right cdu and csu parties, and the liberal fdp party) benefited from twenty-four overhang mandates, which boosted their slender parliamentary majority. Th is was the largest number of overhang mandates in the Federal Republic’s history. The total number of Bundestag mandates was expanded

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from its statutorily anticipated 598 seats to 622 seats to accommodate the twentyfour overhang mandates. In this constellation 312 seats were necessary for a parliamentary majority and, counting the twenty-four overhang mandates, the coalition held 332 seats.48 The Flawed 2005 Federal Election. The Court’s acceptance of the electoral inequalities that can result from overhang mandates has its limits. In Overhang Mandates II the prevailing four justices remarked that “the fundamental character of the election as proportionally representative does not allow for unlimited differentiation in the weight votes receive.” One limitation on electoral inequal ity was announced by the Second Senate in cases arising out of the 2005 federal election. In the State Lists Case (2008) the Court ruled that portions of the Federal Election Act were unconstitutional.49 The Court objected to the phenomenon known as “inverse electoral effect,” which refers to the possibility that a party could lose seats if it received more secondballot votes or, conversely, could gain seats if it received fewer second-ballot votes. Th is illogical result was made possible by the confounding machinations of the election system’s accounting for the parties’ proportional strength, the allocation of each party’s seats to the respective Länder, and the priority given to direct constituency mandates in the assignment of seats (sometimes leading to overhang mandates). Of the many examples of the phenomenon that were presented to the Court in these election review proceedings, perhaps just one will suffice to illustrate an inverse electoral effect. The complainants noted that, in the 2005 federal election, the cdu would have lost a seat in its overall tally of parliamentary mandates if it had received just 3,387 more second-ballot votes in the state of Saxony. The election in Saxony was especially relevant to the complaints because a runoff election in one district, held after the results of the general federal election were clear, saw the parties calculating and then strategically campaigning on the basis of the inverse electoral effect. In that specific scenario the cdu urged its voters to abandon the party in their second ballots because a strong proportional per for mance would cause it to lose one overhang mandate. The counterintuitive and incongruent possibilities associated with inverse electoral effect led the Court to fi nd that the responsible provisions of the Federal Election Act violated the constitutional principles of equality and directness of elections. The Court explained that the guarantee of equality of chances for electoral success, which it had derived from Article 38 (1) of the Basic Law in earlier decisions, is violated if the intended positive effect of one’s vote is turned on its head and winds up having an inverse effect. The Court emphasized that here, as in Overhang Mandates II, it was exercising the judicial restraint necessitated by the discretion Parliament enjoys as a result of the Basic Law’s assignment of the details of election matters to the Bundestag. But the Court simply could not agree that the provisions of the Federal Election Act that raised the specter of inverse electoral effect were justified by an “imperative reason.” Nevertheless, in a remarkable sign of the deference the Court feels it owes to the Bundestag in election matters, and out of concern for the practical

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and partisan risks inherent in negotiating and enacting a new election regime, the Court exercised its authority to declare the relevant provisions incompatible with the Basic Law but not void. The Court ordered new provisions, consistent with its constitutional fi ndings in the case, no later than 30 June 2011. Th is had the controversial effect of allowing the 2009 federal election to go ahead on the basis of an unconstitutional election scheme. The Second Senate noted another constitutional infi rmity in the 2005 federal election in the Voting Computers Case (2009).50 The Second Senate ruled that the use of voting computers in the 2005 election had violated the principle of the public nature of elections that is based on Article 38 (1) in conjunction with Article 20 (1) and (2). Th is principle, said the Court, requires that “all essential steps of an election are subject to the possibility of public scrutiny.” With a tone of skepticism that could have been inspired by the butterfly ballots and hanging chads that plagued the Florida recount in the disputed 2000 U.S. presidential election, the Court concluded that computer voting, shrouded as it is in dark technological arts, placed the electoral act at the mercy of possible “programming errors” or fraudulent “soft ware manipulation.” The Court found that voters must be able to determine that their votes have been cast and recorded in an unadulterated manner without the benefit of special knowledge about computer technology. Th is would be achievable, the Court suggested, if electronic votes were recorded and preserved in a parallel, manual system that is maintained and made available for the voters’ inspection. With the same modesty it displayed in the State Lists Case, however, the Court did not invalidate the results of the 2005 election on the basis of this constitutional violation. The Court concluded that the impact of computer voting in the 2005 election was marginal, especially when balanced against the constitutional interest in the continuing existence of a stable, functioning democracy. Districting. The prevailing justices in Overhang Mandates II rejected the view that the second-ballot proportional vote was the singular constitutional mechanism for allocating seats in the Bundestag. Validating the Parliament’s discretion to give the first-ballot constituency votes an equal role in shaping the Bundestag (and with overhang mandates, perhaps a disproportionate role), the four prevailing justices recognized that the principle of equal suff rage requires that the constituency districts be of equal size. They found that, at the time of the 1994 election, the districts did not fulfi ll this mandate. The prevailing justices were willing to accept the districts as they existed at that time because a debate over broader election reform already under way in the Bundestag promised redistricting in the coming years. Effective for the elections that were held in 2002, the Thirteenth Law to Amend the Federal Election Act (1996) reduced the total number of Bundestag seats from 656 to 598. This had the result of reducing the number of districts subject to the first-ballot constituency votes from 328 to 299. The redistricting necessitated by this reform also sought to resolve the concern of the four prevailing justices in Overhang Mandates II regarding the equality of the districts. The law now requires 1) that the number of constituencies in each state will correspond to the state’s

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share of the total population and 2) that the population of a constituency may not deviate from the average population of the constituencies by more than 15 percent. The question of districting was at the center of the Electoral District II Case, in which the Court articulated many basic principles regarding equal suff rage upon which the four prevailing justices in Overhang Mandates II relied. The Court held that Germany’s electoral districts must be relatively equal in population. In this respect, the oneperson, one-vote principle is as embedded in the Constitutional Court’s jurisprudence as it is in that of the U.S. Supreme Court. But, as the 15 percent margin of deviation permitted by the districting reform pursued in the late 1990s suggests, the Constitutional Court has not insisted on strict mathematical equality among districts. In the Electoral District I Case (1961) the Court announced that significant differences in population among districts returning single deputies by simple majority vote would constitute a violation of the principle of equal suff rage.51 The significance of the nexus between the constitutional acceptability of the constituency facet of German elections and districting was thoroughly considered in Electoral District II. 5.7 Electoral District II Case (1963) 16 BVerfGE 130 [Relying on the Court’s election review jurisdiction, the petitioner challenged the validity of the 1961 federal election. He alleged that Schleswig-Holstein had been divided into too many election districts relative to its population, and the result had been three additional direct seats for the cdu. He claimed that no Land was entitled to more representatives than warranted by its population. The case offered the Constitutional Court an opportunity to consider the electoral system in general and the principles under the Basic Law on which it must be grounded. It set down new parameters for districting but refused to uphold the complaint in the present case.]

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Judgment of the Second Senate. . . . B. I. 3. c. The principle of equal suff rage means that everyone should be able to exercise his or her right to vote in as formally an equal way as possible. . . . In a pure majority voting system consisting of electoral districts of equal size, the weight of each individual vote is equal when all ballots have the same value; electoral equality in a system of proportional representation requires a similar weighting of votes. . . . For this reason districts with approximately equal population figures must be created when it is technically possible so that no state ends up with more districts than its . . . share of the total population in the federal territory warrants. If all districts are of approximately the same size, then their appropriate distribution among the states will be guaranteed, thus keeping the number of excessive mandates at a constitutionally permissible minimum.

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. . . Yet, every district must be a balanced and coherent entity under the terms of the Federal Election Act. Historically rooted administrative boundaries ought also to coincide as much as possible with district boundaries. Demographic figures, of course, do not remain constant. . . . Consequently, the constitutional requirement that district boundaries be adjusted to demographic change in the interest of equality cannot be met completely. Federal legislation has taken these inherent difficulties into account; for example, § 3 (3) of the FEA limits the extremes of permissible deviation from the average population of the constituencies to 33.3 percent. . . . 4. The fact that during the last parliamentary election the districts no longer completely satisfied the required equality of the right to vote does not mean that the division of districts was unconstitutional at that time. a. According to the 4 September 1962 report of the Election District Commission, thirty-seven districts as of 1 January 1963 exceeded the limits set forth in § 3 (3) of the Federal Election Act. . . . At the same time Schleswig-Holstein had three districts too many while Lower Saxony and Bavaria had a surplus of four; North Rhine– Westphalia, Rhineland-Palatinate, and Baden-Württemberg, on the other hand, were short seven, one, and three seats, respectively. Because these inequalities spilled over to influence the differential weight of votes in Schleswig-Holstein, the current apportionment statute may not constitutionally be applied to the next federal parliamentary election. The existing legislative districting has become unconstitutional because it . . . no longer corresponds to up-to-date demographic figures and because we can no longer expect an automatic readjustment of the current discrepancies. The federal legislature is therefore obliged, during the current legislative period, to reorganize the districts by reducing to a permissible level the deviations in their population from the national average and by adjusting constituency lines to each state’s share in the total population. b. But the unconstitutionality of the apportionment of districts was not so clearly evident on 17 September 1961 as to invalidate the apportionment from that date. The current apportionment dates from 1949. . . . Since 1949 the population figures of the states have shifted in absolute and relative terms. The greatest differences took place in states particularly affected by the resettlement of refugees and in those affected by internal migration owing to economic developments. . . . The difficulty in determining the exact point when original constitutional districting becomes unconstitutional stems from changes and trends that are at once continuous and unpredictable. These circumstances . . . rendered it impossible, on the basis of the evidence available, to fi nd any violation against the equality of the right to vote at that time. To be sure, a 20 June 1958 report by the Election District Commission clearly showed that, even then, districting no longer conformed to the guidelines of § 3 (3) of the Federal Election Act—although only to a modest extent. In addition, during the parliamentary elections of 15 September 1957, there were three excessive mandates that could have been avoided had the districting been adjusted to account for population shifts. Yet these excessive mandates resulted from two coincidental factors: the relatively small size of the districts in Schleswig-Holstein, and the relative

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majority of fi rst votes for only one party in all districts—events not likely to have been anticipated to recur again in the 1961 parliamentary elections. . . . 5. Because the apportionment did not violate the principle of equal suff rage on 17 September 1961 to a degree that would have appeared to jeopardize its constitutionality, one cannot speak of a flaw in the election that would have influenced the 1961 elections in a constitutionally objectionable fashion. Consequently, the Bundestag rightfully rejected the challenge to the validity of the fourth parliamentary election on the ground that the districting system was unconstitutional.

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The principle of equal suff rage (Grundsatz der Wahlrechtsgelichheit) upon which the Court relied in Electoral District II requires that Bundestag constituencies have relatively equal populations. But what population should count in this calculation? Th is was the question raised in an election review proceeding that challenged the results of the 2009 Bundestag election. The complainant noted that constituencies were based on the general population resident in the district. Th is was in keeping with § 3 of the Federal Election Act, which refers to “share of the population” (Bevölkerungsanteil) as the relevant standard. But this might lead to unequal voting strength in scenarios in which, on the one hand, some districts consist of populations with a small number of voters and a large number of nonvoters (in par tic u lar, minors), while, on the other hand, some districts’ populations consist of a large number of voters. Voters residing in the former, the complainant alleged, would have disproportionate electoral strength. The concern raised by the complainant was more than an interesting hypothetical. In the two decades since reunification the population in the new federal states that acceded to the Federal Republic after the dissolution of East Germany has declined by almost 2 million residents. Th is decline especially reflects the migration of many young people westward to the old Länder where economic conditions are often better. There has been a concomitant “graying” in the new states. In the Minors and Districting Case (2012) the Court dismissed the election challenge, concluding that the Federal Election Act’s failure to require that constituencies consist of relatively equal populations of voters was not—yet—a violation of the principle of equal suff rage. But the Court credited the complainant’s concerns by admonishing future districting commissions to pay close attention to this phenomenon when revising and reallocating the Bundestag’s constituencies.52 The Meaning of Direct Election. Several early constitutional cases challenged features of the second-ballot system that the opposing justices in Overhang Mandates II found so important. Proportional representation itself was said to offend the concept of “direct” elections. In the State Lists Case the full senate found that the provisions of the Federal Election Act that facilitated negative vote weights offended the Basic Law’s guarantee of direct elections. These decisions draw on the Supplemental Candidates Case (1953), in which the Court held that an electoral law would violate the

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principle of direct suff rage, as secured by Article 38, if it permitted a political party to add candidates to its second-ballot list after the election, even if additions were necessary to fi ll vacancies.53 The Court acknowledged the crucial role of political parties in the electoral process but concluded that the fi nal selection of candidates may validly rest only on the “will of the electors.” A “direct” election within the meaning of Article 38, declared the Court, means “the direct election of representatives, and not merely of their political parties.”54 In short, the voter must know precisely for whom he or she is voting, even if this involves something as abstract as the party’s secondballot list of candidates. Can a statute authorize political parties to change the order of precedence on a party list once an election has taken place? In the Fixed Order of List Candidates Case (1957) the Court declared that this, too, would violate the direct suff rage clause of Article 38.55 In still other cases the “fi xed” or unalterable second-ballot list, 56 like proportional representation itself, 57 has been unambiguously sustained by the Court.58 In upholding overhang mandates the prevailing justices in Overhang Mandates II recognized the unique democratic value that the constituency votes contribute to the representativeness of Germany’s democratic system. Th is value derives from the direct relationship forged between a constituency deputy and the constituents that elected him or her. In the Deceased Overhang Mandate Case (1998) the Court clarified the principle of direct representation in relation to the constituency votes.59 The Court invalidated the Bundestag’s procedure for replacing a deceased deputy who had been serving as a constituency representative with an overhang mandate. As outlined in Article 48 of the Federal Election Act, the Bundestag drew the replacement deputy from the second-ballot list of the deceased’s party. The Court found this process acceptable for the replacement of all deputies except those representing overhang mandates. The Court reiterated that Germany’s elections are fundamentally characterized by the second-ballot proportional votes. Even constituency representatives draw their mandates from the second-ballot votes, the Court explained, because a party’s success on the second ballot determines the number of constituency seats to which it is entitled. Thus, in spite of the view that there is a direct political relationship between a constituency representative and his or her constituents, the Court found the principle of direct elections satisfied primarily via the second-ballot proportional votes. For this reason, the Court concluded, the principle of direct elections is not compromised by drawing from the second-ballot list to replace a vacated constituency seat. Th is logic, however, does not hold for constituency representatives holding overhang mandates because the overhang mandates are awarded to a party above and beyond their success in the second-ballot proportional vote. Unmoored as they are from this fundamental source of legitimacy in the German electoral system, overhang mandates represent the rare instance of a direct, individual electoral connection between a deputy and his or her constituents; a constituency deputy representing an overhang mandate takes his or her seat in the Bundestag by virtue of a majority of the fi rst-ballot constituency votes. The Court

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concluded that this direct nexus is not replicated by resorting to the second-ballot list to replace an overhang constituency mandate. The Court found that in these circumstances the vacated seat would have to remain unfi lled. Minimum Th reshold of Electoral Success. The rule that political parties must achieve a minimum threshold of electoral success in the national vote to get into Parliament has been a major feature of the electoral system since 1949. Some of the framers wanted to provide for a 5 percent threshold in the Basic Law itself,60 but most felt that the matter should be left to legislation. By 1952 a 5 percent minimum threshold rule had been adopted at nearly every level of government. The Second Senate took note of this development in the Schleswig-Holstein Voters’ Association Case (1952),61 which invalidated Schleswig-Holstein’s imposition of a 7 percent rule, a hurdle that, in the Court’s view, offended the principle of equality as applied to political parties. A very compelling or special reason, said the Second Senate, would have to justify a rule “exceeding the common German value of 5 percent.” The 5 percent minimum threshold rule was challenged in the Bavarian Party Case (1957).62 Strongly represented in Bavaria, the Bavarian Party sent several representatives to the Bundestag in 1949. In 1953, however, although it had won 20.9 percent of the vote in Bavaria, the party could garner only 4.2 percent of the national vote and it was excluded from sharing in the distribution of Bundestag seats according to the results of the second ballot. The party claimed that the 5 percent minimum threshold violated the Basic Law’s provisions on equality (Article 3 (1)), direct elections (Article 38 (1)), and political parties (Article 21 (1)). The Court rejected each of the claims. While affi rming the equality of all voters in exercising their constitutional right to participate in elections, the Court reminded Germans that “the goal of elections is not only to assert the political will of voters as individuals . . . [but] also to create a Parliament that is an effective political body.” 63 The Court added that “if the principle of exact proportional [representation] as the reflection of [all] popu lar political views were carried to its logical extreme, Parliament might be split into many small groups, which would make it more difficult or even impossible to form a majority.” 64 Parliament’s constitutional tasks require parties that are dedicated to the common good and possess popu lar mandates large enough to allow them to act. Splinter parties, often extreme in their views and too small to effectively produce legislation, cannot meet this test. The 5 percent clause was vindicated as a reasonable and fair way to establish the ability of parties to act responsibly in the legislature. The Court, in Bavarian Party, approved the 5 percent clause as applied to federal elections. In the Danish Minority Case,65 decided in 1954, the Court upheld SchleswigHolstein’s application of the rule to the state’s Danish minority. The Court went on to say, however, that the state parliament could, if it wished, exempt a national minority from the 5 percent minimum threshold, although, in its view, the Basic Law does not require such special treatment. Schleswig-Holstein took the cue and, soon thereafter, amended its electoral code to exempt the Danish Minority Party from the state-based

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5 percent minimum threshold rule. Schleswig-Holstein’s Danish Minority Party, unimpeded by a minimum threshold of electoral success, secured two seats in the state parliamentary elections in 2005. They were briefly able to buoy Chancellor Gerhard Schröder’s flagging national prospects by throwing those two seats behind the state’s spd/Green coalition, creating an impossibly thin one-vote majority over the opposition, and thereby stemming the chancellor’s loss of support in the Bundesrat. The 5 percent threshold rule was successfully challenged, for the fi rst time, in the National Unity Election Case. The objection, as noted in the statement of facts, was not to the 5 percent clause itself but to its application to Germany as a whole in the fi rst all- German election, held in December 1990. The challenge was brought by the minor parties competing for parliamentary representation. In contrast to their success at the end of the 1990s, at the beginning of the decade the western Green Party was suffering poor showings at the ballot box. It sought to build inroads into the new eastern states after reunification and broaden its base by merging with eastern Germany’s Alliance 90, a federation of several reform groups in the old German Democratic Republic. Th is association continues to operate today under the formal name, the Alliance 90/The Greens. Further to the left of the Green Party, the Party of Democratic Socialism (pds) also joined the challenge to the 5 percent minimum threshold of electoral success in National Unity Election. The pds was the surviving remnant of East Germany’s Socialist Unity Party (sed).66 Widely shunned by Germany’s mainstream political elites in the fi rst decade after reunification, the pds nonetheless enjoyed not insignificant support in the new eastern Länder. The Green Party and the pds were joined in the challenge by the radical-right Republicans. Besides serving as a thoroughgoing consideration of the 5 percent minimum threshold of electoral success, National Unity Election also is one of the most important cases involving the rights of minority parties in reunified Germany. 5.8 National Unity Election Case (1990) 82 BVerfGE 322 [Considerable controversy greeted the effort to structure the fi rst all-German election on 2 December 1990, following German reunification. The dispute stemmed from the different electoral systems of the two German states. In the former East Germany each voter had only one vote in a system of purely proportional representation and there was no significant threshold requirement for entry into the legislature. Th is contrasted with West Germany’s two-ballot system that featured the 5 percent minimum threshold requirement. East German leaders objected to the 5 percent rule because the political reform groups that had played so critical a role in East Germany’s peaceful revolution would be unlikely to win 5 percent of the national vote. In the end, they relented on the 5 percent rule and the two sides worked out a “piggyback” arrangement that would permit smaller parties or groups in the new eastern states to field

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candidates in alliance with other, larger parties that were based in the old western states. Th is plan, however, favored some small parties at the expense of others. For example, the strength of Bavaria’s csu would carry its sister party, the eastern German Social Union (dsu) into the Bundestag, whereas the old Communist Party from the east—known as the Socialist Unity Part of Germany and now repackaged as the pds—was unlikely to fi nd a willing partner in the older western states to help it win 5 percent of the national vote. The Court upheld the challenge.]

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Judgment of the Second Senate. . . . C. The petition and constitutional challenge are well-founded. I. According to the continuing jurisprudence of the Constitutional Court the principle of equal suff rage in the election of the Parliament must be understood as a guarantee of strict and formal equality. . . . The democratic order established by the Basic Law equalizes the voices of all citizens . . . and, thus, it is impossible to give different weights to different votes. Parties are charged with the primary responsibility of organizing citizens into political groups for electoral purposes. In the field of elections and voting, formal equality includes the principle of formal equal opportunity, namely, the opportunity of political parties and voter organizations to compete for electoral support. Th is right of equal opportunity derives from the constitutional status of political parties, the freedom to form political parties, and the principle of a multiparty system that is associated with the concept of a free democracy. The principle of equal opportunity governs the election proper as well as the campaign. Democracy cannot function—as a matter of principle—if the parties are unable to enter an election campaign under the same legal circumstances. In regulating the process of forming the political will of the people the legislature operates under strict limits. It may not undermine the equal opportunity of parties or voter associations. Differential treatment of parties and voter associations is constitutionally prohibited. Parliament’s discretion is severely limited when legislating on the right to elect representatives to legislative bodies; this limitation follows from the principles of formal voter equality and equal opportunity of parties. Any deviation from a system of equal suff rage must be justified by compelling reasons. One reason sufficiently compelling to justify distinctions between votes in a system of proportional representation—one that this Court has repeatedly emphasized—is to ensure the proper functioning of Parliament. The very purpose of proportional representation is to have government realistically reflect the political will of the electorate. Such a system may result in splintering the electorate, making it difficult or impossible to form a stable parliamentary majority. Accordingly, the legislature may treat votes differentially in a system of proportional representation if such treatment is required to ensure Parliament’s ability to act and make decisions.

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In principle, the legislature is empowered to ensure the proper functioning of Parliament by means of a “minimum threshold.” (If a party does not receive at least 5 percent of the popular vote, it is excluded from being represented in Parliament.) As a rule, a threshold of 5 percent is constitutionally unobjectionable. The Court emphasized early on that the compatibility of a minimum threshold with the principle of equal suffrage is something that cannot be determined in an abstract manner. Regulations concerning voting rights may be justified in one state at a given time but not in another state at another time; the circumstances of the state must be taken into account. One thing is certain: a deviation from the customary 5 percent rule—even if only a temporary deviation—may be necessary if the circumstances internal to the state have essentially changed; for instance, if shortly before an election the electoral territory is expanded to include territories that have had a different political structure. The legislature is obligated to take such circumstances into account. In principle, it may disregard the 5 percent clause, lower it, or resort to other suitable measures. If the legislature fi nds it advisable to maintain the 5 percent threshold but to mitigate its effects, then the means of mitigation must be constitutional. In par ticu lar, the means must respect the principles of equal suff rage and equality of opportunity for parties. Mitigating the effects of the minimum threshold requirement cannot be justified merely because it offers a “special allowance” as compared to its unrestricted application. On the contrary, a regulation has greater constitutional validity if its effects are evenhanded and neutral. . . . II. The legislative measures objected to in this case [i.e., the unrestricted application of the 5 percent minimum threshold and the “piggyback” system] relate to the fi rst all-German parliamentary election. Th is election is taking place under special, unique circumstances that the Parliament must take into account when considering the 5 percent clause. Th is election is different from other elections because the political parties and electoral organizations have had such a short time to adapt their strategies to a much larger electoral area, and because some of the newer parties and organizations in eastern Germany have had but a few short months to organize and become politically active. 1. Extending the Federal Election Act and its 5 percent minimum threshold to the former German Democratic Republic makes it part of the current “electoral territory.” The fi rst unified German election is taking place one year after the peaceful revolution in East Germany. The day that witnessed the unification of the two territories that had been divided for forty years precedes the election day for the unified territory by only three months. Th is short period of time fails to give some parties an equal opportunity to become active and to compete equally for votes in the new territories. Prior to the national parliamentary election, the parties have had only limited opportunities to participate in the communal or Land parliamentary elections and to publicize their platforms and candidates. a. In view of these circumstances, the application of the 5 percent minimum threshold to all of unified Germany has implications far more severe for those parties that were active only within East Germany than for the parties that were active only

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within West Germany. According to the fi ndings of the Parliamentary Committee on German Unity, maintaining the blocking clause for all of unified Germany would mean that former East German parties would have to poll 23.75 percent of secondballot votes (in their former electoral territory only) in order to clear the 5 percent minimum threshold to be represented in the Bundestag. In contrast, the West German parties would have to receive only 6 percent of second-ballot votes in their former electoral territory to gain parliamentary representation. An additional circumstance that must be taken into account by the legislature is that political parties and organizations have been able to organize and become active outside their national boundaries only since the revolution in East Germany. Their organizational, personnel, and fi nancial bases have not yet developed sufficiently to cope with this change; they have had only a short time to develop their platforms and cooperate with other political groups. [The Court found that the 5 percent clause as applied to all of Germany in this fi rst all-German election would result in considerable inequality among the parties, particularly those competing for votes in the new eastern states, thus requiring a one-time adjustment or change in the statute to secure a greater measure of equality for these parties.] III. 1. Th is matter does not end with our determination that the 5 percent clause may not constitutionally be applied to the whole electoral territory in this fi rst unified German election. The legislature has weakened the effect of the 5 percent minimum threshold through § 53 (2) of the Federal Election Act. The legislature intended to assist “parties based in the new eastern states that were ill-prepared to organize for an all-German election” by allowing them to form a coalition with a party based in the old western states and to present a combined list for the purpose of maximizing their second-ballot votes. Keeping this in mind, the regulation in question must be examined to determine whether it in fact removes the par ticu lar burden on parties and voter organizations that arises from the expansion of the electoral territory and the application of the 5 percent clause in a manner that is constitutional. 2. Th is question must be answered in the negative. a. Combining lists is restricted by the “competition clause” in § 53 (2) of the Federal Election Act. Th is clause permits combined lists only for those parties that do not submit joint lists in any one Land (except Berlin), with the consequence that more weight is given to votes for a list that has not received 5 percent of the vote. This measure fails to satisfy the requirements of formal equality because it does not benefit all parties in the same way. [The Court then considered whether combined lists were constitutionally permissible and found that they were not. After noting that the actual possibilities for combining lists were extremely limited for most parties, the Court concluded that combined lists violate the principle of equal opportunity by giving

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more weight to the votes of some parties than others. Similarly, while individual voters may vote for one party on a joint list, both parties may wind up represented in Parliament. Next the Court considered other alternatives, including lowering the 5 percent threshold and installing a regional minimum threshold by which the 5 percent rule would be applied separately in the old western states and the new eastern states. Combining a regional 5 percent rule with the ability of parties to combine their lists for purposes of second-ballot voting, said the Court, would not satisfy all the requirements of formal equality but it would be constitutionally acceptable. Parliament proceeded forthwith to amend the electoral law accordingly. In a one-time exception to a uniform, national minimum threshold, Parliament applied the 5 percent rule separately in the new eastern states and the old western states and allowed small groups in the new eastern states to form joint tickets to help them over the 5 percent minimum threshold. The amended statute had the intended effect; some groups based in the new eastern states managed to win seats in the Twelfth Bundestag.]

∂

Since the fi rst election after the war the Federal Election Act provided a mechanism to overcome the 5 percent minimum threshold to participating in the distribution of Bundestag seats on the basis of proportional strength on the second ballot. The Th ree Direct Constituencies Clause (Grundmandatsklausel) (Article 6 (1) [1] of the Federal Election Act) permits parties to claim their second-ballot (list vote) proportion of seats in the Bundestag, even if they fail to surpass the 5 percent minimum threshold, so long as they win at least three constituencies on the fi rst ballot (direct vote). In the fi rst postwar elections this escape clause was set as low as one fi rst-ballot constituency victory. In the 1994 Bundestag election the pds failed to surpass the 5 percent minimum threshold, polling only 4.4 percent on the second-ballot (list vote) nationwide. Pursuant to the Grundmandatsklausel, it was nonetheless included in the proportional distribution of Bundestag seats because its candidates had won four constituencies on the fi rst ballot (direct vote). The pds’s 4.4 percent share of the proportional second-ballot votes entitled it to thirty seats on the Bundestag, four occupied by its successful constituency candidates and the remaining twenty-six drawn from the party list presented for the second ballot. The constitutionality of awarding twenty-six second-ballot seats to the pds, via the Grundmandatsklausel, was challenged. 5.9 Grundmandatsklausel Case (1997) 95 BVerfGE 408 [The election review complaint alleged that, in light of the new, diverse postreunification political landscape, the long-dormant Grundmandatsklausel threatened to play an increasingly central role in shaping the partisan profi le of

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the Bundestag. The challenge asserted that the goals of the 5 percent minimum threshold of electoral success would be undermined. Included among these goals was the desire to avoid single-issue splinter parties from disrupting the Bundestag’s ability to enact legislation and form a majority government. It was urged that, at the very least, the Grundmandatsklausel should be amended to require that, in order to evade the 5 percent hurdle, the three constituencies won on the fi rst ballot (direct vote) be geographically distributed throughout the Federal Republic and not concentrated in a single region. Awarding the pds its twenty-six second-ballot (list vote) seats, it was argued, greatly exaggerated the weight of its voters’ influence relative to the weight accorded to votes cast for parties excluded from the Bundestag and not benefiting from the Grundmandatsklausel. Th is compromised the guarantee of equal suff rage. The Court rejected the challenge, in part out of respect for Parliament’s discretion over the electoral system.]

∂

Judgment of the Second Senate. . . . The Grundmandatsklausel serves the purpose, rendered legitimate by the constitution, of reconciling partly opposing objectives, namely, to create a parliament capable of functioning and to achieve an effective integration of the body politic. To that end, the rule takes as its basis appropriate and constitutionally unobjectionable criteria and ensures that the extent of the differentiation remains within the limits of the legislature’s intent. a. With the 5 percent minimum threshold clause the legislature ensures both Parliament’s capacity to function and the integrative character of the election. In that context, the extent to which limited differentiations are permissible is governed by the purposes for which a parliament is elected. In the case of the Bundestag those functions are the enactment of legislation and the formation of the government. On the one hand, the legislature assumes in the case of the rule in § 6 (6) of the Federal Election Act that parties with a minimum of 5 percent on the second ballot (list votes) in the whole of the electoral territory represent a stratification of political opinion in the electorate that is significant for those parliamentary functions and, on the other hand, that those parties will properly share in the tasks of the Bundestag with their central elements being the enactment of legislation and the formation of a government. The fundamental restriction of the minimum threshold up to 5 percent of the second ballot (list vote) limits the intensity of the interference with the— equal—franchise and serves the purpose of the election, which is to enable the parliamentary representation of those political trends within the nation that are significant following the popu lar vote. b. In laying down a criterion that allows inferences to be drawn as to the integrating power of political parties, the legislature is not limited to taking account of the success of a party in the second-ballot (list vote) proportional representation, which

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can be measured by its results in terms of votes in the electoral territory as a whole—or even in parts of it. Rather, as it did by enacting the Grundmandatsklausel, the legislature also can derive a party’s par ticu lar political strength from the extent of its success in the fi rst ballot (direct vote), which, under the system of personalized proportional representation, precedes the proportional distribution of seats. aa. When a deputy belonging to a political party wins a direct mandate, the election of that candidate also is generally an expression of the extent of the approval of the political aims of the party that nominated him or her. If a party’s constituency candidate gains the confidence of the majority of the voters in the constituency, the legislature may assume that this also implies a special degree of approval toward the party behind the candidate. If, in rare and exceptional cases, a party manages to win several constituency seats with its candidates, but without overcoming the 5 percent minimum threshold on the second ballot, then the legislature is entitled to see in that success, which is already reflected in parliamentary seats, an indication that the party has taken up par ticu lar issues of concern that justify representation in Parliament. In that light, the legislature is entitled to view the direct constituency (Grundmandat) party as politically significant. Th is strikes an acceptable balance between two imperatives. On the one hand, it satisfies the requirement that the Parliament is capable of functioning. On the other hand, it provides voters and political parties equal opportunities by allowing parties to participate in the distribution of list seats in the Bundestag commensurate with its second-ballot (list vote) success. bb. The Federal Election Act fi nds support for the inclusion of the Grundmandatsklausel as an alternative entry hurdle on a legal practice that is confi rmed by the tradition of German electoral law, Land electoral law, and electoral laws of other countries. . . . c. The objections to the Grundmandatsklausel are not justified. aa. Contrary to the view of the complainant, the rule does not undermine the aim of the 5 percent minimum threshold rule, which seeks to ensure Parliament’s ability to function. According to experience to date, a small party winning three constituencies remains the rare exception. . . . In the view of that political reality, the legislature also does not need to take into account for future purposes the possibility that the Grundmandatsklausel may lead to a fragmentation of the forces represented in Parliament, thereby impairing the ability of the Bundestag to function. bb. The Grundmandatsklausel also is a legally appropriate reference criterion from the point of view of equal suff rage and equal electoral opportunity. It is a “numerical criterion” that fi rst fi nds concrete expression in the electoral procedure; it can be fulfi lled by any party. It is only necessary that the party has the corresponding popularity among the voters. Th is ensures that the rule operates neutrally in the election contest, unlike criteria that refer to par ticu lar characteristics of parties. d. The rule in § 6 (6) [1] {2} of the Federal Election Act also is not called into question by the objection that the Grundmandatsklausel is framed too broadly and therefore absurdly provides access to the apportionment process for parties that win three direct seats, not in one region, but “scattered” over the whole of the federal territory.

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The legislature is entitled to infer the validity of the Grundmandatsklausel from success in constituencies irrespective of regional proximity. e. No constitutional requirements arise with respect to the number of direct constituency seats. The 5 percent minimum threshold rule in § 6 (6) [1] {1} of the Federal Election Act ensures that the whole of the rule in § 6 (6) [1] does not produce, nationwide, a restrictive effect higher than a 5 percent minimum threshold. It is otherwise left to the legislature’s discretion as to how many constituency successes it identifies as being an expression of par ticu lar political importance. For that reason alone it is not constitutionally objectionable because the legislature did not increase the number of direct constituency seats after the electoral territory was expanded as a result of the reunification of Germany.

∂

The difficulty surrounding the integration of the pds into the political life of the Federal Republic now must be evaluated from the perspective of its increasing importance. In the run-up to the 2005 federal election, the pds allied itself with the disaffected left from then Chancellor Schröder’s increasingly centrist Social Democrats to form the Left Party. The newly formed party polled better than the Green Party, receiving nearly 9 percent of the national vote, in the 2005 election. With 12 percent of the vote in the 2009 federal election, the Left Party continued this successful trend. Despite these results, which might have helped the center-left spd assume leadership in state or federal governing coalitions, the spd generally continues to regard the Left Party as a pariah with which it will not collaborate. The only exception to this stance has been in the Berlin state government. For years the Constitutional Court consistently sustained the 5 percent minimum threshold rule, approving its application to local elections as well as Germany’s administration of elections to the European Parliament.67 The National Unity Election Case, reflecting the unique circumstances of Germany’s fi rst postreunification election, was the rare exception to that tradition. Recently, however, the Court’s resolve with respect to the 5 percent minimum threshold has begun to show cracks. First, acting as the Constitutional Court for the Land Schleswig-Holstein, the Court struck the rule’s application to that state’s local and regional elections. The Court found that the 5 percent minimum threshold severely infringed upon the constitutional interests of equality (Article 3 (1)) and the integrity of political parties (Article 21). Th is severe infringement, the Court concluded, was not offset by the rule’s usual justifications. First, there was no evidence that it was necessary as a check on the threat posed by enemies of the constitutional order who might seek to assume political power through democratic means in order to destroy democracy. Second, the rule was not working to hinder “splinter” parties that assume roles in public authority and policy making only to advance discrete political objectives without any regard for the greater good of society. Th ird, and most importantly, the rule did not appear to the Court to be necessary to ensure the effective functioning of local representative bodies.68

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In the European Parliament II Case (2011) the Court invalidated the rule’s application to elections to the Eu ropean Parliament. In an earlier case, European Parliament I (1979) the Court sustained the application of the rule to European Parliament elections, reasoning that the application of the 5 percent minimum threshold was justified because its main aims were as (or perhaps more) relevant for that supranational organ as they were for the Bundestag. Chief among those aims, the Court explained, is the rule’s capacity to promote an integrated and functioning legislature. In European Parliament I the Court took notice of the integrative character of the entire European project and recognized the European Parliament’s contribution to that endeavor. “In the present stage of integration,” the Court concluded, “the successful work of the European Parliament is still very much dependent on a close relationship amongst the members of the European Parliament and the domestic political forces in the member states.” 69 Th irty years later, however, the Court reversed this decision. In a judgment striking the 5 percent minimum threshold as applied to Germany’s administration of elections to the European Parliament, a bare 5–3 majority of the Second Senate emphasized the rule’s democratic costs. On the one hand, the Court conceded that the 5 percent minimum threshold helped promote political unity. To suggest otherwise would have required the Court to turn its back on a line of its jurisprudence handed down over generations, including in the European Parliament I Case. On the other hand, the Court underscored the fact that the 5 percent minimum threshold achieved that aim only by severely infringing equally important principles of democracy rooted in the Basic Law, including equal suff rage and equal electoral opportunity. At least two facts suggested to the majority that these costs were too high. First, the majority concluded that the tradition of broad partisan coalitions—creating “big tent” party blocs—in the European Parliament eliminated any risk that the body might be unable to act through a majority without the benefit of a 5 percent minimum threshold. Second, the majority noted that the European Parliament had managed to effectively fulfi ll its mandate among the organs of the European Union despite the fact that it had long been the host to scores of minor, marginal, and splinter parties. At the time of the Court’s decision, the senate noted, nearly 160 parties from the eu’s twenty-seven member states were represented in the European Parliament.70 Despite this trend, there is no reason to think that the 5 percent minimum threshold will soon disappear from Germany’s federal elections. In Schleswig-Holstein and European Parliament II the Court took pains to distinguish the circumstances at the local and supranational levels from those prevailing in Germany’s Bundestag elections. The Court seems convinced that, whatever its cost in democratic terms, the 5 percent minimum threshold is still necessary to ensure Parliament’s stability and efficacy. Contested Elections. Article 41 (1) of the Basic Law empowers the Bundestag to examine the validity of elections and to “decide whether a representative has lost his parliamentary seat.” Complaints against the decisions of the Bundestag under this

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paragraph may be lodged with the Federal Constitutional Court under Article 41 (2).71 Section 48 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz; hereafter referred to as the fcca), however, limits access in such cases to a parliamentary minority (providing the group constitutes at least one-tenth of all representatives), to a representative whose seat is being contested, and to an eligible voter whose election complaint, if denied by the Bundestag, is supported by the signatures of at least one hundred eligible voters.72 Th rough 2011 the Federal Constitutional Court had received 218 such cases and disposed of 203 (with rulings from the Court’s senates or chambers in 171 of these cases), sustaining the Bundestag’s fi rstinstance decision in almost all of them. Not surprisingly, Article 41 cases are clustered in the periods immediately following the federal elections. Th is jurisdictional authority served as the basis of most of the cases discussed in this section. They clearly demonstrate the modesty with which the Court traditionally has construed its authority in election review matters. First, the Court has shown great deference to this par ticu lar aspect of the Bundestag’s constitutional competence of self-governance. Martin Morlock explained that this approach is rooted in principles of democracy: “Election review is part of the fundamental principle of popu lar sovereignty [Article 20 of the Basic Law]. It guarantees the orderly operation of elections as the decisive means of legitimizing and correctly assembling the Bundestag, which is the central constitutional organ from which the legitimacy of all other organs of the state derives.”73 Second, the Court has excluded from its Article 41 inquiries election challenges that assert subjective rights, focusing instead on the objective right to a properly administered election. Th at is to say, the Court addresses only “the validity of the election as such.”74 Deference to parliamentary self-governance in election review cases is justifiable because the inherently antimajoritarian nature of judicial review would be exacerbated in the context of settling disputes over inherently political undertakings such as elections to the most representative of Germany’s legislative institutions. Th is logic is also recognized by the U.S. Constitution, which, in Article I, Section 5, establishes that “Each House [of Congress] shall be the Judge of the Elections, Returns and Qualifications of its own Members. . . .” The German tradition, however, has recognized that election review still implicates potential violations of the law that require judicial authority and expertise for resolution (Article 19 (4) of the Basic Law). The Weimar Constitution of 1919 solved this tension by providing for a special Election Review Court. The majority of this tribunal’s members were parliamentarians and the minority were high-ranking judges. With this compromise it was still possible to acknowledge the parliamentary priority over and democratic significance of election review. The framers of the Basic Law were less willing to compromise. While Article 41 (1) establishes election review as a competence of the Bundestag, Article 41 (2) gives the Federal Constitutional Court jurisdiction to fi nally review the Parliament’s decisions in these matters. The extent to which this important link in the chain of popular and political legitimation has been judicialized was demonstrated by the Federal Constitutional Court’s

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decision in the Hessen Election Review Case (2001).75 The narrow margin of victory enjoyed by the center-right cdu in the 1997 Hessen state elections raised some hackles with the center-left spd, which lost by only a few hundred thousand votes. When the cdu’s party financing scandal was later revealed, the Hessen Election Review Court sua sponte took the election under review. The Hessen Election Review Court was created by Article 78 of the state constitution and § 17 of the accompanying Election Review Act. It was modeled on the Weimar-era Election Review Court in that a majority of its members were parliamentarians, supplemented by some of the state’s highranking judges. Th is combination, however, could be construed as giving the spd a majority on the Hessen Election Review Court because the judges serving on the court were affi liated with the spd. Th reatened with the possibility that a pro-spd Election Review Court might undo its electoral victory, the cdu-led Hessen government brought an abstract judicial review action against the Hessen Election Review Court’s proceedings in the Federal Constitutional Court. Specifically, the cdu-led Hessen government challenged the “mixed” political and judicial nature of the Election Review Court, arguing that, inter alia, Article 19 (4) of the Basic Law requires that such matters be resolved by the judiciary. The Federal Constitutional Court agreed, holding that the mixed judicial and political nature of the Hessen Election Review Court, resulting in an attendant lack of neutrality and judicial independence, rendered the Election Review Court as something less than a “court” in the constitutional sense. Of course, the Election Review Court was meant to be a political entity for the resolution of election disputes. It is of comparative interest to note that the Federal Constitutional Court ruled to bolster and entrench the role of the judiciary in election review disputes in Hessen Election Review at the same time that the U.S. Supreme Court intervened to resolve the disputed 2000 U.S. presidential election.76 Absentee Balloting. The Mayen Absentee Ballot Case (1981) is an example of a Bundestag electoral decision reviewed by the Federal Constitutional Court. More than 16 percent of Mayen’s voters cast absentee ballots in the federal election of 5 October 1980. In the absence of proof that officials or voters had violated the Federal Election Act, the Bundestag sustained the validity of these ballots. A Mayen voter’s constitutional complaint against the Bundestag’s decision charged that absentee voting on this scale endangered the freedom and secrecy of elections as secured by Article 38.77 In rejecting the complaint, the Court nevertheless issued a warning: Although the Bundestag acted within its constitutional authority in facilitating absentee balloting, it nevertheless has the duty to ensure that the right to vote is safeguarded. Legislators . . . are obligated continuously to review existing regulations dealing with absentee balloting so as to determine whether new situations pose an unexpected danger to the integrity of elections. If abuses are uncovered that adversely affect the freedom and secrecy of elections more than necessary, then the Parliament has the constitutional duty to amend or change the original regulations.78

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The Court concluded in the Mayen Absentee Ballot Case that the Bundestag had laid down detailed procedures designed to preserve the secrecy of the ballot and to restrict the conditions under which absentee voting would be permitted. Under these circumstances, the Court ruled, there could be no valid objection to absentee voting. German citizens denied the right to vote in federal elections because they lived outside the Federal Republic had a more compelling constitutional complaint. Sections 12 (2) and (4) of the Federal Election Act extended the right to vote only to civil servants, soldiers, and others employed in the public service who were living abroad on orders from their employers. The Second Senate sustained these provisions in the Non-Resident Voting I Case (1973) on the theory that citizens who voluntarily surrender their domicile in Germany to take up residence outside the country no longer have the interest or information necessary to vote in federal elections.79 Years later, in a case involving the denial of suff rage to German nationals working as civil servants for the eu outside Germany, the Court had second thoughts about the validity of §§ 12 (2) and (4). Following the Court’s decision in Non-Resident Voting II (1981), the Bundestag amended the electoral act, extending the franchise to German nationals resident in member states of the European Community.80 The Foreign Voters I Case represents the next major event in this account of German voting rights. 5.10 Foreign Voters I Case (1990) 83 BVerfGE 37 [Schleswig-Holstein granted its foreign resident aliens the right to vote in municipal elections if these residents were citizens of countries that extended municipal voting rights to German nationals. Thus, some seven thousand Danes, Irish, Dutch, Norwegians, Swedes, and Swiss who had resided at least five years in the Land would be eligible to vote. Christian Democratic representatives in the Bundestag brought an abstract judicial review proceeding in the Constitutional Court, claiming that the Land law “undermined the democratic right of the German people to self-determination.” The Court agreed.]

∂

Judgment of the Second Senate. . . . C. The Schleswig-Holstein government’s amendment to the Municipal and District Election Act violates Article 28 (1) of the Basic Law. Th is provision permits the people to elect representatives at communal and district levels; the concept of “the people” is employed in the same way as in Article 20 (2) of the Basic Law, which defi nes “the people” as the German people. The concept of “the people” within a community and district includes only the German people. Foreigners cannot be given the right to vote at the municipal level. I. 1. The constitutional assertion that “all state authority shall emanate from the people” (Article 20 (2) of the Basic Law) contains not just the principle of popu lar

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sovereignty (evidenced by its location and connection with other norms); it also defi nes the people who exercise state authority through elections, voting, specific legislative organs, executive power, and the judiciary: it is the body politic of the Federal Republic of Germany. Article 20 (1–3) identifies the Republic as a democratic, social, federal, and constitutional state based on the principle of separation of powers. There can be no democratic state without a body politic that is both subject to and the object of the state authority vested in it and exercised through its organs. Th is body politic consists of the people, from whom all state authority emanates. Th is does not mean that all state decisions must be approved by the people; rather, it means that the subject of state authority must be a cohesive, unified group. 2. According to the Basic Law, the people, from whom state authority emanates in the Federal Republic of Germany, comprises German citizens and all persons of similar status. Membership in this body politic is determined by citizenship. Citizenship is both the legal precondition for the equal status of individuals and the foundation for equal rights and duties; exercise of legal rights and duties legitimates democratic state authority. Other provisions of the Basic Law that relate to “the people” are unequivocal in [identifying] the body politic as the German people: The preamble declares that it is the German people who adopted the Basic Law by virtue of their constituent power; Article 33 (1) and (2) guarantee every German in every Land the same political rights and duties; Articles 56 and 64 require the federal president and members of the cabinet to swear that they will dedicate their efforts to the well-being of the German people; Article 146 grants the German people the right to adopt a constitution superseding the Basic Law. Notably, the preamble and Article 146 both declare the German people to be subject to and the object of the state established as the Federal Republic of Germany. And Article 116, which attributes the characteristic of being German to so-called “status Germans” only, derives its meaning from its own defi nition of the subject of German state authority as “all German citizens.” The drafters of the Basic Law expressly addressed this issue, even while modifying the principle somewhat in consideration of the circumstances of the postwar era. 3. If the Basic Law concludes that being German is necessary to being part of “the people” that is the subject of state authority, then it must follow that being German is a precondition of the right to vote, which is a direct exercise of the state authority possessed by the people. Th is does not mean that the legislature is unable to influence the composition of “the people” under Article 20 (2). The Basic Law empowers the legislator to set conditions for gaining or losing citizenship status (see Articles 73 (2) and 116) and thereby to establish the criteria for membership in the body politic. Th rough the Citizenship Act, the Parliament can also change residence requirements to influence political rights. It is incorrect to state that an increase in the population of foreigners within the Federal Republic of Germany changes the constitutional concept of “the people.” Underlying this misperception is the concept that democracy and the inherent concept of freedom demand complete congruence between those who hold democratic rights and those who are subject to state control. Th is is the correct starting

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point, but it cannot eliminate the relationship between being German and being a member of the body politic, and thus being vested with state authority. The Basic Law does not permit such a development. The sole permissible response is the expansion of citizenship rights to foreigners who have been in Germany for an extended time and who are legally resident and subject to state authority just like other Germans. II. Similarly the state authority granted to the Länder under Articles 20 (2) and 28 (1) can be borne only by those who are German. The territorially defi ned unity of Germans living within the area of a Land stands in place of, or beside, the body politic of the Federal Republic of Germany. III. 1. Under Article 28 (1) of the Basic Law, the outcome can be no different in the case of popu lar representation within municipalities and districts. Even the language of the norm, which disregards territorial defi nitions, uses the concept of “the people” uniformly for Länder, districts, and municipalities, pointing out that the concept applies exclusively to Germans and that Germans constitute the people and elect their representatives. 2. Th is linguistically faithful interpretation of Article 28 (1) corresponds to the Basic Law’s meaning and purpose. a. Th is norm establishes that the fundamental constitutional principles of popu lar sovereignty and democracy, as well as procedures for democratic elections, are valid not only at the federal and Land levels, but also for municipalities and community associations. It guarantees a uniform basis of democratic legitimation for all territorial divisions within the Federal Republic of Germany. . . . c. The drafters of the constitution had good reasons for locating the democratic legitimation of municipal representatives in the German residents of a community (Article 28 (1)): democratic principles (articulated in Articles 20 (2) and 28) are applied to municipalities and districts through Article 28 of the Basic Law.

∂

The Court’s strict association of the enfranchised democratic polity with German citizenship underscored a persistent problem in German political life. The fact that German citizenship law, with very limited exceptions, was based on jus sanquinis (citizenship inherited from one’s parents, or “law of blood”) meant that Germany’s large and growing population of resident foreigners were unable to attain citizenship and, thereby, were excluded from the country’s democratic processes. Th is was true despite the fact that many foreigners had been living in Germany for decades (having arrived as part of the guest-worker programs instituted to slake the labor market during the Federal Republic’s postwar economic boom) and that their children and grandchildren knew no home other than Germany. Th is discomforting gap was surely part of what motivated Schleswig-Holstein to extend the vote to the state’s long-time foreign residents. Following the antics in the Bundesrat that led the Constitutional Court to nullify immigration reform legislation in the Immigration Act Case (2002, no. 3.5), a new immigration law was enacted in 2005. The new immigration regime opened new paths

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to German citizenship and, in light of the Court’s reasoning in Foreign Voters I, to full participation in Germany’s demos. Foreign Resident Voting and the Maastricht Treaty. On the day the Court issued the Schleswig-Holstein Foreign Voters I decision, it decided a companion case arising out of the city-state of Hamburg.81 Here the Court nullified, for the same reason, an amendment to Hamburg’s constitution granting the right to vote in regional elections to all legally resident aliens, regardless of nationality, provided they had lived in the district for a period of eight years. Th is change added ninety thousand persons to Hamburg’s voting lists. The Maastricht Treaty, however, extended the franchise to all eu citizens residing in a member state. Under the provisions of the treaty, eu citizens are now able to vote and stand as candidates in local elections. Accordingly, in December 1992, the Basic Law was amended to grant the nationals of member states the right to vote in regional and municipal elections (Article 28 (1)), effectively nullifying the Schleswig-Holstein and Hamburg decisions.

party state and political spending In formally recognizing political parties, Article 21 of the Basic Law represents something of a revolution in German constitutional theory. The time-honored German view insisted on the separation between state and society. Political parties and other assorted groups represented society and its plurality of interests; society, like political parties, was a source of fragmentation and division. The state represented a higher unity with its own moral ends. Staffed by impartial public servants committed to the general interest, the state alone in traditional theory had the capacity to govern creatively in pursuit of the common good within the context of ordered liberty. Political parties, by contrast, would weaken the state if allowed to dominate the process of governance. Article 21 (1) stood this theory on its head. Under its terms political parties would now “participate in forming the political will of the people,” thus rejecting the old dualism between state and society. Paragraph 1 also declares that the “internal organization [of parties] must conform to democratic principles” just as political parties “shall publicly account for the sources and use of their funds.” To make good on this promise of internal democracy, as part of the “militant democracy” we describe later in this chapter, paragraph 2 bans as unconstitutional political parties opposed to the “free democratic basic order.”82 The “fi nancial disclosure” provision, on the other hand, seemed clearly intended to diminish the role of “big money” in elections and to enshrine the principle of transparency in party funding. The Basic Law’s framers assumed that political parties would draw their fi nancial support exclusively from private sources and they believed the public disclosure of these sources would have a cleansing effect on electoral politics. (As noted later on, however, the Bundestag waited until 1967 to pass legislation enforcing the article’s disclosure provision.)

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From the language of Article 21 (1), as we shall see, the Constitutional Court has woven a theory of the party state (Parteienstaat), representing “a unique synthesis of Western parliamentarism and the German state tradition.”83 The parliamentary tradition is embodied in the principle of popu lar sovereignty and the formal institutions of representative democracy. The state tradition, on the other hand, is manifest in the constitution’s formal recognition of political parties as agencies engaged in the process of “will formation” and in their status—one the Constitutional Court has conferred by interpretation—as “integral units of the constitutional state.”84 Yet, as the Party Finance cases featured in this section show, the Court seems not to have fully resolved the tension between the traditions of democracy and statecraft. An overlapping tension exists between Articles 21 and 38. On the one hand, the Basic Law regards political parties as important, if not necessary, agents of democratic government. They recruit leaders, crystallize issues, aggregate interests, organize governments, and make policies. In the modern nation-state, with millions of voters, political parties are, as the Constitutional Court has recognized, a rational and democratic means for carry ing out these functions: rational because they provide the electorate with alternative choices of policy; democratic because they are mechanisms of majority rule and government by consent. Article 38, however, as described earlier in this chapter, declares that members of parliament represent the “whole people and are not bound by orders and instructions but subject only to their conscience.” The Court’s jurisprudence in the field of political parties and representation can be understood as an attempt to resolve the friction between these two articles. The experience made under the Weimar Constitution of 1919 was uppermost in the minds of the framers when they crafted Article 21. The Weimar Republic was a party state in an anti-party constitutional culture. The only mention of political parties in the Weimar Constitution was the directive instructing civil servants to serve the state and not political parties.85 Under the shattering impact of the Great Depression and Hitler’s struggle for power, Weimar-era democracy degenerated into a regime of warring factions, rendering effective parliamentary government all but impossible. It was the president, directly elected by the people, who personified the state, and he ruled in its name in the face of parliamentary breakdown. The Basic Law’s framers, themselves party representatives—Christian Democrats and Social Democrats made up the large majority of the delegates to the 1948–1949 Parliamentary Council—set out to create a stable political system by shift ing power from the president to a chancellor chosen within the framework of a competitive party system.86 Germany has since developed into a durable democracy marked by high voter turnout, strong popu lar support for the established parties, and a competitive party system capable of producing relatively stable coalitions and alternating governments. For its part the Federal Constitutional Court has held fi rm to the framers’ original vision respecting the role of political parties. Parties as Constitutional Organs. Early decisions from both senates of the Constitutional Court underscored the critical role of parties in the new polity. In the Socialist

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Reich Party Case (1952; no. 5.14) the First Senate declared that Article 21 (1) “treats political parties as more than mere political-sociological organizations; instead, they hold the rank of constitutional institutions.” Earlier in the same year, in the SchleswigHolstein Voters’ Association Case (1952),87 the Second Senate emphasized the same point by observing that the “incorporation of political parties in Article 21 means that parties are not only politico-sociological entities; they are also integral parts of our constitutional structure and our constitutionally ordered political life.”88 Finally, in 1954, the plenum itself ruled that political parties in their capacity as constitutional organs may defend their institutional rights before the Federal Constitutional Court in Organstreit proceedings. “By cooperating in the process of forming the political will of the people,” declared the Court, “parties function as constitutional organs. The parties exercise this right, which is secured by Article 21, primarily through their participation in parliamentary elections. When they are active in this par tic u lar realm and fight for the rights that flow from this special function in our constitutional life, they are entitled to invoke their own rights as constitutional organs in proceedings before this Court.”89 The Plenum Party Case (1954) served notice that the Court was prepared to protect the equality of political parties as well as their prescribed institutional role in the political system. Accordingly, the decision elevated political parties to a new level of protection, regarding them as crucial vehicles in the conduct of elections and thus capable of vindicating their constitutional rights as electoral organs before the Federal Constitutional Court. At the same time, the constitutional recognition extended to political parties was accompanied by clear responsibilities and no small degree of government oversight. 5.11 Party Finance I Case (1958) 8 BVerfGE 51 [Federal laws passed in the early 1950s permitted individuals to make taxdeductible contributions of up to 5 percent of their income to political parties. Companies enjoyed the same tax privilege up to 2 percent of their corporate sales. Public disclosure of these amounts, no matter how large, was not required. The Social Democratic government of Hesse, joined later by Hamburg and North Rhine–Westphalia, challenged the constitutionality of these deductions in an abstract judicial review proceeding, claiming that they discriminated in favor of political parties backed by wealthy individuals and large corporations. The Federal Constitutional Court agreed.]

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Judgment of the Second Senate. . . . B. II. . . . By declaring donations to political parties deductible, the Parliament renounces that part of the income or corporate tax that would otherwise accrue. . . .

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Th is renunciation benefits political parties. Recognizing donations to political parties as deductible expenses means, therefore, that the government indirectly participates, by the amount of revenue it loses, in fi nancing parties. When the legislature exercises its authority it is bound by higher constitutional principles. The challenged provision would be unconstitutional if the Basic Law prohibited any direct or indirect governmental fi nancial support of political parties, as petitioner claims. But this is not the case. . . . III. The challenged provisions of the tax laws, however, violate the basic right of political parties to equal opportunity. . . . 2. The challenged provisions permit every taxpayer who pays income or corporate taxes to donate money to any political party and to enjoy the same legal consequences; namely, deductibility of the donation from taxable income. According to its wording, the regulation gives every political party the same chance to obtain donations. But even if a law avoids unequal treatment on its face . . . , it may be contrary to the principle of equality if its practical application results in an obvious inequality and if this unequal effect is directly due to the legal formulation of the statute. It is not the outward form that is decisive but rather the substantive legal content. . . . 3. If the legislature interferes with the formation of the political will by enacting a statute that could possibly have an indirect effect on the equal opportunity of political parties, then it must bear in mind that its discretion in this area is very limited. As a matter of principle, all parties formally must be treated in an equal manner. Th is principle prohibits the Parliament from treating parties differently unless such treatment is justified by an especially “compelling reason” (zwingenden Grund). Th is principle flows from the democratic-egalitarian foundation of our constitutional order. Today, all political parties are dependent on donations due to the huge fi nancial expenditures required by modern electoral campaigns; no party can meet all of its fi nancial needs . . . from member contributions. In a democratic, multiparty state, all political parties are equally called upon to take part in forming the people’s political will whether they represent the government or the opposition. It is true that the state need not pass laws to meet the fi nancial needs of the parties. But if Parliament enacts laws regulating the funding of political parties, either through the tax system or by direct contributions, then it may not favor a par ticu lar party or a group of parties over other parties. Any such law must conform to the constitution, which means that it may not violate a party’s basic right of equal opportunity. . . . Since the income tax rate increases with the size of taxable income, the possibility of deducting donations to a political party from taxable income gives mainly corporate taxpayers and those with high incomes an incentive to contribute. Pursuant to the new law, under certain circumstances these taxpayers can double their donations without paying more than before. Permitting the deductibility of contributions to a political party does not, however, produce greater incentive for taxpayers with low incomes because the donations that they can afford are usually so small as not to exceed the standard deduction.

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General experience shows that in contrast to donations made for charitable, religious, or scientific purposes, taxpayers make donations to a political party with a special interest in mind. . . . Thus, a donor will tend to contribute to the party that he or she believes will foster his or her special interests on the basis of the party’s platform and activities. . . . Th is fact can be of importance only if political parties differ so clearly from each other in their goals and the means to achieve them that the donor must choose one party (or group) over another if he or she wants to safeguard his or her interests. Such differences do in fact exist between certain parties in the Federal Republic. . . . The challenged provisions therefore favor those parties whose programs and activities appeal to the wealthy. . . . The principle of progressive taxation means that some taxpayers who make use of their democratic right to participate in forming the political will of the people enjoy a material advantage far greater than other taxpayers. Money plays a crucial role in election campaigns, and a party that has at its disposal large fi nancial resources is able to influence elections more effectively than a party with less funding. Under the system of progressive taxation, where tax-deductible contributions are based on the percentage of one’s income, wealthier donors sacrifice far less than donors in lower tax categories. A tax law that allows persons to influence the political will-formation process on the basis of their income is incompatible with the principle of formal equality that governs the exercise of political rights in a liberal democracy.

∂

Equality and Party Funding. In 1957, a year before Party Finance I was decided, the Court nullified a provision of the tax code that disallowed deductions for contributions to political parties unless such parties had elected at least one representative to the federal or a Land parliament (All- German People’s Party Case [1957]).90 In the course of its opinion in Party Finance I, the Second Senate acknowledged that these decisions were bound to exacerbate the fi nancial plight of political parties and their need for funds. Yet, adequate funding was necessary if the parties were to play the important role envisioned by the Basic Law. In Party Finance I the senate suggested that the state might constitutionally fund political parties as a means of ensuring effective competition among them and of diminishing their reliance on special interest groups.91 Funding would be appropriate because parties were now regarded as “constitutional organs” functioning as vital links between state and society. Th is did not mean, however, that parties would have to be funded equally. Public funding, said the Court, might be adjusted to the extent of each party’s popu lar support. On the other hand, such funding must not accentuate existing de facto inequalities among the parties in election campaigns. The Bundestag responded immediately—and eagerly—to the Court’s suggestion by passing the Party Finance Act of 1959. Supported by all the parties in the Parliament, the statute authorized the use of public funds in the amount of dm 5 million to fi nance their so-called political education programs.92 (Shortly thereafter state and

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local governments enacted similar statutes.) By 1964, these outlays, divided among the parties in proportion to the number of seats they occupied in the Bundestag, had reached dm 38 million, equivalent to one German Mark for each voter. A minor party denied funds under these early appropriations claimed that its exclusion from the act’s coverage violated the principle of electoral opportunity. In the All- German Block Party Case (1961)93 the Court rejected that party’s application for a temporary injunction to bar the disbursement of such funds, reiterating once again that public fi nancing of political parties is permissible in the light of the crucial representational role assigned to them under the Basic Law. Although specific formulae for the allocation of funding might raise equal protection questions, this decision, together with dicta from Party Finance I, seemed to have established the general validity of party fi nancing out of state funds. In Party Finance II, however, alarmed by the enormous annual increases in party funding, the Court backed away from the sweeping implications of its earlier cases. 5.12 Party Finance II Case (1966) 20 BVerfGE 56 [Between 1959 and 1964 the Bundestag raised the amount of direct public subsidies to the political parties. The funds were apportioned among the four parties represented in the Bundestag (cdu, csu, spd, and fdp) based on the total number of each party’s parliamentary seats, and the subsidies could be used for their general support before and after elections. The Social Democrat– controlled state of Hesse challenged the validity of the law in an abstract judicial review proceeding. Political parties that failed to win seats in Parliament, which were thereby rendered ineligible for public funding, also challenged the validity of the party fi nance law. Each of these parties—the far-right National Democratic Party, the All-German Party, and the Bavarian Party—petitioned the Federal Constitutional Court within the framework of an Organstreit proceeding. The Court accepted the petitions and, to a significant degree, credited the challenges raised.]

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Judgment of the Second Senate. . . . C. I. In its judgment of 24 June 1958 [Party Finance I], the Court noted that political parties are primarily organizations for the preparation of elections and that, for the most part, they use their own fi nancial resources to serve this purpose. The Court remarked that it would be permissible for the state to appropriate public funds not only for holding elections but also for the support of those political parties that participate in the electoral process. Such funding is warranted because holding elections is a public function and parties play a decisive role in carry ing out this function under the constitution. Federal and state legislators could have and have understood the

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Court’s explanations to mean that it is constitutionally permissible to use public funds to subsidize parties for all political purposes. Th is case, however, has convinced the Court that to grant subsidies from public funds to parties for everything they do violates Articles 21 and 20 (2). . . . Nonetheless, it is constitutional to use public funds to reimburse political parties when they are engaged in forming the people’s political will by participating in parliamentary elections, but only to the extent of defraying the costs of an appropriate election campaign. II. 1. In creating a free, democratic basic order, the framers of the Basic Law chose to advance a free and open process of forming public opinion and the will of the state. It is incompatible with this choice for the state to finance all political party activities. . . . In a democratic system the formation of the people’s will must take place in a free, open, and unregimented manner. . . . The process culminates in a parliamentary election where a distinction must be made between forming the people’s will and forming the will of the state. . . . Whereas Article 21 (1) deals with forming the people’s will, Article 20 (2) concerns the formation of the state’s will. The expression of the people’s will coincides with forming the state’s will only if the people exercise state authority through elections and voting (Article 20 (2)). . . . Forming the people’s will and forming the state’s will are intertwined in various ways. In a democracy, however, forming the popu lar will must start with the people, and not with the organs of the state. The state’s organs are created only through the process of forming the people’s political will. . . . Th is means that state organs are in principle prohibited from becoming active in forming the people’s will and opinion; this process must, as a matter of principle, remain “free of state control.” Actions of administrative or legislative organs to influence this process are incompatible with the democratic principle of the free and open formation of popu lar opinion and are legitimate only if they can be justified by a special reason. . . . The state is not obligated to satisfy the general fi nancial needs of political parties; nor is the state obliged to compensate parties, by fi nancial or other means on the basis of their different capabilities for influencing the process of forming popu lar opinion and will. . . . bb. Political parties cooperate in forming the political will of the people mainly through their participation in elections, a process that could not be realized in the absence of such parties. Parties accordingly serve as essential links between individuals and the state, for they are the instruments through which the will of the people can be put into effect even between elections. Parties in the majority establish and maintain connections between the people and the state, whereas minority parties form and facilitate effective political opposition. Parties participate as intermediaries in shaping public opinion. They take note of opinions, interests, and trends relating to political power and the exercise thereof; parties then balance these factors, mold them, and try to bring them to bear in forming the state’s will. . . . In a modern mass democracy, political parties decisively influence nominations to the highest governmental positions. . . . They influence the formation of the state’s will by working marginally in

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the state’s system of institutions and offices, in par ticular by influencing decisions and measures taken by Parliament and the government. The constitutional requirement that the formation of public opinion and the will of the state remain fundamentally free of state control insulates party activity against the overarching influence of government and prohibits the incorporation of political parties into the state’s apparatus. . . . The general consensus of the legal community is that it is incompatible with the Basic Law to use public funds to cover all or even most of the fi nancial needs of political parties. Partial state fi nancing of parties through annual or monthly payments for all political activities . . . would place political parties under the tutelage of the state. Th rough such fi nancing the state would influence the process of shaping public opinion and forming the will of the state. No special reason can be advanced to constitutionally legitimate such influence. Therefore, the fi nancing of political parties provided for in the Federal Budget Law of 1965 is unconstitutional whether seen as an infringement of the right of political parties to be free from state interference as guaranteed by Article 21 or a violation of the principle of equal opportunity for parties. 1. The appropriation of public funds to defray the costs of all of a party’s political activity cannot be justified by the fact that Article 21 recognizes parties as constitutional instruments necessary for shaping the political will of the people or the fact that they have been elevated into a constitutionally protected institution. In short, since the process of democratically forming the people’s will must remain free from state influence, the fact that the constitution recognizes the participation of parties in this process does not in and of itself justify the state’s influence over this process by the public fi nancing of political parties. 3. The fact that the members of parliament receive allowances and parliamentary groups receive contributions from state funds does not mean that it is also permissible to grant parties annual subsidies for all their political activity. . . . III. Additionally, state funds may not be allocated to parties for purposes of “political education.” Evidence in this case has confi rmed that it is impossible to draw a line between general party activity and political education. . . . IV. 1. . . . But reimbursing political parties for expenses necessary to fund an appropriate election campaign can be constitutionally justified if the principles of open participation in elections and the equal opportunity of political parties are to be observed. In this respect we affi rm the [Party Finance I Case]. . . . In a democratic system, parliamentary elections constitute a crucial act in forming the people’s political will. . . . In a modern mass democracy . . . the state could not hold elections without political parties. . . . Active citizens decide on the value of a political party’s program and on its influence in forming the state’s will primarily through elections. . . . They cannot make decisions sensibly unless the parties have fi rst set forth their platforms and goals in an electoral campaign. The campaign alone induces many voters to cast a ballot and make a decision. The Court has emphasized on several occasions that parties are principally organizations for preparing elections

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and that they take part in forming the people’s political will mainly by participating in parliamentary elections. . . . Because of the special importance of political parties for elections it is constitutionally justifiable for the state to reimburse them for necessary expenditures incurred during an appropriate election campaign. But the Court need not decide whether the legislature is obligated to reimburse parties for their campaign costs since this is a political question. . . . [As the extracts above and below suggest, Party Finance II established three points. First, state subsidies would have to be limited to expenses incurred during an election campaign. Second, political parties securing less than 5 percent on the second ballot (list vote) should be eligible for state funding. And third, there would have to be a relative upper limit on the amount of funds appropriated for the parties.] 4. a. The decision that legislatures can use federal funds to reimburse political parties for costs incurred in an electoral campaign establishes, on the one hand, that only those major parties that have taken part in an election campaign can lay claim to state subsidies. On the other hand, the principle of strict formal equality of opportunity requires that the legislature consider all parties that have participated in the campaign when distributing funds. It is inconsistent with the principle of equal opportunity for [the legislature] to provide state funds only to parties already represented in Parliament or to those that . . . win seats in Parliament. Th is principle does not preclude all differentiations; it permits parties to be treated differently if a special, compelling reason exists. . . . One can predict that reimbursement of campaign costs will encourage the establishment of new political parties. Th is would encourage a development that the 5 percent minimum threshold rule, which bars parties from entering Parliament with less than 5 percent of the total second ballot (list vote), was designed to counteract, a restriction the Federal Constitutional Court has approved. . . . The legislature can, however, guard against the formation of splinter parties. . . . It is true that reimbursement of a party’s campaign costs cannot be made contingent upon whether it has received 5 percent of the votes cast. Such a measure would double the effect of the 5 percent clause and would practically prevent a new party from being seated in Parliament. . . . Nevertheless, the legislature can . . . make reimbursement of a party’s campaign costs contingent upon its obtaining a certain minimum percentage of votes. Th is percentage must, however, be considerably lower than 5 percent.

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Competing Views of the Party State. The result in Party Finance II was a compromise between competing views of the relationship between political parties and the state. One view, as already noted, holds that parties are quasi-official agencies of the state, a character they possess owing to the critical functions they perform in modern political democracies. They are the main engines of state power and political representation; in this capacity they form the “political will of the people” on the

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basis of which laws are enacted. In the ideal Parteienstaat, the Court has suggested, parties are competitive but also unified, program-oriented organizations of active citizens capable of educating the electorate and representing their interests. Therefore, the Parteienstaat by defi nition excludes the Verbändestaat, a system in which interest groups monopolize the political process and undermine genuine majority rule. The state must liberate parties—and itself—from the domination of such interests, and one way of achieving this goal, the Constitutional Court suggested, is by financing political parties out of public funds.94 The competing view is closer to the traditional German attitude toward parties. While accepting the proposition that parties are necessary agencies of modern democracy and that Article 21 looks toward the creation of a Parteienstaat, this view does not postulate any fundamental nexus between political parties and the state. Under this interpretation, political parties are strictly voluntary associations with roots in the general social and political order; they are not part of the state. They may help to form the political will of the people, but they do not represent the will of the state. The state is an independent entity devoted to the public interest, an interest that does not depend on parties for its articulation or implementation.95 Party Finance II advances a middle view. The Court noted that parties, in their capacity as electoral organizations, shape the people’s will. In this sense, they carry out a crucial public function worthy of the state’s fi nancial support. The Court added, however, that they do not and should not monopolize this process; indeed, the state must remain open to other influences, including those of nonparty groups and related social interests. In addition, the Court duly noted the significance of Article 38, which defi nes legislators as representatives of the whole people. In a nutshell, parties serve as constitutional organs of the state only during election campaigns when they seek to organize the political will of the people. Accordingly, the Basic Law permits the public funding of political parties only for the purpose of defraying legitimate campaign costs. Funding for the general support of parties is constitutionally impermissible. Finally, the Court ruled that under the principle of equality, parties outside Parliament are also constitutionally entitled to reimbursement for their campaign expenses.96 The Federal Political Parties Act. In several judgments handed down between 1952 and 1966, the Federal Constitutional Court created an important body of law on political parties and elections. Party Finance II convinced the Bundestag and the federal government that they could no longer escape their duty, pursuant to the terms of Article 21 (1), to regulate the details of party life and orga nization, particularly with respect to the constitutional command that parties must “publicly account for the sources of their funds.” By this time, party fi nancing also had become the source of what some commentators described as blatant political corruption. Huge undisclosed and covert tax-exempt contributions to political parties on behalf of corporate interests in par tic u lar had become a way of life in West Germany.97 Having been denied a fertile source of party funding under Party Finance

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II, the major parties represented in the Bundestag—now dominated by the cdu/ csu-spd grand coalition—collaborated in the passage of the Political Parties Act of 1967.98 The Political Parties Act consisted of sections on the status and functions of political parties, internal party organization, nomination of candidates, and the disclosure and auditing of campaign contributions and expenditures, along with provisions on the public funding of political parties. In one of its most interesting parts, the Act accepted the theory of the Parteienstaat. It defi ned parties as “constitutionally integral units of a free and democratic system of government,” confi rmed their role in “forming the political will of the people,” and charged them with “ensuring continuous, vital links between the people and public authorities.” The following materials focus on the Act’s public funding section, including provisions on the disclosure of private donations and their tax treatment. Under the Act each parliamentary party would receive a specified amount of public funds on the basis of its total second-ballot vote, but only for the specific purpose of defraying the “necessary costs of an appropriate election campaign.” Th is was in keeping with the Court’s ruling in Party Finance II. These sums were to be distributed to the parties on an annual basis. As for other sources of revenue, the Political Parties Act in its original version encouraged small donations by making them tax-deductible while imposing reporting and disclosure requirements on large individual and corporate contributions. But against the backdrop of campaign fi nance scandals, the dwindling income of the established parties, and a rather loose defi nition of an “appropriate election campaign,” the public funding of political parties increased exponentially over the years.99 Under successive legislative changes, state subsidies surged from dm 5 million in 1959 to dm 38 million in 1964 and to dm 199 million by the late 1970s (subsequent to the adoption of the 1967 Political Parties Act). In addition, Parliament had established foundations to advance the respective interests of the four parties represented in the Bundestag. Heavily subsidized by federal and Land governments, the four institutions—Friedrich Ebert Foundation (spd), Friedrich Naumann Foundation (fdp), Konrad Adenauer Foundation (cdu), and Hans Seidel Foundation (csu)—were charged with fostering the “political education” of their members and the general public.100 These subsidies rose from dm 9 million in 1967 to dm 74.3 million in 1970. By 1990 the figure would skyrocket to dm 544.8 million. During the eleventh national legislative period alone (1987– 90), state subsidies in support of the parliamentary parties, party foundations, and nonparliamentary parties eligible for funding reached the astronomical sum of dm 4.2 billion. During the 1980s, state subsidies to the political parties often exceeded the income they received from private revenue sources (membership dues, individual and corporate donations, and officeholder assessments).101 Party Funding Adjudication (1968–1988). Few areas of public policy have experienced as much interplay between the Federal Constitutional Court and Parliament as the campaign fi nance provisions of the Political Parties Act. Every subsequent

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change in the Act—in par tic u lar, changes affecting the sum or distribution of state subsidies, tax-deductible donations, or reporting and disclosure requirements— triggered a corresponding constitutional challenge by parties, political associations, or independent candidates allegedly disadvantaged by the change. Overall, the Constitutional Court sustained Parliament’s general approach to campaign finance regulation. In the important Political Foundations Case (1986) the Court even endorsed the appropriation of subsidies to the four party-oriented foundations. By the 1980s these institutions had blossomed into prominent national organizations with large staff s and overseas branches and were well known for their educational and civic contributions, including their sponsorship of student research grants, fellowships, and academic conferences. (The amounts allocated to the foundations depended on the size of their memberships.) The Green Party and other critics charged that these subsidies circumvented the holding of Party Finance II and constituted a covert means of fi nancing the parties out of state funds. But after examining the nature and operation of the foundations the Court ruled that their funding was constitutionally permissible; they were seen to be legitimate civic and educational institutions legally and organ izationally independent of their affi liated parties.102 In a series of other decisions, the Constitutional Court struck down successive amendments to the Political Parties Act, fi ne-tuning its previous holdings and virtually micromanaging the party funding, taxing, and disclosure policies of both federal and Land governments, all in the interest of fair and equal electoral competition. In Party Finance III (1968), for example, the Second Senate nullified a provision of the Political Parties Act that limited funding eligibility only to parties securing at least 2.5 percent of the total list or second-ballot vote.103 The Court viewed this baseline as exceedingly high and thus ruled that it violated the general equality clause of Article 3 (1) as well as the principle of universal and equal suff rage under Article 38 (1), whereupon the Court ruled that any party receiving 0.5 percent of the vote should be eligible for public funding. Also, and unanimously, the senate declared that corporations must disclose their contributions to the parties in excess of dm 20,000 instead of the dm 200,000 provided by statute.104 Similarly, in Party Finance IV (1979), another decision of the Second Senate, the Court reaffi rmed the limits it had imposed on the tax deductibility of private donations to the parties as well as the bright line it had drawn in Party Finance II between the parties as constitutional organs for electoral purposes—their public function—and parties as voluntary associations of private citizens.105 The parties had been haggling to revise tax-deductible contributions substantially upward in light of the dwindling funds in their general trea suries, a condition that led to the scandal of Umwegfi nanzierung—that is, “going around the law” by funneling donations to dummy charitable organizations and securing tax exemptions for illegal contributions.106 Unsurprisingly, the parliamentary parties were pushing hard to increase their public subsidies. The Court pushed back in Party Finance IV. As voluntary political associations, said the Second Senate, the parties themselves were respon-

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sible for raising the funds necessary for their general support. The Second Senate also reminded the parties that the judicially prescribed tax-deductible provisions of the Parties Act were designed to stimulate and not inhibit voluntary fund-raising activities.107 An additional party funding case, decided in July 1986, emerged from another petition fi led by the Green Party. A 1983 change in the Political Parties Act defi ned parties as “charitable” organizations for tax purposes, allowing individuals to deduct donations up to 5 percent of their income and companies up to 2 mills of their total wages, salaries, and sales. Another change raised the reimbursement per eligible voter from dm 3.5 to dm 5. An “equal competition” (Chancenausgleich) scheme also was adopted pursuant to which parties receiving at least 0.5 percent of all votes in a federal election would now be entitled to additional funds based on the sum of their respective party members, membership dues, and donations. Finally, to encourage parties to become more reliant on small contributors, a tax credit of 50 percent was allowed to individuals and married couples up to dm 1,200 and dm 2,400 respectively. Party Finance V sustained each of these provisions except for the tax-deductible donation of 5 percent of a person’s annual income.108 Th is provision, said the Court, like the one struck in Party Finance I, would violate the general equality clause of Article 3 (1) by favoring parties supported by the rich. Yet the Court appeared to have given back to the parties what it had taken away by holding, over the dissent of two justices,109 that a maximum corporate tax-deductible amount of dm 100,000 would be constitutionally acceptable. Party Finance V led to revisions in the Parties Act and the Corporation Tax Code that introduced important changes. These changes, introduced in 1988, triggered yet another constitutional challenge by the Green Party. The dispute took the form of an Organstreit proceeding, an action any parliamentary party may initiate to question the validity of a law impinging on its electoral rights as a constitutional organ participating in a national or Land election. 5.13 Party Finance VI Case (1992) 85 BVerfGE 264 [One of the changes to the Political Parties Act from 1988 required the disclosure of contributions in excess of dm 40,000 and allowed generous tax deductions to individuals and married couples for donations up to dm 60,000 and 120,000 respectively. In addition, Parliament established for each party a socalled base payment (Sockelbetrag) to fi nance their continuing organ izational expenses. For parties acquiring at least 2 percent of second-ballot votes in a federal election this amounted to 6 percent of their direct subsidies or reimbursement for necessary campaign costs. In 1988 this sum was around dm 300 million. The Green Party was the spoiler, this time precipitating major judicially mandated changes in constitutional policy on party fi nancing. In its sixty-four-page judgment, the Second Senate set limits on the overall amount

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of direct subsidies that could be allocated to the parties and reversed its decisions from 1966 to 1986. These rulings permitted funding only in reimbursement for direct election expenses. Unable to distinguish precisely between general and election campaign fi nancing, the senate would now permit the general fi nancing of parties subject to restrictions keyed to the sum of private donations. The following passages include only the headnotes (Leitsätze) to the case.]

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1. The principle of political party autonomy laid down in the Basic Law necessitates not only that parties retain their independence from the state but also preserve their character as voluntary organizations rooted in the social and political spheres apart from the state. 2. Contrary to a previous decision of this senate, the state may allocate funds to political parties for the general political activities assigned to them under the Basic Law. But the principle of party autonomy is violated when state fi nancial subsidies discourage political parties from taking the steps needed to raise funds voluntarily from their own members and electoral supporters. a. The total amount of state subsidies provided to a political party must not exceed the sum it receives from its own fund-raising efforts (“relative upper limit”). b. The amount of fi nancial support provided to the political parties from public funds during the years 1989 to 1992 must be considered sufficient so long as existing conditions are not subject to substantial change. The average yearly subsidy flowing from these appropriations represents the maximum sum of government funds that may be allotted to political parties by the Federal Government and Land governments provided that circumstances remain the same (“absolute upper limit”). c. The success a political party achieves among its voters—success being measured here by the sum of its membership fees together with the total amount of voluntary contributions—is expressed proportionately by its sharing in the funds that are to be individually determined by the legislature.

3. The equal opportunity provision of § 22a (2) of the Political Parties Act is incompatible with Articles 21 (1) and 3 (1) of the Basic Law because it violates the petitioner’s right to equal opportunity in political campaigns. 4. The constitutional limit of a permissible tax benefit for contributions and donations to political parties . . . begins at the point where it has a serious effect on the prescribed competitive situation among political parties. Th is limit is not reached if the majority of those taxed is able to benefit from equitable preferential tax treatment. 5. In departing from the position taken in the [Party Finance V Case], the preferential tax treatment of corporate donations is subject to serious constitutional objec-

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tion in view of the right of citizens to equal participation in the formation of the people’s political will. 6. Elevating the so-called disclosure limit (Publizitätsgrenze) in § 25 [(2)] of the Political Parties Act to dm 40,000 violates Article 21 (1) [4].

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Party Finance VI: Commentary and Impact. By the 1990s party fi nancing appeared to have swirled out of control. After the 1990 election the parties received nearly dm 500 million in state funds, not to mention various indirect subsidies in the form of grants to party foundations, tax-deductible donations, and so-called party taxes, namely, the annual contributions legislators were expected to make to their respective party organizations out of their ever-increasing legislative salaries. Against the backdrop of the Flick scandal and rumors of other undisclosed party fi nancing,110 the Federal Constitutional Court seemed worried that the established parties were becoming too entrenched, building and reinforcing their internal bureaucracies at the state’s expense and thus widening the distance between themselves and their voters. Accordingly, in Party Finance VI, the Court sought to impose a constitutional policy that would require the parties to depend on their own resources and fund-raising capabilities to a greater extent than in the past. In its 1992 judgment the Second Senate unanimously rejected the essential core of its previous jurisprudence by ruling that it was no longer feasible to distinguish between the “necessary expenses of a reasonable election campaign” and the costs of other legitimate political party activity.111 From now on, declared the Court, state funding would not be allowed to exceed the total amount raised by the parties themselves. Funding beyond this amount would, in the Court’s view, lead to “direct dependence on the state” and thus violate the principle of party autonomy.112 “The general theme of the decision,” as Arthur Gunlicks noted, “was the idea that the parties should be free of the state (Staatsfreiheit der Parteien)” in order to deepen their roots in society.113 Additionally, the Second Senate nullified the “equal opportunity” (Chancengleichheit) and “base amount” (Sockelbetrag) provisions of the existing statute as violations of the equality clauses of Articles 3 and 38. The Court also revived the spirit of its 1958 decision by invalidating taxdeductible donations of dm 60,000 and dm 120,000 for individuals and couples respectively and by disallowing tax deductions altogether for corporate donations. As for individual tax-deductible contributions, the Court ruled that these amounts would have to be sufficiently low to invite donations from average taxpayers. Finally, the Court lowered the publicity threshold from dm 40,000 to dm 20,000. In short, the Court was calling for a major overhaul of the party fi nance system and gave the Bundestag until January 1994 to amend the Political Parties Act accordingly.114 Promulgated in January 1994, the revised statute incorporated the major policies outlined in Party Finance VI. Most importantly, it disallowed funding that exceeded a party’s independent annual income (measur ing the relative upper limit on state

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funding), regularized payments to the parties on an annual basis, and placed a cap (the absolute upper limit)—starting with dm 230 million for 1994—on the amount all parties together could receive annually. The revised statute also specified the criteria and formulae by which the relative and absolute limits on state funding would be calculated, defi ned the relevant categories of income and expenditures for which detailed reports from federal and regional party organizations would be required, and provided for various accounting and auditing procedures to ensure compliance with the new regulations. In addition, it drastically reduced the tax-deductible amounts of individual donations (up to dm 6,000 for single persons and dm 12,000 for married couples), banned tax-deductible corporate donations altogether, and required the disclosure of all donations in excess of dm 20,000. These limits and the cap placed on overall state funding were designed to encourage the parties to expand their membership dues and other private fund-raising activities. Even so, the federal president reluctantly signed the law, suggesting that some of its provisions approached the borderline of constitutionality. He was concerned about a new fi xed base amount (Sockelbetrag) that parties would receive in addition to their normal per-vote allocation. Only two minor cases challenging the provisions of the new law came before the Federal Constitutional Court between 1994 and 2006. In the fi rst case the Court dismissed a communal voters’ association complaint that it had been unfairly denied funds under the statute.115 In the second case the Court sustained a Federal Administrative Court (Bundesverwaltungsgericht) decision upholding, over the objection of the cdu, the prescribed formula by which the party was allocated funds in 1999.116 But, as noted in connection with the Minority Rights in Investigative Committees Case (2002; no. 5.1), the year 1999 witnessed another major party fi nance scandal when it was discovered that former Chancellor Helmut Kohl (cdu) had funneled millions of undeclared donations into secret party accounts. The ensuing public outcry intensified when Kohl refused to reveal the sources of these illegal funds. “Kohlgate,” as the press dubbed the affair, prompted Federal President Johannes Rau (spd) to appoint a commission to recommend further changes in party fi nancing and to close loopholes that allowed the former chancellor to circumvent the law. Months later, however, public interest in party fi nance reform had waned, just as the Bundestag had ignored most of the Rau Commission’s recommendations.117 Subsequent amendments to the Parties Act—achieved between 1997 and 2004—left the law much as it was in 1994. The amendments adhered to the general guidelines of the 1994 revisions, with the relative and absolute limits being based on the number of votes a party receives in European, Bundestag, and Land elections. The volume of state funding was also keyed to private donations and depended as well on the amounts statutorily specified for each list vote received by a party obtaining at least 0.5 percent of valid votes cast on its behalf.118

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militant democracy The fire that terrorists (supposedly) set to the German parliament building (Reichstag) during the night of 27–28 February 1933 was so symbolically potent as to offer (or was orchestrated as) a pretext for Hitler’s intensification of the “repressive measures [the Nazis] had already initiated against all forces opposed to the regime.”119 We are all too familiar with the horrors unleashed by the Nazi tyranny, which were, in part, presented as the necessary response to the threat of Bolshevik terrorism.120 Indeed, the seeds of World War II and the Holocaust were planted in the fertile, dictatorial soil cleared away by Hitler’s emergency decree issued on 28 February 1933, the day after the Reichstag fire. The decree suspended “key basic rights and all constitutional guarantees.”121 But democracy itself, enshrined and preserved in many of the rights that Hitler hastily abolished after the Reichstag fi re, was just as much an accomplice to Hitler’s rise to power as it was his victim. Certainly with no small amount of thuggery,122 but also through effective campaigning,123 the Nazis could claim that they drew their support from all sectors of German society by 1930.124 In the snap parliamentary elections held in early March 1933, the last credibly free elections of the Weimar Republic, Hitler and the Nazis fairly became the largest party in Parliament. Joseph Goebbels ridiculed the system, declaring that “[t]his will always remain one of the best jokes of democracy, that it gave its deadly enemies the means by which it was destroyed.”125 In response to this history the framers of the Basic Law were determined to provide security against Hitler’s state terrorism. First, they articulated an enforceable cata logue of fundamental rights in the Basic Law’s fi rst nineteen articles, beginning with a simple but profound declaration in Article 1: “Human dignity shall be inviolable. To respect it shall be the duty of all state authority.”126 Th is guarantee, along with the rights of personal integrity and freedom,127 and the right to the privacy of communication and of the home,128 are discussed fully in subsequent chapters. But the Basic Law has another, and for American observers a surprising,129 antiNazi feature. Beyond the liberal protections it secures, the Basic Law contains a number of provisions that are meant to ensure that the enemies of democracy will never again be able to exploit the freedoms inherent in democracy. For the enemies of freedom, the sentiment ran, there should be no freedom. The resulting fi nely wrought system of “undemocratic” provisions—meant to preserve and protect democracy as an institution even at the expense of individual liberty interests—has come to be known as “militant democracy.”130 To meet genuine threats to the political system, the Basic Law includes a number of provisions to safeguard democracy,131 including authority to prohibit “associations” whose aims and activities threaten the constitutional order (Article 9 (2)); authority to restrict the freedom of movement in order to avert an imminent threat (Article 11 (2)); authority to declare that an individual has forfeited his or her fundamental rights because they were being used to harm the free, democratic basic order (Article 18); and authority to ban political parties that pose a threat to the free, democratic basic order (Article 21 (2)).

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The most muscular forms of militant democracy have been rarely invoked.132 It had its most dramatic impact in the immediate postwar era when, pursuant to Article 21 (2) of the Basic Law, the Constitutional Court banned the Socialist Reich Party (srp) (the successor to Hitler’s National Socialist Party) and the Communist Party of Germany (kpd).133 As discussed in the preceding section, Article 21 (1) establishes the so-called party privilege, the principle that secures to all political parties the freedom to organize and mobilize the electorate.134 This freedom, however, is limited by the terms of paragraph 2: “Parties which, by reason of their aims or the behavior of their adherents, seek to impair or abolish the free democratic basic order or endanger the existence of the Federal Republic of Germany, shall be unconstitutional. The Federal Constitutional Court shall decide on the question of unconstitutionality.” The portentous language of paragraph 2, however, is far from clear. What is the meaning of “free democratic basic order”? How grave a threat to the democratic order is required to trigger a decision of unconstitutionality by the Federal Constitutional Court? Must the danger to the existence of the Federal Republic be clear and present, or is the mere probability of danger sufficient to warrant such a decision? Is it sufficient for a party to be merely antidemocratic in its general philosophy? When may a party reasonably be characterized as antidemocratic or anticonstitutional? When it advocates systemic changes in the existing polity? When it advocates criminal activity? When there is a plan of action, however remote, for the overthrow of democracy? These issues, and questions with broader meaning for German democracy and the Parteienstaat, were given more concrete meaning by the Court in the Socialist Reich Party Case. 5.14 Socialist Reich Party Case (1952) 2 BVerfGE 1 [The Socialist Reich Party (srp) was founded in 1949 as a successor to the rightwing German Imperial Party (Deutsche Reichspartei). Its publications, campaign appeals, and leadership convinced many people of its neo-Nazi orientation. Finding that the srp “seeks to impair the liberal democratic order,” the federal government petitioned the Federal Constitutional Court to declare the new party unconstitutional under Article 21 (2) of the Basic Law. After a hearing before the First Senate, which has original jurisdiction in party ban proceedings, the Court granted the application and banned the srp.]

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Judgment of the First Senate. . . . [Political Parties and the Free Democratic Order] E. . . . German constitutions following World War I hardly mentioned political parties, although even at that time . . . political parties to a large extent determined democratic constitutional life. The reasons for this omission are manifold, but in the fi nal analysis the cause lies in a democratic ideology that refused to recognize groups

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mediating between the free individual and the will of the entire people composed of the sum of individual wills and represented in Parliament by parliamentarians “as representatives of the entire people.” . . . The Basic Law abandoned this viewpoint and, more realistically, expressly recognizes parties as agents—even if not the sole ones—forming the political will of the people. The Basic Law’s attempt to regulate political parties encounters two problems. The fi rst relates to the principle of democracy, which permits any political orientation to manifest itself in political parties, including—to be consistent— antidemocratic orientations. The second relates to a special tension on the parliamentary level: The parliamentarian is to be a free representative of the entire people and at the same time be bound by a concrete party program. We must examine the fi rst problem in more detail. In a free democratic state, as it corresponds to German constitutional development, freedom of political opinion and freedom of association—including political association—are guaranteed to individual citizens as basic rights. But part of the nature of every democracy consists in the people exercising their supreme power in elections and voting. In the reality of the large modern democratic state this popu lar will can emerge only through parties as operating political units. Both fundamental ideas lead to the basic conclusion that the establishment and activity of political parties must not be restrained. The framers of the Basic Law had to decide whether they could fully implement this conclusion or whether, enlightened by recent experiences, they should instead draw certain limits in this area. They had to consider whether principles governing every democracy should limit the absolute freedom to establish parties on the basis of any political idea, and whether parties seeking to abolish democracy by using formal democratic means should be excluded from political life. They also had to take into account the danger that the government might be tempted to eliminate troublesome opposition parties. Article 21 of the Basic Law has tried to resolve these problems. On the one hand, it establishes the principle that formation of political parties shall be free. On the other hand, it offers a means of preventing activity by “unconstitutional” parties. To avert the danger of an abuse of this power, Article 21 authorizes the Federal Constitutional Court to decide the question of unconstitutionality and attempts to determine as far as possible the factual requirements for this declaration. At the same time, the fundamental ideas upon which this provision is based furnish important indicators for interpreting Article 21. . . . Because of the special importance of parties in a democratic state, the Court is justified in eliminating them from the political scene if, but only if, they seek to topple supreme fundamental values of the free democratic order that are embodied in the Basic Law. . . . We have thus stated the crucial determinants of the relationship between Article 21 and Article 9 (2) of the Basic Law [the latter provides freedom of association subject to certain restrictions]. Conceptually, parties are also “associations” within the

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meaning of Article 9 (2). Hence, Article 9 (2) would prohibit them under the conditions mentioned there and would subject them to the authority of the executive in general. . . . But if an association is a political party, it is also entitled to the privileges contained in Article 21 (1) because of the special status granted only to parties. . . . We derive the answer to the question of a party’s constitutionality from the consideration that a party may be eliminated from the political process only if it rejects the supreme principles of a free democracy. If a party’s internal organization does not correspond to democratic principles, one may generally conclude that the party seeks to impose upon the state the structural principles that it has implemented within its own organization. . . . Whether or not this conclusion is justified must be determined in each individual case. . . . [The Court analyzed the history of German political parties, especially the National Socialist German Workers’ Party (National-Sozialistische Deutsche Arberiterpartei, nsdap, or Nazis), then examined in detail dozens of letters between srp leaders and between party leaders and potential recruits. These documents showed that most srp leaders had been Nazis with positions in such organizations as the ss and sa and that they were actively seeking out other former Nazis.] G. II. 3. e. . . . The srp claims in its defense that other parties have also tried to enlist former National Socialists. . . . Th is objection shows that the srp misunderstands the situation. We do not reproach the srp for having tried to enlist former National Socialists, but rather for collecting the particularly hard-core individuals who have “remained true to themselves.” The srp recruited these persons not in order to gain positive forces for democracy, but to preserve and propagate National Socialist ideas. . . . f. . . . Both former and active Nazis gather in the srp in order to regain influence. . . . The srp systematically seeks them out and enlists them. . . . They form the core of the srp. . . . Former Nazis hold key positions in the party to such an extent as to determine its political and intellectual image. No decision can be made against their will. III. a. . . . The srp’s orga nization is also similar to that of the National Socialist Party. . . . Its internal structure is not in keeping with democratic principles (Article 21 (1) [3] of the Basic Law). . . . In brief, a party must be structured from the bottom up; that is, members must not be excluded from decision-making processes, and the basic equality of members as well as the freedom to join or to leave the party must be guaranteed. It would also contravene democratic principles . . . either to promise absolute obedience to party leaders or to demand such a promise. . . . [The Court then examined the srp’s bylaws and practices and found that authority flowed from the top down, not from members to leaders.] d. 2. The documents . . . show how the selection system under § 4 of the bylaws works. The srp allows only those who fight for the party to become members. The srp does not accept members of trial tribunals, political persecutees, people with

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serious criminal records, 20th of July people, etc. . . . [“20th of July people” refers to the group of army officers led by Colonel Claus Graf Schenk von Stauffenberg, who tried to assassinate Hitler on 20 July 1944, by placing a bomb in Hitler’s headquarters in East Prussia. “Political persecutees” refers to members of the Resistance and opposition parties whom the Nazis persecuted while in power.] 3. According to the bylaws, a member can be expelled only in an orderly proceeding of the Honorary Council. Numerous documents among the confiscated material prove, however, that the srp disregarded this provision, and not a single piece of evidence was found to show that the srp implemented the expulsion proceedings in accordance with the bylaws. . . . Th is practice corresponds exactly with the procedure in the National Socialist Party. . . . e. These facts demonstrate that the srp was governed in a dictatorial manner from the top down. Several published statements indicate that the srp was to be organized like a political order based upon the principle of absolute obedience. . . . In a letter of 25 December 1950, the party chairman revealed his intention to organize the party apparatus “according to principles of an officers corps” and to “make a ruthless reorganization in the sense of cadre organizations.” . . . f. The establishment of affi liated organizations like the Reichsfront, Reichsjugend, and Frauenbund also followed the example of the Nazi Party. The Reichsfront was conceived as an elite fighting group along the lines of the sa and ss and was also structured similarly. Its [organization] strongly reflected the Führer principle. The uniforms provided for the Reichsjugend were even the same as those for the Hitler Youth, the only difference being that the color of the shirt was olive green instead of brown. . . . g. The statements made . . . in connection with the srp’s clear imitation of the National Socialist Party’s organizational structure necessarily lead us to conclude that it seeks to impose its own organizational structure on the nation as soon as it has come into power, just as the National Socialist Party did. Thus, the SRP seeks to eliminate the free democratic basic order. . . . [The Court next embarked on a similarly exhaustive analysis of the srp’s program and the behavior of its leaders. The program showed that the party was committed to a revival of the mythical notions of an indestructible Reich and German racial superiority. In addition, the speeches and activities of party leaders demonstrated the party’s contempt for the officials and institutions of the Federal Republic and their acceptance of the idea of an authoritarian Führer state. Finally, the Court noted the revival of a vicious anti-Semitism in which “murderers are represented as innocent victims and surviving relatives of victims as criminals against humanity.”] H. 1. The srp is thus unconstitutional within the meaning of Article 21 (2) of the Basic Law. . . . Therefore, the party must be dissolved.

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Communist Party Case. The Socialist Reich Party Case gave the Court its fi rst opportunity to defi ne the grand purpose of the Parteienstaat. In short, Article 21 seeks to avoid any repetition of the one-party state that molded the Th ird Reich. Especially with that history in mind, the Court’s decision to declare the srp unconstitutional surely comforted the Allied powers. It occasioned few protests in Germany; the horrors of Nazism were still fresh in the memories of most people, and the new polity was struggling to establish itself in the face of doubts about Germany’s commitment to political democracy. Seen in this light, the ban on the srp appeared to be a manifestation of judicial enlightenment. In Socialist Reich Party the Court was required to make a fi rst pass at the interpretive lacunae of Article 21 (2). Above all, the Court defi ned the “free democratic basic order.” Peter Niesen explained the Court’s interpretation in these terms: “[n]egatively, the [free democratic basic order] is characterized by the absence of violent or arbitrary government. Positively, it is a basic order that satisfies the following necessary conditions: ‘Respect for human rights as laid down in the Basic Law—especially every person’s right to life and free development—respect for popu lar sovereignty, separation of powers, responsible government, an administration limited by the constitutional state principle, independent courts, multiple and equal political parties, including the constitutional right to the establishment and operation of an opposition.’ ”135 Although benefiting from the jurisprudential clarity provided by the Court’s ruling in the Socialist Reich Party Case, the Communist Party Case (1956) presented a much more difficult application of Article 21 (2).136 Chancellor Adenauer’s government initiated a party ban action against the Communist Party of Germany (kpd) in 1951, the same year it sought a declaration of unconstitutionality against the srp. Yet it took the Court another four years to decide the Communist Party Case. The delay reflected the growing feeling among some of the Court’s justices that the Adenauer government’s action against the kpd was unnecessary or, at least, premature. But in the face of rising Soviet–American tensions—tensions exacerbated by the division and rearming of Germany—the symbolic importance of the Communist Party Case was clear. Convinced that the government would not withdraw the case,137 the Court handed down an opinion on 17 August 1956 declaring the Communist Party of Germany unconstitutional. The opinion consumed 308 pages in the official reports, the longest by far of all the Court’s opinions. It was no surprise that the kpd suffered the same fate as the srp. The bulk of the opinion consisted of an exhaustive analysis of Marxism–Leninism and the history of German communism, including a survey of the kpd’s structure, leadership, campaign literature, and overall political style. The Court found, as a matter of ideology and fact, that the kpd directed all of its operations against the existing constitutional system. In interpreting Article 21 (2), the Court reiterated the definition of the free democratic basic order outlined in Socialist Reich Party. Its significant contribution to the jurisprudence consisted of the “clarification of an intensity threshold to warrant constitutional intervention against political activity

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hostile to the free democratic basic order.”138 On the one hand, the Court rejected the contention that illegal activity or some other “concrete undertaking” to abolish the constitutional order is necessary to deprive a party of its constitutional status.139 On the other hand, the Court found merely advocating the overthrow of the constitutional order to be an insufficient basis for banning a political party. What is important, said the Court, is whether a party has “a fi xed purpose constantly and resolutely to combat the free democratic basic order” and manifests this purpose “in political action according to a fi xed plan.”140 Th is purpose or plan, continued the Court, can be gleaned from a party’s program, its official declarations, statements of its leaders, and its educational materials. Peter Niesen summarized the Court’s ruling in these terms: The [Court] ruled that no actual danger to the existence of the democratic constitutional state need emanate from a party to warrant its exclusion. For a party to be banned, it need not be “probable by human standards, that there be the chance of [the party] realizing its unconstitutional goals in the foreseeable future.” The Court thus did not respond to an empirical danger emanating from a party unwilling to grant its competitors an equal chance, but to the logical possibility of a real danger, as it were: a logical danger.141

The Court’s independent examination of such records convinced it that the kpd was an unconstitutional party within the meaning of Article 21 (2). In a passage that set the jurisprudential benchmark for Germany’s militant democracy, the Court set forth the essential meaning of Article 21 (2): The Basic Law represents a conscious effort to achieve a synthesis between the principle of tolerance with respect to all political ideas and certain inalienable values of the political system. Article 21 (2) does not contradict any basic principle of the constitution; it expresses the founders’ conviction, based on their concrete historical experience, that the state could no longer afford to maintain an attitude of neutrality toward political parties. In this sense the Basic Law has created a “militant democracy,” a constitutional value decision that is binding on the Federal Constitutional Court.142

As in Socialist Reich Party the Court concluded the Communist Party decision by ordering the Party’s dissolution and the confiscation of its property. Dissolution, it reasoned, is the natural consequence of a judicial fi nding of unconstitutionality, since it authorizes federal and Land officials to implement the decree. A fi nal consequence of this decision was that the Communist Party lost its seats in both federal and Land parliaments. But this was not all the Communist Party lost. The Court’s decree dissolved not only the Party itself but all of its surrogate organizations, current and future. In 1961, for example, the newly established Communist Voters’ League ran candidates for the Bundestag in North Rhine–Westphalia. In litigation growing out of the Land’s refusal to put the league on the ballot, the Court held that the ban on the Communist

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Party of Germany extended to all organizations, including the Communist Voters’ League, that effectively succeeded the banned party.143 Militant Dormancy. As a symbolic matter, Socialist Reich Party and Communist Party announced the new Federal Republic’s general intolerance of political extremism, whether from the right or the left.144 But these cases were not essential to securing democracy in Germany. Neither the srp nor the kpd represented a significant political movement that realistically threatened to seize the democratic machinery through democratic means. For example, in the 6 May 1951 state elections in Lower Saxony, the srp’s supposed stronghold, the party drew only 11 percent of the vote and a mere four mandates, well “below what many observers feared.”145 The Communist Party of Germany also was plagued by disregard in that era. The kpd’s electoral strength dipped to 2.3 percent of the national vote in 1953. By 1956, the year the Court fi nally issued its ban, the Communist Party’s popu lar support had almost vanished. Some credit for West Germany’s political stability and security should be directed toward the country’s rapid and robust economic revival. The economic recovery (substantial in both East and West Germany146) was fundamental to peace, stability, and security because of the widespread devastation confronting the Germans. By the end of the war, Germany had been decimated.147 There was no housing.148 There was no transportation.149 There was no food.150 One commentator flatly summed up the postwar period in these terms: “Germany could not feed itself.”151 For the ordinary German, “the most pressing problem was survival itself.”152 These problems were exacerbated by the massive wave of westward migration that followed the war.153 On these facts, it is clear why economic development, and not the largely symbolic gesture of banning extremist political parties, came to be widely regarded by the Germans and the Allies alike as the best, practical means for stabilizing West Germany’s democracy. Tony Judt explained that “[t]he prospects for political stability and social reform in post–World War Two Europe all depended, in the fi rst place, on the recovery of the continent’s economy.”154 Exactly mirroring the concerns putatively addressed by the Constitutional Court’s seminal party ban cases, “the Allied authorities feared that nostalgia for the better days of Nazism, together with a reaction against denazification programmes, food shortages and endemic minor crime, could yet turn to neo-Nazi or even Soviet advantage.”155 The answer to these concerns, however, depended less on militarizing German democracy, as exemplified by the bans on the srp and kpd, and more on substantial and swift economic recovery. In the Radical Groups Case (1978)156 the Constitutional Court seems to have assimilated the general reluctance toward militant democracy’s illiberal spirit. In various election campaigns during 1975 and 1976 (both federal and at the Land level), radio and television stations in three German states denied campaign broadcasting time to three radical left-wing parties. The stations declined to carry the parties’ campaign ads because of their extreme revolutionary rhetoric, which called for the destruction of the existing political order. Administrative courts sustained the actions of the broadcasters. The affected parties—the Marxist-Leninist German Communist

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Party, the Communist Federation of West Germany, and the German Communist Party—brought constitutional complaints against these judicial decisions, alleging a denial of their rights as political parties under Articles 3, 5, and 21 of the Basic Law. The Court upheld the complaints, drawing a clear distinction between an organization’s status as a political party (and the right to enjoy the attending privileges) and its potential banishment as an unconstitutional party. The Court emphasized that “the fact that the complainants were possibly engaged in pursuing unconstitutional goals, especially the abolition of the parliamentary system, does not strip them of their character as political parties. . . . The phraseology of Article 21 (2) reveals that a political organization’s status as a political party is to be judged independently of its not-yet-determined constitutional or unconstitutional nature.” The Court wondered, wryly, why the Basic Law would provide a formal party ban process pursuant to Article 21 (2) if the consequences of a ban could be implemented before those proceedings had been conducted. In what seems like a liberal manifesto, at least compared with the Socialist Reich Party and Communist Party cases, the Court concluded that the extraordinary treatment of the radical parties threatened the equality of opportunity they were owed as parties participating in Germany’s political life. “The principle of equality of opportunity,” the Court said, “demands that every political party receive fundamentally the same opportunity during the election campaign and during the actual election process, thus maintaining an equal chance in the competition for electoral votes.” The National Democratic Party of Germany. There has been one exception to militant democracy’s general neglect. The German polity has remained persistently vigilant toward the National Democratic Party of Germany (npd). The state’s most recent moves against the npd, however, ended up raising more questions about the invasive activities of Germany’s domestic security agencies than it did about the npd’s deeply troublesome so-called neo-Nazi politics. Beginning in the 1960s the rise of the extreme right-wing npd began to stir concern in Germany. The npd, however, was not immediately declared unconstitutional. Nevertheless, in the 1970s the Interior Ministry published a report that described the npd as a “party engaged in anti-constitutional goals and activity”; as “radical right and an enemy of freedom”; and as “a danger to the free democratic basic order.” The npd challenged the Interior Ministry’s “disclosure” as a violation of the “party privilege” secured by Article 21 (1). A unanimous Court ruled that state agencies concerned with the protection of the Basic Law were constitutionally permitted, if not required, to make such fi ndings about a party engaged in anticonstitutional activities, even if the Court has not yet declared the party unconstitutional.157 A quarter century later, a startling rise of neo-Nazi and anti-Semitic incidents, many occurring in the new, economical ly depressed states of the former East Germany, led the center-left government of spd Chancellor Gerhard Schröder to organize a united effort, along with the Bundestag and the Bundesrat, to seek an Article 21 (2) ban of the npd. The general reluctance toward invoking Article 21 (2) was overcome

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in this case by a number of factors. First, there was genuine, widespread shock and revulsion in Germany at the surge in racist, xenophobic, and neo-Nazi sentiment, which unquestionably found expression in the npd’s political platform. In November 2000, more than 200,000 people joined the “Uprising of the Decent” (Aufstand der Anständingen) in the streets of Berlin to remember the victims of Nazi crimes and to show opposition to Germany’s neo-Nazi movements.158 Second, the government’s strident opposition to the npd could also be credited, in part, to personal biography. Several members of the government, including Chancellor Gerhard Schröder (spd), Interior Minister Otto Schily (spd), and Foreign Minister Joschka Fischer (Green Party), had been involved in Germany’s new left movement in the 1970s, which was in part characterized by its deeply rooted antipathy for right-wing extremism. The personal nature of the dispute was highlighted by the clash between Interior Minister Schily, the mastermind of the government’s npd party ban policy, and npd lawyer Horst Mahler. Back when both were young left ists, Schily represented and won Mahler an acquittal on criminal charges arising out of Red Army Faction (Rote-Armee-Fraktion) activities.159 In an irony of history, Mahler converted to right-wing extremism while serving a prison sentence in another criminal matter and, after his release from prison, assumed a prominent role in the npd. Schily had also seen his politics shift rightward, albeit to a more moderate degree; his tenure as interior minister was characterized by tough law-and-order policies.160 In October 2001, the Federal Constitutional Court found the three Article 21 (2) applications admissible. They had been fi led respectively by the federal government, the Bundestag, and the Bundesrat.161 But even before the Second Senate issued this historic ruling, there were signs of the procedural shortcomings on which the case would ultimately founder. In July 2001 the Court granted npd lawyer Horst Mahler’s motion to enjoin the Berlin prosecuting attorney to return computer equipment— and the data it contained, which had been seized from Mahler’s office.162 The Berlin local authorities were investigating Mahler for a violation of Germany’s hate-speech law, on the basis of Mahler’s incendiary anti-Semitic publications. Mahler’s motion to the Court was treated as part of the party ban proceedings and not as a separate matter. He alleged that the curious timing of the investigation, coinciding with his preparation of the npd’s case in the party ban proceedings, imperiled the party’s ability to defend itself and receive a fair hearing. There was certainly the risk that the party’s strategy and case preparation would be revealed to public authorities in their examination of the seized material. The Second Senate unanimously granted the temporary injunction, concluding that the investigation risked undermining the high procedural standards the Court intended to uphold in party ban proceedings. “Also in party ban proceedings,” the Court explained, “the concerned party has a right to a fair process.”163 Ultimately, the aggressive approach adopted by state agents toward the npd undermined the attempt to ban the party. In January 2002, just days before the planned hearings in the case, the Second Senate suspended the proceedings.164 Through ex parte communications, the Court learned that much of the evidence it considered in the

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admissibility phase of the case, and upon which it would be expected to rely in its substantive ruling on the ban, had come from highly placed state agents and informants working within the npd.165 These agents were paid informers guided, directed, and supervised by the state agency receiving the information.166 The danger that state agents might provide manipulated evidence or influence the party’s activities was a serious matter. In fact, the npd had planned to argue in its defense that the evidence offered against it was the product of these “secret” agents. At one hearing, it was revealed that 15 percent of the npd’s Executive Council consisted of informers who were supervised and paid by state agencies for the protection of the constitution.167 In a March 2003 ruling dismissing the party ban case against the npd, the Court focused on the procedural implications of the deep infi ltration of the party by state agents and not on the substantive question of the npd’s compatibility with the free democratic basic order. The outcome hinged on the application of the rule requiring a two-thirds majority for decisions in party ban proceedings that negatively impact the party.168 Thus, a minority of three justices prevailed in having the case dismissed, even though a majority of the Court would have allowed the proceedings to go forward. The prevailing three-justice minority concluded that the role of the state agents violated the high standard of procedural fairness required of such a radical measure of militant democracy. The decision suggests an increasingly strict jurisprudence that should make party bans even more difficult to obtain.169 Some herald this as a sign of political and democratic maturity. Germany, so the argument goes, no longer needs to resort to illiberal measures in order to preserve its liberal character. Instead, German society can now concern itself with promoting the constituent elements of the free democratic basic order for all, trusting a citizenry now steeped in a vibrant democratic culture to pursue the best interests of a liberal society through the unfettered marketplace of ideas. 5.15 NPD Party Ban Dismissal Case (2003) 107 BVerfGE 339 [The Court was unanimous in its decision that Article 15 (4) of the fcca, requiring a two-thirds majority for “disadvantageous decisions against the respondent,” applied to the procedural question whether the case should go forward in light of the revelation of the presence of state agents among the npd’s leadership. In reaching this conclusion the Court explained that a “disadvantageous decision” under Article 15 (4) is any decision that “deteriorates the legal position of the respondent or in some way might negatively influence its standing.” More significantly, as regards a trend in the Court’s militant democracy jurisprudence, the Court emphasized that the higher standard was necessitated by the distinct and special role the Basic Law accords to political parties in Article 21 (1). Echoing its decision in the Radical Groups Case (1978), the Court explained that even those parties suspected of antidemocratic tendencies enjoyed this special standing, at least until the resolution of the party ban proceedings. Having imposed

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the two-thirds majority rule, a minority of the Court was empowered to conclude that the role of state agents in the leadership of the npd presented an irreparable obstacle to the fairness required in party ban proceedings.]

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Judgment of the Second Senate. . . . B. II. 2. The Federal Constitutional Court has previously had no occasion to give its opinion in principle on the limits of permissible surveillance of political parties by state authorities using intelligence ser vice methods. Even in the context of the present decision, this question arises only with regard to a specifically defi ned aspect within a more extensive problem area. To what extent is it compatible with constitutional requirements applicable to proceedings under Article 21 (2) of the Basic Law to seek and maintain intelligence contacts at the federal and Land level between state agents and members of the executive of the party whose constitutionality is at issue? The implications of such a scenario are exacerbated if the intelligence contacts are pursued directly in connection with the fi ling of applications initiating proceedings to ban the party. Furthermore, to what extent do procedural requirements relating to the constitutional state principle allow those seeking to ban the party to base the grounds of their application partly on public statements by party members who maintain or have maintained intelligence contacts with state authorities? [The prevailing three-justice minority extrapolated from the due process limits placed on state interference in the criminal law context.] Even in Constitutional Court proceedings under Article 21 (2) of the Basic Law, the Federal Constitutional Court is assigned two responsibilities. First, it bears the sole competence for determining the unconstitutionality of a party and for pronouncing the legal consequences pursuant to § 46 (3) of the Federal Constitutional Court Act. Second, it is in the position to guarantee the observance of the constitutional requirements of the decision-making process. If, in the course of the proceedings, there are serious violations either of objective constitutional law or of the subjective rights of the respondent, the Court is required to examine whether there is an overriding state interest in the continuation of the proceedings, or whether the continuation of the proceedings would confl ict with the constitutional requirements concerning the adherence of those proceedings to the constitutional state principle and with the constitutionally necessary protection of the respondent’s rights. Acceptance of a procedural bar with the consequence of immediate discontinuation of the proceedings can admittedly be considered only as the ultima ratio of possible legal consequences for violations of the constitution and only insofar as this is compatible with the specific danger-averting purposes of proceedings under Article 21 (2) of the Basic Law. The prerequisite for discontinuing such proceedings has three parts. First, a constitutional violation of considerable gravity must exist. Second, the

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constitutional violation must cause nonremediable damage, in terms of the constitutional state principle, for the conduct of the proceedings. Th ird, the harm resulting from the constitutional violation must render the continuation of the proceedings unacceptable from the point of view of the constitutional state principle, even when weighed against the interests of the state in effective protection from the dangers posed by a party that may be acting unconstitutionally. 3. a. The surveillance of a political party by agents of state authorities acting as members of the federal executive committee or a Land executive committee immediately before and during the conduct of party ban proceedings before the Federal Constitutional Court is, as a rule, incompatible with the requirements of proceedings based on the constitutional state principle, which result from Article 21 (1) and (2) of the Basic Law in conjunction with the constitutional state principle in Article 20 (3) of the Basic Law. . . . [Having concluded that state interference with party activities compromises the fairness of the process in a party ban proceeding, the prevailing threejustice minority nonetheless cautioned that state agents are properly charged with protecting the constitutional order through such activities, even as state infi ltration leads to an unavoidable influence on the party’s will formation and activities.] cc. The senate did not have to decide in the present case whether intelligence service cooperation with members of a political party’s executive committees at Land and federal level is inherently unconstitutional. Of course, any such conclusion would have to take special situations of heightened danger into account. In any event, such an assessment under constitutional law is unavoidable when the state presence at the leadership level of the party is maintained immediately before and during the proceedings under Article 21 (2) of the Basic Law. The constitutional guarantees of the freedom to form and belong to political parties, (partly) ensured by the guarantee of freedom from state interference and selfdetermination, are supplemented and strengthened after the initiation of party ban proceedings by specific procedural safeguards that are generally described as the principles of fair process respecting the constitutional state principle. In this respect, some specific features of party ban proceedings, in contrast to, in par ticu lar, criminal proceedings, must be emphasized at the outset. Criminal proceedings are concerned with establishing culpable and punishable individual behavior and the enforcement of the state’s right to punish, and thus primarily with punitive state protection of legal rights. By contrast, constitutional court proceedings under Article 21 (2) of the Basic Law are for the preventive protection of the constitutional system of freedom and democracy, one of the main foundations of the state system. The political party as an organization appears here in the role of the potential enemy of the state and the constitution. The party is given, before the Federal Constitutional Court, the opportunity—possibly for the last time—to present, in answer to the arguments of the applicants declaring that a ban on the party is

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necessary in order to avert danger, the image of a loyal institution under constitutional law, whose further participation in the process of forming public opinion and governmental intention is necessary and legitimate in precisely the interest of a constitutional system of freedom and democracy. In that situation, the freedom to form and join a political party, in the sense of freedom from state interference and of selfdetermination, acquires special significance: members of the leadership who are confronted with confl icting claims of loyalty, emanating from the state as principal/ employer and from the party under surveillance, fundamentally weaken the position of the party as a respondent before the Federal Constitutional Court. They inevitably falsify the free and self-determined self-portrayal of the party, which is necessary from the point of view of the constitutional state principle, in constitutional court proceedings. That effect does not depend on the applicants’ having factual information about the party’s “procedural strategy” in the ban proceedings. The mere presence of “dual capacity” “intermediaries,” connected in law and in fact both with the state and with the party, is sufficient. It is also irrelevant in this context how an affected political party views its surveillance by state agencies, whether it treats it ironically, whether it feels threatened or whether it more or less uses the opportunity to expose state organs. Only the objective facts, and not the subjective point of view of a party subject to party ban proceedings, are constitutionally relevant. dd. Against that background, the requirements based on the constitutional state principle concerning ban proceedings under Article 21 (2) of the Basic Law and §§ 13 (2), 43 et seq. of the Federal Constitutional Court Act impose strict freedom from state interference in the sense of unobserved, self-determined formation of intention and self-portrayal of the party before the Federal Constitutional Court. The Constitutional Court’s banning of a political party, which is the sharpest weapon—and, moreover, a double-edged one—a democratic, constitutional state has against an orga nized enemy, needs a maximum of legal certainty, transparency, predictability, and reliability of procedure. Th is also applies to the factual material to be assessed. Only unequivocal and open attributions concerning persons, conduct, and statements, directed either toward the sphere of the applicants or toward that of the respondent, enable the Court to reach and account for a constitutionally justifiable decision on the unconstitutionality or constitutionality of the party as a result of proceedings orga nized in accordance with the constitutional state principle. b. Whether a violation of the constitutional requirements concerning the form and organization of proceedings causes irreparable damage to the conduct of the proceedings, from the point of view of the constitutional state principle, is a question that does not allow a general, abstract answer. That is so much more the case if the continuation of the proceedings is impossible, in terms of the constitutional state principle, even when weighed against the state’s interests in effective protection from the dangers posed by a party. The significance of the constitutional violations and their consequences for the proceedings can be assessed only on the basis of a com-

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prehensive appraisal of the specific procedural situation, and regard also must be had, when striking the necessary balance, to the actual dangerous situation that a possible discontinuation of the party ban proceedings might trigger. . . . 4. The nature and intensity of the surveillance of the respondent by the federal and Land constitutional security authorities immediately before and after the federal government’s application for a ban was received at the Federal Constitutional Court on 30 January 2001 violates the requirements of constitutional law. Significant reliance in the grounds of the application on statements made by members of the challenged political party who are or were confidential agents of governmental authorities also violates the requirements of constitutional law. . . . d. aa. The failure, in violation of the constitutional state principle, to comply with the imperative rule of strict freedom from state interference for the respondent in proceedings under Article 21 (2) of the Basic Law is not remediable. . . . bb. No special reasons are apparent at the present time, which, in view of the specific preventive purposes of the proceedings under Article 21 (2) of the Basic Law, could exceptionally justify the continuation of the proceedings. Th is is especially true when the state’s interest in continuing the proceedings is considered alongside the established, serious breaches of the elements of the constitutional state principle.

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The majority of the Court dissented from the position taken by the prevailing threejustice minority in NPD Party Ban Dismissal. First, the dissenters argued that less drastic remedies in the case, including the exclusion of implicated evidence, could overcome the potential taint resulting from state agents’ infi ltration of the npd. Second, the dissenters saw a strong presumption, based on the constitutional duty to provide a judicial remedy (Justizgewährungspfl icht), in favor of allowing the party ban proceeding to continue.170 More fundamentally, the dissenters argued that “the freedom of political parties guaranteed in Article 21 (1) of the Basic Law did not heighten the generally applicable constitutional standards of procedural fairness” in party ban proceedings.171 The dissenters argued that, under traditional standards of procedural fairness, a party’s political freedom would only be infringed to a degree requiring dismissal for a violation of fair process if it were proven that the state agents had exercised “control over the respondent’s decision-making process . . . [but] there was not ‘the slightest indication’ of any substantial governmental influence on the respondent’s decision-making process” in this case.172 Finally, the dissenters argued for a protective effect for Article 21 (2). The prevailing three-justice minority had, in part, characterized the question of dismissal as a function of striking a balance between, on the one hand, the npd’s guaranteed freedom and, on the other hand, the public’s interest in having legitimate party ban proceedings run their course. The dissenters argued that, in such a balancing, the public’s interest was weightier. Th is position was supported by a characterization of the party ban as more

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than a guardian against mere abstract, ideological threats to the free democratic basic order. Instead, the dissenters saw a role for Article 21 (2) in providing protection against actual and, in the case of increasing neo-Nazi violence, physical threats to human dignity, life, and physical integrity. Th is more expansive role for Article 21 (2), however, could only be realized if the party ban process were used preemptively to abolish “a party before it poses any actual or clear and present danger (konkrete Gefahr) to the basic values enshrined in the constitution. . . .”173 The dissenters believed that evidence of the npd’s threat as a konkrete Gefahr to human life and dignity could be drawn from its public activities, independent of the evidence potentially tainted by state agents. A decade after the fi rst, failed attempt to ban the npd, there was renewed talk of a challenge to the party’s constitutionality. The npd’s links to the suspects in a string of murders that had targeted foreigners justified the scrutiny. But evidence in the case of neglect—or worse, complicity—by agents and informants working on behalf of federal and state security ser vices seemed certain to complicate any new party ban application involving the npd. Whether or not a new case would materialize, references to this procedure remain a rare (a second case against the npd would be only the ninth in the history of the Federal Republic) but persistent part of postwar Germany’s political discourse. That suggests that the broadest interpretation of the prevailing justices’ opinion in NPD Party Ban Dismissal has not carried the day. By calling the party ban “the sharpest weapon . . . a democratic, constitutional state has against an organized enemy,” it is possible that the prevailing justices intended to signal the fading relevance of militant democracy for Germany’s mature, tested, and stable democracy. To the contrary, the memory of the past mingles with the spirit of contemporary crises to justify German political elites’ resort (if only rhetorical) to the principle of militant democracy.

conclusion The Federal Constitutional Court is an important custodian of political democracy. It has expanded the rights of voters and furthered equality of opportunity among competing political parties. While guarding the integrity of elections and insisting on the one-person, one-vote principle in single-member election districts, it also has defended the principle of effective representation exemplified in the mixed memberproportional system of representation. In addition, the Court has vigilantly shielded minority and unconventional parties against discriminatory legislation, particularly with regard to participation in parliamentary activities, party fi nancing, and requirements for gaining access to the ballot. At the same time, with the single exception of the fi rst all-German election of 1990, the Court has sustained the 5 percent minimum threshold in federal elections. Th is barrier to entering Parliament is meant to promote political stability. The dormant principle of militant democracy is the more radical mechanism for promoting that end. In recent years, however, the Court has exhib-

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ited a more tolerant attitude toward so-called antidemocratic parties, defending their institutional rights with the same vigor with which it safeguards other electoral groups. The Federal Constitutional Court’s decisions in the fields of political representation and democracy clearly seem to reflect, and to have contributed to, the evolving maturity of German democracy.

6 Jurisprudence of the Open State ∂ A number of the Basic Law’s (Grundgesetz) provisions establish a fundamental commitment to an “open state” and the accommodation of international law (Völkerrechtsfreundlichkeit).1 Th is was meant to create a cosmopolitan constitutional order linking Germany’s interests with the interests of the international community and integrating Germany into international law.2 The Basic Law’s openness is expressed in the preamble, which declares that the German people adopted the Basic Law in order to “promote world peace as an equal partner in a united Europe.” Elsewhere, the Basic Law permits the transfer of sovereign powers to international organizations and to systems of collective security (Article 24 (1) and (2)); it obliges the Federal Republic to accede to agreements providing for general, comprehensive, and compulsory international arbitration for the resolution of disputes (Article 24 (3)); it makes the general rules of international law “an integral part of federal law” (Article 25); it criminalizes acts “tending to and undertaken with intent to disturb the peaceful relations between nations” or in preparation for a war of aggression (Article 26); and it raises the possibility that the Federal Republic’s political relations and policy making might be regulated by international treaties (Article 59 (2)). The preamble’s commitment to a “united Europe” originally was realized in accordance with Article 24 (1) and later in conformity with the lengthy, complex, and frequently amended terms of Article 23. Opening the state has not been the easiest of the Basic Law’s ambitions to achieve. Th is is because the Federal Constitutional Court (Bundesverfassungsgericht) also sees in the Basic Law a fundamental commitment to national sovereignty. Th is sovereigntism has obliged the Court to guard the constitution from the trivialization that deeper international integration might produce. Thus, the Constitutional Court has refused to interpret the Basic Law’s call for openness as an invitation to disregard or dissolve the sovereign German state and its constitutional order. Openness to international law, the Court has insisted, is not a suicide pact.3

basic law and international law The German Question and International Law. The “German question” was one of the most pressing and complex geopolitical issues of the second half of the twentieth century. What was to become of the defeated Germany? What status should Germany have in the international community? Shortly after Germany’s unconditional surrender to end World War II, the victorious Allies abandoned the collaboration

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they had intended to pursue from their separate occupation zones and became avowed enemies waging a Cold War, in no small part through the governing regimes they helped to establish and continued to support in West Germany (Federal Republic of Germany) and East Germany (German Democratic Republic). In addition to the national schizophrenia that naturally resulted from splitting Germany in this way, the German question involved the problem of a lasting peace to end World War II, including the fi nal settlement of postwar Germany’s borders. The German question went without a defi nitive answer for four decades. Th roughout those years the Federal Constitutional Court was asked from time to time to rule on related matters. Was West Germany a state in the international order? What was West Germany’s relationship to East Germany and the defeated German Reich? And, in light of the Basic Law’s openness, to what extent should the Federal Constitutional Court accept international law’s answers to these questions? After all, these were matters on which the Basic Law seemed to stake its own clear positions. For example, the use of the title “Basic Law” for West Germany’s 1949 constitution committed the Federal Republic to the view that it had not achieved the formal, final constitution of a German state so long as West Germany and East Germany remained divided. Other provisions of the Basic Law made additional claims to West Germany’s provisional character. In seeming contradiction to these provisions, which underscore the Basic Law’s commitment to the “principle of reunification,” other parts of the Basic Law asserted positions on enduring, all-German issues such as citizenship. The German question, and the extent to which international law would dictate its settlement for West Germany, came to a head in the East-West Basic Treaty Case (discussed below). Until the early part of the 1970s relations between the Federal Republic of Germany and the German Democratic Republic were severely strained. The main front between the Cold War’s nuclear-armed, opposing ideological blocs ran directly between them. Adding to the tension was the mounting embarrassment caused by East German citizens’ evident disaffection. In June 1953, with the help of the Soviet army, the regime violently suppressed labor protests that turned into a political uprising. And, to stem a nearly debilitating exodus to the West, on 13 February 1961 East Germany took the extraordinary step of completely closing its border with West Germany and isolating West Berlin behind the highly secured border installations that came to be known as the Berlin Wall. Traffic and trade, telecommunications and mail ser vices, as well as visits to East Germany were strictly controlled. East Germans who attempted to flee the country were stopped or, in the worst cases, killed at the border. West Germany reacted to these developments by declaring, as early as 1955, that it would not recognize East Germany as a sovereign state and by threatening to cut all relations with other countries that did so.4 Th is strict nonrecognition policy was called the Hallstein Doctrine, after the high-ranking West German diplomat who conceived and promoted it. Of course, this jeopardized West German relations with Poland and the Soviet Union, which had embraced the German Democratic Republic within the eastern bloc of socialist states.

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In one of the fi rst dramatic moves of his promised Ostpolitik (the normalization of relations with the East), newly elected West German chancellor Willy Brandt visited Warsaw in 1970. At the memorial honoring the Jewish resistance to the Nazis in the Warsaw Ghetto, Brandt fell to his knees in a moving gesture of contrition. The “Warsaw Genuflection” was the start of a warming of East-West relations that culminated in several treaties, including the “Basic Treaty” between West Germany and East Germany. The Basic Treaty stipulated, among other provisions, the inviolability of the internal border between the two countries; the rejection of the use of force; good neighborly relations based on human rights and the United Nations Charter; the mutual recognition of one another’s territory; and the establishment of “permanent representations” in both countries. The East-West Basic Treaty was followed by a series of notes and diplomatic letters that were meant to resolve various tensions between West and East Germany. Despite the fact that Brandt’s Ostpolitik earned him “Man of the Year” recognition from Time magazine and the 1971 Nobel Peace Prize, it was extremely controversial in West Germany. Some saw Ostpolitik, and especially the East-West Basic Treaty, as a renunciation of the Basic Law’s commitment to the principle of reunification. The East-West Basic Treaty was signed on 21 December 1972 and ratified by the West German Parliament on 11 May 1973. The treaty entered into force on 22 June 1973. But before that date the treaty’s constitutionality was challenged before the Federal Constitutional Court. 6.1 East-West Basic Treaty Case (1973) 36 BVerfGE 1 [On 28 May 1973 the Bavarian government fi led an abstract judicial review challenge against the parliamentary act ratifying and giving effect to the EastWest Basic Treaty (the Treaty Act). The challenge asserted that the treaty violated provisions of the Basic Law that committed the Federal Republic to pursue national unity and allowed for eventual reunification. The challenge also urged that the treaty violated various provisions of the Basic Law concerned with the status of West Berlin as a Land of the Federal Republic. Finally, the challenge claimed that the Basic Treaty violated provisions of the Basic Law that bound all inhabitants of West Germany to a duty of care and protection for all Germans, including the inhabitants of East Germany. The federal government (Bundesregierung) strenuously objected to these arguments. In a decision issued after the treaty had already entered into force, the Federal Constitutional Court held that the act confi rming Parliament’s consent to the treaty did not violate the Basic Law. But it framed the impact and meaning of the East-West Basic Treaty in important ways. In clear terms the Court rejected the international law consequences of the treaty, preferring instead its interpretation of the Basic Law’s resolution of issues like West German statehood and sovereignty.]

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Judgment of the Second Senate . . . B. III. . . . 2. . . . First, it follows from the principle of reunification that no constitutional organ of the Federal Republic of Germany may abandon the political goal of national unity. All constitutional organs are obliged . . . to maintain the claim to reunification domestically and vigorously present it externally. These organs must refrain from anything that might prevent reunification. Clearly, the federal government has to decide on its own responsibility on this point. . . . Here, the Court may neither criticize nor express its view on the prospects of success of the government’s chosen policy. Political responsibility for the goal of reunification lies with the policymaking bodies alone. But there is one boundary that the Federal Constitutional Court must make clear, defi ne, and where appropriate, enforce. Th is limit on political discretion derives from the fact that the Federal Republic of Germany, as a constitutional state, is forbidden by the Basic Law from abandoning a legal position that is established by the Basic Law. . . . In the same sense, the Federal Republic may not create a legal duty that is incompatible with the Basic Law. Finally, the Federal Republic may not be involved in establishing a legal duty that hinders its efforts to achieve national unity. . . . The normal political situation, in which the Constitutional Court would exercise judicial self-restraint and remain silent, differs fundamentally from the situation in which the Federal Republic of Germany accedes to a legal instrument that may be used by others to undermine its efforts to achieve reunification. From this it follows, for instance, that it is the clear legal position of every government of the Federal Republic of Germany that they must accept the existence of Germany as a whole consisting of an (all-)German people and an (all-)German state power. Th is starting point is presupposed by and anchored in the Basic Law. The whole “German nation” may be spoken of only parenthetically today. But there is no reason to object to this if it is understood as a synonym for the “German body politic.” Th is maintains the legal position established by the Basic Law, leaving another formulation for political considerations. Should this new expression—the “German nation”—come to apply only to the concept of a linguistic and cultural unity present in the awareness of the population, then this would constitute the legal abandonment of an inalienable legal position. . . . The same would be the case if the reference to Four-Power responsibility for Germany as a whole meant that, in the future, Allied powers alone would be the (last) legal basis for the continued existence of Germany as a whole. The only constitutionally acceptable policy is that the Basic Treaty constitutes a further legal development—namely an “international law” approach that parallels the constitutional law foundation—for the Federal Government’s efforts to achieve reunification. The federal government understands this. The Federal Constitutional Court has never pronounced on the political thesis of the “sole claim to representation.” It has not had and does not now have the occasion to consider and to decide whether the Basic Law can be taken as legally establishing

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for the Federal Republic of Germany an exclusive claim of representation for Germany as a whole [meaning the “Hallstein Doctrine”]. 3. The Basic Treaty can be interpreted so that it does not confl ict with any of the Basic Law’s mandates. No official declaration within the Federal Republic of Germany suggests that, in the interpretation of the Treaty, the federal government has abandoned or is abandoning this constitutional bedrock. IV. 1. The Basic Treaty can be appraised legally only by setting it in a broader context. It is one part of a more comprehensive policy, more precisely, the federal government’s Ostpolitik, which is oriented toward détente. The Treaties of Moscow and Warsaw are notable milestones in that agenda. Those Treaties were a precondition for the conclusion of the Basic Treaty and the federal government understood them to be necessary to concluding the Basic Treaty. In this context the Basic Treaty takes on the same fundamental importance as the Moscow and Warsaw Treaties. It is not some arbitrary and correctable step, like many steps in politics. The Basic Treaty, as its name implies, constitutes the basis for the new policy oriented toward the long term. Correspondingly, it contains neither a time limitation nor a denunciation clause. It constitutes a historical turning-point. From now on the relationship between the Federal Republic of Germany and German Democratic Republic are to be reshaped. . . . 2. The Treaty is embedded in more comprehensive and more specific legal relationships that also have to be taken into account in any legal assessment. For example, the United Nations Charter . . . colors the provision in the Basic Treaty that says . . . that “by this Treaty, bilateral and multilateral treaties and agreements formerly concluded” by the Contracting Parties “are not affected.” Th is means in par ticu lar the “Western Treaties” concluded by the Federal Republic—especially . . . the German Treaty—pursuant to which the Federal Republic and the three allied powers remain treaty-bound . . . to work together “to secure by peaceful means their common goal: a reunified Germany with a free democratic constitution like that of the Federal Republic, integrated into the European Community.” Th is commitment also is reflected in the Moscow and Warsaw Treaties and the Four-Power agreements concerning Germany as a whole. It also is part of the Border and Friendship Treaty between the German Democratic Republic and the People’s Republic of Poland, to the extent that it concerns Germany (as a whole). The meaning of the . . . Basic Treaty also becomes evident . . . concerning Berlin. 3. . . . In the international law sense the German Democratic Republic is a state. As such it is a subject of international law. Th is conclusion is reached without regard to the Federal Republic of Germany’s recognition of the German Democratic Republic in international law. The Federal Republic of Germany has never formally pronounced such recognition. To the contrary it has explicitly rejected it. . . . The engagement with the German Democratic Republic represented by the conclusion of the Basic Treaty can be understood only as a de facto recognition of a special kind. The Basic Treaty is a bilateral treaty between two states to which the rules of international law apply and possess validity, as they do for any other international treaty.

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But the Basic Treaty has the special nature that it binds two states that are parts of the extant comprehensive state of the whole of Germany that is incapable of action because it has not yet been reorganized but nonetheless possesses a single body politic and a single territory, the boundaries of which need not be defi ned precisely here. The Contracting Parties to the Basic Treaty do not exchange ambassadors but permanent representations. . . . The special nature of the Basic Treaty also follows from the fact that the Contracting Parties to the Basic Treaty do not exchange instruments of ratification . . . but instead they exchange “corresponding notes.” . . . The Contracting Parties agree that trade between them is not to be regarded as foreign trade. To that extent, the special nature of the Basic Treaty also can be clarified by the formula that it regulates “inter se relationships.” Nevertheless, it does not regulate exclusively such relationships and, therefore, does not operate outside the general international law order. . . . A contrary interpretation is precluded by the reference in the Basic Treaty to the United Nations Charter. For these reasons the Basic Treaty has a dual character. By its nature it is a treaty under international law. But by its specific content it is a treaty that, above all, regulates inter se relationships. Regulating inter se relationships with an international treaty may be necessary, above all, where [an overarching] state legal order is absent. Th at is the case here because of the disorganization of the overarching state. Even in a federal state, regulations among its constituent members are evaluated in accordance with the rules of international law if a relevant provision is missing from the federal constitution. . . . Accordingly, the view that every “two-state model” is incompatible with the order of the Basic Law is wrong. . . . V. . . . In this context the federal government’s letter to the government of the German Democratic Republic treating the subject of German unity is significant. It states that the Basic Treaty does not confl ict “with the Federal Republic’s political objective of working toward a situation of peace in Europe in which the German people will regain their unity in free self-determination.” . . . The preamble to the Basic Treaty includes the passage “irrespective of the differing views of the Federal Republic of Germany and the German Democratic Republic on questions of principle, among them the national question.” For the Federal Republic the phrase “national question” refers specifically to the Basic Law’s principle of reunification, which insists upon the “maintenance of the national unity of the German people.” The preamble, read this way, is a decisive basis for interpreting the whole Basic Treaty as being consistent with the Basic Law’s principle of reunification. . . . 2. In Article 3 (2) of the Basic Treaty the Contracting Parties confi rm “the inviolability of the border between them now and in the future, and commit themselves to unrestricted respect for their territorial integrity.” There are borders of differing legal quality: administrative borders, borders of demarcation, borders of spheres of interest, a border of the area to which the Basic Law applies, the borders of the German Reich as of 31 December 1937, and national borders. Among the variety of borders are those that enclose a whole state and those that, within a whole state, separate constituent members (e.g. the Länder of the Federal Republic of Germany) from each

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other. . . . For the question whether recognition of the border between the Federal Republic of Germany and the German Democratic Republic as a state border is compatible with the Basic Law, the decisive aspect is the Basic Treaty’s reference to a border in national law between two states. . . . At stake is a border in national law similar to the boundaries that demarcate the Länder of the Federal Republic of Germany. Th is qualification of the border takes account of the Basic Law’s understanding of the national question, that is, it is compatible with the demand that the achievement of the national unity of the German people must remain open. . . .

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Constitutional Limits to Openness. The East-West Basic Treaty signaled West Germany’s acquiescence in East German statehood. The treaty referred to the United Nations Charter, which establishes the most fundamental international law principles of interstate relations, and committed the two countries to respect their territorial integrity, independence, and sovereign equality. East German statehood was the price Brandt had been prepared to pay for Ostpolitik. In East-West Basic Treaty the Federal Constitutional Court confi rmed the treaty’s acknowledg ment of East German statehood. For example, the Court accepted that the German Democratic Republic was a state “in the international law sense” and that the “Basic Treaty is a bilateral treaty between two states to which the rules of international law apply. . . .” Considering the Basic Law’s openness to international law, the Basic Treaty could have conclusively resolved the German question: two states had emerged from the rubble of postwar Germany. But the Constitutional Court found that the Basic Law’s principle of reunification imposed significant constitutional limits on international law’s answer to the German question. First, the Court insisted that East Germany was not fully independent but bound up with West Germany as part of an all-German state (the former Reich), which had survived Germany’s defeat in World War II and Allied occupation. In terms nearly showing derision for the international legal order, the Court found that the Basic Treaty merely pronounced West Germany’s recognition of an East German state as a matter of international law. But this, said the Court, “can be understood only as a de facto recognition of a special kind.” Second, and more controversially, the Court asserted West Germany’s priority in representing the dormant all-German state, a status it enjoyed owing to its democratic legitimacy and the Basic Law’s extension of citizenship rights to all Germans, in both East and West Germany. Despite ruling that the Basic Treaty—and, more properly, the parliamentary act consenting to the Basic Treaty—was constitutional, the Second Senate had given the more decisive victory to the treaty’s challengers. If acceptance of East German statehood had been a centerpiece of Brandt’s Ostpolitik, then the Court’s decision dealt him a disappointing blow. In any event, that is how fuming East European governments viewed the Court’s opinion. The decision’s disregard for international law also was criticized by West German commentators who understood the Basic Treaty

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to legally, even if awkwardly, accede to East German statehood.5 Bruno Simma, who later become a judge at the International Court of Justice, noted the decision’s controversial international law “language and content” and lamented the fact that, as the basis for their relations, “the two German states . . . [had] to make do with a treaty [that] is in conformity with the constitution of one contracting state only if most of its provisions are given a meaning and applied in a way [that] the other contracting state opposes vehemently and [that] it regards as a breach of the treaty.”6 History would prove to be on the side of these critics. With the reciprocal support of the Cold War superpowers, not long after the Court issued its decision in the East-West Basic Treaty Case, the two German states were admitted as fully independent members of the United Nations. Thereafter, international recognition of East Germany proceeded apace. In 1987 Erich Honecker, then chairman of the East German Council of State, visited West Germany with nearly all the fanfare and protocol appropriate for a visiting foreign head of state. A few years later, the Federal Republic of Germany and the German Democratic Republic fulfi lled the Basic Law’s principle of reunification. Of course, the legal mechanisms for achieving reunification were international law treaties concluded between two independent states, including the Unification Treaty of 31 August 1990, pursuant to which East Germany submitted itself to the West German political and economic order in the form of five new federal states. “Th is was a case of state succession, whereby the [Federal Republic] replaced the [German Democratic Republic] as the state responsible for the relevant territory under international law.”7 By this point, of course, the constitutional (if not the existential) concern that animated the Court’s sovereigntist reservations toward international law in East-West Basic Treaty had been rendered moot. Opening the state to international law on this question no longer entailed the risk of diminishing the Federal Republic’s constitutionally secured identity. To the contrary, international law ultimately facilitated the expansion—perhaps even the completion—of the community the Basic Law intended to bring about. The Basic Law and Treaties. Not every treaty requires parliamentary consent. Treaties transferring sovereign powers to the European Union (Article 23 (1) of the Basic Law) require parliamentary consent. Otherwise, Article 59 (2) of the Basic Law gives the Parliament (Bundestag) and, when Länder interests are implicated, the Federal Council of States (Bundesrat) a treaty-making role in only two circumstances. First, Parliament must consent to “treaties that regulate the political relations of the Federation.” Second, Parliament must consent when a treaty relates to “subjects of federal legislation.” As for the former instance involving “political relations,” the Court requires consent only for treaties that, in their object and purpose, touch upon Germany’s existence, territorial integrity, independence, or standing in the international community of states.8 The East-West Basic Treaty easily qualified under this defi nition. The Court characterized it and other Ostpolitik treaties as “highly political” because they “opened the way for a wholly new foreign policy.”9 Regarding the latter instance involving “subjects of federal legislation,” consent is required where

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the constitutional state principle would require a statute for a domestic exercise of authority.10 The Basic Law’s requirement of a domestic, parliamentary “consent act” in these two circumstances would seem to orient the doctrine regarding treaties toward dualism,11 but the question remained unsettled for a long time and generated a rich theoretical debate. Some urged that legislative consent has the dualist effect of “transforming” the international treaty into a distinct and wholly separable domestic law. Others insisted that the consent act, in monist terms, merely “adopts” the treaty rules for the domestic realm without distinguishing between the international and domestic legal order. Still others advocated for a refi nement of adoption, often referred to as the “doctrine of execution” (Vollzugslehre), which places even greater distance between the international rule’s domestic force and its endorsement in domestic law. According to the doctrine of execution, “what the endorsement does and all it does is to permit the introduction into the domain of national law of treaty rules, which remain, however, component parts of an international agreement and do not suffer any transubstantiation into canons of the domestic system of law.”12 Th is debate persisted for a long time despite the fact that it seemed to have little practical relevance. After all, treaties are incorporated into German law via a consent act and they enjoy the same rank and priority as that act, whether they are thought to have been “transformed” or “adopted” or “executed.” But in the Görgülü Case (2004; no. 603) the Constitutional Court defi nitively committed Germany to dualism with respect to its treaty obligations.13 Görgülü is featured below because of the rule it announced on the domestic effect to be given to judgments of international tribunals such as the Eu ropean Court of Human Rights. The Federal Constitutional Court also used the case to narrowly defi ne the relationship between the constitutional order created by the Basic Law and the international human rights regime to which Germany committed itself by becoming a party to the Eu ropean Convention on Human Rights. The Court acknowledged that the Basic Law’s openness to international law meant that the Eu ropean Convention on Human Rights binds domestic courts and other governmental authorities. Nevertheless, it insisted that the human rights treaty has its domestic force only through the relevant Article 59 (2) consent act, and only commensurate to that act’s rank in the hierarchy of German law. The Court explained that the Basic Law did not take the most extensive steps in opening itself to international law. On the domestic level the law of international agreements is not to be treated directly as applicable law, that is, without a statute establishing the consent of the Parliament (Article 59 (2) of the Basic Law). And, neither treaties nor customary international law are endowed with the status of constitutional law. The Basic Law is clearly based on the classic idea that the relationship of public international law and domestic law is a relationship between two different legal spheres and that the nature of this relationship can be determined, from the viewpoint of domestic law, only by domestic law itself. Th is is shown by the existence and the wording of Arti-

Jur isprudence of the Open State 311 cle 25 and Article 59 (2) of the Basic Law. The commitment to international law takes effect only within the democratic and constitutional system of the Basic Law.14

The “mitigated dualism” announced by the Court in Görgülü elevates and makes explicit the sovereigntist undercurrent evident in East-West Basic Treaty.15 It also underscores the difficult position in which the Court fi nds itself as it strives to realize the Basic Law’s confl icting principles in these international law cases. On the one hand, the Court clearly is charged by the Basic Law with ensuring Germany’s integration into the legal community of peaceful and free states. On the other hand, as the “guardian of the constitution,” the Court feels obliged to protect and secure the national sovereignty prescribed in the Basic Law. In Görgülü the Court concluded that the latter concern means that there are limits to the degree Germany can be bound by “non-German acts of sovereignty,” a rule it said was relevant even for Germany’s far-reaching supranational integration into Europe.16 Görgülü triggered considerable public outcry and drew fi re from the European Court of Human Rights. Part of the backlash was rooted in postwar Germany’s persistent discomfort with any form of national chauvinism. The United States might flaunt its sovereignty and constitutional exceptionalism, but not Germany. Matthias Hartwig shared the view of many of the critics of the Court’s Görgülü decision. Nevertheless, he recognized that the Basic Law’s commitment to openness left the Court in an awkward, even institutionally confl icted position. The Constitutional Court, Hartwig explained, is not the organ best suited to facilitating Germany’s cosmopolitanism and the attending trivialization of the Basic Law. In the long run, excessive openness to international law risked making the Court the “guardian of the back door which nobody uses anymore.”17 Under those circumstances it might be natural that the Court has favored Germany’s constitutional sovereignty. The Basic Law and General International Law. Treaties are not the only source of international law. Article 38 of the Statute of the International Court of Justice is widely regarded as having codified the fundamental sources of international law. And, while “international conventions”—treaties—are mentioned fi rst, the second source identified by the World Court’s statute is “international custom, as evidence of a general practice accepted as law.” Th is is the body of law to which Article 25 of the Basic Law refers when it stipulates that “[t]he general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory.” Customary international law, which derives universally applicable norms from state practice undertaken with the belief that the state activity is legally obligatory, always has been dogged by controversy. The scholarly heat over custom has been turned up recently. Still, it is an accepted part of the international legal order. The German constitutional regime’s openness to customary international law raises several points meriting emphasis. First, the Basic Law provides a separate rule for customary international law. And, contrary to the Basic Law’s dualist orientation

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with respect to treaties, Article 25 seems to tilt toward monism, providing for customary international law’s seamless integration into Germany’s domestic legal order. Second, customary international law enjoys priority over ordinary (nonconstitutional) law in Germany. Th ird, the considerable openness to customary international law achieved by these features is tempered by the Basic Law’s explicit grant of concrete judicial review over the issue to the Federal Constitutional Court. Article 100 (2) requires ordinary courts to turn to the Federal Constitutional Court to resolve doubts about the existence and scope of customary international law. Th is might have created, as was the experience under the similarly worded provision of the Weimar Constitution of 1919, an opportunity for judicial parochialism. Instead, the Federal Constitutional Court has limited itself to determining whether a rule of customary international law exists and whether such a rule “creates rights and duties” relevant to the parties to the dispute. The Philippine Embassy Case is a leading example of this practice. 6.2 Philippine Embassy Case (1977) 46 BVerfGE 342 [In 1966 the Republic of the Philippines leased a house in Bad Godesberg, the diplomatic quarter in the city of Bonn, for its West German embassy. At the time Bonn was the capital of the Federal Republic of Germany. In June 1973 the Philippine Government abandoned the property, returning control to the landlord after paying rent through the end of the month. The landlord fi led a civil suit against the Philippine Government seeking compensation of more than dm 95,000 for unpaid rent, repairs, and maintenance expenses. In 1975 the Bonn Regional Court awarded the landlord the requested amount, plus interest and costs, in a default judgment (Versäumnisurteil). The landlord then obtained an order seizing and transferring Philippine Government assets, including funds deposited in a Deutsche Bank account denoted “Embassy of the Philippines” that had been opened in 1956. Authority over the account resided with the ambassador, or the chargé d’affaires, and the embassy official responsible for fi nancial matters. The Philippine Government deposited into the account the funds required for its activities in the Federal Republic of Germany, and the seizure order prevented it from meeting new or ongoing obligations. Asserting a rule of customary international law, the Republic of the Philippines challenged the court’s seizure order claiming that the embassy’s bank account was not subject to the jurisdiction of the German courts. The issue was presented to the Federal Constitutional Court pursuant to its Article 100 (2) concrete judicial review jurisdiction. The Court ruled that customary international law barred the seizure of assets in the Philippine Government’s bank account.]

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Judgment of the Second Senate. . . . [The Court began its analysis by remarking that the rule of customary international law asserted by the Philippine Government—sovereign immunity from forum-state judicial action over assets—seemed to be handled differently in many states. Some states granted immunity while others did not. The states recognizing such a rule often differentiated between acta iure imperii (official sovereign acts) and acta iure gestionis (state acts under private law). Some of these states nonetheless excluded enforcement of forum-state judicial orders against foreign sovereigns. In the face of this haziness, the Court found it necessary to undertake a deeper examination of the conduct of the international community on this question.] C. . . . 3. In order to confi rm the existence of a rule of customary international law within the meaning of Article 25 of the Basic Law there must be an established practice by many states in the relevant sphere of activity and the states generally must pursue that practice in the conviction that they are obliged to do so by international law. . . . [The Court then examined the conduct of different countries, including Belgium, France, Greece, Italy, Switzerland, the United States, and the Weimar Republic. In reviewing the conduct of these states on this question, the Court considered the actions of the executive and the legislature, but paid most attention to decisions of the judiciary.] 6. Th is survey shows that there is no practice sufficiently general and accompanied by the necessary legal conviction to support claims of the existence of a general rule of customary international law pursuant to which a forum-state is simply barred from executing a judgment against a foreign state’s assets located in the forum-state. However the requirement of general practice is defi ned, the number of states whose case law, legislation, or treaty practice, do not exclude enforcement measures against foreign states is so great that presently there is no general practice excluding the execution of such judgments. Th is is particularly true of judicial measures concerned with acta iure gestionis of the foreign state with execution aimed at assets serving nonsovereign purposes. Th is conclusion does not depend only on differences in states’ practice that result from divergent actions justified from the outset as attempts to secure an exemption from an existing general rule by way of persistent objector status. Instead, the existence of a corresponding general rule of customary international law simply cannot be assumed at this time. 7. Th is legal conclusion also is confi rmed in the statements of recognized academic associations and international law scholars. . . . b. A considerable number of recognized international law scholars maintain the legal view . . . that general customary international law does not bar measures of asset seizure and execution against foreign states by the forum-state if such judicial measures relate to actions of the foreign state that can be characterized as iure gestionis

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and involve assets that do not serve the foreign state’s sovereign purposes. Despite the fact that the existence of a rule of general customary international law barring such measures is not entirely rejected in the literature, the existence of such a rule nonetheless is seen as doubtful. . . . II. Customary international law does not bar a forum-state’s enforcement of judgments against a foreign state but it does set limits in rem on such enforcement measures. 1. There is a settled, general practice of states accompanied by a legal conviction establishing the following rule of customary international law: a forum-state is barred from executing judgments against the assets of a foreign state located within the forum-state if those assets serve a sovereign purpose and so long as the foreign state does not give its assent to the enforcement. To be sure, there is no complete agreement in the practice of states as to the extent of the assets protected by such sovereign immunity. . . . 2. . . . In the present case there is no need to examine, in light of the corresponding principles, whether the assets that are the subject of an enforcement action serve a sovereign purpose. At issue here is the admissibility of enforcement measures taken against funds from the current, general account of the embassy of a foreign state. Special provisions of international law operate in such circumstances to exclude the application of national law in relation to things serving the per formance of the official functions of the diplomatic representation of a foreign state within the forumstate. Despite their partial codification in the Vienna Convention on Diplomatic Relations, these norms constitute general rules of international law within the meaning of Article 25 of the Basic Law. They follow from the principle of the inviolability of diplomatic missions and from the judicial immunity of the foreign state in relation to the official functions of its diplomatic mission. 3. According to the established view . . . in the case of asset seizure or the execution of a judgment against a foreign state, international law provides that assets used by a diplomatic mission to carry out its official functions may not be seized. . . . The Vienna Convention on Diplomatic Relations of 18 April 1961, which codifies general international law on this point, excludes the following from search, requisition, attachment or execution: the mission’s premises, its furnishings and other property thereon, and the mission’s means of transport. . . . 4. a. . . . It need not be examined here whether the receiving state is bound by customary international law to grant the sending state the possibility of maintaining bank accounts in the receiving state to meet the expenses and costs of the sending state’s embassy. If, however, the receiving state permits this and the sending state makes use of the possibility within the framework of the receiving state’s legal system, then the sending state’s immunity extends to its funds and other rights associated with the account. Th is status cannot be changed simply because the sending state’s legal relationship to the bank is treated as a nonsovereign act by the receiving state’s law. It should be remembered that, in principle, the sending state is capable of its own sovereign power of treating things or rights that directly serve the exercise of

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its diplomatic functions or the maintenance of the operations of its diplomatic mission as sovereign with effect for the legal system of the receiving state, for instance, by assigning an act to the public cause within the meaning of the receiving state’s legal system. It is largely dependent on the receiving state’s legal system. Should the receiving state’s legal order only regard such actions as matters of private law, this nonetheless may not curtail the immunity protection that international law provides to promote the functionality of diplomatic representation. The fi nancial settlement of an embassy’s expenses and costs through a general current account maintained by the sending state with a bank in the receiving state belongs directly to the maintenance of the sending state’s diplomatic mission. Th is is so regardless whether the payments made through such an account, in relation to the bank or third parties, come about within a framework of legal relationships or actions that by their legal nature may be described as acts iure gestionis. Under customary international law the sending state’s claims connected with such an account enjoy the immunity, applicable to diplomatic representation, that protects against asset seizure or the execution of judgments. . . . b. No decisive objections to this fi nding can be derived from either the practice of the external organs of states, the case law of national courts or the literature on international law. . . . III. 1. The general rule of customary international law stated under section C. above is a part of federal law (see Article 25, fi rst sentence, Basic Law; para. 83(1) fcca. 2. The rule exclusively establishes rights and duties for the relationship in international law between states. But it does not establish or change subjective rights or duties of private individuals within the national territory of the Federal Republic of Germany, even in consequence of Article 25, second sentence, Basic Law. The rule does not establish a private individual’s subjective right to have judgments executed against foreign states within the national territory of the Federal Republic of Germany to the extent that customary international law permits it. It also does not establish a subjective duty on the part of foreign states regarding the execution of judgments insofar as this is not barred by customary international law. Rights and duties of this kind follow, at present, from other domestic law. 3. The distinction should be made that the rule of customary international law identified here is valid law in the national territory of the Federal Republic of Germany as such, with the scope it enjoys in international law. This is in accordance with Article 25, fi rst sentence, of the Basic Law. Thus, it can have legal effects for or against private individuals, including, for example, determining the existence or nonexistence of German jurisdiction, which, in turn, will determine whether enforcement proceedings or the nature of an enforcement measure may be admissible or inadmissible. The Federal Constitutional Court’s pronouncement in accordance with paragraph 83(1) fcca in such cases is confi ned to the fi nding that the general rule of international law is a part of federal law. IV. Th is decision was taken unanimously.

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Assessing Germany’s Openness to Customary International Law. The Philippine Embassy Case depicts a rather permeable German domestic legal order, at least with respect to customary international law. Especially noteworthy is the Court’s clear reiteration of the constitutional command that the customary international law rule— once its existence has been confi rmed by the Court—“is part of federal law.” In the dispute between the landlord and the Republic of the Philippines this meant that the international law rule deprived the German courts of their jurisdiction over the dispute, despite the fact that the ordinary provisions of the German Civil Code (Bürgerliches Gesetzbuch) and German Code of Civil Procedure (Zivilprozessordnung) seemingly granted them jurisdiction. The subordination of the applicable domestic norms follows directly from the language of Article 25, which gives the customary rule “precedence over the laws.” The precedence that custom enjoys over ordinary law is capped only by the Basic Law, which, as with treaties, retains its supremacy over the German legal order. Further signaling the German legal regime’s openness to international law, the Court also emphasized that the composition and scope of the customary international law rule had been determined by international doctrine alone. In this sense, in the exercise of its Article 100 (2) concrete judicial review authority, the Court renders itself an instrument of the international legal order, a posture that precludes it from bringing domestic law and policy concerns to bear in its assessment of international law.18 If these facets of the Court’s Article 25 jurisprudence do not establish monisim with respect to custom, then it implements an exceedingly accommodating variant of dualism.19 The Federal Constitutional Court strongly reaffi rmed the German legal system’s openness to custom in the Land Reform III Case (2004).20 The case was the third in a series of legal challenges brought before the Court seeking to overturn the political decision, taken during reunification, not to return to the original owners the property that had been expropriated following the war by the Soviet occupying authority. Th is highly contentious issue, involving as much as a third of all land in East Germany, and affecting wealthy and powerful former owners of large estates, is described in greater detail in Chapter 10. In Land Reform III the persistent and vocal opponents claimed that the nonrestitution policy was a violation of a customary international law right that requires states to respect private property. The Second Senate made clear that the claim was not frivolous: “Article 25 . . . gives the inhabitants of the territory of the Federal Republic of Germany in principle the right to rely on the domestic validity of customary international law. The wording of Article 25 of the Basic Law, which provides that the principles of customary international law create ‘rights and duties directly for the inhabitants of the Federal territory,’ reveals the constitution’s determination that compliance with the principles of customary international law should be enforceable, if necessary, before [this Court].”21 Yet, the Court concluded that a customary international law right to property neither existed nor would it have required a policy of restitution if it did exist. This conclusion, however, should not be viewed as an expression of general discomfort with the

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prominent role the Basic Law assigns to custom. Accepting custom’s priority, the Court merely engaged in a good faith (but ultimately fruitless) effort to determine the existence and scope of the asserted customary international law rule, much as it had done in Philippine Embassy. Land Reform III is remarkable because, despite its refusal to give the complainants relief on the basis of an asserted customary rule of international law, the Court nevertheless articulated a sweeping commitment to the open state. For example, the Court considered on the merits the complainants’ argument nonrestitution’s (putative) disregard for international law constituted a violation of Article 79 (3) of the Basic Law, the provision that renders certain values and commitments unamendable. These values are “eternally” enshrined in the modern German constitutional order. Sometimes characterized as Germany’s core “constitutional identity,”22 these unamendable values include the inviolability of human dignity (Article 1) and the social, federal, democratic, republican, and rule-of-law nature of the German state (Article 20).23 The complainants argued that the Basic Law’s commitment to an open state belongs to this unamendable constitutional identity and that this eternal value had been undermined by an amendment to the Basic Law that constitutionalized nonrestitution. 24 The Court resolved this claim by concluding that customary international law did not require restitution for the Soviet expropriation. But the Court’s silence in response to the suggestion that the open state might be a part of the unamendable core of Germany’s constitutional identity raises the possibility that it would agree with this view if required to decide the issue. The Court then identified a broad, three-part framework for the fulfi llment of the constitutional “duty to openness”: The duty arising from the imperative that [international law] rules be respected requires German state bodies to comply with the provisions of public international law that bind the Federal Republic of Germany and to refrain from violations. It also requires that the Parliament, in principle, provide for the possibility through the German legal system to correct violations of public international law by German state bodies. Finally, it also requires that, in certain circumstances, German state bodies enforce public international law in their own areas of responsibility if thirdparty states violate it.25

The fi rst part of the framework is not remarkable. It is a reminder of the necessary consequence of the integration of customary international law into the domestic German legal order, which pursuant to Article 20 (3) of the Basic Law “binds” the executive and the judiciary. The second part of the framework is more noteworthy because it derives from the Basic Law’s commitment to an open state an affi rmative duty on the part of German lawmakers to provide remedies for the German state’s violation of international law. Th is will be familiar to students of American foreign relations law as precisely the issue with which the Supreme Court grappled when repeated American violations of

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the international commitment to protect and help realize foreign nationals’ consular rights were found to have occurred in a number of American death penalty cases.26 While the Supreme Court accepted that American policy regarding consular rights in the cases had violated the international duty the United States owed the sending states, it nonetheless concluded that this international duty did not require the United States to provide a domestic mechanism for correcting the impact of the international law violation in the respective domestic death penalty cases.27 In the Supreme Court’s rigidly conceived dualist paradigm, the impact of the international law violations identified in the cases was limited to America’s responsibility, inter se, to the sending states. The domestic consequences of the international law violations, however, could go uncorrected, without remedy. The third part of the Constitutional Court’s framework for Germany’s constitutional openness to international law is nothing short of extraordinary. It sees in the Basic Law’s commitment to the open state a German obligation to prosecute, “in certain circumstances,” other states’ violations of international law. The limiting clause—“in certain circumstances”—surely would be read to significantly limit the implications of this claim. No one, above all the Germans, is interested in having Germany play the role of the global magistrate, in the mold of Spain’s Baltasar Garzón.28 It is astonishing that the Court would even articulate this possibility. In doing so, the Court reversed the function of the Basic Law’s commitment to the open state. Up to this point the open state created an inward flow, opening up the German domestic legal order to international influence. But this suggests an outward flow, with the domestic constitutional mandate of the open state potentially (and only in certain circumstances) serving as the justification for German disregard of other states’ sovereign prerogatives. Finally, as a component of the framework’s third part, the Constitutional Court embraced the concept of jus cogens or peremptory norms of international law. These rules, the Court correctly explained, cannot be “excluded by the states, either unilaterally or by agreement, but may be altered only by a later norm of general international law of the same legal nature.”29 Leaving aside the controversial, antipositivist character of such rules, they clearly represent a significant limitation on state sovereignty, which the Court seems to accept as a facet of the open state. Amidst its articulation of these dramatic internationalist commitments, the Court nevertheless paused to reassert the limits of the open state. Neither treaty nor custom, however the Basic Law provides for their incorporation into the German domestic legal order, enjoys priority over the German constitution. In Land Reform III, with respect to custom, the Court explained: The direct force of international law exists only to the extent that it corresponds to the conception of the Basic Law laid down in Articles 23 to 26 of the Basic Law and in Article 1 (2) and Article 16 (2) [2] of the Basic law. The Basic law aims to achieve the opening of the domestic legal system for public international law and international cooperation in the form of a supervised binding effect; it does not provide that

Jur isprudence of the Open State 319 the German legal system should be subordinated to the system of public international law and that public international law should have absolute priority over constitutional law.30

Constitutional Openness and International Tribunals. As mentioned earlier in this chapter, in the Görgülü Case the Court exercised some restraint with respect to the domestic legal significance of treaties. As with customary international law, treaties enjoy only a “supervised binding effect” in Germany. In Görgülü the Federal Constitutional Court also had to decide whether a decision by an international tribunal, in this case the Eu ropean Court of Human Rights, is binding on ordinary German courts. Here, too, the Court sought to reconcile the Basic Law’s confl icting commitment to cosmopolitanism and sovereigntism. 6.3 Görgülü Case (2004) 111 BVerfGE 307 [While legally residing in Germany the Turkish citizen Kazim Görgülü fathered a son with a German woman in 1999. Görgülü’s relationship with the mother ended before the boy was born and the mother gave the child up for adoption. With his paternity officially recognized, the District Court of Wittenberg issued a judgment giving Görgülü the right to have contact with his son. Th is judgment was quashed by the Higher Regional Court (Oberlandesgericht) of Naumburg an der Saale, which ruled that denying Görgülü visitation rights served the child’s welfare. Görgülü’s fi rst constitutional complaint against this ruling was rejected. Thereafter, he moved for a new trial before the District Court while a simultaneous request for a preliminary injunction blocking the order denying him visitation rights was rejected by the Higher Regional Court. In 2001 Görgülü fi led a complaint before the European Court of Human Rights alleging that the results of the underlying German legal proceedings constituted a violation of Article 8 of the European Convention on Human Rights (respect for private and family life). The European Court ruled in Görgülü’s favor, fi nding Germany in violation of its obligations under Article 8. Accordingly, the District Court of Wittenberg granted Görgülü the right to see his son. Th is judgment was again quashed by the Higher Regional Court, which ruled that the judgment of the European Court was neither binding upon nor superior to German court judgments. Arguing that the Higher Regional Court’s judgment violated Article 6 of the Basic Law and the constitutional state principle, Görgülü fi led his second constitutional complaint with the Federal Constitutional Court in 2004. The Constitutional Court sustained Görgülü’s complaint. But in doing so it sent confl icting signals regarding the force the European Court’s judgments have in Germany.]

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Judgment of the Second Senate. . . . C. The constitutional complaint is well-founded. In its order of 30 June 2004, the Higher Regional Court violated Article 6 of the Basic Law in conjunction with the constitutional state principle. Under certain conditions the authorities and courts of the Federal Republic of Germany are obliged to take account of the European Convention on Human Rights, as it has been interpreted by the European Court of Human Rights, when they take action. The challenged decision of the Higher Regional Court does not fulfi ll this obligation because, in its judgment in the complainant’s case, it did not pay sufficient attention to the European Court’s judgment from 26 February 2004. I. In the German legal system the Convention has the status of a federal statute and it must be taken into account in the interpretation of domestic law alongside fundamental rights and constitutional guarantees. The binding effect of a Eu ropean Court of Human Rights decision extends to all state bodies and, in principle, imposes on them two obligations: to end a continuing violation of the Convention and to create a situation that complies with the Convention. Of course, these obligations are confi ned to the relevant state actors’ jurisdiction and it does not exempt them from giving full respect to controlling domestic statutes and law (Article 20 (3) of the Basic Law). The binding effect given to a decision of the Eu ropean Court depends on the relevant state bodies’ sphere of responsibility and the latitude they enjoy under higher-ranking law. In any event, courts have a duty to take into account a Eu ropean Court judgment that relates to a case already decided by them if they preside over a procedurally admissible rehearing of the matter and are able to take the judgment into account without violating substantive law. A court’s failure to take a Eu ropean Court judgment into account in these circumstances can be challenged as a violation of a combined constitutional protection consisting of, on the one hand, the fundamental right whose area of protection is implicated and, on the other hand, the constitutional state principle. . . . 2. a. . . . the states parties have agreed that, in all legal matters to which they are a party, they will abide by a fi nal judgment of the European Court. It follows from this provision that the European Court’s judgments are binding on the parties to the proceedings and, thus, have limited substantive res judicata. . . . The substantive res judicata in individual application proceedings under Article 34 of the Convention is restricted by the personal, material, and temporal limits of the matter in dispute. . . . The decisions of the European Court in proceedings against other states parties merely give the states that are not involved an occasion to examine their domestic legal systems and, if it appears that an amendment may be necessary, to orient themselves in line with the relevant jurisprudence of the European Court. . . . In this respect, the European Court does not benefit from a provision similar to § 31 (1) of the Federal Constitutional Court Act [hereafter referred to as fcca], which binds all the federal and Land constitutional bodies and all courts and authorities to the decisions of the Federal Constitutional Court. Article 46 (1) of the

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Convention only provides that the state party involved is bound by the fi nal judgment with regard to a specific matter in dispute (res judicata). b. In the question of fact, the European Court pronounces a declaratory judgment. . . . However, there is no judgment of cassation that would directly quash the challenged mea sure of the state party. . . . If it is declared that there has been a violation of the Convention, the fi rst consequence is that the state party may no longer hold the view that its acts were in compliance with the Convention. . . . In principle, the decision also obliges the state party, with regard to the matter in dispute, to restore the state of affairs to one that complies with the Convention. . . . If the violation continues, for example in the case of continued detention in violation of Article 5 of the Convention or an encroachment upon private and family life in violation of Article 8 of the Convention, the state party is under an obligation to end this state of affairs. . . . The state party commits a new violation of the Convention if it fails to terminate or repeats the conduct that has been declared to be a violation. . . . Nevertheless, it should be recognized that the effect of the decision relates only to the res judicata and that the factual and legal position may change before new domestic proceedings, to which the complainant is a party, can commence. d. The legal effect of a decision of the European Court, under the principles of public international law, is directed in the fi rst instance to the state party as such. In principle, the Convention takes a neutral attitude toward the domestic legal system, and, unlike the law of a supranational organization, it is not intended to intervene directly in the domestic legal system. On the domestic level, appropriate Convention provisions in conjunction with the German federal statute consenting to Germany’s membership in the Convention [the Consent Act], and constitutional requirements (Article 20 (3) and Article 59 (2) of the Basic Law in conjunction with Article 19 (4) of the Basic Law) bind all organizations responsible for German public authority to the decisions of the European Court. Th is legal position corresponds to the conception of the Convention as an instrument for the protection and enforcement of par ticu lar human rights. The states parties are obliged to create a domestic instance through which a person affected by a violation of the Convention can secure an “effective remedy” against the relevant state conduct. Th is obligation was integrated into federal law by the Consent Act. On its own, this obligation extends into the domestic structure of the state system and is not restricted to the executive branch, . . . the states parties must guarantee the “effective implementation of any of the Convention provisions.” . . . The German courts also are under a duty to take the decisions of the European Court into account. 3. The binding effect given to the European Court’s decisions depends on the area of competence of the state bodies and the relevant law. Administrative bodies and courts may not free themselves from the constitutional system of competences and the binding effect of statute and law (Article 20 (3) of the Basic Law) by relying on a decision of the European Court. . . . Both a failure to consider a decision of the European Court and the “enforcement” of such a decision in disregard of higher-ranking

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law, might violate fundamental rights in conjunction with the constitutional state principle. . . . If, in concrete application proceedings involving the Federal Republic of Germany, the European Court establishes that there has been a violation of the Convention, and if this is a continuing violation, then the European Court’s decision must be taken into account in the domestic sphere, that is, the responsible authorities or courts must discernibly consider the decision and, if necessary, justify understandably why they nevertheless do not follow the international law interpretation of the relevant domestic norm. . . . b. aa. If the Eu ropean Court has declared a domestic provision to be contrary to the Convention, then this provision may be interpreted in conformity with public international law when applied in practice, or the legislature has the possibility of altering this domestic provision that is incompatible with the Convention. If the violation of the Convention results from the implementation of a specific administrative act, then the authority responsible has the possibility of revoking this act under the provisions of the law of administrative procedure. . . . Administrative practice that is in violation of the Convention can be amended, and courts may establish the duty to do this. bb. But, if it is found that a domestic judicial decision has violated the Convention, then neither the Convention nor the Basic Law imposes an obligation on the domestic courts to conform their judgments with the judgment of the European Court establishing a judicial violation of the Convention. A decision of the European Court does not remove the nonappealability of a domestic decision. . . . Yet, it cannot be concluded from this that the German courts have no duty to take the decisions of the European Court into account. . . . [The Constitutional Court identified several ways domestic German authorities, including courts, might take “account” of the European Court’s decisions. First, as a result of the treaty consent requirement of Article 59 (2), the Convention enjoys the status of federal legislation. Domestic authorities would have to be aware of the European Court’s decisions because they provide the defi nitive interpretation of the Convention and, thus, the defi nitive interpretation of the international norms incorporated into German law via the Consent Act. Second, the Court acknowledged its efforts to harmonize the Basic Law’s fundamental rights and the Convention’s international human rights regime. Harmonization, said the Court, aims for a “joint European development of fundamental rights (gemeineuropäische Grundrechtsentwicklung).” In pursuit of that goal, the Court concluded that some constitutional challenges asserting violations of German fundamental rights also might constitute departures from the harmonized European rights system, which must be understood in light of the European Court’s decisions. The Constitutional Court then ruled that, under certain circumstances, German courts have a duty to “take account of” the European Court’s decisions.]

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II. The challenged decision from the Naumburg Higher Regional Court of 30 June 2004 violates Article 6 of the Basic Law in conjunction with the constitutional state principle. The Higher Regional Court did not take sufficient account of the European Court’s judgment of 26 February 2004 when making its decision, although it was under an obligation to do so. 1. The challenged decision does not reveal whether and to what extent the Higher Regional Court considered the fact that the visitation rights claimed by the complainant are, in principle, protected by Article 6 of the Basic Law. . . . The Higher Regional Court should have considered, in an understandable way, how Article 6 of the Basic Law could have been interpreted in a manner that complied with the Federal Republic’s obligations under international law. Here it is of central importance that the Federal Republic of Germany’s violation of Article 8 of the Convention, established by the European Court, is a continuing violation from the perspective of the Convention. Th is is the case because the complainant still has no access to his son. . . . 2. The Higher Regional Court assumes, in a manner that is not acceptable under constitutional law, that a judgment of the European Court binds only the Federal Republic of Germany as a subject of public international law but that it does not bind German courts in their internal administration of domestic law. To the extent set out here . . . , all the state bodies of the Federal Republic of Germany are bound within their jurisdiction by the Convention and the protocols that have entered into force with respect to Germany. They must take into account the Convention’s guarantees and the European Court’s case law when interpreting fundamental rights and constitutional guarantees.

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In Görgülü the Constitutional Court identified a range of possible impacts the European Court’s decisions might have in Germany. First, in cases in which the European Court fi nds Germany to be in violation of the Convention, the Constitutional Court accepted that international judgments obliged German authorities to end ongoing violations and to “create a situation of compliance with the Convention.” Th is obligation, however, is meant to be satisfied within the authority assigned to state actors by the relevant domestic law. Second, the Constitutional Court granted that a European Court judgment would be the controlling rule of decision in any proper, domestic rehearing of the case that originally gave rise to the human rights complaint. But out of concern for the integrity of Germany’s constitutional sovereignty and in order to promote legal certainty and fi nality, the Constitutional Court rejected the notion that a European Court judgment fi nding Germany in violation of the Convention obliged German courts to automatically reopen domestic proceedings in order to correct the international law violation. Th is conclusion underscored the Constitutional Court’s dualist approach to the incorporation of treaty commitments because it narrowed the force of the Convention (and its interpretation by the European Court) to Germany’s external, inter se duty to the states party to the Convention. In

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fi nding that the European Court’s judgments have no direct force in German law, the Constitutional Court noted that they do not automatically quash domestic acts. The Constitutional Court explained that this limited, dualist significance of the European Court’s judgments relates only to the parties to the dispute. Distinguishing these decisions from the precedential force the fcca gives to its decisions, the Constitutional Court explained that Article 46 (1) of the Convention only requires states party to the Convention to “abide by the fi nal judgment of the Court in any case to which they are parties.” The limited role the Constitutional Court assigned to the European Court’s judgments stirred discontent. For some constitutional law scholars and proponents of European integration, the Constitutional Court’s conclusion that the ordinary courts only need to “take account of ” the European Court’s judgments was a grave disappointment.31 Görgülü’s critics would have preferred that the Court had used terms like “abide by,” “obey,” or “implement.”32 To its credit, however, the Court found a violation of this “softer” duty in Görgülü, clearly signaling its intent to meaningfully police this aspect of Germany’s constitutional openness to international law. The Court has not shied away from enforcing this duty (Berücksichtigungspfl icht) in the years since.33 Some see the Constitutional Court’s cautious attitude toward the European Court of Human Rights—insisting that its decisions be considered without making them directly enforceable by German courts—as having created the possibility (or necessity) for dialogue between the two tribunals.34 Th is was particularly on display as the courts traded judgments, over a span of several years, regarding Germany’s preventive detention policy. Pursuant to German criminal law, preventive detention (Sicherungsverwahrung) permits executive branch authorities to commit especially dangerous criminals to extended terms of detention upon the completion of their prison sentences. In 2004 the Federal Constitutional Court sustained the retroactive imposition of preventive detention.35 The European Court, however, saw at least two violations of the European Convention in the policy.36 First, the European Court found the retroactive application of preventive detention to be a violation of Article 7 (1) of the European Convention.37 Second, with an eye toward the practical manner in which German authorities implemented preventive detention, the European Court thought the policy amounted to nothing more than an a extrajudicial extension of the inmate’s criminal punishment and, thus, a violation of Article 5 (1) [a] of the European Convention.38 When faced with the inmate’s request for immediate release from preventive detention on the basis of the European Court’s judgment, the Constitutional Court demurred. Because Görgülü established that domestic constitutional law has higher priority than the law of the European human rights regime, the Constitutional Court said it would not order the detainee’s release until a closer examination of the case confirmed that, by doing so, it was not jeopardizing higher-order basic rights protections under the Basic Law.39 Faced with these confl icting signals, it is not surprising that the German ordinary courts began to produce divergent results in challenges to preventive detention,

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with some striving to “take account” of the European Court’s judgment and others defiantly refusing to depart from the “will of the legislature.” Legislative reform of the subject that entered into force in early January 2011 could do nothing to resolve the cases of scores of dangerous former inmates still in detention under the superseded regime. Challenges lodged by some of these detainees led to yet another decision of the European Court in January 2011, which this time found the retrospective imposition of preventive detention under the German law to constitute a violation of Article 7 of the European Convention.40 Just months later, in May 2011, the Constitutional Court handed down a judgment conclusively fi nding the preventive detention regime to be unconstitutional.41 The substantive basic rights facets of the Second Senate’s decision are discussed alongside our consideration of other liberty protections in Chapter 7. Regarding the Constitutional Court’s “open state” jurisprudence, it is only necessary to note that, for the most part, the Court reaffi rmed the precarious balance it sought to establish in Görgülü. The Constitutional Court was at pains to emphasize that the German constitutional order retained its priority over European human rights law, even as the Court acknowledged a pan-European harmonization of basic rights guarantees. In the German constitutional context, the Court explained that harmonization—not to mention the substantive force of European human rights law—would have to fi nd its expression in the form of interpretations of the controlling Basic Law provisions that take account of and are open to international law. Th is approach is another example of the Constitutional Court’s perhaps valiant attempt to square the Basic Law’s twin commitments to international integration and an enduring German constitutional sovereignty. In each of the spheres in which constitutional law encounters international law—constituting the state, the domestic effect of substantive international norms (whether treaty or custom), and the domestic effect given to judgments of international tribunals—the result of the Constitutional Court’s effort has been a secure but open national constitutional order.

basic law and eu rope an law Animated by a desire to overcome the pariah status Germany had earned with its repeated acts of hostility in the twentieth century, the Basic Law’s framers imagined a form of international integration that would go far beyond traditional international law. The Basic Law’s preamble envisions Germany as an “equal partner in a united Europe.” Th is vision was coupled with a constitutional mechanism for achieving deeper European unity. Article 24 (1) of the Basic Law provides that “[t]he Federation may by law transfer sovereign powers to international organizations.” The transfer of sovereign powers to a supranational entity like the Eu ropean Community and the Eu ropean Union involves an altogether different—and more complete—openness, necessitating even greater vigilance from the Court in its effort to preserve the sovereignty secured by the Basic Law. In resolving the distinct

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problems raised by the tension between the supranational and the domestic exercise of authority, the Court has guided Germany’s deep integration into European governance while, at the same time, repeatedly insisting on constitutional limits to that process.42 Solange I. Two factors featured prominently in the Constitutional Court’s Solange I Case (1974),43 in which it imposed constitutional limits on Germany’s integration into the European system. First, the Court expressed concern about the European project’s untested novelty and institutional immaturity, both of which were manifested by a “democratic deficit” in European governance. It is common now to refer to the European Union as a completely new framework for governance.44 Europe is neither a nation-state nor a traditional international organization. Thus, in Solange I, the Constitutional Court reaffi rmed its earlier conclusion that the Eu ropean Community possesses an “independent system of law flowing from an autonomous legal source . . . [that is] a ‘sui generis community in the process of progressive integration.’ ” 45 On this basis it might not be surprising that the Constitutional Court was particularly concerned with Eu rope’s early-stage development and its prominent lack of a “democratically legitimate parliament directly elected by general suff rage.” Second, the Court’s reticence in Solange I was justified by the high priority the Basic Law sets on protecting and promoting human dignity. The Constitutional Court was determined to ensure that the exercise of sovereign German power respects human dignity and other basic rights, even if the sovereign power was one that had been transferred to a supranational entity. In Solange I the Court noted that the European Community “still lacks . . . a codified cata logue of fundamental rights, the substance of which is reliably and unambiguously fi xed for the future in the same way as the substance of the Basic Law. . . .”46 Five justices of the Court’s Second Senate concluded that Germany’s transfer of sovereign power to the European Community knows some outer limit “so long as” (solange) the European system lacks adequate democratic legitimacy and fails to more thoroughly protect fundamental rights. In par ticu lar, the Court found that the German Constitution has precedence when secondary European Community law confl icts with fundamental rights secured by the Basic Law. Th is is true, said the Court, despite the fact that Community law emanates from a wholly independent, external political authority that is not responsible to the Basic Law. It is also true, the Court continued, despite the fact that Community law has priority over domestic law.47 The Court articulated a narrow, sovereigntist vision of constitutional openness in the context of European integration: Article 24 of the Basic Law deals with the transfer of sovereign power to interstate institutions. Th is cannot be taken literally. Like every constitutional provision of a similarly fundamental nature, Article 24 of the Basic Law must be understood and construed in the overall context of the whole Basic Law. That is, it does not open the

Jur isprudence of the Open State 327 way to amending the basic structure of the Basic Law, which forms the basis of its identity, without a formal amendment to the Basic Law.48

The limits on constitutional openness identified by the Court in Solange I had the incidental effect of empowering the Constitutional Court, as guardian of the constitution, to enforce the newly articulated restrictions on European integration. The responsibility undertaken by the Constitutional Court in Solange I opened an amicable rivalry—some prefer to call it a “cooperative relationship”—between the Constitutional Court and the European Court of Justice.49 In the litigation leading to the Constitutional Court’s Solange I decision the European Court of Justice already had issued a preliminary ruling confi rming the legality of the challenged Community regulations. The Constitutional Court justified its decision to pursue its own review of the matter, pursuant to a concrete judicial review “referral” from an administrative court, by noting that the “European Court of Justice cannot decide, with binding effect, whether a rule of Community law is compatible with the Basic Law.”50 The interaction between these two respected European courts, sometimes rather tense, is a central feature of the Constitutional Court’s European jurisprudence. Europe took a dynamic turn in the years following the Constitutional Court’s Solange I decision. The Communities continued to add new members. And efforts to enhance the common market were achieved with the Single European Act, which was announced in 1986 and entered into force in 1987. The European Parliament was given a greater role in Community lawmaking. The Community acquired new competences. The European judicial infrastructure was expanded and refi ned. The time was ripe for the Constitutional Court to reassess Europe’s democratic integrity and respect for fundamental rights, the bases for the Court’s earlier reservations about the extent of Germany’s European integration. 6.4 Solange II Case (1986) 73 BVerfGE 339 [The complainant was in the business of importing mushrooms from nonEuropean countries, but German regulators denied it an import license on the basis of a European Community regulation. The complainant challenged this decision in the German administrative courts. In response to a reference from the Federal Administrative Court, the European Court of Justice upheld the legality of the relevant European regulation. Relying on this opinion, the Federal Administrative Court enforced the European regulation against the complainant and dismissed the complainant’s request to have the constitutionality of the European Court’s opinion referred to the Federal Constitutional Court under its concrete judicial review jurisdiction (Article 100 (1) of the Basic Law). The complainant then fi led a constitutional complaint arguing that its fundamental rights to property and occupational freedom, among others, were implicated by the European Court of Justice’s interpretation of the European regulation.

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Recalling the promise of Solange I, the complainant believed that such a confl ict—between fundamental rights guaranteed by the Basic Law and secondary Community law—necessitated the Constitutional Court’s review. The Federal Administrative Court, the complainant asserted, violated constitutional rights to a proper judicial process by relying on the European Court’s opinion and refusing to refer the matter to the Federal Constitutional Court. Although not without some reservations, the Constitutional Court found no constitutional need to intervene.]

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Judgment of the Second Senate. . . . [The Court began its judgment by holding, for the fi rst time, that the European Court of Justice is a statutory court—“a sovereign judicial organ established by the Community Treaties”—and, thus, a lawful court within the meaning of Article 100 (1). “The European Court’s procedural rules satisfy the due process requirements of a state subject to the constitutional state principle,” declared the Constitutional Court. These rules guarantee the right not only to be heard by a lawful judge but also secure other important due process rights. Then the Court turned to the question of the necessity of its review of European Court judgments.] B. The constitutional complaint is admissible but not well-founded. . . . II. 1. . . . a. Article 24 (1) of the Basic Law makes it possible to open up the legal system of the Federal Republic of Germany in such a way that the Federal Republic’s exclusive claim to control in its sphere of sovereignty can be withdrawn to make way for the direct validity and application of a law from another source. It is true that Article 24 (1) of the Basic Law does not provide for the direct validity and application of the law established by an international institution. Article 24 (1) does not directly regulate the relationship between such law and domestic law (for example, the question of international law’s priority). Internal validity and application, as well as the possible internal priority to be enjoyed by international treaties (including those of the sort at issue here), are concerns not directly resolved by customary international law. Current international law does not contain a customary rule . . . regarding states’ obligation to incorporate treaties into their domestic law and to accord them priority over national law. Article 24 (1), however, makes it possible for treaties that transfer sovereign power to international institutions—and the law established by those institutions—to be accorded priority over the Federal Republic’s national law. Th is is constitutional if the prioritization of the international law is achieved by the appropriate domestic mechanism for incorporation. That is what took place in the case of the European Community Treaties. It is also true for law originating with Community institutions. The Acts of Accession to the Treaties, promulgated in compliance with Articles 24 (1) and 59 (2) [1] of the Basic Law, adequately achieved this. The application-of-law instruction in the Act of Accession, as well as the European Eco-

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nomic Community Treaty, give Community regulations immediate validity in the Federal Republic and priority over national law. b. The power conferred by Article 24 (1) of the Basic Law, however, is not without limits under constitutional law. The provision does not confer the authority to surrender, by way of ceding sovereign powers to international institutions, the identity of the prevailing constitutional order of the Federal Republic. Th is identity consists of the Basic Law’s framework, that is, its very structure. Th is limit applies in par ticular to legislative instruments of the international institution, which, perhaps as a result of a corresponding interpretation or development of the underlying treaty law, would undermine essential, structural parts of the Basic Law. The constitution’s essence, which cannot be disposed of by an Article 24 transfer of sovereign power, includes the basic framework of the constitutional order in force and the legal principles underlying the Basic Law’s fundamental rights guarantees. Subject to some conditions, Article 24 (1) of the Basic Law permits these legal principles to be guaranteed according to their context. If sovereign power is transferred to an international institution pursuant to Article 24 (1), and if that international institution then has the power to encroach upon the essential content of the fundamental rights recognized by the Basic Law, then it is necessary that the international institution ensure the substance and effectiveness of those rights in a form and scope essentially similar to the unconditional protection they enjoy under the Basic Law. . . . c. Th is Court explained in its judgment of 29 May 1974 [Solange I Case] that Community law and institutions—including the standard of fundamental rights under Community law and generally binding within the European Communities—did not yet show the level of legal development that would permit the Court to conclude that Community acts would satisfy the fundamental rights standards of the Basic Law. For this reason the Court concluded that it could not be certain that the limits imposed by Article 24 (1) of the Basic Law on the application of derived Community law within the Federal Republic would be respected. The Court reached these conclusions on the basis of the level of integration that had been achieved at that time and without prejudice to possible modifications. For example, the Court said that the Community still lacked a parliament legitimized by direct democratic means, established by general suff rage, and possessing legislative authority that would make the Community’s law making institutions fully politically responsible. In par ticu lar, the Court noted that the Community still lacked a codified cata logue of fundamental rights. The Court also explained that the European Court of Justice’s jurisprudence, as it then stood, did not by itself guarantee the necessary legal certainty. To the degree that the necessary legal certainty was not obtained in the course of subsequent integration, the reservation the Court derived from Article 24 remained in force. The Court held that, so long as [solange] the integration process had not progressed adequately, the Federal Constitutional Court would recognize as admissible some constitutional challenges to European Community law and its interpretation by the European Court of Justice. The Court said it would continue to exercise this jurisdiction if Community law lacked a cata logue of fundamental rights . . . adequately comparable with the

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cata logue of fundamental rights contained in the Basic law, . . . . The Constitutional Court’s concrete judicial review would be appropriate if the ordinary German court concluded that the relevant rule of Community law, as interpreted by the European Court of Justice, should be inapplicable because and insofar as it confl icts with one of the fundamental rights in the Basic Law. . . . d. A measure of protection of fundamental rights has been achieved within the sovereign jurisdiction of the European Communities that, in its conception, substance, and manner of implementation, is essentially comparable with the standards of fundamental rights secured by the Basic Law. All the main institutions of the Community have since acknowledged in a legally significant manner that, in the exercise of their powers and the pursuit of the objectives of the Community, they will be guided as a legal duty by respect for fundamental rights. This commitment would be informed, in par ticu lar, by the fundamental rights protections guaranteed by the constitutions of the member states and by the European Convention on Human Rights. The standard of fundamental rights that has been achieved under Community law is adequately consolidated and is not merely transitory in nature. aa. In the meantime this standard of fundamental rights particularly has been formulated in content, consolidated, and adequately guaranteed through the decisions of the European Court of Justice. e. When compared with the standard of fundamental rights secured by the Basic Law, it may be that the rights guarantees established by the decisions of the European Court of Justice still contain gaps. Th is is the natural result of the fact that these rights guarantees have been developed on a case-by-case basis and may not have been the object of an individual judgment delivered by the European Court of Justice. Th is might include specific legal principles recognized by the Basic Law. It also might include the specific nature, content, or extent of a fundamental right. What is decisive, however, is the European Court’s attitude toward the Community’s fundamental rights obligations and its attitude toward the incorporation of fundamental rights in Community law (giving consideration to the constitutions of member states and the European Convention on Human Rights). It also is decisive that the protection of fundamental rights, in the meantime, has achieved practical significance in the European Court’s application of Community law. f. In view of these developments it must be held that, so long as [solange] the European Communities generally ensure effective protection of fundamental rights against the sovereign powers of the Communities, the Federal Constitutional Court no longer will exercise its jurisdiction to decide on the constitutionality of secondary Community law that has served as the legal basis for the acts of German courts or authorities within the sovereign jurisdiction of the Federal Republic of Germany. Concrete judicial review references, fi led with the Constitutional Court under Article 100 (1) and seeking a constitutional assessment of Eu ropean law, will be inadmissible. Th is will be the case in par tic u lar with respect to Eu ropean law interpreted in conformity with Eu ropean Court jurisprudence that provides fundamental rights protections that are substantially similar to those unconditionally se-

Jur isprudence of the Open State 331

cured by the Basic Law and that generally safeguard the essential content of fundamental rights, . . . III. Th is judgment has been reached unanimously.

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European Democracy and Fundamental Rights. In Solange II the Constitutional Court found that improvements in the democratic character of the Communities’ policy making and in the Communities’ protection of fundamental rights justified the Court’s retreat from its frontline patrols along the border between Eu rope’s supranational authority and Germany’s constitutional identity. While the Court clearly did not surrender its right to monitor the Basic Law’s openness to supranational power—jurisdiction it secured for itself in Solange I—it was satisfied that it would not have to exercise its review “so long as” (solange) Europe’s enhanced democracy and protection of rights remained in force. But what was the nature of these advances? As regards European democracy, in the dozen years between the Court’s 1974 decision in Solange I and its 1986 decision in Solange II, the Court chiefly could cite the fi rst direct election of the members of the European Parliament in 1979. In the Declaration announcing these elections, the European Council proclaimed that “the election of the Members of the Assembly . . . is an event of outstanding importance for the future of the European Communities and a vivid demonstration of the ideals of democracy shared by the people within them.”51 Despite this enthusiasm, at the time of the Constitutional Court’s Solange II decision, the European Parliament played no affi rmative role in enacting secondary Community law. The Commission of the European Community proposed legislation and the Council of the European Community had the exclusive power to enact law. For much of its history the European Parliament had been a mere consultative organ. The Single European Act of 1986 gave the European Parliament “cooperation” authority in the European legislative process. Th is permitted the European Parliament to object to legislation. But the Council still could override the parliamentary objection with a unanimous decision. Later treaty developments that granted the European Parliament “codecision” authority, including a limited right to veto legislation, could not dispel the view that other, less popularly accountable institutions dominated the European legislative process. Th is “democratic deficit,” notwithstanding the Constitutional Court’s sanguine assessment in Solange II, continues to weigh heavily on European integration. European protection of fundamental rights, at the time of Solange II, also was not as robust as the Constitutional Court was determined to believe. The treaties establishing the Communities did not have a “Bill of Rights.” The freedoms the treaties addressed, especially in the European Economic Community’s Treaty of Rome, were “largely focused on economic aims and objectives with little reference to other values.”52 They included the free movement of goods, the free movement of workers, the freedom to establish and conduct economic activity, the freedom to provide ser vices, and the free movement of capital.53 In 1986 the Constitutional Court still could not

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point to a “codified cata logue of European Community fundamental rights.”54 Instead, as the basis for its optimism in Solange II, the Court relied on the emerging jurisprudence of the European Court of Justice, which, as demonstrated by its decision in Nold v. Commission (1974), had grudgingly warmed to the idea that the Community’s core economic freedoms could not be conceptualized apart from other classical liberties.55 But this could not have been the reassurance the Constitutional Court was looking for in Solange I. First, despite the European Court’s long-standing insistence that fundamental rights derive from the Community’s general principles, it still was obliged to cite non-Community law (member states’ constitutional law and the European Convention on Human Rights) for a fuller picture of the relevant protections. Instead, it recognized their bases outside Community law and assigned them a mere “inspirational” status. Second, in Nold the European Court of Justice gave the fundamental right to property a narrow interpretation, emphasizing instead the right’s “limitations laid down in accordance with the public interest . . . limits justified by the overall objectives pursued by the Community.”56 What explains the Court’s mollifying stance in Solange II? Above all, it is necessary to remember that the Court’s “open state” jurisprudence is but one front in the deeper, more fundamental German debate over national sovereignty and European integration.57 The caution exercised by the Constitutional Court in Solange I was seen by many German elites as a rejection of postwar Germany’s foundational commitment to what the Basic Law itself called a “united Europe.”58 The pedigree of this consensus is traceable not only to its abstract expression in the Basic Law but to the political vision of the Federal Republic’s founders and fi rst generation of political leaders—on both ends of the ideological spectrum.59 But that official dogma, perhaps less strong today than in earlier eras, elides the fact that many well-meaning Germans have been less enthusiastic about the European project’s erosion of German national sovereignty. Solange I was a startling reminder of the existence of this persistent, although usually muted, skepticism. Indeed, the whole of the Constitutional Court’s European jurisprudence must be seen as thrusts and parries in this heated, ongoing debate. Th is division already was apparent in Solange I. The sovereigntists’ ascendance in that case was achieved by a 5–3 vote—the barest of majorities on the Court—and over the dissenting opinion of the minority, one of the fi rst dissents ever lodged against a decision of the Court. Viewed in legal realist terms, Solange II might better be understood as the expected rejoinder to Solange I from those favoring deeper European integration, a riposte made possible by a complete turnover of the Second Senate’s membership. From Community to Union. The German debate over national sovereignty and European integration—positions largely advanced through arguments over how to interpret the Basic Law’s openness to the transfer of sovereign power to Europe—was fanned by Europe’s evolution from a “community” into an “ever closer union among the peoples of Europe.” Th is was the stated aim of the Treaty on European Union (teu), signed at Maastricht, the Netherlands, on 7 February 1992. Under the Maas-

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tricht Treaty, the member states would weld themselves into a tighter economic and political union. Deeper integration, through a process of economic and monetary union, would culminate in a single European currency superintended by a European Central Bank. Political union, although not an express goal, would be facilitated through several measures every bit as dramatic as the promised common currency. First, the member states agreed to extensive cooperation in two “intergovernmental pillars.” Th rough the familiar but recalibrated European institutions—Parliament, Commission, and Council—the European Union would pursue a common foreign and security policy and common policies in the areas of justice and home affairs. Second, the concept of European citizenship was established, which derives from, supplements, but does not replace national citizenship. Th is was supported by a number of express European rights, including freedom of movement and residence within the Union, and a Union-wide right to vote and stand for public office in local elections. These provisions “revolutionized the scope of rights available to Member State nationals.”60 In sum, under the umbrella of the European Union, the Maastricht Treaty called for a further significant transfer of states’ governing power and extensive intergovernmental cooperation, involving a breathtaking range of subjects traditionally understood to be at the core of a state’s sovereign power. The Bundestag and Bundesrat ratified Germany’s commitment to the Maastricht Treaty.61 Simultaneously, in order to remove all constitutional doubts about the treaty, they also amended several articles of the Basic Law. The centerpiece of these amendments was a new Article 23, the so-called Europe Article,62 which supports the goal of European unity, explicitly authorizes the federation’s transfer of sovereign power to the European Union, and enhances the Bundestag’s right to participate in the national decision-making process concerned with European matters. Beyond this, Article 23 also requires the federation to consider the Bundesrat’s opinion on European policy when the vital interests of the Länder are affected.63 Article 23 also establishes that any transfer of sovereign power to the European Union, resulting in any change in the system and principles of government established by the Basic Law, must conform to paragraphs 2 and 3 of Article 79, respectively requiring a formal amendment to the Basic Law (and concomitant Bundestag approval) and barring any infringement of its unalterable principles. Th is constitutional limit on European integration, and the principle it secures, has come to be known as the “political question” on enhanced European integration.64 As the Constitutional Court has interpreted this doctrine, it limits Germany’s participation in the European project to nothing more than the European integration provided in the principal treaties that have benefited from parliamentary ratification. As we will see, expansion of Eu rope’s competences will be subject to challenges before the Constitutional Court to ensure its conformity with this principle. Ultimately, in the Lisbon Treaty Case (2009; no. 6.6), the Constitutional Court invoked this doctrine as the basis for its insistence that Eu rope be regarded as an association of sovereign states (Staatenverbund) and not an incipient federal state (Staatsverband or Bundesstaat).65

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Article 24 (1) had been the main constitutional driver of Germany’s European integration. The newly minted, more detailed Article 23 would now shoulder that responsibility. But a new paragraph (1a) was added to Article 24 in 1992. Th is new provision authorized the Länder to transfer, with the federal government’s consent, state functions to “transnational institutions in neighboring regions.” Other teu-related amendments to the Basic Law included provisions granting nationals of European Union member states the right to vote in local elections (Article 28 (1)), authorizing the Bundestag and Bundesrat to establish European Union committees capable of making decisions in the name of their parent bodies (Articles 45 and 52 (3a)), and empowering Germany’s Federal Bank to transfer its duties and functions to a European Central Bank (Article 88). The Maastricht Treaty did not settle the fundamental political and jurisprudential debate over the proper extent of Germany’s integration into Europe, despite the expanded and more detailed commitment to constitutional openness achieved by Article 23 in support of the Maastricht Treaty. The treaty, its ratification by Parliament, and the attending constitutional amendments, provoked an immediate challenge in the form of constitutional complaints brought by a German who had worked as a civil servant at the European Commission and by German members of the Green Party in the European Parliament. Suing as private citizens, the complainants claimed that the surrender of national authority to the European Union would deprive them of certain fundamental rights and violate the democratic state principle secured by Articles 21 (1) (ensuring a role for political parties in the formation of public opinion) and 38 (1) (securing the right to vote in parliamentary elections).66 They also alleged that the transfer of sovereign national powers to the European Union harmed Germany’s constitutional identity in contravention of Article 79 (3), which makes the principles of human dignity, federalism, democracy, popu lar sovereignty, the Sozialstaat and the Rechtstaat eternally unamendable. As for national sovereignty, the complainants argued that the Basic Law permits the transfer of powers to intergovernmental organizations, not to a superstate-like entity such as the European Union. The complainants charged that the provisions in the Maastricht Treaty for a single currency, common citizenship, and uniform social policies—not to mention the Union’s alleged capacity to determine its own competence in certain fields (what is known as competence-competence [KompetenzKompetenz])—virtually transformed the Eu ropean Union into a supranational federal state capable of eroding Germany’s constitutional order. On the matter of democracy, they argued that the transfer of decision-making powers to Union bureaucrats—compounded by the Eu ropean Parliament’s limited authority—ran afoul of the minimum requirements of democratic legitimacy. They also maintained that federalism was a victim of the Maastricht Treaty, which diminished the rights and status of the Länder in the German governmental system. In the Maastricht Treaty Case, the battle between sovereigntism and cosmopolitanism—cast in the distinct mold of the European Union—again was joined before the Constitutional Court.67

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6.5 Maastricht Treaty Case (1993) 89 BVerfGE 155 [The Court dismissed the fundamental rights complaints as inadmissible. In keeping with its decision in Solange II, the Court refused to take jurisdiction over these challenges because it remained satisfied that the European Court of Justice adequately ensured the protection of fundamental rights. Only the challenges based on the democratic state principle and Article 38 (1) received a full review on the merits from the Court. On this question the Court ruled that the Maastricht Treaty’s ratification, and the accompanying constitutional amendments, had not violated the Basic Law. Yet, in reaching this conclusion, the Court addressed critical issues related to the meaning of democracy, separation of powers, federalism, and national sovereignty. In the landmark portions of the ruling, the Court described the absolute limits of further European integration and announced its intent to ensure that Europe exercised only those sovereign powers democratically and constitutionally assigned to it by the member states. These conclusions advanced the sovereigntist view that Europe is a Staatenverbund and not a Staatsverband or Bundesstaat.]

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Judgment of the Second Senate. . . . C. II. . . . As already noted, the Maastricht Treaty establishes an inter-governmental community for the creation of an ever-closer union among the peoples of Europe. These peoples are organized at the level of the state and not as a state based on the people of one European nation. In view of this fact, the question raised by the fi rst complainant as to whether the Basic Law allows or excludes German membership in a European state does not arise. Only the act of accession to German membership in a federation of states need be examined here. 1. a. The member states have established the European Union in order to perform some of their duties and to exercise some of their sovereignty jointly. In the resolution they passed at Edinburgh on 11–12 December 1992, the heads of state who are united in the European Council resolved—in the context of the Maastricht Treaty—of their own free will and in accordance with existing treaties, to exercise some of their powers jointly. Accordingly, the Maastricht Treaty takes account of the independence and sovereignty of the member states in that it imposes an obligation upon the European Union to respect the national identities of its member states and grants the European Union and the European Communities specific powers and responsibilities but only on the basis of the principle of limited individual powers. By so doing, it has elevated the principle of subsidiarity to the level of a binding legal principle for the European Union and the European Community. The term “European Union” may indeed suggest that the direction ultimately to be taken by the process of European integration after further amendments to the

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Treaty is one that will lead toward further integration. But, in fact, the actual intention expressed does not confi rm this. In any case, there is no intention at the moment to establish a “United States of Europe” comparable in structure to the United States of America. . . . Therefore, even after the Maastricht Treaty has entered into force, the Federal Republic of Germany remains a member of an intergovernmental community, the authority of which is derived from the member states; this authority has binding effects within Germany’s sovereign sphere only when a German decree governing application of the law [Rechtsanwendungsbefehl] is issued in respect to it. Germany is one of the “high contracting parties” that have given, as the reason for their commitment to the Maastricht Treaty—a treaty concluded “for an unlimited period” (Article Q )—their desire to be members of the Eu ropean Union for a lengthy period. Such membership may, however, be terminated by means of appropriate legislation. . . . Germany thus retains the quality of a sovereign state in its own right as well as the status of sovereign equality with other states within the meaning of Article 2 (1) of the United Nations Charter of 26 June 1945. b. The required influence of the Bundestag is guaranteed in the fi rst instance by the fact that Article 23 (1) of the Basic Law makes it necessary for an act to be passed before Germany may become a member of the European Union, or before such membership may develop further by an amendment to the basic treaty instruments or an extension of the European Union’s powers; if the conditions shown in sentence three are fulfi lled, an act of this nature requires the affi rmative vote for which Article 79 (2) of the Basic Law provides. Under the terms of Article 23 (2) and (3) of the Basic Law and the terms of the law of 12 March 1993, dealing with the cooperation of the Bundestag and the federal government in matters pertaining to the European Union—adopted for the purpose of its implementation—the Bundestag contributes to the process of forming the federal government’s political will in such matters. These interrelated powers are to be exercised by the federal government and the Bundestag in a spirit of institutional loyalty [Organtreue]. Finally, the Bundestag also influences the federal government’s European policy, because the federal government is responsible to Parliament under Articles 63 and 67 of the Basic Law. Th is function of control and creation, which the Bundestag as a matter of course performs in public sessions, brings the public and the political parties into contact with the federal government’s European policy, and therefore becomes a factor in the decision that citizens have to make on how to cast their votes. . . . By signing the Maastricht Treaty, the governments of the member states have also emphasized the substantial importance attached to national parliaments within the European Union. Their statement on the role of national parliaments in the European Union emphasizes the need for the increased involvement of the parliaments of the member states in the activities of the European Union, and imposes an obligation upon these governments to inform their respective parliaments in due time of proposals made by the Commission, so that the parliaments may examine such proposals.

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C. II. 2. a. . . . The fi rst paragraph of the new principle contained in Article 3b of the ec Treaty also states that the Community shall act only within the limit of the powers conferred upon it by the Treaty and the objectives assigned to it. The regulations on the principle of subsidiarity (Article 3b (2) of the ec Treaty) and on the principle of proportionality (Article 3b (3) of the ec Treaty) that follow thereafter are intended to defi ne the limits of the Community’s powers. The Eu ropean Council, which met in Edinburgh on 11–12 December 1992, stressed, in its overall concept for the application of the principle of subsidiarity, that Article 3 (4) of the ec Treaty imposes strict limits upon the activities of the Community. It said that the requirement for powers to be assigned by means of treaties has always been a fundamental element of Community law, and that, while the allocation of powers to the individual states is the general rule, the allocation of powers to the Community is the exception. . . . c. . . . The subsidiarity principle, therefore, does not establish any powers for the European Community; in fact it limits the implementation of powers that have already been granted elsewhere. Under Article B (2) of the Union Treaty the objectives of the Union can be achieved only as provided by the treaty and in accordance with the conditions and timetable set out in it, at the same time regard is to be had to the subsidiarity principle. Accordingly, Article 3b (1) of the ec Treaty specifies as a primary condition for action by the Community that a power has been conferred upon it by the Treaty, and its exercise is then subject to the subsidiarity principle by virtue of Article 3b (2). That means that if there is a power under the treaty to take action, then the subsidiarity principle determines whether and how the Community may act. If the Community legislature wishes to exercise a power conferred upon it to pass a law, it must fi rst make sure (and also, by virtue of Article 190 of the ec Treaty, show plausibly) that the objectives of the measure in question could not be sufficiently achieved by the member states at the national level. Th is fi nding must then justify the further conclusion that, in view of the scale and effects of the measure, the objectives can be better achieved at the Community level. Th rough this principle of subsidiarity, adherence to which is a matter for the European Court to scrutinize, the national identities of the member states are to be preserved and their powers to be retained. How far the subsidiarity principle will counteract an erosion of the jurisdictions of the member states, and therefore an exhaustion of the functions and powers of the Bundestag, depends to an important extent (apart from the case law of the European Court relating to the subsidiarity principle) on the practice of the council as the Community’s real legislative body. It is there that the federal government has to assert its influence in favor of a strict treatment of Article 3b (2) of the ec Treaty and so fulfi ll the constitutional duty imposed on it by Article 23 (1) of the Basic Law. The Bundestag for its part has the opportunity, by using its right of cooperation in the formation of Germany’s internal political intentions established by Article 23 (3) of the Basic Law, to have an effect on the Council’s practices and to exercise an influence on them within the terms of the subsidiarity

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principle. In so doing the Bundestag will also be performing a constitutional duty incumbent upon it under Article 23 (1). In addition, it is to be expected that the Bundesrat, too, will pay par ticu lar attention to the subsidiarity principle. D. . . . Any further development of the European Union must conform to the conceptual framework set out above. In amending the Basic Law, the Bundestag took this into account. The new Article 23 inserted into the Basic Law expressly mentions the [future] development of the European Union and subjects it to the democratic and constitutional state principles, the principles of the social and federal state, and the principle of subsidiarity. What is decisive, therefore, from the vantage point of both the treaties and the Basic Law, is that the democratic foundation of the Union will progress in tandem with the process of integration. By the same token, it is expected that a living democracy will be maintained in the member states as integration proceeds.

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Maastricht’s Meaning. In its result, the Court’s Maastricht Treaty decision was an important victory for European integration. It allowed Germany to participate in the enhanced European Community and the new European Union. There had been some concern that the Court might fundamentally object to Germany’s ratification of the Maastricht Treaty, causing this leap toward closer European unity to stumble. After all, it was well known that Justice Paul Kirchhof, the Second Senate’s rapporteur for the case, held strong sovereigntist views.68 Largely attributable to his influence, despite the general holding of the case, Maastricht was a significantly qualified victory for European integration. For example, even the Court’s adherence to the relatively pro-European Solange II doctrine—which it used to justify the dismissal of the rights-based complaints—had a sharp sovereigntist edge. In Solange II the Court ruled that it could review secondary European law to ensure its conformity with the Basic Law’s fundamental rights regime. In Maastricht the Court saw no reason to revisit this rule despite the fact that the new treaty, at last, formally referred to Europe’s commitment to protecting fundamental rights.69 Furthermore, the right of review— which the Court agreed to leave dormant in Solange II—was meant to be exercised against acts of German institutions carry ing secondary European law into force. Yet, in Maastricht, the Court extended its (still-dormant) authority to include a review of the rights integrity of independent acts of the European institutions, including the European Court of Justice. Th is was necessary, the Court explained, because of the dramatic expansion of European power under the Maastricht Treaty. The more significant sovereigntist elements of the Maastricht Treaty Case involved the democratic state principle, a component of Germany’s constitutional identity that ensures that all state power derives from the will of the people. Th is relates to Article 38 (1) of the Basic Law, in par ticu lar, because that provision guarantees Germany’s representative democracy via “general, direct, free, equal and secret elections.” Relying on the democratic state principle, the Court established two new lines of doctrine in the Maastricht Treaty Case. First, the Court ruled that it would enforce an absolute limit on the amount of sovereign power Germany can transfer to Europe.

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Th is was necessary, the Court explained, because European democracy remained inadequate and could not satisfy the Basic Law’s guarantee of popular sovereignty. Describing this part of the Court’s decision, Steve Boom said, “Should the Bundestag transfer too many of its competences, too much state power would be legitimated only indirectly; as a result, the [democratic state principle] would be violated.”70 Second, the Court ruled that it would closely monitor Europe’s exercise of the sovereign powers it had acquired from the member states to ensure that it did not independently expand its range of competences. Th is concern implicated the democratic state principle because Europe possesses only those competences conferred on it through the democratically legitimated treaty ratification processes that take place in the member states. To acquire power for itself—most troublingly through what the Federal Constitutional Court regarded as the European Court’s judicial activism—would circumvent this essential democratic feature of the European integration process.71 Significantly, unlike the right of review for fundamental rights protection that the Court reaffirmed but simultaneously held in abeyance in Solange II, the Court did not say that it would refrain from exercising this new authority to prevent ultra vires European acts. Especially the latter of these new doctrines—the Court’s new ultra vires review—advanced the sovereigntist view that Europe should remain a Staatenverbund over which the member states would remain the “masters of the treaties” (Herren der Verträge).72 The fi nal sovereigntist aspect of the Maastricht Treaty Case was its heavy emphasis on the principle of subsidiarity. Craig and de Búrca called subsidiarity the “panacea,” to which those suspicious of deeper European integration fastened their hopes of checking the Maastricht Treaty’s “federalist leanings.”73 Europe’s faithful practice of subsidiarity, the Constitutional Court explained, also protects against European centralization—with its attending harm to Germany’s democratic state principle—by imposing modesty on European policy making. According to the principle of subsidiarity, in those fields where Europe fairly possesses competence to act, it should defer to national prerogatives to ensure that decisions are made as closely as possible to the citizen. The principle of subsidiarity permits Europe to abandon this restraint on two conditions. The fi rst is when European action—as a matter of scope and effect—is comparatively more efficient than individual national acts. Second, even in these circumstances European action must be proportional, that is, it should not exceed the means “necessary to achieve the Treaty objectives.”74 In strictly legal terms, however, the treaty only required respect for subsidiarity when Europe exercises its exclusive competences. The political expectations for subsidiarity far exceed this limited de jure role for the principle. After Maastricht. For all its sovereigntist hand-wringing, the Constitutional Court’s fundamental decision in Maastricht, permitting Germany’s participation in the enhanced European Community and the new European Union, had let the federalist genie out of the bottle. With the Maastricht Treaty, European integration acquired a powerful, centralizing—and seemingly irreversible—momentum. Perhaps as a concession to this, and with the forces favoring European integration again ascendant in

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the German debate, the Constitutional Court’s subsequent European jurisprudence was more accommodating of European integration. In the Euro Case (1998),75 for example, the Court rejected challenges to Germany’s imminent adoption of the common European currency. Th is involved the surrender of the revered German Mark (Deutsche Mark), the currency indelibly linked in the German popu lar mind with West Germany’s “miraculous” economic rise from the ashes of World War II and, ultimately, German reunification. In concluding that the European measures implementing the launch of the euro did not violate the democratic state principle (Article 38 (1)), the Court narrowly construed the scope of the review it established for itself in the Maastricht Treaty Case. Monetary union, the Court explained, received adequate democratic legitimacy from the parliamentary process leading to German ratification of the Maastricht Treaty. Th is was enough to democratically account for the foreseeable measures necessary to concretize this goal. The Court refused to scrutinize the broader democratic milieu in which the euro’s implementing measures were framed, despite its earlier suggestion that civil society’s involvement in policy making—contingent upon predictable and comprehensible processes—was as important a part of the democratic state principle as “general, direct, free, equal and secret [parliamentary] elections.” But these “prelegal requirements for democracy,” the Court concluded, cannot be grounded in Article 38 (1) and do not enjoy the protection owed to fundamental rights.76 Two years later, in the Banana Market Regulation Case (2000),77 the Court practically foreclosed its long-dormant right to review secondary European legislation for its fundamental rights integrity. Th is had been the centerpiece of the Court’s European jurisprudence, established in Solange II and reaffi rmed in Maastricht. In a case reminiscent of Solange II—dealing with importers who alleged that European regulations had infringed their right to property—the Court now held that such challenges to European law, asserting its incongruence with the Basic Law’s protection of fundamental rights, are prima facie inadmissible unless they explicitly state that the evolution of European law has fallen below the protection offered by the Basic Law. Furthermore, to establish the necessary deficiency in European fundamental rights jurisprudence, the Court explained that the inadequacy must be general and structural, revealing the European Court’s abdication of its responsibility. To overcome the prima facie inadmissibility of these challenges, claimants would have to make a systematic comparison of the relevant German and European jurisprudence. European Arrest Warrant Case. On 13 June 2002, the European Council issued the Framework Decision on the Eu ropean Arrest Warrant and Surrender Procedure Between Member States. The German Parliament passed the necessary implementing legislation—the European Arrest Warrant Act—on 21 July 2004. The European Arrest Warrant (eaw), valid throughout the European Union, sought to simplify extradition procedures for suspected criminals within the European Union. It was designed to provide for the speedy transfer of suspected criminals with respect to acts of terrorism and other specified crimes. Under the eaw an arrest warrant may be

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sent from one national judicial authority to another, thus bypassing ordinary extradition review by the extraditing state’s administrative and diplomatic authorities. Member states would now be obliged to surrender their own citizens suspected of committing a serious crime in another European Union country. Mamoun Darkazanli, a German and Syrian national, fi led a constitutional complaint to challenge his extradition to Spain for criminal prosecution. Spanish authorities had accused Darkazanli, the owner of an import-export business, of participating in Al-Qaeda–related terrorist activity and money laundering, crimes punishable under Spanish but not at the time under German law. On 16 September 2004, a Madrid court indicted Darkazanli and requested his extradition to Spain for prosecution. Relying on the European Arrest Warrant Act, on the basis of the Spanish legal proceedings, Hamburg’s Higher Regional Court issued an arrest warrant and granted the request for extradition. Darkazanli challenged his extradition as a violation of Article 16 (2) and Article 19 (4) of the Basic Law. In response, the federal government argued that the complaint was both inadmissible and unfounded on the ground that legislation giving force to a European Union framework decision, like the secondary European Community legislation at stake in Solange II, was prima facie unreviewable. In a rare, fractured decision, a majority of the Constitutional Court’s Second Senate ruled the complaint admissible and then credited Darkazanli’s challenge to the European Arrest Warrant Act, which the Court declared null and void. The European Arrest Warrant Case (2005) required the Court to consider the status of law arising out of the “third pillar” of the European Union.78 The Court’s previous European jurisprudence involved legislation or court decisions giving effect to “fi rst pillar” norms, that is, secondary law enacted under the authority of the European Community. As noted earlier, the Maastricht Treaty introduced the concept of pillars, which formed the basic structure of the European Union. The fi rst pillar refers to the long-standing Communities (European Coal and Steel Community, European Atomic Energy Community, and most prominently the European Economic Community). The Maastricht Treaty refashioned these three as the European Community, encompassing the common market and Europe’s deep integration on economic, commercial, and monetary policy. The second and third pillars, newly established by the Maastricht Treaty, pressed forward with integration in political fields. The member states’ caution, however, was reflected in the fact that these new areas deliberately were identified as “intergovernmental” and not supranational pillars, with the second pillar promoting a common foreign and security policy while the third pillar was devoted to police and judicial cooperation in criminal matters. Combining judicial cooperation and criminal matters, the European Arrest Warrant was properly a subject of the European Union’s third pillar. The European Arrest Warrant’s basis in the European Union’s third pillar was central to the majority’s conclusion that the Bundestag had violated the Basic Law in enacting the European Arrest Warrant Act. Third pillar policies, the Constitutional Court emphasized, are achieved only through domestic legislation that aims to fulfi ll the objectives set out in a European “framework decision.” Contradicting the European

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Court of Justice, the majority found that a framework decision’s distinct, quasilegislative form differs significantly from the “regulations” and “directives” through which the fi rst pillar European Community legislates. Whereas the latter constitute immediately and directly enforceable law (regulations) or create clear and exacting mandates for domestic legislation (directives), the former represent intergovernmental commitments to harmonize domestic policy and law in a manner that fully embraces local discretion. The formalist distinction drawn by the Court—between fi rst pillar legislation and third pillar framework decisions—had two consequences. First, the discretion accorded member states in concretizing framework decisions is meant, in part, to permit them to implement the respective European policy without running afoul of domestic constitutional norms.79 While the European Arrest Warrant framework decision had adequately accounted for domestic legislatures’ prerogative over the constitutional elements of the common extradition regime, the Court’s majority found that the Bundestag failed to fulfi ll its duty when it enacted a European Arrest Warrant Act that did not ensure respect for the constitutional state principle as required by Article 16 (2) of the Basic Law.80 Most gravely, in the view of the Court’s majority, the European Arrest Warrant Act did not provide proper recourse to German judicial process to contest discrete extradition scenarios.81 The Court’s majority concluded that “the legislature [did not] use the latitude, as concerns incorporation into national law, that the Framework Decision leaves the member states in a manner that is compatible with these fundamental rights.”82 Second, the majority’s insistence on the distinction between Eu ropean Community law (under the fi rst pillar) and Eu ropean Union law (under the second and third pillars) suggested yet another limit on Eu ropean integration. The Court’s majority seemed resigned to giving integration under the commercial and economic orientation of the Eu ropean Community greater respect because that muchadvanced (albeit, constitutionally limited) project had achieved the unique, sui generis status of a supranational exercise of member states’ sovereign power. On these terms, a source of public authority wholly independent of any of the member states served as the source of Eu ropean Community law and policy. But the second and third pillars of the Eu ropean Union, with their deliberate insistence on intergovernmental cooperation, did not aspire to something so comprehensive. One risk raised by this model, said the Court’s majority, lay in the lingering priority of national public authority in the realization of framework decisions. For example, in a regime like the one created by the Eu ropean Arrest Warrant this would mean that German citizens’ extradition rights would be subject, not to the independent, supranational Eu ropean Community (in which Germany, and representatives elected by Germans, have extensive participation), but to the standards set by each independent member state. Eu ropean integration on this track, the Court’s majority concluded, would have to proceed under the Bundestag’s strict and continuing scrutiny. And, in turn, the Constitutional Court would monitor closely the Bundestag’s exercise of that scrutiny.83

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A Eu ropean Constitution and the Lisbon Treaty Case. In the European Arrest Warrant Case the Court’s majority resorted once again to the limits on Eu ropean integration that, in its jurisprudence on the constitution’s openness to Eu rope, it attributes to the Basic Law’s democratic state principle. Eu rope’s authority and development, the argument goes, must be kept squarely within the terms of the treaties. Anything else would avoid the Bundestag’s right to ratify (or reject) each successive step in Eu rope’s deepening integration and thereby undercut the Basic Law’s fundamental decision that all sovereign power derives from the democratically legitimized will of the people. The democratic state principle, the Court has said, constitutes a part of Germany’s unamendable constitutional identity that must be protected against the Basic Law’s commitment to openness. Th is view of the Eu ropean project, favored by sovereigntists, answers the “political question” about enhanced Eu ropean integration by insisting on a treaty-based, international law– oriented, step-by-step process for achieving the desired evercloser union.84 Th is state-centric approach to the European project would be harder to defend, however, if Europe were to formally adopt a constitution. Constitutions typically have been political and legal decisions that frame and manage the functioning of a state. A European federal state was the undeniable ambition of the advocates for a European constitution, an old dream that, as it gained significant new momentum with the establishment of the European Union, prompted Federal Constitutional Court justice Dieter Grimm to famously pose this question: “Does Europe need a constitution?”85 The Constitutional Court’s caution toward unfettered European integration gave Grimm’s reticence exceptional gravity. In a widely discussed speech delivered at Humboldt University in Berlin in May 2000, German foreign minister Joschka Fischer answered Justice Grimm’s question with an authoritative “yes.” After cataloguing the difficulties confronting the project of European integration, Fischer explained that the only viable solution would be “the transition from a union of states to full parliamentarization as a European Federation.” That remarkable future, Fischer admitted, “will have to be based on a constituent treaty” that “constitutionally enshrines” the principle of subsidiarity.86 Later, the German philosopher Jürgen Habermas influentially argued that, more than a concrete constitution, Europe needed a formal constitutional process as the way to nurture the constitutional prerequisite of a shared European civic identity.87 German theoretical engagement with the question shadowed a roller-coaster ride of political action, including the declaration from the European heads of states and governments in Laaken in 2001 that they would pursue a European constitution; the work of Valéry Giscard d’Estaing’s constitutional draft ing convention; the triumphal endorsement of the constitutional treaty by European heads of states and governments in Rome in 2004; and the treaty’s surprising defeat in ratification referenda in France and the Netherlands in 2005. Not to be deterred by a popu lar setback, the Eu ropean elites pressing for the constitution pleaded for a “period of reflection” that resulted in the Lisbon Reform

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Treaty that was signed on 13 December 2007. The Lisbon Treaty, although abandoning constitutional pretensions, implemented most of the reform to the substance of Eu ropean law and to the Eu ropean Union’s infrastructure that had been at the heart of the failed constitution. First, the Eu ropean Union was given legal personality, which, among other consequences, permits it to accede to the Eu ropean Convention on Human Rights. Nearly thirty-five years after the Federal Constitutional Court expressed its concern about Eu rope’s inadequate rights protections in Solange I, the Lisbon Treaty also gave the Charter of Fundamental Rights legal status. At last, Eu rope would have a codified cata logue of fundamental rights that is “recognized” by the Eu ropean Union. But the Charter rights cannot be interpreted to extend Eu rope’s competences. In fact, to be actionable, they require a Eu ropean Union element. In light of these limits, the Lisbon Treaty’s incorporation of the Charter formally adds little because many of the rights it proclaims already had been “recognized” by the Eu ropean Court of Justice. Second, the Lisbon Treaty rationalized and streamlined governance for a Eu ropean Union now consisting of twenty-seven member states. The treaty created a permanent President of the Eu ropean Council and a High Representative for Foreign and Security Affairs. The Council of the Eu ropean Union was empowered to act on the basis of a double majority, as opposed to the previous system, which required unanimous or supermajority approval of initiatives. The Eu ropean Union was given new competences, and some of its existing intergovernmental competences (under the second and third pillars) were given supranational status of the kind accorded to the fi rst pillar. Th ird, the Lisbon Treaty upgraded Eu ropean democracy, in part by giving the directly elected Eu ropean Parliament bicameral legislative status alongside the Council of the Eu ropean Union when the “ordinary” legislative procedure is used. A “citizens’ initiative” was created. The treaty also aimed to formally integrate the member states’ democratically legitimate national parliaments into the “good functioning of the Union.” The national parliaments were to be given early notice of Eu ropean legislation to allow them to object on subsidiarity and proportionality grounds by offering a “reasoned opinion” to the Eu ropean institutions. The national parliaments also were given the authority to bring “subsidiarity actions” before the Eu ropean Court of Justice. Finally, the national parliaments were given the right to object to exercises of some of the Eu ropean Union’s new capacities to expand its own competences. Irish voters scuttled the Lisbon reform but eventually were persuaded to ratify the treaty in a second national referendum.88 Meanwhile, the other member states were ratifying the Lisbon Treaty, including Germany in the spring of 2008, when the Bundestag and Bundesrat approved the treaty, made necessary amendments to the Basic Law, and enacted legislation that was meant to expand their role in European policy making. Predictably, these acts were challenged before the Federal Constitutional Court pursuant to its Organstreit and constitutional complaint jurisdiction.89

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6.6 Lisbon Treaty Case (2009) 123 BVerfGE 267 [The challenges to the Lisbon Treaty alleged that the Act Approving the Treaty of Lisbon, the accompanying constitutional amendments, and the Act Extending and Strengthening the Rights of the Bundestag and the Bundesrat in European Union Matters infringed, inter alia, the democratic state principle (Article 38 (1) in conjunction with Article 23 (1) of the Basic Law). The latter act had three distinct components, which sought to empower the Bundestag and the Bundesrat to take advantage of the greater role the Lisbon Treaty anticipated for “national parliaments” in European affairs. The act permitted the Bundestag and the Bundesrat to lodge a “reasoned opinion” with the European Parliament, Commission, and Council concerning Europe’s compliance with the principle of subsidiarity (“subsidiarity objection”); bring an action before the European Court of Justice challenging a European act’s compliance with the principle of subsidiarity (“subsidiarity action”); and make known their opposition to European Union draft legislation. The Constitutional Court ruled the challenges unfounded with respect to the ratification of the Lisbon Treaty and the amendments to the Basic Law. But a majority of the Court thought the act empowering the Bundestag and the Bundesrat had not given those organs a sufficient role in European policy-making and treaty-amending procedures. Thus, Germany’s ratification, although valid in its own right, was ordered withheld until new legislation was enacted providing the constitutionally required degree of parliamentary rights of participation.]

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Judgment of the Second Senate. . . . C. I. Insofar as they are admissible, the constitutional complaints are partially wellfounded. The Act Extending and Strengthening the Rights of the Bundestag and the Bundesrat in European Union Matters (Act) is unconstitutional because it does not contain the required provisions. In other respects, the constitutional complaints and the Organstreit proceedings, to the extent that they are admissible, are unfounded. Taking into account the conditions specified in the reasoning supporting this decision, there are no decisive constitutional objections to the Act Approving the Treaty of Lisbon and the Act Amending the Basic Law. . . . 2. . . . b. . . . The constitutional mandate to realize a united Europe, which follows from Article 23 (1) of the Basic Law and its preamble, requires the German constitutional bodies to participate in European integration. Th is is not a matter left to their political discretion. The Basic Law calls for European integration and Germany’s contribution to a peaceful international order. Therefore, not only the general principle of an open state, but also the more specific principle of openness toward European law, applies. . . .

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c. . . . bb. . . . Article 23 (1) of the Basic Law, like Article 24 (1) of the Basic Law, commits the Federal Republic of Germany to participating in the development of a European Union designed as an association of sovereign states (Staatenverbund) to which sovereign powers are transferred. The concept of Verbund covers a close, longterm association of states that remain sovereign; a treaty-based association that exercises public authority, but whose fundamental order is subject to the decision-making power of the member states and in which the peoples, i.e., the citizens, of the member states, remain the subjects of democratic legitimation. . . . e. . . . If the member states elaborate treaty law in such a way as to allow treaty amendments solely or mainly by the institutions of the Union themselves, albeit under the requirement of unanimity and while preserving the principle of conferred powers, then the German legislative organs—in addition to the federal government— have a special responsibility to comply with the requirements of Article 23 (1) of the Basic Law. Compliance with these requirements may be scrutinized by the Federal Constitutional Court. . . . bb. Under the Basic Law, however, faith in an internal, European dynamic toward integration has limits. If, in the process of European integration, primary law is amended or expansively interpreted by the European institutions, then a constitutionally significant tension with both the principle of conferred powers and the individual member state’s constitutional responsibility for integration will result. If legislative or administrative competences are transferred in an unspecified manner or with a view to further dynamic development, or if the European institutions are permitted to redefi ne their authority expansively, fi ll lacunae with respect to, or factually extend competences, then the risk of transgressing the predetermined integration regime arises. In such a situation, the European institutions act beyond the powers granted to them [ultra vires]. They will have started on a journey that leads them to the power to defi ne for themselves the foundational parameters for integration that are laid down in the treaties. They will have acquired the competence to freely defi ne their competences [Kompetenz-Kompetenz]. No matter how restrained or exceptional, if the European institutions can decide how treaty law is to be interpreted, without restriction and without any outside control, then there is a risk of transgressing the fundamental principle of conferred powers and the member states’ conceptual responsibility for integration. Therefore, the Basic Law prohibits Germany from agreeing to dynamic treaty provisions in a blanket manner. Alternatively, if dynamic treaty provisions can still be interpreted in a manner that respects the national responsibility for integration, then Germany must establish suitable national safeguards for the effective exercise of such responsibility. Accordingly, an act ratifying an international agreement—and the accompanying national laws—must do two things. First, it must ensure that European integration respects the principle of conferred powers, thereby depriving the European Union of the Kompetenz-Kompetenz. Second, it must protect against violations of the member states’ constitutional identity, which is not open to integration. For borderline cases, in the legislation accompanying the ratification of an amending

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treaty, the German legislature must ensure that the Bundestag’s and Bundesrat’s responsibility for integration can develop sufficiently. It also must be possible, within the jurisdiction of German courts, to assert the German legislative organs’ responsibility for integration. Th is is necessary when, in exercising competences, the European Union obviously transgresses its boundaries. Th is was emphasized by the representatives of the German Bundestag and the federal government in the oral hearing. Th is “identity review” would help preserve the inviolable core of the Basic Law’s constitutional identity. The Federal Constitutional Court already has created the possibility for ultra vires review, which applies when Community and Union institutions transgress the boundaries of their competences. If legal protection cannot be obtained at the Union level, then the Federal Constitutional Court examines whether European legislation or acts keep within the boundaries of the sovereign powers conferred on the Union. Furthermore, the Federal Constitutional Court has the authority to review whether the inviolable core content of the constitutional identity of the Basic Law pursuant to Article 23 (1) [3], in conjunction with Article 79 (3), is respected. The exercise of this review power, which is rooted in constitutional law, follows the principle of the Basic Law’s openness toward European Law. Therefore, it does not contradict the principle of sincere cooperation imposed by the European treaties. Absent this domestic judicial review there is no other way to safeguard, against progressive integration, the fundamental political and constitutional structures of sovereign member states, which are recognized by Article 4 (2) [1] of the Lisbon Treaty. In this respect, the guarantee of national constitutional identity under constitutional and Union law go hand in hand in the European legal sphere. The identity review makes it possible to examine whether, due to the action of European institutions, the principles under Article 1 and Article 20 of the Basic Law, declared inviolable in Article 79 (3) of the Basic Law, have been violated. Th is ensures that the primacy of application of Union law operates by virtue and in the context of continuing domestic constitutional authorization. Only the Federal Constitutional Court can undertake this ultra vires review and identity review, especially because they might lead to the domestic inapplicability of Community law or, in the future, Union law. The Constitutional Court’s exclusive jurisdiction is necessary to preserve the viability of the Community’s legal order while taking into account the legal concept expressed in Article 100 (1) of the Basic Law and the Basic Law’s openness to European law. It need not be decided here in which specific types of proceedings the Federal Constitutional Court’s jurisdiction may be invoked for such review. Existing proceedings might be relevant, including the abstract review of statutes (Article 93 (1) [2] of the Basic Law); the concrete review of statutes (Article 100 (1) of the Basic Law); Organstreit proceedings (Article 93 (1) [1] of the Basic Law); disputes between the federation and the Länder (Article 93 (1) [3] of the Basic Law); and constitutional complaints (Article 93 (1) [4a] of the Basic Law). Also conceivable, however, is the legislature’s creation of an additional type of proceeding before the Federal Constitutional Court, a procedure especially tailored to ultra vires review and identity review. Such a procedure—in

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the relevant individual cases—would ensure that German authorities do not apply European Union acts that transgress competences or that violate constitutional identity. . . . 3. a. . . . cc. Eu ropean unification on the basis of a treaty union of sovereign states may not be achieved in such a way that it deprives the member states of the authority they need to politically shape economic, cultural, and social living conditions. In par tic u lar, this applies to areas that shape the citizens’ living conditions, including: the private sphere subject to their individual responsibility; political and social security, protected by fundamental rights; and political decisions that rely especially on cultural, historical, and linguistic orientations—political decisions that develop in public discourse through the involvement of political parties and parliamentary process, both of which contribute to public policies. Essential areas subject to this democratic action consist of, inter alia: citizenship; the civil and the military monopoly on the use of force; revenue and expenditure, including external fi nancing; and all acts of state authority that encroach upon fundamental rights, especially including major encroachments on fundamental rights such as the deprivation of liberty in the administration of criminal law or detention in other institutions. These important areas also include cultural issues, including: language policy; family and education policy; the rules concerning the freedom of opinion, press, and association; and the manner in which the profession of faith or ideology is addressed. . . . b. . . . aa. The constitutional requirements placed by the principle of democracy on the organizational structure and the decision making procedures of the European Union depend on the extent to which sovereign powers are transferred to the Union and the degree of political independence granted to the European Union in the exercise of those sovereign powers. Increased integration may be unconstitutional if the level of democratic legitimation is not commensurate with the extent and the importance of supranational power. So long as [solange], and insofar as, the principle of conferred powers is respected in an association of sovereign states—with clear elements of executive and governmental cooperation—the legitimation provided by national parliaments and governments complemented and sustained by the directly elected European Parliament is sufficient. If, however, the threshold to a federal state were crossed, leading to the abandonment of national sovereignty, then a free decision of the people in Germany— beyond the present applicability of the Basic Law—would be necessary. The democratic process in such a scenario would have to be fully consistent with the democratic legitimation necessary for a state-based invocation of authority and order (Herrschaftsverband). Th is level of legitimation could no longer be prescribed by national constitutional orders. . . . E. The decision was reached unanimously as regards the result, by seven votes to one as regards the reasoning.

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Lisbon—The Open State’s Nadir? The Constitutional Court’s holding in Lisbon was modest. Germany’s ratification of the Lisbon Treaty, with its sweeping centralizing reform, had not been called into question. The Court only found fault with the accompanying legislation (Begleitgesetz). That was easily corrected. In one of the last acts of the grand coalition (cdu/csu-spd) ahead of federal parliamentary elections in September 2009, the Bundestag and Bundesrat approved a revision of the Act Extending and Strengthening the Rights of the Bundestag and the Bundesrat in European Union Matters. These organs were now required to give their approval in advance (Parlamentsvorbehalt) of federal government decisions leading to dramatic changes in European governance, including changes from unanimous to majority voting, expansion of competences, and admission of new member states. The new law cleared the way for Germany to fi nalize its ratification on 25 September 2009. The Lisbon Treaty entered into force on 1 December 2009. The wave of criticism that crashed against the decision was stirred by the 170 pages of dicta-heavy exposition through which the Court waded on the way to its anticlimactic conclusion. The Court discussed extensively the theory of democracy that is to be realized by the Basic Law’s democratic state principle, whether it serves to legitimize domestic or supranational governance. Regarding the “political question” on Europe’s status, the Court concluded that the Lisbon Treaty unequivocally confi rmed that the European Union is a Staatenverbund conceived by means of international law treaties. “The Treaty of Lisbon decided against the concept of a European Federal Constitution [and] a new federal people constituted by it,” the Court explained. “A will aiming at founding a state cannot be ascertained.”90 These points informed the Court’s insistence upon the outer limits of the sovereign power the European Union might exercise, at least in the absence of dramatic constitutional change within Germany. The civil society, or demos, essential to democracy, said the Court, still is centered on the nation-state, framed by a common language, culture, and history. To protect Germany’s constitutional identity, in Lisbon the Court also granted itself a new form of review over European sovereign acts—including the decisions of the European Court of Justice. “Identity review,” to which the Court already had alluded in Solange II,91 permits the Court to “examine whether, due to the action of European institutions, the principles under Article 1 and Article 20 of the Basic Law, declared inviolable in Article 79 (3) of the Basic Law, have been violated. Th is ensures the primacy of European Union law only by virtue and in the context of the domestic constitutional empowerment that continues in effect.”92 Identity review joined two existing forms of review. The first is the long-dormant (and, after the Banana Market Regulation Case, practically foreclosed) authority to review for fundamental rights deficiencies at the European level. The second is the ultra vires review announced in the Maastricht Case. All of this prompted one scholar to call the Lisbon Treaty Case “a black day in the history of Europe.”93 This reaction to Lisbon, and the many others like it, may have been premature. A year later the Court issued its much-anticipated decision in the Honeywell Case (2010),94 the first-ever exercise of its ultra vires review jurisdiction. Following so

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close on the heels of Lisbon, Honeywell was the Court’s chance to add some bite to its many years of barking over the gradual drift of sovereign powers—through the door created by the Basic Law’s openness—to the supranational European Union. Instead, the Court seemed to draw back from the chauvinism many find in the Lisbon Treaty Case. Honeywell involved an ultra vires challenge to a decision of the European Court of Justice that settled a German labor contract dispute in conformity with European antidiscrimination policy that had not yet entered into force in Germany. The complainant urged the Federal Constitutional Court to fi nd that the German labor courts’ reliance on the European Court’s alleged ultra vires judgment had violated its contract and judicial process rights under the Basic Law. The complainant asserted several reasons why the European Court’s judgment should be seen as an ultra vires act. First, the European Court has no authority to interpret and rule on domestic law, especially private law. Second, insofar as the European Court might have been recognizing a directly enforceable fundamental principle of Community law, the judgment must be seen as an inappropriate attempt by the judiciary to progressively develop the law. Th ird, the European Court’s judgment also could not be justified by the European Treaties’ provisions allowing enforcement of some European norms prior to their domestic implementation. The Constitutional Court rejected the complaint and, in doing so, significantly narrowed the scope of its ultra vires review authority. Above all, the Court insisted that its ultra vires review must be exercised within the framework of—and not counter to—the Basic Law’s fundamental commitment to an open state and Europarechtsfreundlichkeit.95 To ensure this the Court said it would fi nd that a European institution had acted ultra vires only in cases involving a “sufficiently qualified” breach of European competences. Th ree elements would be necessary to satisfy this high standard. First, the European institution must be seen as having manifestly overstepped the sovereign power assigned to it by the treaties. Second, only acts leading to structurally significant shift s of sovereign power, to the detriment of the member states, can be the subject of the Constitutional Court’s ultra vires review. Th ird, the European Court of Justice must be given an opportunity to assess the European institution’s compliance with its treaty-based competences before the Federal Constitutional Court will take up an ultra vires challenge. For those favoring integration, the deference to Europe that the Constitutional Court exercised in Honeywell took some of the sting out of Lisbon’s decidedly sovereigntist tone. Th is, however, should not be interpreted as a dramatic shift in the Court’s posture toward Europe. In its rulings concerned with Germany’s participation in the European Union’s haphazard and frantic efforts to save the euro from the sovereign debt crisis plaguing a number of euro-zone countries, the Constitutional Court so far has maintained its tradition of cautious acquiescence—accepting ever-more Europe but without surrendering Germany’s constitutional identity. For example, in its decision in the Greek Rescue Package Case (2011) the Court sustained the German law implementing Germany’s contributions to the fi rst Greek rescue package (2010) and the fi rst iteration of a broader European rescue package (2010). Several constitutional complaints alleged that enabling act violated the Basic Law’s democratic state principle

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(rooted in Article 38 (1) of the Basic Law and part of Germany’s unamendable constitutional identity) because it gave European institutions, and not the democratically elected Bundestag, authority over Germany’s massive budgetary commitments to the initiatives (at their maximum, the contributions would be Germany’s largest budget item). Putting the world’s markets at ease—and giving the global economy a momentary reprieve from the persistent fear of a chaotic Greek default—the Court rejected the complaints, thereby allowing Germany’s nearly €150 billion mix of payments and credit guarantees to go forward.96 But the Second Senate took the opportunity in Greek Rescue Package to articulate further constitutional limits on European integration. First, the Court insisted that budgetary matters remain a competence of the Bundestag. The Court explained that budgets defi ne a state’s functions and the people the state serves must have the authority to take those decisions through their democratically elected representatives. Th is does not preclude the Parliament from externalizing this authority, as in the case of the new European Financial Stability Facility (the efsf is the permanent, broader European rescue mechanism), which has the power to make decisions at the European level on the basis of German credit guarantees. The Court concluded, however, that the delegation of budgetary authority to the efsf was constitutional only because it complied with a number of democratic safeguards. Above all, it did not empower European institutions to make decisions about Germans’ tax burden and it did not permit European institutions to automatically avail themselves of the German credit guarantees. Instead, said the Court, the regime affi rmed the Bundestag’s status as the master of such budgetary matters by requiring its continuous and repeated approval of decisions related to the externalization of its competence over the budget. Second, and more fundamentally, the Court declared that the rescue initiatives conformed with Germany’s treaty and constitutional commitments to a European Monetary Union that is merely a “stability community” and not a more fully integrated “transfer union.” On this point, the Second Senate explicitly excluded the possibility, without reform of the European treaties and the Basic Law, of eurobonds backed by the European Central Bank and the member states of the European Monetary Union. These cases are representative of the Court’s vacillating European jurisprudence. And, if that is thought to be a criticism of the Constitutional Court, then two points must be considered. On the one hand, the Court has not been helped in its work by the inherent tension between sovereignty and openness that was written into the Basic Law. With Europe, as with international law, the Court has sought to reconcile these seemingly irreconcilable commands. Nor has the Court been helped in that effort by the fact that the social and political consensus over full German integration in a united Europe has, over the last generations, begun to weaken. On the other hand, the Court’s hesitance toward Europe largely has been a matter of tone and not action. For all the formal authority it has given itself to prevent the erosion of German constitutional sovereignty and identity in the European project, the Court has not rushed to take up that role. Its detailed European doctrine seems more instructive than actionable. Instead, with each dramatic development in Europe’s integration,

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the Court has given priority to the Basic Law’s preambular summons to a Germany that serves as an “equal partner in a united Europe.”

conclusion The Nibelungenlied (Song of the Nibelungs), the Germanic epic poem, recounts the tragic, blood-drenched myth of the original power couple, Siegfried and Kriemhild. The romance and revenge that dominate the narrative demanded operatic treatment; it is probably best known today for the elements it contributed to Wagner’s four-part Ring Cycle. One episode from Siegfried’s youth fi nds him pressed into arbitrating the tensions between two brothers (the eponymous Nibelung and his brother Schilbung) who demand that Siegfried equitably divide their vast treasure between them. Although Siegfried performs the delicate task with aplomb, the brothers’ congenital resentment and distrust for one another lead them to dispute the results and accuse Siegfried of injustice. Mortally threatened by both, Siegfried has no choice but to kill them. Siegfried is left holding the treasure, which a rival eventually casts into the mighty and murky Rhine River, and it thereby becomes the mythical Rhinegold. Between the confl icting constitutional commands of statehood and integration, sovereigntism and cosmopolitanism, the Federal Constitutional Court has had to play a role similar to that of the young Siegfried. The openness to external sources of law and governance mandated by the Basic Law has made the Federal Republic of Germany a unique contributor to the world community and, in par ticu lar, to European integration and peace. The Constitutional Court emphasized this in its Lisbon decision when it concluded that, in contrast to the Machiavellianism that dominated geopolitics in the past, “the Basic Law codifies the maintenance of peace and the overcoming of destructive antagonism between European states as outstanding political objectives of the Federal Republic of Germany.”97 In the light of the twentieth century’s horrors and the twenty-fi rst century’s economic globalization, it is plain that the Basic Law’s commitment to an open state has moral as well as practical value. The Court has enforced the aim of openness with determination, sometimes charting a course in waters previously unknown to constitutionalism. But the clear lesson of the Court’s jurisprudence is that there are limits to the state’s openness. In some rare cases, those limits have been defi ned by the Federal Republic’s strategic interests, as framed in partisan or ideological terms. More frequently, however, the Court has narrowed the prescribed openness out of respect for the sovereign state, consisting of an unamendable core identity that is established by the Basic Law. It may not easily fit with the constitution’s openness, but the Court has sought to safeguard state sovereignty as an essential framework for the democratic state principle that also is prescribed by the Basic Law. Negotiating these opposing demands with respect to the Basic Law’s nexus with international law and European law will remain the heroic, if often messy, work of the Constitutional Court.

7 Human Dignity, Personal Liberty, and Equality ∂ The Basic Law (Grundgesetz) places human dignity at the center of its scheme of constitutional values. Article 1, paragraph 1, declares: “Human dignity shall be inviolable.” Paragraph 2 underlines the inseparability of human dignity and basic rights in these words: “The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and justice in the world.”1 Accordingly, the “Bill of Rights” and human dignity are bound together in an organic unity. Of primary importance is the human dignity clause. In the view of the Federal Constitutional Court (Bundesverfassungsgericht) this provision expresses the highest value of the Basic Law, informing the substance and spirit of the entire document.2 While encompassing all guaranteed rights, the concept of human dignity also includes a morality of duty that may limit the exercise of a fundamental right. Little wonder, then, that the human dignity clause is such a fertile source of constitutional litigation, rivaling in its fecundity the meaning the U.S. Supreme Court has read into the due process clauses of the Fift h and Fourteenth Amendments.3 The human dignity clause is almost always read in tandem with the guarantees of Articles 2 and 3. Article 2 secures the general liberty interests of individuals in the right to life, physical integrity, and personal development, whereas Article 3 provides for the equality of all persons before the law, along with a list of forbidden legislative classifications. As several cases featured in this chapter demonstrate, the relationships among Articles 1, 2, and 3 are symbiotic. Their provisions nourish and reinforce one another, underscoring the principle that no provision of the Basic Law is to be construed in isolation. Consequently, the human dignity, liberty, and equality clauses inform the meaning of other constitutional values just as these other values infuse the meaning and limit the reach of the rights guaranteed by these three fundamental articles. As capstones of the Basic Law, the human dignity, liberty, and equality clauses contain ringing declarations of human freedom. Significantly, among the three, only the general liberty interests of Article 2 are subject to express limits. Article 2 (1) provides: “Every person shall have the right to the free development of his personality,” but only “insofar as he does not violate the rights of others or offend against the constitutional order or the moral code.”4 Article 2 (2) similarly guarantees to everyone “the right to life and physical integrity” and also declares the “freedom of the person” to be “inviolable.” In contrast to the limits of Article 2 (1), these par ticular rights “may be interfered with only pursuant to a law.” Article 1 (1) and Article 3 (2), however, actually require the state to advance human dignity and gender equality, respectively. Article 3 (3), only slightly less proactive, permits the state to promote the interests of the disabled.

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dignity of persons 7.1 Microcensus Case (1969) 27 BVerfGE 1 [A federal census statute provided for the periodic collection of normal household and employment statistics. In 1960 the statute was amended to require additional information on vacation and recreational trips taken by household residents. A householder was fined dm 100 for refusing to supply this information. He contested the fi ne in a constitutional complaint proceeding, contending that the compulsory disclosure of private information, even for statistical purposes, violated his constitutional right to human dignity under Article 1 of the Basic Law.]

∂

Judgment of the First Senate. . . . I. The statute is compatible with the Basic Law. . . . C. II. A statistical survey on the subject of “vacations and recreational trips” based on a random sample of the population does not violate Article 1 (1), Article 2 (1), or any other provision of the Basic Law. 1. a. According to Article 1 (1) of the Basic Law, the dignity of man is inviolable and must be respected and protected by all state authority. Human dignity is at the very top of the value order of the Basic Law. Th is commitment to the dignity of man dominates the spirit of Article 2 (1), as it does all other provisions of the Basic Law. The state may take no measure, not even by law, that violates the dignity of the person beyond the limits specified by Article 2 (1), . . . [which] guarantees to each citizen an inviolable sphere of privacy beyond the reach of public authority. b. In the light of this image of man, every human being is entitled to social recognition and respect in the community. The state violates human dignity when it treats persons as mere objects. It would thus be inconsistent with the principle of human dignity to require a person to record and register all aspects of his or her personality, even though such an effort is carried out anonymously in the form of a statistical survey; [the state] may not treat a person as an object subject to an inventory of any kind. The state has no right to pierce the [protected] sphere of privacy by thoroughly checking into the personal matters of its citizens. [It] must leave the individual with a personal/private sphere for the purpose of the free and responsible development of his or her personality. Within this space the individual is his or her own master. [The individual] can thus “withdraw into himself or herself, alone, to the total exclusion of the outside world, and enjoy the right to solitude.” The state invades this realm when in certain circumstances it takes an action—however value neutral—that tends to inhibit the free development of one’s personality because of the psychological pressure of general public compliance.

Human Dignity, Personal Liberty, and Equality 357

c. However, not every statistical survey requiring the disclosure of personal data violates the dignity of the individual or impinges upon the right to self-determination in the innermost private areas of life. As a member of society, every person is bound to respond to an official census and to answer certain questions about [oneself], because such information is necessary for government planning. [One] can regard a statistical questionnaire as demeaning and as a threat to one’s right of self-determination when it intrudes into that intimate realm of personal life that, by its very nature, is confidential in character. In a modern industrial society there are restrictions against such administrative depersonalization. Yet, where an official survey is concerned only with the relation of the person to the world, it does not generally intrude on personal privacy. Th is is true . . . when the information loses its personal character by virtue of its anonymity. The prerequisite for [this conclusion] is that anonymity be adequately preserved. In the present case [two factors] guarantee [anonymity]: a statutory prohibition against the publication of information obtained from individuals, as well as the fact that census takers are bound under penalty of law to maintain the confidentiality of the information. [The census taker] has no statutory duty to report data to internal revenue agencies; moreover, responsible officials may not convey any [census] information to their superiors in an official capacity if they have not been expressly given this power under the law. d. The collection of census data regarding vacations and recreational trips does not violate Article 1 (1) of the Basic Law. The questionnaire at issue does implicate the sphere of privacy, but it does not force the individual to reveal intimate details of his or her personal life. Nor does it allow the state to monitor individual relationships that are not otherwise accessible to the outside world and are consequently of a private nature. [The state] could have obtained data regarding the destination and length of vacation trips, lodging, and transportation without a census, although with much more difficulty. The information solicited does not, therefore, involve that most intimate realm into which the state may not intrude. [The state] may [therefore] use the questionnaire for statistical purposes without violating the individual’s dignity or right to self-determination. . . .

∂

Basis of Human Dignity. “The dignity of man is founded upon eternal rights with which every person is endowed by nature,” read the fi rst draft of Article 1 prepared by the Herrenchiemsee Conference. Later, in the Main Committee of the Parliamentary Council, Christian Democratic delegates sought to characterize these “eternal rights” as “God-given.” Social Democrats and Free Democrats resisted the use of such language because of its implications for constitutional interpretation.5 They prevailed in the adoption of this more succinct and neutral formulation: “Human dignity shall be inviolable.” Except for the most dogmatic of legal positivists among the framers, the Parliamentary Council’s main party groups (cdu, spd, and fdp) were united in the proposition that human dignity, like other fundamental rights of personhood, is

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anterior to the state. Such rights belong to persons as persons, and in this sense they were regarded as transcendental. The framers were thus successful in avoiding the grounding of the concept of human dignity in any par tic u lar philosophical or religious school of thought. As interpreted, however, the written text can easily be seen as amenable to a variety of philosophical perspectives; Microcensus seems to adopt a Kantian view in regarding persons as ends and not merely the objects of manipulation, although non-Kantians such as Christian natural-law theorists would surely share this view. Moreover, as the Mephisto Case shows, human dignity in the Court’s understanding may limit the exercise of artistic freedom that interferes with a dead person’s general right to respect. What is also clear from Mephisto and other decisions featured in this chapter is that dignity applies to human beings, living or dead, born or unborn.6 7.2 Mephisto Case (1971) 30 BVerfGE 173 [While in exile from Nazi Germany in the 1930s, Klaus Mann published Mephisto, a satirical novel based on the career of his brother-in-law, Gustaf Gründgens, a Faustian actor who had attained fame and fortune during the Th ird Reich by renouncing his former liberal views and currying the favor of Nazi leaders. Mann later admitted that for him Gründgens personified “the traitor par excellence, the macabre embodiment of corruption and cynicism . . . who prostitutes his talent for the sake of some tawdry fame and transitory wealth.” When Mephisto was about to be reissued by a West German publisher in 1964, Gründgens’s adopted son secured from the Hamburg Higher Regional Court (Oberlandesgericht) an order banning its distribution. The judgment was affi rmed by the Federal Court of Justice (Bundesgerichtshof) on the ground that the novel dishonored the good name and memory of the now-deceased actor. The publisher fi led a constitutional complaint in the Federal Constitutional Court against both judgments, arguing that they contravened Article 5 (3) of the Basic Law, which guarantees the freedom of art and science. The Court sought to balance the right to freedom of art against the human dignity clause of Article 1, the constitutional provision raised in the deceased actor’s defense by his adopted son.

∂

Judgment of the First Senate. . . . The constitutional complaint is rejected. C. III. . . . Article 5 (3) [1] contains fi rst of all an objective norm that regulates relationships between the realm of the arts and the state and decides between values. At the same time, this provision guarantees everyone who is active in this sphere an individual right to freedom.

Human Dignity, Personal Liberty, and Equality 359

1. . . . The essential characteristic of artistic activity is free creative shaping in which the artist’s impressions and experiences are given immediate expression through a specific form of language. . . . 2. . . . Even if the artist describes events of real life, this reality is “poeticized” in a work of art. The real event is detached from empiric-historical reality and brought into new relations that are governed . . . by artistic rules of graphic description. The truthfulness of an individual event can and sometimes must be sacrificed to artistic uniformity. The essence and purpose of the basic right of Article 5 (3) [1] are to keep processes, modes of behavior, and decisions based on the inherent laws of art and determined by aesthetic considerations independent of limits set by public authorities. The manner in which an artist counters reality and describes events that he experiences in this encounter cannot be prescribed for him if the process of artistic creation is to develop freely. Only the artist himself can decide the “rightness” of his attitude toward reality. . . . [The First Senate continues with its discussion of speech and artistic activity, holding that Article 5 (3) [1] “guarantees autonomy of the arts without reservation.” Since freedom of art, therefore, cannot, as with the general freedom of speech secured by Article 5 (2), be restricted by the provisions of general laws, it can only be limited by the Basic Law itself, notably (in this case) by the human dignity clause of Article 1 (1). The following extracts focus on the senate’s interpretation of Article 1 in relation to artistic activity.] 5. On the other hand, the right of artistic liberty is not unlimited. Like all basic rights, the guarantee of liberty in Article 5 (3) [1] is based on the Basic Law’s image of man as an autonomous person who develops freely within the social community. But the unconditional nature of basic rights means that limits on artistic freedom can be determined by the constitution itself. Since freedom of the arts does not contain any reservation for the legislator, it cannot be restricted by the general legal system or by an indefi nite clause that . . . endangers values necessary for the existence of a national community. A confl ict respecting artistic freedom must rather be solved by interpreting the constitution according to the value order established in the Basic Law and the unity of its fundamental system of values. Freedom of the arts is closely related to the dignity of man guaranteed in Article 1, which, as the supreme value, governs the entire value system of the Basic Law. But the guarantee of freedom of the arts can confl ict with that latter constitutionally protected sphere since a work of art can also produce social effects. Because a work of art acts not only as an aesthetic reality, but also exists in the social world, an artist’s use of personal data about people in his environment can affect their social rights to respect and esteem. . . . 6. In order to judge the protective effects arising from the personality sphere of the late actor Gründgens, the courts properly referred to Article 1 (1). It would be inconsistent with the constitutionally guaranteed right of the inviolability of the dignity of man, upon which all basic rights are based, if man . . . could be degraded or debased

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in this right to respect even if only after his death. Accordingly, the obligation imposed on all state authority in Article 1 (1) to protect the individual against attacks on his dignity does not end with death. . . . 7. The solution to the confl ict between the protection of one’s personality and the right to artistic freedom must therefore take into account not only the effects of a work of art in the extra-artistic social sphere but also aesthetic considerations. The image of man upon which Article 1 (1) is based is influenced by the guarantee of liberty in Article 5 (3) [1], just as much as this guarantee is influenced by the value conception of Article 1 (1). The individual’s social right to respect and esteem is not superior to artistic freedom, but neither can art simply ignore the individual’s claim to proper respect. Only after carefully weighing all the facts of individual cases can one decide whether an artistic presentation’s utilization of personal data threatens such a grave encroachment upon the protected private sphere of the person it describes that it could preclude publication of the work of art. It must be taken into account whether and to what extent the “image,” because of the artistic shaping of the material and its incorporation into and subordination to the overall organism of the work of art, appears as so independent from the “original” that the individual, personal-intimate aspects have been rendered objective in favor of the general, symbolic character of the “figure.” If such a study . . . reveals that the artist has given or even wanted to give a “portrait” of the “original,” then the answer depends on the extent of artistic abstraction or the extent and importance of the “falsification” of the reputation or memory of the person concerned. IV. 2. . . . The Hamburg Higher Regional Court and the Federal Court of Justice assumed that the protection of Gründgens’s right to respect extends to the social sphere. In this regard the Federal Court of Justice correctly considered that the need for protection—and accordingly the obligation to protect—diminishes as the memory of the deceased person fades. . . . On the other hand, the courts also assumed that Klaus Mann’s novel constitutes a work of art within the meaning of Article 5 (3). . . . The courts tried to solve this confl ict by weighing the confl icting interests against each other. . . . [In sustaining the judgment against the complainant, the Constitutional Court stressed the narrow limits of its powers of review. “In par ticu lar,” said the Court, “the establishment and evaluation of facts and the interpretation of laws and their application to individual cases are the business of the ordinary courts and cannot be reviewed by the Federal Constitutional Court.” The Constitutional Court sees its task as one of determining whether the lower courts did, in fact, properly weigh the confl icting rights of the parties under the Basic Law, and whether it attached the proper significance to the constitutional rights implicated in the case. The Court found that the courts’ judgment was fully and adequately explained. It thus did not “demonstrate any incorrect conception of the essence of the basic right that was defeated.”]

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Finally, the complainant cannot challenge the conclusion of the courts . . . by arguing that the ban on publication is disproportionate to the encroachment on the late Gustaf Gründgens’s right to respect. It is true that the Federal Constitutional Court has repeatedly emphasized that the principle of proportionality has constitutional rank and must therefore be considered whenever state authority encroaches on the citizen’s sphere of liberty. But the instant case does not involve such an encroachment. The courts simply had to decide a claim based on private law made by one citizen against another; that is, to give concrete defi nition to a relationship of private law in an individual case. . . . The primary function of private law is to settle confl icts of interests between persons of equal legal status in a manner as appropriate as possible. . . .

∂

Esra Case: A Reprise of Mephisto. In 2007, thirty-six years after the decision in Mephisto, the First Senate handed down yet another divided opinion in which the protection of the human personality prevailed over freedom of art.7 Like Mephisto, Esra involved the real-life novel Esra in which the fictional protagonists were modeled on the author’s former girlfriend and her mother, both of whom were maliciously portrayed, along with the intimate details of their private lives, including the sex life of the former girlfriend. Once again, the senate underscored the absolute nature of artistic freedom under Article 5 (3). Accordingly, this freedom cannot be limited by any public authority; it can only be curtailed by the higher-ranking constitutional principles of human dignity and the right to personality under Articles 1 (1) and 2 (1) of the Basic Law, provisions the Constitutional Court as guardian of the Basic Law is charged with enforcing. The five justices in the majority held that the novel’s portrayal of the two main characters severely encroached on the intimate sphere of the persons on whom the fictional characters were based. Why? Because, according to the majority, their friends and acquaintances would easily identify their biographies with the lives of the fictional characters. The five justices were well aware that works of fiction are often based on the personalities or experiences of real persons. In a critical passage, however, they explained that “the more artistic expression affects the innermost sphere of the human personality, the more it has to be fictionalized so as not to infringe the general rights under Article 2 (1) and 1 (1).”8 The three dissenting justices (Christine Hohmann-Dennhardt, Reinhard Gaier, and Wolfgang Hoff mannRiem) objected to this standard, holding that its application could lead to unacceptable restrictions on artistic freedom.9 Images of Person and Polity. The Constitutional Court’s “dignitarian” jurisprudence contains numerous declarations about the nature of the human person and the polity. Indeed, this jurisprudence would be unintelligible without reference to the concepts of person and society on which it is based. In seeking to advance human dignity as a constitutional value, both Court and commentators have relied on three politically significant sources of ethical theory in postwar Germany—Christian natural

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law, Kantianism, and social democratic thought—present in the constitutional text as a whole. It is hardly surprising, therefore, on the natural-law side, to find the human person described in legal literature and in several early constitutional cases as a “spiritual-moral being” entitled to rights found in a “preexisting supra-positive order of justice.”10 On the other hand, as G. P. Fletcher has pointed out,11 emphasis in the Constitutional Court’s jurisprudence on individual autonomy, moral duty, and human rationality manifests equally strong Kantian influences. The more socially oriented strands of constitutional thought may be said to reflect social democratic theory. These orientations have converged in German constitutional jurisprudence to produce an integrated conception of the human person as an individual possessing spiritual autonomy, which—in a properly governed society—is to be guided by social discipline and practical reasonableness.12 A strong personalist and communitarian perspective pervades this conception of the human person. Mephisto captures the essence of this philosophy when describing a human being “as an autonomous person who develops freely within the social community” (emphasis added).13 The Investment Aid I Case (1954; no. 10.1) was among several early opinions in which the Court referred to human beings as community-centered persons: “The image of man in the Basic Law,” declared the Court, “is not that of an isolated, sovereign individual; rather, the Basic Law has decided in favor of a relationship between individual and community in the sense of a person’s dependence on and commitment to the community, without infringing upon a person’s individual value.”14 The morality of duty and the principle of human solidarity implicit in this statement and reflected in parts of the Basic Law bear the clear imprint of Kantian moral theory.15 Needless to say, however, this theory is also shared by other philosophical traditions. Mephisto articulates a vision of the polity that might remind Americans of Lincoln’s elevated image of a fraternal democracy.16 Society, the Court affi rmed, is more than an aggregation of isolated individuals motivated by self-interest and a desire to manipulate one another for purely personal ends. Neither did the Court offer a blanket endorsement of the value of autonomy as against competing social goods. Indeed, the notion of a simple opposition between person and polity fits uncomfortably into the Court’s jurisprudence and the political theory of the Basic Law itself. The Court’s vigilant defense of personal freedom interlocks with the Basic Law’s communitarian values. Human dignity resides in individuality, yes, but in sociality as well. Dignity requires not only the protection of the human personality and the freedom of the individual, but also the promotion of goods such as communal relationships, family, participation, communication, and civility.17 The Basic Law was framed not for individuals alone but for an organic association of persons expressing its will to live a common social, political, economic, and moral life grounded in the overwhelming ethical principle that human beings must always be treated as ends, never as means. Mephisto goes so far as to include in its vision of community not only the living, but the dead as well. According to the Court, these persons—particularly those recently deceased—remain in communion with the living, and the living owe them continuing honor and respect.

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Th is highly personal conception of human dignity was the focal point of a constitutional attack on the sentence of life imprisonment, even for the crime of murder. The Life Imprisonment Case, featured below, is the closest available analogy to American death penalty adjudication, in which the notion of human dignity has also played a significant role.18 Owing to the abolition of capital punishment under Article 102 of the Basic Law, there is no direct German parallel to the U.S. Supreme Court’s extensive and confounding death penalty jurisprudence. In Life Imprisonment the Constitutional Court considered an extensive literature as well as expert testimony on the effects of life imprisonment on the prisoner’s dignity and personality. The Kantian injunction that human beings are to be treated as ends, not means, applies as much to closed institutions as it does to normal society. Th is concept of dignity has taken such deep root in Germany that, for example, the use of the polygraph in a criminal proceeding has been invalidated on the basis of human dignity. To elicit the truth by attaching persons to a machine, said the Court, is to regard them as objects and not as human beings capable of telling the truth through ordinary questioning.19 7.3 Life Imprisonment Case (1977) 45 BVerfGE 187 [A drug addict threatened to expose the defendant for selling forbidden drugs if the defendant failed to deliver a certain drug the addict had already ordered and for which he had paid. At an appointed time the defendant delivered the drug and then, as the addict was injecting himself with it, the defendant shot the addict in the back of the head three times at close range. The Penal Code (Strafgesetzbuch) as revised in 1969 prescribed a mandatory penalty of life imprisonment for any person who killed another out of wanton cruelty or to cover up some other criminal activity. The defendant was charged under this statute. The Verden Regional Court (Landgericht), before which defendant was to be tried, regarded the penalty as incompatible with the dignity clause of Article 1, whereupon, pursuant to the Court’s concrete judicial review jurisdiction, it referred the question to the Constitutional Court. The trial court claimed that mental deterioration would result from the knowledge that one would never be able to return to society, and that the punishment thus confl icted with the legislature’s obligation to respect the human dignity to which every human being, even a criminal, is entitled. The ordinary court maintained that mandatory life imprisonment, offering no possibility of reentering society, would reduce the criminal to the state of a mere object.]

∂

Judgment of the First Senate. . . . A sentence of life imprisonment represents an extraordinarily severe infringement of a person’s basic rights. Of all valid punishments in the cata logue of [criminal]

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penalties, this one is the most invasive of the inviolable right to personal freedom guaranteed by Article 2 (2). . . . In carry ing out this penalty, the state not only limits the basic right secured by Article 2 (2), but it also— depending of course on the individual case—implicates numerous other rights guaranteed by the Basic Law. The question posed by this case is therefore of considerable gravity and importance. Under Article 2 (2) of the Basic Law, the right of personal freedom may be limited by an act of Parliament. But Parliament’s freedom to introduce legislation is limited by the constitution in a number of ways. In exercising its powers the legislature must take account of both the inviolability of human dignity (Article 1 (1)), which is the highest value of the constitutional order, as well as the principles of equality (Article 3 (1)), the constitutional state, and the social state (Article 20 (1)). Since the freedom of the individual is already such an important legal interest that it may only be limited on grounds that are truly compelling, lifelong deprivation requires special scrutiny under the principle of proportionality. . . . C. I. 2. Life imprisonment has been at the core of criminal sanctions for ages. Its significance in modern times has decreased because the death penalty is now the harshest penalty. The dispute over the death penalty has made life imprisonment an alternative; the constitutionality of life imprisonment has not generally been questioned. A substantial amount of older literature has examined in depth the effect and consequences of life imprisonment on the human personality. Advocates of the death penalty advance the argument that life imprisonment is a more cruel and inhuman punishment than the death penalty. It was not until the furor over the death penalty had subsided that scientists in the late 1960s began to concern themselves with the problems of life imprisonment. Since then, the discussion of this maximum penalty has not abated. In fact, in recent years the controversy has grown more intense in the scientific literature, while the courts have barely concerned themselves with the issue. The criminal courts have presumed that life imprisonment presents no constitutional problem. Only very recently did the First Senate of the Federal Court of Justice with jurisdiction over criminal cases—probably spurred on by the Verden Regional Court’s referral of this question to the Constitutional Court—venture to say: “Life imprisonment for murder is compatible with the constitution and conforms to the general legal outlook and to our existing jurisprudence; hence, the senate sees no occasion now to depart from this view.” The Federal Court of Justice summarily declared the . . . issue raised . . . in this case to be unfounded. The court found the penalty of life imprisonment to be wholly compatible with the Basic Law. . . . [The Constitutional Court reviewed the arguments that led the framers of the Basic Law to abolish the death penalty. In their view, the Court found, life imprisonment under some conditions would substitute for the death penalty. In the following extract the Court relied on sociolog ical fi ndings while asserting the need for an “objective” approach to constitutional interpretation.]

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Th is determination, however, does not clearly decide the constitutional issue before us. Neither original history nor the ideas and intentions of the framers are of decisive importance in interpreting par ticu lar provisions of the Basic Law. Since the adoption of the Basic Law, our understanding of the content, function, and effect of basic rights has deepened. Additionally, the medical, psychological, and sociolog ical effects of life imprisonment have become better known. Current attitudes are important in assessing the constitutionality of life imprisonment. New insights can influence and even change the evaluation of this punishment in terms of human dignity and the principles of a constitutional state. II. 1. The constitutional principles of the Basic Law embrace the respect and protection of human dignity. The free human person and his or her dignity are the highest values of the constitutional order. The state in all of its forms is obliged to respect and defend it. Th is is based on the conception of human persons as spiritual-moral beings endowed with the freedom to determine and develop themselves. Th is freedom within the meaning of the Basic Law is not that of an isolated and selfregarding individual but rather that of a person related to and bound by the community. In the light of this community-boundedness, personal liberty cannot be “unlimited in principle.” The individual must accept those limits on freedom of action that the legislature deems necessary in the interest of the community’s social life; yet the autonomy of the individual also has to be protected. Th is means that the state must regard every individual within society with equal worth. It is contrary to human dignity to make persons the mere tools of the state. The principle that “each person must shape his own life” applies unreservedly to all areas of law; the intrinsic dignity of each person depends on his or her status as an independent personality. In the area of criminal sanctions, which demands the highest degree of justice, Article 1 (1) determines the nature of punishment and the relationship between guilt and atonement. The basic principle nulla poena sine culpa has the rank of a constitutional norm. Every punishment must justly relate to the severity of the offense and the guilt of the offender. Respect for human dignity especially requires the prohibition of cruel, inhuman, and degrading punishments. The state cannot turn the offender into an object of crime prevention to the detriment of his or her constitutionally protected right to social worth and respect. [It] must preserve the underlying assumptions governing the individual and the social existence of the human person. Thus, Article 1 (1) considered in tandem with the principle of the state based on social justice requires the state to guarantee that minimal existence—especially in the execution of criminal penalties—necessary for a life worthy of a human being. If human dignity is understood in this way, then it would be intolerable for the state forcefully to deprive [persons of their] freedom without at least providing them with the chance to someday regain their freedom. We must never lose sight of the fact that human dignity is indispensable. We cannot separate our recognition of the duty to respect human dignity from its historical development. The history of criminal law shows clearly that milder punishments have replaced those more cruel in character and that the wave of the future is toward

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more humane and differentiated forms of punishment. Thus, any decision defi ning human dignity in concrete terms must be based on our present understanding of it, and not on any claim to a conception of timeless validity. 2. If these standards are used in assessing the nature and effect of life imprisonment, then there is no violation of Article 1 (1). . . . aa. A sentence of life imprisonment must be supplemented, as is constitutionally required, by meaningful treatment of the prisoner. Regarding those prisoners under life sentences, prisons also have the duty to strive toward their resocialization, to preserve their ability to cope with life and to counteract the negative effects of incarceration and the destructive changes in personality that accompany imprisonment. Th is task fi nds its justification in the constitution itself; it can be inferred from the guarantee of the inviolability of human dignity within the meaning of Article 1 (1) of the Basic Law. In enforcing this punishment in the Federal Republic, state officials are under a duty not merely to incarcerate but also to rehabilitate the prisoner through appropriate treatment, a policy consistent with previous decisions of this Court. The Court on several occasions has maintained that rehabilitation is constitutionally required in any community that establishes human dignity as its centerpiece and commits itself to the principle of social justice. The [prisoner’s] interest in rehabilitation flows from Article 2 (1) in tandem with Article 1. The condemned criminal must be given the chance, after atoning for his or her crime, to reenter society. The state is obligated, within the realm of the possible, to take all measures necessary for the achievement of this goal. . . . III. 4. a. An assessment of the constitutionality of life imprisonment from the vantage point of Article 1 (1) and the constitutional state principle shows that a humane enforcement of life imprisonment is possible only when the prisoner is given a concrete and realistically attainable chance to regain his or her freedom at some later point in time; the state strikes at the very heart of human dignity when treating prisoners without regard to the development of their personalities, stripping them of all hope of ever earning their freedom. The legal provisions relating to the granting of pardons do not sufficiently guarantee this hope, which makes a life sentence acceptable as a matter of human dignity. . . . A new trend was evident in the Justice Ministry’s 1974 draft of the fi fteenth amendment to the Penal Code. The draft provides that offenders sentenced to life imprisonment should have their records reviewed, with their consent, after they have served a certain length of time—the draft suggests at least twelve to fi fteen years. A review board would then decide whether the prisoner is likely to commit more crimes after being released. An independent parole board would render this decision subject to the approval of a superior appellate court. The foreword to the draft states, of course, that under certain conditions life imprisonment would be enforced if necessary to protect the common good. If needed to protect the common good, such sentences should not only be imposed by the state but also carried out. Experience shows, however, that incarceration for life is not always necessary to protect the common good.

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With regard to murder, the crime for which a sentence of life imprisonment is most often imposed, we are dealing with a significant number of persons who, in all probability, will not repeat their crime. In these cases, where the social prognosis is positive, life imprisonment can hardly be justified. Moreover, the long, continuous lack of freedom is an extraordinary physical and psychological burden that could result in substantial detriment to the prisoner’s personality, one good reason for introducing the possibility of release. A sentence of life imprisonment cannot be enforced humanely if the prisoner is denied a priori any and every possibility of returning to freedom. Indeed, it has hardly been the rule up to now to require the prisoner to serve out a life term. Yet an individual and case-by-case determination of whether a prisoner merits parole is not a satisfactory solution. Leading officials from the various states noted in their resolution of 16 March 1972 that the situation would have to be corrected by a uniform and coordinated parole policy throughout the Federal Republic. . . . IV. The legislature does not offend the constitutional requirement of sensible and appropriate punishment if it decides to impose life imprisonment for a murder of wanton cruelty. . . . [The Court next described various theories of punishment that inform the criminal law. Noting that current law adheres to the so-called unification theory, which tries to bring all the purposes of punishment—that is, rehabilitation, retribution, atonement, and prevention of crime—into a balanced relationship, the Court rejected the district court’s contention that life imprisonment in and of itself effectively serves none of these purposes.] Seen as a whole, life imprisonment for murder is not a senseless or disproportionate punishment. . . . c. The imposition of a life sentence does not contradict the constitutionally based concept of rehabilitation (positive special prevention) in the light of the practice of granting pardons and current legislation governing the criminal process. The murderer sentenced to life usually does have a chance to be released after serving a certain length of time. . . . But for the criminal who remains a threat to society, the goal of rehabilitation may never be fulfi lled. It is the par ticu lar personal circumstances of the criminal that may rule out successful rehabilitation rather than the sentence of life imprisonment itself. . . . V. 1. Article 1 (1) and Article 2 (1) (the principles of dignity and personal responsibility, respectively) together with the constitutional state principle require that guilt be assessed in accord with the idea of justice. The state must therefore tailor the threatened punishment to the severity of the crime and the culpability of the offender. . . . 2. The issue here is whether the principle of proportionality requires a penalty other than life imprisonment for “murders of wanton cruelty” or for cases of murder “to conceal another crime.” The question is particularly relevant here because, with the exception of murder and genocide, the courts are regularly granted a range of punishment within which the applicable court may ascertain the extent of punishment in a concrete case in accordance with those considerations pertaining to the imposition

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of punishment named in § 46 of the Penal Code. In the present case, the referring court also demands similar discretion so that it is not forced to impose the mandatory sentence of life imprisonment. . . . For a serious crime such as murder, substantive justice may warrant the effort to impose a uniform system of punishment. But clearly, the application of a rigid system of punishment may lead to unsatisfactory results in individual cases. The prescription of such harsh sentences would be free of constitutional doubt only when the judge retains some discretion in imposing a penalty that conforms to the constitutional principle of proportionality. But as oral argument before this Court has shown, when § 211 of the Penal Code—particularly the wanton cruelty and to conceal another crime provisions—is read in the light of the general section of the Penal Code, these provisions can be interpreted in a constitutionally permissible way. . . . c. . . . Thus, a literal interpretation of § 211 and its constituent elements is not mandatory. Narrower interpretations permitting proportionate sentences are permissible. Expert testimony and the aforementioned brief support this approach. It is ultimately the task of the responsible courts to adjudicate the tension between the principle of proportionality and the punitive sanction of the law. . . . Th is approach is compatible with § 211 (2) and the general purpose behind the statute; the constitutionality of the decision is thus affi rmed.

∂

Life Imprisonment and Its Aftermath. Life Imprisonment was not the first case to address the question of prisoners’ rights. Already in the Prison Correspondence Case (1972), the Constitutional Court had begun to consider the treatment of prisoners against the standards set forth in the principles of the Rechtsstaat and Sozialstaat. Under the terms of Article 19 (1), the Court declared that only an act of Parliament could limit the constitutional rights of prisoners and that such legislation would have to specify the purpose of imprisonment and lay down rules to ensure that this purpose conforms to constitutional principles.20 A year later, in the famous Lebach Case (1973; no. 8.7), the Court held that Article 2 (1), in tandem with the protection of human dignity and the social state principle, required prison authorities to adopt measures designed to rehabilitate prisoners so that, after a reasonable period of time, they might once again rejoin society as responsible and law-abiding citizens.21 The social state principle would also oblige the state to provide resources for the recovery, rehabilitation, and, later, the social reintegration of prisoners. Soon after the decision in Life Imprisonment, Parliament amended the Penal Code by authorizing courts to suspend a life sentence when the situation warranted the offender’s release from prison. Under the revised statute, courts may release an offender for a probationary period of five years if he or she has served fi fteen years of his or her punishment and if “the gravity of the offender’s guilt does not necessitate that he continue to serve his sentence.” In determining whether to release a person sentenced to life imprisonment, courts must consider the personality of the offender, his or her behavior in prison, the circumstances of the crime, and his or her capacity to

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lead a normal life outside prison.22 In the Penal Detention Case of 2006, the Court reaffi rmed the importance of these considerations while also making clear that a prisoner’s degree of guilt does not require the continued execution of a life sentence. But the Second Senate made equally clear that courts may refuse to suspend a life sentence when faced with clear evidence that the prisoner is likely to repeat the crime.23 The War Criminal Case (1986) raised the issue of whether an offender could be required to serve a life sentence merely because of the gravity of his or her crime.24 War Criminal involved a former Nazi official sentenced to life imprisonment in 1962 at the age of sixty-six for sending fi ft y persons, including children and pregnant women, to their deaths in the gas chambers of Auschwitz and Birkenau. Prison officials approved the prisoner’s petition for release in 1982, when he was eighty-eight years old, but the Frankfurt Higher Regional Court disallowed the release owing to the gravity of the crime. The Constitutional Court sustained this judgment because the higher court had properly weighed the factors relevant to a decision to release against the constitutional respect owed to human dignity. Yet the Court wove a new and liberal thread into the rule announced by Life Imprisonment, emphasizing that any judicial balancing of these factors may not place too heavy an accent on the gravity of the crime to the exclusion of a fair consideration of the personality, state of mind, and age of the offender. In War Criminal the Court reaffi rmed the values upon which it relied in Life Imprisonment; the offender cannot be denied all hope of release because the ultimate aim of any punishment, including life imprisonment, is the rehabilitation and “resocialization” of the offender. Citing the Prison Furlough Case (1983), decided three years before War Criminal, the Court observed: “If we are to protect the value order of the constitution, the right to human dignity may not be denied to an offender, notwithstanding the gravity and barbarity of the crime.”25 Indeed, the Second Senate concluded its unanimous opinion in War Criminal by noting that in any subsequent proceeding involving the release of the offender, given his advanced age, the ordinary court would be obliged to weigh more heavily than previously the personality, age, and prison record of the offender. Youth Imprisonment and Resocialization. The Court again considered prison conditions in the Youth Imprisonment Case (2006). German administrative regulations governing youth imprisonment had subjected youthful offenders to disciplinary procedures and surveillance analogous to those imposed on adult prisoners. Young prisoners had been restricted in the exercise of rights over and above their denial of liberty as such. In an enterprising opinion marked by boldness and sophistication, the Second Senate ruled that youthful offenders—here juveniles between the ages of fourteen and eighteen and young adults between the ages of eighteen and twenty-one— must be treated with special care and governed by precise statutory, not administrative, regulations. The senate left the existing disciplinary measures standing but declared them incompatible with the Basic Law. As is usual in such cases, the Court established a time frame within which the legislature would be obligated to enact the necessary reforms.26

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As in Prison Correspondence—and in Life Imprisonment and War Criminal—the Second Senate emphasized the critical importance of resocialization. But the Court found a heightened protection implicated with regard to youthful offenders. Chiefly, the state is required to provide forms of assistance tailored to their distinct biological, psychological, and social needs. The senate explained: “Imprisonment affects juveniles in a particularly far-reaching way. Their perception of time differs from that of older persons. They typically suffer more when forced to be alone, and their personalities are less formed than those of adults, [all of which] creates special needs and par ticu lar opportunities for further development.”27 The Court stressed the importance of counseling, leisure, physical activity, and continuing education to avoid irreparable damage to the young offender’s personality and to allow him or her to reenter society as an upright and self-reliant person. The senate also underscored the relevance of parental rights under Article 6 (2) in this context. When seen in conjunction with the principle of human dignity, the Court deemed familial contacts crucial for “positive social learning” and the corresponding development of the human personality. At the same time, the senate recognized the propriety of differentiating prisoners by age and the nature of their crimes. It also noted that prisoners must be protected from one another, even suggesting the suitability of separate accommodations for sex offenders and persons convicted of violent crime. One notable feature of Youth Imprisonment is the Constitutional Court’s insistence that the legislature base the implementation of youth prison reform on a careful analysis of studies dealing with young prisoners and their treatment. “The legislature,” said the senate, “must exhaust available sources of knowledge . . . and orient itself to the [contemporary] state of scientific knowledge.”28 The senate cited much of this “knowledge” in rendering its decision. The opinion is riddled with references to social and psychiatric studies of juvenile offenders as well as the research and recommendations of legal scholars in the fields of criminology and penal reform. Considering the implementation of youth prison reforms to be a matter of legislative discretion, the senate declined to mandate any particular program of regulation or assistance for youthful prisoners. The senate nevertheless made clear that the legislature’s discretion must be based on reliable evidence and exercised with due regard for constitutional values set forth in its opinion. As underscored in the Prison Labor Case (1998), the requirements set forth in Youth Imprisonment must constitutionally govern prison administration in general. German penology highly values work experience within prisons. Under the Federal Penal Enforcement Act, prisoners are obliged to work and to receive compensation for their labor as a means of preparing them for useful employment upon their release from prison. Prison Labor consolidated the complaints of several petitioners who objected variously to their level of compensation, the propriety or quality of their work assignments, and the imposition of punishment for a refusal to work. The Second Senate held that the level of compensation provided to prisoners is primarily a legislative matter, but in the interest of resocialization a compensation system must be adopted and may not fall below a reasonable threshold. A prisoner refusing to

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work claimed that he was being treated as an “inmate in a slave labor camp” in violation of international law and of Article 12 (3) of the Basic Law. The senate denied this claim, holding that under Article 12 (3) forced labor may be imposed on persons sent to prisons pursuant to a just and fair trial so long as the labor comports with the principle of human dignity and the penological goal of resocialization.29 Preventive Detention. Every society faces the age-old problem of what to do with prisoners about to complete their jail terms but whose mental state or reputation for lawlessness poses a continuing threat to society. Since 1998, the federal government and several states (Länder) had passed laws extending the confi nement of prisoners— sex offenders in particular—who are resistant to rehabilitation and likely to repeat their crimes. The constitutionality of these laws was challenged in several cases handed down between 2004 and 2011. In two of these cases the detention was held to violate the Basic Law’s dignity, right-to-personality, and general liberty clauses. In the Preventive Detention I Case (2004),30 the Second Senate upheld the federal law (Sexual Offenses Protection Act of 1998 and amendments thereto) over the objection, inter alia, that it imposed no maximum period for preventive detention and was impermissibly retroactive. But the opinion also included strong reminders of the constitutional standards required by the human dignity clause of Article 1 (1) and the social state principle laid down in Article 20 (1). Among these was the senate’s emphasis on the importance of resocialization. In the spirit of Life Imprisonment, the senate held that the continued confi nement of dangerous offenders would be constitutional only if they were provided with adequate treatment to offset the harmful effects of incarceration and given a realistic chance of reentering society as responsible citizens.31 In the Preventive Detention II Case (2004),32 however, the Second Senate struck down the preventive detention laws of Bavaria and Saxony-Anhalt. These laws, meant to fi ll gaps in federal law, were justified as legitimate local police regulations. Apart from fi nding the regulations in violation of federalism principles,33 the senate regarded them as incompatible with the Basic Law for keeping sex offenders in preventive detention without a “comprehensive evaluation” (Gesamtwürdigung) of their condition. In addition, said the senate, an offender’s refusal of treatment or therapy is an insufficient reason for denying that person the liberty to which he or she is otherwise entitled under Article 2 (2) of the Basic Law.34 In the Preventive Detention III Case (2011),35 several prisoners charged with sexual offenses were detained after their jail sentences had expired. Pursuant to constitutional complaints by four detainees, the Second Senate held the detentions incompatible with constitutional state principle set forth in Articles 2 (2) [2] and 104 (1) of the Basic Law. These provisions specify that any interference with liberty must be set forth in law. Here the criminal laws under which the detainees were sentenced failed to account for the “requirement of distance” (Abstandsgebot) between a prison sentence and preventive detention, the purposes being respectively punishment, on the one hand, and the restoration of liberty, on the other hand. In following the lead of the European Court of Human Rights (the dialogue between the Constitutional Court and the Human Rights Court on the issue of preventive

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detention is addressed more fully in Chapter 6), the senate declared that any infringement of liberty brought about by the retrospective imposition of preventive detention can only be justified under a strict standard of proportionality.36 Honecker Case. One of the most important “dignity” cases to emerge in the aftermath of reunification was the arrest and prosecution of Eric Honecker, former head of Communist East Germany. Seriously ill with cancer, Honecker was held in custody in the Berlin-Moabit hospital prison pending his trial for complicity in killings that had taken place at the border between East and West Germany. He unsuccessfully challenged his detention and trial on the ground of his illness, claiming that any continuation of the proceeding against him would violate his fundamental right to human dignity. Lower courts ruled against him. On appeal, Berlin’s Constitutional Court held that his continued detention would infringe his constitutional right to respect for his human dignity. Drawing on dicta in the War Criminal Case (1986), the Berlin court ruled that “the continued detention in custody of a man suffering from a serious and incurable illness and close to death is incompatible with the requirement that human dignity be respected.” Striking the same Kantian note as the Federal Constitutional Court does in its human dignity jurisprudence, the Land court concluded: “It is contrary to the dignity of a person to make him the mere object of criminal proceedings and of detention in custody.”37 Human Dignity Recapitulated. Germany’s constitutional jurisprudence underscores both the objective and subjective character of the principle of human dignity: objective in the sense of imposing an affirmative obligation on the state to establish conditions necessary for the realization of dignity; subjective in the sense of barring the state from any direct interference with the negative freedom of individuals.38 Life Imprisonment teaches that persons are ends in themselves and may not be viewed as instruments for the achievement of other ends, such as lifelong imprisonment as a means of deterring crime when the evidence suggests that certain prisoners can be rehabilitated. (For this reason too, torture presumably would be barred absolutely by the guarantee of dignity.) As already noted, and it is worth repeating, the Court defines the concept of human dignity in personalistic and communal terms. In short, personhood has been affirmed not merely as a projection of the autonomous self; the human person is also oriented to a dialectic of personal communication. As a working concept of German constitutionalism, however, the meaning of human dignity is best understood in the light of its application to concrete situations. What the Constitutional Court appears to be saying in the above-featured cases—and those reprinted below—is that everyone, including the state, must respect the rationality and humanity of individual persons, although what is rational and humane may often depend on an interpreter’s intuitive understanding of what is right and wrong in particular situations.39 Needless to say, the concept of human dignity is controversial among the justices and constitutional scholars. The controversy surrounding its meaning and application in Germany is similar to the American debate over the meaning and application of

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the term “liberty” in the substantive due-process-of-law clauses of the Fift h and Fourteenth amendments. In Germany, unlike the United States, “dignitarian” jurisprudence often functions to limit or circumscribe specified liberty rights in the constitution. The Mephisto Case, in which the value of human dignity trumped freedom of the press, is a classic example of this. Another example is the Tobacco Atheist Case (1960), 40 in which the value of human rationality trumped a claim based on the free exercise of religion. In this case, the Constitutional Court sustained a decision of prison officials to deny parole to an unreformed Nazi who had persuaded fellow inmates to abandon their Christian beliefs in exchange for tobacco and other gifts. The inmate’s behavior, said the Court, confl icted with the “general order of values” under the Basic Law. “A person who exploits the special circumstances of penal servitude and promises and rewards someone with luxury goods in order to make him renounce his beliefs does not enjoy the benefit of the protection of Article 4 (1) of the Basic Law.” The Court added, “It follows from the Basic Law’s order of values, especially from the dignity of the human being, that a misuse [of a freedom] is especially apparent whenever the dignity of another person is violated.” 41 Th is is not the freedom commissioned by the liberal tradition. It is more than an illimitable liberty. It is the liberty of the person who by nature is bound up in communion with other persons. Justice Wolfgang Zeidler, a former president of the Federal Constitutional Court, was most resistant to what he had always regarded as the essential subjectivity implicit in this concept of dignity—or freedom. According to Tobacco Atheist, dignitarian jurisprudence has evolved out of the Basic Law’s “general order of values,” an order of values that, in Zeidler’s view, is presupposed, not substantiated. Phrases equivalent to “general order of values” that turn up repeatedly in constitutional cases involving the application of the principle of human dignity include “supreme basic values,” “basic decisions of the Basic Law,” and “unwritten elementary constitutional principles.” Zeidler and other critics see these broad terms and phrases as a kind of “scaffold” superimposed on the original structure of the constitution, a scaffold that permits interpreters to wash the structure in religious and ideological solvents of their own choosing. In Zeidler’s view, the ritual incantation of these broad—and indeterminate—standards of review too often leads to the triumph of general values over positive rights and liberties. “Whoever controls the [meaning of the] order of values,” he once remarked, “controls the constitution.” 42

right to life The Abortion I Case is a seminal decision under the right-to-life provision of the Basic Law. Article 2 (2) provides: “Every person shall have the right to life and physical integrity.” Any articulation of an unborn child’s right to life could clearly be drawn from this declaration. By the same token, any countervailing right of a pregnant woman to choose to have an abortion could just as clearly be drawn from Article 2 (1), which secures “the right to the free development of one’s personality.” In Abortion I

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the Court attempted to balance these confl icting rights; it stands in sharp contrast to the doctrinal analysis contained in the seminal American case of Roe v. Wade (1973).43 The fi rst abortion case arose out of § 218a of the Abortion Reform Act of 1974. Supported by a coalition of the spd and fdp, the new, liberalized statute provided that an abortion would no longer be criminally punishable if performed by a licensed physician with the consent of the pregnant woman during the fi rst twelve weeks of pregnancy. Prior to seeking an abortion, however, the woman was legally obliged to seek advice from a physician or counseling agency concerning available public and private assistance for pregnant women, mothers, and children. Criminal penalties would continue to be enforced as before with respect to abortions performed after the third month of pregnancy, except in those instances in which medical, eugenic, or ethical (i.e., in cases of rape or incest) indications would justify the fetus’s destruction. On 21 June 1974, three days after Parliament enacted the statute, the Federal Constitutional Court enjoined its enforcement in response to a petition from Baden-Württemberg, whereupon the Court reinstated the old law pending a full hearing on the Reform Act’s constitutionality.44 Apart from its permissible exceptions, the old law imposed criminal penalties on any person performing an abortion, or assisting in its per formance, at any stage of pregnancy. 7.4 Abortion I Case (1975) 39 BVerfGE 1 [In this abstract judicial review proceeding, the Federal Constitutional Court was asked to review the constitutionality of the Abortion Reform Act of 1974. In this instance 193 members of the Bundestag (Federal Parliament)—mostly Christian Democrats—and five state governments (Baden-Württemberg, Bavaria, Rhineland-Palatinate, Saarland, and Schleswig-Holstein) petitioned the Constitutional Court for a review of the new law on the ground that it violated several provisions of the Basic Law, including its human dignity and right-tolife clauses.]

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Judgment of the First Senate. . . . I. Section 218a of the Penal Code in the Version of the Fift h Law to Reform the Criminal Law of 18 June 1974, is incompatible with Article 2 (2) [1] in conjunction with Article 1 (1) of the Basic Law and is void insofar as it exempts termination of pregnancy from punishment in cases where no reasons exist which—within the meaning of the [present] decisional grounds—have priority over the value order contained in the Basic Law. . . . [The fi rst part of the opinion is a lengthy discussion of the history of the penal provisions on abortion and the legislative background of the new law. The Court then summarized the arguments advanced on both sides of the dispute.

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Before reaching the merits of the case the Court noted: “The statutory regulation in the Fift h Statute to Reform the Penal Law, which was decided upon after extraordinarily comprehensive preparatory work, can be examined by the Constitutional Court only from the viewpoint of whether it is compatible with the Basic Law, which is the highest valid law in the Federal Republic. The gravity and the seriousness of the constitutional questions posed become clear if it is considered that what is involved here is the protection of human life, one of the central values of every legal order. The decision regarding the standards and limits of legislative freedom of decision demands a total view of the constitutional norms and the hierarchy of values contained therein.”] C. I. 1. Article 2 (2) [1] of the Basic Law also protects the life developing within the mother’s womb as an independent legal interest. a. Unlike the case of the Weimar Constitution, the categorical inclusion of the inherently self-evident right to life in the Basic Law may be explained principally as a reaction to the “destruction of life unworthy to live,” the “fi nal solution,” and the “liquidations” that the National Socialist regime carried out as governmental measures. Article 2 (2) [1] of the Basic Law implies, as does the repeal of the death penalty by Article 102 of the Basic Law, “an affi rmation of the fundamental value of human life and of a state concept that is emphatically opposed to the views of a political regime for which the individual life had little significance and that therefore practiced unlimited abuse in the name of the arrogated right over life and death of the citizen.” b. In interpreting Article 2 (2) [1] of the Basic Law, one must proceed from its wording: “Everyone shall have the right to life. . . .” Life in the sense of the developmental existence of a human individual begins, according to established biologicalphysiological fi ndings, on the fourteenth day after conception (implantation, individuation). The developmental process thus begun is a continuous one that manifests no sharp demarcation and does not permit any precise delimitation of the various developmental stages of human life. Nor does it end with birth; for instance, the phenomena of consciousness specific to human personality do not appear until some time after birth. Therefore we may not limit the protection of Article 2 (2) [1] of the Basic Law either to the “completed” human being after birth or to the independently viable nasciturus. Article 2 (2) [1] guarantees the right to life to everyone who “lives”; no distinction can be made between individual stages of the developing life before birth or between prenatal and postnatal life. “Everyone” within the meaning of Article 2 (2) [1] of the Basic Law is “every living human being”; or, expressed otherwise, every human individual possessing life; “everyone” therefore also includes the as yet unborn human being. . . . [The Court noted that any failure to protect unborn life from its inception (i.e., from the fourteenth day after conception) would place the “security of human existence” generally in jeopardy. The First Senate then recalled the original history of the right-to-life clause and found that the framers of the Basic Law intended it to cover unborn life. But the Court said that the history of the clause

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“does not answer the question whether unborn life must be protected by penal law.”] 2. Therefore, we derive the obligation of the state to protect all human life directly from Article 2 (2) [1] of the Basic Law. Additionally, [this obligation] follows from the express provision of Article 1 (1) of the Basic Law; for the developing life also enjoys the protection that Article 1 (1) accords to the dignity of man. Wherever human life exists, it merits human dignity; whether the subject of this dignity is conscious of it and knows how to safeguard it is not important. The potential capabilities inherent in human existence from its inception are adequate to merit human dignity. 3. . . . According to established precedent of the Federal Constitutional Court, the constitutional norms contain not only an individual’s subjective defensive rights against the state. They also represent an objective order of values that serves as a basic constitutional decision for all areas of the law and provides guidelines and impulses for legislative, administrative, and judicial practice. . . . II. 1. The obligation of the state to furnish protection is comprehensive. . . . Human life represents a supreme value within the constitutional order that needs no further justification; it is the vital basis of human dignity and the prerequisite of all other basic rights. 2. The obligation of the state to take the developing life under its protection also exists in principle with regard to the mother. Undoubtedly, the natural union of the prenatal life with the mother establishes a special type of relationship for which there is no parallel in any other factual situation in life. Pregnancy belongs to the intimate sphere of the woman that is constitutionally protected by Article 2 (1) in conjunction with Article 1 (1) of the Basic Law. If one were to regard the embryo only as a part of the maternal organism, the termination of pregnancy would remain within the sphere of a woman’s private life into which the legislature may not intrude. Because the one about to be born is an independent human being under the protection of the constitution, termination of pregnancy has a social dimension that makes it accessible to and in need of state regulation. It is true that the right of a woman freely to develop her personality also lays claim to recognition and protection. Th is right includes freedom of action in its comprehensive meaning and consequently also embraces the woman’s responsible decision against parenthood and its attendant duties. But this right is not given without limitation—the rights of others, the constitutional order, and moral law limit it. The right to personality can never confer a priori the authority to intrude upon the protected legal sphere of another without a justifiable reason, much less the authority to destroy this sphere as well as a life, especially because a special responsibility exists precisely with respect to this life. No compromise is possible that would both guarantee the protection of the unborn life and concede to the pregnant woman the freedom of terminating the pregnancy because termination of pregnancy always means destruction of the prenatal life. In the ensuing balancing process, “both constitutional values must be perceived in their relation to human dignity as the center of the constitution’s value system.”

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When using Article 1 (1) as a guidepost, the decision must come down in favor of the preeminence of protecting the fetus’s life over the right of self-determination of the pregnant woman. Pregnancy, birth, and child-rearing may impair the woman’s right of self-determination and the right to many personal developmental potentialities. The termination of pregnancy, however, destroys prenatal life. Pursuant to the principle of carefully balancing competing constitutionally protected positions, and considering the fundamental concept behind Article 19 (2) of the Basic Law, the state must give the protection of the unborn child’s life priority. In principle, this preeminence lasts for the entire duration of the pregnancy and may not be questioned for any par ticu lar phase. . . . 3. We may deduce the basic position that the constitution requires of the legal order from the aforementioned discussion. The legal order may not use the woman’s right of self-determination as the sole guideline for its regulations. Basically, the state must assume that a woman has the duty to carry the pregnancy to term and must consequently consider its termination as a wrong. It must clearly express its disapproval of the termination of pregnancy. The state must avoid the false impression that terminating a pregnancy involves the same social course of events as, for instance, a trip to the doctor to have an illness healed or even a legally neutral alternative to contraception. . . . III. First, it is incumbent upon the legislature to decide how the state is to fulfi ll its obligation effectively to protect the developing life. 1. . . . It is therefore the state’s task to use sociopolitical means as well as public assistance to safeguard the developing life. The legislature is largely responsible for organizing what assistance can be effectuated and how these measures are to be implemented in detail. The Constitutional Court generally may not review these decisions. The legislature’s primary concern will be to strengthen the willingness of the expectant mother to accept the pregnancy as her own responsibility and to bring the fetus to full term. Regardless of how the state fulfi lls its obligation to protect human life, we must not forget that nature has entrusted the protection of the developing life to the mother. The principal goal of the state’s endeavor to protect life should be to reawaken and, if required, to strengthen the maternal will to protect the unborn child where it has been lost. . . . [A principal issue in this case is whether the Basic Law requires the criminalization of abortion. After noting that the legislature is not obligated to protect unborn life in the same way that it protects born life, the Court continued:] 2. a. From time immemorial it has been the task of the criminal law to protect the elementary values of community life. In the preceding passages we established that the life of every individual human being is among the most important legal values. The termination of a pregnancy irrevocably destroys human life that has come into being. It is an act of killing. . . . The use of criminal law to punish “acts of abortion” is undoubtedly legitimate; it is the law in force in most civilized states—under variously formulated conditions—and is particularly in keeping with the German legal tradition.

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b. But punishment should never be an end in itself. Basically, its use is subject to the decision of the legislature. Nothing prevents the legislature from expressing the constitutionally required disapprobation of abortion by means other than the threat of penal sanctions. What is determinative is whether the totality of those measures serving to protect prenatal life—whether classifiable as measures of private, public, or, more particularly, of social or criminal law—in fact guarantee protection commensurate with the importance of the legal interest to be safeguarded. . . . 3. As has been shown, the obligation of the state to protect the developing life also exists with respect to the mother. Here, however, the use of criminal law gives rise to special problems that result from the singular situation of the pregnant woman. The incisive effects of pregnancy upon a woman’s physical and mental condition are immediately apparent and require no further exposition. They often mean a considerable change in her entire lifestyle and a limitation of potential personal development. Th is burden is not always or not fully compensated by the fact that the woman fi nds new fulfi llment in her task as a mother and that the pregnant woman can claim assistance from the community (Article 6 (4) of the Basic Law). In individual cases difficult and even life-threatening situations of confl ict may arise. The unborn’s right to life may place a substantially greater burden on the woman than that normally connected with a pregnancy. Thus, we are confronted with the question of what she may reasonably be expected to endure; in other words, whether the state, even in these cases, may compel her to carry the child to term by means of criminal sanctions. Respect for the unborn life confl icts with the woman’s right not to be forced to sacrifice her own values beyond reasonable expectations. The legislature must show par ticu lar restraint in a situation of confl ict that, generally, permits no clear moral evaluation and in which a decision to terminate the pregnancy may be a question of conscience worthy of respect. If, in these cases the legislature does not consider the conduct of the pregnant woman deserving of punishment and forgoes the imposition of criminal sanctions, then this decision must be accepted constitutionally as the result of a judgment incumbent upon the legislature. . . . It would appear unreasonable to expect a woman to continue her pregnancy if the termination proves to be necessary to “avert a danger to the life” of the pregnant woman “or the danger of a grave injury to her health” (§ 218b (1), Penal Code in the Version of the Fifth Law to Reform the Criminal Law). In this case her own “right to life and physical inviolability” (Article 2 (2) [1] of the Basic Law) are at stake, and she cannot be expected to sacrifice it for the unborn life. In addition, the legislature may refrain from imposing penal sanctions for abortions in other cases where pregnancy would subject the woman to extraordinary burdens that, from the viewpoint of what may reasonably be expected of her, are as oppressive as those listed in § 218b (1). Special reasons for termination of a pregnancy include those based on eugenic, ethical (criminological), and social considerations. Also included are reasons based on urgent necessity that are contained in the federal government’s draft submitted during the sixth session of the Parliament and that were discussed publicly as well as during the legislative proceedings. In the deliberations of the Special Committee for Criminal

Human Dignity, Personal Liberty, and Equality 379

Law Reform the representative of the federal government demonstrated at length and with convincing reasons why it might not be reasonable to expect a woman to carry the pregnancy to term in these four cases. The decisive point in these cases is that another interest equally worthy of constitutional protection asserts itself with such urgency that the state’s legal order cannot require the pregnant woman always to defer to the right of the unborn. The legislature may also add termination of pregnancy for reasons of general necessity (social reasons) to this list of reasons. For the general social situation of the pregnant woman and her family may produce confl icts of such gravity that sacrifices in favor of the unborn life cannot be exacted by the instrumentalities of criminal law. In regulating this case, the legislature must describe the statutory elements of the offense that will not be subject to punishment so that the gravity of the social confl ict to be presumed here is clearly recognizable and so that—viewed from the standpoint of what the state may reasonably expect of the parties involved—congruence of this case with the other reasons for termination is assured. In removing genuine cases of this kind of confl ict from the protection of penal law, the legislature does not violate its duty to protect life. Even in cases of real confl ict the state may not be content with merely examining whether the legal prerequisites exist for exempting an abortion from punishment and certifying that they exist, where appropriate. Rather, we expect the state to offer counseling and assistance so as to remind the pregnant woman of her fundamental duty to respect the unborn’s right to life, to encourage her to go through with the pregnancy, and to support her—particularly in cases of social need— with practical assistance. In all other cases the termination of pregnancy remains a wrong deserving of punishment; for here the destruction of a legal interest of the highest order is subject to the uncontrolled discretion of another and is not motivated by any necessity. If the legislature had wanted to dispense with criminal sanctions, this decision would have been compatible with the protective command of Article 2 (2) [1] of the Basic Law only under the condition that another, equally effective, legal sanction was at its command that would permit the clear recognition of this act as a wrong (disapprobation by the legal order) and that would prevent abortions as effectively as a penal provision. [In the concluding section of its opinion, after examining abortion as a sociopolitical problem, the Constitutional Court found that the Abortion Reform Act fell short of constitutional standards in several particulars. First, it failed to express disapproval of abortion. The Court found that the regulatory scheme as a whole, undergirded by abortion funding through state medical insurance programs, conveyed the impression that abortion, like childbirth, is a normal procedure associated with pregnancy. The law must make clear, said the Court, that abortion is an “act of killing.” Second, the statute failed to distinguish between valid and invalid abortions, thus ignoring the normative content of the constitutional command to protect life. Th ird, the counseling procedures were

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flawed because they failed to deter abortion. “Physicians, on the basis of their professional training,” said the Court, “have neither the qualifications for such counseling activities nor, generally, the time required for individual counseling.” Additionally, the Court noted that counseling boards were required only to convey information, not to dissuade women from procuring abortions. Finally, the statute was flawed because the physician who was required to inform the pregnant woman of available social assistance could also perform the abortion. In the light of these statutory deficiencies, the Federal Constitutional Court suspended operation of the time-phase counseling rule pending adoption of a new statute consistent with the value order of the Basic Law. As the extract shows, the Constitutional Court instructed Parliament that in addition to permitting abortions for medical, eugenic, and ethical indications, it might also allow women to procure abortions in situations of extreme social hardship. In seeking to balance the right-to-life and personality clauses of the Basic Law, the Court concluded that the pregnant woman need “not be forced beyond reasonable expectations to sacrifice her life values in order to foster respect for the unborn.” But the Court clearly condemned any and every policy of abortion on demand and concluded that in the present circumstances abortion would once again have to be punished by law in order to adequately foster the protection of unborn life.] Justices Rupp-von Brünneck and Simon, dissenting. . . . The life of every single human being is, of course, a central value of the legal order. It is indisputable that the constitutional obligation to protect this life also encompasses its preliminary state before birth. The discussions in the Parliament and before the Federal Constitutional Court did not involve the whether, but only the how of this protection. The decision in this matter is the legislature’s responsibility. Under no circumstances can one deduce from the constitution a state obligation to subject the termination of pregnancy to punishment at every stage. The legislature was as free to opt for counseling and the time-phase rule as it was to opt for listing reasons for terminating pregnancy. Any contrary constitutional interpretation is incompatible with the freedomoriented character of the constitutional norms and, in a measure fraught with consequences, transfers decisional authority to the Federal Constitutional Court. In judging the Fift h Law to Reform the Criminal Law, the majority overlooks the singularity of the termination of pregnancy in relation to other dangers to life. It does not properly appreciate the social problems encountered by the legislature or the goals of the urgent reform. Precisely because every solution remains a patchwork, one should not raise constitutional objections over the fact that the Parliament—consistent with the reforms in other Western civilized states—has given sociopolitical measures priority over largely ineffective penal sanctions. Nowhere does the constitution prescribe a statutory “disapproval” of morally reprehensible conduct without regard to the protective effect such disapproval may actually have.

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A. I. The authority of the Federal Constitutional Court to annul decisions of the parliamentary legislator demands restraint in its use in order to avoid a dislocation of power among the constitutional organs. The command of judicial self-restraint, which has been termed the “life-giving elixir” of the judicial function of the Federal Constitutional Court, applies when a case does not involve warding off encroachments by governmental authority but rather involves the Court issuing directives for the positive development of the social order to the popularly elected legislature by way of constitutional review. In this instance the Federal Constitutional Court may not succumb to the temptation to assume the functions of the organ to be controlled if, in the long run, the status of constitutional jurisdiction is not to be endangered. 1. The review petitioned for in these proceedings moves beyond the area of classical control by constitutional courts. The fundamental norms at the heart of our constitution guarantee the citizen defensive rights vis-à-vis the state that provide him or her with a personal sphere where he or she may take responsibility for the unlimited structuring of his or her own life. To this extent the classic function of the Federal Constitutional Court consists in repulsing excessive encroachments by state power upon this sphere of freedom. Penal provisions are at the very pinnacle on the scale of possible state encroachment: They order the citizen to behave in a certain way and subject him or her to painful restrictions of freedom or fi nancial burdens in case of noncompliance. When a constitutional court reviews such provisions, it examines whether the enactment or implementation of the penal sanction permissibly encroaches upon the constitutionally protected sphere of freedom concerned; whether, therefore, the state is permitted to punish at all or only to a certain extent. . . . 2. Because fundamental rights, being defensive rights, are a priori ill-suited for preventing the legislature from repealing penal provisions, the majority of the Court would fi nd the basis for doing so in the more extensive meaning of fundamental rights as objective value decisions. According to this theory, fundamental rights not only regulate defensive rights of the individual vis-à-vis the state but also contain objective value decisions, which the state must continually implement through affi rmative mea sures. The Federal Constitutional Court has developed this concept through its commendable efforts to impart greater efficacy to fundamental rights in their capacity as rights designed to secure freedom and to aspire to social justice. The majority of the Court, however, does not adequately consider the differences between the two aspects of fundamental rights that are so important for control by constitutional courts. Fundamental rights, in the sense of defensive rights, have a relatively clear, recognizable content; in their interpretation and application, case law has developed practical [and] generally recognized criteria for the control of governmental encroachments—for example, the principle of proportionality. On the other hand, how affi rmative legislative measures should effectuate a constitutional value decision is ordinarily a most complex question. Value decisions, which of necessity are phrased in general terms, may perhaps be characterized as constitutional mandates

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that, though they give direction for all acts by the state, nevertheless must necessarily depend upon a translation into binding regulations. Greatly differing solutions are possible, depending on the assessment of factual conditions, concrete goals and their priorities, and the suitability of conceivable means and methods. The decision as to which solution is best frequently requires compromises and is accomplished by trial and error. In accordance with the fundamental rule of the separation of powers and democratic principles, this decision rests with the legislature upon which the people directly confer legitimacy. . . . The concept of the objective value decision may not, however, become the vehicle for transferring to the Federal Constitutional Court specifically legislative functions for the development of the social order. Otherwise the Court would be forced into a role for which it is neither competent nor equipped. Therefore the Federal Constitutional Court should continue to maintain the restraint it practiced up until the time of the university governance decisions. Th is Court should confront the legislature only when the latter has completely disregarded a value decision or when the nature and manner in which it effectuated the value decision are obviously erroneous. . . . II. 1. Our strongest reservation is directed to the fact that for the fi rst time in opinions of the Constitutional Court an objective value decision should function as a duty of the legislature to enact penal norms and therefore to postulate the strongest conceivable encroachment into the sphere of freedom of the citizen. Th is inverts the function of the fundamental rights into its contrary. If the objective value decision contained in a constitutional norm that protects a certain legal interest is enough to serve as a basis for deriving a duty to punish, then fundamental rights may surreptitiously become the basis of a maze of rules for the limitation of freedom instead of a bulwark for securing freedom. What applies to the protection of life may also be enlisted for other legal interests of high rank—such as physical inviolability, freedom, marriage, and family. The constitution, of course, presupposes that the state may also use its power of punishment to protect an orderly social life; but fundamental rights are meant not to require state intervention but rather to set limits on it. Thus, the Supreme Court of the United States has even considered it a violation of a basic right to punish abortions performed by a physician with the consent of the pregnant woman during the fi rst third of the pregnancy. It is true that this would be going too far under German constitutional law. According to the freedom-oriented character of our constitution, however, the legislature must have a justification for punishing but not for abstaining from punishment because it thinks that a penal sanction promises no success or appears to be an inappropriate reaction for other reasons. . . . [In this section of the opinion, the dissenters emphasize that “the legislature shall be allowed to forgo penal sanctions, only when it is established without doubt that milder measures favored by it to fulfi ll the duty of protection are ‘at least’ equally effective or more effective.” The dissent rejects the majority’s

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equation “of abortion in the fi rst stage of pregnancy with murder or intentional killing,” but acknowledges that the attitude of the pregnant woman changes with the biological development of the fetus, resulting in “a growing maternal relationship [corresponding] to the different embryonic stages of development.” In the dissent’s view, this growing maternal relationship justifies proscriptions of abortion in the late stages of pregnancy. In justifying abortion in the early stage of pregnancy, however, the legislature is permitted to consider the material, economic, and psychological situation of pregnant women, including such things as inadequate living conditions, domestic strife, disruption of career plans, and other confl ict situations.] B. 1. 3. In this whole situation, “the containing of the abortion epidemic” is not only a “goal desired socially and politically,” but also is urgently required precisely for a better protection of life and to restore the credibility of the legal order. In striving toward the solution of this most difficult problem the legislature has exhaustively evaluated all essential points of view. The reform of § 218 of the Penal Code has, for some time now, thoroughly occupied a public deeply split on the issue. Against this background, the parliamentary deliberations were carried out with great seriousness and uncommon thoroughness. Express reference was made to the value decisions of the constitution; unanimity existed about the state’s duty to protect unborn life. In ascertaining the authoritative factors and arguments for a sound decision, the proceeding of the legislative bodies corresponded totally to that which the decision on the Communist Party of Germany held to be characteristic of a legitimate formation of a popu lar mandate in a liberal democratic state. In the solution chosen the legislature was within its authority to proceed on the assumption that, in view of the failure of the penal sanction, the suitable means toward a remedy are to sought in the social and community realm and that involved is, on the one hand, facilitating the bearing of the child to term by the mother through preventive psychological, social, and social- political promotional mea sures and strengthening her willingness to this end; and, on the other hand, decreasing the number of unwanted pregnancies through better information about the possibilities for preventing conception. Even the majority does not apparently doubt that such measures seen as a whole are the most effective and are in accord with the earliest effectuation of fundamental rights in the sense of greater freedom and increased social justice. IV. On the whole therefore, in our opinion, the legislature was not prevented by the constitution from dispensing with a penal sanction that, according to its unrefuted view, was largely ineffective, inadequate, and even harmful. Its attempt to remedy through socially adequate means the manifestly developing inability of state and society in the present conditions to serve the protection of life may be imperfect; it corresponds, however, more to the spirit of the Basic Law than the demand for punishment and condemnation.

∂

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Dignity versus Personal Liberty. Abortion I is perhaps best understood in the light of other values of the Basic Law that help to flesh out the meaning of human dignity as many Germans understand it. As often noted in this book, the Constitutional Court has articulated a view of human dignity and personhood that, while protecting an inner core of personal freedom, concurrently binds the individual to certain norms governing the whole of society. One of these norms is contained in Article 6 (1), which confers the state’s “special protection” on marriage and the family. In addition, Article 6 (4) declares that “every mother is entitled to the protection and care of the community.” Even though Article 6 is not an important part of the Court’s analysis in Abortion I, the constitutional case law under Article 6—with its emphasis on fi lial commitment within the marital relationship—throws some light on the decision.45 Relevant too is the social state principle. When the social state principle is considered in tandem with the substantive value judgments of Article 6, the state may be said to be under an obligation to establish an environment within which the family is able to survive and flourish. Indeed, as the Court has frequently noted, the legal order exists to instruct its citizens in the moral content of the Basic Law, and that includes substantive values pertaining to the nature of life, personhood, and family. The dissenting opinion in Abortion I is a strong argument against judicial intervention in the legislative politics of abortion. The controversy among the justices did not turn on whether unborn life constitutes “life” within the meaning of Article 2. They agreed that it does, and that the state is also obliged to protect life. But who determines how best to secure the protection of unborn life in the face of an apparently intractable social problem? The dissenters felt that the legislature had adequately considered the importance of unborn life in settling on a time-phase rule together with compulsory counseling. The dissenting justices argued that the judicial recriminalization of abortion during the fi rst trimester of pregnancy exceeded the bounds of judicial power, since in their view the implementation of the Basic Law’s objective values was fundamentally a legislative task. It is important to note that neither the majority opinion nor the dissenting opinions refer to the fetus as a human person. Instead, the First Senate unfailingly refers to “unborn life,” “incipient life,” or “germinating life.” Because the fetus is not a “completed person,” noted the senate, it does not enjoy the same rights as other human beings. Yet fetal life is an “independent legal value” worthy of protection under the constitution. The German distinction between fetal life and persons is noteworthy in comparative perspective because it allowed the Constitutional Court to engage in a balancing process largely absent in the American case of Roe v. Wade (1973).46 In applications to the European Commission on Human Rights, two German women claimed that the Constitutional Court’s abortion decision violated the rights of privacy and religion under Articles 8 and 9 of the European Convention of Human Rights. The commission rejected these arguments over the strong dissent of two of its eighteen members.47 In the end, the Parliament complied almost to the letter with the rulings in Abortion I. The revised version of the Abortion Reform Act, passed on 18 May 1976, permitted abortions for medical, eugenic, ethical, and serious social

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reasons.48 The period within which abortions could legally be carried out varied with the par ticu lar reason for procuring the abortion. Medical abortions carried out in the interest of maternal health could be performed within the fi rst twenty-two weeks of pregnancy. After counseling and proper certification, “ethical” and “social” abortions were permissible within the fi rst twelve weeks.49 The Court’s imposition of an “indications” solution to the abortion problem troubled many Germans on both sides of the controversy. Anti-abortion advocates objected to the high number of abortions being performed for reasons of social hardship; 80 percent of current legal abortions fell into this category. The ease or difficulty of securing an abortion for social reasons depended largely on the counseling practices of the state or region charged with administering the law. “One of the most stinging thorns in the flesh of anti-abortion advocates,” wrote one commentator, “was the fact that abortions based on the social indication were covered by public health insurance.” 50 On the other hand, persons favoring abortion in early pregnancy claimed that the indications solution was excessively burdensome, interfered with a woman’s decision to choose in early pregnancy, and yet constituted no real deterrent to women determined to have a legal abortion. The rates of criminal prosecution were low and empirical studies showed that the law was not really working as intended by the Constitutional Court’s guidelines. Pressures for changing the law would persist, and German unification would hasten the change. Abortion and Reunification. As will be discussed at length in Chapter 10, the Unification Treaty inserted a new Article 143 into the Basic Law. In part, Article 143 was a transitional provision that allowed the five new eastern Länder to deviate from existing constitutional requirements for a period of two years (until 31 December 1992) in policy areas in which ingrained separate practices in the old German Democratic Republic would not permit the Basic Law’s immediate application. Abortion was one of these policy areas. West German law, conforming to the 1975 Abortion I case, and enacted pursuant to the 1976 Abortion Reform Act, permitted abortions to be performed by licensed physicians only for specified medical, genetic, ethical, and social reasons duly certified by a panel of doctors and other counselors. In the absence of these indications, abortion was, as a general principle, a criminal offense when performed at any stage of pregnancy. East Germany, by contrast, permitted abortion on demand within the fi rst trimester of pregnancy. Stalemated, the two German states agreed to retain their respective abortion policies until an all-German legislature could work out a satisfactory compromise. The Unity Treaty laid down a 31 December 1992 deadline for the enactment of a law acceptable to both sides.51 The fi rst all-German Parliament, elected on 2 December 1990, struggled to fi nd a middle ground between the confl icting residual policies of East Germany and West Germany. By May 1992, a severely fractured Bundestag had before it several proposals ranging from a plan to increase the severity of the former West German policy all the way over to one based on unrestricted freedom of choice. After months of debate and negotiation, the quarreling parties broke the logjam and reached a compromise,

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passing the Pregnancy and Family Assistance Act by a substantial majority (357 to 283 votes).52 The act incorporated a time-phase solution with obligatory counseling. The following passage captures the essential features of a detailed and complicated statute: The new “counseling model” retained the concept that abortion destroys life and should only be allowed if the continuation of pregnancy would result in an unreasonable burden for the woman. But at the same time it reflected the belief that the state’s duty to protect developing life could be better served, in general, by improving the social environment for women and families with children, and in the individual case of unwanted pregnancy, by comprehensive information and counseling, than by threatening punishment and establishing cumbersome procedures for obtaining a permission to abort (“support instead of punishment”). Consequently, the new legislation contained a voluminous package of general social measures on education, birth control, and state assistance in matters of family planning and pregnancy. With respect to the individual woman faced with an unwanted pregnancy, the act focused on providing not only state assistance in case of fi nancial need but on strengthening the woman’s rights and opportunities in education, workplace, career, and housing. Special emphasis was put on “day care.” 53

The new statute departed from the Constitutional Court’s earlier ruling in one crucial respect. Just as the rejected 1974 reform had done, it decriminalized abortion in the fi rst trimester of pregnancy. In words that would come back to haunt the Bundestag, the new change in the Penal Code declared that the interruption of pregnancy in some circumstances was “not illegal” (nicht rechtswidrig).54 Specifically, no criminal penalty would attach to an abortion if performed by a licensed physician after compulsory counseling and a three-day waiting period. If, after such counseling—it would have to be certified in writing and before the twelft h week of pregnancy—the woman still decided that an abortion was in her best interest, a licensed physician could then legally perform the abortion. The new all-German statute was immediately challenged before the Federal Constitutional Court, but unlike Abortion I, which was decided by the First Senate, the Abortion II Case came before the Second Senate. The switch is to be accounted for by a routine and largely nonpolitical redistribution of the workload between the two senates well before the arrival of Abortion II. The main political difference between the senates resided in the party affi liation of their presiding officers. Vice President Ernst Gottfried Mahrenholz, who presided over the Second Senate, was a Social Democrat, whereas Roman Herzog, president and presiding officer of the First Senate—to be elected a few years later as president of the Federal Republic—was a Christian Democrat. Mahrenholz was one of the two justices who dissented from the main ruling of Abortion II. But given the relationship between the two senates and the dynamics of decision making on the Court, described in Chapter 1, it is unlikely that the result of Abortion II would have been significantly different had the cases been decided by the First Senate.

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7.5 Abortion II Case (1993) 88 BVerfGE 203 [On 2 July 1992 the Federal Council of States (Bundesrat) approved the Pregnancy and Family Assistance Act and shortly thereafter the federal president signed it. Within hours of the signing, and with the backing of Chancellor Helmut Kohl, 249 Christian Democratic members of the Bundestag—all from the former West Germany—petitioned the Constitutional Court to enjoin the law’s enforcement in an abstract judicial review proceeding. Bavaria’s state government, claiming that several provisions of the statute were unconstitutional, fi led a separate petition. In a preliminary hearing, after a full day of oral argument on 4 August 1992, the day before the law would have entered into force, the Second Senate, to the surprise of many constitutional scholars and the chagrin of others, unanimously issued an injunction reinstating the old policies of East Germany and West Germany pending a full decision on the merits (Abortion II Temporary Injunction Case [1992]). On the merits, the senate reaffi rmed the essential core of Abortion I while simultaneously adopting a constitutional policy more amenable to the needs of unified Germany. The opinion of the Court and the two dissenting opinions take up 163 pages of the official reports. The extracts below are drawn from the case’s headnotes and key passages from the full opinion. The headnotes, drafted by the senate itself, summarize the main rulings of the judgment.]

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Headnotes 1. Germany’s Basic Law obliges the state to protect human life, including that of the unborn. Th is duty of protection is grounded in Article 1 (1) of the Basic Law. The object and scope of this duty is determined more specifically by Article 2 (2) of the Basic Law. Unborn life is due human dignity. The legal order must guarantee the proper legal foundation for the development of the unborn in terms of its right to life. The unborn’s right to life is not predicated on its acceptance by the mother but exists prior to this point in time. 2. The duty to protect the unborn is a duty owed to each individual, not just to human life in general. 3. The unborn merit legal protection even against the wishes of the mother. Such protection can be afforded to the unborn only if the legislature passes a law prohibiting abortion and places a basic legal obligation on women to carry their pregnancies to term. Prohibition of abortion and the basic obligation to carry a pregnancy to term constitute two inseparable elements of this constitutionally required protection. 4. Abortions performed at any point during a pregnancy must be fundamentally considered a wrong and thus unlawful. The determination of the right to life of the

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unborn must not be delegated to the discretion of a third party who is not bound by law, not even where the third party is the mother herself and no matter how limited the time period may be in which such a right may be exercised. 5. The scope of the duty to protect unborn human life is to be determined by weighing its importance and need for protection against other confl icting interests worthy of protection. Those interests, which collide with the unborn person’s right to life, include the claim of the pregnant woman to have her human dignity protected and respected (Article 1 (1))—above all, her right to life and physical integrity (Article 2 (2)) as well as her right of personality (Article 2 (1)). The constitutional right of a woman, however, does not extend to the claim that she has a fundamentally protected legal right to kill an unborn child under the terms of Article 4 (1). 6. The state must fulfi ll its duty of protection by adopting adequate measures setting legal and factual standards whose objective—in consideration of confl icting legal interests—is to provide for appropriate and effective protection (minimum protection). For this purpose, it is necessary to create a regulatory scheme that combines elements of preventive as well as repressive protection. 7. The fundamental rights of a woman do not mandate the general suspension of a duty to carry out a pregnancy, even within a limited time frame. But a woman’s constitutional rights permit—and in certain cases might require—recognition of exceptional circumstances under which such a duty shall not be imposed on her. It is up to the legislature to determine the specific criteria of these factual exceptions according to a standard of reasonableness. Those burdens shall constitute exceptions that require such a degree of sacrifice of individual needs by a woman that it would be unreasonable to expect this from her. 8. Under minimum protection the state is precluded from freely dispensing with criminal punishment and its protective effect on human life. 9. The state’s duty to protect the unborn also includes protecting the unborn from dangers emanating from the influence of the woman’s immediate or general social milieu or both her and her family’s present and foreseeable living circumstances and, as such, interfering with the woman’s willingness to carry out the pregnancy. 10. In addition, the state’s duty of care includes maintaining and raising the public’s consciousness of the unborn’s legal right of protection. 11. The legislature acts constitutionally when it adopts a regulatory scheme for the protection of the unborn that uses counseling as a means of inducing pregnant women in confl ict during the early stage of the pregnancy to carry their pregnancy to term. The legislature also acts within constitutional bounds when it dispenses with criminal prosecution for indicated abortions as well as the determination of such indications by third parties. 12. A counseling-based regulation must comply with underlying constitutional conditions that impose affi rmative duties on women for the benefit of the unborn. The state holds full responsibility for implementing the counseling procedure. 13. The state’s duty to protect the unborn requires that the physician cooperate not only in the interest of the woman but also for the benefit of the unborn.

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14. It is incompatible with the constitution (Article 1 (1)) to legally describe the existence of a child as a source of harm or damage. For this reason, the legal system is barred from acknowledging the requirement to provide for the maintenance of a child as a source of harm or damage. 15. Abortions performed without a prior determination of a specific indication that accords with the counseling requirement must not be deemed justified (not illegal). According to the inalienable, fundamental principles of law, an exceptional situation can be justified only when the state is required to establish the criteria for the indication as part of an official governmental action. 16. It is unconstitutional to create an entitlement to statutory health insurance benefits for the per formance of an abortion whose lawfulness has not been established. By contrast, it is not unconstitutional to grant social welfare benefits for abortions not incurring criminal liability under the counseling regulation where a woman lacks fi nancial means. Continued payment of salaries or wages in the case of an abortion is also constitutional. 17. The administrative power of the Länder remains unqualified where a federal law merely prescribes an obligation to be met by the Länder and not the specific regulations that can be implemented and enforced by the governmental administrative authorities of the Länder. Judgment of the Second Senate. . . . D. I. 1. The Basic Law requires the state to protect human life. Unborn life is human life and thus entitled to the state’s protection. The constitution not only supports direct state intervention on behalf of unborn life but also requires that the state protect unborn life from the illegal intervention of others. Th is duty to protect unborn life is found in Article 1 (1) of the Basic Law, which expressly obliges the state to respect and protect human life. . . . a. Unborn human life possesses human dignity; dignity is not merely an attribute of a fully developed personality or a human being after birth. . . . b. The duty to protect human life extends to the life of each individual being, not to human life in general. Any ordered life in common within a state requires that this duty be fulfi lled. The Basic Law imposes this duty on all levels of state authority (Article 1 (1)); or, on the state in all of its functions, particularly in the exercise of its legislative authority. The duty to protect extends also to the adoption of measures designed to ease the burden of pregnancy as well as to various rules of conduct. 2. The state imposes rules of conduct to protect unborn life by means of legal obligations, prohibitions, or duties to act or refrain from acting. These rules must also apply to the protection of the unborn child from its mother, regardless of the stage of this relationship of duality in unity [Zweiheit in Einheit]. But the unborn child can only be protected from its mother if the legislature prohibits an abortion and imposes a legal duty on the mother to carry the child to term. The fundamental prohibition on abortion and the fundamental duty to carry the child to term are inseparable elements of the constitutionally required protection.

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Moreover, the state must also protect unborn life against invasion by third parties, not the least of whom are people within the pregnant woman’s family or social circle. These individuals may threaten the unborn child directly or indirectly by denying the pregnant woman the assistance they owe her, creating difficulties for her because of the pregnancy, or pressuring her to terminate the pregnancy. a. These legislatively created rules of conduct cannot be simply voluntary; they must be imposed by law. The right to life is embodied in the norms of the Basic Law. Th is right is special and thus requires special binding rules for its effective realization. Criminal penalties, however, are not the only possible means, although they may sway individuals to respect and obey the requirements of law. Legal rules of conduct must provide for two kinds of protection. On the one hand, where a protected legal value is harmed or threatened, they must include a regulatory scheme that includes individualized preventive measures or punishment. On the other hand, such rules must be designed to strengthen and support popu lar values and concepts of right and wrong; they must promote the public’s consciousness of the unborn child’s legal right to protection [citing the Life Imprisonment Case]. b. But since the Basic Law does not elevate the protection of unborn life above all other legal values, the right of the unborn to life is not absolute. It is not elevated above all other legal values without exception; this is clear from Article 2 (2). . . . Rather, the scope of the state’s duty to protect the unborn is to be determined by weighing its importance and need for protection against other confl icting legal values. The legal values affected by the right to life of the unborn include the woman’s right to protection and respect for her own dignity (Article 1 (1)), the rights to life and physical integrity, and the right to personal development (Article 2 (1)). The legislature has the responsibility of determining the nature and scope of the required protection. To the extent that the legislature is constitutionally bound to act in this area, it must provide the minimum protection necessary to safeguard the relevant constitutional value. The required protection may not fall below this minimum standard [Untermassverbot]. . . . c. So as not to run afoul of this standard of minimum protection, the protection afforded the unborn must satisfy the minimum requirements of the legal order. aa. Th is principle requires that abortion be declared illegal as a general rule during all stages of pregnancy [citing Abortion I]. If the law does not declare abortion to be illegal, the unborn child’s right to life would be trumped by the legally unrestrained decision of the mother or other third party, and the legal protection of its life would no longer be guaranteed. The dignity claims of the woman, and her capacity to make a responsible decision, cannot justify such a devaluation of human life. The right to life itself must defi ne the scope and limits of its permissible infringement; this cannot be left to the complete discretion of third parties. . . . Although the right of the unborn to life is the superior value, it does not extend to the point of eliminating all of the woman’s legal rights to self-determination. Her rights can produce a situation in which it is permissible in exceptional cases—and is even required in some—not to impose a legal duty to carry the child to term.

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bb. The legislature is responsible for defi ning these exceptional circumstances. So as not to fall below the minimal requirement for protecting a basic right, the legislature must recognize that the confl icting legal values cannot be quantitatively balanced. From the perspective of unborn life, the legislature’s choice must be for life itself and may not embrace the mere balancing of losses and gains. Because abortion always results in the death of the unborn child, a balancing act of the kind suggested is impossible [citing Abortion I]. . . . Th is does not mean that the only constitutionally exceptional case where the woman need not carry her fetus to term is when her life or health is endangered. Other exceptions are imaginable. Th is Court has established the standard of an unreasonable burden as the basis for identifying such exceptions [citing Abortion I]. . . . The unreasonable burden standard is justified because in the light of the unique relationship between mother and child, prohibiting abortion does not end with the imposition of a duty to refrain from violating altogether the rights of another. There are further duties that affect the woman’s entire existence: the duty to carry and bear the child and to care for it many years after its birth. Given these pregnancy-related responsibilities and the psychic confl ict they may evoke, it is possible that many women in the early stages of pregnancy may experience serious, even life-threatening distress; in these circumstances, such urgent interests worthy of legal protection arise that the legal order cannot require the woman to value an unborn being’s right to life above all else, regardless of broader moral or religious concerns. An unreasonable burden cannot arise from the circumstances of a normal pregnancy. Rather, an unreasonable burden would have to involve such a measure of sacrifice of existential values as could not be expected of any woman. . . . In addition to defi ned medical, criminological, and embryopathic indications that would justify an abortion, there may be other situations where an abortion would also be indicated [as justified]. One such scenario would include a condition of such social or psychological distress that a clear case of an unreasonable burden would be demonstrated. cc. Although the unreasonable burden standard limits a woman’s duty to carry a child to term, it does not relieve the state from its duty to protect unborn human life. It directs the state to support the woman through counseling and assistance and to try to persuade her to carry the child to term. Th is is the presumption behind § 218a (3) of the Penal Code. dd. . . . But due to its extreme interventionist character, criminal law need not be the primary means of legal protection. Its application is subject to the requirements of proportionality. The criminal law is used as the ultima ratio of this protection. . . . Where the legislature has enacted constitutionally adequate, noncriminal measures to protect the unborn, the woman need not be punished for having an unjustified abortion in a limited number of defi ned instances so long as the legal order clearly expresses the view that abortion as a general rule is to be prohibited. So long as the law makes the general prohibition of abortion clear, this may be constitutionally sufficient to deter abortions in this limited set of circumstances. . . .

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3. The state’s duty to protect unborn life is not satisfied merely by defending it against invasion by others. The state must also take measures to confront dangers threatening the present and future real-life relations of the woman and her family. These relations may influence her decision to carry the child to term. Th is duty to protect unborn life implicates the state’s duty to protect marriage, family, and mothers under the terms of Article 6 (1) and (4) of the Basic Law. It obligates the state to address problems and difficulties that a woman might experience during pregnancy. Article 6 (1) and (4) expresses a binding commitment of protection embracing the entire sphere of public and private law, extending to the pregnant woman. Th is task is consistent with the commitment to treat motherhood and child-rearing activities as in the public interest and worthy of recognition. a. The care that the community owes mothers extends to an effort to prevent abortion in cases of existing material need or those that threaten the woman after the birth of the child. An effort needs to be made to remedy the disadvantages to women in education and employment that may result from pregnancy and childbirth. . . . The duty to protect unborn life, to defend marriage and the family (Article 6), and to secure the equality of men and women in employment (Article 3 (2)), together with Articles 3 and 7 of the International Covenant on Economic, Social, and Cultural Rights, obliges the state, and particularly the legislature, to fi nd a way to balance [the needs of ] family and employment and to ensure that child-rearing does not lead to disadvantages for women. [In a major departure from Abortion I, the Court declared that nonindicated abortions in the fi rst twelve weeks of pregnancy, while unjustified, need not be punished. A refi ned system of counseling oriented toward preserving the life of the fetus could now substitute for the criminal penalty. But sections of the Penal Code declaring abortions performed during the fi rst trimester of pregnancy “not illegal” were nullified. Nonindicated abortions must remain illegal even though unpunished. In addition, the Court directed the legislature to adopt mea sures in all spheres of law to support a woman’s decision in favor of life over abortion. Sections of the law governing Germany’s national health plan, which would have covered abortions not medically indicated, were struck down. Laws mandating that the government keep statistics on abortion in Germany that had been removed from the new legislation were restored. Finally, the Court said that the state could not constitutionally deny welfare assistance to poor women who wanted nonindicated abortions but could not afford them. There were two dissenting opinions. The fi rst—by Ernst Gottfried Mahrenholz, the Second Senate’s vice president and presiding justice, with whom Bertold Sommer joined—dissented from the majority’s view that nonhardship abortions were to be classified as illegal in the Penal Code. These justices felt that the Pregnancy and Family Assistance Act struck an adequate balance between the rights of life and personality under the Basic Law. Justice Ernst-

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Wolfgang Böckenförde, whose participation in the case was unsuccessfully challenged by the sdp on the basis of his having once belonged to a right-to-life group, wrote a second dissenting opinion to question the Court’s ban on paying for “illegal” abortions out of the state’s medical insurance program. Whether abortions performed for serious social reasons should be a part of the national health plan was, in his view, a matter of legislative discretion.]

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Impact of Abortion II. In rejecting the 1992 abortion statute, the Court tossed the ball back into Parliament’s court. Until Parliament acted to craft a new statute within the guidelines of Abortion II, the Court’s rulings would prevail in all of Germany. It would take Parliament another two years to agree on amendments to the 1992 statute. The legislative debate centered on three issues: the nature and extent of obligatory counseling, abortion fi nancing, and the criminal liability of persons within a pregnant woman’s social circle who might encourage her to procure an abortion. A compromise bill that commanded the support of a substantial parliamentary majority provided for compulsory counseling along the lines suggested by the Federal Constitutional Court, but it seemed to require less vigorous pro-life counseling than the Court had urged. The woman would be informed by a licensed social agency that the unborn child is entitled to the right to life at all stages of pregnancy and that under Germany’s legal order a nonindicated abortion, although not punishable if procured after compulsory counseling within the fi rst trimester of pregnancy, would be permissible only in exceptional circumstances. Counselors were required to provide the pregnant woman with all the advice and assistance needed to help her cope with the “confl ict situation” in which she found herself, but in doing so they placed a heavy emphasis on her own sense of responsibility.55 Parliament also narrowed the Constitutional Court’s holding that the state would be obligated to protect the pregnant woman against danger emanating from her friends and neighbors. The compromise bill confi ned punishment to those persons on whom the woman was dependent for subsistence and who would “reprehensibly” misuse this leverage to inveigle her into procuring an abortion.56 Finally, Parliament struggled to find ways to make it easier for women to secure financial support for abortions through the national health system. Although some cdu members felt that the compromise bill fell short of the Constitutional Court’s directives, there seemed to be little desire on Parliament’s part to mount another judicial challenge against national abortion legislation.57 Other abortion cases reaching the Court in the 1990s emerged from Bavarian regulations confi ning the practice of abortion to gynecologists and related specialists, prohibiting physicians from earning annually more than one-fourth of their income from performing abortions, and requiring physicians to refuse to terminate a pregnancy if the pregnant woman has not explained why she wants an abortion.58 Several Bavarian physicians challenged these regulations in complaints before the Federal Constitutional Court. In response, the First Senate invalidated each of them

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as an infringement of a physician’s occupational rights under Article 12 (1). In a 5–3 decision, the senate also voided the income quota and physician refusal provisions as beyond the competence of the Länder,59 effectively holding that their legislative competence in these matters had been preempted by the comprehensive federal statute passed in the aftermath of Abortion II. As for the limited number of licensed physicians permitted to perform abortions, six of the eight justices felt that a regulation of this nature was within the Land’s legislative competence, but nevertheless overturned the measure in question because Bavaria had not enacted transitional regulations authenticating the credentials of other physicians whose training and experience would qualify them to perform abortions.60 Abortion II has been compared to the U.S. Supreme Court decision in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), along with the suggestion that the jurisprudence of abortion in the two countries may be converging.61 Just as Casey provided the Supreme Court with the opportunity to revisit Roe v. Wade (1973), Abortion II allowed the Federal Constitutional Court to reconsider aspects of Abortion I (1975). In both cases, decided respectively in 1992 and 1993, the two courts reaffi rmed the essential core of their earlier decisions. One could say that the judgments converged to the extent that Casey and Abortion II narrowed the gap between the constitutional policies of the two countries: Casey because of the Supreme Court’s recognition of “the state’s profound interest in potential life” and its approval of legislative limits (rejected in Roe) on the right to abortion; Abortion II because abortion had been effectively decriminalized in the early stage of pregnancy. The two courts were nevertheless far apart in their jurisprudential approaches to abortion. Casey held that states may not impose “undue” burdens on the continuing fundamental legal right to abortion, while Abortion II held to the German view that abortion remains fundamentally incompatible with human dignity and the right to life. In the aftermath of Abortion I and II, right-to-life issues would arise in several other contexts, as the Schleyer Kidnapping and Aviation Security Act cases62 (respectively featured and discussed below) would demonstrate. And, as noted in the commentary following these cases, the right to life would also be implicated in an emerging German debate over doctor-assisted suicide as well as in cases involving the storage of chemical weapons on German territory. 7.6 Schleyer Kidnapping Case (1977) 46 BVerfGE 160 [On 5 September 1977, a terrorist group known as the Red Army Faction abducted Dr. Hanns-Martin Schleyer, president of the German Federation of Industries, after brutally slaying four of his aides. The kidnappers threatened to “execute” their hostage if the federal government failed to release from prison eleven of their comrades and ensure their safe exit out of the Federal Republic. When the government refused to comply, Schleyer’s son, an attorney, petitioned the Constitutional Court for a temporary injunction on behalf of his father. The

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motion was brought under § 30 of the Federal Constitutional Court Act, which empowers the Court to grant temporary injunctions when “urgently needed to avert serious detriment” to fundamental rights. Invoking the right-to-life provision of Article 2 (2), the petitioner argued that state authorities were obligated to meet the terrorists’ demands. Refusing to do so, he maintained, would be equivalent to an intentional act against his father’s life and limb. The petitioner also advanced an equal protection argument based on Article 3 because, in a previous abduction case involving an important public official, the government had released certain prisoners to save the official’s life.]

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Judgment of the Second Senate. . . . The motion for a temporary injunction is rejected. . . . C. I. Article 2 (2) [1] in conjunction with Article 1 (1) [2] of the Basic Law commits the state to the protection of each human life. Th is obligation is comprehensive. It requires the state to support and protect life; this means, principally, to protect it from unlawful interference by others. Th is precept is mandatory for all state authorities in accordance with their respective specific tasks. Because human life represents a supreme value, the state must take its duty to protect life particularly seriously. II. State authorities are basically free to decide how they should meet their obligation to protect life effectively. It is their task to decide what protective measures are useful and necessary to guarantee effective protection. If they cannot accomplish this by other methods, their discretion in the selection of protective measures may, under special circumstances, be reduced to the selection of one par ticu lar measure. We fully understand the petitioner’s standpoint. But contrary to his opinion, no such case is before the Court. The peculiarity of affording protection from life-threatening extortion by terrorists is characterized by the fact that protective measures must adapt to a multitude of unique situations. The government can neither standardize protective measures in advance nor derive standardized measures from an individual basic right. The constitution obliges the state to protect not just the individual but all citizens as a whole. The effective accomplishment of this duty requires that the competent state authorities be in a position to react appropriately to the circumstances of each individual case; this precludes planning specific measures. The constitution cannot prescribe that predetermined steps be taken because terrorists would then be able to predict how the state will react. Thus, the state would no longer be in a position to protect its citizens effectively. Th is would be contrary to the state’s task as articulated in Article 2 (2) [1] of the Basic Law. For the same reasons the state cannot systematically make identical decisions in all kidnapping cases pursuant to the general equality clause (Article 3 (1) of the Basic Law). The Federal Constitutional Court, therefore, is not in a position to order the

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competent state authorities to take any specific action. The government has the responsibility to decide which steps should be taken to fulfi ll the state’s obligation to protect life.

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Aviation Security Act Case. When seen against the backdrop of the abortion cases, Schleyer Kidnapping raises serious questions about the relationship between the right-to-life and human dignity clauses of the Basic Law. Article 2 (2) guarantees to all persons the right to life, but this right may be regulated by law. Dignity, however, which the state is obligated to foster and protect, must not be compromised by any law or regulation. The principle of human dignity, the Court has repeatedly held, is inviolable, absolute, and illimitable. To what extent, then, may the right to life be regulated in the public interest—or for any utilitarian purpose—if the principle of dignity absolutizes the right to life with the consequence that the state is categorically bound to protect human life under every and any circumstance? Th is issue has been discussed in the literature for years and appeared to reach its decisive jurisprudential moment in Aviation Security Act Case (2006). One dramatic reaction to the 11 September 2001 terrorist attack on the World Trade Center and the Pentagon was Germany’s Aviation Security Act of 2005. One of its provisions authorized the minister of defense, with the consent of the minister of the interior, to employ the armed forces to shoot down a passenger aircraft intended for use as a weapon aimed at civilian targets. Several lawyers and a fl ight captain fi led constitutional complaints against the statute, claiming its incompatibility with various provisions of the Basic Law, among them the right to life secured by Article 2 (2) in conjunction with the guarantee of human dignity under Article 1 (1). They argued that the statute “relativized the human life of the passengers on board, treating them as mere objects of state action and robbing them of their human value and honor.”63 The First Senate agreed but focused its attention fi rst on the “shoot down” authorization as incompatible with Article 35 (2) and (3) of the Basic Law. These paragraphs provide for Federation-Land cooperation in the event of a “natural disaster” or a “grave accident.” In such situations, the Länder may ask for federal assistance in response to which the federal government may issue regulations on the use of the armed forces. The senate ruled, however, that Article 35 does not permit the direct employment of military weapons against a passenger plane. In reinforcing this interpretation of Article 35, the senate invoked Article 87a (2), a provision that limits the use of the armed forces only for purposes “explicitly permitted” by the Basic Law. More relevant for present purposes, however, was the court’s consideration of the right-to-life and human dignity clauses of the Basic Law. To allow the “shoot down,” said the First Senate, would deprive passengers and crew of their right to selfdetermination and thus to make them “mere objects of the state’s rescue operation for the protection of others.”64 Innocent passengers, said the Court, are human beings and not simply parts of the aircraft. The senate reiterated its long-standing position on the right to life in conjunction with the principle of human dignity. It noted:

Human Dignity, Personal Liberty, and Equality 397 The right to life guaranteed by Article 2 (2) is subject to its reservation clause, [stating that the right to life may be limited only by a parliamentary statute]. Any law limiting this right, however, must be considered in the light of its close linkage to the guarantee of human dignity under Article 1 (1). Human life is intrinsically connected to human dignity as a paramount principle of the constitution and the highest constitutional value. Every human being is endowed with dignity as a person without regard to his or her physical or mental condition, . . . capacities or . . . social status. No person can be deprived of his or her dignity. Any infringement of this value would be injurious. Th is principle holds good during the entire length of a person’s life up to and including his or her dignity even after death.65

Even though the right to life can be limited by law, the principle of human dignity, ruled the senate, “absolutely” bars the intentional killing of helpless persons on a hijacked aircraft. Statutory authority of this nature would encroach on the “essence” of a basic right, and any assumption that passengers entering a plane would implicitly consent to the “shoot down” is nothing less than an “unrealistic fiction.” 66 In short, an aircraft may not be shot down—and there is no constitutional state duty to shoot it down—simply because it may be used as a weapon to extinguish life on the ground, particularly since the ensuing loss of life would not bring an end to the body politic or the constitutional system. The senate once again remarked, in a familiar refrain, that persons may not be treated as objects for the purpose of protecting others. In short, killing may not be employed as a means to save others, for human lives may not be disposed of “unilaterally by the state” in this way, even on the basis of a statutory authorization. One may also suggest that Article 79 (3) of the Basic Law would even render a constitutional amendment unconstitutional were it to authorize the killing of innocents aboard a hijacked aircraft . Does Aviation Security Act contradict Schleyer Kidnapping? Some commentators thought so because Schleyer Kidnapping ruled that the state is relatively free to decide what measures are necessary to protect human life in the special circumstances of a particularly difficult case, almost as if this were a political question unfit for judicial resolution. Aviation Security Act, however, stops short of consigning such a decision entirely to the discretion of the authorities. Here the circumstances were different. In Schleyer Kidnapping the state was relatively helpless in its ability to protect the kidnapped industrial leader, and there was no certainty that the release of convicted terrorists would save his life. In Aviation Security Act, by contrast, the Court suggested that the shoot-down order would have been a direct taking of life by the state and thus wholly incompatible with the principle of human dignity. The decision’s heavy reliance on the human dignity clause led some commentators to suggest that the Court was disconnecting this clause, sub silentio, from the right to life under Article 2 (2), suggesting that the state’s absolute duty to protect dignity should be invoked only rarely to limit legislative discretion in defi ning life or its protection. From the point of view of these commentators, the Court had erred in elevating dignity and the state’s duty to protect it to such heights in the original abortion cases.67 But

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in Aviation Security Act, the human dignity and right-to-life clauses are inextricably interlinked. The “disconnect” thesis appears to have been a renewed effort on the part of certain commentators, like Justice Wiltraud Rupp-von Brünneck and Helmut Simon in Abortion I, to encourage restraint on the Court’s part when reviewing legislation on morally divisive issues such as stem cell research, in vitro fertilization, surrogate motherhood, and forms of genetic engineering. To what extent these practices comport with the principle of human dignity has been vigorously debated in the literature but up to now the Court has not had any occasion to defi nitively pronounce its views on these matters.68 An issue in need of mention in this context, one addressed by other national constitutional tribunals but not yet adjudicated in the Federal Constitutional Court, is whether laws banning euthanasia or doctor-assisted suicide in desperate end-of-life situations comport with the principle of human dignity within the meaning of the Basic Law. Suicide itself is not a crime in Germany nor is it illegal for a doctor to administer drugs to a dying patient so long as the act does not cross the line into mercy killing.69 Active euthanasia, however, is listed as a “crime against life” in § 216 of the Penal Code, and it is unlikely that the Constitutional Court would overturn the statute under the Basic Law’s dignity and right-to-life clauses. There is a strong consensus in Germany, stemming from the Nazi killing of thousands of incurably ill people, against any so-called right to die. Chancellor Angela Merkel reflected this consensus recently in saying, “I am absolutely against any form of assisted suicide, in whatever guise.”70 Should the Constitutional Court address this issue, as is almost certain in the years ahead, it would be faced with a confl ict between a patient’s right to selfdetermination under the personality clause of Article 2 (1) and the right-to-life clause of Article 2 (2) in conjunction with the human dignity clause of Article 1 (1). Right to Life: An Addendum. In contexts other than abortion, Aviation Security Act notwithstanding, the Federal Constitutional Court has exercised caution in adjudicating claims under the right-to-life clause of Article 2. As in Schleyer Kidnapping, caution seems warranted in the face of constitutional complaints against governmental decisions of commission or omission that contribute to environmental pollution, hazardous working conditions, or the fallout from the use of atomic energy, matters that also implicate the cognate right to physical integrity. The Chemical Weapons Case (1987)71 is one illustration of the Court’s caution. Several German citizens fi led constitutional complaints against the federal government’s decision to allow American chemical weapons to be stored on German soil within a few miles of their homes. They claimed that the transportation and storage of nerve gas and other poisonous substances, particularly in the light of the strong statistical probability of an accident or leakages at the storage sites, with life-threatening consequences, violated their right to life within the meaning of Article 2 (2). The petitioners alleged that neither the government nor the Bundestag had taken all the measures required to ensure their safety. In rejecting the complaints, the Second Senate held that the legislature has wide discretion in “how it wants to fulfi ll its protective duty under Article 2 (2) [1].” The

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burden of proof, said the senate, is on the complainants, for they “must convincingly argue that the public authorities either failed to take any protective precautions or that the regulations and measures they chose were totally inadequate or unsuited for accomplishing this goal.” Th is burden of proof could not be sustained. “The weapons concerned,” said the senate, “have been on West German territory for some time [and] the complainants could not name any incidents where concrete injury or danger to the West German people has occurred.”72 Accordingly, the complaints were rejected. The senate acknowledged the state’s duty to protect life but went on to say this duty can be enforced only in exceptional circumstances, a decision that adheres to existing doctrine. Abortion I and Abortion II, together with Aviation Security, remain exceptions to the rule. The majority opinion in Chemical Weapons prompted Justice Mahrenholz to draft an eloquent dissenting opinion rooted in the Basic Law’s right-to-life clause.73 Significantly, he did not cite Abortion I in support of his position but rather utterances found in Schleyer Kidnapping, Kalkar I (1978; no. 4.6), MülheimKärlich (1979), and related cases.

right to personality As the Life Imprisonment Case shows, the human dignity clause of Article 1 (1) and the general personality clause of Article 2 (1) are often interlinked. The Constitutional Court rarely speaks of the right to personality without referring to human dignity.74 Unlike the human dignity clause, however, the general right to personality is not a shorthand expression of other guaranteed rights.75 The personality right is so broad in its phrasing that almost any content could be poured into it, and it could easily function as the fi rst and last resort of constitutional arguments. Recognizing this, the Constitutional Court has sought to confi ne its reach. As a general rule, the personality clause is subordinate to those positive rights of liberty expressly mentioned in the Basic Law.76 A complainant may invoke the personality clause only when he or she challenges a governmental act that invades a liberty interest vital to the exercise of personality outside the protection of any par ticu lar right.77 In addition, the personality clause can be invoked only to vindicate a fundamental liberty interest against intrusive state activity. The right to personality is not an objective value like the principle of human dignity, and thus it cannot impose on the state an affirmative obligation to take some par ticu lar course of action. Finally, the Court has limited the reach of the personality clause by breathing life into its restrictive clauses. As pointed out at the beginning of this chapter, the personality right secured by Article 2 (1) may be restrained in the interest of the rights of others, the moral code, or the constitutional order. If a given statutory restriction on some aspect of human behavior is in accord with the moral code or the constitutional order, the restriction will usually be sustained. One of the most controversial of the Court’s decisions interpreting the personality clause is the Hashish Drug Case (1994). Several ordinary courts had questioned

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the constitutionality of prison sentences imposed on the possession, use, or sale of narcotic drugs—so-called soft drugs—such as hashish and marijuana. In referring the constitutional issue to the Federal Constitutional Court, the ordinary courts doubted that the use of these soft drugs could be penalized while allowing the use of alcohol to remain unpunished. The Lübeck Regional Court (Landgericht) went so far as to suggest that the right to intoxication, like the right to eat and drink, is part of the liberty protected by Article 2 (1). In an opinion more advisory than declaratory, the Second Senate sustained the constitutionality of the existing drug laws, but advised Parliament, over the partial dissents of two justices, to decriminalize the possession and use of small amounts of these soft drugs. The senate dismissed the extreme claims of the Lübeck court, rejecting any comparison between the consumption of alcohol and the use of narcotics. The majority appeared willing to defer to Parliament’s judgment in determining the measures needed to curtail drug addiction; nevertheless, the Court warned that the means used to achieve this goal should not be out of proportion to the scope of the law’s objective, particularly when small amounts of these drugs are consumed without endangering third persons.78 Far less controversial is the Child Legitimacy Case (1994). Under German law, a child may contest his or her legitimacy in the presence of specified circumstances that might indicate the child’s illegitimacy. Section 1598 of the Civil Code (Bürgerliches Gesetzbuch), however, provides that the child is barred from fi ling such an action by failing to contest legitimacy within two years after coming of age, even if during this time the child was unaware of facts which might have raised questions about the legitimacy of his or her birth. In Child Legitimacy the Court held this provision incompatible with the general personality clause. The constitutional state principle, said the Court, cannot justify such limits on a legitimate interest in the circumstances of one’s own birth. As in other cases where the Court declines to nullify a provision of law but chooses instead to declare it incompatible (unvereinbar) with the Basic Law, the legislature was given a limited period of time to amend the law to remove the constitutional infi rmity.79 (A related question arose in the Paternity Disclosure I Case; 1997 [discussed below in the subsection on “informational self-determination].) Freedom of Action. The Federal Constitutional Court has read a general freedom of action (Handlungsfreiheit) into the personality clause of Article 2 (1). As the Elfes Case illustrates, freedom of action constitutes still another aspect of liberty under the Basic Law. It reinforces the “freedom of the person” that Article 2 (2) declares to be “inviolable.” Freedom of action does no less than cover activities related to the fullest expression of the human personality. Boundless as this formulation seems, however, the Court has confi ned the freedom-of-action doctrine largely to economic and recreational contexts.80 Although the specific issue raised in Elfes implicated “freedom of movement” under Article 11 of the Basic Law, the First Senate used the case to fi nd that the right to travel (in this case abroad) is derived from the more general right to freedom of action within the meaning of the personality clause of Article 1 (1).

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7.7 Elfes Case (1957) 6 BVerfGE 32 [The complainant, an active member of the cdu, was elected to the North Rhine–Westphalia parliament in 1947. He was also a leading spokesman of a radical right-wing organization vehemently opposed to the Federal Republic’s policies toward military defense and German reunification. He had participated in a number of conferences and demonstrations at home and abroad in which he sharply criticized these policies and for which he was refused a passport to travel abroad. Claiming that the state had violated his freedom of movement under Article 11, he fi led a constitutional complaint against judicial decisions sustaining the denial of his passport application.]

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Judgment of the First Senate. . . . The constitutional complaint is rejected. II. 1. The complainant contends that § 7 (1) of the Passport Act of 4 March 1952 is null and void because the right to travel abroad, allegedly based on Article 11 of the Basic Law, is impermissibly limited. That is not so. The Passport Act provision reads: “A passport must be refused if facts justify the supposition that (a) the applicant threatens the internal or external security or other vital interests of the Federal Republic of Germany or one of the German states. . . .” Article 11 (1) [of the Basic Law] guarantees freedom of movement “throughout the federal territory.” This text clearly does not secure a fundamental right to travel outside the federal territory. What is more, the original history of the provision does not provide any support for such an interpretation. . . . The fundamental right to freedom of movement may be limited only by the express provisions of Article 11 (2). Article 11 (2) states: “Th is right may be restricted only by or pursuant to a law . . . or when such a restriction is necessary to avert an imminent danger to the existence of the free democratic basic order of the Federation or a state, to combat the danger of epidemics, to deal with natural disasters or particularly grave accidents, to protect young people from neglect, or to prevent crime.” In providing for these limitations, the framers obviously had in mind freedom of movement within the country; Article 11 (1) makes no mention of traditional and relevant limitations on travel outside the country. Many countries (including free democracies) have long denied passports for reasons of state security. Similar restrictions, enforced in Germany since World War I, were carried over essentially unaltered into the Passport Act of 1952. If the framers had desired to incorporate a fundamental right to foreign travel into Article 11 they would not . . . have considered the long historical practice of withholding passports on the ground of state security. They clearly did not intend to guarantee freedom to travel abroad in Article 11. . . . Yet freedom to travel abroad is not without some degree of constitutional protection as a derivative of the basic right to general freedom of action [found in Article 2 (1)]. . . .

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2. In its ruling of 20 July 1954 [Investment Aid I Case], the Federal Constitutional Court did not decide whether the free development of one’s personality includes freedom of action in the widest sense possible, or whether Article 2 (1) is limited to the protection of a minimum amount of this right to freedom of action without which an individual would be unable to develop himself or herself as a spiritualmoral person. a. The term “free development of personality” cannot simply mean development within that central area of personality that essentially defi nes a human person as a spiritual-moral being [i.e., the Kernbereichstheorie], for it is inconceivable how development within this core area could offend the moral code, the rights of others, or even the constitutional order of a free democracy. Rather, the limitations imposed on the individual as a member of the political community show that the freedom of action implicit in Article 2 (1) is to be broadly construed. To be sure, the solemn formulation of Article 2 (1) was an inducement to see it in the light of Article 1 and to infer therefore that its purpose was to embody the Basic Law’s image of man. Yet nothing other is suggested than that Article 1 is a fundamental constitutional principle that, like all the provisions of the Basic Law, informs the meaning of Article 2 (1). Legally speaking it represents a separate, individual basic right that guarantees a person’s general right to freedom of action. Linguistic rather than legal considerations prompted the framers to substitute the current language for the original proposal, which read, “Every person is free to do or not to do what he wishes.” Apparently, the fact that the constitutional order is also mentioned in the second half of the sentence among the permissible limitations on the citizen’s development of personality contributed to the theory that Article 2 (1) intended to protect only a limited core area of personality. In the effort to uniformly interpret this term [i.e., “constitutional order”], which appears in other provisions of the constitution, the constitutional order was viewed as a more restrictive concept than the concept of a legal order that conforms to the constitution. Thus, one felt compelled to conclude that the constitution should protect only a core sphere of personality, and not one’s right to freedom of action. In addition to the general right to freedom of action secured by Article 2 (1), the Basic Law employs specific fundamental rights to protect man’s self-determination in certain areas of life that were historically subject to encroachment by public authority. These constitutional provisions contain graduated reservation clauses that limit the extent to which the legislature may encroach upon a given basic right. The individual may invoke Article 2 (1) in the face of an encroachment upon his or her freedom by public authority to the extent that fundamental rights do not specifically protect such special areas of life. There was no need for a general reservation clause here because the extent to which encroachments are possible by the state is easily ascertained from the restriction the constitutional order imposes upon the development of personality. . . . [The text omitted here includes a discussion of the constitutional order within the meaning of Article 2 (1). Drawing on original history, the Constitutional

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Court found that, as used within the context of Article 2, “constitutional order” refers to the “general legal order subject to the substantive and procedural provisions of the constitution.” The general legal order would include, as the Court put it, restrictions “by every legal provision formally and substantively compatible with the Basic Law.” Th is remark appeared to seriously limit the range of a person’s “freedom of action.” The Court then proceeded to meet the objection of legal scholars that such a broad limitation would turn the personality clause into an empty vessel.] c. . . . They overlook the fact that legislative power is subject to more stringent constitutional restrictions than under the Weimar Constitution of 1919. . . . The legislature at that time could modify or alter constitutional rights at will. . . . The Basic Law, on the other hand, erected a value-oriented order that limits public authority. Th is order guarantees the independence, self-determination, and dignity of the human person within the political community. The highest principles of this order of values are protected against constitutional change. . . . Laws are not constitutional merely because they have been passed in conformity with procedural provisions. [Th is refers to the Weimar Constitution’s adherence to the positivistic theory of constitutional law.] They must be substantively compatible with the highest values of a free and democratic order (i.e., the constitutional order of values) and must also conform to unwritten fundamental constitutional principles as well as the fundamental decisions of the Basic Law, in par ticu lar the constitutional and social state principles. Above all, laws must not violate a person’s dignity, which represents the highest value of the Basic Law; nor may they restrict a person’s spiritual, political, or economic freedom in a way that would erode the essence of personhood. Th is follows from the constitutional protection afforded to each citizen’s sphere of private development; that is, that ultimately inviolable area of human freedom insulated against any intrusion by public authority. . . . 3. Even if the right to leave the country does not specifically belong to the concept of freedom of movement as protected by Article 11, it nevertheless is guaranteed by Article 2 (1) within the limits permitted by concern for the constitutional order. Whether or not the passport law is part of the constitutional order as defi ned here remains to be decided. The answer is in the affi rmative. a. The Passport Act requires all Germans crossing a foreign border to have a passport—in itself a substantial formal limitation on foreign travel. Because the law, however, by unanimous interpretation confers a legal right to a passport, it preserves the principle of free foreign travel. It does so by permitting the denial of a passport only under specified conditions. Thus, the act is cognizant of the fundamental requirements of Article 2 (1). b. Section 7 of the Passport Act clearly sets forth the grounds for denying a passport. The provision at issue here is unobjectionable to the extent that it permits denial of a passport on the basis of an internal or external threat to the security of the Federal Republic of Germany. Objections might be raised to the extent that the provision allows

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the apprehension of a threat to “other vital interests” to suffice for the denial of a passport. The application of such a substantively indeterminate standard could, of course, lead to an abuse of discretion on the part of passport authorities. . . . But that has not occurred here. [The Court went on to reject the constitutional complaint. It found fault with the passport agency’s original refusal to support its denial of a passport with reasons, but sustained its decision because the agency in a subsequent administrative hearing fi nally offered reasons for the denial and gave the complainant an opportunity to be heard. In considering the scope of review of the ordinary court’s decision, the Constitutional Court declared that its role was not to review the facts de novo but rather to determine whether the facts were sufficient to justify the conclusion that the complainant would threaten “other vital interests” of the Federal Republic.]

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Outer (and Limited) Sphere of Personality. Post–Elfes “freedom-of-action” cases touching on recreational or economic interests include the Falconry License, Equestrian, and Punitive Damage cases. Falconry (1980) challenged a federal hunting statute that required applicants for a hunting license to pass oral and written examinations as well as a shooting test.81 The case involved a constitutional attack on the shooting test by a hawker who never used a gun. To require a gun test in this situation, held the Court, denies the hawker’s freedom of action within the meaning of Article 2 (1). “The constitutional state principle, considered in relation to the general presumption of freedom in favor of the citizen,” declared the Court, “demands that the individual be protected against unnecessary intrusions by public authority. If statutory intrusion is unavoidable, the means must be appropriate to achieve the legislative end and may not excessively burden the individual.”82 Both Elfes and Falconry constituted broad readings of the personality right. The Equestrian Case (1989) produced the fi rst major dissent from this broad reading. The complainant objected to a state regulation promulgated to further a federal policy limiting horseback riding in wooded areas to well-defi ned roadways and trails. He claimed that the restriction interfered with freedom of action under the personality clause. The First Senate adhered to the prevailing view that freedom of action extends to every kind of human activity compatible with the reservation clause of Article 2 (1) and other expressly guaranteed rights. The senate ruled that horseback riding is an activity falling within the protection of Article 2 (1) but that here the restriction constituted a reasonable regulation designed to ensure the repose and safety of persons using forests set aside for leisure and recreation.83 Justice Dieter Grimm, dissenting, drew on the original history of Article 2 (1) and contemporary commentary on the provision to argue that the personality clause should be interpreted to include only those liberty interests that are fundamental to the development of the human personality. Article 2 (1), he declared, should no longer

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be regarded as a “catch-all” right that “captures every conceivable human activity.”84 He insisted that “an end should be put to this trivialization of fundamental rights and the associated flood of constitutional challenges never contemplated by the Basic Law.”85 Any liberty interest not expressly grounded in the constitutional text but attributed by petitioners to the general personality clause must rise to the level of the significance of an express right. Instead of accepting the complaint because the challenged regulation was inconsistent with Article 2 (1), he concluded that the senate should simply have dismissed it for failing to allege any violation of a fundamental right. In the Punitive Damage Case (1994), the same senate grappled with a freedom-ofaction claim in an adjudicatory context. An American pharmaceutical firm sought to serve a complaint against a German company located in Berlin to collect punitive damages imposed by an American court on its subsidiary in the United States, a subsidiary incorporated under American law. After German authorities had approved the service of process, the Berlin fi rm petitioned the Federal Constitutional Court for an injunction against serving the complaint on the ground that punitive damages would limit the company’s freedom of action under Article 2 (1). The petitioner also argued that since punitive damages are a concept incompatible with German law, ser vice of process in Germany violated the proportionality and constitutional state principles. The Court regarded the complaint serious enough to issue the injunction pending a full hearing on the merits of the argument.86 In the main decision, however, the Court found that even if one concedes that ser vice of process impinges on Article 2 (1), the intrusion was justified by the common good of the international legal order under the terms of the Hague Convention on the Ser vice of Documents Abroad. The Court also concluded that since punitive damages in the context of this case were not incompatible with German law, the proportionality and constitutional state principles had not been violated.87 Intimate Sphere of Personality. There is no case in which the Constitutional Court has defi ned the full range of personality rights under Article 2. It has preferred to work out the substantive meaning of the personality clause on a case-by-case basis in the light of developing social conditions. The Court has, however, carved out a constitutionally protected inner sphere of privacy, or an ultimate domain of inviolability, in which persons are free to shape their lives as they see fit. As the Princess Caroline of Monaco II Case (1999; no. 8.8) and other free press cases in Chapter 8 demonstrate, this intimate sphere—an almost sacred space in the Court’s view—insulates public figures against invasion by unwelcome outsiders, including an intrusive press. The Eppler Case also implicates freedom of speech under Article 5 of the Basic Law, although Eppler rests mainly on the personality clause of Article 2 (1). The case is important for its reassertion of the principle of inner freedom, one that implicates the core of the human personality. No bright line separates Eppler from the constitutional cases discussed in the following note on privacy and bodily integrity. Eppler, along with these cases, illustrates the protection the Court has afforded to personality in various contexts.

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7.8 Eppler Case (1980) 54 BVerfGE 148 [During the 1976 state election campaign, the cdu of Baden-Württemberg distributed a draft of a speech to its candidates for the state legislature. Entitled “Socialists at Work,” it pointed out that “the proposals of the spd are clearly and fatally socialistic.” In accusing the spd of harboring a desire to nationalize banks and basic industries the document alluded to a statement by Erhard Eppler, chairman of Baden-Württemberg’s spd. The cdu quoted him as having said that the “economy must be tested to the breaking point to determine what social responsibilities the state could bear without an economic collapse.” Eppler denied that he had used these words or had implied any such thing and sought to enjoin the cdu from any further attribution of the statement to him. He initiated a constitutional complaint against the decision of Baden-Württemberg’s Higher Regional Court to deny the injunction. Eppler invoked several constitutional provisions in his defense, including his basic rights to human dignity, personality, equality, and freedom of belief. The Court rested its opinion mainly on Article 2 (1) of the Basic Law.]

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Judgment of the First Senate. . . . B. . . . [Once again the Constitutional Court asserted, as it has in other cases, that its function is not to review an ordinary court’s determinations of fact. Rather, it is limited to ascertaining whether ordinary courts have properly interpreted the constitution. In par ticular, it must decide whether the ordinary court has attached the proper weight to constitutional rights when these rights confl ict with general law or other actions by state officials. The constitutional complaint was rejected because the evidence did not clearly indicate whether or not a false utterance had been attributed to the complainant. The Court might well have decided for the complainant, notwithstanding the free speech claim, had he been able to clearly show that he had not uttered the words alleged. The extracts below are confi ned to the Court’s defi nition of the intimate sphere of personality.] II. Considered in the light of these standards, the challenged judicial decision does not violate the constitution. . . . 1. . . . Article 5 (1) does not protect a person who falsifies the opinion of another. Th is basic right to free speech confers no right to attribute to another an opinion that has not been uttered. 2. a. We now consider the decision below in terms of the general right to personality secured by Article 2 (1) in conjunction with Article 1 (1). Th is undefi ned right to

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freedom complements those express freedoms, such as freedom of conscience and speech, that also protect the essential elements of personality. Its purpose is to safeguard—consistent with the highest constitutional principle, namely, human dignity (Article 1 (1))—that intimate personal sphere and to maintain basic conditions thereof that are not encompassed by the traditional and more concrete guarantees of freedom. Th is right is particularly crucial today in view of modern developments and new dangers to the protection of human personality that result from them. . . . Because of the aforementioned special character of the general right to personality, the Federal Constitutional Court as well as the Federal Court of Justice have refrained from fully defi ning the content of the protected right; rather, both have dealt with the right on a case-by-case basis. Thus, they have recognized the following aspects of the general right to personality: the right to a private, secret, intimate sphere of life [citing, among others, the Microcensus Case], to personal honor and the rightful portrayal of one’s own person [citing the Lebach Case], to one’s own image and spoken word [citing Tape Recording I], and under certain circumstances, the right not to have statements falsely attributed to oneself [citing the Princess Soraya Case]. These manifestations of the constitutionally protected right of personality must be duly observed when dealing with court decisions concerning confl icting interests under private law. b. The facts alleged in the constitutional complaint do not fall within the aforementioned manifestations of the right to personality under Article 2 (1). The complainant’s private, secret, or intimate sphere of life is not involved here. Nor does the statement to which the complainant objects constitute an insult to his honor. The opinion of the higher regional court properly explained this point. It is not dishonorable to demand that the economy be tested to its breaking point. Nor does this demand contain a call to unconstitutional action, so that the speaker could be slanderously accused of no longer adhering to the fundamental tenets of the Basic Law. The fact that the complainant is a politician whose political goals may have been harmed by the allegation that he advocated a widely rejected viewpoint does not amount to an assault on his personal honor. Last, the complainant cannot base [his contention] on any right to his spoken words, for in this case he claims to have been accused of an utterance he allegedly did not make. To be sure, the general personality right guaranteed by Article 2 (1) of the Basic Law also protects a person from having statements falsely attributed to him or her. An example of this would be the publication of a fabricated interview dealing with someone’s private life that simultaneously violates an acknowledged and protected value within the ambit of the right to personality (e.g., the private sphere [citing Princess Soraya]). Even if there is no actual invasion of privacy, it is an infringement of an individual’s right to privacy to put words into his mouth which he did not utter and which adversely affect his self-image. Th is conclusion follows from the general right to personality underlying the concept of self-determination. The individual should have the freedom to decide for himself—without any limitation of his private sphere—how to portray himself to third parties or to the public, as well as whether and to what extent third parties may have access to his personality. In particular, this includes a person’s

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right to decide whether and in what manner he wishes his utterance to be made public. . . . The same goes for the right to privacy in conversation. An individual has the right to determine whether to restrict utterances solely to his conversational partner or to a certain group, or whether to publicize remarks. He or she may determine whether someone may reproduce his recorded words, and if so, who. Thus, the content of the general right to personality is largely determined by the self-image of its bearer. Therefore Article 2 (1) would be violated if one were to decide the issue in this case (i.e., whether falsely attributing statements to someone infringes upon the personality right not on the basis of the person’s own self-image but rather on the basis of the image that others have formed or could form, whether or not justifiable). Others may be constitutionally justified in creating such images by dint of their right to freedom of speech. Their statements, however, cannot determine the content of the complainant’s right to personality if it is not to be robbed of its very essence (i.e., of the absolutely personal and inalienable core right deserving of protection).

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Right to Informational Self-Determination. On 13 April 1983, in a remarkable display of judicial activism, the Constitutional Court suspended the execution of a census under the Federal Census Act of 1983, pending a decision on the act’s constitutional validity.88 Eight months later, on 15 December 1983, the First Senate sustained most of the statute’s major provisions but required Parliament to amend the statute in certain particulars before the census could be carried out, a requirement that delayed the census for another four years, at notable cost to the Federation. In establishing a new “right of informational self-determination,” the senate directed Parliament to close all loopholes in the law that might lead to abuses in the collection, storage, use, and transfer of collected personal data. While it stunned federal census officials, the decision in the Census Act Case did not surprise close students of the Court’s evolving personality jurisprudence. In the personalist universe envisioned by the Constitutional Court, the human person is more than the sum of his or her parts and more than a biological or physiological organism. Rather, as the Court has said on numerous occasions, he or she is a “spiritual-moral being.” The state therefore cannot inventory the individual with respect to every aspect of the individual’s being without threatening his or her personal autonomy. 7.9 Census Act Case (1983) 65 BVerfGE 1 [Th is case is a sequel to the Microcensus Case featured earlier in the section on “Dignity.” The Federal Census Act of 1983 provided for the collection of comprehensive data on the Federal Republic’s demographic and social structure. In addition to a total population count and the collection of basic personal information (name, address, sex, marital status, religious affi liation, etc.), the act required citizens to fi ll out detailed questionnaires relating to their sources of

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income, occupation, supplementary employment, educational background, hours of work, mode of transportation to and from work, and related matters. Sections of the statute provided for the transmission of the statistical data to local governments for purposes of regional planning, surveying, environmental protection, and redrawing election districts. Th is case represents one of those rare instances in which an individual may lodge a constitutional complaint directly against a statute. The need to exhaust one’s legal remedies is not necessary when a statute poses an immediate threat to a fundamental right. In response to complaints from more than one hundred persons, the Court temporarily enjoined the execution of the census on the ground that the transmission of data to certain agencies threatened to violate the rights of privacy and personality. The following extract is drawn from the Court’s decision on the merits.]

∂

Judgment of the First Senate. . . . C. To the extent that the constitutional complaints are justiciable, they are valid. . . . II. The standard primarily to be applied is the general right to the free development of one’s personality protected in Article 2 (1) in conjunction with Article 1 (1) of the Basic Law. I. a. The focal point of the order established by the Basic Law is the value and dignity of the individual, who functions as a member of a free society in free selfdetermination. The general personality right, as laid down in Article 2 (1) in tandem with Article 1 (1), serves to protect these values—along with other, more specific guarantees of freedom—and gains in importance if one bears in mind modern developments with their attendant dangers to the human personality. Our jurisprudence to date has not conclusively settled the scope and content of the personality right. As indicated in several of our cases, it includes the authority of the individual to decide for himself, on the basis of the idea of self-determination, when and within what limits facts about his personal life shall be disclosed. The individual’s decisional authority needs special protection in view of the present and prospective conditions of automatic data processing. It is particularly endangered because . . . the technical means of storing highly personal information about par ticu lar persons today are practically unlimited, and information can be retrieved in a matter of seconds with the aid of automatic data processing, irrespective of distance. Furthermore, such information can be joined to other data collections— particularly when constructing integrated information systems—to produce a partial or virtually complete personality profi le, with the person concerned having insufficient means of controlling either its veracity or its use. The possibilities of acquiring information and exerting influence have increased to a degree hitherto unknown and may affect the individual’s behavior because of the psychological pressure that public awareness may place upon the individual.

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Even under present conditions of data-processing technology, the concept of selfdetermination presupposes that the individual be given the freedom to decide what actions should be taken, including the freedom to decide whether to implement his own decision. An individual’s right to plan and make decisions freely and without pressure or influence from others is crucially inhibited if he cannot predict with sufficient certainty what personal information the state will release in a given area of his social environment. It would be incompatible with the right to informational selfdetermination if a legal order should permit a societal structure where the citizen could not be sure who knows something about him, what they know, when this information will be released, and what occasions the release of this data. If someone is uncertain whether information about unusual behavior is being stored and recorded permanently in computer banks, or does not know whether it will be used or passed on, he will try not to attract attention by engaging in such behavior. If he expects that the state will officially register his attendance at a meeting or participation in a citizens’ initiative and believes personal risks might result from this, this person may refrain from exercising the right of association (Articles 8 and 9). Th is would not only impair his chances of development but would also damage the common good, because self-determination is an elementary functional condition of a free democratic community based on its citizens’ capacity to act and participate. Because of this, the individual must be protected from the unlimited collection, storage, use, and transmission of personal data as a condition for free personality development under modern conditions of data processing. Article 2 (1) in tandem with Article 1 (1) of the Basic Law guarantees this protection. Th is basic right guarantees the right of the individual to determine for himself whether the state may divulge or use personal data. b. The right to “informational self-determination” is not unlimited. The individual does not possess any absolute, unlimited mastery over all collected personal data; rather, he is a personality . . . developing within the social community. Even personal information is a reflection of social reality and cannot be associated purely with the individual concerned. The Basic Law has resolved the tension between the individual and society by postulating a community-related and community-bound individual, as the decisions of the Federal Constitutional Court have repeatedly stressed. The individual must in principle accept certain limits on the right to informational selfdetermination for reasons of compelling public interest. As § 6 (1) of the Federal Statistics Act correctly recognizes, Article 2 (1) of the Basic Law requires the legislature to specify the purposes and conditions of all official data-gathering processes so that the citizen may clearly know what information is being collected and why. Such legal authorizations must adhere to the constitutional state principle and be clearly framed so as not to be unconstitutionally vague. In enacting these laws the legislature must also observe the principle of proportionality. Th is principle, raised to the level of a constitutional norm, follows from the nature of fundamental rights . . . which the state may limit only to the extent necessary for the protection of public interests. Considering the danger involved today in utilizing

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automatic data processing the legislature is duty-bound, more so than ever before, to adopt organizational and procedural measures designed to safeguard the individual from any infringement of the right to personality. [In this lengthy and complex case—a full seventy-one pages in the official reports—the Constitutional Court sustained most of the 1983 Census Act’s provisions. The Court underscored the legitimacy of a general census for purposes of social planning and the “fulfi llment of public tasks.” The collection and storage of information that fails to serve these purposes is constitutionally suspect. In the bulk of its opinion the Court carefully scrutinized the nature of the information collected, the methods of its storage and transmission, and its par ticu lar uses. It noted that a constitutionally sensitive census policy would distinguish clearly between “personality-related data collected and processed in an individualized, identifiable manner and data designated for statistical purposes.” The Court went on to say that the constitutional right to personality would be violated if automatic data processing under modern conditions and the sharing of statistical data with local and regional authorities could result in the reconstruction or release of the personality profi les of par ticu lar individuals. The Court insisted that federal and state officials take every precaution to prevent this from happening. The Court then proceeded to strike down three minor provisions of the 1983 statute. The most important of these empowered local authorities to compare certain census data with local housing registries. The combination of statistical data and a personalized registry, said the Court, could lead to the identification of par ticu lar persons and thus violate the core of the personality right. Additionally, the provisions offended the principles of clarity and proportionality for their failure to justify the need for certain information and because some of the data were not necessary to achieve the purposes of local authorities.]

∂ Self-Determination and an Expanding Right of Personality. In one of its earliest decisions, the Federal Constitutional Court observed that when the framers inserted the human dignity clause into the Basic Law, they intended to protect the individual against “humiliation, stigmatization, and torture.”89 Today, however, as former Constitutional Court president Ernst Benda has noted, “man’s dignity is not endangered by totalitarian tools of suppression but rather by the complexities of modern life, by the potential invasion of an ever-present welfare state into almost all aspects of private life, or by the helplessness of the individual to understand . . . the political process that greatly affects everybody’s personal fate.”90 Benda continued: How can human dignity be protected in the computer age, or when considering the dramatic potential of modern gene technology, in vitro fertilization, or other technical and scientific developments? What does freedom of information mean when not

412 CHAPTER seven censorship or other means of restricting the flow of information are the reality, but rather the overburdening of the individual with more information than he can possibly understand or digest? What does freedom from the state’s interference mean when the individual, for his personal well-being, depends more than ever before on the state’s activities?91

In the light of such remarks, it should come as no surprise that President Benda presided over the First Senate when it handed down its opinion in the Census Act Case. The Basic Law does not explicitly create a general right of privacy, but the Constitutional Court has long held that certain privacy interests are protected by the personality clause of Article 2 (1) in tandem with the principle of human dignity. The Princess Soraya Case (1973; no. 4.2) was one of the fi rst judgments to protect this right of privacy. As the Court approvingly noted in Soraya, the regular courts, inspired by the personality clause of Article 2 (1), had already begun in the 1950s to award civil damages for invasions of privacy. More emblematic of the kind of privacy implicated in the personality clause are several cases involving highly personal matters such as divorce, paternity, and transexuality. In the Divorce Records Case (1970), for example, the question was whether a judge could release the records of a divorce action for use in a civil ser vice disciplinary proceeding. The complainant was a high-level civil servant dismissed from his position for carry ing on an affair with his former secretary. Noting that such records are not totally insulated against public inspection, any request for their disclosure, held the Court, required the approval of the parties involved in the action. Any release of such records without the consent of the immediate parties would have to comply with the principle of proportionality and respect for the human personality. In the circumstances of this case, both constitutional requirements had been violated.92 In the related Theodore K Case (1972), another civil servant involved in a disciplinary proceeding objected to a medical expert’s inspection of his divorce fi le. But here too, said the Court, disclosure would have been wholly out of proportion to the degree of the offense and thus in violation of the right of privacy implicit in the personality clause.93 Two paternity cases illustrate how little and how far the Constitutional Court was willing to carry the principle of informational self-determination and the cognate right of privacy. The issue in the Paternity Disclosure I Case (1997) was whether the mother of an out-of-wedlock child could be required to reveal the father’s identity. Would, as in this case, a court order to release this information to the child violate the mother’s right to her personality (Article 2 [1]) as informed by the principle of human dignity? And does the mother’s right to privacy trump the right of her daughter to know the identity of the father? The First Senate stepped gingerly here, in part because the mother would have been required to disclose the names of several sexual partners during the time in question. The senate sustained the mother’s complaint but reversed the lower court’s broad interpretation of the rights of nonmarital children under Article 6 (5) of the Basic Law. Any balancing of competing claims under Articles 2 (1) and 6 (5), said the senate, is one for the legislature initially to resolve.94

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Similarly, in the Paternity Disclosure II Case (2007), the First Senate ruled that the legislature is primarily responsible for laying down procedures for determining the paternity of a nonmarital child. Here, without the knowledge of the mother or the child, the putative father obtained a secret dna paternity test (based on samples of his saliva and gum the child had chewed) from a private laboratory to determine whether he was the child’s biological father. Invoking the right to informational selfdetermination rooted in the personality and dignity clauses of the Basic Law, the senate upheld an ordinary court’s refusal to legally recognize the secretly obtained genetic information. But the senate also recognized the father’s rights in this regard and accordingly instructed Parliament, by a specified date, to enact adequate procedures that would allow fathers to gain access to such genetic material.95 Increasingly, in related cases, the Constitutional Court began to erect a nearabsolute barrier against the disclosure of information touching what the Court called the “inner core” of the human personality.96 The deeper meaning of this “inner core” was explored in several cases involving transsexuality. In the Transsexual I Case (1978) the complainant had undergone a surgical procedure changing his sex from male to female. Later, however, the ordinary courts denied his application to change his civil status to that of a woman even though medical evidence showed that the complainant was psychologically a female. The First Senate held that these rulings invaded “the most intimate realm of personhood.” The Basic Law, explained the senate, “protects the dignity of a person as he or she understands himself or herself in individuality and self-awareness.”97 In so ruling, the senate endorsed an individual’s right to “gender self-identification.” Rejecting the view that the “moral law” was implicated here, the senate took note of prevailing medical evidence that indicated “that transsexuals are seeking not to manipulate their sexuality but rather to fi nd some unity of body and spirit.”98 In 2008, fi nally, in the Transsexual V Case, the First Senate struck down a provision of the Transsexuals Act that recognized an approved gender change only if the person involved was unmarried. The law was challenged by a postoperative transsexual person who had been married for fi ft y-six years, a marriage resulting in three children, and whose female spouse preferred, along with the husband who would now take on the personality of a woman, that the marriage continue. The senate held that to force transsexuals to choose between dissolving their marriage or having their new gender recognized by law violated the personality clause of Article 2 (1) in tandem with the principle of human dignity and the right to marry under Articles 1 (1) and 6 (1) respectively.99 Additional transsexual cases handed down in 1993 and 2007, respectively, and discussed at greater length in the section below on “Equality,” reiterated this view.100 International Terrorism: Balancing Liberty and Security. During the 1990s and after, following the decline of domestic political violence in Germany, a new but stillnascent threat of international terrorism was beginning to rear its head. Germany’s response to the emerging threat implicated rights of privacy and personality under

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Articles 10 and 13 of the Basic Law. In their original versions, Article 10 guaranteed an unqualified right to privacy of posts, correspondence, and telecommunications, while Article 13 similarly secured, also without qualification, the “inviolability” of the home. But a constitutional amendment, passed in 1968 as part of a package of emergency laws to deal with domestic violence, qualified the right to privacy under Article 10. Article 10 (2) permitted, pursuant to a law, wiretaps and other interferences with private communications, even without the permission of the persons affected, if such activities served to protect the free democratic basic order of the Federal Republic or a Land.101 More important for present purposes was a mid-1990s law—the “G10 Act,” as it was called—that expanded the power of the Federal Intelligence Ser vice (Bundesnachrichtendienst) to conduct telecommunications surveillance in seeming tension with the core protection of Article 10.102 The G10 Act permitted the monitoring of individuals if there were grounds to suspect that they were planning or had committed a serious criminal offense that posed a threat to national security. Additionally, it authorized security officials to collect “strategic intelligence” for compiling “situation reports” on actual or potential threats to the Federal Republic. Thus, international communications traffic could now be monitored to uncover plans or activities involving, as specified, international terrorism, narcotics traffic to Germany, illegal trade in weapons of war, international money laundering, or counterfeiting activities. Earlier security measures had been oriented toward old landline technology and Cold War threats to the Federal Republic’s homeland emanating from the Warsaw Pact. The G10 Act, by contrast, broadened the surveillance to include international wireless traffic. It also lifted the previous ban on sharing collected intelligence with other agencies, opening the door for the use of such intelligence in ordinary criminal prosecutions. Finally, provisions of the act limited the duty of the intelligence ser vices to inform individuals subject to surveillance while permitting extensive monitoring of telecommunications without regard to the international origin of these communications.103 A professor engaged in research on the topic of international drug trafficking, along with journalists and newspaper publishers covering activities now subject to telecommunications surveillance, argued that their wholly legitimate work would greatly increase the likelihood that they would be subject to unjustifiable surveillance under the new G10 Act. They alleged violations of Article 10 (telecommunication privacy), Article 5 (freedom of expression), and Article 19 (4) (right to a judicial remedy). In the lengthy Telecommunication Surveillance Act Case (1999), the Constitutional Court, in applying the principle of proportionality, upheld most parts of the amended G10 Act.104 In doing so, the Court examined the act in the light of the standards laid down in Article 10 (2). This provision, said the Court, permits the state, under the authority of law, to limit telecommunications privacy under strict conditions, including requirements that persons monitored be notified of the surveillance, that data collected from the surveillance is promptly purged, and that any surveillance beyond Germany’s borders conform to international law. With these requirements in mind, the Court embraced all but one of the law’s expanded list of threats as relevant to the Federal Republic’s

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security. “The objective of timely recognizing and counteracting the threats specified in the new G10 Act,” the Court explained, “is a legitimate means of achieving the common good.”105 The Court acknowledged that these new threats do not generally threaten the existence of the state but nonetheless represent “high-ranking public interests whose violation would result in serious damage to external or internal peace.”106 Counterfeiting was the one activity that did not survive constitutional analysis, the Court having ruled that this activity does not rise to the level of a major national security threat. Apart from this particular ruling, the Court concluded that, while potentially serious, the infringement of telecommunications privacy authorized by the amendments to the G10 Act does not totally eviscerate the protection of Article 10 (1). The Telecommunications Surveillance Act Case was the high-water mark of judicial deference to legislatively authorized infringements of fundamental liberty interests with respect to national security. In balancing liberty and security, the Court’s endorsement of the G10 Act tipped the scale in favor of security. Later on, as indicated below, the balance would shift toward the protection of liberty. In several major judgments, the Federal Constitutional Court would begin to heed former president Benda’s warning that developments in data-mining procedures and computer technology constituted a severe threat to personal privacy and the right of personality. The shift took place against the backdrop of the 11 September 2001 terrorist attacks in the United States—and the subsequent attacks in Madrid and London—and the many security-enhancing policies enacted by Germany and other countries around the world in reaction to what now seemed the very real threat of international terrorism. Post-9/11 and the Jurisprudence of Informational Self-Determination. Security measures adopted before and after 9/11 to counter the threat of international terrorism triggered, as noted, increasing judicial scrutiny over potential invasions of personal privacy, particularly the right to informational self-determination. One could discern the emergence of a strong human rights perspective in the famous Acoustical Surveillance Case of 2004.107 Already in 1998, Article 13 (protecting the home’s inviolability) had been amended to permit electronic monitoring of the home when a par ticu lar set of facts would “justify the suspicion that any person has committed an especially serious crime specifically defi ned by law.” In the presence of such facts, Article 13 (3) allowed a suspect’s home to be acoustically monitored but only pursuant to an order by a three-judge panel to prosecute a specified criminal offense and only if “alternative methods of investigation of the matter would be disproportionately difficult or unproductive.” As with Telecommunications Surveillance, which upheld the G10 Act, Acoustical Surveillance upheld the amendments to Article 13 but overturned certain criminal procedures allowing the police to use technical devices to monitor private homes and offices.108 In a 112-page opinion, and over the dissents of Justices Renate Jaegar and Christine Hohmann-Dennhardt, the First Senate struck a powerful note linking human dignity with the inviolability of the home.109 Under the Basic Law, the home remained the sanctuary of selfhood and intimacy as the senate reminded the state that persons must not be treated as “naked objects” of

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criminal law enforcement.110 In urging legislators to take steps to ensure that acoustical surveillance does not intrude on the “inviolable core” of private life, the senate added that “even the overwhelming interests of the general public would not justify an invasion of this absolutely protected core of the human personality.”111 Actually, one year earlier, in 2003, the Court struck a similar note in a major case involving judicially ordered taps on international telephone conversations between journalists and suspected criminals. In this, the Telecommunication Case (not to be confused with the previously discussed Telecommunication Surveillance Act Case), the First Senate ruled, inter alia, that the principle of proportionality had been satisfied because the disclosure was statutorily authorized, involved a crime of considerable significance, implicated a specific suspect with a high probability of a successful prosecution, and entailed no less intrusive way of getting the needed information. But the senate also noted that as a general principle the state has no right to interfere with the communications of persons without their permission and that the official use or storage of any information with respect to individuals not suspected of criminal activity is absolutely prohibited. Finally, as in other cases, the senate had reiterated the view that the right to one’s personal information protects not only the content of communications but also the circumstances surrounding them, including when, how often, and with whom the communications took place.112 Following these decisions, the Court began increasingly to hold the government’s feet to the fi re of constitutionality. Its newer liberty-enhancing approach to national security issues was on display in the Global Positioning System (GPS; 2005) and Aviation Security Act (2006) cases, decided respectively in 2005 and 2006. In the gps case, the Court reviewed federal regulations on the use of electronic devices to detect the location of criminal suspects traveling in automobiles or other moving objects.113 A gps device was placed on the car of the complainant to keep the police abreast of his whereabouts. The complainant, a German convert to Islam under suspicion of planning to carry out terrorist bombings, claimed that the use of the gps tracking device, together with several other observational methods, violated his personality and dignity rights. Although the Court upheld these technologies of surveillance, it laid down a number of conditions for the use of gps in tandem with other observational methods. First, any round-the-clock use of these methods must not lead to the construction of a detailed profi le of the suspect’s personality. If it does, the information must be discarded. Second, such measures are permissible only with regard to crimes of major importance, such as murder, aggravated robbery, extortion, and money laundering. Th ird, the Court instructed legislators to keep abreast of advances in surveillance technology and, if necessary, to pass laws that would prevent security agencies from using them to interfere with the right of informational selfdetermination.114 The Aviation Security Act Case, as noted earlier, declared that shooting down a civilian aircraft would be incompatible with the right to life secured by Article 2 (2) in tandem with the guarantee of human dignity under Article 1 (1).115 Two months after the decision in Aviation Security, the Court handed down the much-anticipated Data Mining Case (2006), the first of three major decisions involving

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the constitutionality of advanced monitoring technologies. In this case, the First Senate invalidated a North Rhine–Westphalia statute permitting the local police to fi lter out information from various electronic sources, both public and private, in order to identify persons, mainly Islamic students, whose activities and associations might target them as potential terrorists. The First Senate virtually characterized the procedure as a fishing expedition and therefore an infringement of the right to informational self-determination in violation of the personality and dignity clauses of Articles 2 and 1 respectively.116 The senate emphasized that this right is far from absolute and may be regulated in the public interest, particularly when the danger of terrorism is real. But any balance between liberty and security, said the senate, must respect the constitutional state principle, a component of which is the proportionality principle.117 Justice Evelyn Haas, the lone dissenter, faulted the Court for invading the rightful prerogative of the legislature in balancing these values.118 The Online Computer Surveillance Case, decided in 2008,119 constitutes another landmark ruling in defense of the “right to the confidentiality and integrity of informationtechnological systems,” one the First Senate derived from the general personality clause of Article 2 (1) in conjunction with the human dignity clause of Article 1 (1). A North Rhine–Westphalia statute had empowered intelligence officials to covertly infi ltrate computer systems and the Internet for the purpose of protecting the constitutional order under the terms of Article 10 (2). The decision extends the Basic Law’s protection to personal computers in par ticu lar. “Today’s personal computers,” said the senate, “can be used for a wide variety of purposes, some for the comprehensive collection and storage of highly personal information . . . corresponding to the enormous rise in the importance of personal computers for the development of the human personality.”120 The right to informational self-determination, said the Court, protects individuals against the disclosure of personal data beyond what is necessary to avoid a “concrete danger” to human life or the security of the state. As the First Senate noted, “The fundamental right to the integrity and confidentiality of information technology systems is to be applied . . . if the empowerment to encroach covers systems that, alone or in their technical networking, contains personal data of the person concerned to such a degree that access to the system facilitates insight into significant parts of the life of a person or indeed provides a revealing picture of his or her personality.”121 Invoking the protection of Article 10, the Court concluded that general exploratory online searches based on mere suspicion of some remote danger, however serious, is constitutionally impermissible. What is more, information gathered even in permissible online legal searches cannot be used if the data touch the inner core of the human personality. Finally, on 3 March 2010, in the Data Stockpiling Case, the First Senate continued to prioritize liberty interests over national security concerns. In response to constitutional complaints by no fewer than thirty-five thousand German citizens (including Federal Justice Minister Sabine Leutheusser-Schnarrenberger and some fi ft y professionals, parliamentarians, and telecommunication providers), the First Senate held that a European Union directive requiring the mass storage for six months of

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mobile and fi xed-line telephone calls and e-mail traffic, a measure seen as central in the fight against terrorism, violated the personality clause of the Basic Law.122 The senate ordered these records to be deleted forthwith, pending the passage of legislative measures designed to place strict controls on the use of such information. The laws challenged in the Data Stockpiling Case were amendments to the Telecommunications Act and the Code of Criminal Procedure (Strafprozessordnung), enacted in 2007 to satisfy the European Community Directive. The data required to be preserved included information derived from landline, wireless, fax, sms (text-messaging), and e-mail communications that would be necessary to reconstruct by whom, when, how long, with whom, and from where a telecommunications act had been conducted. Additionally, changes to the Telecommunications Act and Code of Criminal Procedure expanded both the justifications for the state’s acquisition of the stockpiled data from the private ser vice providers and the uses the state might make of the information. In a maneuver that allowed it to show respect to the European Community, the senate held the stockpiling of telecommunications data by private ser vice providers was not as such a constitutional violation. Instead, the senate focused its disapproval on the Parliament’s implementing laws, concluding that they did not adequately protect the deeply intimate sphere of the human personality. The Court explained that the addresses, phone numbers, dates, times, and locations revealed in the data, if examined over any length of time, could be used to sketch a deeply personal and revealing portrait of a subject’s political associations, personal preferences, inclinations, and weaknesses.123 An encroachment on liberty interests of such importance, said the Court, would be compatible with Article 10 (1) of the Basic Law only if stockpiling were conducted by private actors for the state’s use in investigating criminal acts or preventing security threats, both of which must involve considerable gravity. Physical Integrity. Article 2 (2) declares: “Everyone shall have the right to life and to physical integrity.” Th is provision is repeatedly invoked in conjunction with the human dignity and personality clauses as a basis for imposing constitutional restraints on criminal procedures. A person may be duty bound to submit to certain physical interventions if necessary to a judicial investigation, but the action must be specified in precise terms by a judge applying the law in the light of constitutional values.124 The intervention must, above all, satisfy the principle of proportionality. Thus, in the Heinrich P. Case (1956), the Constitutional Court sustained the validity of a judicially ordered blood test to determine parentage in a paternity suit.125 Other federal courts have likewise sustained compulsory vaccination statutes and even corporal punishment in schools.126 The physical integrity clause appears to bar all invasions of the body that would result in unusual physical pain, bodily disfigurement, sterilization, impairment of any bodily function, or any injury to a person’s health.127 The Spinal Tap Case (1963) demonstrates that the clause also imposes severe limitations on the technical methods that can be employed in any penetration of

Human Dignity, Personal Liberty, and Equality 419

the human body. In Spinal Tap the Second Senate invalidated as a violation of physical integrity a judicial order requiring the medical withdrawal of spinal fluid from a person under investigation for violating a criminal statute. In this instance, the First Senate held that the ordinary court had unconstitutionally disregarded the principle of proportionality since the alleged criminal offense was minor and the invasion of bodily integrity excessive.128 In the Pneumoencephalography Case (1963),129 decided a few weeks after Spinal Tap, the Court invalidated a court-ordered puncture of a person’s vertebral canal for the purpose of testing his personal responsibility for a crime. As noted earlier in this chapter, the Federal Constitutional and administrative courts have invalidated the polygraph test in criminal investigations.130 To attach a person to a machine to elicit the truth, these tribunals have declared, is a constitutionally inadmissible invasion of a person’s innermost self and a violation of human dignity. In short, the human person cannot be treated as an object of experimentation of any kind. To do otherwise is to depart from the image of humankind to which the Court hews. Efforts to apply the physical integrity clause outside the criminal field have been less successful. In the Widow’s Child Welfare Case (1951) the Constitutional Court ruled that Article 2 (2) does not confer any subjective right to a specific social welfare benefit.131 In the aftermath of the Abortion I Case, constitutional litigators have been able to argue with some plausibility that, as an objective value and as an aspect of personality, the right to physical integrity places “all the organs of the state . . . under a duty to promote and protect, by means of positive or affi rmative legislation, the legal values of life and of physical integrity.”132 Indeed, as the Mülheim-Kärlich Case (1979) shows, the Constitutional Court became increasingly sensitive to such arguments when advanced in the interest of a safe environment.133 Since 1983, numerous persons have fi led constitutional complaints with the Court in defense of a constitutional right to a safe environment under the physical integrity clause.134

equality Equality is a central tenet of the liberal political tradition. Th is ancient tree traces its roots to origins both sacred and secular.135 German constitution writers, too, have been enchanted by its fruit. The Frankfurt Constitution and Weimar Constitution, among others,136 explicitly rejected the counsel of Goethe’s sorrowful protagonist, Werther, who wrote to Willhelm: “I know very well that we are not all equal, nor can be so.”137 The 1949 Basic Law reasserted and expanded the German constitutional tradition of equality that had been interrupted so brutally by the National Socialists. Article 3 includes the Basic Law’s main clauses on equality. It guarantees to all persons equality before the law (Article 3 (1)), specifies that men and women “shall have equal rights” (Article 3 (2)), and prohibits discrimination on the basis of sex, parentage, race, language, homeland, faith, or political views (Article 3 (3)). In 1994, Article 3 was amended to impose an affi rmative duty on the state to combat gender inequality

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and extended antidiscrimination protection to the disabled. Equality norms have been incorporated into several other provisions of the Basic Law, ranging from the requirement that marital and nonmarital children be treated alike (Article 6 (5)) to the guarantee that all Germans shall have equal access to public employment (Article 33 (1)).138 Taken together, these provisions underscore the breadth and complexity of the fundamental role that equality plays in Germany’s system of constitutional governance. Th is is one reason why the general equality clause of Article 3 is one of the most frequently invoked provisions of the Basic Law in the Federal Constitutional Court’s jurisprudence.139 Typical also is the frequency with which the principle of equality is invoked in tandem with the Basic Law’s dignity and personality clauses. As should be clear from the foregoing discussion of Articles 1 and 2, each informs and reinforces the meaning of the other. Equality, however, often requires positive governmental action rather than marking out a distinct sphere of an individual’s negative freedom from state authority, which is a main function served by the dignity and personality clauses as well as most other basic rights. Th is distinction between positive and negative rights is important. It highlights the tension between freedom and equality that besets all constitutional democracies and, in part, fuels the conceptual difficulty the Constitutional Court has faced in defi ning and applying the protections of Article 3. The general equality principle of Article 3 (1) extends to citizens and noncitizens alike and, like all basic rights, binds all branches of public authority. Despite the specific reference to “men and women” in Article 3 (2), it has been interpreted to apply to legal persons as well,140 including public entities like the federal states. As noted in Chapter 4, some of Germany’s most prominent equality cases have involved complaints of inequality between the federal states in the context of fi nancial equalization. Article 3 also has been regarded as an objective value with horizontal effect on private law. These expansive applications of the general equality principle, touching the relations between the Länder and operating in private legal relations, must seem a curiosity for Americans whose constitutional scheme for equal protection serves only to shield persons from discriminatory public actions.141 Modes of Equal Protection Analysis. The reference to American equal protection doctrine invites a brief comparison between the U.S. and German approaches to interpreting their respective equal protection clauses. Both systems recognize that equality cannot be enforced as an absolute. After all, a core function of law is to differentiate or to classify persons and things for valid, specified purposes. But what is an impermissible classification, one that offends the constitutional principle of equality? When a legislative classification is challenged on constitutional grounds, the Federal Court of Justice and Federal Constitutional Court typically examine the relationship between the classification and its purpose. If they fi nd the relationship to be arbitrary or capricious, the relevant statute will be struck down. Equal protection in both jurisdictions is understood to prohibit any distinction for which there is no rational basis. Early on, in the seminal Southwest State Case (1951; no. 3.1), the

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Constitutional Court explained that the general equality principle of Article 3 (1) requires that “the substantially similar should not be arbitrarily treated as if they were different and the substantially dissimilar should not be arbitrarily treated as if they were the same.”142 In short, the principle of equality is violated if no reasonable ground can be found for the legislative differentiation. Out of respect for the democratic process, this “rationality” approach has the advantage of restraining the judiciary’s intervention in normal legislative judgments. But, as we shall see in the cases featured in this section, rationality review has far more bite in Germany than in the United States. Whereas the Supreme Court usually assumes a rational connection between classification and purpose, virtually abdicating judicial review over normal legislative classifications,143 the Constitutional Court places a heavy burden on the legislature to demonstrate such a connection. Th is enhanced rationality review by the German Court contrasts sharply with the Supreme Court’s minimal level of scrutiny over legislative classifications. By relying on far more than “minimalism”—a low level of rationality review—the Constitutional Court has given significant force to the general equality principle of Article 3 (1). Another similarity in the equal protection analysis of the two tribunals is the sliding scale of protection that takes a range of factors into account in applying the equality principle. Article 3 (3), unlike the equal protection clause of the Fourteenth Amendment, contains a list of forbidden classifications. Because they are forbidden, these classifications—those based on sex, parentage, race, language, homeland, faith, and now disability—require a far higher degree of judicial scrutiny than other classifications. By contrast, the Supreme Court applies elevated standards of review to legal differentiations largely confi ned to race and sex, both of which are regarded as unchangeable traits intrinsic to personal identity. But even within these categories, the Supreme Court in recent times has applied varying and often inconsistent standards of heightened judicial review. The specificity of the Basic Law’s equality clauses and their linkage with other constitutional provisions guaranteeing equality in specified contexts has allowed the Federal Constitutional Court to create a body of equal protection jurisprudence somewhat broader and more internally consistent than would appear to be the case in the United States. In the Transsexual II Case the Court laid out—and reaffi rmed—its basic scheme of equal protection analysis. The case also shows that the intensity of judicial review largely depends on the extent to which the principle of equality impinges upon other basic rights.144 7.10 Transsexual II Case (1993) 88 BVerfGE 87 [In 1978 the Federal Constitutional Court concluded that the gender under which transsexuals were officially registered could be changed following a sexchange operation (Transsexual I Case [1978]). But the Court made clear that Parliament is authorized to regulate matters pertaining to transsexualism. Accordingly, in 1981 Parliament enacted the Transsexuals Act (Transsexuellengesetz),

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providing in relevant part that 1) transsexuals could apply to change their fi rst name to match their sexual identity, but only after they had reached the age of twenty-five (§ 1, the “small solution”) and 2) that transsexuals could apply to be officially registered under a new gender, but only after they had reached the age of twenty-five (§ 8, the “large solution”). One year later, in the Transsexual Youth Case (1982), the Federal Constitutional Court invalidated the requirement that a person be twenty-five years old before a sex change could be legally registered. In this case, the Court was called upon to consider the constitutionality of § 1 (the “small solution”) requiring that a person who has undergone a sex change be twenty-five years old before being allowed to change his or her name. The issue was whether treating transsexuals under the age of twenty-five differently from those over this age violated the Basic Law’s general principle of equality.]

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Judgment of the First Senate. . . . B. Section 1 of the Transsexuals Act is incompatible with Article 3 (1) of the Basic Law and therefore void. . . . I. 1. The universal principle of equality limits the legislature in a variety of ways. Depending on the legislative objective in classifying persons for purposes of different treatment and the classifying characteristic, these limits range from a ban on laws that are merely arbitrary to a strict observance of proportionality requirements. A gradation among these limits follows from the wording and purpose of Article 3 (1) of the Basic Law when considered in tandem with other constitutional values. Since the main purpose of the principle of equality before the law is to prevent unjustified differences in the treatment of human beings, legislation that treats groups unequally normally requires heightened levels of judicial review. The more legislation impinges upon a personal trait enumerated in Article 3 (3) and the greater the danger that the tangible inequality leads to discrimination against a minority, the more restrictive will be the binding effect of Article 3 (3). But this binding effect is not limited to [legislatively drawn] differentiations among persons. It applies more frequently when an inequality of factual situations directly causes an inequality among groups of people. The severity of constitutional review with respect to classifications based solely on behavior depends on the extent to which the persons affected are in a position to change, by their behavior, the trait or identity that is affected. In these cases, the range of legislative discretion is limited depending on the degree of the inequality in the treatment of persons or facts that negatively affect the exercise of fundamental rights. The varying scope of legislative discretion is paralleled by the graduated approach of constitutional review by the lower courts. If arbitrariness is the standard to be considered, then the legislature would violate the Basic Law only when the classification

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lacks a genuine factual basis. The Federal Constitutional Court meticulously examines regulations that treat groups of persons differently or have a detrimental effect on the exercise of basic rights, particularly when the nature and importance of the reasons for treating groups of persons differently may justify unequal treatment under the law. These considerations apply equally to the legislature’s assessment of the factual basis justifying differential treatment—such an analysis being a legislative prerogative—and the probable effects of its action. In short, differentiating standards also apply to the review of legislative prognoses. These standards range from a review of whether the planned regulation is based simply on faulty information to a more stringent examination of its content. It is particularly important to consider the nature of every individual fact as well as the significance of the legal interests at stake. The leeway for any such prognosis also depends on the legislature’s capacity to reach a proper factual assessment at the time of its decision [factual assessment in this instance meaning the grounds the legislature may have had for believing that a tendency toward transsexual behavior might be reversed before the age of twenty-five]. Constitutional judicial review entails a sliding scale of judicial control that allows varying ranges of legislative discretion. When nothing but the ban of simple arbitrariness is involved, a violation of Article 3 (1) can be established only when the classification lacks a credible factual basis. By contrast, if the Constitutional Court examines measures that affect groups of people differently or impacts negatively on fundamental rights, then the disparity can be justified only by a convincing demonstration of the nature and importance of the measure. Sliding scale review also involves a consideration of the prospective outcomes and possible consequences of the mea sure. A review of such legislative prognoses contains different standards ranging from one that is evidently clear on the basis of the facts to a rather strict examination of a classification’s substantive content. Particularly important for assessment and analysis are the nature of the factual evidence justifying differentiation and the significance of the relevant legal norm. How much discretion the legislature has in making its prognosis depends on its ability to satisfactorily substantiate the reasons for the decision at the time of enactment. 2. These criteria call for a strict review of § 1 of the Transsexuals Act. The age required for changing one’s fi rst name constitutes a differentiation that impinges upon a personal trait and one that significantly affects the general right to personality. Article 2 (1) in combination with Article 1 (1) of the Basic Law protects the narrow personal sphere of life, especially one’s intimate and sexual sphere, and guarantees to every person the fundamental right to determine the circumstances under which he or she behaves or acts in the public realm. The Transsexuals Act serves to protect these legal interests. The “small solution” allows an [allegedly] transsexual person time to consider whether to go ahead with a sex-change operation and to allow that person time to live in the chosen gender role without having to publicly reveal that fact to third parties or the authorities. Accordingly, the provision under review would be compatible with Article 3 (1) of the Basic Law only if there were adequate reasons for prohibiting a

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transsexually predisposed person from changing his or her fi rst name under the age of twenty-five. The nature and importance of these reasons would have to be ones that could justify unequal treatment. Th is, however, is not the case. a. The age requirement leads to a significantly detrimental treatment of persons under the age of twenty-five whom two experts had declared to be highly likely irreversible transsexuals. After the enactment of the Transsexuals Act these persons, prior to reaching the age of twenty-five, were unable to change their fi rst names in a manner that would correspond to the way they felt and the way they presented themselves in public. Since the Federal Constitutional Court’s decision of 16 March 1982 [Transsexual Youth Case (1982)], they have had the right to demand a legal determination of their personal status and, in accord with § 8 of the Transsexuals Act, to change their fi rst name as soon as the necessary surgical procedures had been performed. By contrast, they were unable legally to live as transsexuals prior to any sex change. But transsexuals beyond the age of twenty-five were able to change their fi rst names prior to surgery. Accordingly, they were not constantly subjected to intolerable situations in the work place, in educational institutions, in their dealings with the authorities, and, generally, in everyday life. Given the objectives of the “small solution,” this unequal treatment weighs particularly heavily on transsexuals. The “small solution” is supposed to provide transsexuals with the legal means to change their sexual identity early on in an effort to support them prior to any surgical procedure and thus significantly to diminish any suffering. Furthermore, the legally guaranteed ability of transsexuals to change their sexual identity is supposed to enable them to experience life with a different sexual identity over a long period of time prior to having to make a decision regarding largely irreversible physical changes and to give them time to make certain that this is the kind of life that corresponds to how they truly feel sexually. . . . Denying transsexuals these options can be particularly traumatic for younger transsexuals. For one thing, they are at an age when they are making decisions about their professional future, completing their education or their occupational training, and at a time when they are frequently forced to select the place where they would initially wish to work. It is therefore particularly important for them to gain a sense of self-confidence in a role that corresponds to the way they feel about themselves sexually and to be spared from oppressive situations that arise when their fi rst names, listed on their identity papers, do not reflect the way they present themselves to the public. The purpose of the “small solution” was deemed important because it helps them to overcome difficulties in their daily lives, especially regarding the relationship with their employer. In addition, younger transsexuals have a vested interest in experimenting with their changed sexual roles prior to subjecting themselves to largely irreversible surgical procedures without being forced by law to decide hastily about such a step. The legislature therefore had a substantial interest in preventing younger people from making premature decisions. b. But there are no apparent reasons for justifying such a traumatic and detrimental treatment of younger transsexuals. At this point, it does not matter if the legislature,

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in exercising its prerogative of assessing the actual situation at the time of the act’s promulgation, feared that by permitting younger people to change their fi rst names they might prematurely commit themselves to a fi xed transsexual inclination. Furthermore, there is no need to determine whether the available facts at the time justified the twenty-five age limit as an appropriate measure for preventing younger transsexuals from making a hasty decision that might also be based on insufficient grounds. In any event, today there is simply no longer any justification for the assumption that the age limitation in § 1 of the Transsexuals Act is necessary to prevent younger people from hastily changing their sexual roles and to save them from the consequences of a possibly erroneous prognosis. . . .

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In the years following Transsexual II, the Constitutional Court handed down several additional cases vindicating the equality rights and liberty interests of transsexual persons. In the Transsexual III Case (2005), the Court ruled that the Transsexual Law recognizing the legitimacy of a sex change operation applies equally to heterosexual and homosexual transsexuals.145 In addition, the Transsexual IV Case (2006) extended the law to include non-German nationals resident in Germany whose home countries would not recognize their new genders.146 The Transsexual V Case (2008), by contrast, relied mainly on the personality and dignity clauses of the Basic Law to strike a regulation that forced a person to make a choice between remaining married to his spouse of some fi ft y years or having his new gender recognized under the Transsexual Act.147 The Transsexual VI Case (2011) carried the right to sexual self-determination a step further. The case involved a sixty-two-year-old man who, being transsexual, was able legally to change his name to that of a female (the “small solution”). His sexual orientation, however, was that of a female homosexual living in partnership with a woman. He declined to undergo surgery to change his sex (the “large solution”) out of fear that an operation at his age would be dangerous. Thus, in the eyes of the law, he remained a male, and for this reason he and his partner were denied permission to enter into a same-sex civil partnership, although they would have been able to marry. The constitutional complaint was directed at judicial decisions upholding the denial of the couple’s request to enter into the civil partnership. The essence of the complaint was that these decisions deprived them of their need for mutual support and recognition as a homosexual female couple. The First Senate ruled that the denial infringed the personality and dignity clauses of Article 2 (1) and Article 1 (1) in tandem with the right to physical integrity under Article 2 (2). The ruling underscored the right of a person to have his or her gender identity recognized in law.148 Equality Measured by Proportionality. Long before Transsexual II, the First Senate had declared that the legislature violates the general principle of equality “when one group subject to regulation is treated differently than another group subject to regulation, although no difference of such nature and such weight between the two groups exists that could justify the dissimilar treatment” (emphasis added).149 The Court’s

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introduction of the concepts “nature” and “weight” into its analysis has led many to argue that a tailored version of the proportionality principle now operates here. So construed, the principle of proportionality, as noted in Transsexual II, plays an important role in any examination of the relationship between classification and purpose. In any such examination, the criteria of differentiation must be “adequate and necessary” to obtain the end pursued. But how “adequate” and to what extent “necessary”? The answer requires a delicate balancing of ends and means, and the result is not always predictable. The effort is aimed at defi ning the meaning of equality by reference to other principles, considerations, and rights. In Transsexual II, for example, the Court underscored the critical importance of certain “personal characteristics” (personenbezongene Merkmale), considered the relevance of a person’s age to the right of personality secured by Article 2 (1), and sought to balance the state’s purposes against the personal interests of the individual. In the hands of the First Senate, the principle of proportionality was once again applied, but seemingly at a low level of intensity. The lower scrutiny may be explained by the fact that age is not among the forbidden classifications of Article 3 (3). Yet the senate independently examined the reasons for the age distinction here and found them wanting when compared to the importance of the right to personality under Article 2 (1). No compelling or convincing reason seemed necessary in this instance, which would have been required under a stricter test of proportionality, but the Court seems to have insisted on a rationale somewhat stronger than Parliament was able to produce. By contrast, years earlier in the Midwife Case (1959), the First Senate upheld the constitutionality of a federal law that prohibited midwives but not licensed obstetricians from practicing their profession after the age of seventy.150 Here the Court found substantial differences between midwives and doctors that justified the difference. These included the long training and experience of doctors relative to midwives, together with the high degree of supervision and accountability within the medical profession. In addition, the age limit on midwifery was justified by the significance of the state’s objective. “The protection of mothers and children are so important and the dangers so great,” said the senate, “that drastic measures [are needed] to ensure high standards of physical and mental capacity in the exercise of the profession.”151 The senate might also have reinforced its conclusion by invoking the social state clause as well as Article 6 (4) of the Basic Law, which places “every mother” under “the protection and care of the community.” The recent Asylum Benefits Case (2006) is another illustration of the approach the Court employs in applying the general equality clause. Ordinarily, Parliament has a great deal of discretion in the enactment of social policy. It would also seem reasonable for a legislature to develop a welfare benefit plan adjusting the nature and extent of benefits differently for foreign nationals and established residents. One such policy was expressed in the Asylum Seekers Benefits Act of 1993 (Asylbewerberleistungsgesetz), under which applicants for asylum were required to use up income received from damages for pain and suffering to provide for their support before being

Human Dignity, Personal Liberty, and Equality 427

entitled to additional benefits under state social assistance programs. In this case, administrative authorities refused an asylum seeker benefits under the act until he had used up a damage award of dm 25,000 his wife and child received for pain and suffering caused by an automobile accident. In reversing administrative court decisions upholding the relevant provisions of the Asylum Act, the First Senate declared the policy incompatible with Article 3 (1) of the Basic Law. The Court held that damages for pain and suffering served a function different from social assistance, that the former were not intended to cover the necessities of life but rather to compensate for physical and mental pain. Accordingly, the state could not treat asylum seekers differently from other applicants for social assistance, because the difference could not be justified given the general nature and logic behind social benefit policy.152 As is usual in cases such as this, where legislation is not voided but instead declared “incompatible” with the Basic Law, the Court gave the legislature until 1 July 2007 to amend the statute accordingly.153 Gender Discrimination. Given the text of Article 3, it should not be surprising that sex-based classifications have provided a fertile source of constitutional litigation in Germany.154 In its original version, Article 3 (2) declared that “men and women shall have equal rights.” On the one hand, this language adds substance to Article 3 (1) by imposing tighter boundaries on the flexibility inherent in the general equality principle. On the other hand, Article 3 (2) and Article 3 (3), which includes gender in its list of suspect classifications, were long regarded by the Court as redundant. In the Nocturnal Employment Case (featured below), however, the Court recast Article 3 (2), reading it as a mandate for factual equality between men and women. Th is contrasted with the equality implicated by the formal prohibition on gender discrimination found in Article 3 (3). Soon thereafter the Court’s groundbreaking interpretation of Article 3 (2) was incorporated into the constitutional text itself. A 1994 amendment to the Basic Law added the following sentence to Article 3 (2): “The state shall promote the actual implementation of equal rights for women and men and take steps to eliminate disadvantages that now exist.” In any event, the historical distinction between Article 3 (2) and Article 3 (3) seems clear when one considers that German law was once riddled with gender classifications, many of which mirrored the traditional patriarchy of German society.155 In the light of this background, Article 117 (1) of the Basic Law required the repeal, by 31 March 1953, of all legislation that was inconsistent with the mandate for gender equality in Article 3 (2). Taking these provisions seriously, the Constitutional Court served notice early on that in properly litigated cases it would invalidate sex-based classifications if Parliament failed to heed the injunction of Article 117 within the prescribed time.156 The road to Nocturnal Employment and the 1994 amendment to Article 3 (2) was long and meandering. In the beginning, the Court moved cautiously, sustaining more gender classifications than it struck down, while insisting that such classifications would survive constitutional analysis only when objective biological or functional differences between men and women are substantial enough to warrant their dissimilar

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treatment.157 An important milestone along the way was the Housework Day Case (1979), which invalidated a North Rhine–Westphalia statute granting single women with their own households one free day from work per month but failed to extend this same benefit to single male employees with their own households. Housework Day represented the fi rst significant instance in which the Court struck down a law disfavoring males. Until then, labor courts in particular had accepted the view that Article 3 (2) was designed to place women on an equal footing with men rather than the other way around. The Constitutional Court rejected this interpretation, holding that Article 3 (2) “does not justify the disadvantaging of men who actually run their own households themselves.”158 With this decision, the Court reinforced the teaching of earlier cases that policies based on overbroad generalizations about the proper roles of men and women in society or in the marketplace no longer would be tolerated. Until the late 1970s the prevailing view on and off the Court was that Article 3 required little more than the elimination of legal distinctions based on gender. This prevailing view shifted, partially in response to European Community directives seeking to bring about equality in matters of pay and employment, but also in response to a growing feminist movement in Germany.159 The shift manifested itself in the Fair Employment Act of 1980, an antidiscrimination law banning gender preferences in hiring, promotion, and dismissal; requiring equal pay for equal work; and exhorting employers to advertise job openings in gender-neutral language.160 Eventually, the Constitutional Court would play a crucial and increasingly important role in dismantling Germany’s traditional, male-dominated legal infrastructure. Th is was especially the case when the Court invoked Article 3 (3) in tandem with family rights guaranteed by Article 6.161 7.11 Nocturnal Employment Case (1992) 85 BVerfGE 191 [A supervisor in a cake factory was fi ned for employing women to wrap cakes at night in violation of a statute forbidding the employment of women as bluecollar workers (Arbeiterinnen) at night. After exhausting her ordinary judicial remedies, the supervisor fi led a constitutional complaint in which she argued that the law offended the equality provisions of Article 3 (1) and (3) of the Basic Law. ]

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Judgment of the First Senate. . . . C. The constitutional complaint is justified. . . . The prohibition of nocturnal employment of women is incompatible with Article 3 (1) and (3). I. The ban on night work for women . . . offends Article 3 (3). 1. Under this provision no one may be disadvantaged or favored on the basis of gender. Th is paragraph reinforces the general equality provision of Article 3 (1) by

Human Dignity, Personal Liberty, and Equality 429

imposing more stringent limitations on legislative judgment. Like the other characteristics listed in paragraph 3, gender may not be employed as a basis for unequal treatment. Th is is true even if the law in question is intended not to establish the forbidden inequality for its own sake but to pursue some independent goal. With respect to the question whether a law unjustifiably discriminates against women, Article 3 (2) imposes no additional restrictions. What Article 3 (2) adds to the discrimination ban of Article 3 (3) is an affi rmative command of equal opportunity [Gleichberechtiungsgebot] that extends to the real social world [die gesellschaft liche Wirklichkeit]. The provision that “men and women shall have equal rights” is designed not only to do away with legal norms that base advantages or disadvantages on gender but also to bring about equal opportunity for men and women in the future. Its aim is the equalization of living conditions. Thus, women must have the same earning opportunities as men. . . . Traditional role conceptions that lead to increased burdens or other disadvantages for women may not be entrenched by state action. . . . De facto disadvantages typically suffered by women may be remedied by rules that favor women. . . . The present case is concerned not with the equalization of conditions but with the removal of an inequality imposed by law. The statute treats women laborers unequally because of their gender. It is true that the rule is addressed to employers. But the consequences of the rule are felt immediately by female workers. Unlike men, women are deprived of the opportunity to work at night. Th is is an inequal ity imposed by law on the basis of gender. 2. Not every inequality based on gender offends Article 3 (3). Gender distinctions may be permissible to the extent that they are indispensably necessary [zwingend erforderlich] to the solution of problems that, by their nature, can arise only for women or only for men. But this is not such a case. a. The prohibition of nocturnal employment was originally based upon the assumption that women laborers were constitutionally more susceptible to harm from night work than men. Studies in occupational medicine provide no fi rm basis for this assumption. Working at night is fundamentally harmful to everyone. . . . b. Insofar as investigations show that women are more seriously harmed by night work, this conclusion is generally traced to the fact that they are also burdened with housework and child rearing. . . . Women who carry out these duties in addition to night work outside the home . . . obviously suffer the adverse consequences of nocturnal employment to an enhanced degree. . . . But the present ban on night work for all female laborers cannot be supported on this ground because the additional burden of housework and child rearing is not a sufficiently gender-specific characteristic. For the woman to mind the house and the children does correspond with the traditional division of responsibility between husband and wife, and it cannot be denied that the woman often fi lls this role even when she is as busy as her male partner with outside work. But this double burden falls with full weight only upon those women with children requiring care who are single or whose male partners leave child care and housework to them despite their nightly jobs. It falls

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equally upon single men who bring up children. . . . The undeniable need for protection of night laborers, male and female, who have children to bring up and a household to manage can be met better by rules that focus directly on these circumstances. c. In support of the prohibition of night work, it is also argued that women are subject to par ticular dangers on their way to and from their place of nocturnal employment. In many cases that is no doubt true, but it does not justify forbidding all women laborers from work at night. The state may not escape its responsibility to protect women from being attacked in the public streets by restricting their occupational freedom in order to keep them from leaving their houses at night. . . . Furthermore, this argument is not so generally applicable to women laborers as a group that it justifies disadvantaging all of them. Par ticu lar risks might be avoided, for example, by providing a company bus to take employees to work. . . . II. The statute also offends Article 3 (1) of the Basic Law because it treats women laborers [Arbeiterinnen] differently from women in clerical positions [Angestellte] without sufficient reason. 1. The general equality provision of Article 3 (1) forbids the legislature from treating different classes of persons differently if there are no distinctions between them of such nature and weight as to justify the difference in treatment. . . . 2. The unequal treatment of the two classes of female employees could be justified only if women in white-collar jobs were less burdened by night work than those in blue-collar positions. But there is no evidence to support this conclusion. The relevant occupational health studies suggest, rather, that harmful consequences to health are the same for both groups. . . .

∂

Nocturnal Employment in Perspective. Nocturnal Employment is a major benchmark in the Constitutional Court’s equal protection jurisprudence. In a lucid restatement of the theory underlying its interpretation of Article 3 (1), operating in conjunction with the antidiscrimination provisions of Article 3 (3), the Court served notice that it would no longer tolerate classifications that perpetuate stereotypical notions of gender roles in society.162 Th ree things appear to have influenced the decision in Nocturnal Employment. First, the old gdr had no statute on the working hours of women, and in the face of mass unemployment among East German women after reunification, it would have seemed callous to saddle them with the added burden of a ban on work after dark.163 Second, the First Senate followed a 1991 decision of the European Court of Justice that invalidated a French prohibition on women working at night.164 Finally, the Court decided the case within a context of increasing emphasis on social and economic equality between the sexes and mounting political pressures in Germany on behalf of affi rmative action.165 Another interesting feature of Nocturnal Employment was its discussion of the relationship between paragraphs 2 and 3 of Article 3. The First Senate concluded that the gender-based discrimination implicated in the case was not legitimized by Article 3 (2). The senate explained:

Human Dignity, Personal Liberty, and Equality 431 The infringement of the discrimination ban of Article 3 (3) is not justified by the equal opportunity command of Article 3 (2). The prohibition of night work . . . does not promote the goals of Article 3 (2). It is true that it protects a number of women . . . from nocturnal employment that is hazardous to their health. But this protection is coupled with significant disadvantages. Women are thereby prejudiced in their search for jobs. They may not accept work that must be done even in part at night. In some sectors this has led to a clear reduction in the training and employment of women. In addition, women laborers are not free to arrange their working time as they choose. One result of all this may be that women will continue to be more burdened than men by child rearing and housework in addition to work outside the home, and that the traditional division of labor between the sexes may be further entrenched. To this extent the prohibition of night work impedes the elimination of the social disadvantages suffered by women.166

Nocturnal Employment was foreshadowed by the Common Marital Name Case (1991). In this revolutionary decision, the First Senate fundamentally altered German family law by striking down provisions requiring married couples to adopt the surname of the husband in the event that the spouses fail to agree on using one of their names in common. The Court took judicial notice of changing social reality, declaring that such classifications lack any basis in “objective differences between the sexes.”167 The Court served notice that it would no longer tolerate legislation based on gender stereotypes. Two additional cases are worthy of mention. In the Fire Brigade II Case (1995) the Court ruled that several state laws requiring only men to serve in local fi re brigades or, alternatively, to pay a tax if they failed to volunteer for such ser vice, were incompatible with Article 3. In this decision, handed down three years after the First Senate’s judgment in Nocturnal Employment, the Court held that any legal differentiation between the sexes can be justified only when “unavoidable for the regulation of matters which by nature affect one of the sexes.”168 In the Maternity Leave Case (2003), fi nally, the Court held that women working for small companies were discriminated against because these fi rms were subject to assessments for the support of a maternity leave system more burdensome than the system of assessments imposed on larger fi rms.169 Here, as in so many other cases, Article 3 was found to influence the meaning and scope of other constitutional rights, underscoring once again the Court’s holistic approach to constitutional interpretation. Citing the influence of Article 3, the First Senate also held that the system of assessments supporting maternity leave violated women’s occupational rights under Article 12. Gender-Based Affi rmative Action and European Law. The Fair Employment Act of 1980 applied only to private employers. The narrow scope of the act reflected Parliament’s view that the social state principle already obliged government to adopt antidiscrimination measures designed to ensure formal gender equality. Far more uncertain, however, was whether this principle, when construed in the light of the original Article 3 (2), required affi rmative action to abolish the effects of past discrimination

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against women. Arguments were advanced in support of such measures, although their constitutional validity remained in doubt.170 Legal scholars favoring remedial legislation received some support from the Constitutional Court’s decision in the Pension Reform Case (1987), which sustained the validity of a provision allowing women to retire earlier than men because of the “double burden” (Doppelbelastung) they endured from pregnancy and child care.171 The First Senate, supporting this view in Nocturnal Employment, declared: What Article 3 (2) adds to the discrimination ban of Article 3 (3) is an affi rmative command of equal opportunity [Gleichberechtiungsgebot] that extends to the real social world [die gesellschaft liche Wirklichkeit]. The provision that “men and women shall have equal rights” is designed not only to do away with legal norms that base advantages or disadvantages on gender but also to bring about equal opportunity for men and women in the future. Its aim is the equalization of living conditions. Thus, women must have the same earning opportunities as men. . . . Traditional role conceptions that lead to increased burdens or other disadvantages for women may not be entrenched by state action. . . . De facto disadvantages typically suffered by women may be made up for by rules that favor women.172

In the Machinist Case (1993) the First Senate fi nally put to rest any doubts about the constitutional propriety of gender-based affi rmative action measures.173 A company had declined to hire a woman as a machinist—she was the only female among forty applicants—because she was inexperienced and as a woman deemed physically incapable of doing the job. In reviewing the labor court’s rejection of her complaint under the 1980 Anti-Discrimination Act, the First Senate ruled that discrimination exists even if gender is only one of several reasons for the rejection. But the Court went on to hold that the 1980 statute was insufficiently protective of women’s rights, suggesting that Parliament should broaden the statute to create equal conditions in employment.174 Machinist is yet another illustration of the third-party-effect doctrine (Drittwirkung), underscoring the influence of constitutional values on private legal relationships. The lower court in this instance failed to attach sufficient weight to constitutional values in the interpretation of employment law.175 It could not have been entirely coincidental that soon after the decision in Machinist, the Hesse Constitutional Court upheld a Land statute prescribing the use of quotas to increase the representation of women in the public ser vice.176 Furthering this trend, Parliament enacted legislation that not only extended the antidiscrimination provisions of the 1980 statute to all public employees; it also included special mea sures to establish four-year plans to promote and hire more female public ser vice employees.177 The Court’s effort to fashion an affi rmative action jurisprudence was superseded, fi nally, in 1994, by a long-sought amendment to Article 3 (2). It provided a textual basis in the Basic Law for gender-based affi rmative action programs. As remarked earlier, European Community law, together with a decision of the European Court of Justice invalidating a French law prohibiting nocturnal employment

Human Dignity, Personal Liberty, and Equality 433

by women, significantly informed the Federal Constitutional Court’s interpretive struggle to part with Germany’s patriarchal traditions. Ironically, the European Court of Justice invalidated one of Germany’s first efforts enacted pursuant to the new affirmative action clause of Article 3 (2). In Kalanke v. Freie Hansestadt Bremen (1995) the European Court found Bremen’s absolute preference for women in civil ser vice hiring decisions to violate the antidiscrimination provision of the European Community’s Equal Treatment Directive.178 Confronted with significant institutional backlash, the European Court of Justice almost immediately clarified and softened its position on quotas enacted under the authority of Article 3 (2) of the Basic Law. In Marschall v. Land Nordrhein-Westfalen (1997)179 the European Court of Justice let the challenged genderbased quota system stand because, by contrast to the regulations at issue in Kalanke, these quotas contained a hardship clause that permitted some individual consideration of the male applicants.180 The European Court of Justice’s reaction to Germany’s genderbased quotas seems to have run its course with its judgment in Badeck v. Hessischer Ministerpräsident (2000).181 The European Court of Justice held that gender-based quotas complied with the affi rmative action provision of the Equal Treatment Directive because “the provisions include[d] some kind of saving clause, [and] the legislative intention [of the European Parliament and Council] had not been to restrict the introduction of affirmative action measures by member states. The view seemed to prevail that a broad interpretation of [the Equal Treatment Directive’s affi rmative action provision] was appropriate. . . .”182 In various other ways,183 the European Union has signaled its resolve to pursue an approach to gender equality closer to the factual equality mandated by Article 3 (2) of Germany’s Basic Law.184 Th is judicial interplay exemplifies the constitutional “dialogue”—described more fully in Chapter 6—that is possible between supranational European law and the domestic law of Germany.185 Initially, Germany was prodded by European law in the field of gender equality, only to reciprocate by taking a lead in informing European law on the subject, especially with regard to factual equality and positive action measures. The activism of the European Court of Justice on the issue of gender-based affi rmative action has permitted the Federal Constitutional Court to avoid becoming entangled in this persistently contentious debate, for no constitutional case in Germany has addressed a gender affi rmative action measure.186 Germany’s acquiescence has allowed the European Court of Justice to play a leadership role in this field. In 2000 the European Court ruled, in Kreil v. Germany,187 that Germany’s absolute prohibition on women’s military ser vice involving the use of arms violated the Equal Treatment Directive. Finally, in 2006, Germany belatedly and begrudgingly fulfi lled its obligation to translate into domestic law two new, comprehensive eu antidiscrimination directives from the year 2000.188 Suspect Classifications. As noted earlier in this section, Article 3 (3) contains a list of traits on the basis of which it is generally forbidden to legislate. It places the state on notice that persons are not to be “disadvantaged or favored” because of their sex, parentage, race, language, homeland, faith, religion, or political opinions. In 1994, the

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list was expanded to prevent persons from being “disfavored because of disability.” Commentators appear to agree that this list is defi nitive. The identified grounds are marked by their specificity and do not admit of analogous categories.189 But these words and clauses are seldom interpreted in isolation. They interact with and reinforce—and are reinforced by—other basic rights such as religious liberty (Article 4), freedom of opinion (Article 5), protection of mothers and nonmarital children (Article 6 (4) and (5)), and equal enjoyment of civil and political rights (Article 33 (3)). Equally important, they are almost always interpreted in tandem with the principles of human dignity (Article 1 (1)) and “law and justice” (Article 20 (3)). Article 3 (3) establishes what is essentially a subjective right to be free of discrimination on the identified grounds. Unlike the factual equality that the Constitutional Court has read into Article 3 (2), and that was incorporated into its text in 1994, Article 3 (3) does not permit positive discrimination or compensatory action designed to remove actual inequal ity, the protection for the disabled being an exception on this point. With the exception of the disabled, Article 3 (3) guarantees only formal equality. It imposes no absolute ban on real-life advantages or disadvantages, for every legislative differentiation will have that effect to some degree. Until recently the Constitutional Court narrowly interpreted the mandate of Article 3 (3). In focusing on the text’s “because of” (wegen) language the Constitutional Court adopted a “causation” standard for determining the legitimacy of a legislative differentiation. As David Currie explained, “Article 3 (3) applied only when there was a causal relationship between the forbidden criterion and the disadvantage the law imposed.”190 In short, if otherwise legitimate or neutral legislation not specifically grounded in one of the forbidden categories indirectly advantages or disadvantages persons who possess the relevant trait, then Article 3 (3) has not been violated. The Soviet Zone Case (1953) illustrates this interpretive approach. Early on, Parliament had enacted restrictions on the right to travel by residents living in Soviet-controlled East Germany, a policy challenged for disfavoring East Germans on the basis of their homeland. The Court sustained the statute because the legislative intent was not to discriminate against East Germans as such but rather to insulate the social economy against a flood of refugees from the East.191 Needless to say, categories such as “homeland,” “origin,” and “religious” or “political” opinions are not self-explanatory. Nor is every preference based on religious affi liation or political opinion forbidden. In the Civil Servant Loyalty Case (1975), for example, the Court held that a policy banning “disloyal” persons from the public ser vice is not discrimination based on “political opinions” any more than the appointment of a Catholic teacher to a state-operated Catholic school would constitute discrimination based on religion.192 Nocturnal Employment represented a major shift in the Federal Constitutional Court’s Article 3 (3) jurisprudence. Although the case dealt with a sex-based classification under Article 3 (2), the First Senate signaled that it would henceforth review with increasing rigor policies resulting in various forms of indirect discrimination. The Court explained: “Like other characteristics listed in paragraph 3, gender may not

Human Dignity, Personal Liberty, and Equality 435

be employed as a basis for unequal treatment. Th is is true even if the law in question is intended not to establish the forbidden inequality for its own sake but to pursue some independent goal” (emphasis added).193 Since then classifications based on traits listed in Article 3 (3) are suspect and thus receive a degree of scrutiny substantially higher and more penetrating than the mere reasonableness standard prevalent in the Court’s Article 3 (1) jurisprudence.194 Gender distinctions have been reviewed with par ticu lar stringency under Article 3 (3). Even if the purpose of the forbidden classification is legitimate, the Court will prohibit distinctions founded on a suspect classification unless a compelling reason in support of the action is advanced or the distinction is especially justified by the nature of the case. In addition, the Court requires a close and substantial relationship between ends and means in the application of these exceptions. To survive constitutional analysis, legislative line-drawing on the basis of any trait listed in Article 3 (3) would have to pass a rigorous test of proportionality. Disability Classifications. German law has long been supportive of some disabled citizens; it has, for example, imposed hiring quotas for wounded veterans of the world wars. Th is history might have persuaded the framers of the Basic Law to include disabilities among the classifications against which Article 3 (3) prohibits discrimination. But it did not. Considering that Article 3 (3) of the Basic Law was meant to protect groups persecuted during the Nazi regime, exclusion of the disabled from its explicit terms represented an even more glaring omission. An active movement advocating for the rights of the disabled took shape in the 1970s, leading to legislative changes, including the substitution of the “term Schwerbeschädigte (severely damaged) with Schwerbehinderte (severely disabled).”195 The chief aim, however, was the constitutional amendment that from 1994 prohibits any disfavoring of persons owing to their disability. The prohibition on discriminating against the disabled differs from the protection provided to the other classifications listed in Article 3 (3). Most significantly, the added provision only prohibits the imposition of disadvantages on the basis of disability. Positive or compensatory action advantaging the disabled is not textually foreclosed. Th is is significant because at least one commentator has remarked a greater willingness in German society to accept affi rmative action measures for the disabled than for women.196 Much of the advocacy on behalf of the disabled has focused on Germany’s tradition of providing segregated education for the disabled in Sonderschulen (special schools). Once a point of pride because of the specialized attention and training disabled students received, these segregated schools increasingly came under criticism through the 1970s and 1980s. For the disabled, the special schools also served as a threshold leading to a lifetime of segregated treatment. As one commentator remarked: “Critics of the German special education system have called it a Sonderzug (special train) because each compartment of special treatment is connected to the next, leading from special education to segregated residences to segregated employment.”197 These critics have argued that families with a disabled child could expect

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little more than special accommodations, consigning them to a lifetime of treatment in special institutions. Reformers hoped that a constitutional ban on segregating disabled students in the education system would serve as the foundation for the integration of Germany’s disabled citizens as full, equal members of society. Not unlike the American struggle for racial integration, the schools would serve as a bellwether. But the breadth and ambiguity of the language added to Article 3 (3)—“No person shall be disfavored because of disability”—left the legislature with considerable discretion in meeting the needs of disabled citizens. And contrary to their fondest hopes, the Federal Constitutional Court, in its fi rst major decision following the amendment of the Basic Law, sided with educational authorities who ordered a disabled child to attend a special school. The Integrated Education Case was a model of judicial restraint. 7.12 Integrated Education Case (1997) 96 BVerfGE 288 [The complainant was born with the spinal cord malformation commonly known as spina bifida. At the time this case arose, the complainant suffered from partial paralysis, used a wheelchair, and had motor activity problems, including difficulty speaking. She attended an integrated school where she studied alongside nondisabled children, but the school authorities obtained a referral order assigning her to a nonintegrated school for the disabled. The referral order cited the fact that evaluations of the student’s pedagogical needs indicated that she required special educational support. In the integrated school context this amounted to five hours of individual teaching each week as well as therapeutic and other ser vices. The student and her parents opposed the referral to the special school and challenged it in court, eventually asking a higher administrative court for a temporary injunction against the implementation of the referral order. The higher administrative court declined to grant the requested injunction. The student and her parents fi led a constitutional complaint with the Federal Constitutional Court alleging, inter alia, a violation of the disability provision of Article 3 (3). The fi rst and second sentences of Article 3 (3) read: “No person shall be favored or disfavored because of sex, parentage, race, language, homeland and origin, faith, or religious or political opinions. No person shall be disfavored because of disability.” Although the Court rejected the parental complaint, it clarified the circumstances under which a state would violate the second sentence of this article.]

∂

Judgment of the First Senate. . . . C. The complaint is unfounded. The higher administrative court’s failure to grant a temporary injunction, which resulted in the referral order’s implementation, is not susceptible to a constitutional challenge.

Human Dignity, Personal Liberty, and Equality 437

I. 1. According to Article 3 (3) [2] of the Basic Law . . . no one may be disfavored because of a disability. a. What is meant by “disability” cannot be directly determined from the amendment’s legislative history. However, the amendment’s framers clearly intended the term to have the meaning commonly attributed to it at that time. Th is understanding of the term was expressed in § 3 (1) [1] of the Disabled Persons’ Act, which provides that a disability consists of an enduring impairment of functions that is based on a disordered physical, mental or spiritual state. . . . Nothing speaks against starting out from this defi nition when interpreting Article 3 (3) [2] of the Basic Law. . . . b. The amendment’s legislative history does not clarify fully the concept “disfavored.” It also does not resolve the meaning and scope of the prohibition established by Article 3 (3) [2]. But these issues can be resolved by referring to the overall content of Article 3 (3). aa. Article 3 (3) [2] of the Basic Law is linked deliberately to the prohibition on discrimination that operated in the former Article 3 (3), now Article 3 (3) [1]. Th is suggests that sentence 2, like sentence 1, seeks to strengthen the general principal of equality established by Article 3 (1) of the Basic Law. The special characteristics identified by sentences 1 and 2 set narrower limits on the state’s power to discriminate, which is already constrained by the general principle of equality. Accordingly, disability may not be the basis for treating someone disfavorably. But the framers of Article 3 (3) [2] also deliberately refrained from simply adding disability to the list of characteristics in the former Article 3 (3). Instead, they placed the prohibition on discriminating against the disabled in a separate sentence. Th is demonstrates that Article 3 (3) [2] has independent meaning and acknowledges that the disabled are uniquely vulnerable to discrimination. Unlike the characteristics now identified in Article 3 (3) [1], a disability is more likely to impair the course of one’s life, at least when compared with the nondisabled. Th is fact cannot be remedied by a mere change in people’s attitude. The amendment’s framers intended that this unique facet of being disabled should not lead to social or legal discrimination. On the contrary, such discrimination is to be prevented or overcome. Th is explains why Article 3 (3) [2] also does not prohibit “favoring” people on the basis of a disability as is the case with the characteristics identified in sentence 1. According to the newly added sentence 2, only disadvantages that are connected to disability are prohibited. Preferential treatment that aims to increase the similarities in the circumstances of the disabled and nondisabled are allowed, although not necessarily constitutionally required. bb. With this background in mind, a disabled person is disfavored when, because of a disability, his or her situation is made worse by rules or measures. Th is would occur, for example, when a disabled person is denied access to public institutions or ser vices that are otherwise open to the general public. In addition, a disabled person may be disadvantaged if public authorities limit the opportunity to develop his or her abilities to the fullest. Such limitations must be offset by measures that mitigate the disability. The point at which mitigation is regarded as adequate, because it

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eliminates disfavorable effects, cannot be determined in the abstract. The denial of requested mitigation can be judged to be discriminatory only on the basis of evaluation, scientific fi ndings, and prognostic assessment. Only on the grounds of the overall result of such a survey can a decision be reached as to whether a par tic u lar measure is discriminatory. 2. For the area of the school system the same principles apply . . . [The Court accepted that the federal states have the authority to organize and operate schools within a broad range of discretion. The Court also accepted that the states legitimately may weigh resource limitations when exercising that discretion. Still, the Court concluded that the states must overcome a number of constitutional interests when refusing to allow a disabled child to participate in integrated education. Among these are the disabled student’s right to the development of his or her personality (Article 2 (1)), the parents’ right to direct their child’s care and upbringing (Article 6 (2)), and the prohibition on discriminating against the disabled under Article 3 (3) [2]. The Court explained that the disability provision, as an enhancement of the general equality provision of Article 3 (1), subjects a state’s decision to refuse a disabled child’s request to participate in integrated education to heightened scrutiny. The special obligation to mitigate the effects of a disability, another facet of the disability provision, sets the bar even higher. To determine whether a state has satisfied this high standard when rejecting a disabled student’s request for integrated education, the Court urged the consideration of several factors: the kind and intensity of the disability, the resources of the school, and the student’s level of educational achievement. The state’s burden in the matter would be considerable.] In the light of Article 3 (3) [2] the school authorities have an enhanced duty to justify their decision to refuse to accommodate a disabled student’s request for integrated education. In procedural matters, Article 3 (3) [2] requires that decisions relating to the student’s disability must be substantially justified and reveal the reasons for referring the student to a special school. In this effort the state must clearly address the interests protected by Article 3 (3) [2]. The kind and extent of the disability must be identified along with the reasons why the school authorities decided to assign the student to a special school. When applicable, the organ izational, personnel, or fi nancial difficulties that counseled against integrated education must be disclosed and the school authorities must explain why these difficulties could not be surmounted in the respective case. In any event, the state’s justification for assignment to a special school must be weighed against the confl icting wishes of the disabled student and his or her guardians. The interests of the disabled child and parents must be placed on a scale opposite the considerations of the school authorities and weighed in such a manner that the decision is comprehensible and, thus, can be inspected by the courts. . . .

Human Dignity, Personal Liberty, and Equality 439

[Significantly, the Court declined to hold that the special mitigation obligation of Article 3 (3) [2] required the state to accommodate every disabled student’s request for integrated education. The complainant’s case, the Court ruled, was an instance where the refusal to accommodate the disabled student’s request for integrated education was constitutionally justifiable. The Court explained that, even if the higher administrative court had not correctly interpreted the content and meaning of Article 3 (3) [2] when rejecting the complainant’s application for a temporary injunction, the higher administrative court had nonetheless properly determined that the special pedagogical support required by the complainant could not be provided in the integrated comprehensive school. The Court found that the complainant’s challenges to this conclusion were not verified in detail and did not lead to the conclusion that the facts were assessed wrongly or incompletely by the higher administrative court.]

∂

Integrated Education is enormously important because of the special protection it seems to confer on disability as opposed to other forms of discrimination forbidden by Article 3 (3) [1]. Yet the First Senate did not appear to submit the segregated school policy to a severe test of proportionality. The denial of the constitutional complaint seemed justified by the extraordinary disability of the child in this instance, but the senate seems to have weighed the rights of the child here against the relative autonomy enjoyed by the Länder under Article 7 (1) with respect to the organization and supervision of the “entire school system.” The decision could be read to imply that in other policy areas lawmakers would be required to marshal a more compelling case for disadvantaging the handicapped. In fact, as the senate noted, the disability amendment permits preferential treatment when necessary “to increase the similarities in the circumstances of the disabled and nondisabled.” In some circumstances, even the neglect of the disabled may be constitutionally redressed, as when public institutions disfavor the handicapped by failing to provide easy access to their facilities. Despite the outcome of Integrated Education, its underlying reasoning provides the basis for emancipating the disabled from burdens they would otherwise experience.

conclusion Th is chapter has underscored the importance of the Basic Law’s human dignity clause and its close relationship to the principles of liberty and equality. Articles 1, 2, and 3, dealing respectively with human dignity, personal freedoms, and equality before the law, are inextricably intertwined. Rarely is one of these rights or values invoked without reference to the others. They are bound to one another in reciprocity. At the same time, as this chapter has shown, liberty is often limited by dignity, just as equality informs and is informed by the meaning of both liberty and dignity. All

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three values are defi ned by their subjective and objective sides. Subjectively, they secure rights that the state may not invade; objectively, they proclaim values that the state is obligated to incorporate into public policy. The concept of dignity, as we have seen, is rooted in a par ticu lar image of the human person. Th is image is not that of an isolated and sovereign individual. Instead, the Constitutional Court has repeatedly noted that the Basic Law envisions the human person as a community-oriented individual whose rights to liberty and equality are deepened and tempered by the inalienable and unamendable principle of human dignity.

8 Freedom of Speech, Press, and Art ∂ Freedom of speech is among the highest values of the Basic Law (Grundgesetz). Except for its modernizing reference to “broadcasts and fi lms,” Article 5 (1) of the Basic Law is strikingly similar to the free speech provisions of the Weimar Constitution. Article 5 provides: 1. Every person shall have the right freely to express and disseminate his opinion in speech, writing, and pictures, and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and fi lms shall be guaranteed. There shall be no censorship. 2. These rights shall fi nd their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honor. 3. Arts and sciences, research and teaching shall be free. The freedom of teaching shall not release any person from allegiance to the constitution.

Several features of this text merit attention. First, the words are not cast as a prohibition on the state alone, as with the First Amendment to the U.S. Constitution. Article 5 simply guarantees freedom of speech to “every person,” suggesting that its provisions may also be invoked against nonstate actors. The text, however, provides no clear answer. Second, Article 5—in contrast to the free speech clauses of the First Amendment—is distinguished by its specificity. It protects no fewer than seven rights of speech, defi nes what is to be protected against censorship, and acknowledges the role of modern techniques of communication. Finally, and again in stark contrast to the unconditional language of the First Amendment, the various rights of speech may be limited or regulated by provisions of ordinary law as well as by everyone’s right to personal honor. As we shall see, these words and phrases would confront the Federal Constitutional Court (Bundesverfassungsgericht) with fateful interpretive challenges. Article 5 prompts several questions. What, for example, is the relationship between the various rights of speech? Do all receive the same level of constitutional protection? Does the emphasis on freedom of opinion (Meinungsfreiheit) imply less freedom with respect to the dissemination of information? Can a bright line be drawn between fact and opinion? Should such a line be drawn? Does the right to inform oneself (Informationsfreiheit) imply a right to know? Does it impose a duty on government, newspapers, and the electronic media to observe certain standards in reporting the news? To what extent may the reservation clauses limit the rights of speech? What counts as a “general law” within the meaning of paragraph 2? Is the freedom of art and scholarship set out in paragraph 3 absolute because, in contrast to

442 chapter eight

other speech rights, it is unbounded by a reservation clause? What is the relationship of Article 5 to other constitutional provisions? As noted in Chapter 2, the unity of the constitution and its hierarchy of values are crowning principles of German constitutional interpretation. Do these principles limit rights of speech? Former justice Helmut Steinberger has written that “Article 5 operates within an interrelated set of other fundamental rights and liberties, constitutional principles, rules and standards, institutional and procedural devices.”1 Accordingly, he continued, the freedoms secured by Article 5 need “to be reconciled with the rights and liberties of other persons and groups as well as with other individuals and social interests recognized by the constitution.”2 But what standards determine which of the two competing constitutional values will prevail in a given situation? German constitutional case law involves many such queries and relationships.3 The detailed provisions of Article 5 have confounded the Court’s efforts to set out directive principles of an absolute character in its decisions. Justice Hugo Black once remarked that the language of the American First Amendment is absolute and, as a consequence, the Supreme Court is foreclosed from any balancing of confl icting interests.4 Whatever the truth of this proposition as applied to the U.S. Constitution, the German speech clauses, read together and in the light of related constitutional provisions, readily yield to a balancing analysis, as many of the cases in this chapter demonstrate. Indeed, the text itself appears to provide a set of scales on which various interests and values are to be weighed and assessed.

a jurisprudence of balancing The Lüth Case, like Southwest State (1951; no. 3.1), is one of the main linchpins of German constitutional law. It laid down for the fi rst time the doctrine of an objective order of values and clarified the relationship between fundamental rights and private law. It also set forth the basic rationale for a regime of free expression, underscored the individual and social dimensions of speech, specified the purposes served by speech in the public forum, and identified the judicial standard to be applied in weighing the rights of speech against other legally protected interests. 8.1 Lüth Case (1958) 7 BVerfGE 198 [Veit Harlan was a popu lar fi lm director under the Nazi regime and the producer of the notoriously anti-Semitic fi lm Jud Süss. In 1950, several years after he was acquitted of having committed Nazi crimes, he directed a new movie entitled Immortal Lover. Erich Lüth, Hamburg’s director of information and an active member of a group seeking to heal the wound between Christians and Jews, was outraged by Harlan’s postwar reappearance as a fi lm director. Speaking before an audience of motion picture producers and distributors, Lüth

Fr eedom of Speech, Pr ess, and Art 443

urged his listeners and the German public to boycott Immortal Lover. Harlan’s reemergence, in Lüth’s view, would damage the nation’s reputation in the eyes of the world and warrant the moral condemnation he thought the fi lm’s showing would bring down on Germany’s motion picture industry. A fi lm distributor secured a temporary order against Lüth from the Hamburg Regional Court (Landgericht), enjoining him from continuing his call for a boycott. The court regarded Lüth’s conduct as actionable within the meaning of § 826 of the Civil Code (Bürgerliches Gesetzbuch) (“Whoever causes damage to another person intentionally and in a manner offensive to good morals is obligated to compensate the other person for the damage”). After the Higher Regional Court rejected his appeal, Lüth fi led a constitutional complaint asserting a violation of his basic right to free speech under Article 5 (1). The Constitutional Court upheld Lüth’s complaint.]

∂

Judgment of the First Senate. . . . B. II. The complainant alleges that the regional court infringed his basic right to free speech as safeguarded by Article 5 (1) [1] of the Basic Law. 1. The judgment of the regional court is an act of public authority in the special form of a judicial decision. The decision could violate a basic right of the complainant only if the court was required to take the right in question into account. The judgment prohibits the complainant from making statements that could influence others to adhere to his opinion regarding Harlan’s reappearance as a fi lm director. . . . Seen objectively, this limits the complainant’s freedom of expression. The regional court granted the injunction as a matter of private law on the assumption that the complainant’s statements were tortious under § 826 of the Civil Code. . . . The decision infringes the complainant’s basic right under Article 5 (1) only if the applicable rules of private law would be so affected by a basic right as to negate the court’s judgment. Whether and to what extent basic rights affect private law, and if so in what manner, is controversial. The extreme positions in this dispute are, on the one hand, that basic rights are exclusively directed against the state and, on the other hand, that basic rights as such, or at least the more important of them, also apply against any person involved in civil-[i.e., private-] law matters. Neither of these extremes fi nds support in the Constitutional Court’s existing jurisprudence. . . . Nor is there any need here to resolve fully the dispute over the so-called third-party effect of the basic rights [Drittwirkung]. The following discussion is sufficient to resolve this case. . . . The primary purpose of basic rights is to safeguard the liberties of the individual against interferences by public authority. They are defensive rights of the individual against the state. Th is purpose follows from the historical development of the concept of basic rights and from historical developments leading to the inclusion of basic rights in the constitutions of various countries. Th is also corresponds to the

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meaning of the basic rights contained in the Basic Law and is underscored by the enumeration of basic rights in the fi rst section of the constitution, thereby stressing the primacy of the human being and his or her dignity over the power of the state. Th is is why the legislature allowed the extraordinary remedy . . . of the constitutional complaint to be brought only against acts of public authority. [An Objective Order of Values] It is equally true, however, that the Basic Law is not a value-neutral document. Its section on basic rights establishes an objective order of values, and this order strongly reinforces the effective power of basic rights. Th is value system, which centers upon dignity of the human personality developing freely within the social community, must be looked upon as a fundamental constitutional decision affecting all spheres of law, both public and private. It serves as a yardstick for measur ing and assessing all actions in the areas of legislation, public administration, and adjudication. Thus, it is clear that basic rights influence [the interpretation of] private law as well. Every provision of private law must be compatible with this system of values, and every such provision must be interpreted in its spirit. The legal content of basic rights as objective norms informs the content of private law by means of the legal provisions directly applicable to this area of the law. Newly enacted statutes must conform to the value system incorporated into the basic rights. The content of existing law must also be brought into harmony with this system of values. Th is system infuses specific constitutional content into private law, which from that point on determines its interpretation. A dispute between private individuals concerning rights and duties emanating from provisions of private law— provisions influenced by the basic rights—remains substantively and procedurally a private-law dispute. Courts apply and interpret private law, but the interpretation must conform to the constitution. The influence of the value system informing basic rights is particularly relevant to certain mandatory rules of private law that form part of the public order—in the broad sense—that is, rules that in the interest of the general welfare apply to private legal relationships, whether the parties so choose or not. These provisions, complementing as they do the public legal order, are substantially exposed to the influence of constitutional law. Th is influence may be brought to bear on general laws such as § 826 of the Civil Code, pursuant to which standards such as “good morals” (gute Sitten) are applied to human conduct. To determine what is required by social norms such as these one must fi rst consider the totality of value concepts developed by the nation at a certain point in its intellectual and cultural history and laid down in its constitution. That is why the general clauses have rightly been described as the points where constitutional rights enter the domain of private law. [Function of Ordinary Courts] The constitution requires the ordinary court judge to determine whether basic rights have influenced the substantive rules of private law in the manner described. If this influence is present, the judge must then, in interpreting and applying these provisions, modify accordingly the interpretation of private law. Th is follows from Article

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1 (3) of the Basic Law requiring the legislature, judiciary, and executive to enforce basic rights “as directly applicable law.” If the judge does not apply these standards and ignores the influence of constitutional law on the rules of private law, he or she violates objective constitutional law by failing to recognize the content of the basic right (as an objective norm); as a public official, he or she also violates the basic right whose observance by the courts the citizen can demand on constitutional grounds. Apart from remedies available under private law, citizens can bring such a judicial decision before the Federal Constitutional Court by means of a constitutional complaint. The Constitutional Court must ascertain whether an ordinary court has properly evaluated the scope and impact of the basic rights in the field of private law. But this task is strictly limited: It is not up to the Constitutional Court to examine decisions of the private-law judge for any legal error that he or she might have committed. Rather, the Constitutional Court must confi ne its inquiry to the “radiating effect” of the basic rights on private law and make sure that the ordinary court judge has correctly understood the constitutional principle involved in the area of law under review. . . . [Freedom of Speech and General Laws] 2. The basic right to freedom of speech (Article 5) poses special problems with respect to the relationship between basic rights and private law. As under the Weimar Constitution (Article 118), this basic right is guaranteed only within the framework of the “general laws” (Article 5 (2)). One might take the view that the constitution itself, by referring to limits imposed by the general laws, has restricted the legitimate scope of the basic right to that area left open to it by courts in their interpretation of these laws. Such an approach would mean that any general law restricting a basic right would never constitute a violation of that right. But this is not the meaning of the reference to “general laws.” The basic right to freedom of opinion, as the most immediate expression of the human personality living in society, is one of the noblest of human rights. . . . It is absolutely basic to a liberal-democratic constitutional order because it alone makes possible the constant intellectual exchange and the contest among opinions that form the lifeblood of such an order; [indeed,] it is “the matrix, the indispensable condition of nearly every other form of freedom” [Cardozo, quoted in English]. Because of the fundamental importance of freedom of speech in the liberaldemocratic state, it would be inconsistent to allow the substance of this basic right to be limited by an ordinary law (and thus necessarily by judicial decisions interpreting the law). As regards the relationship between basic rights and private law, the same principle that was discussed above applies here; namely, courts must examine the general laws impinging on a basic right in the light of its constitutional significance. In a liberal democracy this process of interpretation must assume the fundamental nature of freedom of speech in all spheres, particularly in the public realm. Courts may not construe the relationship between basic rights and “general laws” as one in which the latter sets limits on basic rights. Rather, under the terms of Article 5, “general

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laws” set bounds to a basic right but in turn those laws must be interpreted in the light of the value-establishing significance of this basic right in a free democratic state, and so any limiting effect on the basic right must itself be restricted. The Federal Constitutional Court is the court designated by the Basic Law for considering constitutional complaints relating to the preservation of basic rights. Therefore it must have the legal right to control the decisions of the courts where, when applying a general law, they enter the sphere shaped by basic rights. . . . The Federal Constitutional Court must have the right to enforce a specific value found in the basic rights. Its authority to exercise such control extends to all organs of public authority, including the courts. It can thus create an equilibrium, as desired by the constitution, between the mutually contradictory and restricted tendencies of the basic rights and the “general laws.” [Meaning of General Laws as Applied to Speech] 3. The concept of “general laws” has always been controversial. When originally incorporated into the Weimar Constitution of 1919, these words [i.e., “general laws”] as construed reached only laws that “do not prohibit or implicate the expression of an opinion as such”; rather, “general laws” within the meaning of the Basic Law include laws designed to protect the public interest and wholly unrelated to the suppression of an opinion. “General laws” serve to protect “a community value that takes precedence over the expression of an opinion.” If the concept of “general law” is understood in this way, then it is clear that expressions of opinion intended to have an effect on others is protected. Expressions of opinion are protected because they are intended “to intellectually influence the surrounding world” and to have an effect on the formation of public opinion. Accordingly, value judgments expressed for their intellectual effect and designed to convince others, are protected by the basic right set forth in Article 5 (1) of the Basic Law. Protection of this right extends primarily to the value judgments of the speakers. Separating the protected utterances from its effect [on the public mind] would make no sense. Understood in this way the expression of an opinion in its purely intellectual effect is free. When, however, an expression of opinion encroaches upon the right of another person—a right protected by law and deserving of priority over freedom of opinion—it is not protected merely because it takes the form of an opinion. A “balancing of interests” is therefore necessary. The right to expression of opinion recedes in importance when the legally protected and higher-ranking interests of another person are violated by such an expression of opinion. Whether the paramount interests of other persons are implicated must be ascertained on the basis of the circumstances of the case. [In the light of this discussion the Court noted that “there is no reason why norms of private law should not also be recognized as ‘general laws’ within the meaning of Article 5 (2).” The Court thus rejected the prevailing view, cited in the literature, that “general laws” embrace only public laws regulating the relations between individuals and the state.]

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4. . . . The complainant fears that any restriction upon freedom of speech might excessively limit a citizen’s chance to influence public opinion and thus would no longer guarantee the indispensable freedom to discuss important issues publicly. . . . Th is danger is indeed present. . . . To counter the danger, however, it is unnecessary to exclude private law from the category of “general laws.” Rather, we must strictly adhere to the character of the basic right as a personal freedom. Th is is especially important when the speaker is exercising his or her basic right not within the framework of a private dispute but for the purpose of influencing public opinion. Thus, his or her opinion may possibly have an impact upon another’s private rights even though this is not his or her intention. Here the relationship between ends and means is important. The protection of speech is entitled to less protection when exercised to defend a private interest—particularly when the individual pursues a selfish goal within the economic sector—than speech that contributes to the intellectual struggle of opinions. . . . Here the assumption is in favor of free speech. To conclude: Decisions of ordinary civil courts that restrict freedom of opinion on the basis of the “general laws” in the field of private law can violate the basic right of Article 5 (1). The private-law judge is required to weigh the importance of the basic right against the value of the interest protected by the “general laws” to the person allegedly injured by the utterance of the opinion. A decision in this respect requires the judge to consider all the circumstances of the individual case. An incorrect balancing of the factors can violate a person’s basic right and provide the basis for a constitutional complaint to the Federal Constitutional Court. 2. . . . The regional court has based its judgment against the complainant on § 826 of the Civil Code. It regards the complainant’s behavior, understood within the meaning of this provision, as an offense against good morals or “the democratic legal and moral view of the German people.” Accordingly, the complainant’s behavior amounts to tortious conduct for which there is no recognizable justification. . . . Section 826 of the Civil Code, which in principle protects all rights and objects of legal protection against unethical attacks, must be regarded as “general law” within the meaning of Article 5 (2) of the Basic Law. Review by the Federal Constitutional Court limits itself accordingly to the question of whether the state court, in applying the general clause, has correctly understood the meaning and scope of the basic right to freedom of expression and weighed this right against Harlan’s interests and those of the fi lm companies. [In section III of its opinion the Constitutional Court examined closely the facts of the case and the judgment of the regional court. In noting that the advocacy of a boycott is not always contrary to “good morals” within the meaning of § 826 of the Civil Code, the Court said: “ ‘Good morals’ are not unchangeable principles of pure morality; they are, rather, defi ned by the views of ‘decent people’ about what is ‘proper’ in social intercourse among legal partners.” The Court then proceeded on its own to weigh Lüth’s interests against those of Harlan and the fi lm companies. It held that the regional court had given insufficient

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attention to the motives of the complainant and the historical context of his remarks. The Court’s concerns are captured in the following extracts.] 2. b. . . . The complainant’s statements must be seen within the context of his general political and cultural efforts. He was motivated by the fear that Harlan’s reappearance might—especially in foreign countries—be interpreted to mean that nothing had changed in German cultural life since the National Socialist period. . . . These fears concerned a very important issue for the German people. . . . Nothing has damaged the German reputation as much as the cruel Nazi persecution of the Jews. A crucial interest exists, therefore, in assuring the world that the German people have abandoned this attitude of mind and condemned it not for reasons of political opportunism but because through an inner conversion they have come to realize its evil. . . . Because of his special and close personal relationship to all that concerned the German-Jewish relationship, the complainant was within his rights to state his view in public. He was at the time already known for his efforts to reestablish a true inner peace with the Jewish people. . . . He played a leading role in the Association for Christian and Jewish Cooperation; shortly before then, in both broadcasting and the press, he was involved in campaigning for “peace with Israel,” a matter vigorously discussed in Germany and abroad. . . . It is conceivable that he feared that all these efforts would come to naught by Harlan’s reappearance in the fi lm industry. . . . The claim that under these circumstances the complainant should nevertheless have refrained from expressing his opinion out of regard for Harlan’s professional interests and the economic interests of the fi lm companies employing him . . . is unjustified. . . . Where the formation of public opinion on a matter important to the common good is concerned, private and especially individual economic interests must, in principle, recede. Th is does not mean that these interests are without protection; after all, the basic right’s value is underscored by the fact that it is enjoyed by everyone. Whoever feels injured by the public statements of someone else can make a public reply. Public opinion is formed, like the formation of a personal opinion, only through confl icts of opinion freely expressed. . . . IV. On the basis of these considerations, the Federal Constitutional Court holds that the regional court, in assessing the behavior of the complainant, has misjudged the special significance of the basic right to freedom of opinion. Courts must consider [the significance of this right] when it comes into confl ict with the private interests of others. The ordinary court’s decision is thus based on an incorrect application of the standards applying to basic rights and violates the basic right of the complainant under Article 5 (1) of the Basic Law. It must, therefore, be quashed.

∂

The Seminal Character of Lüth. Lüth is celebrated not only for its statement of the ruling principles governing the interpretation of Article 5 but also for its restatement of the general character of basic rights under the constitution.5 Its pivotal importance

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warrants a careful summary of its rulings. First, the decision emphasizes the individual and social dimensions of speech: individual persons value speech because their intellectual and spiritual natures require dialogue and discussion; society cherishes speech because of its importance to political democracy. Second, speech, like other basic rights, is both negative and positive in character. Its negativity protects the individual against official restraints on speech; its positivity obliges the state and its agents to establish the conditions necessary for the effective exercise of speech rights. Th ird, political or disinterested speech uttered for public purposes ranks higher on the scale of constitutional protection than self-regarding speech made for private purposes or fi nancial gain. Fourth, Lüth solidifies the canonical status of the Basic Law as a hierarchy of objective values.6 Fift h, and most surprisingly, the objective values of the constitution affect all areas of law, including private law (the socalled Drittwirkung—literally, “third-party” or “radiating” effect—of basic rights). These objective values are said to have an indirect or horizontal effect on private-law disputes between individuals. In the Court’s view, they “influence” the resolution of such disputes, as opposed to their direct application to the actions of public officials or state agencies.7 Finally, the “general laws” within the meaning of Article 5 (1) include provisions of the Civil Code that regulate relations between private parties. Such laws permissibly restrict the exercise of speech when they are designed to preserve traditional (nonspeech) values deemed worthy of legal protection. Accepting the prevailing view under the Weimar Constitution,8 the Federal Constitutional Court excluded from the category of “general laws” any statute that seeks directly to suppress a par ticu lar viewpoint. To regard such a law as a “general law” within the meaning of Article 5 (2) would defeat the purpose behind the speech guarantee. General laws must also be interpreted against the backdrop of the Basic Law and in the light of its values. When, therefore, constitutional rights confl ict with other legitimate social interests within the framework of ordinary civil or criminal litigation, the Court applies a general reasonableness or balancing standard of review. The regional court’s fatal error in Lüth was its failure to engage properly in this balancing process. Its exclusive focus on Harlan’s private interest as a motion picture producer was unacceptable in view of the overriding public interest in the dispute generated by Lüth’s plea for a boycott.9 The Basic Law provides several exceptions to the general rule against the imposition of a content-based abridgment of individual expression; Article 21 (2), which prohibits political parties opposed to the free democratic order, is the most familiar.10 Th is provision is matched by Article 9 (2) which prohibits “associations whose aims or activities contravene the criminal laws, or that are directed against the constitutional order or the concept of international understanding.” In addition, Article 5 (3) bars teachers from engaging in disloyal speech, and Article 139 explicitly exempts these forms of speech from the constitution’s protection. Article 18 is the most severe of these bans on the form and content of speech, for any person who abuses the freedoms of speech, press, or teaching “in order to combat the free democratic

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basic order” may be compelled to forfeit these rights altogether. Politicians might in turn be tempted to abuse the prohibitions of Articles 9 (2), 18, and 21 (2), potentially the most threatening of the Basic Law’s antisubversive provisions. To prevent this from happening, the framers provided that state activities under these articles could be carried out only with the approval of the Federal Constitutional Court.11 The constitutional jurisprudence of balancing continued in the following SchmidSpiegel Case. Unlike the civil suit for damages brought against Hamburg’s press secretary for his political and moral criticism of Harlan, the complainant in SchmidSpiegel challenged his conviction under a criminal libel statute. The question in this case was “who wins” in a war of words between a magazine and its critics under the Basic Law’s speech and press clauses. The case is important for what it adds, beyond Lüth, to the significance of free speech in the constitutional order of the Federal Republic. 8.2 Schmid-Spiegel Case (1961) 12 BVerfGE 113 [In a public appearance in Stuttgart in November 1953, the complainant, a highranking state judge, delivered a hard-hitting speech in favor of political strikes against employers. In the course of the speech he remarked that 95 percent of the press in Germany was economical ly dependent on employers unfriendly to trade unions. Reacting to the speech, which was later published in a trade union journal, the weekly magazine Der Spiegel accused the judge of communist sympathies in an article entitled “Arrested on the Volga,” even though it had reliable information to the contrary. Judge Schmid, writing in a daily newspaper, struck back with a strong verbal assault on Der Spiegel, accusing the magazine of lying about him and comparing its political reporting to pornography. Der Spiegel’s editor and publisher secured a criminal libel judgment against Schmid in the Göttingen Regional Court, and its decision was affi rmed on appeal. Schmid based his constitutional complaint against both decisions on his right to free speech under Article 5.]

∂

Judgment of the First Senate. . . . II. The constitutional complaint is justified. . . . In applying the provisions of the Penal Code (Strafgesetzbuch) on insults and defamation, courts apply simple statutory law; and their decisions are generally not subject to review by the Federal Constitutional Court. These decisions can be reviewed only when courts, in applying statutory provisions for the protection of personal honor, fail to orient their judgments to the value system of the Basic Law, thus infringing the fundamental rights of the convicted person. Th is is the case here. The judgments of the Göttingen Regional Court and the Celle Higher Regional Court

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(Oberlandesgericht) violate the complainant’s right under Article 5 (1) because they fail to recognize the constitutional importance of the process of forming public opinion; as a consequence, the influence of the basic right to freedom of expression was inadequately considered in the interpretation and application of the statutory provisions on defamation. 1. In its judgment of 15 January 1958 [the Lüth Case], the First Senate made clear that the interrelationship between the constitutional right to freedom of expression and the “general laws” must not be seen as a one-sided restriction on the effectiveness of the constitutional right by general laws; “rather, an interplay takes place in the sense that the ‘general laws’ by their terms set bounds to the constitutional right; however, those laws must, in turn, be interpreted in recognition of the value of this guarantee in a free democratic state, and thus any limiting effect on the basic right must itself be restricted.” The constitution confers heightened significance on the basic right to freedom of expression. The First Senate has already declared in prior cases that, as the most direct expression of the intimate sphere of the human personality in society, freedom of speech is one of our most precious human rights. That in itself confers upon it special value. Beyond that, free speech is a constituent element of a free democratic order, for it guarantees continuous intellectual dispute and the battle of opinions that is its vital element. Only free public discussion about matters of general importance can secure the free formation of public opinion. In a liberal democratic state this process necessarily manifests itself “pluralistically” in the mutual clash of opposing views, advocated for varying reasons and particularly in the form of speech and reply. Every citizen has the right, guaranteed by Article 5 (1), to take part in such public debates. The press, along with radio and television, is the most important instrument in the formation of public opinion; thus freedom of the press enjoys special protection under Article 5 (1) [1]. [Under German law libel is a criminal offense, and cases may be brought by private “prosecutors”—that is, the individuals harmed by defamatory statements. Section 193 of the Penal Code, however, provides: “Critical comment on scientific, artistic, or commercial production, as well as expressions made in the exercise or defense of rights, or in order to protect justifiable interests . . . are punishable only to the extent that an insult arises from the form of the expression or from the circumstances in which it was made.” The Federal Constitutional Court cited the Federal Court of Justice (Bundesgerichtshof) in support of the view that “the right to freedom of expression in a democratic state for the purpose of upholding public interests” is a “justifiable and privileged” matter, and therefore, nonpunishable within the meaning of § 193. The Constitutional Court noted that the ordinary courts had not adequately balanced the reputational rights of Der Spiegel’s editor and publisher against the constitutional value of a free press.] 2. The ordinary courts incorrectly viewed the facts and circumstances of this case exclusively from the standpoint of personal honor and the interests affected by the

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resulting harm without considering the par ticu lar nature of the feud carried out in the press and its value as a constituent element in the formation of public opinion. . . . c. The complainant [made] his controversial statement to “protect justifiable interests” in the form of a value judgment regarding not just the “Volga” article but, indeed, if one adheres to the fi ndings of the regional court, substantial parts of Der Spiegel’s publications. Because the statements were not a spontaneous attack but rather a defense against the “Volga” article, the legitimacy of the claimed interests depends substantially on what interests were touched by the article. More was involved than the personal honor of the complainant. Der Spiegel, by delving into the complainant’s political past and raising the issue of his suitability for a high judicial post, took sides in a dispute about the personal politics and trustworthiness of the judge, a debate into which former Minister-President Dr. Maier and Justice Minister Dr. Haussmann were drawn; the story was basically consistent with the press’s mission to inform citizens about public affairs. But there is a similar public interest in safeguarding the complainant’s response in the newspaper. Th is follows from the right of every citizen under Article 5 (1) to contribute to the formation of public opinion by fully expressing his own opinion. . . . [The Court went on to emphasize the importance of a free press in forming public opinion. It acknowledged Der Spiegel’s right to utter its view about the role and character of public officials even if its motives are “other than to serve the public.” But here, the Court noted, the complainant also had a justifiable interest in defending his public record, not only to protect his honor but also to respond critically to Der Spiegel in an effort to “restore the public’s trust in state administration and the judiciary.”] Press freedom—under the protection of which the “Volga” article as such stood—is accompanied by duties that must be taken all the more seriously the higher the fundamental right of press freedom is rated. When the press makes use of its right to inform the public, it is obliged to report truthfully. The discharge of this responsibility, according to established case law is required for the sake of protecting the honor of the person concerned. . . . It is at the same time rooted in the importance of public opinion formation in the total organism of a free democracy. . . . The press is therefore bound, for the sake of its task in public opinion formation, to verify information and assertions that it passes on for their truth content. . . . As the regional court found, the “Volga” article portrayed a distorted picture of the complainant’s political position, not only by conveying some untrue assertions, but also and particularly by deliberately leaving out facts appropriate for correcting the image of his political views. There is not an objective presentation of what was known to the writer and manifestly essential to an appraisal of the complainant’s political position. Instead, the article drags together everything, even from far in the past, that may serve to pick out the “marked red thread” in the complainant’s life, remaining diligently silent about anything that could attenuate the suspicion of communist

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views. In particular, the reader is not made aware of the material that the complainant had handed to the correspondent to prove that he decisively condemned Bolshevism. Der Spiegel therefore deliberately offered its readers only partial truths under the appearance of the whole truth. . . . How the complainant replies, together with the manner of the statement presented for public debate, is decisively to be determined by the nature of Der Spiegel’s story and by the need to counteract its effect on public opinion. If Der Spiegel had through its reporting about the complainant laid itself open to the justified suspicion of not reporting reliably, then an appropriate contribution to public debate might also consist in correspondingly criticizing Der Spiegel generally as a vehicle for such a mode of portrayal. Der Spiegel, thus, had given occasion for a denunciatory judgment . . . and had therefore in principle to put up with such a judgment, even if it reduced its reputation. The “objective refutation” of the accusations against the complainant, which is all the regional court concedes to him, could not suffice as a countermeasure to the influence of the “Volga” article on public opinion formation. Since the article owed its total effect less to actual untruths than to the suppression of facts and the shifting of emphases, such confutation was extremely difficult and therefore scarcely able on its own to overcome the lasting impression of a publication by the much-read weekly magazine. To sum up: When courts fail to allow an argument based on justification and privilege, following an accusation that an intellectual disclosure is comparable to pornography as a means of stimulating readership, they proceed on the assumption that the complainant had a justified interest only in protecting his personal honor within the meaning of § 193 of the Penal Code. The effect of Article 5 (1) on this norm, however, requires that courts recognize his legitimate interest in influencing public opinion on an important political issue and that they consider the statement [involved here] as a rightful counterattack against the public presentation of inaccurate information. Because this standard of evaluation is lacking in the judgments under attack, the complainant’s constitutional right under Article 5 (1) has been violated.

∂

Freedom of Opinion, Balancing, and Fighting Words. In defi ning the scope of free speech under Article 5, Schmid-Spiegel emphasized, as did Lüth, the importance of balancing rights and values. Just as Lüth required courts of ordinary jurisdiction to balance the right to freedom of speech against the value of personal honor, SchmidSpiegel required them to weigh personal honor against the value of free speech. In addition, as Schmid-Spiegel points out, expressions of opinion may not be limited by the hostile character of the words used. The Federal Constitutional Court recognizes, as did the U.S. Supreme Court in Cohen v. California (1971),12 that the utterance of political views is bound to be emotional as well as rational and that no bright line can be drawn between the two without inhibiting the robust expression of diverse political views. The case is nevertheless to be understood in the light of its par ticular facts. Schmid-Spiegel is important for its acceptance of the so-called counterattack

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(Gegenschlag) theory of speech. A person has the right under the Basic Law, above all in the political arena, to defend oneself against acrimonious and misleading criticism by employing equally abusive language if such speech is necessary to offset the rancor and misrepresentation of the initial attacker’s original onslaught.13 Römerberg Speech Case. The Römerberg Speech Case (1980) is one of several decisions in which the Court reasserted its view that a sharp attack deserves a stinging rebuke.14 Here two broadcast journalists verbally skewered two university professors for their devastating criticism of modern art and museum exhibitions. In a forum on art criticism in Frankfurt’s Römer—the centuries-old city hall—the journalists mentioned several art critics by name, vilifying them among other things for “having adopted a private mythology” to justify their “conformity,” their “self-acclamation,” their “cheap arguments,” and their “representation of authoritarian-fascist views.” The professors in turn charged these critics with “bamboozling their readers with things that were ‘simply not true.’ ”15 In reporting on the event, the broadcasters rebuked the professors with equal gusto, accusing them of “hate-fi lled tirades” that united “left-wing theoreticians and right-wing demagogues . . . in hypocritical agreement.” The professors were described as “a pair of dialectical garden dwarfs, affected by delusions of persecution [and manifesting] a tendency of reproaching modern art with being Jew-ridden.”16 After a fi nding of “severe defamation,” the regional court ordered the journalists to compensate the professors in specified amounts. The Federal Constitutional Court undid the judgment of the regional court for ignoring “the fact that a person who in the public clash of opinion has given occasion for a negative value judgment must, in principle, put up with a sharp reaction even if it diminishes his reputation” (citing Schmid-Spiegel). The Court viewed the journalistic comments as “evaluative” statements or expressions of opinion protected by Article 5 (1). “The spontaneity of free speech,” said the Court, “is a precondition for the force and variety of public debate, which is in turn a basic condition for coexistence in freedom.” The unanimous senate concluded with these words: “The fear of being exposed to severe judicial penalties because of an evaluative statement brings with it the danger of crippling or narrowing all debate and thereby bringing about effects that run counter to the function of freedom of expression or opinion in the order constituted by the Basic Law.”17 Of course, Article 5 (1) does not protect all manner of speech, even in the political arena. It protects robust and caustic speech but not always reckless or untruthful speech. The Blinkfüer Case, another leading case in German free speech jurisprudence, illustrates one mode of speech that is not protected under the Basic Law. 8.3 Blinkfüer Case (1969) 25 BVerfGE 256 [Like Lüth, this case involved a boycott. Blinkfüer was a small-circulation, procommunist weekly newspaper that advertised East German radio and television

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programs, mainly in the area around Hamburg. The powerful Axel Springer newspaper company (Springer) sent a circular to kiosk operators instructing them not to sell Blinkfüer and threatening to withdraw its own products from noncompliant dealers. The publisher and editor of Blinkfüer sued Springer successfully in the ordinary courts on the ground of unfair competition. The suit was brought under § 823 of the Civil Code, which declares: “A person who, willfully or negligently, unlawfully injures the life, body, health, freedom, property, or other right of another is bound to compensate him for any damage arising therefrom.” The Federal Court of Justice reversed, holding that Springer’s right to blacklist the newspaper was covered by the free speech provisions of Article 5. Blinkfüer countered with an Article 5 argument of its own in a constitutional complaint that was credited by the Federal Constitutional Court.]

∂

Judgment of the First Senate. . . . B. II. The constitutional complaint is justified. The proceeding before the ordinary courts was a civil suit that had to be decided according to the rules and regulations of private law. Yet, the objective value system set up by the Basic Law in the section on basic rights influences the interpretation of these provisions insofar as they are capable of one that conforms to constitutional values. With regard to § 823 (1) of the Civil Code, constitutional law is important for establishing the unlawfulness of the injury. The courts must decide, on the one hand, the extent to which the right to freedom of opinion covers a boycott and, on the other hand, whether the complainant may claim for himself the constitutional right to freedom of the press. In its judgment, the Federal Court of Justice misunderstood the scope of the defendant’s right to free expression of opinion; in reviewing the complainant’s position, it failed to take into consideration the right to freedom of the press. 1. The Federal Court of Justice sustained the actions of the defendant (i.e., the request that dealers cease distributing newspapers with East German radio and television listings and the warning that newspaper deliveries might be suspended if they would not comply) on the basis of Article 5. In so doing, the Federal Court of Justice extended the protection of Article 5 beyond the nature and meaning of the constitutional right. As an organized and at least partial attempt to prevent the sale of Blinkfüer, the defendant’s notice to its newspaper dealers represents a call for a boycott regardless of what the underlying motives may have been. The powerful economic position of the defendant and the threat to suspend deliveries were sufficient to deprive the persons so directed of their ability to decide freely. Calls for a boycott based on the expression of a certain opinion and serving as a means in the intellectual struggle to influence public opinion on an issue of fundamental public concern—that is, where the struggle is not based on a private dispute but on concern for political, economic, social, or cultural interests—fall within the protection of Article 5 (1) [1]. The call for

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a boycott may still enjoy protection from the constitution even where the caller of the boycott competes professionally, economical ly, or in some other form of business relationship. Such circumstances do not in themselves preclude intellectual controversy. If the advocate of a boycott possesses a certain amount of economic power, his or her influence is likely to be substantial. But this fact in and of itself will not render the call for a boycott inadmissible; the constitution does not bar the economical ly more powerful from engaging in the intellectual struggle of opinion. The means employed by the person who calls for a boycott must be constitutionally acceptable. The basic right to free expression will not protect a call for a boycott if it is not based solely on intellectual arguments; that is, if it is not limited to the persuasive force of the presentation, explanation, or consideration itself but, going beyond these, employs means that deprive those affected by the boycott of their ability to draw their conclusions freely and in the absence of economic pressure. The latter means especially include threats or announcements of severe disadvantages as well as the exploitation of social or economic dependence designed to lend a special emphasis to the boycott. The freedom of intellectual debate is an absolute prerequisite for the functioning of a free democracy because it alone guarantees the public discussion on matters of general public interest. When the exercise of economic pressure entails severe disadvantages for those affected by it, and is aimed at preventing the constitutionally guaranteed dissemination of opinions and news, it violates equality of opportunity in the process of forming political opinion. It also contradicts the meaning and the nature of the basic right to free expression of opinion, which is intended to guarantee the intellectual clash of opinion. An assessment of the conduct of the defendant in the light of these criteria shows that the Federal Court of Justice went too far in its interpretation of the protective scope of the basic right to free expression of opinion. . . . The defendant used means to achieve the boycott that confl ict with the constitutional right guaranteed by Article 5 (1) [1] of the Basic Law. If, for example, the defendant had expressed its opinion concerning the public listing of East German radio and television programs in its newspapers and magazines, and if it had restricted itself to a call for a reader boycott of the newspapers and magazines in question, then its conduct would have been constitutionally unobjectionable. The defendant, identifying public interests with its own, would have addressed those most concerned about the issue under discussion. But because the subjects of the boycott were econom ical ly and legally dependent on the defendant, the circular sent to newspaper and magazine dealers was an inappropriate means of generating an intellectual discussion of the admissibility and feasibility of publishing the programs of East German radio and television stations. . . . In this respect the facts are essentially different from the so-called Lüth decision. Lüth’s call for a boycott was simply an appeal to the moral and political responsibility of his audience; it was incapable of directly and effectively restricting the human and artistic freedom of movie director Harlan, for Lüth had no means of coercion at his disposal that could lend emphasis to his request. All he could do

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was appeal to the sense of responsibility and the moral conscience of his audience; whether the people he addressed would follow him or not was a matter of their own free will. By contrast, the defendant’s threat to suspend delivery would have been capable of infl icting noticeable and, under certain circumstances, even substantial harm on the newspaper wholesalers and retailers involved here because of his control of the market. . . . 2. . . . The complainant, on the other hand, depended for his livelihood on this distribution system. The defendant used mainly economic means to limit freedom of reporting and to suppress the news. The constitutional complaint is justified as a violation of Article 5 (1) of the Basic Law. Thus, there is no need to determine if the contested decision violated other constitutional rights. The ordinary court’s decision is quashed in accordance with § 95 (2) of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz) [hereafter referred to as fcca] and remanded to the Federal Court of Justice.

∂

Private Rights and Freedom of Information. Two recurring themes in German free speech jurisprudence run through Blinkfüer. First, public discourse most worthy of protection under Article 5 is speech that contributes to the “intellectual struggle of opinions.” In deciding whether such a struggle exists, the Court examines not only the content of the communication but also, as in Lüth, the motives and purposes of the speaker.18 Second, the Court sees its task as one of balancing competing interests.19 In the circumstances of Blinkfüer, the right to operate one’s business free of economic coercion outweighed the freedom to advocate a boycott. In this respect Blinkfüer differs from Lüth. Lüth won because he sought to influence public opinion on a matter of general public interest. Springer lost because the company used its economic power mainly to threaten the solvency of Blinkfüer rather than to influence public opinion. The Court did not lightly dismiss Springer’s free speech claim. The company may well have won, absent economic coercion. In short, given the context of the case, Blinkfüer’s right to disseminate information on East German radio and television programs trumped Springer’s right to freedom of speech. In so holding, the Court reemphasized the principal teaching of Lüth—namely, that constitutional values influence, although indirectly, the interpretation and application of private law. According to Peter Quint, “The result in this case may suggest that, if necessary, Blinkfüer could proceed directly against Springer for violation of Blinkfüer’s basic right of free reporting; at least, under the Court’s ‘indirect’ theory, Blinkfüer was constitutionally entitled to an interpretation of the general clauses of the private law that would afford it a remedy against another private individual for a constitutional violation under these circumstances.”20 In stark contrast to the “state action” doctrine of American constitutional law, Blinkfüer seems to “require the judiciary to create what is in effect a constitutional cause of action that will allow private individuals to enforce their constitutional interests against other private individuals.”21

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Another thread running through Blinkfüer is solicitude for the recipient of information. Article 5 protects freedom of information from generally available sources. The Weimar Constitution contained no such right. Under the Basic Law, however, the interests of the viewer, reader, or hearer rival those of the speaker. So long as the source of information is “generally available,” the reader or would-be recipient of the information is entitled to receive it. In the Satellite Dish Case (1993), however, a threejustice chamber of the First Senate ruled that this right did not permit a tenant to erect a television dish on the roof of his apartment’s building over the landlord’s objection. The landlord had already installed a cable television connection for all his tenants, and thus, said the chamber, the landlord’s interest in keeping “unsightly receiving equipment” off his roof outweighed the tenant’s interest in having access to additional programs.22 State Security and Freedom of Information. In two major cases decided in 1969, the right to inform oneself, a secondary issue in Blinkfüer, took center stage. In Leipzig Daily Newspaper and Demokrat Newspaper, the Court declared that informational freedom is a guaranteed right independent of the right to express an opinion. In both cases, customs officials had seized East German newspapers thought to endanger West Germany’s state security. (Millions of such publications had been seized or monitored over the years under a federal surveillance statute authorizing these actions.) The Leipzig Daily Newspaper Case arose from a constitutional complaint against customs officials’ seizure of copies of the Leipzig Tageszeitung. The West German subscriber in this litigation successfully challenged the court order permitting the newspaper’s confiscation.23 Basing its reasoning on a theory of self-government, the Court in Leipzig Daily Newspaper ruled that the right to inform oneself is a necessary foundation of the right to speech itself. Citing the Spiegel Case, featured later on in this chapter, the Court observed that “an elementary need of the human person is to inform himself or herself from as many sources as possible,” adding that “a democratic state cannot exist without free and well-informed public opinion.”24 The Court went on to declare, however, that under Article 5 (1) “freedom of information is constitutionally guaranteed only when the source of information is generally accessible.”25 Leipzig Tageszeitung was found to be such a source. Lüneburg’s Higher Regional Court had simply assumed the validity of the seizure within the meaning of the Penal Code. As in Schmid- Spiegel, the lower court failed to consider the radiating effect of Article 5 (1) on the applicable legal provisions, for which reason the lower court’s decision was quashed and the case remanded.26 Demokrat Newspaper reaffi rmed the critical importance of informational freedom as a constitutional right—and value.27 In this case, the newspaper was being sent to a nonsubscriber, a West German municipal official who was a member of the Christian Democratic Union (cdu). His constitutional complaint objected not only to the seizure of one issue but also to delays in the release and delivery of other issues owing to the time it took customs officials and the public prosecutor to determine the nature

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of their content. Subscriber or not, said the Court, the recipient was entitled to receive the newspaper as a generally accessible source of information and to receive it in a timely manner so that he could compare the information contained therein with the reports of other newspapers as a basis for forming an opinion on a matter of public policy.28 “The constitutional principle of proportionality,” said the Court, “requires that checks be so handled as to take the recipient’s right to information as far as possible into account, especially by not bringing about an unacceptable delay in forwarding [the newspaper].”29 In this case, however, the local prosecutors were found to have satisfied this standard.30 Both Leipzig Daily Newspaper and Demokrat Newspaper make clear that the right to receive information does not confer a general right to know. Persons have a right to inform themselves from “generally accessible sources of information.” The Court has indicated in related cases that not all sources of information are generally accessible. Thus, persons would not have a constitutional right of access to a market research report held by a private company. Nor would confidential government reports qualify as generally accessible sources of information.31 Indeed, as the Census Act Case (1983; no. 7.9) shows, the government may even be obliged to withhold information in its possession if its release would impinge on other constitutional values such as privacy or the personal right to self-development. Both cases also implicate the no-censorship clause of Article 5 (1). In Demokrat Newspaper the First Senate distinguished between freedom of information and the expression or dissemination of an opinion. The no-censorship clause applies to the latter but not to the former.32 The ban on censorship embraces the rule against prior restraint.33 Yet newspapers, like fi lms, are subject to seizure under the Penal Code if they contain subversive propaganda.34 In 1972 a divided First Senate narrowly sustained the Film Importation Act of 1961 over the minority’s objection that it confl icted with the right to freedom of information and thus constituted de facto censorship.35 (The law forbade the importation of fi lms having a tendency to undermine the free democratic basic order and the concept of international understanding.) It may indeed be suggested that the rule against prior censorship loses much of its clout if written or visual material can be seized before it reaches its intended audience. Nevertheless, the safeguards against prior censorship are substantial. As a matter of constitutional law, any administrative seizure of subversive newspapers or fi lms must be carried out pursuant to a general law and, in any case, all such actions are subject to judicial review. Opinion versus Information. Leipzig Daily Newspaper and Demokrat Newspaper beg questions about the relationship between opinion and information. Leipzig Daily Newspaper in par ticu lar underscores that the right to inform oneself surely includes the right to receive opinions. Effective participation in a democracy, said the Court, requires access to all opinions related to the process of governance. But an argument rooted in democracy would restrict the meaning of information to opinions and data having political or social significance. Most German commentators, however, hold

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that it means much more than that,36 for the Basic Law’s protection also extends to certain forms of commercial speech. Indeed, the Constitutional Court held in the Press Advertising Case (1967) that Article 5 protected a newspaper advertisement informing people of working opportunities abroad even though the advertisement did not qualify as an “opinion.”37 It would seem, therefore, that the right to inform oneself about opportunities, persons, things, and events is an important aspect of the liberty protected by Article 5 (1). Indeed, as Eric Barendt notes, the information clause provides a “strong textual argument for holding at least some kinds of commercial speech to be constitutionally protected.”38 Yet it is possible to play the opinion and information clauses against one another. In the Chemist Advertising Case (1980),39 for example, the Constitutional Court held that an advertisement was not constitutionally protected because it did not constitute an “opinion” within the meaning of Article 5 (1). Here the profit motive behind the advertisement appeared to outweigh the value of the information conveyed, underscoring once again the constitutional relevance of the economic context in which speech is exercised. One could plausibly argue that the right to information, unlike the right to express an opinion freely, is bounded by the requirement of accuracy. Thus, a large amount of commercial advertising, particularly advertising claims about the quality of manufactured products, would probably be excluded from constitutional protection. In any event, commercial advertising cases are more likely to be adjudicated under constitutional provisions dealing with occupational freedom and property rights.40

reputational interests and offensive speech As the previous coverage has shown, the jurisprudence of balancing is a major theme in the German theory of constitutional rights. In American constitutional law, by contrast, the preference for balancing in the free speech field competes with a more absolutist or categorical approach to constitutional reasoning. Balancing for the Supreme Court is most frequently employed in so-called expressive conduct cases.41 But when a message has been categorically defi ned as pure speech and its communication limited by law, the Supreme Court employs an extremely high standard of review, one that usually results in vindicating or preferring the speech claim over any nonconstitutional social value unless it can be shown to be warranted by a compelling state interest.42 In Germany, however, freedom of speech competes with equally valid nonconstitutional interests protected by general law, and while speech must be accorded the high value ascribed to it by the Basic Law, the German version of proportionality analysis requires a delicate balance between right and interest in the light of a par ticu lar set of facts. American and some German legal scholars have suggested that balancing of this nature leads to an unprincipled process of ad hoc decision making incompatible with the need for moral clarity as well as doctrinal consistency and coherence if rights are to be taken seriously.43 As the following cases show,

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the Federal Constitutional Court takes a different view. The law of balancing for the Court is a principled undertaking inasmuch as it requires the state to justify statutory limitations on rights by rather exacting standards of rationality and proportionality. Introduction to the CSU-NPD Case. Twenty-four years separate Lüth and csu- npd. During this period the Court’s analytical approach to balancing confl icting values changed significantly. In Lüth the Court itself independently examined the par ticular facts and interests of the parties. It placed a heavy thumb on the free speech side of the scale, particularly in regard to political speech, and instructed ordinary courts to attach a similar weight to free speech values when they confl ict with valid social interests rooted in private law. In the following years, however, the Court appeared to lower its level of scrutiny. So long as ordinary court judges had correctly defi ned the significance of the relevant constitutional principle, the Constitutional Court justices declined to interfere with the application of the principle. They were unwilling to substitute their judgment for that of judges trained in the “science” of applying law to facts.44 The Mephisto Case (1971; nos. 7.2 and 8.13), as already noted in Chapter 7, exemplifies this deferential approach to ordinary court judgments. (Mephisto sustained a libel judgment against the publisher of a novel in which the disparaging portrayal of the main fictional character was held to defame the real person—by this time deceased—on whom the character was allegedly based.) Under the standard approach applied in cases such as Mephisto, the Court generally remitted to private-law courts the weighing of the constitutional value of expression against confl icting constitutional values. The result was the frequent victory of the right to personal honor over speech rights. Freedom of expression appeared to have no higher status under the Basic Law than certain rights of personality. In confl icts between personality and speech rights it was perhaps to be expected that judges steeped in the legal culture of the Civil Code would be inclined to protect rights closely related to traditional private-law values. Th is approach marked a substantial departure from Lüth’s emphasis on the primacy of free speech. The Deutschland Magazine Case (1976)45 expressed the First Senate’s dissatisfaction with the existing standard of constitutional review. It shifted away from the approach used in the early 1970s toward a more heightened degree of judicial scrutiny of certain encroachments on speech. The Court reasserted the conventional view that judicial balancing is mainly the task of the ordinary courts. But now, apparently taking a position between Lüth and Mephisto, the First Senate laid down a new standard of review: There are no rigid and invariable limits on the Court’s intervention. We retain a degree of freedom to consider the par ticu lar facts of special situations. Important in this regard is the severity of the encroachment upon a basic right: The Constitutional Court may not disturb the judgment of an ordinary court simply because if it had decided the case it would have balanced the equities differently and therefore

462 chapter eight arrived at a different conclusion. The Constitutional Court may step in to defend an objective constitutional right at the point where the civil courts have erred in assessing the significance of a basic right. . . . The more a civil court’s decision encroaches upon the sphere of protected rights, the more searching must be the Constitutional Court’s scrutiny to determine whether the infringement is constitutionally valid; and where the infringement is extremely burdensome the Court may even substitute its judgment for that of the civil courts.46

A labor union publication had described Deutschland Magazine, a conservative newspaper, as “a right radical hate sheet.” The magazine’s publisher won a libel judgment enjoining the union publication from repeating this statement “in the same words or in words having the same meaning.” 47 On review, the Higher Regional Court sustained the ban on the original statement but overturned the prohibition of “words having the same meaning.” The First Senate, citing Lüth, noted that any judicial ruling imposing a severe chill on freedom of expression would invite close scrutiny. Here, however, the chill was not regarded as severe. The union was free to express its opinion of Deutschland Magazine in words equally capable of conveying its animosity without intimating, as the original statement did, that the magazine was advocating unconstitutional goals. Th is trend in the Court’s jurisprudence toward greater scrutiny continued with the csu- npd Case. 8.4 CSU-NPD Case (1982) 61 BVerfGE 1 [The complainant was a candidate on the Social Democratic Party (spd) list for election to the Eu ropean Parliament. In a campaign speech he denounced Bavaria’s majority party, the Christian Social Union (csu), as “the npd of Eu rope.” (The reference was to West Germany’s extreme right-wing National Democratic Party, sometimes described as a neo-Nazi organization.) The csu won a temporary restraining order enjoining the candidate, under threat of a civil damages suit, from publicly repeating his charge. Sustained by the ordinary courts, the judgment was challenged by the spd candidate in a constitutional complaint that alleged violations of Articles 5 (1) and 2 (1) of the Basic Law. The Court agreed.]

∂

Judgment of the First Senate. . . . B. The constitutional complaint is permissible and justified. I. The complaint is directed against a cease-and-desist order granted under the Civil Code. [Courts are authorized under § 1004 of the Civil Code to enjoin interferences with “ownership,” a broad concept referring not only to material possessions but also to personal rights such as honor and reputation.] The Federal Constitutional Court is obligated only to decide whether the courts have properly assessed the extent

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and effect of basic constitutional rights in the area of civil law. Doubtless, the limits of our authority to interfere cannot be established with exact precision, for these limits depend upon the extent to which a basic right is infringed. The more a decision by a civil court encroaches upon a basic right, the more intense the judicial scrutiny of the reasons for the encroachment. . . . II. In deciding the case . . . the regional appeals court undoubtedly considered the basic right to freedom of expression. But it unjustifiably failed to acknowledge that the statement in question was an expression of opinion within the meaning of the Basic Law. Instead, the Higher Regional Court treated it as an incorrect factual assertion, thus disregarding the fundamental value of the basic right secured by Article 5 (1). 1. Contrary to the opinion of the court below, Article 5 (1) must be considered in any judicial assessment of the nature of a statement. a. Th is basic right guarantees to all persons the right to freedom of expression without expressly distinguishing between a value judgment and a statement of fact. Everyone is at liberty to speak his or her mind freely whether or not he or she is able to furnish verifiable reasons for his or her judgment. At the same time the purpose of free speech is to form opinions, persuade, and exert an intellectual influence over other persons. Th is is why value judgments, always meant to convince others, are protected by Article 5 (1) [1] of the Basic Law. The basic right is designed primarily to protect the speaker’s personal opinion. It is irrelevant whether an opinion is valuable or worthless, correct or false, or whether it is emotional or rational. If the opinion in question contributes to the intellectual struggle of opinions on an issue of public concern, it is presumed protected by the principle of free expression. Even caustic and exaggerated statements, particularly those uttered in the heat of an election campaign, are fundamentally within the protection of Article 5 (1) [1]. . . . This principle does not apply in the same way to assertions of fact. False information is not a protected good. The deliberate utterance of untruth is unprotected by Article 5 (1). The same holds true for incorrect quotations. . . . To the extent that incorrect allegations of fact are not automatically placed outside the protection of Article 5 (2) [1], they may be more easily restricted by general law than by expressions of opinion. What mainly determines if an expression of “opinion” is protected by the Basic Law is whether there is an element of stating a viewpoint, taking a position, or holding an opinion within the framework of intellectual disputation. The value, truthfulness, or reasonableness of the opinion does not matter. Strictly speaking, a statement of fact is not an expression of an “opinion.” Such a statement is nevertheless protected by the Basic Law because it forms the basis of an opinion. . . . The concept of “opinion” within the meaning of Article 5 (1) [1] is to be understood as an expression of a viewpoint, the taking of a position, or holding an opinion within the framework of intellectual dispute. Th is also holds true where such utterances—as frequently happens—are combined with elements of reported facts or allegations of fact, especially in cases where the two cannot be separated. . . . b. Accordingly, the statement “The csu is the npd of Europe” is part of an election speech and thus an expression of opinion protected by Article 5 (1) [1]. Taken literally,

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the statement is obviously false because the csu is not identical with a (nonex istent) npd of Europe. . . . No one can derive a concrete and tangible fact from this assertion; rather, it represents a sweeping statement. Th is becomes particularly clear when we analyze the purpose of the utterance. The complainant tried to convince his audience to vote for the spd in the elections for the European Parliament. To achieve this goal he employed a typical weapon, namely, polemics against political opponents. His intent was to set his opponents apart from his own party by resorting to overstatement. Th is is basic to every electoral campaign and belongs in principle to the realm of opinion, thus falling within the protection of Article 5 (1) [1] of the Basic Law. The electorate clearly understands that the speaker is merely voicing an opinion to win over the audience. To be sure, one could glean factual elements from the statement in question; for example, that the csu is an extreme right-wing party. Nonetheless, the value judgment outweighs the factual content contained in the statement. . . . 2. The ordinary court was thus at fault in . . . characterizing the utterance of the complainant as an incorrect statement of fact. . . . b. In addition, the appeals court neglected to consider the vital importance of the status of the person or entity allegedly slandered and the degree to which he or she participated in the process of public opinion formation protected by Article 5 (1). A person who voluntarily exposes himself or herself to public criticism forgoes part of his or her protected private sphere. Th is principle, developed with natural persons in mind, is to be applied even more stringently to political parties, for their existence and activities—in contrast to those of private citizens or even individual politicians— are automatically and exclusively understood as being a part of political life. . . . Under the circumstances . . . a political party must endure even caustic remarks rightfully deemed slanderous by any democratic party. Such remarks are not unusual in the heat of political battle, especially because the party had the opportunity to defend itself by political means. 3. In the light of these considerations, the court below inadequately assessed the range and effects of the basic right to freedom of expression. The judgment on appeal is based upon these errors. . . . The judgment is therefore quashed and the case remanded to the Higher Regional Court in accordance with § 95 (2) of the fcca.

∂

Continuing Trend toward Heightened Judicial Scrutiny. The Constitutional Court tends to evaluate speech in terms of its contribution to the development of public opinion and mainly for the purpose of enhancing self-government. While derogatory speech may be tolerated in political circumstances such as those in the SchmidSpiegel Case, which involved the reputation of the judiciary, a fabricated press interview with a socially prominent person enjoys no such immunity against a libel action.48 The level of protection thus rises with the increasing political significance of the opinion expressed. In csu- npd the ordinary courts failed to recognize that the opinion expressed there was in fact a contribution to meaningful public debate.49

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The Picture Postcard Case (1984) is yet another example of the Court’s willingness to declare whether a given utterance is an “opinion” within the meaning of Article 5 and, further, to independently assess the political significance of the opinion.50 In this case, a postcard produced and sold in Munich was designed to mock and disparage guards employed by a private security fi rm. The regional court, ranking the right to personality ahead of free expression, stopped the distribution of the postcard. Reversing, the Constitutional Court held that the ordinary court failed to recognize that security ser vices of the kind provided by the complainant were a subject of considerable public interest. In the light of an existing public controversy surrounding the alleged criminal behavior of some private security guards, the portrayal contributed, said the Court, to the “intellectual struggle of opinions.” Thus, the lower court had little choice but to uphold freedom of expression. The Constitutional Court rejected any analogy between Picture Postcard and Schmid-Spiegel. The commercial interest of the postcard company was obvious, but the sway of that interest receded in the face of the more important fact that in this case the complainant was genuinely motivated by a desire to influence public opinion.51 The Political Satire Case presents another version of “offensive” speech. Here, however, the speech takes the form of malicious satire published in the magazine konkret. As we note in the introduction to the case, the magazine responded to the constitutional complaint against it by invoking Article 5 (3), declaring that the “arts and sciences . . . shall be free.” Political Satire anticipates cases discussed later on in this chapter under the section on “Artistic and Academic Freedom,” but we include it here because of its relevance to the themes of reputation and offensive speech. 8.5 Political Satire Case (1987) 75 BVerfGE 369 [The magazine konkret portrayed Bavarian Minister-President Franz Josef Strauss, one of Germany’s most controversial political figures, as a pig engaged in sexual activity. In several caricatures, the pig is copulating with another pig attired in judicial robes, with several of the drawings bearing Strauss’s unmistakable facial features. The minister-president sued the magazine successfully under § 185 of the Penal Code, which punishes insults. Claiming the protection of Article 5 (3), which guarantees freedom of art, konkret brought a constitutional complaint against the decision of the Hamburg Higher Regional Court affi rming a monetary damage award. The Constitutional Court turned away the magazine’s claims.]

∂

Judgment of the First Senate. . . . C. The constitutional complaint is unjustified and dismissed. . . .

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I. 1. Even in cases claiming a violation of the freedom of artistic expression, it is not the Federal Constitutional Court’s task to review the decisions of the ordinary courts to determine whether they are “correct” in the interpretation of ordinary law. Needless to say, the Court has always based the limits of judicial intervention on the degree of intensity with which an ordinary court affects the sphere of the person convicted. Accordingly, penal sanctions against acts claimed by the defendant to be protected by freedom of opinion or artistic expression has, as a rule, been subject to strict review. . . . The Court does not stop at merely reviewing whether the ruling was based on a fundamentally incorrect interpretation of the significance of the fundamental right in question, but it also reviews the interpretation of ordinary law in detail to insure the compatibility of the contested decision with the fundamental right. Therefore, what needs to be established is not only whether the complainant’s drawings fall within the sphere protected by Article 5 (3)—and if so whether the Higher Regional Court has in principle correctly defi ned the area protected by this fundamental right—but also whether the ordinary court has adequately assessed the portrayals on the basis of “structural characteristics” that defi ne a work of art. 2. The complainant’s drawings are regarded as art within the meaning of the fundamental right guaranteed by Article 5 (3) [1] of the Basic Law. Despite the impossibility of defi ning art in general terms, the constitutional protection of this freedom requires that a protected area be defi ned in the practical application of the law. Accordingly, defi ning the basic criteria of artistic activity is not prohibited by Article 5 (3); in fact, it is constitutionally required. What courts must do, however, is to distinguish between art and non-art. The Basic Law does not permit courts to differentiate between “higher” and “lower” or “good” and “bad” art; that would amount to a constitutionally inadmissible regulation of artistic content. The disputed caricatures are the product of free creative activity in which the complainant expresses its impressions and experiences. Thus, they meet the crucial requirements of artistic activity. . . . The fact that the drawings simultaneously express an opinion does not alter their character as artistic works. Art and expressions of opinion are not mutually exclusive; an opinion can normally be expressed in artistic form. Article 5 (3) is thus the relevant basic right owing to its specific character. [The Court proceeded to embark upon a close examination of the higher regional court’s decision sustaining the damage award. While emphasizing the critical importance and protection the Basic Law accords to freedom of art, even to the point of protecting “exaggerations” and “distortions” accompanying any satirical work, the Court nevertheless held that ordinary courts are permitted to explore the “core meaning” of such a work to discern whether it is fundamentally defamatory in violation of the principle of human dignity laid down in Article 1 (1). Such an analysis requires, said the Constitutional Court, the use of “technically appropriate criteria” in the evaluation of a satirical work. The Court found that these criteria were satisfied and that the regional court had correctly assessed the significance of Article 5 (3) in its determination that a forbidden defamatory

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statement had been uttered. In this case, the repeated portrayal of Strauss as a copulating swine was correctly found to be particularly “repellent.” Although a margin of tolerance must be accorded to the caricatures of public officials, said the Court, the satirist in this instance “stepped over the line,” depriving Strauss “of his dignity as a human being.” The extracts below address this issue.] C. I. 3. . . . Since exaggeration, distortion, and alienation are central to satire, its judicial evaluation requires the fleshing out of the real content of the satirical work or art. Th is content and its satirical expression are then examined separately to determine whether they contain a defamation of the person to whom the caricature refers. As alienation is central to satire, it has to be taken into account that the standards of judgment with regard to the satirical expressions are different and usually less stringent than the standards applied to the core content. 4. a. . . . The higher regional court correctly found that the drawing conveyed the impression that Strauss used the judiciary in an indecent way for his purposes and that he derived animal-like pleasure from a compliant judiciary. The court expressly determined that this formed the core content of the drawing, going on to say that the satirical portrayal of Strauss as a copulating pig aggravated the defamation. . . . The court has also correctly determined the limits imposed on artistic freedom by the protection of the personality rights of third persons. The balancing of confl icting interests that was necessary because of the tension between artistic freedom and personality rights of third parties inevitably led to the result supported by the court. Even if it is taken into consideration that exaggerations are central to satire and that individuals—who, like Strauss, are public figures—are increasingly the target of public and satirical critique, the portrayal by far exceeds the limits of reasonableness. Different from common portrayals of politicians in the shape of animals, the complainant not only intended to describe or exaggerate certain characteristics or the physiognomy of a human being by portraying him in the shape of an animal; it was obviously intended to attack the personal dignity of the person portrayed. Not his human traits, but his personal characteristics were to be demonstrated to the viewer by the chosen caricature. It was to be shown that he had animal-like characteristics and behaved accordingly. In par ticu lar, the portrayal of sexual behavior, which presently still belongs to the protected core of one’s intimate sphere, was meant to devalue Strauss as a person and to deprive him of his human dignity. In so doing the complainant disrespected Strauss in a way that must be disapproved of by a legal order that recognizes human dignity as its highest value. . . . The fact that Strauss is a political figure who is in the midst of the public fight of opinions does not deprive him of his human dignity and does not justify defamatory statements injurious to the personality right, not even in the name of artistic freedom.

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Liberty versus Dignity. Political Satire presents a splendid opportunity to underscore one of the major differences between German and American perspectives on freedom

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of speech. Political Satire invites comparison with Hustler Magazine v. Falwell (1988),52 decided by the Supreme Court within months of the German decision. In Hustler, Jerry Falwell, a nationally known preacher, was depicted as having had a “drunken incestuous rendezvous with his mother in an outhouse.” 53 As with the portrayal of Strauss, this portrayal was acknowledged as an outrageous parody. Even while conceding that the Falwell portrayal was “gross,” “patently offensive,” and “intended to infl ict emotional injury,” 54 the Supreme Court, speaking unanimously through Chief Justice Rehnquist, struck down the damage award against the magazine for tortious conduct. The Court held that freedom of speech must prevail over all countervailing social values if political discourse through the medium of satire is to survive in America. If the U.S. Constitution can be characterized as a charter of liberty, Germany’s Basic Law can surely be identified as one of dignity. In short, as the cases and materials in the previous chapter illustrate as well, dignity and liberty are their respective architectonic values. Former justice Dieter Grimm has observed that “human dignity is the unalterable foundation of Germany’s constitutional order.” 55 These values, needless to say, are interrelated. Claims to liberty are usually rooted in respect for dignity, just as the realization of dignity requires respect for the liberty of the individual. Indeed, the overlap between liberty and dignity in the two bodies of jurisprudence is greater than their disparity, the difference being one more of emphasis than of kind. Much depends on the lens used to assess defamatory speech. When speech is seen through the lens of dignity, a court is likely to decide differently on the merits of a case than if that same utterance were viewed through the lens of liberty. But even if liberty and dignity were to sustain the validity of a given utterance, a dignitarian jurisprudence invites an interpretative methodology likely to be considerably different from what is found in a jurisprudence of liberty. In a liberty-oriented constitution, rights are primary. In Germany’s dignity-oriented constitution, however, dignity is not a right per se but rather a value that defi nes the range, informs the meaning, and limits the exercise of all constitutionally guaranteed rights. In Germany, therefore, dignity is usually lexically prior to liberty, just as in the United States, liberty is lexically prior to dignity. Whether one jurisprudential perspective is superior to the other is impossible to say, except perhaps to note that in the constitutional courts of other advanced democracies, Germany’s dignitarian view appears to have prevailed over the American libertarian perspective. Tucholsky I: A Stormy Prelude to Tucholsky II. The Tucholsky I (Soldiers Are Murderers) Case (1994) was a chamber decision that triggered an outpouring of disapproval. Kurt Tucholsky was a writer and well-known pacifist who was stripped of his German citizenship in 1933 for his anti-Nazi and antimilitaristic views. He once wrote that “soldiers are murderers,” the slogan that became a rallying cry for pacifists two generations later. (Tucholsky left Germany early in the Nazi period to take up residence in Sweden. He took his own life in 1935 after Sweden rejected his application for citizenship.) Tucholsky I arose out of a constitutional complaint against a regional

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court decision convicting the complainant of “arousing hatred against segments of the population,” an offense punishable under § 130 of the Penal Code. In 1991, during the Persian Gulf War, a social studies teacher and recognized conscientious objector attached a sticker to his car saying “Soldiers Are Murderers.” A reproduction of Tucholsky’s signature appeared under the slogan. In sustaining a fi ne against the complainant an ordinary court ruled that the slogan amounted to an attack on the dignity and reputation of members of the armed ser vices because it charged them with “murderous deeds,” thus “consigning them to the lowest level of society, marking them as unworthy and dishonorable in the eyes of fellow citizens.” A chamber of the First Senate, basing its decision on what it regarded as well-established principles laid down in the Constitutional Court’s decisions, ruled that the slogan was a protected “opinion” within the meaning of Article 5. In short, the chamber held that the term “murderer” as used in the present context was not to be taken literally but rather as a political statement critical of war in a more general sense.56 The Tucholsky I (Soldiers Are Murderers) Case set off a storm of protest. Germany’s foreign and defense ministers and other members of parliament expressed their indignation on the floor of the Bundestag. Letters to the nation’s newspapers thundered with outrage. Some prominent constitutional scholars added their own voices of disapproval. A former director of the well-known Max Planck Institute of Comparative Public Law and Public International Law deplored the “unlimited individual freedom” he believed Tucholsky I had sanctioned in Germany’s value-ordered society. Echoing parliamentary criticism, he argued that the “murderers” slogan “poisons the international atmosphere” and undermines the international community’s efforts to maintain peace and order in the world.57 Many Germans, particularly social and political conservatives, found it hard to reconcile the chamber’s opinion with Germany’s respect for the traditional values of honor and reputation. Ernst Benda, former president of the Federal Constitutional Court, also entered the fray. In a letter to the Frankfurter Allgemeine Zeitung, he remarked that the threejustice “chamber would have been better advised to have referred [Tucholsky I] to the full Senate,” a move he believed “might have produced a more composed and perhaps better grounded judgment.” 58 He then tried to calm the public tempest by noting that the chamber had done nothing exceptional. He conceded that in its recent jurisprudence the Constitutional Court had manifested a clear tendency to prefer freedom of expression over personality rights59 but that this in no way justified the view in some circles that members of the armed ser vices could be defamed or vilified with impunity. Benda noted that the chamber had quashed the ordinary court’s judgment because of its failure to properly weigh the constitutional values at stake in the controversy. As the following excerpt from Tucholsky II reveals, this was not to be the end of the matter.

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8.6 Tucholsky II (Soldiers Are Murderers) Case (1995) 93 BverfGE 266 [The full senate revisited the “soldiers are murderers” controversy in four related cases consolidated for decision in Tucholsky II. In each case the complainant had displayed a banner, distributed a leaflet, or published a letter accusing soldiers of being “murderers” or “potential murderers.” For these acts each was convicted under §§ 185 and 194 of the Penal Code. In addition, § 194 (3) provided for the punishment of those who cast insults directed at members of the armed ser vices, public officials, and government institutions. Each of the four defendants brought constitutional complaints against the applicable judicial decisions, challenging their respective convictions under the free speech provisions of Article 5. Over the dissent of Justice Evelyn Haas, the senate vindicated freedom of speech once again but sought to clarify questions not fully examined in the chamber decision.]

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Judgment of the First Senate. . . . C. Insofar as they are admissible, the constitutional complaints are justified. The decisions challenged have not taken adequate account of the complainants’ fundamental right under Article 5 (1) of the Basic Law. I. 1. The statements for which the complainants were sentenced for defamation enjoy the protection of Article 5 (1). Th is constitutional norm gives everyone the right to express and disseminate his or her opinion freely in speech, writing, and images. As opposed to assertions of fact, opinions express the subjective attitude of the speaker toward the subject of his or her utterance. They contain value judgments about facts, ideas, or persons. It is this personal taking of a stance that the fundamental right of Article 5 (1) protects. The right exists irrespective of whether the statement is rational or emotional, justified or baseless, or whether it is regarded by others as useful or harmful, valuable or worthless. The protection relates not just to the content of the statement but also to the form in which it is embedded. The fact that a statement is worded polemically or injuriously does not automatically withdraw it from the area of protected speech. Also protected is the choice of the place and time of the utterance. The speaker has not just the right to express an opinion, but also may choose the circumstances likely to bring about its widest dissemination or achieve its strongest effect. The statements on the basis of which the complainants were sentenced for defamation were opinions in this sense, and they are always covered by the protection of the fundamental right. In saying that soldiers are murderers or potential murderers, the complainants did not claim that readily identifiable soldiers have committed murder. Rather, they expressed a general opinion about soldiers and the military profession, some of whose activities occasionally require the killing of other human beings. . . .

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2. Convicting complainants for statements of this kind constitutes an encroachment on the area protected by the fundamental right to freedom of opinion. 3. The fundamental right to freedom of opinion is, to be sure, not guaranteed unreservedly. Under Article 5 (2) it confronts its limits in the provisions of general law, the legal provisions to protect young people, and the right to personal honor. . . . II. There are no decisive objections to § 185 of the Penal Code. [As in almost every case involving the interpretation and application of general law, the statute is seldom struck down on constitutional grounds. Rather, as the Court’s jurisprudence repeatedly notes, the question is whether the constitutional value has adequately informed the interpretation given to the statute by an ordinary court. In this part of the opinion, the Court ruled that § 185 of the Penal Code is a valid general law. Yet, said the Court, this provision must be open to the influence of freedom of opinion. Moreover, § 185 must be seen in tandem with the Penal Code’s § 193, which excludes punishment for a statement uttered in defense of a legitimate interest. The Court went on to say that from the viewpoint of personal honor, state institutions are not “bearers of the general right to personality.” The Court nevertheless underscored the validity of § 185 because “without a minimum of social acceptance, state institutions cannot carry out their functions. In principle, therefore, they may be protected against verbal attacks that threaten to undermine them.” At the same time, in a delicate balancing act, the Court made clear that this principle may not shield state institutions against valid public criticism, “even when couched in sharp terms.” Clearly, the shield did not apply in this case.] III. 2. In applying § 185 and related provisions, Article 5 (1) requires courts to weigh the encroachment threatening personal honor, on the one hand, and freedom of opinion on the other, in which all essential circumstances are to be taken into account. The outcome of this balancing process cannot be anticipated generally or abstractly in the absence of the context out of which the cases arise. However, a number of principles have been developed in decisions that provide criteria for weighing the interests involved in these cases. Thus, freedom of opinion must always take second place where the statement actually affects another’s human dignity. Th is principle, applicable to artistic freedom, can claim validity for freedom of opinion too since human dignity as the root of all fundamental rights cannot be weighed against any individual fundamental right. Since, however, not only individual fundamental rights but all of them together are manifestations of the principle of human dignity, careful justification is always required if the exercise of a fundamental right affects inviolable human dignity. Similarly, in the case of disparaging statements that constitute formal defamation or vilification, freedom of opinion regularly takes second place to the protection of honor. Because of its effect in suppressing freedom of opinion, however, the Federal Constitutional Court has defi ned the concept of vilification narrowly in line with the interpretation of the ordinary courts. Accordingly, exaggerated or even downright rude criticism does not in itself make a statement an

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exercise in vilification. Instead, the statement must exceed the boundary of discussion by thrusting the defamatory statement into the foreground. In short, the statement must consist of more than polemics or exaggerated criticism; it must take the form of personal denigration. . . . 3. . . . The object of interpretation here is to determine the objective meaning of a statement. Accordingly, the decisive thing is neither the subjective intention of the speaker nor the subjective understanding of those affected by the utterance but rather the meaning it has for the understanding of an unbiased, reasonable observer. Here the starting point must always be the wording of the statement. Th is does not, however, conclusively determine its meaning. It is instead to be determined also by the linguistic context in which the disputed statement is uttered, and the accompanying circumstances in which it is made, insofar as these were perceptible to the recipients of the message. . . . The isolated consideration of a disputed part of a statement does not, as a rule, determine the meaning of an alleged defamatory remark. Judgments that clearly overlook the real meaning of a disputed statement . . . infringe the fundamental right of freedom of opinion. The same applies where a court, in the case of ambiguous statements, assumes a meaning that points toward conviction without fi rst excluding the other possible interpretations of the statement. IV. 1. It is unobjectionable for the courts to conclude that calling a soldier a murderer is a severe attack on the soldier’s honor. Even if the statement is unaccompanied by the reproach that the person concerned had in fact committed murder, comparing soldiers to murderers remains a grave insult. Th is is particularly so if the expression is used in the criminal-law sense, as if the subjective elements of murder within the meaning of § 211 of the Penal Code applied. Th is is also the case even when ordinary language is used since here, too, the utterance designates a person who contributes in a morally unjustifiable way to the annihilation of human life or who is prepared to annihilate human life. It also constitutes a judgment of worthlessness capable of degrading the person concerned in the view of the surrounding world. Th is is particularly the case where the accusation relates not to an individual soldier’s conduct but to the whole of his or her professional activity. The courts have not, however, adequately ascertained whether the statements subjected to punishment actually had this meaning. They ought to have considered alternative interpretations insofar as these were to be assessed less harshly than from a criminal-law perspective. Otherwise, the danger exists that the speaker may be punished for an utterance that does not contain the presumed insult. The courts may not ignore these alternatives by considering the incriminated part in isolation. Instead, the whole context must be taken into account, as far as it was perceptible to the listening audience. Here the linguistic context in which the disputed statement was made and the surrounding circumstances are relevant. In the present cases, there were alternatives to the interpretation assumed by the courts that members of the Federal Armed Forces (Bundeswehr) were being equated with murderers in the criminal-law or ordinary-language sense. . . .

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First, the utterances refer to soldiers in general and not to individual soldiers or, more specifically, to members of the Bundeswehr. If the Bundeswehr is occasionally mentioned, it is only to confi rm that the statement about all soldiers also applies to those in the Bundeswehr. Th is circumstance ought to have prompted the ordinary courts to consider that the statements were directed mainly against the military in general and the craft of war pure and simple. The military ser vices were being condemned because they are associated generally with killing people, in some circumstances cruelly, and with a corresponding impact on the civilian population. The use of the word “murderer” need not necessarily contain the accusation of a gravely criminal attitude or cast of mind in relation to the individual soldier. Instead, the speaker may also have been drawing attention, in a particularly provocative way, to the fact that killing in war is not an impersonal procedure but done by human hands. It cannot accordingly be ruled out a priori that the formulation was meant to arouse among those in the military ser vices an awareness of personal responsibility . . . and thus to promote a willingness to object conscientiously to military ser vice. . . . [In this portion of its opinion, the Court noted that § 185 includes group libel. In short, personal honor can be infringed apart from attacks on par ticu lar individuals. “The individual,” said the Court, “moves in numerous supra-individual contexts . . . just as the surrounding world more or less identifies him or her with the groups to which he or she belongs and social roles he or she carries out. . . . To that extent, disparaging statements about groups may also act to diminish the honor of their members.” Recognizing, however, that punishing such statements always runs the risk of restricting freedom of speech, the Court suggested that the nature of the group must be taken into consideration. The larger or more generic the group, the greater the difficulty in associating a disparaging statement as an insult against a par ticular individual, in which case the free speech claim is likely to prevail against any objection based on dignity or honor.] 2. . . . To be sure, in the case of disparaging statements against collectives or groups the boundary between an attack on personal honor . . . and freedom of opinion cannot be drawn sharply. Punishing such statements always runs the risk of excessively restricting freedom of opinion. Various foreign legal systems, particularly in the English-speaking world, lack the concept of collective defamation and punish only defamation explicitly or recognizably relating to individuals. Whether § 185 might also be interpreted in this way is not to be decided here. The Basic Law does not at any rate require such a restricted interpretation of the provisions on protection of honor. But when applying § 185 to disparaging statements using a collective designation, it must always be determined whether they harm the “personal” honor of individual group members and it must, above all, be considered that it should not come to the suppression of critical statements on political and social phenomena or institutions, to which the protection of freedom of opinion especially applies. . . .

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As the Federal Court of Justice has ruled, collective defamation can only be applied to an identifiable group. . . . The defamatory statements must therefore be associated with a feature present in all members of the collective, whereas association with features applying to some but obviously not all members does not, according to our decisions, diminish the personal honor of each individual member. When it is known to the listening audience that a disparaging statement directed to all soldiers does not include all members of the group and par ticu lar individuals are not thereby targeted, there is no defamation in the usual criminal sense. [As the Court explains, “collective defamation can only relate to a readily identifiable group.” Some groups, “such as all Catholics and Protestants, all tradeunion members, or all women” are so vast and varied as to make unreasonable the inference that general statements about the group constitute an assault on the personal honor of particular individuals. Because the dispute here was between military preparedness and pacifism, said the Court, “there is a presumption in favor of freedom of speech.”] These considerations also apply to disparaging statements about soldiers insofar as they relate to all soldiers in the world. By contrast, the criminal courts are not constitutionally prevented from seeing the active soldiers of the Bundeswehr as an adequately identifiable group, so that a statement referring specifically to them may also insult each individual member of the Bundeswehr, if it is associated with a feature that manifestly or at least typically applies to all members of the collective. . . . It is, however, a requirement that the criticism actually assume the character of defamation . . . and therefore the courts would have had to show that in the specific statements uttered against the soldiers, taking their context into account, discussion of the legitimate public issue had been forced into the background by primarily emphasizing the defamation of par ticu lar persons. . . . But there are doubts about this because the statements refer by their wording not to par ticu lar persons but to all soldiers without distinction. . . . As a rule, however, only statements about par ticu lar persons or associations of persons can be considered as defamatory criticism. [The Court was emphatic in its view that the courts below misconstrued the intent of the Penal Code and neglected to attach the proper weight to the Basic Law’s free speech values. In short, the complainants were expressing an opinion rather than making allegations of fact. In accord with its previous rulings, the senate placed a heavy thumb on the free speech side of the scale, even going so far as to say that “governmental institutions do not possess ‘personal honor,’ nor do they enjoy a general right of privacy.” Yet the senate found no fault with the criminal provisions under inquiry. Public institutions, said the senate, are legitimate subjects of legal protection, for they “cannot discharge their functions without a minimum measure of societal acceptance.” They can therefore be “protected from verbal attacks that potentially undermine their social acceptance.” Still, said the senate, the Penal Code must not shield public institutions

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from legitimate public criticism in light of the express constitutional right of free speech.] Dissenting opinion by Justice Haas. . . . The complainants’ fundamental right under Article 5 (1) of the Basic Law has not been infringed. The freedom to express an opinion is limited by the right to personal honor. . . . 1. The ordinary courts correctly assessed the legal position of the complainants on the basis of their factual fi ndings. Their fi nding that the statements, “soldiers are murderers,” contains a negative value judgment about members of the Bundeswehr is not open to a different interpretation from the one ascribed when the ordinary-language content of the expression is considered. Th is is constitutionally unobjectionable. . . . What the complainants wanted to say in using the term “murderers” is irrelevant. . . . At issue is what was actually said; the decisive point is the objective meaning of the defamatory statements and how they would be understood by the average observer hearing the statements at a given time and place. . . . [For Justice Haas, the Court’s main error was in second-guessing the judgment of the ordinary courts. In her view, the Court should have deferred to the judgment of the courts closest to the facts on the ground because they were in a better position to assess the true meaning of the opinions for which the complainants were being tried. She was similarly convinced that the ordinary courts had validly concluded that the disparaging remarks about soldiers were an actionable offense within the meaning of § 185 of the Penal Code. She concluded that given the context in which the defamatory comments were made, the ordinary courts were fully warranted in concluding that they were aimed directly at individual members of Germany’s armed ser vices, thus undermining their honor and worthiness. She acknowledged the tension between freedom of opinion and protection of honor but found that the ordinary courts had resolved the tension “in a constitutionally unobjectionable way.” She ended her dissent with the following passage.] Public statements about members of the armed forces must respect the honor of individual soldiers because they are obliged to carry out the constitutionally prescribed defense mandate to the best of their ability. They risk their lives in order to keep the horrors of war away from the civilian population and protect their lives, not the least of which are the lives of those who despise their action and treat them contemptuously in public. A legal system that obliges young men to serve in the armed forces, requiring their obedience, must insure that soldiers who assume these duties are not publicly defamed as murderers owing to their military ser vice. Th is does not mean constructing some special “honor for soldiers.” It is simply that, if the constitution is not to lose its credibility, then it must not leave unprotected those who follow its commands and are attacked (precisely) for that very thing.

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Related Freedom of Expression Cases. In the Darmstadt Signals Case (1993) a threejustice chamber of the First Senate ruled that a soldier could not be punished or demoted for signing a statement declaring that soldiers are “potential murderers.”60 As in Tucholsky I (1994), the chamber placed a heavy burden of proof on the state seeking to suppress the communication of a political message. As the Dissident Officer’s Case (1970) shows, however, the context within which a remark is uttered is crucial. Here the Federal Administrative Court sustained the court-martial of an officer who, in the presence of the men under his command, faulted the Federal Republic for suppressing freedom of speech.61 Context also made the difference in the Peter W. Case (1970), which concerns a soldier punished for writing a letter to a newspaper in which he criticized the remarks of his superior officer on German military policy. The case recalls Schmid-Spiegel’s Gegenschlag theory of speech. The officer’s speech, critical of an organization of conscientious objectors and certain pacifist groups, was reported in the press. The soldier sought to put the record straight by writing a letter to the editor challenging the accuracy of the officer’s account. In overturning his court-martial for breaching military discipline the Constitutional Court ruled that once the officer’s speech had been reported in the press, thus injecting the matter into the forum of public discussion, the soldier in question could likewise state his opinion in the same forum. In such situations, said the Court, the Basic Law is oblivious to military rank.62 In other situations, however, speech rights may have to give way to values such as fidelity to one’s employer and professional decorum and objectivity. Yet loyalty and discipline do not override all speech interests. In the Werner Case (1970) the Federal Constitutional Court ruled that while government employees can generally be required to exhaust grievance procedures within their agencies before going public with a complaint of unconstitutional behavior on the part of their employers, they would be justified in bringing “a clear and particularly serious violation of the constitution” to the immediate attention of Parliament or the public.63 Here we fi nd the Court laboring simultaneously to do justice to the fundamental right of speech and to the government’s interest in maintaining the fidelity of its employees. The Prison Privacy Case (1976) raises the issue of order and discipline in still another context. A criminal defendant held in custody pending his trial had written a letter to his wife bitterly complaining about the judges presiding over cases such as his. He described these judges as “prodigious clowns” who, if they had any conscience, would be unable “to sleep peacefully at night.” The presiding judge ordered the letter confiscated on the ground that it contained gross insults against the judiciary and undermined prison discipline. The defendant’s constitutional complaint presented the Court with an opportunity to reaffi rm the value of privacy guaranteed by the right to develop one’s personality freely, reinforced in this case by the constitutional protection of marriage and the family under Article 6. However, the Court based its decision on freedom of expression. This freedom, said the Court, includes the right of a person detained in custody to express his or her opinion fully, however inaccurate or intemperate, on a pending trial in a private communication to his or her spouse.64

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Scientology, Stasi Stolpe, and Sexual Abuse Cases. In three important cases the Constitutional Court has reaffi rmed the primacy of the general rights to personality and dignity. In principle, these rights prevail over freedom of expression injurious to reputation. In the first of the three decisions, the Scientology Case (1998), an Austrian artist who had published essays in Scientology magazines was publicly rebuked for his membership in Scientology, for subscribing to its “criminal” methods of indoctrination, and for incorporating the influence of the “bogus” religion into the public cultural life of the Land Saarland. (He had been commissioned to design a concentration camp memorial in Saarbrücken.) Claiming that he was not a member of Scientology, the artist sued for defamation and lost in the ordinary courts. The Constitutional Court’s First Senate, however, pronounced these judgments unconstitutional because the complainant was not given the chance to refute the allegations against him. In fact, the artist had never been, as charged, a “cleric” within the organization. Falsely imputing to an individual membership in an association or group that reflects badly on his or her public image, said the Court, violates the general rights to personality and dignity. The injury to reputation is all the more severe given the critical press reports about the organization and its low esteem in the German public mind,65 not to mention the potential loss of commissions and purchases the artist might suffer from the defamatory criticism. In short, the press and politicians are obligated to exercise care in their statements about an individual’s group associations. Accordingly, the ordinary court’s decisions had failed to attach sufficient weight to the values of Article 2 (1) and Article 1 (1) in determining the rights of expression under Article 5 (1).66 The second judgment was the Stasi Stolpe Case (2005). A cdu member had reported on television that Manfred Stolpe, Brandenburg’s spd minister-president, had spent twenty years in the employ of East Germany’s Ministry of State Security where he had been registered as an unofficial collaborator. Stolpe sued for defamation, claiming that the assertion that he worked for state security as an unofficial collaborator was false, thus degrading him in the eyes of the public. There was no clear proof as to how far Stolpe had gone in his collaboration. The Federal Court of Justice eventually rejected Stolpe’s injunctive action against any repetition of the defamatory statement owing to its ambiguity. The statement about his employment could be interpreted in different ways, from formal ser vice as a member of the Stasi all the way to willing complicity in revealing the identity of anticommunists and other persons opposed to the old regime. Since, however, the defendant’s statement had been made in the political battle of opinions on a question of public importance and since the complainant himself had participated in the debate about his role in East Germany, the Federal Court of Justice ruled in favor of the defendant’s free speech claim. The Constitutional Court held that the ruling against Stolpe had not adequately considered these alternative interpretations, permitting the public to accept the most damaging interpretation of Stolpe’s complicity and, thus, undermining his social standing and personal dignity and interfering with his right to control his public image.67 The complainant in the third case was a forty-one-year-old woman who accused her father of repeatedly abusing her sexually from a young age onward. Owing to the

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abuse, she lost her job, succumbed to an addiction, and experienced severe psychological problems. Under the care of multiple doctors, she confronted her father in a series of letters accusing him of driving her into compulsive gambling. In 1991 she recounted her experiences on two television programs, identifying her father by name, and offered to write a magazine article in which she planned to explain the regressive behavior in victims of sexual abuse. The father sued, accusing his daughter of soiling his name. The regional court rejected the complaint, holding that the daughter’s statements would only be defamatory if they were untrue. Even though it was convinced of the truth of the accusations, the Celle Higher Regional Court nevertheless enjoined the daughter from publicly using her name or that of her father, apart from judicial proceedings, in the interest of protecting his rights of personality under §§ 823 and 1004 of the Civil Code. The daughter lodged a constitutional complaint against the Higher Regional Court’s order. Drawing heavily on its judgment in the Lüth Case, and distinguishing its judgment in Lebach, the Constitutional Court nullified the judicial order. The Court found that the ordinary court’s decision constituted a violation of the complainant’s rights under Article 5 (1) and Article 2 (1). The right to use one’s own name, said the Court, is not only a free speech guarantee but also a right of personality, in short a symbol of personal identity and individuality.68 Disparaging Questions Case. A brief discussion of this case may ease the transition into the next section. The complainant in Disparaging Questions (1991) was a member of the Environment and Peace Task Force.69 As a member of its local affairs committee responsible for a part of Wiesbaden, he directed the manager of a nursing home for the elderly in the city to answer fourteen provocative questions, each of which called for a response to a charge against the facility for acute deficiencies in its administration and the care of its residents. One typical question read: “Is it true that through lack of personnel and inadequate qualifications of the director of nursing care, acute inadequacies exist in the care of the home’s residents?” After the publication of the queries, the manager of the nursing home won a defamation suit against the Task Force official for his “degrading assertions,” whereupon the latter fi led a complaint with the Constitutional Court, alleging a violation of Article 5 (1). In deciding this case the Court drew heavily on books dealing with speech theory and the logic behind the framing of questions. The Court underlined the importance of the difference between questions, factual assertions, and value judgments. From this basis the senate faulted the courts of ordinary jurisdiction for interpreting the questions as untrue factual assertions.70 Other interpretations were possible, said the Court, one being that the questions were designed to elicit replies the content of which were not yet known and for which reason the answers would in fact contribute to the formation of opinions within the protective scope of Article 5 (1). As the Court has ruled so often in the past, the ordinary courts simply failed to weigh the significance of freedom of speech in the light of this reality. As the Court noted, “[p]recisely because the questioner wants to know what is right or wrong, true or untrue, and

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thus remains open to various answers, the question cannot be evaluated using the criteria of truth or untruth. Th is also is true when the question relates to facts that subsequently prove to be accurate. From the perspective of freedom of opinion, therefore, questions are equivalent to value judgments.”71

resocialization, privacy, truth- telling, and assembly Article 5 (2) provides that freedom of expression fi nds its “limits in the rules of the general laws, statutory provisions for the protection of youth, and in the right to personal honor.” Th is text provides little basis for elevating speech into an absolute value capable of trumping other personal interests protected by the constitution. Moreover, the cases discussed in this chapter demonstrate that the speech clauses invite interpretation in the light of other basic value decisions of the constitution whose effect is often to confi ne the range or intensity of speech. Prominent among these value decisions are the human dignity clause of Article 1 and the personality clause of Article 2. The constitution thus “requires a kind of dialectical method of interpretation and a general as well as concrete balancing of . . . constitutionally protected values.”72 We have already seen this balancing process at work in numerous areas of German constitutional law. The three cases featured in this section, like those just covered on reputational interest, represent once again efforts to vindicate the fundamental rights of personal integrity and privacy. While the Lebach, Princess Caroline of Monaco II, and Holocaust Denial cases do not open new doctrinal frontiers in Germany’s free speech jurisprudence, they are worth reporting here not only for their intrinsic interest as constitutional law stories but also for their striking contrast to the reasoning and outcome of comparable American cases. In Lebach the Constitutional Court sought to resolve the tension between the protection of one’s personality and the freedom of the media to report on the circumstances of an actual crime. In Princess Caroline of Monaco II the Court was called upon to decide how far the press could go in publishing truthful images of a public person’s activities in semipublic settings. Holocaust Denial, fi nally, is a subset of the larger problem of separating truth from falsehood in the heat of political controversy. Here the Court was faced with the difficult task of determining the circumstances under which the denial of a historical fact can be punished. 8.7 Lebach Case (1973) 35 BVerfGE 202 [The complainant participated in an armed robbery of a German armed forces barracks in the course of which several soldiers on guard duty were killed or severely wounded. After his arrest and conviction as an accessory, he was sentenced

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to six years’ imprisonment. The crime and trial of the complainant attracted considerable public attention. Some years later, several months before the complainant was to be released from prison, a German television station (zdf) planned to run a documentary based on the details of the crime. Called “The Soldiers’ Murder at Lebach,” the documentary planned to display the defendant’s photograph, to identify him by name, and to make reference to his homosexual tendencies. The complainant sought an injunction prohibiting the television company from broadcasting the documentary. Citing the broadcasting freedom provision of Article 5, the Regional Court of Mainz dismissed the case. After weighing the interests of the complainant in the light of constitutional standards, the Koblenz Higher Regional Court sustained the dismissal. Claiming that his right of personality under Article 2 was being infringed, the complainant fi led a constitutional complaint against the decisions. The Constitutional Court validated his claims.]

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Judgment of the First Senate. . . . B. II. In the present case the Higher Regional Court held correctly that several fundamental rights affect the application of private law and that they pull in opposite directions. The right to one’s personality guaranteed by Article 2 (1) in conjunction with Article 1 (1) of the Basic Law confl icts with the freedom of broadcasters to provide information under Article 5 (1) [2] of the Basic Law. 1. On the one hand, a televised broadcast of the kind at issue concerning the origin, execution, and detection of a crime that mentions the name of the criminal and contains a representation of his likeness necessarily touches the area of fundamental rights guaranteed by Article 2 (1) in conjunction with Article 1 (1) of the Basic Law. The rights to the free development of one’s personality and human dignity secure for everyone an autonomous sphere in which to shape one’s private life by developing and protecting one’s individuality. Th is includes the right to remain alone, to be oneself within this sphere, and to exclude the intrusion of or the inspection by others. It also encompasses the right to one’s own likeness and utterances, especially the right to decide what to do with pictures of oneself. In principle, everyone has the right to determine for him- or herself whether and to what extent others may make public an account of either certain life incidents or one’s entire life story. The decisions of the Federal Constitutional Court have not, however, extended the absolute protection of the above-mentioned fundamental rights to the entire sphere of private life. If an individual as a member of a community enters into relations with others, influences others by his or her existence or behavior, and thereby impinges upon the personal sphere of other people or upon the interests of communal life, the exclusive right to be master of one’s private sphere may become subject to restrictions unless the inviolable, innermost sphere of life is involved. Any such social involvement, if sufficiently strong, may justify measures taken by public authori-

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ties in the interest of the public as a whole; for example, publishing pictures of a suspect in order to facilitate a criminal investigation. Neither the state’s interest in solving crimes nor any other public interest invariably justifies an infringement of the personal sphere. Instead, the preeminent importance of the right to freely develop and command respect for personality, closely connected with the supreme constitutional value of human dignity, demands that any encroachment upon the right to personality that may appear necessary always must be balanced against the protective rule laid down in Article 2 (1) in conjunction with Article 1 (1) of the Basic Law. . . . III. 2. . . . In resolving the confl ict between the freedom to broadcast and the right of personality, one must remember that . . . both constitutional concerns are essential aspects of the free democratic order of the Basic Law, the result being that neither can claim precedence in principle. . . . In case of confl ict the court must adjust both constitutional values, if possible; if this cannot be achieved, the court must determine which interest will defer to the other in the light of the nature of the case and [its] special circumstances. In so doing, the court must consider both constitutional values in their relation to human dignity as the nucleus of the constitution’s value system. Accordingly, the freedom to broadcast may have the effect of restricting claims based on the right to personality; however, any damage to “personality” resulting from a public broadcast may not be disproportionate to the significance of the publication to free communication. . . . The court must also consider the extent to which the legitimate interest served by the broadcast can be satisfied without such a far-reaching invasion of the intimate sphere. IV. 1. In the light of these general principles the following criteria are constitutionally relevant in assessing televised broadcasts of the kind involved here. a. A public report of a crime in which the name, likeness, or representation of the accused is provided will always constitute a severe intrusion into his or her intimate sphere, given that it publicizes a person’s misdeeds and conveys a negative image in the eyes of the public. . . . 2. On the other hand, weighty considerations suggest that the public should be fully informed of the commission of crimes, including the identity of the accused and the events that led to the act. Crimes are also part of contemporary history, the presentation of which is the quintessential task of the media. . . . 3. In balancing these interests, . . . the public interest in receiving information must generally prevail when current crimes are being reported. If someone breaches the peace by attacking or injuring fellow citizens or the legally protected interests of the community, he or she must not only suffer the criminal punishment provided by the law but also must accept, as a matter of principle, that in a community committed to freedom of communication the public has an interest in receiving information through normal channels about an act the criminal committed. . . . But the interest in receiving information is not absolute. The central importance of the right to personality requires not only vigilance on behalf of the inviolable, innermost personal sphere of the accused but also a strict regard for the principle of

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proportionality. The invasion of the personal sphere is limited to the need to adequately satisfy the public’s interest in receiving information, while the harm infl icted upon the accused must be proportional to the seriousness of the offense or to its importance otherwise for the public. Consequently, it is not always permissible to disclose the name, release a picture, or use some other means of identifying the perpetrator. . . . 4. The radiating effect of the constitutional guarantee of the right of personality does not, however, permit the media, over and above reporting on contemporary events, to intrude indefi nitely upon the personal life and private sphere of the criminal. Instead, when the public’s interest in receiving current information about the crime has been satisfied, the criminal’s “right to be left alone” fundamentally increases in importance, thus limiting the extent to which the media and the public may convert the individual sphere of the criminal’s life into an object of discussion or entertainment. . . . Once a criminal court has prosecuted and convicted a defendant for an act that has attracted public attention, and he or she has experienced the just reaction of the community, any further or repeated invasion of the criminal’s personal sphere cannot normally be justified. Even when a felon catches the attention and general disdain of the public, he or she nevertheless remains a member of this society together with the constitutional right to the protection of individuality. When the criminal act that has aroused the public’s interest . . . has been duly punished in the interest of the public welfare and the public has been sufficiently informed of all the surrounding facts, then, as a rule, the continued and repeated violations of the criminal’s personal sphere can no longer be justified. Television broadcasts in par ticu lar, with their correspondingly large audience, would subject the criminal to renewed social sanctions. . . . 5. a. We cannot generally and precisely state when the legitimate reporting of current events loses its contemporary vitality and is thus no longer a permissible subject of [public] discussion. . . . The decisive criterion is whether the report in question is likely to infl ict upon the criminal new or additional harm, compared with information that is already available. b. What needs to be considered with regard to a more precise determination of any temporal limitation is the criminal’s interest in reentering society, that is, his or her resocialization. In recent decades, the acknowledg ment of the significance of this goal has increasingly become the norm. There is general agreement that resocialization and socialization are considered to be the singular goal of prison sentences. . . . Prisoners are to be taught the ability and the will to lead responsible lives; they are to learn how to assert themselves in a free society without ever breaking the law again, to take advantage of their opportunities and to survive any risky situation. Accordingly, § 2 of the bill recently submitted by the federal government concerning the administration of prison sentences defi nes the task of administering prison sentences as follows: “During the course of serving a prison sentence, the prisoner is to become competent to lead a future life of social responsibility without breaking the law (the goal of the execution of prison sentences). Comments by the Federal Council of

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States [Bundesrat] also consider this to be the “primary goal of the execution of prison sentences.” . . . With this goal in mind, however, any execution of prison sentences will be oriented mainly toward the prisoner’s resocialization. Only after their release from prison will prisoners reach the critical stage of their rehabilitation. Not only must prisoners be prepared to reenter human society, society must in turn be prepared also to accept them. From a constitutional point of view, this requirement corresponds to the selfperception of a community that bases its value system on the dignity of the human being and that is also beholden to the principal of the social welfare state. As the guarantor of the fundamental rights resulting from the dignity of the human being and of its protection, the community must give sentenced criminals the opportunity to become members of the human community again after having served their sentences. From the point of view of the criminal, the interest in becoming resocialized issues from the basic right guaranteed by Article 2 (1) in conjunction with Article 1 of the Basic Law. From the community’s point of view, the social state principle obliges the state to provide care and support to those social groups who stumble into crime owing to their lack of personal and social development. . . . Included among these people are prisoners or those who have been released from prison. Finally, resocialization serves the protection of the community; society is directly and immediately interested in preventing the criminal from breaking the law again and from again harming fellow citizens or society as a whole. e. In any case, a televised report concerning a serious crime that is no longer justified by the public’s interest in receiving information about current events may not be rebroadcast if it endangers the social rehabilitation of the criminal. The criminal’s vital interest in being reintegrated into society and the interest of the community in restoring his or her social position must generally have precedence over the public’s interest in a further discussion of the crime. . . . As a rule, it will be assumed that resocialization is in jeopardy whenever a report identifying the criminal is to be broadcast following his or her release from prison or close to the time of release. At the same time, one must keep in mind that according to § 26 (2) of the Penal Code, a prisoner serving time can be conditionally discharged as soon as he or she has served half of the sentence and that his or her sentence must be suspended after he or she has served two-thirds of the sentence in accordance with the conditions stated in § 26 (1) of the Penal Code. V. 2. A proper assessment of the relevant constitutional provisions involved in this case leads us to the conclusion that the petition of the complainant must prevail.

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Lebach represents a model case of balancing in German constitutional law. Two values of equal weight are involved here, namely the protection of privacy and the freedom of the media to broadcast a program of major public importance. The tension between the two values cannot be resolved by allowing one value to trump the other in all circumstances. According to the doctrine of optimization, the interpretive

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principle discussed in Chapter 2, each value must be concretized to the maximum extent possible, and this means a delicate weighing of competing interests in the light of all relevant circumstances. Lebach points out that in certain situations, there may be a general preference for the freedom of the media to report on recent—and truthful—public events, particularly in the criminal context, even when such reports invade the fundamental value of privacy. But as time passes and the public memory of the event recedes, the right to privacy increases in importance. Th is is especially true when the chief value to be vindicated is the ability of the human person to normalize his or her position in civil society.73 Theory of Personal Spheres. Lebach highlights the linkage between Articles 1 (1) and 2 (1) of the Basic Law, elevating respectively the value of human dignity and the right to the free development of one’s personality. In the spheres of speech and press, the rights of dignity and personality are also entwined with the right to personal honor, one laid down in the limitations clause of Article 5 (2). Taken together the values of dignity, personality, and personal honor protect three general spheres of public life. The Federal Constitutional Court has generally distinguished between the sphere of intimacy, the sphere of personal privacy, and the sphere of privacy in public. The fi rst is an untouchable area of private life that may not be breached under any circumstances and it includes such matters as personal sexuality, illness, or physical condition.74 The second sphere involves private matters that may be breached but only under the strict application of the principle of proportionality, where the state must show a legitimate interest in breaching privacy and then demonstrate that the benefit derived from the breach outweighs the corresponding burden on liberty.75 The third sphere is the least protected. Here, as in the Princess Caroline of Monaco II Case, the Constitutional Court has carved out a limited sphere of privacy, even in the public realm, for persons such as fi lm stars and other well-known persons engaged in activity outside the home or the confi nes of their property. Balancing Speech and Personality. In the aftermath of the csu- npd Case, the trend toward heightened judicial scrutiny in free speech cases continued. Already in 1976, with the decision in Deutschland Magazine,76 the Constitutional Court served notice that it would intensify its scrutiny of ordinary court balancing in cases of confl ict between speech interests and values protected by private law (i.e., the Civil Code). Under the Deutschland test, a serious invasion of speech resulting from an ordinary court judgment would invite heightened judicial scrutiny. But in the 1980s the Constitutional Court tended to view with equal gravity serious invasions of the constitutional values of human dignity (Article 1) and personality (Article 2). Lebach foreshadowed this tendency. Even though the complainant had projected himself into public view, creating a newsworthy event by his criminal activity, his interest in privacy increased as his public profi le receded. The Mephisto Case (1971; nos. 7.2 and 8.13), featured later in this chapter in the section on “Artistic and Academic Freedom,” extended the same protection to a deceased public figure. In both cases, in acts of

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delicate balancing, the Court resolved the tension between the values of personality (Article 2) and speech (Article 5) in favor of personality. The dissenting justices in Mephisto, however, felt that the Court was woefully inattentive to the importance of speech in a democratic society.77 The well-known Böll Case (1980) merits attention here.78 The case stands out as a prominent example of the close linkage among the values of dignity, personality, and honor. Heinrich Böll, an acclaimed Catholic novelist and winner of the 1972 Nobel Prize for Literature, sued a popular television personality for associating him with political terrorism in Germany. He had quoted Böll as having characterized the state against which the terrorists were fighting as a “dung heap defended with rat-like rage by the remnants of rotten power.” Alleging a violation of his honor, Böll was awarded damages by Cologne’s Higher Regional Court. On appeal, the Federal Court of Justice quashed the damage award, suggesting that the commentator’s remarks were a reasonable interpretation of the author’s public criticism of the Federal Republic and, thus, protected by the Basic Law’s free speech provisions of Article 5 (1). The Constitutional Court rejected this view of the matter, holding that the television critic misquoted Böll, distorting his message and violating his personal honor and personality rights. The Court ruled that the protection of personal honor includes “the speaker’s right to his own words and the [correlative] right to determine how he will present himself to another person or to the public.”79 Böll seemed actually to enhance the importance of personality under the Basic Law. Böll differed from Mephisto, Deutschland Magazine, Lüth, and other cases because, as Peter Quint has noted, the constitutional complaint was lodged not against a court-imposed penalty but against the failure of the court, on free speech grounds, to impose a penalty.80 The First Senate regarded this failure as a serious threat to the right of personality that called for heightened judicial review. The novelty of Böll consists in the Constitutional Court’s declaration that the Federal Court of Justice’s rejection of the damage award constituted a serious threat to Böll’s right of personality within the meaning of Articles 1 and 2 of the Basic Law. When Lüth and Mephisto are considered in tandem with cases such as Tucholsky II and Holocaust Denial (1994; no. 8.9), we can discern the outline of the Court’s prevailing approach to free speech analysis. First, the value of personal honor always trumps the right to utter untrue statements of fact made with knowledge of their falsity. If, on the other hand, untrue statements are made about a person after an effort was made to check for accuracy, the Court will balance the confl icting rights and decide accordingly. Second, if true statements of fact invade the intimate personal sphere of an individual, the right to personal honor trumps freedom of speech. But if such truths implicate the social sphere the Court once again resorts to balancing. Finally, if the expression of an opinion—as opposed to fact—constitutes a serious aff ront to the dignity of a person, the value of personal honor triumphs over speech. But if the damage to reputation is slight, then again the outcome of the case will depend on careful judicial balancing.81

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8.8 Princess Caroline of Monaco II Case (1999) 101 BVerfGE 361 [Princess Caroline is the eldest daughter of Prince Rainier II of Monaco. As the prince’s daughter, she served as president of certain humanitarian and cultural foundations named after members of the ruling family but performed no official functions within or on behalf of the state of Monaco. Since the early 1990s, Princess Caroline, a prominent social figure, had been hounded by paparazzi taking pictures of her daily movements. The present case arose when she tried to block the publication by Freizeit Revue and Bunte, magazines owned by the Burda Publishing Company, of pictures showing her dining with actor Vincent Lindon in a garden restaurant, riding horseback in a paddock, accompanying her children Pierre and Andrea outside her home, canoeing with her daughter Charlotte on the river Sorgues, shopping with a bag slung over her shoulder, bicycling through a path in an open field, and walking to a market in the company of her bodyguard, all accompanied by captions such as “She loves shopping by herself” and “I don’t think I could be a man’s ideal wife.” Seeking to protect her privacy, Princess Caroline sued to enjoin the publisher from any further publication or redistribution of these photographs. Hamburg’s Regional Court viewed the princess as a figure of contemporary history. For this reason, and because all the pictures were shot in public places, the court concluded that Princess Caroline would have to tolerate the publicity. The Higher Regional Court agreed, adding that the photos were a legitimate effort to inform the general public about events within the “sphere of contemporary history.” On further appeal, the Federal Court of Justice sustained these judgments but went on to hold that the protection of privacy extends beyond the home. Even figures of contemporary society, said the Federal Court of Justice, are entitled to their privacy if they retire to secluded places, away from the public eye, where it is “objectively clear” to everyone that they want to be alone. Each of these judicial decisions was challenged in Princess Caroline’s constitutional complaint before the Federal Constitutional Court. The complaint alleged that each of the ordinary court’s decisions violated the general right to personality under Article 2 (1) in conjunction with Article 1 (1) of the Basic Law.]

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Judgment of the First Senate. . . . The judgments of the ordinary courts infringe the complainant’s basic rights under Article 2 (1) in tandem with Article 1 (1) of the Basic Law to the extent that they permitted the publication of three pictures of the complainant in the company of her children. . . . B. The constitutional complaint is in part well-founded. I. The challenged judgments affect the complainant’s general right of personality under Article 2 (1) in combination with Article 1 (1) of the Basic Law.

Fr eedom of Speech, Pr ess, and Art 487

1. The protection of the general right of personality extends to pictures of a person by third parties. . . . b. Authority to publish photographs showing persons in private or everyday contexts is to be measured by the right to pictures of oneself and the guarantee of the private sphere that are concrete forms of the general right to personality. aa. . . . As the Federal Constitutional Court has emphasized on several occasions, the general right of personality does not confer on individuals the right to be portrayed by others only as they view themselves or only as they wish to be perceived. Such a broad protection would not only exceed the aim of protection (i.e., to avoid risks to the development of one’s personality, but would also extend far into the sphere of freedom of third parties). The complainant . . . does not fi nd any fault with the way she is portrayed in the disputed photos, which the ordinary courts have regarded as favorable in every respect. She is much more concerned with whether photographs of her ought to be taken and published at all when she was not acting in an official function but in a private capacity or everyday context in public. The answer to this question can be ascertained from those aspects of the general right to personality that protect the right to control over one’s own image as well as privacy. . . . [The First Senate distinguished here between the right to control one’s image and the protection of privacy. Privacy, said the senate, includes not only the right not to disclose intimate, personal details about oneself, but also “physical space [outside the home] in which individuals can recover, relax, and also let themselves go.” The senate added: “The free development of an individual’s personality would be seriously impaired if the individual could only evade public curiosity in his or her home. . . . In principle, the individual must be able to move in an open but secluded countryside or in places that are clearly secluded from the general public in a manner from public observation.” In the course of these remarks, the senate took note of developments in photographic technology and its capacity to invade the sphere of spatial privacy without the knowledge of persons whose images may be captured by it.] dd. The Federal Constitutional Court has not yet decided what the protection of the private sphere means for family relationships between parents and children. But it is recognized that children need special protection because they must fi rst develop into autonomous persons. Th is need for protection also exists in view of the dangers resulting from the interest of the media and users of the media in the portrayal of children. Th is can disturb the development of their personalities more severely than those of adults. The area in which children feel themselves free from public observation and may develop, therefore, must be more comprehensively protected than that of adult persons. Parents are primarily responsible for the development of the personalities of their children. Insofar as parenting depends on undisturbed relationships with children, the special protection that . . . the general right of personality provides is strengthened

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by Article 6 (1) and (2) of the Basic Law, which puts the state under a duty to secure those conditions of life for children that are necessary for their healthy development, and to which, in par ticu lar, parental care belongs. How the strengthening of protection of the personality by Article 6 of the Basic Law should take effect in detail cannot be determined in general or in the abstract. Certainly, as a rule, there will be no need for protection if parents deliberately enter the public arena with their children, for instance by participating together in public events or even taking a position in the center of such events. In this respect they lay themselves open to the conditions of public appearances. In other respects, however, the protection of the general rights of personality, enhanced by the specific relationship between parents and children, can apply to contexts in which the prerequisite of seclusion is not otherwise fulfi lled. II. The challenged judgments do not fully satisfy the requirements of Article 2 (1) read in conjunction with Article 1 (1) of the Basic Law. 1. However, the provisions of §§ 22 and 23 of the Art Copyright Act (Kunsthebergesetz) [hereafter referred to as the kug] on which the civil courts based their decisions are compatible with the Basic Law. Under Article 2 (1) of the Basic Law the general personality right is guaranteed only within the framework of the constitutional order. The provisions concerning the publication of photographic representations of persons listed in §§ 22 and 23 of kug are part of this constitutional order. They can be traced back to a certain offensive incident (pictures of Bismarck on his deathbed) and to the ensuing political-legal debate sparked by this incident. The provisions seek to strike a fair balance between respect for personality rights and the community’s interest in being informed. . . . Under § 22 (1) of kug pictures can be disseminated or presented to the public only with the express approval of the person represented. Pictures relating to the realm of contemporary history are excluded from that rule under § 23 (1) of kug. Under § 23 (2), however, this exception does not apply where the dissemination interferes with a legitimate interest of the person represented. The protection by degrees under these rules ensures that they take account of both the need to protect the person being represented and the community’s desire to be informed and the interest of the media that satisfies that desire. That much has already been established by the Federal Constitutional Court. . . . [Here again, as so often in the past, the Constitutional Court insists that the interpretation and application of general law provisions is the task of the ordinary courts but that they are duty-bound to consider the radiating effect of constitutional values, in this instance the general right of personality as colored by Article 6’s family protections. But as the following passages underscore, a free press includes the right to publish stories well beyond the political news of the day.] b. . . . The press must be allowed to decide according to its own publishing standards what it regards as being worthy of the public interest and what it does not deem to be worthy of such interest. . . . The fact that the press fulfi lls the function of forming

Fr eedom of Speech, Pr ess, and Art 489

public opinion does not exclude entertainment from the functional guarantee under the Basic Law. The formation of opinion and entertainment are not opposites. Entertainment also plays a role in the formation of opinion. It can sometimes even stimulate or influence the formation of opinions more than purely factual information. Moreover, there is a growing tendency in the media to do away with the distinction between information and entertainment both as regards press coverage generally and individual contributions, and to disseminate information in the form of entertainment or mix it with entertainment (“infotainment”). Consequently, many readers obtain information they consider to be important or interesting from the press’s coverage of entertainment. . . . Nor can mere entertainment be denied any role in the formation of opinions. That would amount to unilaterally presuming that entertainment merely satisfies a desire for amusement, relaxation, escapism, or diversion. Entertainment can also convey images of reality and propose subjects for debate that spark a process of discussion and assimilation relating to philosophies of life, values, and behavior models. In that respect it fulfi lls important social functions. . . . When measured against the aim of protecting press freedom, entertainment in the press is neither negligible nor entirely worthless and therefore falls within the scope of fundamental rights. . . . The same is true of news reports about people. Personalization forms an important journalistic means of attracting attention. Very often it is this that fi rst arouses interest in a problem and stimulates a desire for factual information. Similarly, interest in a par ticu lar event or situation is usually stimulated by personalized accounts. Additionally, celebrities embody certain moral values and lifestyles. Many people base their choice of lifestyle on their example. They become points of crystallization for adoption or rejection and act as examples or counterexamples. Th is is what explains the public interest in the various ups and downs occurring in their lives. . . . c. The decision of the Federal Court of Justice largely stands up to an examination of its compatibility with the constitutional rules. . . . [In this section of its opinion, the First Senate examines the Federal Court of Justice’s judgment at length, largely sustaining its interpretation of kug. Under this interpretation pictures portraying an “aspect of contemporary history” do not require the consent of the person photographed; however, consent would be required from persons who are of no significance in contemporary history. In addition the public has a general right to be informed about persons who, because of their social significance, have attracted the public’s interest, particularly when they are photographed in restaurants, at an outdoor market, or other places where the public is likely to aggregate.] The public has a legitimate interest in being allowed to judge whether the personal behavior of the individuals in question, who are often regarded as idols or role models, convincingly tallies with their behavior on their official engagements. If, on the other hand, the right to publish pictures of people considered to be figures of contemporary history were to be limited to their official functions, insufficient account

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would be taken of the public interest properly aroused by such figures and this would, moreover, favor a selective presentation that would deprive the public of certain necessary judgmental possibilities in respect of figures of sociopolitical life, having regard to the function such figures serve as role models and the influence they exert. The press is not, however, allowed to use any picture of figures of contemporary history. On the contrary, § 23 (2) of the kug gives the courts adequate opportunity to apply the protective provisions of Article 2 (1) read in conjunction with Article 1 (1) of the Basic Law. . . . [The First Senate proceeded to lay down the protective scope of news reports or pictures of public figures such as Princess Caroline. According to the senate, the press must respect the privacy of such persons when “they have retired to a secluded place with the objectively perceptible aim of being alone and in which, confident of being alone, they behave differently from how they would behave in public. . . . The criterion of a secluded place takes account of the aim, consistent with the right to personality, of allowing individuals a sphere outside of the home in which they do not feel themselves to be the subject of permanent public attention—and relieves them of the obligation of behaving accordingly— and in which they can relax and enjoy some peace and quiet.” Here, however, the Federal Court of Justice, in sustaining the judgments of the ordinary courts, concluded that most of the photographs were not taken in a secluded place, even those in which Princess Caroline was accompanied by her children.] cc. The constitutional requirements have not been satisfied, however, insofar as the decisions against which the appellant complains did not take account of the fact that the right of personality . . . in her situation is reinforced by Article 6 of the Basic Law regarding that person’s intimate relations with her children. dd. The following conclusions can be drawn from the foregoing considerations with regard to the photographs in question. The decision of the Federal Court of Justice cannot be criticized under constitutional law with respect to pictures of the complainant at a market, doing her market shopping accompanied by her bodyguard, or dining with a male companion at a well-attended restaurant. The fi rst two cases concerned an open location frequented by the general public. The third case admittedly concerned a well circumscribed location, spatially speaking, but one in which the complainant was exposed to the other people present. . . . Nor can the decision being appealed be criticized regarding the photos of the complainant alone on horseback or riding a bicycle. In the Federal Court of Justice’s view, the complainant had not been in a secluded place, but in a public one. That fi nding cannot attract criticism under constitutional law. The applicant herself describes the photos in question as belonging to the intimacy of her private sphere merely because they manifest her desire to be alone. In accordance with the criteria set out above, the mere desire of the person concerned is not relevant in any way. The three photos of the applicant with her children require a fresh examination, however, in the light of the constitutional rules set out above. We cannot rule out

Fr eedom of Speech, Pr ess, and Art 491

the possibility that the review that needs to be carried out in the light of the relevant criteria will lead to a different result for all the photos. The decision must therefore be set aside in that respect and remitted to the Federal Court of Justice for a fresh decision. d. The decisions of the regional and high regional courts resulted in a violation of fundamental rights by limiting to the home the privacy protected by Article 2 (1) read in conjunction with Article 1 (1) of the Basic Law in accordance, moreover, with a rationale that was in keeping with our decisions at the time. The decisions in question do not need to be set aside, however, since the violation complained of has been remedied in part by the Federal Court of Justice and the remainder of the case remitted to that court.

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Princess Caroline II: Postscript. Following the remission of the case to the Federal Court of Justice, Princess Caroline made a new application to the local courts for an injunction against the publication of photos showing her on a skiing trip in Zürs/ Arlberg and in the company of Prince Ernst August von Hannover at a horse show in Saint-Remy-de-Provence. She initiated a second suit against the release of additional pictures of her at the Monte Carlo Beach Club. A chamber of the First Senate found no constitutional deficiencies in the ordinary court’s dismissal of these actions, referring to the Court’s 1999 judgment affi rming the view that the pictures of her were not taken in a secluded place. On 24 June 2004, however, the European Court of Human Rights (ecthr) held that the Federal Constitutional Court’s decision in Princess Caroline II interfered with the applicant’s right to respect for privacy and family life under Article 8 of the Eu ropean Convention on Human Rights. The ecthr faulted the Constitutional Court for failing to strike a fair balance between freedom of expression and respect for private life. Even as it emphasized the importance of freedom of expression as an essential foundation of a democratic society, the ecthr appeared to echo previous decisions of the Constitutional Court itself in saying that the “present case does not concern the dissemination of ‘ideas,’ but of images containing very personal or even intimate ‘information’ about an individual.”82 Here, however, it was clear that the ecthr was taking a broader view of privacy under the Convention than did the Constitutional Court under the Basic Law. The latter had concluded that the right of personality under the Basic Law extended to the protection of privacy outside the home in places that could generally be regarded as secluded. The ecthr, by contrast, extended the protected sphere to situations outside “the sphere of any political or public debate because the published photos”—particularly those taken with the applicant’s children—“and accompanying commentaries relate exclusively to details of the applicant’s private life.”83 “Furthermore,” concluded a unanimous tribunal, “the Court considers that the public does not have a legitimate interest in knowing where the applicant is and how she behaves generally in her private life even if she appears in places that cannot always be described as secluded and despite the fact that she is

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well known to the public.”84 The ecthr went on to declare that under the Convention, the state has a positive responsibility to protect individual privacy and family life in these situations. In the aftermath of the ecthr’s decision, Princess Caroline and two magazines fi led competing constitutional complaints based, respectively, on the rights of privacy and freedom of the press. Princess Caroline sought an injunction against the further publication by two German magazines of photographs accompanying stories on the illness of her father, Prince Rainier of Monaco, and on the decision of the princess and her husband to let a holiday villa belonging to them. The pictures showed the couple in various holiday settings—one in attendance at a society ball and another at a ski resort in Switzerland—in telling the story of their moods and attitudes toward life. The two magazines fi led complaints against judicial decisions sustaining the injunction, while Princess Caroline fi led a complaint against an adverse ruling of the Federal Court of Justice. The three complaints were consolidated in the Princess Caroline of Monaco III Case.85 Princess Caroline III is an extended examination of the relationship between freedom of the press and the right to privacy embodied in the Basic Law’s personality clause of Article 2 (1) and the right to respect for private and family life as enshrined in Article 8 of the European Convention on Human Rights. While also noting that freedom of the press and protection of personality rights are not guaranteed without reservation, the Court reiterated its view that “mere entertainment” is protected by freedom of the press insofar as it “conveys images of reality and proposes subjects of debate that trigger a process of discussion . . . and thus fi lls an important social function.”86 Freedom of the press, said the senate, includes the right of the mass media to decide for themselves what they consider worth reporting. The core of the judgment was taken up with the standards of review to be applied by the lower courts in balancing the rights of personality and press. As a matter of fi rst instance, the ordinary courts are to examine the public interest in the picture-stories and then to weigh the significance of freedom of the press against the confl icting interests of the persons concerned. If the reports have informational value, belong to the “sphere of contemporary history,” and thus contribute to the formation of public opinion in the light of the Basic Law and the ecthr’s relevant case law, then freedom of the press prevails. If, on the other hand, the picture-stories have no informational value, serve to satisfy only “mere curiosity,” and interrupt the private desire for relaxation—even in a public place—further publication of the photos may be enjoined.87 On the basis of these criteria, the senate rejected two of the complaints. The complaint of one of the publishers was sustained when the ban on publication upheld by the Federal Court of Justice was referred back to that tribunal to be examined anew in the light of the standards laid down by the senate.88 The back-and-forth between the Constitutional Court and the ecthr in the Caroline cases is another example of the “dialogue” between these important tribunals that we discuss more fully in Chapter 6.

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8.9 Holocaust Denial Case (1994) 90 BVerfGE 241 [In 1991 a regional association of the far-right npd issued invitations to a meeting intended to discuss “Germany’s future in the shadow of political blackmail.” The featured speaker was to be David Irving, a revisionist historian who argued that the mass extermination of Jews during the Th ird Reich never happened. The state government in Munich allowed the meeting to proceed but forbade any advocacy of the “Auschwitz Hoax” thesis. When it appeared that Irving would ignore the warning, the government disallowed the meeting under provisions of the Public Assembly Act prohibiting meetings when the likelihood exists that things said there will themselves constitute criminal violations. In this case, the likely violations were denigration of the memory of the dead, criminal agitation, and, most importantly, criminal insult, all actions banned by the Penal Code. The npd argued that the state’s condition was an unconstitutional intrusion on its right to free expression. The complaint was rejected by the ordinary courts before being heard by the Federal Constitutional Court, which found no constitutional violation.]

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Judgment of the First Senate. . . . B. II. The challenged decisions do not violate Article 5 (1) [1] of the Basic Law, which guarantees the right to freedom of expression and dissemination of opinion. a. The ordinary courts’ judicial decisions must be assessed primarily in terms of this basic right. It is true that the complainant opposes a condition related to a meeting on grounds that it violates the right to free assembly. The subject of the complaint, however, is certain utterances that the complainant, who organized the meeting, was not allowed to make or tolerate. The evaluation of the constitutionality of this situation depends on whether such utterances ought to be allowed. An utterance not prohibited on constitutional grounds cannot be subject to a restrictive measure applied to a meeting subject to § 5 (4) of the Assemblies Act. The criteria for this evaluation follow, not from the basic right of freedom of assembly, but from the right of free expression. b. Opinions are afforded basic protection under Article 5 (1) of the Basic Law. Freedom of expression and its dissemination relate to the formation of opinion. Opinion is defi ned by the individual’s subjective relationship to the content of his or her utterance. Comment and appraisal are elements of opinion. To this extent, demonstrating the truth or untruth of opinions is impossible. Opinions enjoy the protection of basic rights regardless of whether they are well-founded or deemed emotional or rational, valuable or worthless, dangerous or harmless. The protection of the basic right extends as well to the form of the utterance. An expression of opinion does not lose its protection as a basic right by being sharply or hurtfully worded. . . . The question is

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only whether, and to what extent, limitations on freedom of expression comport with Article 5 (2) of the Basic Law. Strictly speaking, representations of fact are not expressions of opinion. In the case of statements of fact it is the objective relationship of the utterance to reality that comes to the fore. Thus, representations of fact are amenable to examination of their truth. But this does not mean that representations of fact are outside the scope of Article 5 (1). Since opinions are usually based on assumptions about facts, or they comment on factual circumstances, statements of fact are protected by the basic right to the extent that they are the foundation for opinions, which Article 5 (1) protects as a whole. Consequently, protection of a representation of fact stops only when the so-called fact contributes nothing to the constitutionally protected formation of opinion. From this point of view, incorrect information does not constitute an interest worthy of protection. Thus, the Federal Constitutional Court has consistently ruled that a deliberate, demonstrably untrue representation of fact is not protected by the guarantee of free expression. However, requirements reflecting a duty of truth must not be applied in such a way as to harm freedom of expression, or stifle permissible expression for fear of sanctions. Distinguishing expressions of opinion from representations of fact can certainly be difficult because the two are linked and only together give sense to utterances. In this situation, severing the factual from the evaluative elements of an utterance is permissible only if in doing so it does not falsify its meaning. Otherwise, in the interest of effectively protecting the basic right, the utterance as a whole must be viewed as an expression of opinion, and, thus, within the scope of the protection afforded to freedom of expression; to do otherwise would threaten to curtail a basic right. c. Freedom of expression, however, is not unconditionally guaranteed. Article 5 (2) limits [such freedom] through general laws and statutory provisions protecting youth and personal honor. We must nevertheless consider the significance of free expression in interpreting and applying laws that limit it. Th is usually requires balancing the limit on the basic right against the legal interest served by the statute that limits it in the light of pertinent norms and the facts of the individual case. In achieving this balance, the Federal Constitutional Court has developed rules by which freedom of expression does not always take precedence over the protection of personality, as the complainant thinks. On the contrary, when expressions of opinion are seen as a formal insult or vilification, protection of the personality normally comes before freedom of expression. When expressions of opinion are linked to representations of fact, the degree of protection merited depends on the truth of the assumed fact on which the opinions are based. If the assumed facts are demonstrably untrue, freedom of expression usually gives way to the protection of personality. In general, one must determine which legal interest deserves preference. Here, however, it must be remembered that in questions of importance to the public there

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is a presumption in favor of free speech. Hence, we must constantly consider this presumption when balancing the legal positions of the parties. 2. Seen in these terms a breach of Article 5 (1) of the Basic Law manifestly has not been committed. The condition imposed on the complainant as organizer of the meeting (namely, to see to it that there would be no denial of or doubt cast on the fact of the persecution of the Jews during the Th ird Reich) is compatible with the basic right. a. The complainant does not dispute the danger foreseen by the authority overseeing the meeting and affi rmed by the administrative courts: namely, that utterances of this kind would be made during the meeting. On the contrary, the complainant argues that he should be able to make such statements. b. The prohibited utterance (that there was no persecution of the Jews during the Th ird Reich) is a representation of fact that is demonstrably untrue in the light of innumerable eyewitness accounts, documents, fi ndings of courts in numerous criminal cases, and historical analysis. Taken on its own, therefore, a statement with this content does not enjoy the protection of freedom of expression. There is an important difference between denying the Th ird Reich’s persecution of the Jews and denying German guilt in the outbreak of World War II, the subject of the decision of the Federal Constitutional Court on January 1994. Utterances about guilt and responsibility for historical events are always complex evaluations not reducible to representations of fact, while denial of the very existence of an event will normally be a representation of fact. c. Even if we do not consider the utterance in this case in isolation, but view it in connection with the subject of the meeting and thus as a precondition for forming opinion on the “susceptibility to blackmail” of German politics, the contested decisions will still withstand constitutional review. True, the prohibited utterance does enjoy the protection of Article 5 (1) of the Basic Law but constitutional law offers no objection to its limitation. aa. Such limitation has a lawful basis conforming to the constitution. . . . [The Court went on to sustain § 5 (4) of the Assemblies Act, which authorizes the state to prohibit meetings that support or provide occasion for uttering views that “form the substance of a serious crime (Verbrechen) or a less serious crime (Vergehen) prosecutable ex officio.” The guarantee of freedom of assembly under Article 8 (1) of the Basic Law, however, requires the legislature and government to observe the principle of proportionality. Similarly, the act does not violate freedom of expression since the “Auschwitz Hoax” thesis had previously been held to constitute the offense of insult under the Penal Code, the constitutionality of which the Court then affi rmed.] There are doubts about the constitutionality of the criminal provisions on which the condition [i.e., that the “Auschwitz Hoax” thesis not be promoted] was based. The laws against defamation protect personal honor, which is expressly mentioned in Article 5 (2) of the Basic Law as a legal interest that justifies limits to freedom of

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expression. Section 130 of the Penal Code is a general law within the meaning of Article 5 (2) serving to protect humanity, ultimately founded on Article 1 (1). . . . 1. The administrative authorities and courts based their decisions on the ordinary courts’ interpretations of the criminal norm. According to this interpretation, the Jews living in Germany form a group [vulnerable] to being insulted owing to their fate under National Socialist rule; denial of the persecution of the Jews is regarded as an insult to Jews as a group. On this point, the Federal Court of Justice had this to say: The historical fact that human beings were singled out according to the criteria of the so-called “Nuremberg Laws” and robbed of their individuality for the purpose of extermination puts Jews living in the Federal Republic in a special, personal relationship vis-à-vis their fellow citizens; what happened then is also present in this relationship today. It is part of their personal self-perception to be understood as part of a group of people who stand out by virtue of their fate and in relation to whom there is a special moral responsibility on the part of all others and that this is part of their dignity. Respect for this self-perception, for each individual, is one of the guarantees against repetition of this kind of discrimination and forms a basic condition of their lives in the Federal Republic. Whoever seeks to deny these events denies vis-à-vis each individual the personal worth of Jewish persons. For the person concerned, this is continuing discrimination against the group to which he or she belongs and, as part of the group, against him or her.

In the light of this Court’s jurisprudence, there can be no denial of the fact that these decisions bear witness to a grave violation of the right of personality where the persecution of the Jews is denied. Constitutionally, there is no flaw in the Federal Court of Justice’s logical connection between the racially motivated extermination of Jews during the Th ird Reich and a current-day attack on the right to respect and human dignity of today’s Jews. In this way, there is also a distinction between denying the persecution of the Jews and denying German war guilt. . . . 2. Balancing defamation, on the one hand, against limits on freedom of expression, on the other, does not reveal any constitutional errors in this case. It is the gravity of the injury in each case that is decisive. When insulting opinions that contain representations of fact are voiced, it is crucial whether the representations of fact are true or untrue. Demonstrably incorrect representations of fact do not merit protection. If they are inseparably connected to opinions, they will enjoy the protection of Article 5 (1) of the Basic Law; but from the outset, limits on demonstrably untrue assertions are less serious than in cases where the representations of fact have not been proven untrue. That is the case here. Even if one considers the utterance that the complainant was forbidden to voice an expression of opinion within the context of the meeting, its factual content has been proven false. Hence, interfering with it is not particularly serious. In view of the weight of the insult, there can be no objection to the precedence given the contested decisions’ protection of personality over freedom of expression.

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It does not matter if one sees Germany’s attitude toward its National Socialist past and its political consequences, which were the subject of the meeting, as a question concerning the public in an important way. True, in this case there is a presumption in favor of free speech, but this does not apply if the utterance constitutes a formal insult or vilification of the Jewish people, nor does the presumption apply if the offensive utterance rests on demonstrably untrue representations of fact. Th is balance, then, does not result in a stretch of the requirements of truth applicable to the core of the utterance in a manner incompatible with Article 5 (1) of the Basic Law. Limiting the duty of care, which is the basis of the Federal Constitutional Court’s limits on free communication and control over the media, refers to representations of fact still of uncertain accuracy at the time they are uttered, and unverifiable within a short time. But it does not come into play when the falsity of a statement is already established, as in this case.

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Historical Fabrication Case. In its Holocaust Denial decision the Court distinguished its reasoning from circumstances surrounding the expression of doubt over Germany’s guilt for starting World War II. This arose in the Historical Fabrication Case (1994). Crucial to the Court’s judgment in Holocaust Denial was the distinction between matters of demonstrable fact and matters of interpretation combined with the permissible limitations on free expression that flow from the Basic Law’s protection of the right to personality and personal honor. Denying the Holocaust, a demonstrable historical fact, offended the personal identity and dignity of the Jewish people. Different factors were at play in Historical Fabrication,89 another instance in which the Court grappled with the legacy of National Socialism. That case concerned a book called Truth for Germany: The Question of Guilt for the Second World War. The book did not deny the occurrence of the Holocaust. Rather, it argued that Germany was not to blame for the outbreak of the Second World War, but had had war thrust upon it by its enemies. Under the provisions of the Act on Publications Harmful to Young People, this book was listed as “immoral” and “dangerous” to youth, the result being that it could neither be distributed to children nor generally advertised. The Constitutional Court upheld the statute but ruled that the book could not be “listed” merely because it contained a false interpretation of a historical event. The argument at issue, said the Court, qualified as an “opinion”—however false—within the meaning of Article 5 (1) and thus constituted protected speech. The Court’s opinion failed to convince all commentators that it had adequately distinguished its reasoning in Historical Fabrication from the reasoning that supported the suppression of speech in Holocaust Denial. It bears repeating that the Federal Constitutional Court regards an Article 5 “opinion” as a value judgment about a person or an event. A fact is an objective datum of information. Facts, of course, are usually arranged according to a preconceived plan and are often assessed in terms of their meaning; such communications qualify as protected speech under the Basic Law. Although the csu- npd Case, featured earlier

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in this chapter, acknowledges the difficulty of disentangling expressions of opinion from statements of fact, the Constitutional Court adheres to the view, accepted in the Schmid-Spiegel Case and reaffi rmed in Holocaust Denial, that opinion and fact are distinguishable and that the distinction is constitutionally relevant. Commercial Advertising. The distinction between truth and falsehood also looms large in commercial advertising cases. (Earlier in this chapter, we alluded to the Chemist Advertising Case as an illustration of the tension between the “opinion” and “information” clauses of Article 5 (1).) The Constitutional Court has approved sharp limits on advertisements that mislead the public with respect to the credentials of doctors, engineers, veterinarians, and other licensed professionals. But other aspects of commercial speech have been carefully protected. Speech that advertises significant ser vices to the general public or, as the First Senate observed in the Benetton Advertising Case (2000),90 contributes to debate on a matter of public importance enjoys the protection of Article 5 (1). Also protected is speech that communicates valuable information about the quality, benefits, or dangers of a particular product or substance, of which the Tobacco Warning Label (1997) Case is a leading example. Cigarette manufacturers fi led a constitutional complaint against a European Economic Community (eec) regulation requiring warnings on tobacco products, including the notice that “smoking causes cancer” or “smoking causes heart and lung disease.” Member states of the eec were given a choice as to which health warnings to include on tobacco products so long as these warnings occupied a specified percentage of a tobacco product’s surface. The manufacturers contended that the German labels infringed their freedom of expression under Article 5 (1) because they were being compelled to engage in forms of speech against their will. Their complaint included the charge that they were being compelled to disseminate scientifically unverifiable statements about the dangers of cigarette smoking. Interestingly, the Court rejected the free speech argument holding that Article 5 (1) may be invoked in commercial speech cases only where there is some educational purpose behind the advertisement. The Court accepted the complaint, however, under Article 12 (1) as an infringement upon occupational freedom. But here the Court found that the regulations served the interests of the common good and that the required warning was not unreasonable or disproportionate to the ends sought.91 Two other cases worth mentioning in this context are the Bayer Pharmaceutical (1991) and Benetton Advertising cases. In Bayer a shareholder group rebuked as untrue the Bayer Pharmaceutical Company’s claim that its activity contributed to environmental protection and human health. Bayer successfully sued to enjoin the repetition of statements accusing the company of putting profits ahead of human rights and democratic freedoms. In its examination of these and related assertions, the Constitutional Court found that they were evaluations rather than statements of fact.92 The case is important for its restatement of the principles governing the First Senate’s review of judicial decisions involving defamatory or malicious speech. These principles merit repetition. First, the senate once again underscored the difference between

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value judgments and factual assertions, and even while acknowledging the difficulty of identifying false assertions in mixed statements of fact and value, found that freedom of opinion does not extend to untrue factual assertions. Second, the senate reiterated its view that “a violation of constitutional law that requires this Court’s correction exists only when a court decision reveals mistakes of interpretation based on a fundamentally incorrect view of a basic right’s significance and reach.”93 The senate went on to assert, however, that “the communication of a fact is not an expression of an opinion” and that “freedom of opinion ends only where the factual assertion can contribute nothing to the constitutional prerequisite of formation of opinion.”94 Finally, the senate underscored the case-specific nature of controversies such as the one presented in Bayer Pharmaceutical and for which courts are required to engage in a delicate judicial balancing process. When evaluative and factual elements merge in a single utterance, the correctness of the former plays a role in the context of balancing, and if the factual utterance is clearly false, freedom of opinion will yield to the statutory legal interest. Each of these principles, said the Court, was ignored in Bayer Pharmaceutical. The Benetton Advertising Case eases our way into the next major section on “Freedom of the Press and Broadcasting,” following a brief addendum on the right to assembly and demonstration. At issue was whether Benetton, a company that sells clothing worldwide, could be barred for taking out “image-building” advertisements in a popular magazine that associated the company with opposition to injustice and suffering around the world. The advertisements showed graphic pictures of an oilcovered duck floating on an oil slick, hungry children engaged in hard labor in a Th ird World setting, and naked human buttocks with the words “hiv-positive” stamped thereon, all with the presumed purpose of inviting customers to look with favor upon the company. The advertisements were banned as anticompetitive, a violation of good morals, and an aff ront to the dignity of aids patients. The magazine fi led a complaint against judicial decisions enjoining any further publication of the advertisement, claiming a violation of freedom of the press. The Federal Constitutional Court was unconvinced. It ruled that the protection of Article 5 (1) extended to the expression of opinions for commercial purposes and to “business advertising that expresses a value judgment and contributes to the formation of opinions.”95 The pictures, said the Court, “illustrate general injustices (environmental pollution, child labor, exclusion of hiv-infected persons) and thus contain at the same time a negative value judgment on socially and politically relevant questions.”96 The Court held that the Federal Court of Justice had underestimated the significance of freedom of the press in its efforts to enforce a general law to protect competition in the market place. Right to Assemble and Demonstrate as Aspects of Freedom of Speech. As the Holocaust Denial Case illustrates, freedom of speech is closely associated with the right of “all Germans” to “assemble peacefully and unarmed without prior notification or permission” (Article 8 (1)). In the well-known Brokdorf Demonstration Case (1985), the

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Constitutional Court declared that freedom of assembly “is among the indispensable functional elements of a democratic society.”97 Brokdorf Demonstration is to freedom of assembly what the Lüth Case is to freedom of speech. The former affi rmed that demonstrations involve “diverse forms of common action [and] nonverbal forms of expression,” derivative of the right to shape public opinion and actively to participate in the political process. Equally important, said the senate, freedom of assembly, like other aspects of speech, contributes to the development of the human personality. Brokdorf Demonstration arose out of an effort by a number of ecological and peace groups to stage a massive outdoor demonstration against the continued construction of a nuclear power plant near the town of Brokdorf in northern Germany. Between fi ft y thousand and one hundred thousand protestors ignored a ban on demonstrating in the vicinity of the atomic plant. They assembled peaceably, as the organized peace groups intended, although the behavior of certain “autonomous groups” spilled over into violence. Federal law requires a permit for such demonstrations and authorizes local officials to regulate them in the interest of public safety and security.98 In this instance, officials granted permits but confi ned the demonstration to a relatively restricted area some distance away from the power station. Administrative courts of appeal reinstated the orders after regional administrative courts overturned them, whereupon individual demonstrators fi led constitutional complaints against the decisions of the Lower Saxony and Schleswig-Holstein Higher Administrative Courts. They challenged the validity of the notification requirements under federal law as well as conditions that local officials had attached to the requested permits. The Constitutional Court’s First Senate sustained the federal statute but invalidated the decisions of the Higher Administrative Courts. While underscoring the significance of the individual and collective right to demonstrate in a liberal democracy, the senate noted that, in the case of outdoor demonstrations involving thousands of persons, local officials may impose reasonable regulations designed to balance the freedom to demonstrate against the public need for peace and security. The Higher Administrative Courts, however, had violated Article 8 (1) in conjunction with the constitutional state principle (Rechtsstaat) by their failure to examine independently, as required by the Administrative Procedure Act (Verwaltungsprozessordnung), dangers posed by the demonstration. The fact that a few small groups may cause violence, said the senate, may not be used as an excuse to hold down the size of a demonstration or to dampen the desire to demonstrate. In short, the Higher Administrative Courts had not attached the proper weight to the values of Article 8 (1).99 One year later, in the well-known Mutlangen Demonstration Case (1986),100 the Court reaffi rmed the core of its Brokdorf Demonstration judgment. Mutlangen Demonstration involved individuals and groups convicted of staging sit-down demonstrations that blocked traffic to and from various military installations. All were convicted of using “unlawful force” in coercing others “to some type of action, acquiescence, or forbearance” (§ 240, Penal Code). These blockades, however, were nonviolent, of

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short duration, and intended to convey a message of protest against a perilous arms race. In general, blockades of this kind merit the protection of Article 8. “Freedom of assembly,” said the First Senate, “basically includes the choice of the type of event and its location [citing Brokdorf Demonstration], including the right to share in the use of the public streets.”101 Yet outdoor assemblies, particularly those that obstruct traffic, remain subject to regulation in the interest of public safety. The First Senate unanimously agreed that the sit-down actions under review—those involving passive resistance—may be defi ned as “unlawful” if, as § 240 of the Penal Code reads, “the application of force or threat of great discomfort for the intended purpose can be seen as reprehensible.” The specific constitutional issue before the Court was whether the statute adequately defi ned the elements of a crime consistent with Article 103 (2) of the Basic Law (requiring that a punishable act be clearly defi ned in advance of its commission) and whether the courts, as opposed to the legislature, may specify the meaning of ambiguous language in a criminal law. On this question, the senate divided four to four, resulting (under the Court’s internal rules of decision) in sustaining eight of the nine convictions challenged under Article 8. The remaining case was remanded to the Higher Regional Court, which would have to decide whether blocking the roadway rose to the level of “reprehensible coercion.” The question was whether a peaceful demonstration causing public inconvenience but motivated by conscientious opposition to the arms race could be characterized as “reprehensible” or “coercive.” Also meriting notice is the Assembly Dispersal Case (1991).102 It involved a person whom the police excluded, along with thirty to forty other persons, from participating in an indoor meeting of the Republican (Republikaner) Party, whose leader and principal speaker was labeled by the intruders as “an old Nazi disguised as a ‘Republican.’ ” A regional administrative court sustained the police action because the intruders intended to interrupt the meeting and thus prevent it from taking place. In accepting the constitutional complaint against the decision the First Senate declared that “freedom of assembly protects from state encroachments not only those participants who approve of the assembly’s goals or the opinions presented there, but also those who are critical of or opposed to them and who wish to express this at the assembly.”103 But the Court ruled against the complainant because, in this instance, he had sought to stop the assembly altogether, thus interfering with the very purpose of the right to assemble, namely to ensure communication among participants. Actions designed to interfere with such communication or to stop the peaceful protest against the message delivered at an open meeting does not fall within the protective scope of Article 8 (1). Finally, the Frankfurt Airport Demonstration Case (2011) advances a German equivalent of the American “public forum” doctrine. The Frankfurt am Main Airport—one of the world’s busiest air-hubs—is an enterprise organized under private law in which public authority has a controlling influence. The case arose in response to a constitutional complaint against an ordinary court judgment upholding the airport’s ban on the distribution of leaflets that expressed opposition to the

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deportation of foreigners. The leaflet denounced the airport for cooperating with private airlines in deportation proceedings. In ruling that the ordinary court’s judgment violated the complainant’s right to assembly—along with the right to freedom of speech—under Article 8 (1) of the Basic Law, the senate distinguished the airport from private property. Like streets and other public spaces, declared the senate, the airport plays a vital role in communication. The senate described Frankfurt’s airport as an “open communication network.”104 In short, the Court ruled that the airport is a legitimate forum for public discussion. In this instance, too, the senate found that the ban on leafleting was clearly disproportionate to any safety or other public interest that the airport may have sought to advance.

freedom of the press and broadcasting General Principles. Several cases featured and discussed in this and the previous chapter focused on the limits that the dignity and personality clauses of Articles 1 and 2 respectively have imposed on the freedoms of the press and broadcasting. This section, by contrast, emphasizes aspects of these freedoms under the speech provisions of Article 5 (1), aspects that include the rights of both speakers and listeners. As the Constitutional Court has said time and again, the right to a free press, like the freedom to broadcast, is a separate and independent freedom under Article 5 (1). “The basic right to freedom of the press,” said the Court in an early case, “is more than a subcategory of the right to express and disseminate one’s opinion.” It also guarantees the “institutional independence” of the press, “an [institutional] freedom that extends from the acquisition of information to the dissemination of news and opinion.”105 As with speech generally, this right contains both subjective and objective elements. Its subjectivity protects journalists and publishers against governmental interference with the collection and dissemination of news and opinion, whereas its objectivity requires their regulation in the public interest. In par ticu lar, its character as an objective fundamental norm imposes on the state a duty to protect and promote the press as a whole. Th is duty does not require the state to support the press, but it does mean that the press can be regulated to ensure that it plays its proper public role in Germany’s political democracy, namely, to ensure the expression of diverse opinions—about which the state, in turn, is required to be neutral— and to provide readers with the information they need for the exercise of responsible citizenship. Th is link between freedom of the press and citizenship, as we have seen, is a theme that runs through much of the Court’s free speech jurisprudence. The Court fi nds this link between speech and citizenship embodied in the actual words of Article 5 (1), which affi rms the right of everyone to “freely to express and disseminate his opinion in speech, writing, and pictures and to inform himself without hindrance from generally accessible sources” (emphasis added). For example, in the Third Broadcasting Case, featured below, the First Senate reasserted its view that Article 5 (1) was designed to ensure the “free formation of individual and public opinion,”

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a duty that received the Court’s endorsement again in the Federal Postal Service Case (1989).106 In Postal Service the Court sustained an administrative regulation offering reduced postal rates to newspapers and periodicals published with the “object of informing the public on daily events or on topical or technical questions” but not to those that exclusively advance commercial interests or the commercial interests of par ticu lar businesses. “Press organs in which the expression of opinions and information take second place to non-journalistic commercial ends,” remarked the Court, “are by their intention not directed primarily at making a contribution to the formation of opinion.”107 The Spiegel Case is as defi ning an opinion in Germany’s free press jurisprudence as Lüth was seminal for freedom of speech generally. Spiegel is also prominent for the dramatic and controversial setting from which it erupted.108 It commands our attention too because it represents the fi rst reported opinion in which the Constitutional Court was openly split on the merits of a controversy. Half of the justices ruled that there was probable cause for the original proceedings against the magazine and hence no violation of a free press, while the other half held that freedom of the press had been violated. In these circumstances, according to the fcca (§ 15 (2)), the Federal Constitutional Court may not declare an infringement of the Basic Law. The effect of the decision, therefore, was to sustain the Federal Court of Justice’s decision to dismiss the case for lack of evidence. The unprecedented publication of both sets of views in this case laid the basis for the Court’s eventual adoption of personalized dissenting opinions.109 The justices were, however, unanimous with respect to the general principles governing the role of the press in the German polity. 8.10 Spiegel Case (1966) 20 BVerfGE 162 [Late at night on 26 October 1962, squads of West German federal and state policemen mounted a coordinated raid on the premises of the popu lar weekly news magazine Der Spiegel. The magazine’s editors were arrested and boxes of papers and documents were carted away to police headquarters. Th e arrest and seizure followed the publication of Der Spiegel’s cover story on a nato exercise designed to underscore West Germany’s military weakness and to attack Defense Minister Franz Josef Strauss’s attempt to equip the German army with tactical atomic weapons. The story included a detailed account of nato’s maneuvers, the lackluster per for mance of German troops, and the military plans of both nato and West Germany. The editors were charged with knowingly and willfully disclosing state secrets and conspiring to expose secret information from the Ministry of Defense. After three years of legal skirmishing, a panel of the Federal Court of Justice dismissed the charges against the defendants for lack of evidence. The editors then fi led constitutional complaints with the Federal Constitutional Court,

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claiming that the original search and arrest warrants authorized by the courts, together with the ensuing investigative proceedings, violated Article 5 and the constitutional state principle. The complainants did not directly challenge the validity of the treason statutes under which they were charged. They claimed instead that the “mosaic” theory of treason read into the statutes by the government confl icted with Article 5. As it turned out, there was no proof that classified military secrets had been divulged. But it was presumptively possible at the time to commit treason in Germany by taking fragments of information found in widely accessible places, including previously published material, and piecing them together in such a way as to present a coherent picture of military strategy that would be useful to the enemy and dangerous to the existence of the Federal Republic.]

∂

Judgment of the First Senate. . . . C. 1. A free press, untrammeled by governmental control and censorship, is an essential element of a liberal state; a free, politically active, regularly published press is particularly indispensable in a modern democracy. If citizens are to make political decisions, they must be thoroughly informed; they must also be acquainted with the opinions of others in order to weigh alternative courses of action. The press enlivens this ongoing discussion; it supplies information and takes positions, and thereby orients public debate. The press articulates public opinion and clarifies public issues, facilitating the citizen’s judgment. Public opinion expresses itself within the press; arguments are clarified by assertion and counterassertion, gain distinct contours, and make it easier for the citizen to come to a decision. In a representative democracy, the press is located as a constant intermediary and control organ between the people and their elected representatives in parliament and government. It critically summarizes the opinions and demands that incessantly crop up in society and its groups, gives them a forum for discussion, and delivers them to the politically active organs of the state, which in this manner are constantly able to measure their decisions, even in individual issues of day-to-day politics, against the standard of the views actually held among people. Th is “public task” of the press is important; it cannot be fulfi lled by established governmental authority. Publishing companies must be able to organize freely within the social sphere. They operate according to the principles of the free market and in the organizational form of private enterprise. They compete intellectually and economical ly with other publishing enterprises, a process in which the state must not intervene. 2. The function of a free press in the democratic state corresponds to its legal position under the Basic Law. Article 5 guarantees freedom of the press. The location of the guarantee within the system of the Basic Law, together with the traditional meaning of this guarantee, underscores the subjective character of the right. Th is

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means that persons and companies are free to function without official interference. The subjective aspect of this right confers upon the press, in certain respects, a favored legal position. Freedom of the press also has an objective side (i.e., it guarantees the existence of the institution of a “free press”). Independent of the personal rights of individuals, the state is duty-bound in all areas of the legal system to respect the principle of a free press wherever a regulation might concern it. The freedom to engage in a publishing enterprise, free access to the journalistic profession, and the duty of public agencies to divulge information are all manifestations of this principle. In addition, the state may have a positive duty to take action against the development of monopolies of opinion. The independence of the press guaranteed by Article 5 of the Basic Law extends from the accumulation of information to the dissemination of news and opinion. Thus, the protection of the relationship of trust between the press and its private infor mants is an integral part of a free press. Because the press cannot function without private sources of information, this protection is indispensable. Sources of information will flow freely only when editorial privilege is respected. 3. Freedom of the press carries with it the possibility of confl ict with other values also protected by the Basic Law; it can come into confl ict with the rights of individuals, groups, or the community in general. The Basic Law gives the legal system, to which the press is also subject, the task of regulating this confl ict; it must respect the legal rights and interests of others as well as of the general public whenever those interests are at least as worthy of protection as those of the press. The privileged position of the members of the press is granted them solely because of their function and only so far as this function reaches. It is not a question of personal privilege; freeing individuals from generally valid norms is a measure that must be justified against this background. Reference to the legal order is made in Article 5 (2) of the Basic Law, according to which the freedom of the press is limited by the general laws. Th is Court, in its decision of 15 January 1958, addressed itself to the relationship between freedom of opinion and general laws. We said that although freedom of opinion may be restricted by the general laws, these laws themselves are to be interpreted in the light of the concept of freedom of opinion, and hence that this restriction is itself correspondingly restricted. These principles are also valid with respect to freedom of the press; in fact, they gain par ticu lar significance here because statements in the press as a rule are intended to contribute to the formation of public opinion and therefore carry a presumption of permissibility, even if they infringe on other people’s rights. . . . 4. The provisions on treason (§§ 99 and 110, Penal Code) are “general laws” within the meaning of Article 5 (2) of the Basic Law. They are constitutionally valid legal provisions. . . . The protection of the Federal Republic from its external enemies— the purpose of the treason laws—confl icts with the notion of a free press when the press publishes facts, subject matter, or observations whose secrecy would serve the national defense. Courts cannot summarily resolve this confl ict by adhering to a policy of prior censorship with the argument that a free press presupposes the existence of the Federal Republic and would also perish if the nation were destroyed. The

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free democratic order . . . also requires a vigilant press willing to criticize the affairs of state, including the structure and policy of the military. From this point of view, the necessity of military secrecy for state security and the freedom of the press are not mutually exclusive principles. Rather, they are complementary, in that both are meant to preserve the Federal Republic—as this is properly to be understood. It is with an eye to this goal that courts are to resolve confl icts between these two necessities. Therefore courts must consider the significance of the disclosed facts for the potential enemy as well as for the formation of public opinion. They must balance the dangers to the security of the country that may arise from the publication against the need to be informed of important events, even those in the field of national defense. In this sense, Article 5 (1) of the Basic Law exercises a basic limiting influence on the construction of the penal statute. [The remainder of the opinion examines the facts and circumstances surrounding the issuance of the search and arrest warrants. Four justices concluded that on the basis of all the evidence, no unconstitutional action had been taken against the complainants. The other four justices concluded that the facts did not constitutionally warrant the judicial and investigative proceedings against Der Spiegel. The fi rst set of justices constituted the effective “majority,” however, because an even split cannot lead to a fi nding that the Basic Law has been violated. The following extract is from the opinion of the “dissenting” justices. The opinion is largely based on the so-called mosaic theory of treason. The four justices on the prevailing side refused to concede that the seizure and the investigation of Der Spiegel were in fact based on any such theory.] 1. . . . One must distinguish between the publication of state secrets by the press and a case of “ordinary treason” by agents or spies. The military sphere cannot be removed from that free and public discussion so vital to a democratic system of government. . . . The discussion of the government’s basic defense policy, the strength of the country’s armed forces, the general effectiveness or ineffectiveness of the measures taken to ensure defensive capability, and the proper application of public funds for military purposes is a legitimate function of the press. Its duty is to inform the public about these issues and provide the facts necessary for each citizen to make up his or her mind about these issues. Obviously, this does not include the publication of all details; nevertheless, the boundary between the permissible and the impermissible in the publication of military facts . . . must be drawn more liberally when press reports are concerned than in ordinary cases of treason. . . . Hence the interpretation of § 99 (1) of the Penal Code, which has come to be known as the mosaic theory, is basically inapplicable to treason by publication. According to this theory, treason takes place when, through the systematic gathering and compilation of facts either commonly known or available from generally accessible sources, a person gives a full and accurate account of some important matter pertaining to national defense. The compilation of facts constitutes treason because the total picture creates new information which is viewed as a separate state secret.

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Th is interpretation arose in response to acts of treason committed by secret agents and may well have its use in that context. . . . But the application of this theory to treason by publication would excessively limit the role of the press, for the press’s normal task is to gather and organize the news into a coherent account of a given event or phenomenon or to analyze single pieces of information, assemble them into a pattern, and then draw conclusions. The prior disclosure of such facts excludes as a matter of principle the possibility of treason by publication. If this were not the case, the ability of the press to inform the public about essential questions of national defense and to stimulate public discussion about these matters would be decidedly inhibited. . . . 2. The Spiegel article contributes to the discussion, already familiar to the public, concerning two contrary defense concepts; it contributes especially to the debate between those who would equip the army with atomic weapons and those who would strengthen it with conventional weapons. . . . In applying these principles of construction, we must consider fi rst whether the published military facts were already current in public discussion and whether they were known or generally accessible, either individually or in connection with other publications. . . . Th is examination, required under Article 5 (1) [2], was not carried out when the search warrant was granted. The investigating judge, who was not an expert in military matters, found the facts sufficient to justify the search on the basis of the opinion of Defense Ministry officials. . . . By relying exclusively on the opinion of the Defense Ministry, the investigative judge failed to construe § 99 of the Penal Code in the light of the radiating effect of Article 5 (1) [2]. . . . The court uncritically accepted the fi ndings of the Defense Ministry. . . . Similarly, the Federal Court of Justice’s decree of 31 October 1963 assumes the validity of these fi ndings in the absence of any corroborating evidence and of any examination of the effect of the Basic Law.

∂

Mosaic Theory and Perils of Balancing. Spiegel reaffi rmed the validity of the balancing test set forth in Lüth.110 On this issue the Constitutional Court was unanimous. Yet, curiously, in Spiegel the Court did not employ a balancing analysis. The “majority”—the four justices who found no constitutional violation in the original proceedings against Der Spiegel—rested on a point of law: They conceded that a newspaper or magazine, given its special institutional role in a liberal democracy, cannot be suppressed under the mosaic theory of treason. (By framing their position in this way, incidentally, the justices seemed to imply that the magazine might have been guilty of treason under some other interpretation of the statute.) The group announced that, on the facts of the case, the ordinary courts did not predicate the original search-andseizure proceedings on the mosaic theory. As a consequence, the Court’s prevailing justices felt no need to engage in a balancing process or to rule on the constitutionality of the mosaic theory. Nor did they find the ordinary courts in error—most notably the Federal Court of Justice—for their failure to engage in the balancing analysis required by Lüth. One critic of Spiegel, Herbert Bernstein, commented:

508 chapter eight It is submitted that the Spiegel case may well be read to mark a serious crisis in the development of the doctrine enunciated in the Lüth case a decade ago. Critics of the Federal Constitutional Court have repeatedly called attention to the well-nigh complete absence of guidelines for the balancing-of-interests process that Lüth requires the ordinary courts to follow. The Spiegel case will lend further support to this criticism. . . . Even the most sympathetic observer of the Court cannot escape the conclusion that it has still a long way to go in order to achieve a more structured application of the Lüth test. Unless this is accomplished, the sanctuary that the Basic Law is supposed to have created for free speech and a free press continues to suffer from poorly defi ned boundaries.111

Rights and Responsibilities of the Press. Spiegel is important for underscoring the objective character of the right to a free press. Article 5 not only incorporates a subjective right of the press against governmental encroachment but also confers on the press an affi rmative constitutional right to institutional autonomy and independence. The press enjoys this special status under the Basic Law because it performs a critical “public role” in the life of a liberal democracy.112 Its primary purposes are to collect information, distribute the news, and contribute to the development of public opinion. Indeed, it is the government’s responsibility to legislate norms designed to maintain and facilitate these institutional functions. The First Broadcasting Case, the fi rst of two cases featured below in the subsection on broadcasting, suggests that the legislature may in certain instances even be obliged to protect the press from societal forces or pressures likely to endanger its freedom. In the Courtroom Television Case (2001), however, the First Senate sustained a law barring live television broadcasts of court trials, essentially holding that in this context the rights of individual defendants are constitutionally more important than the rights of the broadcasting industry.113 Each of the German Länder, including the five states of the old German Democratic Republic, has enacted laws defi ning the rights and duties of the press.114 Many of these laws have codified a number of the Constitutional Court’s holdings, including those that protect editorial secrecy and the right of journalists not to disclose, even in criminal proceedings, their sources of information.115 Hamburg’s Press Act, some of whose provisions would be constitutionally suspect in the United States, exemplifies the German legal framework on the freedom of the press. It affi rms the principle of a free press by prohibiting licensing or equivalent measures; it defi nes the public role of the press, emphasizing its responsibility to procure and disseminate the news as well as to voice its opinion on public policy; it imposes a correlative duty on the part of public officials to supply the press with information of value to it in the fulfi llment of its public role; it obligates the press in turn to check the content, origin, and truth of all the news prior to its publication; it sets forth the conditions under which publishers and editors are to grant citizens a right of reply; and fi nally, it defi nes in great detail the responsibility of the press under the Penal Code.116 In addition, and in the interest of journalistic fairness, the German Press Council has adopted a set of guidelines for editors and publishers. One such guideline reads:

Fr eedom of Speech, Pr ess, and Art 509

“The publication of specific news and information in word and picture must be carefully checked in respect of accuracy in the light of existing circumstances. Its sense must not be distorted or falsified by editing, title, or picture captions. Documents must be accurately reproduced. . . . When reproducing symbolic photographs, it must be clear from the caption that these are not documentary pictures.”117 Other guidelines deal with the correction of publishing errors; the publication of names and photographs; reports of suicides, accidents, crimes, and threats of violence; and the publication of the names and photographs of criminals and accused persons. Although promulgated by an association of publishers and journalists, the guidelines adhere to the spirit of the laws governing the press as well as the admonitions of the Federal Constitutional Court. The Press and Internal Security. As noted earlier, Spiegel sustained in an evenly divided opinion a search and seizure order for Der Spiegel’s premises. Since then, the Constitutional Court has been more careful in distinguishing between conduct that threatens democracy and criticism of Germany’s constitutional democracy. In the Junge Freiheit Case (2005), for example, the First Senate found that North Rhine– Westphalia’s Office for the Protection of the Constitution “encroached” upon freedom of the press by publishing a report characterizing a right-wing magazine (Junge Freiheit) as anticonstitutional and anti-Semitic. Although noting that “freedom of the press is not guaranteed without restriction,” the senate concluded that the “mere criticism of constitutional values is not a sufficient cause to affi rm a tendency hostile to the constitution” within the meaning of the Land’s Protection of the Constitution Act.118 The Court pointed out that “in the spectrum of the right wing, Junge Freiheit publishes articles of greatly differing authors with different concerns,” including “articles by prominent conservative politicians and writers who are not under suspicion of tendencies hostile to the constitution.” With this decision, the Court reaffi rmed the press’s important public role.119 The Cicero Case (2007) was even more notable for its vindication of press freedom. Like Der Spiegel, the political magazine Cicero, based in Potsdam, was accused of revealing state secrets in violation of § 352b of the Penal Code. A freelance journalist had published an article about Abu Musab al-Zarqawi, an acknowledged terrorist, in the course of which he referred to an internal memorandum of the Federal Criminal Police that had been classified as “top secret.” The memorandum, among other things, contained a list of telephone numbers believed to have been utilized by al-Zarqawi. A court-ordered search warrant resulted in a search of the publisher’s premises, together with the seizure of various data-storage devices, including cd-roms, e-mails, and a backup copy of the hard drive used to write the article. The First Senate sustained the publisher’s constitutional complaint against the search-and-seizure order, holding that it interfered with the principles of journalistic integrity and editorial trust. The Court was especially emphatic in underscoring the importance of protecting journalistic sources. Pointing out that there are more suitable legal mechanisms available to the police for exposing the release of

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state secrets, the senate noted that search-and-seizure orders against press establishments are unconstitutional when their purpose is the exposure of a journalist’s in for mants.120 In the Telecommunications Case (2003), by contrast, the First Senate upheld court orders for the disclosure of mobile phone conversations between investigative reporters and suspects accused respectively of massive credit fraud and terrorist activity. The disclosure orders were issued over the objection that they infringed the right to journalistic freedom secured by Article 5 (1) and the right to privacy of telecommunications protected by Article 10 (1). While recognizing the gravity of such courtordered disclosures, the Court nonetheless found that the orders had been issued on the basis of compelling evidence and, in addition, had satisfied a stringent test of proportionality. Given the circumstances surrounding these cases, said the Court, “there is no constitutional reason to give priority to the media’s interest in researching events over the interest in the prosecution of crimes.”121 Broadcasting: A Public Ser vice Medium. Cicero recapitulated the central teaching of the Federal Constitutional Court’s case law on the press and broadcasting. “The freedom of the media is a constituent part of the free democratic basic order. Accordingly,” declared the First Senate, “a free press and a free broadcasting system are of par ticu lar significance in a liberal state.”122 Broadcasting, like the press, is an institutional right. For purposes of regulating rights of communication, however, the Court has distinguished between broadcasting and the print media. When the Basic Law’s framers provided expressly for “freedom of reporting by means of broadcasting and fi lm,” some of them anticipated the increasingly important role the electronic media would play in an information-oriented society. In distinguishing between press and broadcasting, the Court has noted that the latter is not as directly founded as the former on principles of personality and dignity. Relatedly, broadcasting does not embrace an individual right to set up a radio or television station. As the Court has said on innumerable occasions, broadcasting as an institutional right is a “serving freedom.” In short, the Court found in one of its major cases that “broadcasting serves free individuals and the public formation of opinion.”123 Because broadcasting is designed primarily to “serve” the interests of the public rather than those of the broadcasters, it is subject to special regulations that do not apply to the print media. The First Broadcasting Case lays down some of the parameters of state regulation.124 8.11 First Broadcasting Case (1961) 12 BVerfGE 205 [First Broadcasting was featured in Chapter 3 regarding federalism: In the federalLand dispute initiated by the city-state of Hamburg, the Constitutional Court ruled that the federation had no authority under the Basic Law to establish a national television station. Chancellor Adenauer’s decree to set up a national television station violated the reserved powers of the Länder. In the following passages,

Fr eedom of Speech, Pr ess, and Art 511

the Court considers issues arising under the press and broadcasting provisions of Article 5.]

∂

Judgment of the Second Senate. . . . E. III. Article 5 contains more than just the citizen’s individual, basic right to a sphere of liberty free from state interference in which he or she can unrestrictedly express his or her opinions. In par tic u lar, Article 5 (1) [2] guarantees the institutional autonomy of the press—from the procurement of information to the dissemination of news and opinions. The state would encroach upon this guarantee if it directly or indirectly sought either to regulate or to control the press or some part of it. . . . We cannot appreciate the significance that Article 5 has for broadcasting without considering the aforementioned statements concerning the content of Article 5. Notwithstanding the specific status of the broadcasting system, broadcasting, like the press, is one of the indispensable means of modern mass communications that influence and help to shape public opinion. Broadcasting is more than just a “medium” for the formation of public opinion; it is a critical factor in the formation of public opinion. Its role in forming public opinion is by no means limited to news programs, political commentary, or series about past, present, or future political problems; it also embraces radio plays, musical presentations, the transmission of cabaret shows, and even the way scenes are presented within a program. . . . These observations clearly illustrate that . . . institutional freedom is no less important for broadcasting than for the press. Th is is unambiguously expressed in Article 5 (1) [2], which grants “freedom of reporting by broadcasting and fi lm” alongside freedom of the press. Th is does not, however, answer the question as to the way in which this freedom of broadcasting in general and that of reporting by broadcasting in par ticu lar are to be ensured so as to satisfy the requirements of Article 5. It is here that broadcasting’s special status becomes important and through which it differs from the press. To be sure, it is incorrect to assume that newspapers, newspaper publishing houses, and printing houses can be established in unlimited numbers. But the difference between press and broadcasting is that within the German press as a whole, there are a relatively large number of independent publications that compete with one another in their political, ideological, and religious views, whereas in the area of broadcasting both technical reasons and the extremely large fi nancial investment required for broadcasting programs means that the number of such broadcasters must remain relatively small. Because broadcasting is unique, stations must take special precautions to realize and maintain the broadcasting freedom afforded by Article 5. The principle according to which the existing broadcasting facilities were structured provides one way of accomplishing this purpose: First, a statute creates a legal entity under public law that is responsible for producing programs free of state influence or at most subject to limited state supervision; second, the entity’s governing boards

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are actually composed of representatives from all significant political, philosophical, and social groups, and they have the power to supervise those in charge of programming and to ensure compliance with statutory provisions requiring that an appropriate proportion of interested persons be involved in programming. Under present technical conditions, it does not contravene Article 5 to grant an institution a broadcasting monopoly at the state level if it has these reins on its power, but Article 5 by no means mandates the establishment of such a monopoly. In order to ensure freedom of broadcasting, however, Article 5 does not require that broadcasting stations be set up by specified state and federal laws. In par ticu lar, the federal constitution does not require that broadcasters may only be public corporations. Private companies may also operate broadcasting stations provided their form of organization offers adequate assurance that all socially relevant interests would have their say in a manner similar to that of public corporations and that freedom of reporting remains unimpaired. . . . Article 5 of the Basic Law requires that this modern instrument of opinion formation should be neither at the mercy of the state nor of one social group. Broadcasting companies must therefore be organized to allow all interests worthy of consideration to exert influence on their governing boards and to express themselves in the overall programming. They must be organized so that binding guidelines ensure that programs contain a minimum of balance, objectivity, and mutual respect. Th is can only be ensured when these organizational and substantive principles are generally made binding by law. Article 5 of the Basic Law therefore requires the enactment of such laws. It may not be inferred from Article 5 that broadcasters necessarily be the owners of transmission facilities or endowed with control over them and, as broadcasters, necessarily have the right to operate these facilities. . . . On the other hand, Article 5 precludes the state from directly or indirectly dominating a public or private company that broadcasts programs. The German Television Company, Ltd., founded on 25 July 1960, by notarized contract with the purpose of “broadcasting radio and television programs that will convey a comprehensive picture of Germany both abroad and at home,” consisted originally of the Federal Republic and Federal Minister Schaeffer as partners. Schaeffer’s departure places . . . control solely in the hands of the Federal Republic. The company is totally under state control and is thus an instrument of the Federation. . . . Accordingly, both the founding and existence of the German Television Company violate Article 5 of the Basic Law.

∂

First Broadcasting has been described as the “Magna Carta of German television.”125 It underscored the Constitutional Court’s determination to extend the same freedom to broadcasting that it had to newspapers and magazines. But the Court noted that the special situation of broadcasting, in terms of frequency, scarcity, and expense, requires special legislative attention. In the early years of the Federal Republic this seemed to imply a regulatory structure requiring pluralistic representation on

Fr eedom of Speech, Pr ess, and Art 513

the governing boards of broadcasting stations. Membership on such boards was to include all socially relevant groups such as representatives of political parties, religious denominations, trade unions, employer groups, educational institutions, and other professional and communal associations.126 And while First Broadcasting did not rule out the possibility of private radio and television stations, provided they were carefully monitored to serve the public interest, it placed the Constitutional Court’s stamp of approval on policies favoring the public monopoly of the broadcast media, a system very different from the market-driven paradigm dominant in the United States. The original creation in postwar Germany of a public nonprofit broadcast corporation was designed to keep the electronic media free of state control and out of the hands of private economic interests. As a consequence, the public broadcasting corporations were not supported by state funds; instead, they were fi nanced largely through fees charged to television and radio users. Viewed as an inviting source of tax revenue, these fees were initially taxed as business income. The tax was successfully challenged in the Second Broadcasting Case (1971).127 The Federal Constitutional Court held that the broadcasting corporations were public institutions, not commercial enterprises, and thus beyond the taxing power of federal and Land governments.128 The dissenting opinions, while arguing that the tax should be sustained as a legitimate levy for ser vices rendered, joined the majority in underscoring the public character of broadcasting.129 A Dual Broadcasting System. With the emergence of satellite television, cable networks, and other developments in communication technology, a fierce debate broke out in Germany over the propriety and even the constitutionality of an exclusively state-chartered public-law broadcasting system. For one thing, the development of cable television and other new media technology weakened arguments in favor of state control. Other arguments questioned whether the internal pluralistic structure of existing carriers really succeeded in producing a diversity of viewpoints reflective of the wider society. Critics pointed to what they regarded as the excessive influence of political parties in the current structure of representation, the absence of certain socially relevant groups from this structure, and the serious problem of determining which social groups are entitled to representation. Many persons contended that private radio and television stations would offer the German public a broader range of social and political views and that, in any event, competition from private carriers would expand and enliven the arena of public debate. But as the Third Broadcasting Case and the subsequent broadcasting cases discussed below illustrate, the Federal Constitutional Court continued to hold the industry to the public ser vice principles set forth in First Broadcasting.130

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8.12 Th ird Broadcasting Case (1981) 57 BVerfGE 295 [In 1967 Saarland became the fi rst state in the Federal Republic to provide for the licensing of privately owned radio stations. Under an amendment to its broadcasting law, the Saarland legislature permitted the organization of a private station known as Freier Rundfunk AG Free Broadcasting, Inc.). But, having been denied a license to broadcast by administrative authorities, the station sued. On appeal Saarland’s administrative court referred the case to the Federal Constitutional Court. The statute subjected private broadcasters to the same principles governing public broadcasting stations, including pluralistic representation on their governing boards. A private station was required to be supervised by a thirteen-member advisory board consisting of Catholic and Protestant representatives and members of other social groups. But the statute neither specified the advisory board’s duties nor identified the groups from which other board members were to be recruited. In this concrete judicial review case, the Constitutional Court was asked to review the validity of these provisions. The case presented the Court with another opportunity to reinforce its earlier holding while laying down rules for private market-oriented broadcasting.]

∂

Judgment of the First Senate. . . . C. II. Article 5 (1) [2] requires the state to regulate private broadcasting. Such regulation is needed to guarantee broadcasting freedom. 1. The effective exercise of the liberty of broadcasting constitutionally guaranteed in Article 5 (1) [2] requires that the state pass statutes to flesh out the contours of this right. Th is conclusion results from the purpose and character of the guarantee. . . . a. Broadcasting freedom serves the same purpose as do all of the guarantees of Article 5 (1): to secure the freedom of the individual to influence the free formation of individual and public opinion in the comprehensive sense . . . of being able to communicate all information and opinions. The free formation of opinions occurs within a process of communication. It implies, on the one hand, the freedom to express and disseminate an opinion and, on the other, the freedom to hear opinions and be informed. By treating the freedoms of expression and dissemination of opinion as well as the freedom of information as basic rights, Article 5 (1) also seeks to safeguard the integrity of this process. To this extent, it creates individual rights . . . as well as an objective principle that is part of the entire legal order. Broadcasting is both a “medium” and a “factor” in this constitutionally protected process of free opinion formation. Accordingly, broadcasting liberty primarily serves freedom of opinion formation in terms of subjective as well as objective law: Under the conditions of modern mass communication, broadcasting liberty necessarily

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supplements and reinforces freedom of opinion formation; it serves the function of guaranteeing free and comprehensive opinion formation through broadcasting. Th is function determines the character and the importance of broadcasting freedom: First, the free formation of individual and public opinion requires that broadcasting be free of governmental domination and influence. To this extent, broadcasting liberty, like the classic rights of freedom, has a defensive significance. But that is not sufficient to guarantee broadcasting freedom. For mere freedom from governmental influence does not by itself imply that the broadcasting industry can freely engage in the comprehensive shaping of opinion formation; defensive regulation alone cannot accomplish this task. Rather, the accomplishment of this task requires that a system be created to ensure that the diversity of existing opinions fi nds its greatest possible breadth and completeness through broadcasting, and that, as a consequence, comprehensive information will be offered to the public. In order to reach this goal the legislature must enact substantive, organizational, and procedural provisions designed to effectuate the function of broadcasting liberty and to secure what Article 5 (1) guarantees. . . . [In this part of the opinion the Court criticized the legislature’s failure to specify the conditions that would ensure that broadcasting freedom would be maintained and confl icting values or interests properly balanced. Neither administrative officials nor the broadcasters themselves can be entrusted with the task of guaranteeing the freedom of broadcasting. The policies governing the broadcast industry must be set forth in statutory form. To the argument that modern technology has undermined the older rationale governing the regulation of the broadcast media the Court responded as follows.] c. Even if the special situation caused by the shortage of transmitting frequencies and by the great expense of broadcasting production no longer exists, statutory regulation will still be necessary. Up to now the jurisprudence of the Federal Constitutional Court has presupposed the existence of this special situation; what the Court will do in the absence of this situation remains an open question. But even if this case should arise, the constitution would still require statutory regulation to safeguard the liberty of broadcasting. . . . Even if the previous limitations on broadcasting were to disappear, there would be no certainty that the unwritten laws of the marketplace would produce a selection of programs that would live up to the standards of broadcasting freedom. Certainly one can argue that the variety of programming offered to the public would then be similar to that now existing in the nationwide newspaper market. However, this is only a possibility. While the historical development of the press has resulted in a certain balance that is basically sufficient to guarantee that citizens continue to receive comprehensive information and can form opinions, one cannot assume that the same holds true for private broadcasting—at least, not at present. There is no assurance, however, that remedying the existing deficiency of “programming selection” . . . will enable all or at least a significant number of social groups and ideological movements

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to express their opinions; that is, there is no way of knowing whether a “market of opinions” will arise in which diverse opinions may be expressed without being edited. . . . We must confront the danger that private broadcasters might exclude opinions deserving of dissemination from the public opinion-forming process and that opinion holders in possession of broadcast frequencies and fi nancial resources might exert a dominant influence on the public opinion-making process. 2. b. . . . In any event, . . . the introduction of private broadcasting requires a statutory basis . . . to ensure that broadcasting is not controlled by any single group and that eligible groups will have the opportunity to be heard in the total programming. . . . To the extent that the legislature has decided to create a structure of “internal pluralism” within the broadcasting industry, . . . it must objectively determine, on the basis of the existing constellation of social forces, which groups are to be represented in its programming. The legislature may, however, choose to structure private broadcasting stations differently as long as it takes measures to ensure that the program selection corresponds to the existing diversity of opinion. . . . The statute must also regulate the content of administrative activity; it may not merely confi ne itself to setting forth general principles. Th is applies most particularly to standards governing the revocation of broadcasting licenses. . . .

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The First Senate found the Saarland statute deficient in several respects, including 1) its failure to specify the procedures private fi rms must follow in applying for a broadcasting license; 2) its lack of standards for determining the suitability of a private broadcast applicant; 3) its lack of procedures for handling multiple applications for private licenses; and, most importantly, 4) its failure to provide for full societal representation in the station’s governing structure. In the senate’s view, detailed legislation in each of these areas is constitutionally necessary to ensure that broadcasting stations, private and public, perform the public functions required of them under the prevailing interpretation of Article 5 (1). Once again, the senate rejected the argument that broadcast freedom under the Basic Law could be realized by a system of control powered or dominated by the “unwritten law of the marketplace.”131 Third Broadcasting reinforced, in the strongest possible terms, the senate’s earlier view that Article 5 (1) bars any interest group from having a monopoly over radio and television. For all these reasons, the Court explained, the state is obligated to produce a regulatory scheme that ensures that broadcasting will contribute to the formation of public opinion while simultaneously reflecting its diversity. By the early 1980s Germany’s dual broadcasting system included national and regional public television stations, numerous public radio stations, and a multitude of commercial radio and television stations (broadcast, cable, and satellite), all enterprises falling within the Länder’s jurisdiction over cultural affairs.132 Because most of these broadcasting systems are regional enterprises, transcending Land boundaries, interstate broadcasting treaties have laid down the basic regulatory framework for

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both public ser vice and commercial stations. Finally, after Germany’s reunification, this regulatory framework was set forth in the Inter-State Broadcast Treaty of 1991. The treaty is exceedingly detailed and constantly evolving.133 Among other regulations, it guarantees the existence and development of public ser vice broadcasting; enables commercial broadcasters to expand their programs and transmission facilities; governs the fi nancing of public and commercial broadcasting; establishes rules for advertising, including its spacing and duration; ensures adequate funding for public broadcasting; sets up independent advisory councils to secure the plurality and diversity in broadcasting; governs the allocation and use of transmission capacities; and specifies licensing and supervisory procedures. In addition, all broadcasters are urged to respect the moral and religious convictions of the population and to strengthen respect for life, freedom, and the opinions of others. These interstate treaties have largely codified the holdings of the Federal Constitutional Court before and after 1981. Broadcast Jurisprudence. The fi rst three broadcasting decisions show the extent to which the Federal Constitutional Court was prepared to supervise and even to insist on the detailed regulation of the German broadcasting industry. It might be noted that the Court’s intervention in this field is fully comparable to the directives it has imposed on campaign fi nancing, a subject discussed at length in Chapter 5. In any event, broadcast regulation continued to command the Court’s attention in the years following the Third Broadcasting Case, largely in response to the decision of Land governments to introduce private broadcasting, a movement strongly resisted by spd members of the Bundestag and by several public broadcasting stations. Most of the cases mentioned below were initiated by one or another of these petitioners. The Constitutional Court handed down seven major broadcasting decisions between 1986 and 2007. They were largely triggered by Land legislation designed to accommodate or limit the emergence of commercial broadcasting in Germany’s social market economy. In the Fourth Broadcasting Case (1986) the Court upheld Lower Saxony’s decision to experiment with private broadcasting and to allow commercial stations to adjust their structures and programs to market forces so long as the overall effect of both public and private broadcasting was one of multiplicity and balance.134 The Court regarded private broadcasting as a valued complement to, rather than a competitor of, the former. Th is dual system, said the Court, “may be regarded as a transitional stage on the way to a possible system of full external pluralism in which market forces would satisfy the constitutional requirements of freedom of expression.135 But the Court also noted, as it did repeatedly before and after Fourth Broadcasting, that market forces alone are insufficient to provide for the balanced programming required by Article 5 (1). The Court’s Fifth Broadcasting Case (1987) was equally historic. It struck Baden-Württemberg’s State Media Act for prohibiting public stations from soliciting advertising revenue from private sources while at the same time upholding specified limits on advertising by public stations in local markets. “The coexistence of public and private broadcasting,” said the Court, “will operate to

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stimulate and vitalize the total range of opinion offered in the country, thereby enhancing and extending the plurality of opinions.”136 In most of the remaining five cases, the Court continued to monitor the competition between public and private broadcasting, especially in the area of funding and advertising. The Sixth Broadcasting Case (1991) approved cooperative financing arrangements between private and public television stations,137 although in the Seventh Broadcasting Case (1992), Hesse’s advertising ban on its public station was upheld since the station could fulfi ll its mission without advertising income.138 The Court announced, however, that a mixed system of user fees and advertising income is permissible so long as the user fees charged to the public remain the main source of funding for public stations. In the Eighth Broadcasting Case (1994), often dubbed the “Cable Penny Case,” Bavarian television viewers challenged an interstate broadcasting pact that required a small portion of the user fee to be spent on fi nancing pi lot projects in commercially owned cable television on the ground that the “cable penny” was designed unconstitutionally to serve the commercial interests of private broadcasters. Although the First Senate sustained the validity of the “cable penny” as a legitimate effort to improve broadcasting as a whole, it also held that the scheme failed to meet constitutional standards because the fee imposed under the pact was “a purely political decision made by the heads of state governments and ratified by Länder parliaments,”139 thus imposing the threat of state influence over public broadcast programming. The senate strongly suggested that the autonomy of public broadcasters and the legitimate interests of viewers would be better served if user fee decisions were made by an independent body. The Ninth Broadcasting (2007) and Tenth Broadcasting (2007) cases, finally, reaffirmed the Constitutional Court’s insistence upon a nonpolitical and informationoriented broadcast system. Ninth Broadcasting overturned a public funding system that neglected to ensure that broadcast stations satisfy the need for program diversity and pluralism.140 In Tenth Broadcasting the First Senate once again struck a public broadcasting fee for violating the principle of broadcast freedom under Article 5 (1). Legislators had reduced a broadcast fee increase recommended by an expert commission because it was thought that the stations were capable of cutting back on their expenditures in a tight economy. In stiffly rebuking the Länder, the senate reaffi rmed its ruling in Eigth Broadcasting requiring a fee-setting procedure free of political influences. Tenth Broadcasting represented a ringing endorsement of public television. The senate emphasized that commercial television, dependent as it is on advertising, often appeals to the lowest common denominator and often fails to provide the full range of informational ser vices necessary for a responsible citizenry. The Court concluded that a pluralistic broadcast regime can only be secured by an appropriate level of state funding.141

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artistic and academic freedom The ancestry of the rights guaranteed in Article 5 (3) of the Basic Law can be traced to the Frankfurt Constitution of 1849. Heavily influenced by professors and intellectuals,142 the Frankfurt Constitution declared in Article 152 that “the teaching of art and science is free.” Article 142 of the Weimar Constitution reinforced this declaration: “The state guarantees the protection and support of research and scholarship.” Article 5 (3) of the Basic Law now proclaims that “arts and sciences, research and teaching shall be free,” with the proviso that “freedom of teaching shall not release any person from allegiance to the constitution.” These provisions express the traditional view of the German university as an autonomous institution of public life organized primarily to train an intellectual elite for ser vice to the state.143 Article 5 (3) has been the subject of considerable commentary and litigation in the Federal Republic.144 The litigation has arisen in various administrative tribunals and has raised issues ranging from whether, in the light of the objective nature of the right, artists or scholars are entitled to affi rmative state support of their activities, to whether, under the subjective aspect of the right, university professors can be forced out of their chairs when they reach the age of retirement. The commentators and courts seem united in their opinion that the state may not constitutionally use its power or influence to favor one art form or scientific endeavor over another, but it does have a positive duty to preserve an environment in which art and science can flourish. The prevailing constitutional view is that all plants in the garden of art and science must be given an equal chance to blossom.145 The posture of the state must also be one of neutrality toward competing notions of art. Yet, as the Mephisto Case demonstrates, this neutrality does not relieve the courts of the duty to distinguish between art and non-art in certain situations. 8.13 Mephisto Case (1971) 30 BVerfGE 173 [The Mephisto Case was also featured in Chapter 7 to illustrate the Constitutional Court’s conception of the human person when seen in tandem with the principle of dignity. It will be recalled that Mephisto arose out of a constitutional complaint directed against a judicial ruling restraining the publication of a satirical novel by Klaus Mann based on the career of his brother-in-law, a famous Faustian actor once popu lar with the Nazi elite. The actor’s adopted son sought the ban on the novel’s publication because it allegedly dishonored the good name and memory of the deceased actor. The extract below focuses on the claim—rejected by the Court—that the ban on the publication of the novel violated the Basic Law’s guarantee of artistic freedom.]

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Judgment of the First Senate. . . . C. III. . . . First, Article 5 (3) [1] contains an objective norm that determines values and regulates the relationship between the realm of art and the state. At the same time this provision guarantees every person active in this sphere an individual right to freedom. 1. . . . The essential characteristic of artistic activity is the artist’s free and creative shaping of impressions, experiences, and events for direct display through a specific language of shapes. . . . 2. . . . Even if the artist describes actual occurrences, this reality is “poeticized” in a work of art. The real event is detached from empirical historical reality and brought into a new context that is governed . . . by artistic rules of graphic description. The truthfulness of an individual event can and sometimes must be sacrificed to artistic uniformity. The essence and purpose of the basic right contained in Article 5 (3) [1] are to keep free from state interference those processes, modes of behavior, and decisions based on the inherent laws of art and that are determined by aesthetic considerations. If the process of artistic creation is to develop freely, then the state may not prescribe how an artist should encounter reality and describe this event. Only the artist can decide the rightness of his or her way of portraying reality. In this respect the guarantee of artistic freedom constitutes a prohibition against influencing methods, contents, and tendencies of artistic activity, and in par ticular against restricting the sphere of artistic creativity or prescribing generally binding rules for this creative process. For the narrative work of art, the constitutional guarantee includes free choice of subject and free presentation of that subject. . . . 3. Article 5 (3) [1] comprehensively guarantees freedom of artistic activity. To the extent that the publishing media are needed to establish relations between the artist and the public, the guarantee of artistic freedom also protects these intermediaries. . . . The complainant, as the publisher of the novel, can therefore rely on the basic right derived from Article 5 (3) [1]. . . . 4. Article 5 guarantees autonomy of the arts without reservation. In view of the unambiguous text of Article 5 (3) [1], this guarantee may not be restricted by narrowing the concept of art on evaluative grounds, broadly interpreting other restrictive clauses in constitutional provisions, or analogizing restrictive clauses to the case of artistic freedom. 5. On the other hand, the right of artistic liberty is not unlimited. Like all basic rights, the guarantee of liberty in Article 5 (3) [1] is based on the Basic Law’s image of man as an autonomous person developing freely within the social community. But the unconditional nature of this basic right means that limits on artistic freedom can be determined only by the constitution itself. Since freedom of the arts does not grant the legislature the authority to restrict this right this freedom may not be curtailed either by the general legal system or by an indefinite clause that permits limitations on artistic expression if values necessary for the existence of a national community are endangered. Courts must resolve a confl ict involving artistic freedom by interpreting

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the constitution according to the value order established in the Basic Law and the unity of its fundamental system of values. Freedom of the arts is closely related to the dignity of man, guaranteed in Article 1, which, as the supreme value, governs the entire value system of the Basic Law. Nonetheless, the guarantee of freedom of the arts may confl ict with the latter constitutionally protected sphere because a work of art can also produce social effects. Because a work of art acts not only as an aesthetic reality but also exists in the social world, an artist’s use of personal data about people in his or her environment can affect their social rights to respect and esteem. . . . 6. The courts properly referred to Article 1 (1) of the Basic Law in judging the protective effects arising from the personality sphere of the late actor Gründgens. It would be inconsistent with the constitutionally guaranteed right of the inviolability of human dignity, which forms the basis for all basic rights, if a person . . . could be degraded or debased even after his or her death. Accordingly, the obligation that Article 1 (1) imposes on all state authority to protect the individual against attacks on his or her dignity does not end with death. . . . [The Court found that the right to artistic freedom secured by Article 5 (3) clashed with the human dignity clause of Article 1 (1). The courts of ordinary jurisdiction resolved the confl ict in favor of Gründgens and against the publisher. The First Senate, however, held fi rm to its standard approach: It would not disturb the ordinary courts’ result if these courts had properly assessed the importance of the basic rights in confl ict. In the majority’s view these tribunals had not only attached the proper significance to the values of human dignity and artistic freedom but they also had engaged in a meticulous examination of the facts and laws applicable to the case in the light of constitutional values: Justices Stein and Rupp-von Brünneck, dissenting separately, rejected the majority’s deferential approach. They argued that the senate should have examined the facts for itself to ensure a result consistent with the constitution’s value hierarchy. They also maintained that the senate had failed to adequately defi ne the scope of artistic freedom.] Justice Stein, dissenting. . . . II. 1. The required weighing of interests . . . must correspond in all respects to the constitution’s value decisions. If the obligatory balancing of interests disregards this specific, constitutionally imposed relationship, as in the official opinion, freedom of the arts as guaranteed by Article 5 (3) [1] is violated. The evaluation of the interests . . . by the Hamburg Higher Regional Court and the Federal Court of Justice fundamentally misjudged this relationship to art that the constitution demands. . . . Neither court sufficiently considered that a work of art . . . has reality not only in the extra-artistic sphere . . . but predominantly on the aesthetic level. The courts onesidedly considered only tensions in the social sphere and, in so doing, ignored the novel’s aesthetic aspect. Th is one-sided consideration affected the weighing of

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interest: . . . They compared the appearance and behavior of the fictitious Hendrik Höfgen with the personality of Gustaf Gründgens solely from the viewpoint of readers who see the novel as reality. . . . Th is approach may be appropriate for a documentary or biography. . . . But a novel’s artistic intent is not a realistic, truth-oriented description of historical events but rather a substantial, descriptive presentation of material based on the writer’s imagination. An evaluation of a novel based solely on the effects that it produces outside its aesthetic existence neglects the specific relationship of art with reality and thus unlawfully restricts the right guaranteed by Article 5. . . . 4. Furthermore, the Federal Court of Justice and the Hamburg Higher Regional Court overemphasized the detrimental effects of the novel on the protected sphere of Gustaf Gründgens’s personality when they undertook the required balancing of interests. . . . In this connection one must also consider that the danger of an adverse effect on the protected personal sphere decreases as the memory of the deceased person fades. Although the courts emphasized these factors in the challenged decisions, they ignored the fact that general interest in persons like Gustaf Gründgens, who are not part of general contemporary history but became prominent in a narrower field of the public life of their time, decreases more quickly after their deaths, thus diminishing the danger of an identification of Gustaf Gründgens with the novel’s character Hendrik Höfgen. . . . [Justice Rupp-von Brünneck joined Justice Stein’s dissent. She pointed out that the Court had narrowed its usual standard of review by refusing to balance the confl icting values. In so doing the Court acted in contravention of all its past decisions. But the crux of Justice Rupp-von Brünneck’s dissent focused on the ordinary courts’ failure to consider Klaus Mann’s position as a member of the resistance to the Nazi regime. Forced to emigrate, Mann used his writing to contribute to the intellectual opposition to the Nazi system. Rupp-von Brünneck maintained that Mann’s use of Gründgens as a vehicle through which to address the larger political issue was questionable. She argued, however, that the existing emergency in Germany justified Mann’s actions.]

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That even the dead are entitled to honor and respect was reaffi rmed in the Posthumous Libel Case (1993). A German writer authored a scathing review of the work of the deceased author Heinrich Böll in which he made derogatory remarks about Böll’s character and personality, remarks later classified as defamatory by an ordinary court. The complainant alleged that his review constituted “art” within the meaning of Article 5 (3) and was thus insulated against legal action. The Constitutional Court disagreed. A three-justice chamber of the First Senate held that literary reviews are not in themselves works of art and thus fall outside the protection of Article 5 (3).146

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Mephisto presented the Constitutional Court with its fi rst major opportunity to underscore the unique character of freedom of art and science. Article 5 (3), noted the First Senate, is independent of the general provisions of Article 5 (1). Indeed, under the Weimar Constitution, the “art and science” clause was contained in the section on education and schools, and not in the section on fundamental rights. In like manner the Constitutional Court has declined to treat the art-and-learning provision of the Basic Law as a subcategory of free speech, for art, science, and scholarship are not subject to the reservation clauses of Article 5 (2). Only teaching is a limited right under Article 5 (3); it may not be employed as a vehicle for attacking the constitution. But as Mephisto illustrates, the right to artistic freedom may confl ict with the human dignity and personal inviolability clauses of Articles 1 and 2. Any confl ict between these rights triggers the usual balancing test that courts are obliged to apply in such cases. In due course, as noted earlier, the Court retreated from this extremely deferential position. In the Street Theater Case (1984) the Court took an expanded view of artistic freedom, manifesting its increasing tolerance of hard-hitting political speech during the 1980s. Artistic Expression and Pornography. German constitutional law has largely bypassed the thorny ground of pornography, avoiding the dilemmas of American jurisprudence with its tangle of rules and multipart tests. The problems involved in the regulation of pornography in Germany are both simpler and more complicated than in the United States: simpler because Article 5 (2) allows for the limitation of the right to free expression “in the provisions of general laws, in statutory provisions for the protection of youth, and in the right to respect for personal honor”; more complicated because Article 5 (1) extends the right of free expression to writing and pictures. The Federal Constitutional Court, however, has never defi ned the legislature’s right to regulate pornography.147 Most laws of this nature have been aimed at the protection of youth.148 Before 1974, West German pornography laws virtually outlawed commercial pornography. These laws were challenged in several state courts and sustained. In 1974, the Bundestag liberalized antipornography laws on its own initiative, with the result that making and selling most “hard-core” pornography became legal. The new law did prohibit the sale of pornography to minors; the public display, broadcasting, or unsolicited mailing of advertisements containing pornography (as a way of protecting the rights of those who do not wish to be confronted with pornography); and the production and sale of pornography involving sexual violence and children and depictions of sex between humans and animals. The fi rst prohibition, intended to prevent children’s exposure to pornography, entailed the prohibition of the distribution of pornography through the mails or in general movie theaters, since effective age control of patrons is virtually impossible in these areas. Pornography is similarly regulated under provisions of the Act on the Publications Harmful to Young People.149 Th is statute provides for publications deemed dangerous to the morals of children to be listed by the Federal Assessment Office. Materials so listed

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cannot be distributed to children, disseminated outside business premises, or advertised. One should note that the German youth protection statute is much broader in its sweep than the American practice of denying protection to material deemed obscene. The German statute is meant to protect children from writings that are “immoral, have a brutalizing effect, encourage violence, crime, or racial hatred, and those that glorify war.” Thus, German courts have largely ignored the problem of defi ning obscenity. Rather, in the course of statutory interpretation, German judges have developed a concept of pornography that views it in the light of the Basic Law’s primary injunction to protect human dignity. In a case that centered on the infamous Fanny Hill, the Federal Court of Justice declined to pronounce the book pornographic since it presented sexuality in the broader context of human life. Rather than deploying a subjective standard that attempts to determine the extent to which a par ticular work offends the viewer or reader,150 the German court analyzed the presentation of sexuality in its human context. Mathias Reimann summarized the characteristically Kantian German approach: The court essentially asks whether the material presents the characters truly as  human beings with a value in and of themselves. If the material does, the court will fi nd the sexual explicitness acceptable because sex forms a natural part of life. If, on the other hand, the material basically employs its characters only as  objects for other purposes, notably sexual stimulation, the court will fi nd the  depiction of sex unacceptable because the work treats the characters not as  humans, but only as objects. Such a work denies the characters their human individuality and personhood. The approach of the German court thus concerns itself not with the viewer’s prurient interest but—ultimately—with human dignity.151

The regulation of pornography, then—whether done under the limited provisions of the criminal law or the somewhat broader provisions of the youth protection statute—is, like so much else in German constitutional law, centered on the protection of dignity under Article 1. The Mutzenbacher Case (1990)152 illustrates these general principles as well as an increasing judicial commitment to freedom of expression. In Mutzenbacher, the Court found the Federal Administrative Court’s ban on the pornographic novel Josefine Mutzenbacher: The Life of a Viennese Prostitute as Told by Herself to be in violation of the Basic Law. The First Senate rejected the ban because the administrative court had inadequately considered the book’s artistic merit. Article 5 (3) protects artistic expression. Unlike Article 5 (1), this provision is not subject to a reservation clause and, thus, can be limited only by competing constitutional values. These competing values are to be found in the human dignity (Article 1 (1)) and personality (Article 2 (1)) clauses of the Basic Law as well as in Article 6 (2), which affi rms the natural right of parents to the care and upbringing of their children and includes, according to the Court, “the right to determine what children can and cannot read.”153 The Court rejected the

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complainant’s view that government must base its judgment on empirical proof that certain publications are harmful to youth; in view of the lack of consensus in this area, value judgments are inevitable and permissible. On the other hand, the Court noted that “pornography and art are not mutually exclusive,” and it can be plausibly argued that the disputed novel, while containing graphic descriptions of sexual encounters, is a work of art.154 As the materials in the next section show, artistic expression is subject to regulation. At the same time, however, artistic expression warrants a heavy presumption in its favor. Accordingly, ordinary courts are not at liberty to ignore the artistic merits of a creative work in deciding whether it has been validly indexed under the Youth Protection Act. According to the Court, when such “artistic expression collides with other constitutional rights, the merits of both must be appropriately weighed in an effort to achieve an optimal compromise between them.”155 Administrative courts were found to have erred in failing to follow this interpretive principle of concordance. There is even some suggestion in the case that these courts failed to sufficiently consider whether in banning the Mutzenbacher novel the government had interfered with the right of parents under Article 6 to monitor the reading habits of their children.156 8.14 Street Theater Case (1984) 67 BVerfGE 213 [During the 1980 federal election campaign, a group of German citizens staged a theatrical procession through the streets of various cities and towns in the Federal Republic. Mockingly portrayed as a procession on behalf of freedom and democracy, the motorcade—joined by pedestrians and a “military band”— consisted of army vehicles, passenger cars, and three black limousines draped with slogans derisive of cdu campaign themes. The cars and limousines carried black uniformed members of a “private security police force” and members of a “people’s court.” The end of the caravan featured a “puppet” show in an open vehicle. A person bearing the likeness of Franz Josef Strauss, the cdu candidate for federal chancellor (Bundeskanzler), was seated in the vehicle alongside his chauffeur and accompanied by masked “party comrades” with the faces of well-known Nazi leaders representing the forces of stupidity, leprosy, fraud, murder, robbery, and suppression. The idea for the procession and the narration accompanying the puppet show were taken directly from Bertolt Brecht’s 1947 poem “Der anachronistische Zug oder Freiheit und Democracy” (The Anachronistic Parade or Freedom and Democracy) in which these same symbols were used to portray the decadence of certain representative establishment figures responsible for Germany’s downfall. The Allgäu Regional Court fi ned the person who portrayed Strauss and the organizer of the caravan for defaming the would-be chancellor, a judgment sustained by Bavaria’s Higher Regional Court. The defendants lodged constitutional complaints against both decisions,

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alleging a violation of artistic freedom under Article 5 (3) of the Basic Law. The Constitutional Court agreed.]

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Judgment of the First Senate. . . . A. I. 1. In 1947 the poet Bertolt Brecht wrote “Der anachronistische Zug oder Freiheit und Democracy,” an imitation of Percy Bysshe Shelley’s poem “The Masque of Anarchy: Written on the Occasion of the Massacre in Manchester,” composed in 1819–20. Shelley wrote the poem in reaction to the bloody suppression of the workers’ rebellion at Peterloo. In his poem Brecht describes a procession across a Germany laid in ruins. The procession follows two standard-bearers with signs entitled “Freedom” and “Democracy.” The participants include a pastor who walks beneath a swastika, the upturned corners of which are pasted over to form a cross; a representative of the armaments industry; teachers who advocate the right to teach German youth the virtue of killing; doctors who demand communists for their experiments; designers of gas chambers; “de-Nazified” officials holding high offices; editors of the Stormtrooper, who demand freedom of the press; a judge who acquits everyone of the charge of “Hitlerism”; and “all the good people who suddenly are not responsible for what happened.” In the “Capital city of the Movement” six “party members” join the procession: Suppression, Leprosy, Fraud, Stupidity, Murder, and Robbery; they also demand freedom and democracy, described by Brecht in the following way: With bony hand upon the whip Suppression leads the tide In armored cart from top to tip From industry a gift All greet, in rusty tank, Leprosy of sickly skin Modestly, the wind to stop Wraps bandages to its chin Fraud comes with swaying step Great tankard of brew he holds For free to sip—a fair exchange Your children must be sold Like a mountain aged, old Yet active even so Stupidity ’mongst the fold On Fraud its gaze bestows O’er wagon side it hangs Its arm, thus Murder joins the spree Stretches, contented is the beast, Sings: sweet dream of liberty

Fr eedom of Speech, Pr ess, and Art 527 Though yester’s shock disturbs it still Drives Robbery in full girth In Junker’s garb for field marshals Its lap enfolds the earth Of these great six every one Entrenched and without mercy In turn demand to have at once Freedom and democracy

2. During the 1980 federal election campaign this poem by Brecht gave the political opponents of then-chancellor and candidate of the cdu/csu, the Bavarian minister-president Franz Josef Strauss, an idea for political street theater. . . . While driving across the Federal Republic from 15 September to 4 October 1980, the participants acted out these scenes and recited the poem in villages and cities along the way. . . . C. The constitutional complaint is justified. The contested decisions violate the complainant’s constitutional rights under Article 5 (3) [1] of the Basic Law. [In section I the Constitutional Court set forth the conditions under which it will rectify the decisions of ordinary courts. The Court asserted the conventional view that its intervention is necessary when the courts of ordinary jurisdiction have erred in the interpretation of the significance of a constitutional right. Th is case, however, involved a criminal penalty and an interpretation of a right unrestrained by a reservation clause. Because of the chilling effect that a criminal penalty could have on artistic freedom, the Court declared its readiness not only to review mistakes with respect to an ordinary court’s view of the significance of Article 5 (3) but also to defi ne the substance of this right.] II. Staging the “anachronistic procession” falls within the protective sphere of the constitutional right to free artistic expression (Article 5 (3) [1]) against which the contested decisions must be measured. 1. The guarantee of artistic freedom . . . contains an objective, basic norm that controls the relationship between the sphere of “art” and the state. At the same time it guarantees to everyone active in this sphere an individual right to freedom. Th is provision protects the “creative sphere” of artistic endeavor as well as the presentation and dissemination of a work of art to the general public. . . . 2. a. . . . The fact that art theoreticians cannot agree on objective criteria for measuring art is due to a special characteristic of artistic life: The avant-garde actually seeks to expand the borders of art. . . . An expansive concept of art must guide the Court’s deliberations in cases such as this. . . . b. However, the impossibility of generally defi ning art will not relieve us of the constitutional duty to protect freedom in the artistic sphere. . . . 3. a. The Federal Constitutional Court has emphasized as essential to artistic activity the “free creative expression through which the artist conveys impressions,

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experiences, and events through a specific language of shapes.” All artistic endeavors are a “symphony of conscious and unconscious events that cannot be separated rationally.” The artistic process is “a combination of intuition, fantasy, and knowledge of art. It is not primarily a form of communication but rather a most direct expression of the individual personality of the artist.” Similar attempts at substantive and valueoriented description in legal literature also emphasize the creative characteristics, the expression of personal experiences, and the casting into a specific form, as well as the communicative conveyance of meaning. The description of the “anachronistic procession” meets these criteria. There are creative elements not only in Brecht’s poem but also in the manner of his imaging technique. We consider the poem as well as its presentation sufficiently “formed.” The artwork should express and directly illustrate general and personal historical experiences with respect to actual political circumstances. . . . c. . . . The special form of the street theater described leads us to conclude that the spectators are at a distance and clearly realize that they are confronted with “theater.” Certainly the poem, which can be interpreted in many ways, becomes more specific in its message as a result of its timely allusions to contemporary events and persons. Yet its message remains ambiguous, particularly because this message is not directly conveyed but again is indirectly composed of various elements. . . . d. Therefore, if the per for mance of the “anachronistic procession” is protected by Article 5 (3) [1] of the Basic Law, then the primarily political intentions of the organizers do not change this fact. Even when an artist becomes involved in contemporary events, no binding rules and evaluations may inhibit artistic activity. The area of so-called politically involved art is no exception to this guarantee of freedom. III. 1. Article 5 (3) of the Basic Law guarantees freedom of art in its autonomy and without limitation. Neither the “triad of limitations” contained in Article 2 (1) nor the limitations of Article 5 (2) restrict this freedom, whether directly or by analogy. Only other constitutional provisions protecting an equally valued interest within the constitutional order can directly limit the freedom of artistic expression. Th is applies expressly to the right of personality protected by Article 2 (1) in conjunction with Article 1 (1) of the Basic Law. But courts may not be content merely to ascertain that an encroachment on the right of personality—here in the form of defamation—has taken place. They must determine whether the right of personality is so seriously compromised that the right to artistic freedom must defer to it. In view of the overriding significance of artistic freedom, a negligible encroachment on the right of personality or the mere possibility of an encroachment will not suffice. . . . 2. The regional court failed to recognize the constitutional requirements resulting from this discussion. a. Artistic expressions can be interpreted and are in need of interpretation. An indispensable element of this interpretation is that the work of art be viewed in its entirety. One may not take individual parts of the work out of context and examine them separately to see if they merit criminal sanctions. Consequently, the regional court contravened the constitution when it determined that the incriminating events

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took place outside of the actual per formance and concluded that Article 5 (3) [1] did not apply. Th is determination fails to acknowledge the very practical need for preparations (assembling the procession) and regrouping (events in Kassel). Furthermore, modern theater often includes visible stage preparations as part of its overall artistic concept. b. Moreover, the regional court failed to see that such an overall view would have permitted several different interpretations. . . . In any case, the district court impermissibly chose from possible interpretations suggested by the ordinary court’s statement of facts (further possibilities appear by no means to be precluded) only the interpretation relevant to criminal law. The interpretation relating to criminal law uses the construction of the reasonable passerby and focuses on the impressions of a fleeting, naive observer who ignores the “struggle” with the six plagues. Th is, too, is a violation of Article 5 (3) [1] of the Basic Law. 3. The contested decisions are based on these errors. We cannot preclude the possibility that the courts would have decided differently had they observed the constitutional requirements set forth in this opinion. Therefore we set aside the decisions and remand them to the regional court. The court must consider the principles discussed in this decision relating to the relationship between the freedom of artistic expression and the general right to personality when it reconsiders this case.

∂

Political Satire, Flag Desecration, and National Anthem Cases. In the Political Satire Case (1987),157 unlike in Street Theater, the First Senate found the gravity of the offense sufficient to overcome any claim based on artistic freedom. As noted earlier in this chapter (no. 8.5), Franz Josef Strauss was the victim of a savage caricature. Resting its argument heavily on Street Theater, the First Senate held that the portrayals involved here did indeed constitute art within the meaning of Article 5 (3) [1], but a legitimate artwork may offend the value of human dignity if it constitutes a serious encroachment on the personal honor of a par tic u lar individual. The Court recognized that gross exaggeration of personal features and foibles exceeds the boundaries of fair criticism, but satire in this vein may not be punished by statutory law. It may, however, offend a constitutional value of equal rank, such as human dignity, in which case the ordinary courts are to balance the competing interests of dignity and speech in the light of their ranking within the hierarchy of constitutional values and against the backdrop of all the circumstances. In the instant case, ruled the Federal Constitutional Court, the ordinary courts had adequately engaged in this balancing process.158 In Flag Desecration (1990),159 which may be compared with the American case of Texas v. Johnson (1989),160 the Constitutional Court struck the balance in favor of freedom of art. Here, a book distributor sold copies of a work entitled Just Leave Me in Peace, a compilation of antimilitary prose and poetry. The back cover of the book contained a photomontage depicting a soldier urinating on the spread-out flag of the

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Federal Republic. The book distributor’s conviction was based on § 90a of the Penal Code, which punishes the “disparagement of the colors, flag, coat of arms, or anthem of the Federal Republic of Germany or one of its regional states.” An ordinary court fi ned the defendant dm 4,500, a judgment he assailed in a complaint before the Federal Constitutional Court. The First Senate ruled that the photomontage constituted “artistic freedom” within the meaning of Article 5 (3). Th is being the case, only a high-ranking value of the Basic Law itself, not a statute, could trump the claimed freedom. The protection of the flag as a state symbol, said the Court, does not derive its legitimacy exclusively from Article 22 of the Basic Law, which merely specifies its colors. Yet the flag is “an important integration device,” and its “disparagement can thus impair the necessary authority of the state.” Nevertheless, the protection that law accords to state symbols cannot insulate the state against criticism or disapproval. In any event, the Court found that the drawing in question did not constitute disparagement of the flag within the meaning of § 90a but was rather a satirical attack on German militarism. Taken as a whole the montage was actually directed against “the governmental ceremony for the swearing in of soldiers” and the state was “the target of attack only because of its responsibility for instituting military ser vice and conferring special legitimation on this process by the use of the state’s symbols.”161 In this context artistic freedom was too important a value to be overridden by a criminal prosecution. National Anthem (1990), fi nally, recalls Flag Desecration. The editor of the magazine Plärrer published a scornful version of the national anthem.162 One of its verses read: German Turks and German Pershings German Big Macs, German punk Should maintain their familiar ring Th roughout the entire world German cola, German peepshows Should inspire us to noble acts All throughout our entire lives.163

In this case, too, the Court held that the satirical verses, in terms of their form and structure, constituted “art” under Article 5 (3). The message communicated, said the Court, “takes the form of an altered version of the national anthem in which our lifestyle is transformed into an extremely negative description—into its exact opposite—by means of changing the meter, approximating the phonetics of the original, and alienating the original text.”164 The Court faulted the ordinary court for ignoring the “expressive core of the satire” captured in “the collection of contradictions between expectation and reality.”165 Thus, the Court concluded that punishment for disparaging the anthem is incompatible with artistic freedom.

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8.15 University Reform Case (1973) 35 BVerfGE 79 [In 1971 Lower Saxony changed its system of governance for higher education. The legislature of Lower Saxony conferred extensive rights of codetermination on certain nonprofessional groups within the university who were not entitled to professorial status. At the major universities, for example, including Göttingen University, the academic council was to consist of twenty-four professors, twenty-four research assistants, twenty-four students, and sixteen nonacademic employees. Other collegial bodies within the university were similarly organized. No fewer than 398 professors from Lower Saxony claimed in a constitutional complaint that the new rules of university governance encroached on the freedom of research and teaching in violation of Article 5 (3) [1]. Federal and state education officials fi led briefs in support of the statute while the West German Rectors’ Conference and other faculty organizations were arrayed against it. The latter, in alliance with the professoriate, argued that the inclusion of insufficiently qualified persons in the governing councils of the university threatened the faculty’s preeminent decision-making authority in the areas of science, research, and teaching. The Court ruled, 6–2, that the law violated Article 5 (3) by stripping academics of their authoritative control over essential academic concerns.]

∂

Judgment of the First Senate. . . . C. The constitutional complaints are justified only in part. II. 1. The right contained in Article 5 (3) to engage freely in scholarly activity is a right that the state is bound to respect. . . . Everyone engaged in science, research, and teaching . . . enjoys a defensive right against every state encroachment upon the discovery and dissemination of knowledge. . . . The world of scholarship is one of personal and autonomous responsibility for the individual scholar and the state may not dictate in this realm. Article 5 (3) protects no single conception or theory of scholarship but rather every form of scholarly activity; that is, everything that in content and form can be regarded as a serious and systematic attempt to discover the truth. . . . 2. The fundamental rights provisions of the Basic Law also incorporate an objective order of values. . . . Article 5 (3) contains one such value decision. Its key function is to guarantee free scholarly activity both in the interest of the individual scholar’s selfrealization and for the benefit of the entire society. . . . The state is therefore obliged as a civilized nation to defend a system of free scholarly inquiry and to affi rmatively provide for an institutional framework in which such inquiry can be carried out. . . . a. . . . Th is command of the constitution is particularly important because without a satisfactory institutional structure and corresponding fi nancial support, which

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only the state can provide, scholarly research and teaching in broad areas of scholarship, particularly in the field of natural science, could no longer take place. . . . b. The individual scholar also has a right to state support, including that of an organizational kind, necessary to adequately safeguard his or her constitutionally protected sphere of freedom, because only such support enables him or her to engage in scholarly activity. . . . III. Th is does not mean, however, that academic freedom can be achieved only at German universities of a traditional nature or that the constitution prescribes how scholarly activity in universities is to be organized. The legislature has the discretion, within certain limits, to organize universities in conformity with today’s social and sociolog ical realities. [In this part of the opinion the Court recounted the history of the German university and its tradition of faculty self-governance. Notwithstanding its increasing dependence on the state and the many changes in university structure wrought by the state in the last two centuries, the Humboldtian principle that research and teaching should remain free of government influence has been a steadfast and sacred pillar of German academic life. The Court found the principle of academic self-governance to be rooted in early nineteenthcentury university statutes as well as in various national and state constitutions. States reserved the right to oversee the appointment of university professors, noted the Court, but this traditional practice seldom interfered with the essential autonomy of the scholarly enterprise or the self-governance of the university.] IV. 1. Thus, in the area of university organization, the legislature enjoys considerable leeway in shaping university policy. Th is discretion, however, is driven and limited by the right to freedom secured by Article 5 (3) and the value judgment contained therein. On the basis of these constitutional considerations, we are obliged to assess the organizational features of laws dealing with institutions of higher learning by determining whether and to what extent they favor or impede either the basic right of every individual scholar to research and teach freely or the functional capacity of an institution dedicated to “free scholarship” to operate. . . . V. 1. The “group university” as such is compatible with the value decision of Article 5 (3). In itself it is not “alien to scholarship”; for to allow all members of the university a say in its affairs does not necessarily lead to procedures or policies in opposition to freedom of research and teaching. Such a system may serve as a proper instrument for the resolution of group confl ict in the university and also as a means for mobilizing the expertise of individual groups for the purpose of reaching better decisions in the administration of the university. Whether this system is the most useful form of university organization is not a matter for the Federal Constitutional Court to decide. a. The right of academic assistants to a voice in university affairs needs no further justification; they are as much entitled to the rights secured by Article 5 (3) with refer-

Fr eedom of Speech, Pr ess, and Art 533

ence to their research activities as university professors. Whether students are constitutionally entitled to participate in academic self-governance need not be decided here. There is, however, no constitutional objection to their having a say in academic administration so long as and to the extent that they are participating in research and teaching. Even though only a relatively small percentage of students may reach a level of active participation in the research process, study at a university is itself nevertheless understood to include such participation. . . . b. Neither does the involvement of nonacademic staff in university self-governance confl ict basically with the constitutional pledge of academic freedom. . . . This group includes specialists whose practical experience can be particularly beneficial in the administrative area of universities. Academic activity at universities is coming to depend on these specialists in increasing measure. They create the technical and administrative conditions that make teaching and research possible and carry corresponding responsibility. . . . 2. University professors, however, enjoy a special position in research and teaching. . . . By virtue of their office and commitment they bear a particularly heavy responsibility for the smooth running and academic status of the university. . . . In view of the current structure of the university they hold a key position in academic life. . . . The state is obliged to keep the professoriate’s special position in mind when it shapes the orga nization of academic administration. Th is task requires due attention to the value decision contained in Article 5 (3) in tandem with the generalequality clause, which in turn forbids . . . treating those groups equally that are essentially unequal. . . . The legislature is thus required to confer on the professoriate that degree of authority and responsibility necessary to fulfi ll their scholarly mission in light of the functions of the university. It must ensure an organ izational framework that does not allow . . . other groups to hinder or interfere with their free scholarly activity. . . . 3. The legislature, while basically at liberty to prescribe the voting strength of various groups in the decision-making councils of the “group university” must nevertheless consider the special position of university professors and ensure that their strength is proportionate to their status and function. . . . [The Court noted that confl icting interests have made their presence felt within the group university “partly because of the long overdue radical reforms in higher education, responsibility for which must be shared by the universities.” Yet, “specialized academic knowledge” must not “be overplayed in reaching decisions on questions of research and teaching in academic decision-making bodies. Professors, students, and staff are entitled to representation in university governance proportionate to the importance of their respective roles within the university.” The Court then moved on to defi ne these roles.] 4. Given all of these considerations, we cannot deduce that the representatives of university teachers are constitutionally entitled to a “clear majority” on university

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governing boards. In view of the aforementioned constitutional considerations, we see no justification for this limitation of the legislature’s creative freedom. . . . [Teaching] a. Where teaching is concerned, it is not only the university teachers who fulfi ll essential functions but also teaching and research assistants. Granted, their participation in discharging teaching tasks in the modern mass university is not always the same when compared on divisional, departmental, and sectional levels, but their share is nevertheless quantitatively significant and qualitatively important. When dealing with decisions directly affecting teaching they possess the kind of factual knowledge and interest that readily justifies their rights to codetermination. Teaching matters also directly affect the interests of students. Moreover, appropriate decisions can often be reached only if the experiences and arguments of both teachers and learners are taken into consideration and settled. There are thus no constitutional objections to the participation of student representatives when deciding such issues. Nevertheless, the unrestricted participation of nonresearch and nonteaching administrative personnel in decisions pertaining to teaching cannot be justified by any of the aforementioned considerations (i.e., qualifications, functions, responsibilities, and involvement). The legislature must guarantee that within this framework university teachers retain the degree of influence corresponding to their position in the area of teaching. [Research] b. One must employ stricter criteria when determining the extent of codetermination by various groups in matters pertaining directly to research. Research decisions presuppose the ability to assess the current status of research in a given field and the urgency of an individual research project in the light of social needs, as well as to understand clearly the technical, fi nancial, and personnel possibilities in individual areas of research. The responsibility that issues from such decisions becomes particularly clear when large amounts of money are needed for expensive special facilities required by modern research, or when research facilities are established or expanded. Research assistants cannot be denied the right to cooperate with specialists in making such decisions. As a rule, nonresearch personnel do not possess such qualifications. Neither will the large majority of students possess the qualifications necessary for participation in research decisions. Yet, based on their level of education and qualifications, one cannot completely rule out the fact that students contribute to some extent to these decisions. In view of these circumstances there are, therefore, no constitutional objections against allowing students a certain degree of codetermination, particularly because decisions affecting research also may have an eventual effect on teaching. Yet the value judgment of Article 5 (3) in conjunction with Article 3 (1) of the Basic Law demands that university teachers retain the privilege of having a decisive influence in decisions pertaining directly to research. Because of their qualifications, functions, and responsibilities, university teachers must be able to prevail against other groups in this special area. . . .

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[The Court concluded that in university councils concerned with teaching, professors are constitutionally entitled to at least 50 percent of the votes. In matters pertaining to research, however, the influence of university professors must be “decisive.” Th is means, according to the Court, that university professors must have substantially more than 50 percent of the votes so that they can “assert themselves against the combined opposition of other groups.”] Justices Simon and Rupp-von Brünneck, dissenting. . . . Both the result and the fi ndings of the decision rest largely on consistent constitutional arguments. We specifically share the view that Article 5 (3) embraces a negative right against any concrete state intrusion upon academic freedom. . . . We also agree with the majority in holding that there are significant differences between university groups, and we agree that these groups cannot be leveled on the basis of one person, one vote. On the other hand, we consider it untenable to conclude directly from the Basic Law detailed organizational requirements for the autonomy of the university. To be sure, the majority opinion concedes that the legislature is not locked into the traditional structure of the university under the Basic Law. . . . Rather, the participation of all members of a university in academic self-government is fundamentally compatible with the constitution, even in the case of the so-called group university. Furthermore, in this “body of teachers and learners” none of the groups concerned is generally and inherently entitled to a majority position. Nevertheless, the senate majority believes that it must distinguish among the groups who enjoy the constitutional right and confer on one of these groups a privileged position in the form of added weight to their votes. As a result of this decision the Federal Constitutional Court exceeds its function and places itself in the position of the legislature. The senate majority converts the seemingly universally recognized creative freedom of the democratically legitimized legislature in matters of academic organization into an originally imperceptible but, fi nally, clearly recognizable process of erosion. . . . II. 1. . . . b. In our opinion the legislature of the state of Lower Saxony cannot be accused of exceeding its creative discretion in its alleged violation of the aforementioned obligations; for in Lower Saxony, too, university teachers are assured, within the realm of their creative activity in the ser vice of the common good, a position that is possibly unique when compared with the situation of other groups of society.

∂

Academic Freedom. Academic freedom (Akademische Freiheit) has a long history in Germany, going back even before the Age of the Enlightenment. Under Germany’s modern constitutions, beginning with the Frankfurt Constitution of 1849, this freedom, in the arts and sciences, embraced above all the freedom of teachers to teach (Lehrfreiheit). The University Reform Case underscores the autonomy that professors

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continue to enjoy in their teaching and research as well as their critical importance in the composition of a university’s governing body. Two later cases, decided in 2004 and 2010, merit special attention. They involved changes in the governing structures and decision-making procedures of institutions of higher learning. One change enhanced the authority of university deans and presidents to make academic decisions. Another provided for the funding of various faculties on a performance-oriented basis. In the Brandenburg Higher Education Act Case the First Senate unanimously upheld these changes over the constitutional complaints of certain law and philosophical faculties.166 Six years later, in the Wismar Technical College Case, the same senate (now staffed with five new justices) also sustained, unanimously, a dean’s directive requiring a professor of surveying to teach a basic course in projective geometry that the professor thought was not germane to the field of surveying.167 Although holding these changes compatible with Article 5 (3) [1] of the Basic Law, the two cases were nevertheless resounding affi rmations of professorial freedom and responsibility in the activity of teaching and research. In Brandenburg the senate declared that Land legislatures, in their supervisory capacity over educational institutions, may enact regulations pertaining to the management of universities so long as the voice of the faculty is adequately considered. Th is applies in par tic u lar to any criteria adopted for assessing the quality of the teaching and research faculty. The senate described the participatory role of academicians in this matter as absolutely “indispensable.”168 In Wismar the senate took the opportunity to declare that the right to freedom of research and teaching applies not only to university professors but also to lecturers in technical colleges whose main task is to impart knowledge in the applied sciences.169 As for the assignment of teaching responsibilities, the senate held that this is ordinarily a legitimate function of faculty councils, deans, or other officers of the university, except that an order to an instructor to teach outside of his or area of expertise would interfere with freedom of scholarship under Article 5 (3) [1]. In this case, however, the college’s decision was appropriate because the prescribed geometry course was relevant—even foundational—to the teaching of surveying.

conclusion Freedom of speech enjoys wide protection under the Basic Law, particularly when political speech is implicated. Apart from principles of political obligation that require allegiance to the existing constitutional order, the uncommon protection accorded political speech is fully consistent with the Basic Law’s commitment to representative democracy and universal suff rage. The general rights to speech and press, however, cannot be interpreted in isolation from other constitutional provisions. Article 5 (1) is bound by the reservation clauses in Article 5 (2), but in addition, the principle of the constitution’s unity and its incorporation of a hierarchical order of values, the highest of which is human dignity, compels a contextual—that is,

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systematic—approach to constitutional interpretation. The structures and values prescribed in the Basic Law are numerous and complex, and they result in the delicate balancing that typifies many of the cases featured in this chapter. And yet, when viewed comparatively, the German Court’s record in defense of freedom of speech, particularly in recent years, easily rivals that of the world’s advanced constitutional democracies.

9 Religion, Conscience, and Family Rights ∂ The multiplicity of the Basic Law’s (Grundgesetz) provisions on church-state relations contrasts sharply with the simple command of the U.S. Constitution that bars Congress from making any law “respecting an establishment of religion or prohibiting the free exercise thereof.” Among the provisions is Article 140, which incorporates into the Basic Law Articles 136, 137, 138, 139, and 141 of the Weimar Constitution. The sixteen paragraphs compressed into these articles govern the status, powers, and duties of religious associations in Germany. Their incorporation into the Basic Law was a compromise flowing from the inability of the framers to agree on new proposals for regulating the relationship between church and state.1 Article 4, however, is the centerpiece of provisions relating to religious belief and practice. It provides: 1. Freedom of faith and of conscience, and freedom to profess a religious or philosophical creed, shall be inviolable. 2. The undisturbed practice of religion shall be guaranteed. 3. No person shall be compelled against his conscience to render military ser vice involving the use of arms. Details shall be regulated by a federal law.

These clauses underscore the fundamental importance of religious freedom under the Basic Law. Indeed, religious freedom is undiminished by the reservation clauses that qualify other constitutional rights. By the same token, as the text suggests, religious expression cannot be reduced to an aspect of some other right such as speech (Article 5), association (Article 9), or even personal inviolability (Article 2). Religious expression is speech and association of a special kind; it rises above ordinary expression because it deals with the innermost convictions of the human person, thus meriting special solicitude under the Basic Law.2 Other provisions of the Basic Law prohibit discrimination based on religious belief or association. They reinforce and inform the meaning of Article 4. Article 3 (3), for example, declares that persons may not be favored or disfavored because of their “faith” or “religious opinions.” In addition, Article 33 (3), like Weimar’s Article 136, confers equal civil and political rights on all Germans and guarantees their equal eligibility for public office and the civil ser vice regardless of “religious affi liation.” Another clause in Article 136 bans compulsory disclosure of one’s religious convictions or participation in a religious exercise, including the mandatory taking of a religious oath. Finally, Article 56, which contains a reference to God in the oath of office prescribed for the federal president, allows the oath to be taken “without a religious affirmation.” The Weimar-era articles that were incorporated into the Basic Law embrace a complicated scheme of church-state relations. While proclaiming that “[t]here shall

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be no state church,” these articles accord the established churches an important role in the nation’s public life, investing them with various institutional guarantees, including privileges flowing from their constitutional status as “religious bodies under public law,” together with the constitutional requirement that Sundays and holidays be set aside “as days of rest from work and of spiritual edification.” In keeping with this spirit of cooperation between church and state, the constitution also provides for religious instruction in the public schools, although most commentators see this practice as a manifestation of the free exercise of religion and a corollary of the constitutional right of parents, rooted in Article 7 (2), to determine whether “children shall receive religious instruction” in state schools. The Weimar Constitution’s “no state church” injunction (Article 137 (1)) is the Basic Law’s core nonestablishment provision. As other church-state clauses show, however, the meaning of the term “nonestablishment” in Germany differs significantly from its meaning in the United States. Rather than the “separationist” approach taken in the United States, Germany’s system may be described as cooperative, anticipating a limited partnership between church and state.3 Th is system of cooperation seeks to blend the principle of neutrality with those of tolerance and parity. The extent to which parity among religions has been achieved in state policy is the subject of this chapter’s discussion on minority religions. Th is chapter also includes selected materials on marriage and the family. The family relations and school provisions of the Basic Law were designed to protect the institution of marriage and to guarantee certain rights to mothers and children. Article 6 (1) elevates marriage and the family by placing them under “the special protection of the state.” The Basic Law’s solicitude for mothers is equally strong, for they too “shall be entitled to the protection and care of the community” (Article 6 (4)). The protection afforded to mothers under the Basic Law, together with the provision that provides illegitimate children “with the same opportunities for their physical and spiritual development as are enjoyed by legitimate children” (Article 6 [5]), was largely a Social Democratic (spd) achievement.4 Christian Democrats (cdu) were mainly responsible for including parental rights in the Basic Law. The most important of these rights are secured by Articles 6 (2) and 7 (2): The fi rst proclaims that the “care and upbringing of children are the natural right of parents and a duty primarily incumbent upon them”; the second, as noted earlier, secures to parents the right to have their children educated in the faith of their choice.5

free exercise of religion Religious tolerance came late to German public life. From the Peace of Augsburg in 1555 to the Napoleonic conquest in 1806, the principle cuius regio, eius religio governed religious life in Germany. Lessing’s plea for religious liberty, powerfully set forth in his Nathan the Wise (1779), was drowned out, along with other voices of the German Enlightenment, by floodwaters of religious intolerance that rushed, unabated, far

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into the nineteenth century. These waters fi nally receded with the ending of Bismarck’s Kulturkampf against the Catholic Church. Still, during most of the nineteenth century, and indeed until the Weimar Constitution of 1919, ties between church and state were close and religious discrimination was widespread. Lutheranism was effectively the official religion in most of the German states. Although Roman Catholics made up one-third of Germany’s population, they were virtually excluded from all high positions in the Reich government, and Jews, despite their uncommon social and professional attainments, were systematically barred from the public ser vice and the army.6 Article 4 of the Basic Law makes a clear break with this past, embracing the principle of religious and ideological freedom as well as the “undisturbed practice” of religion. On fi rst reading, these words and phrases may seem redundant. But freedom of faith (Freiheit des Glaubens) in German history has not always implied the freedom to express a corporate creed or, at the individual level, one’s inner convictions. In addition, German constitutionalism historically distinguished between the dominant churches (e.g., Catholic, Evangelical, and Reformed) and minor religious sects. Prior to 1848, the right to the public expression of religion was extended mainly to the former.7 Following the libertarian impulses of the Frankfurt Constitution and the Weimar Constitution, Article 4 and other nondiscriminatory provisions of the Basic Law set out to ensure the protection of all belief systems, religious as well as ideological.8 9.1 Rag Collection Case (1968) 24 BVerfGE 236 [A Catholic youth association orga nized a charitable drive to collect old clothes and other secondhand goods, which were to be sold to obtain money for needy young people in underdeveloped countries. The campaign to collect such goods was announced from the pulpits of Catholic churches and publicized in the press. A scrap dealer engaged in the collection and sale of the same goods, who was fi nancially hurt by the voluntary drive, secured an order from the Düsseldorf Regional Court (Landgericht) prohibiting any further publicity of the drive from the pulpit. The youth association lodged a constitutional complaint against the order, alleging a violation of Article 4 (2), which guarantees the “undisturbed practice of religion.” The Court affi rmed the constitutional complaint.]

∂

Judgment of the First Senate. . . . III. The constitutional complaint is justified. The challenged decision violates the association’s fundamental right to the undisturbed practice of religion (Article 4 (2) of the Basic Law) because the court did not sufficiently consider the scope and signifi-

R eligion, Conscience, and Fa mily R ights 541

cance of this fundamental right in interpreting and applying the concept of “good morals” within the meaning of § 826 of the Civil Code (Bürgerliches Gesetzbuch) to market transactions. . . . 2. a. The fundamental right to the free exercise of religion (Article 4 (2) of the Basic Law) is included within the concept of freedom of belief. Th is concept— whether it concerns a religious creed or a belief unrelated to religion—embraces not only the personal freedom to believe or not to believe (i.e., to profess a faith, to keep it secret, to renounce a former belief and uphold another), but also the freedom to worship publicly, to proselytize, and to compete openly with other religions. To this extent the unfettered exercise of religion is merely a component of the freedom to believe accorded to individuals as well as denominational and ideological groups. At least since the Weimar Constitution the right to the free exercise of religion has been merged with freedom of belief. The par ticu lar guarantee of the free exercise of religion secured by Article 4 (2) of the Basic Law against encroachments by the state can be explained historically. The right originated as a rejection of the disruptions of free religious exercise that occurred under National Socialist rule. The historical development clearly shows that Article 4 (2) also protects the basic rights of association. Their religious existence and right to engage in public activity are protected in a variety of forms and modes of participation. . . . Because the “exercise of religion” has central significance for every belief and denomination, this concept must be expansively interpreted vis-à-vis its historical content. In support of this view, religious freedom can no longer be restricted by an express provision of the law, in contrast to Article 135 of the Weimar Constitution, nor is it tied to other regulations concerning the relationship of church and state. The right is not subject to forfeiture under Article 18 of the Basic Law. Moreover, several other constitutional provisions protect this right (e.g., Articles 3 (3), 33 (3), 7 (3) [3], 7 (2) of the Basic Law; and Article 140 of the Basic Law, which incorporates Articles 136 (3) [1] and 136 (4) of the Weimar Constitution into the Basic Law). The right to free exercise extends not only to Christian churches but also to other religious creeds and ideological associations. Th is is a consequence of the ideological-religious neutrality to which the state is bound and the principle of equality with respect to churches and denominations. Thus, there is no justification for interpreting the freedom to perform the rituals associated with religious beliefs more narrowly than freedom of belief or creed. Accordingly, the exercise of religion includes not only worship and practices such as the observance of religious customs like Sunday ser vices, church collections, prayers, reception of the sacraments, processions, display of church flags, and the ringing of church bells, but also religious education and ceremonies of nonestablished religions and atheists as well as other expressions of religious and ideological life. b. The basic right secured by Article 4 (1) and (2) of the Basic Law is accorded not only to established churches, religious communities, and associations united by a particular creed, but also to associations only partially devoted to fostering the religious

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or ideological life of their members. It is essential only that the organization be directed toward the attainment of a religious goal. . . . The complainant association is not organizationally incorporated into the Catholic Church but it is institutionally connected with it. Priests are represented on its board of directors, and diocesan bishops place their stamp of approval on the articles of association. The complainant’s goals are also within the sphere of church activities. Its articles of association expressly provide that the association is to serve the living church in its mission of alleviating through material support the spiritual and corporeal needs of people throughout the world. The fundamental right to the free exercise of religion pertains, therefore, to this association. c. Rag collections organized by the complainant for religious motives, including announcements from the pulpit occasioned by the collection, are protected religious activities under Article 4 (2) of the Basic Law. In determining what is to be regarded as the free exercise of religion, we must consider the self-image of the religious or ideological community. Indeed, the state, which strives to remain neutral in religious matters, must interpret basic constitutional concepts in terms of neutral, generally applicable viewpoints, and not on the basis of viewpoints associated with a par ticu lar confession or creed. Yet, in a pluralistic society in which the legal order considers the religious or ideological self-image of the individual as well as the self-image of those performing rituals associated with a par ticu lar belief, the state would violate the independence of ideological associations and their internal freedom to organize accorded by the constitution if it did not consider the way these associations see themselves when interpreting religious activity resulting from a specific confession or creed. The Catholic and Evangelical churches view the exercise of religion as encompassing not only the freedom to worship and believe but also the freedom to act on those beliefs in the real world. The active love of neighbor is, according to the New Testament, an essential duty for the Christian and is understood by both Catholic and Evangelical churches as a fundamental religious duty. . . . It follows from the nature of religious freedom outlined here that a charitable collection has a religious character and may claim the protection of Article 4 (2) of the Basic Law only if it meets certain conditions. Donors must make their contributions to the collection free of charge; the gift must flow from a par ticu lar religious attitude or ideology of the donor, whether mercy or love of one’s neighbor or an expression of personal commitment to a just and good cause based upon ideological convictions. To church members Christian love is more than a mere social transaction designed to provide the poor and needy with the minimum existence necessary for a life of human dignity. It follows from this characterization that Christian love means caring for the poor within the broad framework of religious consciousness. Organizers of the clothing collection must inform donors of the purpose and use of the collected goods to prevent false expectations and deceptive publicity. . . . d. The collection organized by the complainant, together with the announcement of the campaign from the pulpit, is within the framework of these general requirements.

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The collection of donated articles for the support of the needy is part of the traditional function of the deaconate. The method of sale here envisioned was justified by the facts of the case and reflects the par ticu lar relationships involved. Because the donations were intended for the needy overseas, the association could better attain the maximum effective assistance through sale of the collected items than through costly transport of articles such as usable clothing. . . . Furthermore, the assertion by the dealer that 90 percent of rag collectors would have to cease operations as a result of the charitable collections is immaterial to the evaluation of the “Spring Cleaning Campaign” as an act in the area of the practice of religion. Quite apart from the fact that according to the judgment of the Regional Court, which is material to the decision to be taken by the Federal Constitutional Court, the collection by the complainant was also permissible within the scale at which it was carried out, and that it has not been found whether the drop in volume of the rag collection trade is not the result of general economic structural changes. Evan a change in the structure of this trade should be accepted as a result of charitable collections. A free, competitive economy does not provide traders with a subjective right under the constitution to a constant volume of business, nor does it safeguard future yields. e. Because the complainant’s collection of used clothing and secondhand goods is part of the exercise of religion protected by Article 4 (2) of the Basic Law, the regional Court also should have taken into consideration the emanations of this fundamental right in its evaluation of the announcement from the pulpit as an “unethical market transaction.” If the collection itself enjoys special protection because of its religious-charitable purpose and character, then that protection also must extend to supporting activities within the framework of normal religious life such as the announcements from the pulpit at issue in this case . . . Because the collection was conducted within the sphere of protected religious activities, there is no doubt as to the validity of the solicitations. In the interpretation of the concept “unethical” market transaction, the Regional Court should have recognized that competition between a tradesperson and a religious association is much different from competition between solely commercial entities. The religious association bases its activity on the constitutional right to the unfettered exercise of religion, a right more highly valued than the right to compete in the marketplace. In considering the instant fact constellation, the Regional Court should not have termed the collection unethical. Insofar as the Regional Court has barred the complainant, the judgment must be reversed. . . .

∂

Free Exercise and Its Regulation. Article 4 contains no reservation clause that would allow the regulation of religion by law. It therefore imposes an absolute ban on any law directly regulating religious belief. Equally absolute is the ban on any direct regulation of the free exercise of religion. Any statutory limitation of this right is valid only when

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sanctioned by other provisions of the Basic Law itself.9 Moreover, as Rag Collection teaches, if freedom of religion is to be rendered an effective right under the Basic Law, then its expression cannot be limited to the sanctuary. The Court accepted that belief manifests itself in social work within the community and other practices in society that represent the expression of religious idealism and commitment.10 In addition, the guarantee of free exercise applies to individuals as well as to religious communities. Interestingly, the Federal Constitutional Court (Bundesverfassungsgericht) did not hesitate to defi ne the meaning of a religious activity. Although accepting the association’s claim in Rag Collection that it was engaged in a fundamentally religious exercise, the Court nevertheless seemed to have independently confi rmed the religious content of the association’s activity. Article 4 (1) embraces freedom of faith, conscience, and a philosophy of life. Article 4 (2), however, guarantees only the “undisturbed practice of religion.” The Court’s jurisprudence interprets the term “religion” in Article 4 (2) broadly,11 although, as we shall see, the Court does not view “religion” as synonymous with beliefs rooted in conscience or a philosophy of life. Where, however, legislation enacted in the interest of the general peace and safety of the community confl icts with the “undisturbed practice of religion” under Article 4 (2), the job of the courts is to balance the interests of the individual and society. If, in the context of a par ticular case, the individual’s claim can be sustained without significantly burdening the good order of the community, then the claim has a good chance of being sustained. The Blood Transfusion Case (1971) is an illustration of this balancing process. In this case, a husband honored his wife’s refusal, on religious grounds, to have a blood transfusion necessitated by the birth of their fourth child. He placed the decision entirely in his wife’s hands; she was conscious and mentally competent until her death. He was later convicted of a misdemeanor for failing to provide her with the assistance needed to undergo the transfusion. The Constitutional Court’s decision on the husband’s constitutional complaint challenging his conviction as a violation of Article 4 is important for the Court’s reiteration of several basic propositions. First, the Court insisted that freedom of belief “encompasses not only the internal freedom to believe but also the external freedom to manifest, profess, and propagate one’s belief.”12 Second, the Court explained that freedom of belief is not unlimited. Like all basic rights, its exercise must conform to the Basic Law’s conception of the human person, namely, a responsible person “developing freely within the social community.” Th ird, the Court held that the limits on freedom of religion, like those on the freedom of artistic expression, must be found in the constitutional text itself, for this freedom may not be limited by ordinary law. Finally, the Court found that the enforcement of an otherwise valid criminal law must be relaxed “when an actual confl ict between a generally accepted legal duty and a dictate of faith results in a spiritual crisis for the offender that . . . would represent an excessive social reaction in violation of the offender’s human dignity.” In applying these principles to a marriage involving “two autonomous individuals, both with a right to the free development of their personalities” and “convinced that prayer was the most effective way of saving her life,”13 the senate

R eligion, Conscience, and Fa mily R ights 545

concluded that the imposition of criminal punishment on the husband in this instance would not be justified. Tobacco Atheist and Courtroom Crucifix Cases. As just noted, the absence of a reservation clause in Article 4 means that only some other competing constitutional right or value can directly limit the free exercise of religion. Tobacco Atheist (1960) illustrates this view.14 Here, the Court sustained the denial of parole to a prisoner because he tried to persuade his fellow inmates to abandon the Christian faith by offering them tobacco. The First Senate declared: One who violates limitations erected by the Basic Law’s general order of values cannot claim freedom of belief. The Basic Law does not protect every manifestation of belief but only those historically developed among civilized people on the basis of certain fundamental moral opinions. . . . The religiously neutral state cannot and should not defi ne in detail the content of this freedom, because it is not allowed to evaluate its citizens’ beliefs or nonbeliefs. Nevertheless, the state must prevent misuse of this freedom. It follows from the Basic Law’s order of values, especially from the dignity of the human being, that a misuse is especially apparent whenever the dignity of another person is violated. Recruiting for a belief and convincing someone to turn from another belief, normally legal activities, become misuses of the basic right if a person tries, directly or indirectly, to use a base or immoral instrument to lure other persons from their beliefs. . . . A person who exploits the special circumstances of penal servitude and promises and rewards someone with luxury goods in order to make him renounce his beliefs does not enjoy the benefit of the protection of Article 4 of the Basic Law.15

Tobacco Atheist underscores the importance of the relationship between par ticu lar rights of liberty and the general value order of the Basic Law. Courtroom Crucifix (1973) is another important milestone in the development of the Constitutional Court’s free exercise jurisprudence. Over the objection of a Jewish litigant appearing before them, the judges of Düsseldorf ’s Administrative Court insisted on keeping crucifi xes in their courtroom. The First Senate stepped gingerly in this case, refusing to hand down a ruling that would absolutely bar a crucifi x from adorning a courtroom. “The mere presence of a crucifi x in a courtroom,” declared the senate, “does not demand any identification with the ideas and institutions symbolically embodied therein or compel any specific behavior in accordance thereof.”16 In the context of this case, however—two crucifi xes were in view, one of them on the bench itself—the senate found that the presence of the crucifi x was offensively obtrusive and virtually placed the legal proceeding and the oath administered to the litigant “under the cross,” thus violating her right to freedom of belief and conscience. The First Senate reaffi rmed the general principle that the state is obligated to remain neutral with respect to competing religious and ideological values.17 The Oath Refusal Case involves yet another example of a practice held to violate freedom of belief and conscience. The question posed by the case was whether a witness in

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a criminal proceeding could be forced to take an oath before testifying. The oath in question was not a religious oath. Under Article 136 (4) of the Weimar Constitution, which was incorporated into the Basic Law’s Article 140, persons “may [not] be compelled . . . to take a religious form of oath.” The required oath was secular. 9.2 Oath Refusal Case (1972) 33 BVerfGE 23 [An evangelical pastor was called to testify in a criminal proceeding before the Düsseldorf Regional Court. Citing the Sermon on the Mount (Matthew 5:33–37), he refused on religious grounds to take any oath. The Düsseldorf Court, invoking Article 140 of the Basic Law in tandem with Article 136 (4) of the Weimar Constitution, held that the pastor was unjustified in refusing to take the oath and, accordingly, sentenced him to a fi ne and two days in jail. Düsseldorf ’s Higher Regional Court (Oberlandesgericht) dismissed the pastor’s appeal, whereupon he fi led a complaint in the Federal Constitutional Court, alleging a violation of freedom of belief and conscience under Article 4 of the Basic Law.]

∂

Judgment of the First Senate. . . . B. The constitutional complaint on this issue is both permissible and legally justified. The oath of a witness, when sworn without using God’s name pursuant to § 66c (2) Code of Criminal Procedure (Strafprozessordnung), is purely a worldly affi rmation of the truth of a statement without religious or in any way transcendental reference according to the value order of the Basic Law. The differing view of the complainant is nonetheless protected by Article 4 (1) of the Basic Law. Accordingly, the complainant was justified in refusing to take the oath. . . . II. The fundamental right of religious freedom under Article 4 (1) protects the complainant’s convictions. His conviction does not coincide with this interpretation of the constitution and statute. The complainant continues to view today’s oath, even in its nonreligious form, as a deed with religious reference, the swearing of which God forbids according to the words of the Sermon on the Mount. He did not refuse to take the oath without “legal grounds” in the sense used in § 70 (1) of the Code of Criminal Procedure, and consequently may not be prevented from following the dictates of his faith—not even indirectly by the imposition of a penalty. 1. Religious freedom under Article 4 (1) guarantees the individual a legal sphere in which he may adopt the lifestyle that corresponds to his convictions. Th is encompasses not only the (internal) freedom to believe or not to believe but also the individual’s right to align his or her behavior with precepts of faith and to act in accordance with internal convictions. It follows from the command of ideological-religious

R eligion, Conscience, and Fa mily R ights 547

neutrality that binds the state and from the principle of the parity of churches and creeds that the numerical strength of a particular faith or its relevance in society cannot be determinative. Article 4 (1), as a specific expression of human dignity guaranteed by Article 1 (1), protects those infrequently occurring convictions that diverge from the teachings of the churches and religious communities. The state may neither favor certain creeds nor evaluate the beliefs or lack of faith of its citizens. The constitution grants the right of religious freedom unreservedly—restricted neither by the general legal system nor by an undefi ned provision mandating a balancing of concrete interests. Its limits may be drawn only by the constitution itself; that is, according to the directives of the constitutional value order and the unity of this fundamental value system. In particular, the close relationship between religious freedom and human dignity as the supreme value in the system of fundamental rights precludes the state from sanctioning activities and behavior that flows from a par ticu lar belief, independent of its ideological motivation. A distinctive characteristic of a state that has proclaimed human dignity to be its highest constitutional value and that guarantees the inalienable freedom of religion and conscience unrestricted by statute is that it permits even outsiders and sects to develop their personalities in keeping with their subjective convictions, free of harassment. Th is freedom is granted them so long as they do not contradict other values of constitutional rank and their behavior does not palpably encroach upon the community or the fundamental rights of others. 2. a. The complainant refused to take the oath of a witness on the basis of a personal religious conviction derived from the Bible. He submits that in accordance with his faith all oaths are prohibited by divine command. The very act of swearing is said to lead to self-damnation in the event of perjury. Thus, in his view, swearing is not compatible with Christian teaching, but instead belongs to magical ideas. This viewpoint fi nds some support from the text of the Bible (Matthew 5:33–37) and is espoused by a school of newer theology—Gollwitzer, for example. For this reason alone, one must not fail to consider this viewpoint within the framework of Article 4 (1). The state may not evaluate its citizens’ religious convictions or characterize these beliefs as right or wrong. b. The complainant’s refusal to take the oath goes beyond the internal area of belief fundamentally shut off from state intervention and conflicts with the duty the governmental community places as a matter of principle on all citizens in the interest of an effective administration of justice. As a rule, the legislature views the witness’s oath in a criminal proceeding as an indispensable means of finding the truth, and consequently has as a starting point the principle of mandatory oaths for witnesses. . . . Nonetheless, the complainant’s overriding fundamental right to refuse to take an oath according to his understanding of his faith, and his right not to be forced indirectly by means of a penalty to commit an act contrary to this understanding, is not subject to any limitation derived from the value system of the Basic Law itself. More particularly, no such restriction may be derived from Article 136 of the Weimar Constitution in conjunction with Article 140 of the Basic Law. The relation in

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which this provision, taken from the Weimar Constitution and incorporated into the Basic Law, stands today to the fundamental right of religious freedom does not justify the reverse conclusion drawn from Article 136 (4) of the Weimar Constitution in the Higher Regional Court’s contested order; that is, that everyone may be forced to use a nonreligious form of oath. The framers of the Basic Law removed the freedom of religion and conscience from the context of the article on churches in the Weimar Constitution and inserted this right—insulated from restriction by simple statute— into the cata logue of directly binding fundamental rights that are paramount in the constitution. Consequently, one must interpret Article 136 of the Weimar Constitution in the light of the substantially increased impact of the fundamental right of the freedom of religion and conscience in contrast with earlier times; according to its meaning and internal weight in the context of the system of the Basic Law, Article 136 is superseded by Article 4 (1). Under the Basic Law, one may determine which duties within the meaning of Article 136 (1) of the Weimar Constitution the state may enforce vis-à-vis the right contained in Article 4 (1) only according to the provisions of the value decision embodied in Article 4 (1). c. The complainant can ask to be absolved from fulfi lling his duty to swear an oath pursuant to Article 4 (1) on the ground that his religious convictions forbid this act. . . . The interest of the governmental community in an efficiently functioning administration of the law, which has its place in the value system of the Basic Law (compare Article 92 of the Basic Law), should not be undervalued because, in the fi nal analysis, every court decision serves to safeguard fundamental rights. But accepting a decision not to be sworn in based on someone’s conviction that swearing an oath is not permissible in an individual case does not impair this interest. The affi rmation of the veracity of a witness’s testimony, viewed by lawmakers as an indispensable means of truth-fi nding, need not necessarily take place exclusively in the form of an oath using the word “swear.” . . . 3. . . . As long as the legislature has not regulated the witness’s power to refuse to swear an oath on religious grounds in a manner consistent with Article 4 (1), this fundamental right will produce a direct and, if necessary, corrective effect in the area of the existing law of criminal procedure. Consequently, courts must interpret § 70 (1) of the Code of Criminal Procedure in conformity with the constitution so that . . . in a par ticu lar case the fundamental right contained in Article 4 (1) may relieve a witness from the duty of swearing to the truth of his or her testimony. Justice von Schlabrendorff, dissenting. . . . With respect to the issue of a witness refusing to take an oath, I do not agree with the decision reached by the majority of the senate. My dissenting opinion is grounded upon the following reasons: . . . 2. The complainant bases his view upon the Sermon on the Mount. The majority of the senate believes that the complainant’s argument fi nds some support in this text. Th is circumstance compels an examination of the sense and meaning of the Sermon on the Mount.

R eligion, Conscience, and Fa mily R ights 549

Thomas Aquinas, on behalf of the Catholic Church, as well as Martin Luther and Calvin on behalf of the Protestant Church, left no doubt that the Sermon on the Mount does not apply to the state. Th is sermon is not a law and, above all, is not a law for the earthly millennium. . . . As a consequence, one may read and understand the Sermon on the Mount only from the standpoint of eschatology. If one fails to take this to heart, one runs the risk of becoming allied with religious fanatics who, in reliance upon the Sermon on the Mount, believe it their duty to change the world into a pseudo-paradise. Only those living beyond this world live in the truth. People in the earthly eon live in the world of facts. But the Sermon on the Mount does direct their glance toward the world beyond. . . . Those who interpret the Sermon on the Mount positivistically have no sense of history and increase the danger of political irresponsibility. Those who think like the Christian complainant in this case renounce the worldly regiment of God by rejecting the oath but fail to appreciate the meaning both of salvation and of the Sermon on the Mount. According to the Gospel of Matthew, Jesus of Nazareth, too, swore an oath before the High Council—he, who as a religious personality has no equal in the history of the world. To state this more clearly, the view of the majority of the senate, as far as it is expressed in the words “the complainant’s view fi nds some support in the Sermon on the Mount,” is a serious misinterpretation of this text and the term “faith.” Admittedly, the majority of the senate is correct in saying that some modern theologians no longer share the opinions of Thomas Aquinas and the reformers. Th at, however, is a question of the correct or incorrect interpretation of the Sermon on the Mount. Consequently, the assumption seems reasonable that the complainant’s behavior contained not an act of faith but rather a misinterpretation. A citizen who, according to his own statement, ascribes to the Christian belief and makes an obvious misinterpretation has no claim to the protection of Article 4 of the Basic Law. . . . 4. The preamble of our Basic Law states that the German people have chosen a new system in the awareness of their responsibility to God and mankind. The result is that our constitution recognizes and affi rms the existence of God. Therefore, the tendency to secularism in our people has not extinguished the concept of God. Every person and every country believes in God. The person who denies God believes in false gods. The same applies to a country. . . . At issue is not how many people reject the oath. Article 4 of the Basic Law also protects the individual’s belief if it remains within the limits of the order that preserves the state. Nor does this case involve either a psychological or sociolog ical issue concerning whether or not the oath today is still a suitable means of fi nding out the truth. The oath is a question of ethical principles. The following realization is important and decisive: Neither a human being nor a people nor a country can live without God. Consequently, the centuries-old tradition of our German people mandates that we maintain this religious basis as well as the oath while simultaneously exercising neutrality toward all churches and ideological communities.

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5. We Germans can never again renounce the rights of freedom. The state, too, can ill afford to dispense with self-preservation. Therefore we must try to fi nd a balance between the individual’s right to freedom and the state’s right to exist. The Americans recognized this problem very early. As a result, the Supreme Court in Washington sought and found a balancing formula. The Court says: An individual’s claim to a right of freedom violates the constitution if it creates a clear and present danger for the good of the public. Although this pragmatic reasoning encounters objections in Europe, it is better to sacrifice erudition for the sake of the body politics’ existence.

∂

Conscientious Objection. Under Article 4 (3) of the Basic Law, freedom of faith and conscience includes a person’s right not to be “compelled against [one’s] conscience to render military ser vice involving the use of arms.” The Basic Law ranks virtually alone among advanced constitutional democracies in extending constitutional protection to conscientious objectors. Most commentators regard this freedom, as does the Constitutional Court itself, as a concrete manifestation of the general freedom of conscience secured by Article 4 (1).18 The Court has exalted this freedom in glowing terms, relating it to the fundamental dignity of the human personality. Its decisions emphasize three things: 1) freedom of conscience within the meaning of Article 4 (3) extends to persons motivated by religious and nonreligious values, 2) the state is absolutely bound to respect this freedom, and 3) freedom of conscience is to be given priority over any countervailing interest of the community.19 Article 4 (3) lay dormant in the fi rst years of the Federal Republic’s life. It emerged from its slumber when the Allies decided to rearm West Germany, and when in response the Federal Parliament (Bundestag) enacted the Universal Military Ser vice Act (1956),20 § 25, which requires conscientious objectors to perform alternative civilian ser vice. In 1968, when West Germans inserted into the Basic Law a new section on national defense (Article 115a–l), they also added Article 12a (2) [2] to the section on basic rights. The amendment constitutionalized the principle of compulsory alternative ser vice for conscientious objectors and stipulated that the length of such ser vice “shall not exceed that of military ser vice.”21 (Only men were covered by the terms of Article 12a.) Conscience: Its Meaning and Application. The Conscientious Objector I Case (1960) is the seminal decision under Article 4 (3).22 In a rather strict interpretation of this provision, the First Senate ruled that it applies only to military ser vice involving the use of weapons. In addition, a person’s refusal to bear arms must be rooted in conscientious objection to all war. Selective objection to a par ticu lar war or to the use of a specific weapon is impermissible. Having set these parameters, the senate then looked into the nature of conscientious objection. “Conscience,” declared the senate, “is to be understood as an experiential and spiritual phenomenon that absolutely compels a person, in demonstrating his concern for fellow human beings, to commit himself unreservedly to an ideal.”23 The touchstone of conscientious objection, the

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senate continued, is whether a person experiences “an inner moral command against the use of arms of any kind and in all circumstances, an interior force that touches the very depths of his personality, steering him away from evil and toward the good.”24 It makes no difference whether this interior moral force springs from religious, philosophical, ethical, or even emotional considerations. Courts may not, therefore, consider the logic of a conscientious objector’s claim. Yet reason alone is insufficient to support such a claim; it must truly be the result of an interior commitment, one that would cause exceptional grief and suffering for the person forced to take up arms. Accordingly, freedom of conscience does not absolve a person from obedience to laws of general applicability enacted for the common good. It does not, for example, absolve one from paying taxes merely because he or she is conscientiously opposed to the use of tax funds for military purposes.25 It should be noted, fi nally, that the Constitutional Court has extended the reach of Article 4 (3), together with the corresponding provision of Article 12a (2), to military ser vice involving the use of arms in time of peace as well as war. In practice this has resulted in exempting conscientious objectors from military ser vice of any kind, including ser vice without weapons. Such an objector would nonetheless be liable for “alternative service” under the terms of Article 12a (2). Alternative Ser vice. Several important cases arising under Article 4 (3) have involved challenges to various aspects of the requirement for alternative ser vice. Early on, before the inclusion in the Basic Law of Article 12a (substituting alternative service), the Constitutional Court sustained, over the religious objection of a Jehovah’s Witness, a statutory requirement of alternative civilian ser vice. 26 In subsequent cases, also involving Jehovah’s Witnesses, the issue shifted to the form and duration of punishment that could be infl icted on persons who refused to perform civilian ser vice. While establishing that reasonable punishment may be infl icted after the fi rst refusal to perform alternative ser vice, the Court ruled that successive convictions and imprisonment arising out of repeated refusals to perform such service are unconstitutional.27 For many years federal law required all conscientious objectors to submit to an oral test of conscience before a local draft board, a cumbersome procedure increasingly complicated by rising numbers of young men seeking conscientious objector status (from 3,311 in 1963 to 32,565 in 1975). Approximately 75 percent of these satisfied the test.28 In 1977, the spd-fdp coalition government simplified this procedure. Under an amendment to the Military and Civilian Ser vice Acts, potential conscripts could now obtain conscientious objector status simply by notifying local officials in writing that they were opposed to bearing arms as a matter of conscience, thus allowing such persons to choose civilian over military ser vice without submitting themselves to scrutiny before an examining board.29 As a consequence, the number of applicants for conscientious objector status shot up in the following months to seventy-five thousand.30 By the end of 1977, according to one report, 130,000 conscientious objectors were still waiting to be assigned to civilian duty.31 Th is situation exploded into a major

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political controversy when 214 cdu members of the Bundestag sought and won from the Constitutional Court a temporary injunction against any further implementation of the notification provision pending a decision on its constitutionality.32 These facts and figures furnished the background to the Conscientious Objector II Case (1978),33 the product of an abstract judicial review proceeding. Over the single dissent of Justice Martin Hirsch, the Second Senate invalidated the Notification Act of 1977. The Basic Law, the Court reasoned, empowers the federal government to legislate in the field of national defense (Article 73 (1)), to establish the armed forces for purposes of defense (Article 87a), and to introduce universal conscription (Article 12a). The defense of the country, therefore, is a constitutional duty. The Court explained that Article 12a, reinforced and undergirded by Article 3 (1) (the general equality clause), imposes this duty equally on all citizens except for those who, under Article 4 (3), refuse combat duty on the ground of conscience, in which case they must perform alternative civilian ser vice for a time not exceeding the length of military ser vice. Th is principle of equality, the Court concluded, requires legislation that ensures that those assigned to alternative ser vice within the framework of Article 12a are in fact conscientious objectors within the meaning of Article 4 (3). The notification statute fails to meet this criterion because it contains no adequate test of conscience. Rather, said the Court, “it opens the door to an abuse of the appeal to conscience and thus permits violations of a community duty in a manner antithetical to the constitutional concept of parity.”34 Extended Alternative Ser vice. In 1983, with the cdu in power, the Bundestag with the consent of the Federal Council of States (Bundesrat) passed a new law that dispensed with the oral hearing before an examining board. It also extended the period of compulsory civilian ser vice to twenty months, five months longer than the fi fteen months required of military conscripts.35 Legislators felt that the longer period of civilian ser vice for conscientious objectors, together with a requirement for more detailed information to be fi led in written form with a federal agency, would be as effective in screening out fraudulent claims under Article 4 (3) as in an oral hearing. They assumed that a person willing to spend the additional time (one-third longer) in civilian ser vice is in all likelihood conscientiously opposed to military ser vice. But the measure seemed to contradict Article 12a, which states explicitly that the duration of civilian ser vice shall not exceed that of military ser vice. It was now the spd’s turn to contest the constitutionality of the statute in an abstract review proceeding before the Constitutional Court.36 Over the strong dissents of Justices Böckenförde and Mahrenholz, the Second Senate rejected arguments against the statute based on the principle of equality under Article 3 (1), freedom of conscience under Article 4 (3), and Article 12a (2). In a broad construction of Article 12a, the senate held that the longer period of civilian ser vice is effectively equal to the time spent in mandatory military ser vice. The senate felt that the harsher conditions of military ser vice, including the additional months (nine altogether) of required duty and possibility of being called up for active

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duty in the event of a crisis, warranted the extended period of civilian ser vice for conscientious objectors. So long as the time for civilian ser vice does not exceed twentyfour months (equivalent to the total commitment of military conscripts: fi fteen months in basic training and nine on reserve duty), said the senate, the legislature is free to consider such matters and lay down durational requirements that seek to balance the burdens of military and nonmilitary ser vice. In so doing, the legislature achieved the normative goal of Article 12a without impinging on freedom of conscience under Article 4 (3).37 The Military Desertion Case (2002), fi nally, involved a former East German resident who, in 1989, refused to serve in the East German People’s Army but volunteered to fulfi ll his ser vice in public works projects.38 Two years later, on the basis of his readiness to work on such projects, he was classified as a conscientious objector under Article 12a but refused to report for civilian ser vice, identifying himself as a “declared unlawful total objector” (erklärter, ungesetzlicher Totalverweigerer).39 He was forthwith classified as a “deserter” and punished accordingly by a local court. A Potsdam Regional Court judge, hearing the case on appeal, certified several issues to the Federal Constitutional Court in a concrete judicial review proceeding. The regional court seriously doubted the constitutionality of compulsory military ser vice in the aftermath of the Cold War because now, in its view, Germany’s military needs could be met by an all-volunteer army. The Second Senate unanimously rejected the regional court’s application, holding, inter alia, that the challenged statute had already been upheld by the Court and that, in the meantime, no legal or social changes had occurred that would warrant another review of the compulsory military ser vice system. With the official suspension of obligatory military ser vice in early 2011, the constitutional issues raised in the preceding cases became moot. The suspension was planned to go into effect on 1 July 2011. The reform, announced by Karl-Theodore zu Guttenberg, Minister of Defense, was part of the government’s plan to modernize the Federal Armed Forces (Bundeswehr) and to reduce its size from 240,000 soldiers to a professional army of 170,000 volunteers. Apart from the government’s effort to cut military spending, the abolition of conscription seemed perfectly reasonable given plans to reduce compulsory ser vice from nine to six months and the mounting difficulty of placing increasing numbers of conscientious objectors in alternative ser vice positions. The changeover to an all-professional army was expected to take between five and seven years, and for the fi rst time, military ser vice would be open to both men and women. The abolition of mandatory ser vice was also designed to produce a more flexible and efficient instrument of German security policy capable of responding more swift ly and effectively to internal and external military threats.40

minority religions Germany’s religious profi le has changed substantially in recent decades, especially since national unification. In the late 1950s 95 percent of all Germans identified with

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one of the main Christian denominations. By 2006, in the aftermath of unification, the figure dropped to around 70 percent. Roman Catholics numbered 25.5 million while the Evangelical Church (a confederation of Lutheran, Uniate, and Reformed Protestant Churches) counted 24.8 million members. In the Federal Republic’s five new federal states (Länder), encompassing the former Socialist East German Democratic Republic, 65 percent of the population reported no religious affi liation. Twentyseven percent identified themselves as Protestant and a mere 5.6 percent as Catholic. (The exodus from the mainline churches is no less significant. Figures for 2004 and 2005 showed that 451,945 persons declared their withdrawal from the rolls of their respective churches.) In 2005 some 105,000 people belonged to Jewish religious groups; an additional 80,000 Jewish persons were listed as nonpracticing. Muslims, on the other hand, represented the second-largest religious community after Christianity. In 2006 4.3 million Muslims from forty-one countries, mainly Turkish residents, lived in Germany, one reason for the frequency of constitutional cases involving the religious claims of Muslim communities.41 Cults and Sects. Since the 1960s a large number of minor religious and ideological groups have sprung up in Germany. They include the “Unification Church” of Sun Myung Moon, the Krishna Movement, and dozens of transcendental meditation groups. Because of their appeal to young people, these groups have been called “youth sects” or “youth religions” or, more disparagingly, “psycho sects” or “psycho groups.” Accused of brainwashing their members and alienating them from their families and the larger society, these groups have been subject to parliamentary inquiries on the basis of which governmental reports have warned the public of their activities and dangers. One of these reports led to the Constitutional Court’s Osho Case (2002). The Bundestag had issued a report charging the Osho Movement, a meditative association started by the Indian mystic Rajneesh Chandra Mohan, with “psychologically manipulating” its members and characterizing the group as a “youth sect,” a “destructive religious cult,” and a “pseudo-religion.” In a complaint challenging the propriety of this governmental branding, the Osho Movement contended that these claims denigrated it in the public eye and impaired rights guaranteed by Article 4 (1) and (2) of the Basic Law. The First Senate agreed. While holding that the federal government is perfectly entitled to disseminate objective information about the activities of such groups in the public interest, the state is obligated to observe “ideological” neutrality and to act with restraint so as “not to make defamatory, discriminatory, or distorting portrayals of a religious or ideological community.” 42 The senate found that the necessary restraint, including the principle of proportionality, had been violated in this instance, impinging on the right to the “undisturbed practice of religion.” The senate did, however, approve the group’s characterization as a “sect,” “youth sect,” “youth religion,” and “psycho-sect” as a more neutral or objective description. Considering these characterizations as equally discriminatory and destructive, the Osho association petitioned the European Court of Human Rights (ecThr), con-

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tending, inter alia, that Germany had impaired its rights to “freedom of thought, conscience and religion” under Article 9 (1) of the European Convention on Human Rights. Over the dissent of two judges, the Human Rights Court found no violation of Article 9, holding that within the margin of appreciation granted to national authorities in disputes such as these, “the Court considers that the [German] Government’s statements as delimited by the Federal Constitutional Court . . . did not entail overstepping the bounds of what a democratic state may regard as the public interest.”43 What may have tipped the scale in favor of the German government was its decision to stop using the term “sect” in its information campaign on minority religions. Church of Scientology. One of the most controversial groups to appear on the German scene in recent years, one claiming to be a religious body, is the Church of Scientology. Founded by L. Ron Hubbard, an American science fiction writer, the church has been anything but welcome in Germany. With the Bundestag’s approval, it has been under surveillance by several Land governments for its allegedly manipulative recruiting practices and hostile activities against the constitution.44 Scientology claims to be a faith whose meaning is recovered and captured by the use of special therapeutic techniques that liberate persons from the psychic problems that have affl icted the human spirit over the millennia. According to one of its principal tenets, human beings are spirits, not bodies, whose origins go back millions of years. The object of the therapy, called “auditing,” is to clear the mind by erasing the troubles and frustrations of a thousand lifetimes. It is claimed to be fundamentally a transcendent experience. The auditing techniques are designed to put persons in touch with their origins and to clarify their relationship to the universe. The church claims to be particularly effective in dealing with problems of illiteracy, drug addiction, crime, and immorality, resulting in enhanced spiritual health and physical well-being. Scientology has grown enormously in recent decades in both numbers and wealth. It claims to have thousands of groups and missions in some 163 countries with reported assets of around $400 million.45 Auditing sessions often cost thousands of dollars, and the church has been accused of fraudulent fi nancial practices and of harassing members who fail to pay their debts. For these reasons Scientology has often been labeled a sham and little more than a profit-making enterprise. For these reasons, too, the German Länder, which have jurisdiction over religious associations, have refused to register the Church of Scientology as a “religious” or “ideological” association within the meaning of the Basic Law’s Article 140 in conjunction with Article 137 (3) of the Weimar Constitution. The Federal Constitutional Court has not yet adjudicated any of Scientology’s religious claims under the free exercise provisions of Article 4. On 5 December 2005, however, the Federal Administrative Court (Bundesverwaltungsgericht) handed down a key decision sustaining the religious claims of a member of the Church of Scientology.46 The case involved the validity of a so-called protective declaration issued by the city-state of Hamburg. A protective declaration is a government document that

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alerts companies or business owners to the dangerous commercial practices of certain social groups or business organizations. In this instance a company, fearing harm to its own reputation, used the declaration to force a businesswoman—a member of Scientology—who sold its products at retail to cease forthwith from employing any of Scientology’s methods or techniques to influence her customers. The company ended the business relationship when she refused to sign the declaration, at which point she sued Hamburg, invoking the religious liberty provisions of Article 4. The case raised a problematic issue: What qualifies as an actionable infringement of a fundamental right? In short, does the state interfere with a constitutional right when it simply issues a report warning the public about the detrimental effects of a company’s product, a political group, or a religious organization? In deciding the issue, the Federal Administrative Court drew upon obiter dicta in the Osho Case, which involved a religious movement described by the state as a “destructive, pseudo-religious organization.”47 The Federal Administrative Court regarded the declaration, as it thought the Constitutional Court had done with respect to the official admonition in Osho, as the functional equivalent of a direct state infringement on the right to religious liberty. The Federal Administrative Court reserved the question whether the Church of Scientology was itself a religious organization. Instead, it focused on the applicant’s self-proclaimed faith in Scientology and whether she regarded its tenets as personally binding.48 The protective declaration in this case encouraged a company to break off a business relationship with another person based solely on her religious views. The Federal Administrative Court vindicated the applicant’s negative freedom against a state infringement of a guaranteed freedom. Th is emphasis on the personal beliefs of the individual serves as an overture to the Ritual Slaughter Case. In assessing whether an association or group is “religious,” the Constitutional Court has tended to defer, although not always,49 to the way these associations see themselves. When the basic rights of individuals are at stake, said the Court, what is critical are their personal beliefs and not those of the larger religious communities to which they belong. Th is is particularly relevant for the diverse body of Muslims who now constitute the third-largest religious group in Germany after Lutherans and Roman Catholics. Unlike these churches, however, there is no central Muslim religious authority to decide what is orthodox or not in the belief system. 9.3 Ritual Slaughter Case (2002) 104 BVerfGE 337 [Germany’s Animal Protection Act (Tierschutzgesetz) of 1986 requires the stunning of warm-blooded animals before they are slaughtered, but provides an exemption from this requirement for religious reasons. The act provides for an exemption or an “exceptional permission only to the extent necessary” to meet the needs of religious groups whose dietary laws prohibit the consumption of the meat of animals not ritually slaughtered (i.e., not stunned). Admin-

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istrative authorities denied the exception to a Sunnite Muslim butcher, a nonGerman who had operated a butcher shop in Germany for twenty years. The denial was based on their conclusion that “ritual slaughter was not mandated by the highest representatives of Sunnite Islam,” although the butcher’s customers and the butcher himself believed they were religiously bound to consume the flesh of ritually slaughtered animals. The butcher fi led a constitutional complaint against Hesse’s administrative denial of the exemption as well as several judicial decisions sustaining the denial, including the fi nal decision of the Federal Administrative Court. He argued that up to now Jewish butchers had routinely been granted an exemption and that he and his customers were entitled under the law to the same permission. He challenged the rulings against him on the basis of his personality, equality, religious liberty, and occupational rights guaranteed respectively under Articles 2 (1), 3 (1) and (2), 4 (1) and (2), and 12 (1) of the Basic Law. Although the “undisturbed practice of religion” was a critical element in the case, the Federal Constitutional Court’s decision affi rming the butcher’s constitutional complaint rested mainly on occupational liberties like those protected for Germans under Article 12 but made applicable to the non-German butcher through their incorporation into the universal protections of the right to personality and freedom of action under Article 2 (1). The religious issue turned largely on whether the “objective” position of the Sunnite branch of the Islamic faith would trump the “subjective” religious views of the butcher and his customers.]

∂

Judgment of the First Senate. . . . B. The constitutional complaint is well-founded. Certainly, the applicable provisions of the Animal Protection Act are compatible with the Basic Law. However, the challenged decisions in this case do not stand up to review by the Federal Constitutional Court. I. 1. The Federal Constitutional Court’s basis for review is, fi rst and foremost, Article 2 (1) of the Basic Law. In the original proceedings, the complainant, a pious Sunnite Muslim, sought an exemption from stunning prescribed by § 4a (1) of the Animal Protection Act in order to ensure, by practicing his occupation as a butcher, that his customers would consume meat of ritually slaughtered animals. . . . Because the complainant is not a German but a Turkish citizen, this activity is not protected by Article 12 (1) of the Basic Law. The relevant provision that provides protection in this context is Article 2 (1) in the form that results from the special link between Article 12 (1) of the Basic Law, which only applies to Germans, and Article 2 (1), which is only of subsidiary validity for foreigners. For the complainant, however, ritual slaughtering is not only a means for obtaining and preparing meat for his Muslim customers and for himself. It is, according to his statements, which have not been called into question in the challenged decisions, also an expression of a basic religious

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attitude that for the complainant as a pious Sunnite Muslim includes the obligation to perform the slaughtering in accordance with the rules of his religion, which is regarded as binding. Even if ritual slaughtering itself is not seen as an act of religious practice, the above-mentioned statements are to be given due consideration by enhancing the protection of the complainant’s occupational freedom under Article 2 (1) by the special liberty rights (Freiheitsgehalt) that are contained in the fundamental right of the freedom of religion under Articles 4 (1) and 4 (2). II. 1. It is true that the regulation encroaches upon the fundamental right under Article 2 (1) in conjunction with Articles 4 (1) and 4 (2), because it permits slaughtering without stunning within the occupational activity of a Muslim butcher only under the limited conditions established by the second part of § 4a (2) [2] of the Animal Protection Act. a. It is the purpose of the Animal Protection Act to protect the life and well-being of animals out of responsibility for animals as humankind’s fellow creatures. No one may, without reasonable cause, infl ict pain, suffering or damage upon an animal (§ 1 of the Animal Protection Act). The aim of a protection of animals that is based on ethical principles is also served by the regulation under § 4a (1) in conjunction with § 4a (2) [2] {2} of the Animal Protection Act. . . . Th is is a legitimate aim of a regulation, which also takes the feelings of broad sections of the population into consideration, and especially with a view to ritual slaughtering. aa. The regulation is suitable and necessary for achieving the purpose of the regulation (i.e., for extending a protection of animals that is based on ethical principles also to the slaughtering of warm-blooded animals). [In this section of the opinion, the Court examined the Animal Protection Act and the legislative consideration underlying it, holding that the act satisfied all the standards of constitutionality, including the principle of proportionality. The act was seen as a legitimate effort to minimize animal cruelty and suffering, while simultaneously carving out an exemption for religious persons who would be “unreasonably restricted” in the exercise of their fundamental rights. As for the exemption itself, the Court concluded that it validly “requires an exceptional permission because the Parliament wanted to submit ritual slaughter to increased supervision by the state.”] In par ticu lar, the Parliament intended to create, apart from examining the applicants’ expertise and personal aptitude, the possibility to ensure, through collateral clauses to the exceptional permission, that the animals that are bound for slaughter are spared any avoidable pain and suffering during transport, immobilization, and the ritual slaughtering itself. Th is was supposed to be achieved, for instance, by orders about suitable premises, equipment and other devices. Thus, the regulation intends to prevent, wherever possible, domestic or other private slaughtering that often does not ensure due ritual slaughtering and that, therefore, can result in particularly offensive suffering for the animals concerned; instead, it intends to promote slaughtering in approved slaughterhouses.

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Apart from this, the prerequisite for the grant of an exceptional permission pursuant to the act is that in the specific case, the needs of adherents of a religious group are to be met, who are, by mandatory provisions of their religious group, prohibited from consuming the meat of animals that were not ritually slaughtered. The fact that the law permits only exemptions from the mandatory stunning prescribed by the Animal Protection Act if these prerequisites are met inevitably results in a decrease of the possible exemptions. In the case of Islam, it must also be taken into account that this religion itself, as the Muslims’ Central Council in Germany stated in its opinion, requires that the killing of animals be performed as gently as possible. Ritual slaughtering in accordance with the rules of Islam must be conducted in such a way that the death of the animal is effected as speedily as possible and that the animal’s suffering is restricted to a minimum, with any kind of cruelty to the animal being avoided. . . . 1. The encroachment upon Muslim butchers’ fundamental right to occupational freedom, however, carries much weight. Without the reservation of an exemption, it would no longer be possible for pious Muslims like the complainant to practice the occupation of a butcher in the Federal Republic of Germany. If they want to maintain their businesses at least as sales outlets, and not, as the complainant stated with regard to himself, give up their businesses to gain their livelihood in a different manner, they would have to restrict themselves to either selling imported meat of ritually slaughtered animals or meat of animals that were not ritually slaughtered (i.e., that were slaughtered after having been stunned). Each of these decisions would lead to far-reaching consequences for the person concerned. The decision to only market the meat of ritually slaughtered animals as a salesperson would not only mean forgoing the activity of a butcher but would also result in the uncertainty whether the meat that he or she offers really comes from ritually slaughtered animals and thus is suitable for consumption in accordance with the rules of the butcher’s faith and that of his or her customers. The decision to convert the butcher’s business to selling the meat of animals that were not ritually slaughtered would mean that the owner of the business would have to win new customers. Finally, a complete occupational reorientation, provided that it is still possible in the specific situation of the individual concerned, would mean that this person would have to make a completely new start. The ban does not only concern the Muslim butcher but also his customers. When they demand meat of animals that were ritually slaughtered, this is obviously based on the fact that they are convinced that their faith prohibits them, in a binding manner, from eating other meat. If they were required to forgo the consumption of meat, this would not sufficiently take the eating habits in the Federal Republic of Germany into consideration. In Germany meat is a common food and it can hardly be regarded as reasonable to involuntarily renounce its consumption. It is true that the consumption of imported meat makes such renunciation dispensable; however, due to the fact that in this case, the personal contact to the butcher and the confidence that goes with such contact would be lacking, the consumption of imported meat is fraught with insecurity about whether the meat really complies with the commandments of Islam.

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2. These consequences for pious Muslim butchers and their pious customers must be weighed against the fact that the protection of animals constitutes a public interest that is attached high importance among the population. The Parliament has taken this into consideration by not regarding animals as objects but as fellow creatures, which also feel pain, and by intending to protect them by special laws. Such protection is, above all, enshrined in the Animal Protection Act. . . . 3. Yet, an exemption from the mandatory stunning of warm-blooded animals before their blood is drained cannot be precluded if the intention connected with this exemption is to facilitate, on the one hand, the practice of a profession with a religious character, which is protected by fundamental rights, and, on the other hand, the observation of religious dietary laws by the customers of the person who practices the occupation in question. Without such exemptions, the fundamental rights of those who want to perform slaughtering without stunning as their occupation would be unreasonably restricted, and the interests of the protection of animals would, without a sufficient constitutional justification, be given priority in a onesided manner. What is necessary instead is a regulation that, in a balanced manner, takes into consideration 1) the fundamental rights that are affected, and 2) the aims of a protection of animals based on ethical principles. . . . The Federal Administrative Court held that the case at hand did not provide the legal elements required by this statute because Sunnite Islam, of which the complainant is an adherent, just as Islam in general, does not mandatorily ban the consumption of the meat of animals that were not ritually slaughtered. Th is interpretation does not live up to the meaning and the scope of the fundamental right under Article 2 (1) in conjunction with Articles 4 (1) and 4 (2) of the Basic Law. The result of this interpretation is that § 4a (2) [2] {2} of the Animal Protection Act is rendered ineffective for Muslims irrespective of their religious convictions. Th is interpretation prevents butchers who intend to perform a ritual slaughtering from exercising their occupation . . . because these butchers, with a view to the faith that they and their customers adhere to, want to ensure their supply with the meat of animals that were slaughtered without being stunned. Th is is an unreasonable burden for the persons concerned, which, in a one-sided manner, only takes the interests of the protection of animals into account. If it were interpreted in this manner, § 4a (2) [2] {2} of the Animal Protection Act would be unconstitutional. c. Th is result, however, can be avoided by interpreting the legal elements “religious group” and “mandatory provisions” in a manner that takes into account the fundamental right under Article 2 (1) in conjunction with Articles 4 (1) and 4 (2). . . . In the case of a religion that, as Islam does, takes different views as regards mandatory ritual slaughtering, the point of reference of such an examination is not necessarily Islam as a whole or the Sunnitic or Shiitic persuasions of this religion. The question whether mandatory provisions exist is to be answered with a view to the specific religious group in question, which may also exist as a subset of such a persuasion. III. 1. The challenged decisions that were issued by authorities and courts violate the complainant’s fundamental right under Article 2 (1) in conjunction with Articles

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4 (1) and 4 (2) of the Basic Law. The authorities and administrative courts misjudged the necessity and the possibility of a constitutional interpretation of § 4a (2) [2] {2} of the Animal Protection Act; they therefore restricted the above-mentioned fundamental right in a disproportionate manner when applying the exemption regulation concerning the ban on ritual slaughtering. The denial of the exceptional permission that the complainant applied for and the confi rmation of this decision in the objection proceedings and in the proceedings before the administrative courts are based on this circumstance. It cannot be ruled out that the complainant’s customers, like the complainant himself, are members of a religious group in the above-mentioned sense that mandatorily requires that they observe ritual slaughtering, and that, if the decision had been based on this fact, the complainant would have been granted the exceptional permission to facilitate the consumption of the meat of ritually slaughtered animals to his customers and to himself. 2. As regards the challenged decisions, the decisions made by the administrative courts are to be overturned pursuant to § 95 (2) of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz). The matter is referred back to the [Federal] Administrative Court because it can be expected that the dispute on a point of administrative law will be terminated there on the basis of the present judgment. . . . Th is decision was taken unanimously.

∂

Status of Religious Minorities. Although Article 4 of the Basic Law underscores the principles of neutrality, tolerance, and parity among religions, the articles of the Weimar Constitution, incorporated into the Basic Law under Article 140, create a twotiered structure of church-state relations. The first tier applies to religious bodies entitled to acquire registered “legal capacity according to the general provisions of civil [i.e., private] law” (Article 137 (4) of the Weimar Constitution). Once registered, these religious bodies or churches are institutionally entitled to all the freedoms associated with the “undisturbed practice of religion” guaranteed by Article 4. To register as an association under private law, the association or society must show that it is a “religion” (a matter largely of self-defi nition), that it has members with long-term religious goals, and that its organization and tenets are compatible with the constitution. The right to form a religious association and to acquire legal capacity according to civil law may not be lightly denied. In the Bahá’í Religious Community Case (1991), for example, the Second Senate declared that the religious freedom guarantees of Article 4 (1) and 4 (2) may be invoked to challenge a Land’s denial of a registered legal status to a religious community. Religious freedom and the right to practice a religion, ruled the Court, include the right to form religious societies and to acquire the legal capacity to enable such societies to participate in general legal transactions.50 The second tier, which embraces a more coveted legal status, is reserved for religious bodies designated by Article 137 (5) of the Weimar Constitution as “corporations under public law.” Churches that had been granted this status as public-law corporations in

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the Weimar Republic automatically retained this status under the Basic Law, a status enjoyed mainly by the traditional, mainline churches, Catholics and Lutherans in particular. In their capacity as corporations under public law, churches are entitled to tax their members on the basis of civil tax lists, but they also receive other tax benefits along with breaks from some provisions of labor and employment law, not to mention their right to membership on the governing boards of public institutions. Yet the churches are not part of the state. Rather, they cooperate with the state in fulfi lling their mission, and in carry ing out their missions they enjoy the independent right of self-determination (Article 137 (3) of the Weimar Constitution), an independence that applies to the rules and internal structure of church-created institutions organized under civil law such as hospitals, schools, and charities. The status of certain churches as public-law corporations obviously necessitates accommodation between “throne and altar.” The churches, for example, would be unable to tax their members without the cooperation of the state’s civil registration lists. Finally, Article 137 (5) of the Weimar Constitution provides that other religious societies or churches “shall be granted the same rights [to corporate status under public law] upon application,” but only if they demonstrate their permanence by their history, membership, and the intensity of their religious activity. In addition, they must establish their loyalty to the constitutional order of the Basic Law. In recent decades, several smaller religious groups have been granted corporate status under public law after satisfying the tests of durability, number of adherents, intensity, and loyalty.51 They include the Old Catholic Church, Salvation Army, Evangelical Methodist Church, Unitarians, Orthodox Judaism, Seventh-Day Adventists, the Mormon Church, the New Apostolic Church, and the Federation of Evangelical Free Church Societies (Baptists). It is important to note that applications for public or private corporate law status must be approved initially by the Länder since religious activity, like cultural matters generally, lies within their jurisdiction. Depending on Land law the body entrusted with registering these groups may be a par tic u lar ministry, a court of law, or the legislature itself, subject of course to judicial review. Apart from the Church of Scientology, the religious group that has had the most difficulty getting classified as a corporation under public law is the Jehovah’s Witnesses.52 The following decision fi nally resolved their confl ict with the state. 9.4 Jehovah’s Witnesses Case (2000) 102 BVerfGE 370 [The Jehovah’s Witnesses have been active in Germany since the end of the nineteenth century. After having been persecuted and banned by the Nazis, the Witnesses reconstituted themselves early on in West Germany as the “Watchtower Bible Tract Society” and applied to Berlin’s Land legislature for corporate status under public law in line with the relevant provisions of the Basic Law. The application was denied, and, after several appeals to the city-state’s

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administrative courts, the denial was upheld by the Federal Administrative Court even though the Witnesses had no difficulty establishing their permanence in accord with the standard measures of intensity and numbers of adherents. The denial was based largely on the failure of the Witnesses to satisfy the requirement of loyalty to the constitutional order. The Administrative Court emphasized that Article 137 (5) of the Weimar Constitution envisioned a cooperative relationship between church and state that implied, above all, loyalty to the state and even an affi rmation of active participation in the democratic process, including a willingness to serve in the armed forces or to perform alternate ser vice of some kind. The Witnesses, the Federal Administrative Court concluded, would not and could not satisfy these requirements. In response, the Jehovah’s Witnesses of Germany fi led a constitutional complaint alleging a violation of the equality clauses of Article 3 (1) and (2) as well as Article 4 (1) and (2) in conjunction with Article 140 of the Basic Law and Article 137 (5) of the Weimar Constitution. The Constitutional Court agreed.]

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Judgment of the Second Senate. . . . C. The constitutional complaint is well-founded. The contested decision of the Federal Administrative Court violates the complainant’s [Jehovah’s Witnesses of Germany] constitutional rights as set out in Article 140 of the Basic Law in conjunction with Article 137 (5) of the Weimar Constitution. II. 1. The written precondition for granting corporate public-law status to churches required by Article 140 of the Basic Law in tandem with Article 137 (5) of the Weimar Constitution is an “assurance of permanency.” A religious community that wishes to become a corporate body under public law must by its own constitution and the number of its members support the prognosis that it will continue to exist over the long term. The actual overall situation of a religious association may offer an authoritative basis for assessing the possibility of its continued existence which, according to the Basic Law, is of foremost importance. According to the intent of the Weimar National Assembly this assessment was not to be based on some coincidental, external criterion, but on the “deeper intent of its own constitution.” . . . The guarantees of the articles of the Weimar Constitution dealing with churches are designed to further the realization of the fundamental right to freedom of religion. . . . The status of a corporation under public law is to support the selfadministration and independence of religious associations. Religious associations with public-law status possess the same fundamental rights as do religious associations orga nized under private law. . . . Article 137 (5) of the Weimar Constitution functions as a “framework concept.” But it is more than an empty formula because it confers on religious associations qualifying as corporations a special legal status well beyond that of private-law religious associations. With corporate status, they are granted certain sovereign powers

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(e.g., the right to tax their members and to function as public-law employers) that enable such religious associations to shape their organizations and activities in accordance with the religious principles that govern the way in which their members see themselves and to obtain the resources, such as funding, for this purpose. . . . IV. A religious community that wishes to become a corporation under public law must of course respect the law (Rechstreue). It must give an assurance that it will comply with valid law and promise especially to exercise the sovereign powers assigned to it only in harmony with constitutional and other legal obligations. . . . V. A religious association wishing to acquire corporate status under public law must especially guarantee that in its future conduct it will not endanger the fundamental constitutional principles set forth in Article 79 (3) of the Basic Law, the fundamental rights of third parties under the state’s protection, or basic principles of the liberal law on religious organizations and the law of church and state enshrined in the Basic Law. 1. a. Article 79 (3) of the Basic Law forbids any modification whatsoever of the principles laid down in Articles 1 (1) and . . . 20 of the Basic Law. In addition to the principle of human dignity anchored in Article 1 (1) . . . and the core content of rights included therein, the Basic Law also declares other guarantees contained in Article 20 as unamendable. These include the principle of democracy and the constitutional state principle. In the long term, the state may not tolerate any systematic impairment or endangerment of these principles, which the Basic Law has established in perpetuity, not even from a religious community that is a corporation under public law. b. Insofar as they act outside the area of the sovereign powers assigned to them, these publicly incorporated religious associations are not directly bound by individual fundamental rights. . . . However, the award of corporate status under public law obliges them to respect the fundamental rights of persons as specified by the constitutional order. The Basic Law places human dignity and other fundamental rights under the protection of the constitution and thus obligates the state to protect human life and physical integrity. Children can claim protection from the state under Article 2 (1) and . . . 2 (2) of the Basic Law, thereby taking the best interests of the child into account as required by Article 6 (2) of the Basic Law. Article 4 (1) and . . . (2) of the Basic Law also require the state to protect individuals and religious communities against attacks and hindrances by members of other faiths or competing religious groups. Publicly incorporated religious associations have a public legal status and are vested with certain sovereign powers. Accordingly, they have special authority and a heightened influence in both state and society. They are therefore more closely associated than other religious communities with the special duties of the Basic Law which aim at the protection of third parties. These duties prohibit granting corporate status under public law to a religious community against which the state would be entitled or indeed obliged to intervene to safeguard legal interests that are protected by fundamental rights. c. The status of a corporate body under public law is a means to facilitate and develop the freedom of religion. For the religious bodies, it gives rise to a preferen-

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tial legal status. It is entrenched in the liberal state law on churches contained in the Basic Law. Th is state law on churches has as its main reference the freedom of religion. It has abolished a church and state religion. It complies with the principles of the religious and ideological neutrality of the state and the parity of religions and denominations, and it guarantees that public corporate status does not reduce the freedom of constitutional law as a whole. Th is constitution places limits on granting public-law corporate status, and the religious communities with preferential status must also respect these boundaries. Their conduct may not impair or endanger these principles of the liberal state law on churches. The Basic Law prohibits granting public-law status to any religious association that would undermine the Basic Law’s prohibition of a state church or the principles of neutrality and parity. . . . 2. c. Requiring religious associations to be loyal to the state over and above these aforementioned requirements is unnecessary to protect core constitutional values; moreover, any such requirement would be incompatible with these values. The activity and status of a religious association that is a corporation under public law are rooted in the constitutional freedom secured by Article 4 (1) and . . . (2) of the Basic Law unless constitutional restrictions are provided. The holders of this freedom may determine whether and how they use this freedom. Fundamentally, rights-based freedom, from the state’s point of view, is formal freedom. The holders of the fundamental right need not orient their activity in line with the interests of the state. Th is would, however, be demanded of a religious association that had to orient its activities to demonstrate its loyalty to the goals of the state, its constitutional order, and the values contained therein. . . . Moreover, the demand that a religious body incorporated under public law must be loyal to the state is not an easy matter to handle legally. “Loyalty” is a vague concept amenable to an extraordinary number of possible interpretations, including the expectation that the religious community must adopt specific state goals or regard itself as an agent of the state. The concept also refers to an inner disposition, or an attitude, and not merely to outer behavior. Hence, it not only endangers legal certainty, but it also leads to a drawing together of religious associations and the state, a connection that is neither required nor permitted by the state law on churches enshrined in the Basic Law. . . . 3. The examination as to whether the current and anticipated conduct of a religious association provides assurance that it will not impair or damage the fundamental constitutional principles set forth in Article 79 (3) of the Basic Law, the fundamental rights of third parties . . . , or the fundamental principles embodied in the law on religious organizations . . . is contingent on a complex prognosis. Thus, a large number of elements must be combined and appreciated. Mathematical precision cannot be achieved. For such a determination it would be typical to assume that a danger to the abovementioned protected interests would first result from a combination of many individual circumstances. On the other hand, merely one or two shortcomings do not jeopardize the required guarantees. Here, the courts are entrusted with the responsibility of

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including the essential or salient characteristics in an overall consideration . . . in order to make a decision regarding the grant of public-law corporate status to a religious body. VI. . . . 2. The religious prohibition of participation in state elections does not justify per se a denial of public-law corporate status. The principle of democracy that is unassailable under the terms of Article 79 (3) of the Basic Law assumes that the implementation of state tasks and the exercise of state powers must originate from the people within the state. Th is depends on the free election of the people’s representatives as a basic act of democratic legitimization. The Basic Law also assumes that citizens will participate in the democratic process. For good reasons, however, it does not require this responsibility as a legal obligation. A citizen’s consent to the state order created by the Basic Law, without which liberal democracy could not exist, cannot be coerced by an obligation to obey, or indeed by sanctions. The essence of democracy is to be found in intellectual interchange and debate. . . . Accordingly, the reluctance of Jehovah’s Witnesses actually to participate in state elections does not affect the normative content of the principle of democracy. . . . Th is reluctance is neither a politically reasoned conclusion nor intended to weaken democracy. The Witnesses do not intend to replace democracy by another state form. Nor are they draft ing or pursuing a political manifesto; quite the contrary, for they are committed to an apolitical concept of life. The Witnesses have not targeted the free constitutional order with their behavior but rather seek to secure a life beyond the political community in a condition of “Christian neutrality.” . . . 3. The judgment of the Federal Administrative Court thus violates Article 140 of the Basic Law in conjunction with Article 137 (5) of the Weimar Constitution. . . . Th is decision is unanimous.

∂

religious practices and symbols in public schools The School Prayer Case defi nes the meaning of religious freedom and the extent to which this freedom appears to collide with the declaration of Article 137 (1) of the Weimar Constitution, incorporated into the Basic Law under Article 140, that “[t]here shall be no state church.” School Prayer contrasts sharply with the outcome of similar American cases.53 The German Constitutional Court feels that a policy of equal respect and concern for the religious values of each student in the educational context requires not the suppression of a devotional exercise reflecting those values, but rather tolerance in the face of such expression, particularly when it is performed voluntarily and outside the teaching curriculum. Although voluntary prayer led by a teacher within the limited confi nes of a school may cause tension between principles of free exercise and “non-establishment” in the light of the values set forth in Articles 4 (1) and 7 (1), it is a tension that seems inescapable under these provisions.54

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In its church-state jurisprudence generally, the Second Senate—the chamber responsible for most questions arising under the “free exercise” provisions of the Basic Law—has recognized both the negative and positive character of religious freedom. Negative freedom includes the freedom of unbelief as well as the freedom not to disclose one’s religious beliefs. Positive freedom includes the right to express one’s belief in public. The idea of negative and positive freedoms is analogous to the concept of subjective and objective rights in the general sphere of fundamental rights and liberties. Freedom of religion in the negative sense means that the state must respect those inner convictions that belong to the domain of the self. Freedom of religion in the positive sense implies an obligation on the part of the state to create a social order in which it is possible for a person’s religious personality to develop and flourish.55 9.5 School Prayer Case (1979) 52 BVerfGE 223 [Th is case concerns the permissibility of school prayer, apart from religious instruction, when a student’s parents object. Two cases were combined for this decision. The fi rst presented the complaint of a parent who maintained that the administrative prohibition of prayer violated his constitutional rights; the second complainant claimed that being forced to pray in school over his objection violated his fundamental rights. In the fi rst case the Hesse Constitutional Court found that school prayer was not permitted if a pupil or the pupil’s parents objected. The court based this holding on the “negative freedom of confession,” an aspect of religious freedom said to protect the right to abstain from religious worship. Consequently, if a pupil disagreed with school prayer, he or she could not be put in a position where the only recourse was to refuse to participate in the exercise. Because the school considered in this decision was a state school, the prayer could not be viewed as an element of school instruction. The second complaint involved a denominational school in North Rhine– Westphalia. The Federal Administrative Court held that “negative freedom of confession” could not be granted precedence over “positive religious freedom” (i.e., the right to remain silent could not be construed to prohibit others from expressing their beliefs through school prayer). Because the Basic Law leaves the formation of the school system to the states and permits the establishment of “religion-affi liated” schools, neither a parent’s nor a pupil’s objection may serve as a basis for prohibiting school prayer.]

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Judgment of the First Senate. . . . A. The two matters, combined into a single constitutional proceeding, touch upon the issue of whether school prayer outside religious instruction should be permitted in compulsory state schools when a pupil’s parents object to the prayer.

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C. I. 1. The standards for judging the constitutional questions raised by the issue of school prayer are set forth primarily in Article 6 (2) [1], Article 4 (1) and (2), and Article 7 (1) of the Basic Law. Article 6 (2) [1] accords parents the right to freely determine as well as imposes the duty to provide for the care and education of their children. This right has precedence over the rights of other educational institutions but is subject to the limitations of Article 7 of the Basic Law. Th is parental right also includes the right to educate one’s child in religious and ideological respects. Article 4 (1) and (2) encompass parents’ right to teach their children those religious and ideological convictions that they believe to be true. On the other hand, Article 7 (1) confers a constitutional mandate upon the state to establish schools. The state’s power to shape the school system, vested in the eleven German states, includes not only the power to orga nize the school structure but also the power to determine course content and objectives. Consequently, the state can pursue its own educational goals in the classroom, goals that may be fundamentally independent of parental aims. The state’s mandate to establish a school system is autonomous and stands on the same footing as parents’ right to control the education and upbringing of their children; neither has an absolute priority over the other. 2. The problem of school prayer fi rst must be seen in the broader framework of whether religious references are ever permissible in compulsory interdenominational state schools, or whether the state, within its authority to structure the school system, is confi ned to making religious or ideological references in religion classes, which are expressly guaranteed in Article 7 (3). The Federal Constitutional Court considered this question in depth in its decisions of 17 December 1975, concerning Baden’s interdenominational schools as well as the Bavarian interdenominational schools. . . . Pursuant to those decisions, the incorporation of Christian references is not absolutely forbidden when establishing public schools, even though a minority of parents may not desire religious instruction for their children and may have no choice but to send their children to the school in question. However, the school may not be a missionary school and may not demand commitment to articles of Christian faith. State schools also must be open to other ideological and religious ideas and values. They may not limit their educational goals to those belonging to a Christian denomination except in religion classes, which no one can be forced to attend. Affi rming Christianity within the context of secular disciplines refers primarily to the recognition of Christianity as a formative cultural and educational factor that has developed in Western history. It does not refer to the truth of religious belief. With respect to non-Christians, this affi rmation obtains legitimacy as a progression of historical fact. Christianity’s educational and cultural aspects include, not insignificantly, the notion of tolerance for those holding other beliefs. . . . 3. If religious references are permissible in compulsory state schools within the principles and guidelines developed by the Federal Constitutional Court, then praying

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in school is not fundamentally and constitutionally objectionable. However, the performance of the prayer also must comply with the limits of the states’ authority to establish school systems under Article 7 (1) and not violate other constitutional precepts, in par ticu lar the individual rights of participants derived from Article 4. a. School prayer, in the sense in which it is the subject matter of this constitutional complaint proceeding, represents a supradenominational, ecumenical invocation of God based upon Christian beliefs. . . . As an act of religious avowal made outside religion instruction, school prayer is not part of the general school curriculum taught within the framework of the states’ mandate to establish an educational system for children. It is neither instruction typical of teaching a course nor the imparting of knowledge to pupils. It also is not a goal-oriented, pedagogical exercise of influence on the part of the school and teacher upon the children. Rather, it is a religious activity undertaken, as a rule, in concert with the teacher. Thus, it does not fall into the category of conveying Christian cultural and educational values, which the Federal Constitutional Court has deemed permissible within the framework of general instruction in Christian interdenominational schools. The constitutional permissibility of school prayer does not necessarily follow from the permissibility of these schools. b. Because school prayer is not a part of teaching a class in the sense of academic instruction, it cannot be a component of a binding lesson plan. Its per formance must be completely voluntary. Th is is universally undisputed in view of the provisions of Article 4 (1) and (2) as well as Article 140 in conjunction with Article 136 (4) of the Weimar Constitution. Voluntary participation applies not only to pupils but also to teachers of every class in which a school prayer takes place. . . . Even if school prayer is not and cannot be part of the mandatory, regulated class instruction, it remains a school event attributable to the state in each of the forms named—especially when school prayer takes place upon the teacher’s instigation during class time. To be sure, the state’s role is limited to creating the organizational setting for school prayer and permitting the prayer at the request of the parents or pupils or on its initiative. The state does not issue an order in this case; it makes an offer that the school class may accept. c. If the state, in the sense described, permits school prayer outside religious instruction as a religious exercise and as a “school event,” then certainly it is encouraging belief in Christianity and thus encouraging a religious element in the school that exceeds religious references flowing from the recognition of the formative factor of Christianity upon culture and education. Even in its transdenominational form, prayer is connected to the truth of a belief; specifically, that God can grant that which is requested. Nonetheless, permitting this religious element in compulsory interdenominational schools with the safeguard of voluntary participation still remains within the scope of creative freedom granted to the states as bearers of fi nal authority in school matters pursuant to Article 7 (1). Indeed, this result remains the same even if, in trying to reach an optimization of the confl icting interests, the fundamental right of those professing other beliefs under Article 4 is included in the assessment.

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Article 4 grants not only freedom of belief but also the external freedom publicly to acknowledge one’s belief. In this sense Articles 4 (1) and 4 (2) guarantee a sphere in which to express these convictions actively. If the state permits school prayer in interdenominational state schools, then it does nothing more than exercise its right to establish a school system pursuant to Article 7 (1), so that pupils who wish to do so may acknowledge their religious beliefs, even if only in the limited form of a universal and transdenominational appeal to God. . . . To be sure, the state must balance this affi rmative freedom to worship as expressed by permitting school prayer with the negative freedom of confession of other parents and pupils opposed to school prayer. Basically, schools may achieve this balance by guaranteeing that participation remain voluntary for pupils and teachers. . . . 4. Although the states are free to allow school prayer in the sense discussed here within their authority for the establishment of the educational system, they are not always compelled to permit prayer in public schools. Under the constitution, the states are bound to provide religious instruction as a regular subject of instruction in all state schools except strictly secular schools. But parents have neither an affi rmative right to demand that schools allow prayers nor a right to demand that the state establish schools of a par ticu lar religious or ideological character. . . . II. Although in principle we see no constitutional impediments to school prayer, we could reach a different conclusion if, in a specific case, a pupil or his or her parents object to praying at school. Both the Hesse Constitutional Court and the Münster Higher Administrative Court (Oberverwaltungsgericht) . . . took this view, but for different reasons. The deliberations of neither court may be upheld. 1. The Hesse Constitutional Court believes that schools must forbid school prayer upon the objection of a pupil because the pupil may not be placed in the position of having to proclaim to the world his or her religiously or ideologically motivated rejection of the prayer through his or her nonparticipation. . . . 3. The objection of a pupil holding other beliefs or of the pupil’s parents or guardians could lead to the prohibition of school prayer only if the school did not guarantee the dissenting pupil’s right to decide freely and without compulsion whether to participate in the prayer. As a rule, however, a pupil can fi nd an acceptable way to avoid participating in the prayer so as to decide with complete freedom not to participate. a. Pupils can avoid praying in the following ways. The pupil can stay out of the classroom while the prayer is being said; for example, he or she can enter the room only after the end of the prayer or leave the room at the end of class, before the closing prayer is spoken. The pupil holding other beliefs may also remain in the classroom during the prayer but not say the prayer along with the others; the pupil may then remain seated at his or her desk, unlike the others pupils saying the prayer. b. Admittedly, whenever the class prays, each of these alternatives will have the effect of distinguishing the pupil in question from the praying pupils—especially if only one pupil professes other beliefs. His or her behavior is visibly different from

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that of the other pupils. Th is distinction could be unbearable for the person concerned if it should place that pupil in the role of an outsider and serve to discriminate against him or her as opposed to the rest of the class. Indeed, the pupil in a classroom is in a different, much more difficult position than an adult who publicly discloses his or her dissenting conviction by not participating in certain events. Th is is especially true of the younger schoolchildren, who are hardly capable of critically asserting themselves against their environment. With respect to the issue of school prayer, the child will generally be involved in a confl ict not of the pupil’s own choosing, but rather one carried on by the pupil’s parents, on the one hand, and the parents of the other schoolchildren or teachers, on the other hand. 4. Nonetheless, one cannot assume that abstaining from school prayer will generally or even in a substantial number of cases force a dissenting pupil into an unbearable position as an outsider. An assessment of the conditions under which the prayer is to occur, the function that the teacher has in connection with this exercise, and the actual conditions in the school leads us to conclude that we need not fear discrimination against a pupil who does not participate in the prayer. . . .

∂

Church-State Relations and Neutrality. Neutrality is a central concept in German church-state relations.56 Th is follows from constitutional provisions banning legislative classifications based on religious opinions (Article 3 (3)), guaranteeing freedom of conscience (Article 4 (1)), and barring the establishment of a state church (Article 140, incorporating Weimar’s Article 137 (1)). Yet the constitution permits religious instruction in the public schools (Article 7 (3)), recognizes the churches as “corporate bodies under public law” (Article 140, incorporating Weimar’s Article 137 (5)), and authorizes such bodies to tax their members (Article 140, incorporating Weimar’s Article 139). Clearly, neutrality in Germany means something very different than it does in the United States. Cole Durham, drawing on a rich literature, has identified the senses in which the notion of neutrality in church-state relations has been understood.57 He identified these “models of neutrality” as nonintervention, nonidentification, equality, and cooperation. Nonintervention requires the state’s disentanglement from religious organizations in the interest of preserving their autonomy; nonidentification requires the state to refrain from taking sides in religious confl icts and from endorsing any religion or ideology; equality requires, at the level of the institutional church, that the denominations share equally in the distribution of public benefits and burdens; cooperation, fi nally, implies accommodation or joint action in various fields of activity. Each of these defi nitions of neutrality is capable of gravitating to the pole of separation or cooperation. “Despite considerable advocacy of the notion of a more separationist model of neutrality in Germany, the predominant view among German constitutional scholars is that separation in the French or American sense is clearly not mandated by the Fundamental Law.” 58 The theory of nonintervention comes close to

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the American doctrine of neutrality, but, as Durham remarked, “if exaggerated into absolute non-concern, [it] might have the effect of inadvertently favoring antireligious outlooks and thereby becoming an unacceptable type of passive intervention.” 59 By the same token, nonidentification construed as “wide-ranging state indifference to religious affairs . . . tends to be rejected on the grounds that it fails to recognize the level of church-state cooperation the German scheme permits and that it could degenerate into effectual identification of the state with a secular world view (Weltanschauung), which would be equally impermissible.”60 9.6 Interdenominational School Case (1975) 41 BVerfGE 29 [In 1967 Baden-Württemberg amended Article 15 (1) of its constitution to establish Christian interdenominational schools as the uniform type of public grade school within the state. In a constitutional complaint, parents whose children attended school in this state asserted a violation of their right to religious freedom under Article 4 (1) of the Basic Law. They objected to their children being educated according to any religious or ideological precepts. Complainants also alleged a violation of their parental right to determine the care and upbringing of their children pursuant to Article 6 of the Basic Law. The Court sustained the constitutionality of the Christian interdenominational school.]

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Judgment of the First Senate. . . . C. I. 1. a. Article 6 (2) of the Basic Law guarantees the complainants the right to raise their children in every respect; and this includes raising them in accordance with ideological or religious principles. However, this provision contains no exclusive parental claim to the education and upbringing of their child. The state, which supervises the entire school system under Article 7 (1) of the Basic Law, exercises its educational mandate in the area of school education autonomously and, in this realm, on the same footing with the parents. As did the Federal Constitutional Court in the Concordat Case [1957; no. 3.8], the Basic Law presupposes the organizational freedom of the states in educational matters. Article 7 . . . establishes the principles for the denominational organization of schools. Accordingly, persons charged with raising children have the right to determine if the child may participate in religious instruction that is offered as a regular subject in state schools, with the exception of nondenominational schools (Article 7 (3) [1]). If no state elementary school of this type exists in the local community, then a private elementary school is to be licensed as an interdenominational, denominational, or ideological school (Article 7 (5)). Article 7 does not provide for more farreaching parental influence on the denominational organization of the state school.

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To this extent this constitutional norm differs substantially from the so-called school compromise of the Weimar Constitution. In that document Article 146 (2) determined that, upon parental petition, the state was to establish elementary schools of the parents’ denomination or ideology within the community as long as the orderly operation of the school was not affected. It also provided that the wishes of the parents be respected as much as possible. b. The history of Article 7 illustrates that the states were intended to be largely independent with respect to the ideological and denominational character of state schools. Th is is primarily a manifestation of the principle of federalism. During preliminary deliberations on Article 7, the framers of the Basic Law rejected proposals suggesting more extensive parental rights, concerning religion in the form of a constitutional guarantee of denominational schools. . . . That is why the state legislature was granted extensive freedom to make democratic decisions concerning the actual organization of school systems. Accordingly, Article 7 (3) does not require the establishment of a specific type of school. Rather, it presupposes that the various school types of a religious or ideological nature are legally possible. Similarly, Article 7 (5) assumes that state elementary schools can be established as interdenominational, denominational, or ideological schools. According to this provision, a private elementary school is to be licensed as an interdenominational, denominational, or ideological school if no state elementary school of this type exists within the community. Thus, the Basic Law assumes that any of these types of state elementary schools are permissible. As a result, the state legislature is basically free to select one of the aforementioned forms or even a mixture of them. Neither the parental right in Article 6 (2) [1] nor other provisions of the Basic Law sets forth an affi rmative right of control on the basis of which parents could demand that the state establish schools of a par ticu lar religious or ideological character. Nor do complainants claim this right, as they specifically state. To this extent the Basic Law refers the parents to private schools. Basically, it allows the states to decide whether they want to grant parents an affi rmative right to control and participate in the denominational organization of public schools beyond the scope set forth in Article 7. . . . 2. a. Insofar as the denominational nature of the state elementary school encroaches upon religious freedom, it is primarily the constitutional position of the child who must attend such a school that is affected. But parents’ constitutional rights can also be affected when they are compelled to expose their school-age children to an education that does not correspond to their own ideas of religion and ideology. The ideological education of their children demanded by complainants is an inseparable part of the parent-child relationship, which the Basic Law specifically protects by guaranteeing the institution of the family (Article 6 (1)) and the parents’ right to raise their children (Article 6 (2) of the Basic Law). Considering the special weight to which the ideological and religious elements of parental child-rearing are entitled—at least until the child reaches the age of religious majority—a school education based on

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a different denomination can severely strain the entire parent-child relationship. Because of the inseparable connection between the educator’s task and his or her ideological and religious beliefs, the burden on the parent-child relationship brings the educator into confl ict with his or her own religious or ideological convictions and thus infringes upon the protected sphere of the educator’s fundamental right to religious freedom under Article 4. Consequently, this fundamental right also includes the right of parents to pass on to their children the kind of religious and ideological convictions they consider right. It is true that parents cannot derive from this right a claim against the state to have their children educated in the desired ideology. But parents’ obligation to allow their children to be exposed to ideological and religious influences that contradict their own convictions may adversely affect this right. Those charged with the child’s upbringing may, by virtue of their right to freedom under Article 4, protect themselves from governmental actions that adversely affect their personal, constitutionally protected sphere. . . . b. . . . Article 4 protects the negative as well as the positive manifestation of religious freedom against encroachments by the state. Th is freedom especially affects the organization of those areas of life which, because of their social necessity or political aims, are not left to the free play of social forces but have been taken into the care of the state. Additionally, where compulsory school attendance is at issue, the education of young persons is involved—an area in which religious and ideological ideas have always been relevant. In the instant case the complainants’ request to keep the education of their children free from all religious influences, based on Articles 4 (1) and 4 (2), must inevitably confl ict with the desire of other citizens to afford their children a religious education, also based on Article 4 of the Basic Law. There is a tension here between “negative” and “positive” religious freedom. The elimination of all ideological and religious references would not neutralize the existing ideological tensions and confl icts, but would disadvantage parents who desire a Christian education for their children and would result in compelling them to send their children to a lay school that would roughly correspond with the complainants’ wishes. . . . c. Because life in a pluralistic society makes it practically impossible to take into consideration the wishes of all parents in the ideological orga nization of compulsory state schools, we must assume that the individual cannot assert his or her right to freedom pursuant to Article 4 free of any limitation at all. To this extent the individual is limited in the exercise of his or her basic right by the countervailing basic rights of persons with different views. In school matters the task of resolving the inevitable tension between negative and positive religious freedom falls to the democratic state legislature. In the process of making public policy the legislature must seek a compromise that is reasonable for all while considering the varying views. As a guideline for its regulation, it can consider, on the one hand, that Article 7 of the Basic Law permits ideological and religious influences in the area of school matters, and, on the other hand, that Article 4 mandates the elimination of ideological and religious coercion as far as possible in choosing a par tic u lar form of school.

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When interpreting these provisions, one must see them together and harmonize them with one another because only the “concordance” of the legal values protected in both articles does justice to the decision of the Basic Law. None of these norms and principles takes precedence over the others a priori, even though the individual aspects differ in significance and internal weight. One can resolve this problem only by assessing the confl icting interests through a balancing process and categorizing the constitutional aspects previously discussed. At the same time one must take into consideration the constitutional commandment of tolerance as well as the safeguarding of state independence in matters of school orga nization. Further, one must keep in mind that individual states may pass differing regulations due to differences in school traditions, the denominational composition of the population, and its religious roots. 3. As a result, the state legislature is not absolutely prohibited from incorporating Christian references when it establishes a state elementary school, even though a minority of parents have no choice but to send their children to this school and may not desire any religious education for their children. But the legislature must choose a type of school which, insofar as it can influence children’s decisions concerning faith and conscience, contains only a minimum of coercive elements. Thus, the school may not be a missionary school and may not demand commitment to Christian articles of faith. Also, it must remain open to other ideological and religious ideas and values. The legislature may not limit a school’s educational goals to those belonging to a Christian denomination, except in religion classes, which no one can be forced to attend. Affi rming Christianity within the context of secular disciplines refers primarily to the recognition of Christianity as a formative cultural and educational factor that has developed in Western civilization. It does not refer to the truth of the belief. With respect to non- Christians, this affi rmation obtains legitimacy as a progression of historical fact. . . . Confronting nonChristians with a view of the world in which the formative power of Christian thought is affi rmed does not cause discrimination against minorities who are not affi liated with Christianity or who are opposed to their ideology—at least not if the issue focuses on striving to develop the autonomous personality in the ideological and religious realm according to the basic decision of Article 4 rather than focusing on an absolute claim to the truth of a belief. A school that permits an objective discussion of all ideological and religious views, even if based on a par tic ular ideological orientation, does not create an unreasonable confl ict of faith and conscience for parents and children under constitutional law. Parents have sufficient freedom to educate their children religiously and ideologically and to communicate to their off spring why they have affi rmed or rejected commitments of faith and conscience.

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Religion and the Schools. During most of the nineteenth and early twentieth centuries, confessional schools, usually Catholic or Protestant, predominated in Germany,

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a practice rooted in the historical association of education with the two mainline churches.61 Th is situation changed when the Basic Law placed the entire educational system under the authority of the individual Länder. Today, elementary and secondary schools are of three kinds—confessional, interdenominational (Gemeinschaftschulen), and secular (bekenntnisfrei)—but all are public schools fully fi nanced by the state. The interdenominational school, the standard form that most states have chosen to adopt, is a Christian-oriented school designed to serve students of all denominations. In several Länder, however, confessional schools exist side by side with interdenominational schools, and in some areas the former actually predominate. Secular schools follow a wholly nonreligious curriculum and are the preferred form in northern cities such as Bremen and Berlin. But even these schools often have religion classes, although attendance is voluntary and they are taught by persons who are not regular members of the faculty.62 The Concordat Case (1957; no. 3.8) vindicated a Land’s reserved right to establish the school system of its choice, even if this system contravenes the terms of an international treaty. Lower Saxony ignored the German-Vatican Concordat of 1933 when it decided in 1955 to adopt the interdenominational school as the standard form of elementary and secondary education, thus violating the agreement to have Catholic children placed in their own confessional schools. Article 7 (2), however, guarantees to parents the right to decide whether to have their children taught in the religion of their choice. In addition, pursuant to Article 7 (3), “[r]eligious instruction shall form part of the regular curriculum in state schools,” although “teachers may not be obliged against their will to give religious instruction.” Children whose parents object to religious instruction need not participate. Students choosing to enroll in such courses take their instruction from a regular member of the faculty who is a member of their faith and teaches in accordance with the tenets of that faith. With the exception of the controversy surrounding the Brandenburg Ethics Case (2001) and the related clash in Berlin over the introduction of compulsory nonreligious ethics instruction in 2009, the teaching of religion in state schools has been relatively noncontroversial in Germany. Article 7 (3) of the Basic Law, which prescribes religious instruction in the public schools, follows a practice that prevailed under the Imperial and Weimar constitutions. It is worth repeating that freedom of religion in Germany, like freedom of the press, is an institutional as well as an individual right. Article 7 (3) is one manifestation of the institutional guarantee. Under this guarantee, the churches direct the program of religious instruction under the general supervision of the state. Th is too has been noncontroversial. What is controversial is whether minority religious sects shall also be entitled to religion classes in state-supported schools. Recently, for example, North Rhine–Westphalia, with the support of the Turkish government, introduced special Islamic classes for Muslim children attending public schools.63 The state took this step over the objection of both the German mainline churches and the private Islamic schools, whose teachers demand the exclusive right to instruct students in the Koran.

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As the School Prayer Case demonstrates, religious practices that take place in the public schools, over and beyond formal religious instruction, may lead to controversy. Much of the litigation in this area, however, occurs in state constitutional tribunals.64 These tribunals decide disputes arising under their respective state constitutions. The predominant German view is that such practices constitute an important aspect of positive religious liberty so long as freedom of choice prevails. Ernst Christian Helmreich, an American authority on religious education in Germany, wrote: “At least these [religious] ser vices give public expression to what the people have written into their fundamental laws: that the schools are, with due respect and tolerance for representatives of other Weltanschauungen, to be organized on a Christian basis, and are to teach reverence for God in the spirit of Christian brotherhood.” 65 As the following case shows, however, the compulsory display of the crucifi x—or cross—in public school classrooms would trigger a different reaction in the Federal Constitutional Court. An urgent question in this case was whether the Court would draw upon its reasoning in School Prayer and Interdenominational School to defend the display of the crucifi x over the objection of non-Christian parents and students who claim that the practice violates their negative freedom of religion and its exercise. In Classroom Crucifix I (1991),66 the Federal Constitutional Court had rejected the parents’ application for a temporary injunction against the practice of displaying the cross in the classrooms attended by their children. Four years later, the Court addressed the merits of their argument. 9.7 Classroom Crucifi x II Case (1995) 93 BVerfGE 1 [A Bavarian school ordinance required the display of the crucifi x in every elementary school classroom. The parents of children attending one of these schools objected to the display. The parents, members of a sect known as Anthroposophy, which is based on the naturalistic quasi-religious teachings of Rudolf Steiner, claimed that the display of the crucifi x offended their children’s religious beliefs, thus violating the Basic Law. School officials sought to resolve the confl ict by removing the large crucifi x that had been on display and replacing it with a small cross absent the figure of Christ. Th is compromise, however, was not respected by school authorities when the next child of the complainants started school. The parents then fi led an action in the Bavarian Administrative Court for the removal of the cross. The court’s rejection of their motion was sustained by Bavaria’s Higher Administrative Court. The parents’ constitutional complaint against the court’s order and the ordinances requiring the display of the crucifi x found a sympathetic response in the Federal Constitutional Court.]

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Judgment of the First Senate. . . .

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C. The constitutional complaint is well-founded. The rejection of the plaintiff ’s claim is incompatible with Article 4 (1) and Article 6 (2). . . . [In the fi rst part of its opinion the Court addressed constitutional issues arising under Article 19 (4) of the Basic Law. Th is provision guarantees legal redress and effective protection against any claimed violation of a subjective constitutional right. The majority opinion noted that the Bavarian administrative courts had failed to appreciate the significance of the constitutional violation and had placed the burden on the plaintiffs to work out a compromise with school administrators. The plaintiffs seemed ready to compromise, and thus to avoid legal action, but school administrators failed to make any fi nal concession to the parents. In these circumstances, said the Court, the Bavarian administrative courts should have acted promptly to protect the children and their parents against any further delay in vindicating their liberty interest under the Basic Law.] II. The decisions of the Bavarian administrative courts violate the rights of complainants under Article 4 (1) in tandem with Article 6 (2) of the Basic Law. . . . These decisions are based on § 13 (1) [3] of Bavaria’s Elementary School Ordinance, which in turn is incompatible with the Basic Law and thus void. 1. Article 4 (1) of the Basic Law protects freedom of belief. Whether under this provision one is for or against a par ticu lar belief is an individual matter, not the state’s concern. The state must neither prescribe nor forbid a religion or a religious belief. Freedom of belief includes not only the freedom to possess a faith but also the freedom to live and act according to one’s religious convictions. In par ticu lar, freedom of faith guarantees the right to participate in sectarian activities that a specific belief prescribes or through which it expresses itself. It likewise guarantees the right to refrain from participating in such activities. Article 4 also applies to symbols that incorporate a belief or a religion. It allows individuals to decide for themselves which religious symbols they wish to acknowledge or venerate and which they wish to reject. To be sure, in a society that tolerates a wide variety of faith commitments, the individual clearly has no right to be spared exposure to quaint religious manifestations, sectarian activities, or religious symbols. A different situation arises when the state itself exposes an individual to the influence of a given faith, without giving the child a chance to avoid such influence, or to the symbols through which such a faith represents itself. Article 4 (1) safeguards precisely those areas of life that enjoy the special protection of the state, . . . a safeguard reinforced by Article 140 of the Basic Law in tandem with Article 136 (4) of the Weimar Constitution. These provisions prohibit the state from forcing anyone to participate in religious practices. Article 4 (1) does not simply command the state to refrain from interfering in the faith commitments of individuals or religious communities. It also obliges the state to secure for them a realm of freedom in which they can realize their personalities within an ideological and religious context. The state is thus committed to

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protect the individual from attacks or obstructions by adherents of different beliefs or competing religious groups. Article 4 (1), however, grants neither to the individual nor to religious communities the right to have their faith commitments supported by the state. On the contrary, freedom of faith as guaranteed by Article 4 (1) of the Basic Law requires the state to remain neutral in matters of faith and religion. A state in which members of various or even confl icting religious and ideological convictions must live together can guarantee peaceful coexistence only if it remains neutral in matters of religious belief. Therefore, the state must be wary of independently endangering religious peace in society. Th is mandate fi nds its basis not only in Article 4 (1) of the Basic Law, but also in Article 3 (3), Article 33 (1), and Article 140, which incorporates into the Basic Law Articles 136 (1) and (4) and 137 (1) of the Weimar Constitution. These articles prohibit the establishment of official churches and forbid the state from granting special privileges to members of certain faiths. The numerical strength or social importance of a religious community has no relevance. Rather, the state is obligated to treat various religious and ideological communities with an even hand. And when the state supports or works together with these religious communities, it must take care not to identify itself with one of them. Article 4 (1), when considered in relation to Article 6 (2), which confers on parents the natural right to take care of and to raise their children, also embraces the right of parents to educate their children in accord with their religious and ideological convictions. It is up to the parents to transmit to their children those commitments of faith and ideology that they accept as true. Similarly, they have the right to shield their children from religious beliefs they consider false or harmful. 2. . . . Given the context of compulsory education, the presence of crosses in classrooms amounts to state-enforced “learning under the cross,” with no possibility to avoid seeing the symbol. Th is constitutes the crucial difference between the display of the cross in a classroom and the religious symbols people frequently encounter in their daily lives. . . . b. The cross is the symbol of a par ticu lar religious conviction and not merely an expression of cultural values that have been influenced by Christianity. . . . Any support of the tenets of the Christian faith by the state would undermine freedom of religion, a matter already determined by the Federal Constitutional Court in its ruling on the constitutionality of so-called bi-confessional public elementary schools (citing the Interdenominational School Case). In affi rming the Christian character of these schools, the Court ruled that the state may legitimately recognize Christianity’s imprint on culture and education over the course of Western history, but not the par ticu lar tenets of the Christian religion. Only if the parameters of its continued historical impact are delineated can the affi rmation of Christianity be legally justified in the eyes of non-Christians. The cross, now as before, represents a specific tenet of Christianity; it constitutes its most significant faith symbol. It symbolizes human redemption from original sin through Christ’s sacrifice just as it represents Christ’s victory over Satan and death

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and his power over the world. Accordingly, the cross symbolizes both suffering and triumph. For believing Christians it is the object of veneration and practiced piety. To this day, the presence of a cross in a home or room is understood as an expression of the dweller’s Christian faith. On the other hand, because of the significance Christianity attributes to the cross, non-Christians and atheists perceive it to be the symbolic expression of certain faith convictions and a symbol of missionary zeal. To see the cross as nothing more than a cultural artifact of the Western tradition without any par ticular religious meaning would amount to a profanation contrary to the selfunderstanding of Christians and the Christian church. . . . c. One cannot deny, as do the challenged decisions of the administrative courts, that the cross also has an effect on students. . . . Education is more than just transmitting fundamental cultural values and developing cognitive facilities. It also involves the development of pupils’ emotional and affective abilities. The mission of the school is to develop and promote a pupil’s personality and to influence his or her social behavior. In this context, the display of the cross in classrooms takes on critical significance. Its presence constitutes a deeply moving appeal; it underscores the faith commitment it symbolizes, thus making that faith exemplary and worthy of being followed. Th is is particularly true with young and impressionable people who are still learning to develop their critical capacities and principles of right conduct. . . . . 3. a. No state, even one that universally guarantees freedom of religion and is committed to religious and ideological neutrality, is in a position completely to divest itself of the cultural and historical values on which social cohesion and the attainment of public goals depend. The Christian religion and the Christian churches have always exerted a tremendous influence in our society, regardless of how this influence is evaluated today. The intellectual traditions rooted in their heritage, the meaning of life and the patterns of behavior transmitted by them cannot simply be dismissed by the state as irrelevant. Th is applies particularly to education since it constitutes a unique setting for perpetuating our traditions and renewing the cultural foundations of society. Furthermore, any state that requires children to attend state schools must respect the religious freedom of those parents who want their children to receive a religiously based education. In a pluralistic society, needless to say, the state, in setting up a system of compulsory public school instruction, cannot possibly satisfy all educational goals or needs. Problems will always arise and it will be particularly difficult to implement the negative as well as the positive aspects of religious freedom in one and the same public institution. So far as education is concerned, no one can claim an absolute right under Article 4 (1) of the Basic Law. In resolving the inevitable tension between the negative and positive aspects of religious freedom, and in seeking to promote the tolerance that the Basic Law mandates, the state, in forming the public will, must strive to bring about an acceptable compromise. . . . The Federal Constitutional Court has concluded in its previous case law that the state legislature may introduce Christian values into the organization of public ele-

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mentary schools, even if parents who cannot avoid sending their children to this type of school reject all forms of religious education. This presupposes, however, that coercion is to be reduced to an indispensable minimum. In par ticu lar, the school must not proselytize on behalf of a par ticu lar religious doctrine or actively promote the tenets of the Christian faith. Christianity’s influence on culture and education may be affi rmed and recognized, but not par ticu lar articles of faith. Christianity as a cultural force incorporates in par ticu lar the idea of tolerance toward people of different persuasions. Confrontation with a Christian worldview will not lead to discrimination or devaluation of a non-Christian ideology so long as the state does not impose the values of the Christian faith on non-Christians; indeed, the state must foster the autonomous thinking that Article 4 of the Basic Law secures within the religious and ideological realms. . . . The display of crosses in classrooms, however, exceeds these guidelines and constitutional limits. As noted earlier, the cross cannot be separated from its reference to a par ticu lar tenet of Christianity; far from being a mere symbol of Western culture, it symbolizes the core of the Christian faith, one that has admittedly shaped the Western world in multiple ways but which is not commonly shared by all members of society. . . . The display of the cross in public compulsory school thus violates Article 4 (1) of the Basic Law. Th is rule, of course, does not apply to state-supported Christian confessional schools. b. Parents and pupils who adhere to the Christian faith cannot justify the display of the cross by invoking their positive freedom of religious liberty. All parents and pupils are equally entitled to the positive freedom of faith, not just Christian parents and pupils. The resulting confl ict cannot be resolved on the basis of majority rule since the constitutional right to freedom of faith is particularly designed to protect the rights of religious minorities. Moreover, Article 4 (1) does not provide the holders of the constitutional right with an unrestricted right to affi rm their faith commitments within the framework of public institutions. Inasmuch as schools heed the constitution, leaving room for religious instruction, school prayer, and other religious events, all of these activities must be conducted on a voluntary basis and the school must ensure that students who do not wish to participate in these activities are excused from them and suffer no discrimination because of their decision not to participate. The situation is different with respect to the display of the cross. Students who do not share the same faith are unable to remove themselves from its presence and message. . . . Justices Otto Seidl, Alfred Söllner, and Evelyn Haas, dissenting. . . . The challenged decisions of the Bavarian administrative courts . . . do not violate the complainants’ basic rights guaranteed by Article 4 (1) and (3) in tandem with Article 6 (2) of the Basic Law. I. 1. According to Article 7 (1) of the Basic Law, . . . the right to establish schools is conferred exclusively on the individual states. . . . The right to establish and operate schools is excluded from the powers conferred exclusively on the national government. In contrast to the Weimar Constitution, which assigned legislative authority

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in educational matters to the Reich, the Basic Law confers no legislative or administrative authority on the federal government in the field of education. . . . 3. Under Article 7 (1) and (5) of the Basic Law, individual states enjoy a large measure of discretion in determining the nature and organization of elementary schools. . . . The rule that mandates the display of a cross in every classroom does not exceed that discretion. Since the state legislature is permitted to establish a Christian community school, it cannot be prevented from expressing, through the symbol of the cross, the values and ideals that characterize this type of school. a. Section 13 (1) [3] of the Bavarian Elementary School Ordinance implements the organization of the Christian community school. For teachers and students alike, the display of the cross in classrooms symbolizes Western values and ethical norms that transcend confessional considerations and are to be taught in this type of school. In enacting this law, the state legislature was permitted to consider the fact that the majority of citizens residing in Bavaria belong to one or another form of the Christian church. . . . 4. The state has a constitutional mandate to remain neutral in religious and ideological matters. But the principle of neutrality must not be construed as indifference toward such matters. The church-state articles of the Weimar Constitution, which have been incorporated into Article 140 of the Basic Law, envision neutrality in the sense of cooperation between the state, churches, and religious communities. These articles may even require the state to support churches and religious communities. . . . II. Contrary to the view of the senate’s majority, the display of the cross in school classrooms does not interfere with religious freedom. . . . The undisturbed practice of religion secured by Article 4 (2) reinforces and accentuates the religious freedom that Article 4 (1) guarantees, a fact that the senate’s majority entirely overlooks. Together these two paragraphs provide the individual with the space in which actively to practice his or her faith. If, therefore, one cannot object constitutionally to participation in voluntary nondenominational prayer, then surely this holds equally true of the display of the cross in school classrooms. Thus, the state provides space for positive freedom of creed in areas for which it has assumed complete responsibility and in which religious and ideological views have traditionally been relevant [citing the Interdenominational School and School Prayer cases]. 2. Thus, there has been no violation of religious freedom. a. The complainants have not invoked the freedom to practice their religion under Article 4 (2) of the Basic Law, nor have they claimed that the state has violated their positive freedom of faith under Article 4 (1); they merely assert a violation of their negative freedom of religion, a freedom Article 4 (1) also guarantees. In fact, they do not demand the display of a symbol of their own faith or ideology next to or in place of the cross. Rather, they request the removal of crucifi xes, which they perceive to be symbols of a religious doctrine to which they do not adhere. In our ruling of 5 November 1991 [citing Classroom Crucifix I], which rejected the complainants’ request for a temporary injunction, we formulated the constitutional issue—even more

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pointedly than in the present ruling—as follows: “Under what circumstances does the display of religious symbols in schools implicate the negative right to freedom of religion and to what extent must a minority be expected to tolerate [such a display] in the interest of the majority’s right to practice its religion?” Th is issue . . . deals with the question of how the positive and negative freedoms of religion of pupils and their parents generally can be reconciled in the public compulsory school arena. To fi nd a solution to the inevitable tension between the negative and positive freedoms of religion is the task of the democratic state legislature; the legislature is required to work out a compromise that honors the various opinions and values present during the formation of the public will [citing Interdenominational School ]. In the process, the negative freedom of religion must not be allowed to negate the positive right to manifest one’s religious freedom in the event that the two confl ict. The principle of religious liberty implies no right to have religious expression banned altogether. The key principle here is tolerance. Th is principle requires the reconciliation of opposing views on religious freedom. . . . bb. In view of the cross’s symbolic character, non-Christian pupils and their parents are obligated to accept its presence in the classroom. The principle of tolerance requires as much, and the display of the cross does not constitute an unacceptable burden on the religious conscience of non-Christian pupils. The psychological effect that exposure to the cross has on non-Christian pupils is relatively mild. The mental burden here is minimal, for pupils are not required to behave in a given way or to participate in religious practices before the cross. In contrast to compulsory school prayer, pupils are not forced to reveal their ideological or religious convictions through nonparticipation. Th is precludes any discrimination against them. In addition, the cross does not imply any kind of missionary activity. As noted above, its narrow religious significance has no impact on the course of instruction. Moreover, the par ticu lar situation in Bavaria must be considered. Even outside the narrow confi nes of the church, pupils are exposed daily to the sight of crosses in many areas of life. We need only mention the presence of crosses along roadways, their exhibition on secular buildings (such as hospitals, nursing homes, and even hotels and restaurants), and their display in private homes. Under these circumstances, the presence of the cross in schoolrooms is nothing unusual; it has nothing to do with anything that could remotely be regarded as missionary.

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Impact of Classroom Crucifix II. The Classroom Crucifix II Case triggered a storm of protest throughout Germany. Federal Chancellor Helmut Kohl called the decision “incomprehensible” (unverstandlich).67 Church leaders, including Pope John Paul II, uniformly condemned the decision, calling it a threat to Germany’s Christian culture. Many constitutional lawyers, including a former president of the Constitutional Court, chastised the justices for their infi rm reasoning. The decision produced the strongest denunciation in Bavaria. Holding crucifi xes aloft, demonstrators in

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Munich and other communities marched in defiance of the Karlsruhe Court as their political leaders called on state officials not to enforce the decision.68 It was the most negative reaction to a judicial decision in the history of the Federal Republic and the only instance of clear and open defiance of a ruling by the Federal Constitutional Court.69 The duration and intensity of the protest worried Germany’s judicial establishment. The German Judges’ Association warned that the constitutional state principle was at stake and that any refusal to obey the Classroom Crucifix II ruling would endanger the Federal Republic’s constitutional democracy.70 Justice Dieter Grimm, one of the five justices in the majority, was prompted to answer the Court’s critics in the Frankfurter Allgemeine Zeitung, Germany’s newspaper of record. Grimm’s prominently displayed letter was published under a caption that read “Why a Judicial Ruling Merits Respect” and deserves to be reproduced (and translated) in full: under the law Why a Judicial Ruling Merits Respect In a system that sets forth its political and social order in a constitution and establishes a Constitutional Court to protect that document, political and social confl icts are bound to arise in the form of constitutional disputes. Unlike the political arena, the Court is unable to sidestep such disputes by refusing to decide them. It has to decide the confl icts, yet not on its own initiative and according to the justices’ individual preferences or the supposed wishes of a popu lar majority, but according to the preestablished provisions of the Basic Law. Not everyone will be satisfied with the Court’s decision, but that is in the nature of the judicial resolution of confl icts; and, at times, the majority will be the disappointed party. Th is is what constitutionalism is all about; its purpose is to safeguard the rights of minorities against encroachment by the majority. Under these circumstances Constitutional Court decisions cannot always be greeted with universal approval. Criticism of such decisions is normal and in the interest of the Court’s own reflections about its role as the fi nal arbiter of the constitution; indeed, such criticism is necessary. Disagreement with a decision, however, does not relieve the critic of the duty to comply with it. Th is is the basic premise of the entire system of constitutional governance. The process of decision making must be established in a way that gives room to the different viewpoints. The result of the process is valid notwithstanding one’s disagreement with it. If in the light of the Classroom Crucifi x II Case, state or church officials create the impression that this is not so, they threaten to disrupt the Federal Republic’s generally stable history of postwar constitutional governance and are likely to shake the foundations of social peace. Those who insist on disobeying the Court’s decision or encourage resistance to it act on the maxim that the law is to be respected only if we agree with it. At risk here is nothing less than the unitary force of the law. Th is binding force constitutes the foundation of the constitutional state principle and political order, at least within

R eligion, Conscience, and Fa mily R ights 585 the constitutional state. Anyone who encourages others to defy a judicial ruling today because he or she fails to approve of it will be unable to explain tomorrow why others should obey laws or administrative orders of which they disapprove. If politicians continue on their chosen path they will not only undermine the foundation of the constitutional state, they also will make it impossible to conduct their own affairs of state. Th is is meanwhile the issue of the Federal Constitutional Court’s Classroom Crucifi x II ruling.71

Justice Grimm’s views were shared by numerous spokespersons in the spd and by most left- of-center political parties and groups. The spd’s legal experts and the justice ministers of several German Länder warned against excessive criticism of the Court out of fear that such criticism would undermine its integrity as an institution.72 A lead editorial in the Frankfurter Allgemeine Zeitung by Friedrich Karl Fromme, one of Germany’s most respected constitutional commentators, expressed the views of many of the Court’s responsible critics. First, he noted that the Court’s opinion was thought to be inconsistent with Interdenominational School, which had upheld the validity of Christian community schools. Second, he faulted the broad scope of the Court’s ruling and the “laicist enthusiasm” of its reasoning.73 Much of the early critical reaction to Classroom Crucifi x II was in response to the headnotes (Leitsätze) that accompanied the release of the decision. The headnotes seemed to suggest that the Court was mandating the removal of all crucifi xes from all elementary school classrooms. If this is what Classroom Crucifi x II required, it would indeed have been a revolutionary decision, amounting to a reversal of Interdenominational School. In response to the public outcry, the Court appeared to back away from this interpretation, indicating in a press release that the headnotes were not fully consistent with the reasoning of the case.74 Th is was taken to mean, as Bavarian school officials had already maintained, that a crucifi x would have to be removed only in the presence of students objecting to it on religious grounds. Nevertheless, the debate continued as Bavarian state officials were preparing “corrective” legislation in defiance of the Court’s ruling.75 Bavaria resolved the issue by following the Constitutional Court’s lead. School officials would remove the cross from those public school classrooms attended by students whose parents objected to its display. The compromise appears to have satisfied all parties. Muslim Headscarf Bans. Interesting questions arose in the aftermath of Crucifix II. Would the Muslim headscarf be treated as a religious symbol analogous to the cross? Could Land authorities prohibit Muslim women employed in state institutions from wearing the headscarf? Such bans had spawned litigation and led to legislatively imposed rules in several European countries, France among them. In Germany, a ban on headscarves worn by civil servants was the subject of a major decision handed down by the Federal Constitutional Court on 3 June 2003. The Muslim Headscarf

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Case stemmed from the Stuttgart Higher School Authority’s rejection of a devout Muslim woman’s application to teach in Baden–Württemberg’s elementary and secondary schools. An Afghan-born German citizen, the applicant had satisfied all the requisites for entering the teaching profession, but was denied an appointment after she declared her intention to wear the headscarf while teaching. Because she insisted on wearing the headscarf, the school board ruled that she lacked the required “personal aptitude” to teach in state schools. All German teachers, like university professors, are members of the civil ser vice, entry into which requires, according to Article 33 (2) of the Basic Law, the proper “aptitude” as well as certain “qualifications and professional achievements.” The applicant was deemed to lack the proper aptitude for insisting on wearing a religious symbol that was “an expression of cultural separation, incompatible with the requirement of state neutrality, and an interference with the rights of pupils and their parents.”76 In response, the woman lodged a strong constitutional complaint before the Constitutional Court, arguing that her exclusion from the teaching profession violated her rights to dignity (Article 1), personality (Article 2), equality (Article 3), religious liberty (Article 4), and the provision of Article 33 (3) that forbids the state from denying a person entry into the civil ser vice “by reason of adherence or nonadherence to a par tic u lar religious denomination or a philosophical creed.” Even as she invoked religious freedom rights under Article 4, she claimed that the headscarf, unlike the crucifi x, was not a symbol of religious faith but rather a part of her Islamic identity. Her complaint also challenged administrative court decisions upholding the school board’s ruling on the ground that the neutrality principle required her to refrain from any profession of her religious beliefs at work. The complainant’s response was aptly summarized by the Second Senate: “Unlike a laicist state, the Federal Republic of Germany, by its constitution, was open to religious activity in the schools, and in this way it pursued what is known as a comprehensive, open and respectful neutrality. School was not a refuge in which one could close one’s eyes to social plurality and reality. On the contrary, the school’s duty to provide education meant preparing adolescents for what they would encounter in society.”77 In accepting the teacher’s complaint as “well-founded,” the senate ruled that the rejection of her application violated her right to equal access to the civil ser vice under Article 33 (2) in conjunction with the fundamental right of freedom of faith guaranteed by Article 4 (1) and (2). The senate held, however, that the Land’s denial of her application was “constitutionally unacceptable” because it lacked a statutory basis. In short, the Länder could not constitutionally prohibit a qualified teacher from wearing a religious symbol in the classroom in the absence of a clear and unambiguous parliamentary policy determination. As the Court has ruled in other contexts, fundamental rights in confl ict must be sensitively balanced in accord with the principle of practical concordance, meaning that the state must maximize the competing values as much as possible. As in the School Prayer and Classroom Crucifix II cases, the senate noted that Article 4 (1) and (2) protects equally the positive and negative manifes-

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tations of religious faith, but here the teacher’s positive right to express her faith in the school setting had to be reconciled with the state’s duty to observe neutrality in introducing religious symbols into the school. Here too the positive right to religious freedom has to be reconciled with the constitutional right of parents to provide for the religious education of their children. If a teacher were to influence or proselytize schoolchildren in her care, suggested the senate, she might be in violation of her duties and thus lack the “aptitude” required of civil servants. But because these rights of religious freedom are so fundamental and unlimited by law, they can only be restricted by other constitutional provisions whose nature and scope must be set forth in statutory law, the result of which was to consign the matter back to the Land legislatures. The three dissenting justices (Jentsch, Di Fabio, and Mellinghoff ) rejected the view that a parliamentary statute is required to regulate the duties of a civil servant when claims to religious freedom are implicated in carry ing out these duties. Civil servants, they argued, do not enjoy the same rights as ordinary citizens. They are state officials sworn to advance the public interest and are responsible for carry ing out the people’s will as expressed in law. “The civil servant’s duty to be neutral,” they remarked, “follows from the constitution itself and does not need to be further supported by a Land statute.”78 When carry ing out his or her official duties, the dissenters noted, “the teacher must respect the fundamental rights of the pupils and their parents, for the teacher is not merely on the state’s side, but the state also acts through the teacher.”79 The dissenters concluded that the “uncompromising wearing of the headscarf in class” is simply incompatible with the requirements of moderation and neutrality that civil servants are sworn to uphold. Muslim Headscarf contains propositions and observations seemingly in tension with the robust defense of religious liberty and forms of personal identity found in the Constitutional Court’s previous case law. First, the Court provides the Länder with a green light to ban headscarves in primary and secondary schools. At this writing, four Länder have done so, even while conceding that “there is no confi rmed empirical foundation for the assumption that teachers who wear the head scarf affect the religious orientation of their students.”80 Second, the Court takes judicial notice of Germany’s increasing religious diversity, suggesting that this changing social context may constitutionally justify a more expansive view of negative over positive religious liberty. The Court comes perilously close to saying that there is no freedom to be significantly different from other people. Equally curious, if not provocative, is the Second Senate’s passing reference to Article 9 of the Eu ropean Convention on Human Rights, which permits limitations “on the freedom to manifest one’s religion” in the interest, inter alia, of “public order” or “for the protection of the rights and freedoms of others.” The senate observed that “the assumption that a ban on wearing headscarves in state schools may be a permissible restriction of freedom of faith imposed by a legislature charged with managing the relationship between the state and religion in the educational system is also in harmony with the Eu ropean Convention.”81

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Religious Instruction in State Schools. Article 7 (1) of the Basic Law declares that “the entire school system shall be under the supervision of the state.” But Article 7 (2) provides parents with the right to decide whether their children “shall receive religious instruction.” Article 7 (3) makes good on this promise by declaring that “religious instruction shall form part of the regular curriculum in state schools” unless the school has been established as secular or nonconfessional (bekenntnisfrei). Th is paragraph also makes clear that religious classes must conform to the tenets of the denominations authorized to conduct such instruction. No teacher is obliged to give religious instruction against his or her will, just as parents have a constitutional right to exempt their children from otherwise compulsory religion classes. Unlike the U.S. Constitution, which under the establishment clause bans religious instruction in public schools, these provisions provide a basis for the parents of minority religions to insist that their children too should be provided with instruction in accord with their beliefs.82 The Religious Instruction Case (1987)83 involved one of the more interesting controversies to arise under Article 7. Roman Catholic parents had applied to place their children in a Protestant religious instruction class. The Rhineland-Palatinate school in which they were enrolled rejected the application on the basis of a CatholicProtestant Land agreement that students would receive religious instruction in the religion to which they belonged. Under the agreement it was up to the religious communities to decide if and to what extent pupils from another faith might be allowed to participate in their classes. In rejecting a constitutional complaint against administrative court decisions sustaining the school’s decision, the Constitutional Court sought to clarify the meaning of “religious instruction.” The Court noted that what is involved here “is not an interdenominational comparative view of religious doctrines, not mere moral teaching, not a lesson in ethics, religious, or biblical history,” but rather “articles of faith of the respective denominations.”84 As such, the Court explained, the churches have the right to determine the “content and objectives” of religious instruction, a matter that the state, while remaining neutral, must accept as binding. A religious community, said the Court, may decide whether to admit pupils of another faith and even incorporate information about other religions, but “the idea that a child might enroll in instruction of another religious belief was something not contemplated by the framers of the Weimar Constitution or the Basic Law.” At the same time, the Court noted that “religious instruction” is not an open-ended concept. The concept is specific enough to exclude “general religious studies.” The Court concluded that “the regular participation of pupils of other religious denominations in religious instruction is constitutionally unobjectionable provided the instruction does not as a result lose its special character as a course bound to a religious denomination.”85 Brandenburg Ethics Case. A major constitutional controversy erupted with the passage of the Brandenburg School Act (Gesetz über die Schulen in Land Brandenburg) of 12 April 1996. Owing to the very small number of practicing Christians in the former

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East Germany, Brandenburg, one of unified Germany’s new eastern states, eliminated the denominational religion classes that under Article 7 (3) forms “part of the ordinary curriculum in state and municipal schools.” In their place, the Brandenburg School Act provided for a standard, nondenominational ethics course entitled “Life Skills, Ethics, and Religious Studies” (ler). The statute was immediately assailed by dozens of complainants, including the Catholic Archdiocese of Magdeburg and the Evangelical Church in Berlin-Brandenburg, as a violation of Article 7 (3). In addition to these constitutional complaints, 276 members of the Bundestag, objecting to the statute on the same ground, initiated an abstract judicial review proceeding before the Federal Constitutional Court.86 After years of wrangling and litigation, the contestants declared their willingness before the Federal Constitutional Court to reach an agreement over the disputed subject matter and thus terminate the constitutional proceeding. According to the agreement, proposed by the Constitutional Court itself, ler was allowed to remain in effect but the Land parliament would amend the School Act to achieve essentially the following: First, religious instruction in a given denomination would remain part of the ordinary school curriculum when at least twelve students opted to take the course; second, students taking ler classes would be permitted to sign up for religious instruction as well; third, interested teachers would be given time off for advanced training in the religion of their choice, just as persons appointed by their churches to give religious instruction would be entitled to state subsidies to defray the costs of their participation; fi nally, pupils whose parents want them to receive instruction in ler “solely in the shape of religious instruction . . . shall be exempt from obligatory attendance in ler.”87 Brandenburg followed through on each of these recommendations.88 Equally controversial was the Berlin Ethics Case of 2007.89 The so-called Bremen Clause of the Basic Law’s Article 141 exempted any Land from adopting religious instruction as an ordinary part of the public school curriculum if by 1 January 1949 its law had provided otherwise. The provision automatically exempted Bremen and Berlin except that after the specified date West Berlin elected to adopt the standard course in religion in accord with Article 7 (3) of the Basic Law. In 2006, however, over the strong opposition of the Catholic and Evangelical Churches, Berlin’s Senate passed a law that required all students to take a compulsory course in secular ethics instead of the required faith-based religious instruction. Given Berlin’s large Muslim population and the relatively low level of residents affi liated with the two main Christian denominations, particularly in East Berlin, the senate passed the measure as a means of teaching common values to a religiously diverse student body. Parents retained the option of signing their children up for religious instruction but on a purely voluntary basis outside of regular class hours. Christian parents fi led a constitutional complaint against the voluntary plan, claiming that it violated the personality (Article 2 (1)), religious liberty (Article 4 (1) and (2)), and parental rights (Article 6 (2)) provisions of the Basic Law. In deciding the case, the First Senate’s Second Chamber might have taken the easy way out by relying on Article 141. Instead, the three-justice

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chamber ruled that Berlin’s plan to make religious instruction voluntary violated neither Article 4 nor Article 6 of the Basic Law.90

taxation, autonomy, and religious societies Church Tax. Among the provisions of the Weimar Constitution absorbed into the Basic Law is the clause empowering religious societies incorporated under public law “to levy taxes in accordance with state law on the basis of the civil taxation lists” (Article 137 (6)). In 1986, the Federal Constitutional Court ruled that this right “includes the obligation of the state to create the preconditions to levy the tax by adopting Land statutes.91 The churches are generally empowered to levy the tax in accordance with their specifications but “subject to certain reservations of approval by the Länder.”92 The primary beneficiaries of this constitutional policy over the years, as noted earlier, have been the mainline churches. The fi nance offices of these churches would have been able to collect the tax directly, but the churches have delegated this function to their respective Land governments. The tax ordinarily takes the form of a surcharge, usually 8 to 10 percent, on the assessed income tax of residents whose names appear on the baptismal records of those churches or religious communities. It is limited, however, to a fi xed percentage of taxable income. As with the income tax, the employer withholds and remits the church tax to a Land revenue office, after which Land authorities distribute the funds to the churches in amounts proportionate to their total membership.93 These cash payments amount to several billion euros per year and enable the churches not only to build new facilities—from chapels to advanced academies of continuing education—but also to operate and maintain, as they have traditionally done, thousands of schools, nursing homes, hospitals, and charitable organizations.94Any person whose name appears in the church registry is automatically subject to the tax. In addition, Germans may be asked to identify their religion by a civil servant to render the tax effective. To be relieved of the tax, a wage earner must formally resign or withdraw from his or her church, and well over one hundred thousand persons do so each year. Needless to say, the church tax “goes to the very core of the church-state relationship as it most directly affects the individual.”95 The constitutional validity of the tax, however, is unquestioned. The Constitutional Court has written: In the light of Article 137 (6) of the Weimar Constitution, the state is obligated to establish the conditions for the levying of church taxes, thereby providing for the possibility of their compulsory collection. Th is sovereign right to tax collection granted by the state is quite different from the process of collecting contributions from parishioners, which is an internal affair of the church. Pursuant to Article 137 (3) of the Weimar Constitution, religious societies are able to impose fees and contribution requirements without state interference. The levy of the church tax, however, is a common affair of both church and state. Here the state makes its own administrative

R eligion, Conscience, and Fa mily R ights 591 apparatus available to the church for the collection of the tax. State regulation is necessary to administer the tax. For that reason, the levying of the church tax is also subject to judicial review.96

The typical challenge to the church tax revolves around questions such as these: Who precisely is subject to the tax? Are they juristic or natural persons? What determines church membership for purposes of the tax? Who makes the determination? May the tax be levied for the full year in which a wage earner withdraws from his or her church? What constitutes a church or religious society entitled to cash payments derived from the tax? Which church receives tax proceeds collected from spouses joined in religiously mixed marriages? What portion of a joint income tax return is subject to the tax if only one of the marriage partners belongs to a church? In 1965 the Constitutional Court answered several of these questions in a number of seminal church tax cases.97 A major theme of these cases holds that the state may lawfully apply the tax only to salaried persons who are church members. Once again the Court has emphasized that “the state as the home of all citizens is bound by ideological and religious neutrality, which means that the state is not permitted to confer on a religious society any sovereign authority over individuals who are not among its members.”98 The churches in their corporate capacity may tax only their own members. The First Senate noted that “no significance is to be derived from the historical fact that religious societies once held a privileged position under the law, for state churches in the sense that they were formerly known no longer exist in the light of the prohibition against an official church.” In short, churches no longer have the “legal capacity unilaterally to enroll persons for tax purposes against their wishes and who settle within their territorial jurisdiction.”99 The following case applied these principles to a mixed marriage involving one spouse who belonged to a church and the other who was not a member. 9.8 Mixed-Marriage Church Tax I Case (1965) 19 BVerfGE 226 [Baden-Württemberg’s Church Tax Act permitted the spouse of a church member to be taxed even though he or she might not be a church member. Two employees who were not church members initiated an action to reclaim taxes withheld from their paychecks. The employees were taxed because their wives were church members. After the initial tax court rejected their claims they appealed to the Federal Finance Court (Bundesfi nanzhof). Seriously doubting the constitutionality of the church tax as applied to nonmember spouses, the Finance Court referred the constitutional question to the Federal Constitutional Court pursuant to the latter’s concrete judicial review jurisdiction. The two cases were consolidated in the following judgment in which the Court held the tax to be unconstitutional.]

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Judgment of the First Senate. . . . 2. The Baden-Württemberg’s statute . . . is null and void with respect to paragraph 2 of the sentence reading “or the spouse of the member.” C. I. 1. As the Federal Constitutional Court has determined, . . . Articles 136, 139, and 141 of the Weimar Constitution have been incorporated to form constituent parts of the Basic Law. They form an organic whole and consequently must be interpreted according to the meaning and spirit of the constitutional value system. Th is means that state laws promulgated on the basis of Article 137 (6) of the Weimar Constitution concerning the collection of church taxes must adhere to constitutional principles, that is, the fundamental rights of the Basic Law. The state legislators may not disregard the value system expressed in these constitutional norms. . . . 2. Section 6 (2) of the Church Tax Act violates the fundamental right of an employee who is not a member of a religious association as derived from Article 2 (1) of the Basic Law. a. According to this act, all employees “are subject to” a church tax on wages if they or their spouses belong to a religious association authorized to tax. Contrary to the opinion of Baden-Württemberg’s state ministry, this provision can be understood to determine who must pay the tax (§ 97 (1) of the Tax Code, § 38 (3) of the Income Tax Act). An employee is required to pay the church tax simply because his or her spouse is a church member. Thus, because of the state law, the employee must pay the church tax although the employee does not belong to a church authorized to tax him or her. As this Court has said, a law may not be viewed as part of the constitutional order if it obligates a person to pay fi nancial benefits to a religious association of which he or she is not a member. Because the nonmember employee has no legal way of avoiding this tax liability, the Church Tax Act impermissibly interferes with his right to personality under Article 2 (1) of the Basic Law. b. The legal rule that precludes state law from imposing a church tax upon a third person not belonging to that church must also apply to the regulation of married persons’ liability for church taxes when only one of them is a church member. The argument is erroneous that subjecting the nonmember spouse to the church tax may be justified because of the nature of marriage as a permanent union of the partners into a complete community of all aspects of life. In a mixed-faith marriage, no community exists in the exact areas being considered (i.e., religious convictions and beliefs). The marital community is not based upon mutual recognition of religious articles of faith, values, and obligations. Consequently, it would be unreasonable and would contradict the liberal constitutional system of the Basic Law if one wished to force the nonmember spouse to establish direct relations—even if only fi nancial ones—to a religious community by imposing unavoidable legal sanctions. If, as the Federal Constitutional Court and the Federal Court of Justice have said, each partner may believe what he or she chooses and may even convert to another religious belief without being guilty of a marital transgression,

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then one partner’s connection with a church does not obligate the other partner. Hence it is impermissible to argue that because the nonmember spouse made the decision to marry, he or she should not assert a violation of their religious freedom when he or she is forced to pay the spouse’s church tax obligation. Each partner must decide if he or she wants and is able to make concessions in religious and ideological matters. The tolerance that married persons of different faiths owe one another may not lead to the creation of legal ties to third parties, especially not to churches and other religious associations. c. Marriage may be linked with economic legal consequences only if these consequences are related to the sphere of life being regulated. Th is is not the case here. The liability for the church tax is the economic equivalent and consequence of church membership; that is, it results from a strictly personal relationship. But the tax relationship to be regulated is, by its nature, an individual one. Even if both partners were liable for the tax without limit, the marital status may not be used as the basis for discriminating against married persons. Th is applies even more forcefully if marital status is used as a reason for creating a tax obligation that one spouse would otherwise not owe to the tax creditor, the church. Accordingly, we see no reason to disadvantage married persons by deviating from the individual taxation statutorily anchored in § 27 of the Church Law and to impose the obligation to pay the church tax on an employee solely because his or her spouse is a church member. 3. Section 6 (2) of the Church Tax Act also would be unconstitutional if it burdened a nonmember spouse with the liability for his or her member spouse’s obligation to pay the church tax. a. For the same constitutional reasons that prohibit a nonmember spouse from being held responsible as a tax debtor, this spouse also may not be made liable for his or her spouse’s church taxes. Liability in the sense of answering for someone else’s debt creates a direct relationship between the nonmember spouse and the other spouse’s church authorized to tax, by virtue of which the church has direct access to the income of the nonmember spouse. . . . b. The attempt to derive the nonmember spouse’s liability for the church tax debt of his or her spouse from their mutual obligation to support each other is misdirected. First, it is incompatible with the concept of a marital community to treat the married persons’ obligation to support and maintain each other as per for mance in exchange for valuable consideration similar to bilateral contractual obligations. Th is obligation is part of a web of reciprocal, often disparate rights and duties that, in their totality, are basically of equal value and are precluded from being weighed arithmetically one against the other. Apart from this, the husband is no longer solely responsible for support and maintenance pursuant to § 1360 et seq. of the Civil Code as amended by the act according equal rights to women of 18 June 1957; rather, both partners have the mutual obligation of maintenance and support. To the extent that one spouse must maintain and support the other, he or she must supply the other with the means required to satisfy that spouse’s personal needs (§ 1360a (1) of the

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Civil Code). The cultivation of religious, spiritual, political, cultural, or athletic interests are unanimously counted as personal needs. Accordingly, the spouse obligated to pay support must supply the other with the means needed to fulfi ll his or her religious obligations. . . . It is not the legal relationship between married persons that is at issue but rather their relationship to an institution existing outside of the marriage. The problem of the husband’s obligation to support his wife is important only for the question of who, as between the marriage partners, must raise the means for the tax burden arising from the person of the wife. Consequently, if the members of a church levy a tax that is and can only be connected to the fact of church membership, then the husband’s obligation to pay this tax based on his duty of support possibly exists toward his wife, but not toward the church. On the other hand, someone may not be subject to a tax only because he or she is obligated to support someone else. Th is would mean viewing the husband’s spousal support payments as market economy income in the sense used by the Income Tax Act and taxing them accordingly. II. Thus, § 6 (a) of the Church Tax Law is unconstitutional insofar as it subjects employees to a church wage tax when only their spouses belong to the religious corporation; therefore it violates the fundamental right derived from Article 2 (1) of the Basic Law. The phrase “or his spouse” is therefore null and void. . . .

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Related Church Tax Cases. The year 1965 featured several older church tax cases worthy of mention.100 In Mixed-Marriage Church Tax II, as in Mixed-Marriage Church Tax 1, the First Senate invalidated a law that makes a spouse who is not a church member responsible for paying the tax of the spouse who belongs to the church. In this case, however, the senate found the arrangement a violation of Article 6 (1) of the Basic Law, the provision that obligates the state to foster and protect the institutions of marriage and the family.101 Split-Income Church Tax ranks among the most important of these judgments. It involved a “mixed” marriage in which one spouse was a member of the Evangelical Lutheran Church while the other was a nonbeliever. The spouses fi led separate tax returns. In such situations the religious spouse was required to pay one-half of the church tax that would be payable if both spouses were church members. The First Senate nullified this regulation not only because it violated the principle of fair taxation, but more importantly because the income of the nonmember would be used to calculate the tax of the church member, in many cases leading to a higher tax.102 Finally, in Church Construction Tax, the senate ruled that a Land tax statute permitting churches to levy a tax on corporations and other commercial establishments for church-building maintenance and new church construction violated the “freedom of action” of these businesses—that is, their economic freedom—within the meaning of Article 2 (1). The church construction tax, declared the senate, “is not part of the constitutional system because it violates the relationship between church and state, and between the state and the individual, as regulated by the Basic Law.”103 No such tax may be imposed on legal persons, said the

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senate, for the churches do not possess sovereign powers over any persons who do not belong to a religious society. Th ree additional decisions involve variations on the foregoing cases. The Church Membership Case (1971) involved a complainant upon whom a tax was levied simply because he was baptized and confi rmed in the church and resided within the church’s territorial jurisdiction. The question was whether a taxpayer who has never formally acquired or officially resigned his church membership must pay the tax. A unanimous First Senate sustained the tax, ruling that the negative right to religious freedom was not violated in this instance. The senate also invoked the principle of neutrality, holding that the state does not determine who belongs to a church entitled to levy a tax but regards church membership as simply an internal church affair.104 In two church tax resignation cases, the First Senate—for what it regarded as compelling administrative reasons—has upheld regulations providing that a church resignation will not be legally effective until a month after a person officially resigns his or her membership or, alternatively, at the end of the month following a declaration of resignation.105 Churches as Autonomous Institutions. As the materials in this chapter show, religion plays an important role in German society. Historical reasons explain the high value the Basic Law attaches to the place of religious societies in the nation’s public life. Altar and throne were joined throughout most of German history before the establishment of the Weimar Republic.106 They were the pillars on which the prosperity and well-being of society depended, and both pillars were autonomous within their respective spiritual and temporal spheres. Under the Weimar Constitution, following considerable tension between throne and altar, not to mention the Bismarck regime’s discrimination against Catholics and Jews, church and state reached a modus vivendi that prevails today. The autonomy of the church is one of its central tenets. It guarantees to religious societies autonomy with respect to their internal affairs as well as certain institutional assurances. These include, as noted earlier, the status the churches enjoy as corporations under public law and their right to levy taxes on their members. Both of these traditions were considered to be the foundations on which the peace and well-being of society rested. Provisions such as these trace their origins to the medieval tradition of the “two swords” in which the secular and the sacred powers, each supreme in its respective sphere, shared in the governance of society. The view that church and state are equal partners in the social order was manifested in the fi rst half of the twentieth century by the theory of coordination (Gleichordnung).107According to this theory, church and state settled their disputes by negotiation, with church-state treaties and concordats serving as common instruments through which they regulated their relationship. Indeed, treaties and concordats are still a principal method of accommodation between church and state.108 As these treaties demonstrate, the German notion of neutrality, which continues to shape the law of church-state relations in the Federal

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Republic, is one that emphasizes a cooperative rather than a strict separationist model of this relationship. Coordination versus Cooperation. The framers of the Basic Law were unwilling to renounce the modus vivendi between church and state established by the Weimar articles. The continuity represented by these articles was more than a mindless or reluctant adherence to tradition. Contemporary circumstances helped to support the tradition. The religious divisions of the past had virtually disappeared as new forms of political and social cooperation emerged out of the common struggle of the major churches against National Socialism. The state collapsed but the churches survived the war with their organizations intact and their reputations far less sullied than other social institutions. As a consequence, the churches were poised to assist in the work of reconstruction, both material and moral. The common good, as then understood, dictated not only the juridical recognition of religion as uniquely important to contemporary society, but also the fostering of cooperation between church and state. Whether the incorporation of the Weimar articles into the Basic Law implies the continuing validity of the coordination theory is disputed among German constitutional scholars. Some hold fast to the theory of equal partnership; others maintain the legal superiority of the state over religious communities. The constitutionally recognized status—and autonomy—of the churches, argue the latter, is no more than an affi rmation of their independence as influential social groups. Th is position relegates the churches to the same rank as other groups competing with each other in a pluralistic society. These critics acknowledge the utility and even propriety of church-state treaties, but claim that the subjects of such agreements should be regulated by ordinary law. Most commentators, however, seem reluctant to freeze either of these polar views into the meaning of the Basic Law. The middle view says that constitutional interpretation should take into account the evolving and dynamic character of the church-state relationship, including the increasing diversity and secularization of society and even changes in the churches’ conception of their social and religious roles.109 The Constitutional Court has taken a position midway between the theory of equal partnership and the pluralistic view. In the Clergyman in Public Office Case (1976), the Second Senate, citing a number of leading authorities on church-state issues, rejected the view that the church is simply one group among many and thus subject to the limits of general law. A unanimous senate declared that churches bear a “qualitatively different relationship to the state than do other large social groups, for the latter represent only partial interests, whereas the church, like the state, represents persons as a whole in all major fields of endeavor and behavior. . . . The church’s unique character,” said the senate, “stems from its spiritual and religious mission in the world.”110 In the same opinion the Court characterized the relationship between church and state as an “imperfect separation” and a “relationship of reciprocal independence,”111 underscoring once again that the relationship is one not of rivalry but of cooperation.

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Clergyman in Public Office arose out of a rule the Bremen Evangelical Church laid down for its ministers. According to the rule, any clergyman elected to the Bundestag or any other state or local legislative body would be required to take a leave of absence from his or her official church duties during the period for which he or she was elected. The Bremen Constitutional Court had invalidated the regulation as a violation of Article 48 (2) of the Basic Law, in which persons elected to the Bundestag may not be prevented from taking up their legislative duties or dismissed from their employment because of their intention to serve in Parliament. The Constitutional Court’s Second Senate ruled that the Bremen court’s decision was an unauthorized interference with the internal affairs of a religious body.112 The senate also emphasized that the institutional church, like individuals, possesses the freedom to profess a religious belief under Article 4 (1) and (2). Th is includes “the freedom of the churches in their historically developed form to profess the faith in accordance with their mandate,” one that clearly includes rules and regulations pertaining to the activities of their ministers.113 Clergyman in Public Office, citing with approval statements by church-state scholar Martin Heckel and Federal Chancellor Helmut Schmidt, went on to emphasize that the relationship between church and state consisted of “reciprocal independence within a system of coordination,” with the state providing the secular and the church the spiritual needs of society.114 9.9 Evangelical Church Case (1965) 18 BVerfGE 385 [Ten years prior to Clergyman in Public Office, the First Senate had reaffi rmed the independence of the church in all matters pertaining to internal administration. In 1963 the leaders of the Evangelical Church of Hesse and Nassau decided to split their congregation and establish a new parish among the members living north of a specified train line. The Church’s ecclesiastical court rejected a petition by a parish within the church to have the decision voided, whereupon the parish fi led a constitutional complaint against the church tribunal alleging violations of Articles 2, 3, and 14 of the Basic Law; Article 2 because the decision flouted the will of its members; Article 3 because the decision was arbitrary, thus offending the principle of equality; and Article 14 because the Church’s decision trampled upon the parish’s property rights. The Federal Constitutional Court rejected all three grounds of the complaint.]

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Judgment of the First Senate. . . . The constitutional complaint is rejected. II. A constitutional complaint under § 90 (1) of the Federal Constitutional Court Act (fcca) may be brought only against a violation of a basic right by “public authority.”

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Public authority within the meaning of this provision does not include purely internal church measures. 1. There can be no state church under the system of church-state relations prescribed by the Basic Law. Every religious community has the right to order and administer its affairs independently within the limits of generally applicable law. Neither the state nor the civic community may involve itself in the selection of church officials (Article 140 of the Basic Law and Article 137 (1) and (3) of the Weimar Constitution). Churches are institutions endowed with the right of self-determination. Their nature is such that they do not derive their authority from the state and are independent of state influence. Thus, the state may not interfere in their internal affairs. The constitution defi nes churches as corporate bodies under public law (Article 140 of the Basic Law and Article 137 of the Weimar Constitution). But this status does not compromise their independence. In light of the religious and confessional neutrality of the state under the Basic Law, this legal characterization does not signify an equality in status to other public-law corporations within the organic structure of the state. It is only a recognition of their public status. That status, while higher than that of religious societies organized under private law, does not subordinate the churches to the supreme authority of the state or to close administrative supervision. As a result of the public legal position and public effect of the churches, which they derive from their special mission and through which they are fundamentally differentiated from other societal organizations, ecclesiastical authority is indeed public in nature but does not exercise state authority. Only insofar as the churches exercise power conferred by the state, adopt measures beyond their authority as church bodies, or intrude into the sphere of the state do they indirectly exercise state authority, the consequence of which is to limit their self-determination depending on the particu lar facts of the case. In this connection we need not decide whether and to what extent basic rights can influence the self-determination of churches as it relates to their treatment of individual believers. 2. Whether an ecclesiastical measure is an internal church affair or is based on authority conferred by the state or affects the sphere of the state is to be decided—to the extent that a union of church and state does not result therefrom—by what is substantively to be regarded as a church affair, by the nature of the subject matter or by the purpose of the subject under consideration. If the church’s activity has been confi ned to the sphere of internal church affairs, then no act of public authority has taken place against which a constitutional complaint may be brought. The independence and autonomy of ecclesiastical authority recognized by the constitution would be diminished if the state were to grant courts the right to examine whether internal church measures that do not spill over into the state’s sphere of competence are compatible with the Basic Law. . . . 3. The challenged judgment of the ecclesiastical court . . . relates only to a dispute in the area of internal ecclesiastical affairs. The establishment and location of ecclesiastical assemblages, as provided for in § 14 of the Hesse-Nassau Church Congregation Order of 25 March 1954, belong to this sphere because they are matters pertain-

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ing to the constitution and organization of the church. Whether the church tribunal’s decision violates the congregational principle of the Evangelical Church is a question for the church itself to decide. . . . To be sure, Article 4 of the Hesse Church Agreement of 18 February 1960 provides that decisions concerning the formation and alteration of congregational boundaries must be reported to the minister of culture and a copy of the organ izational charter submitted to him or her. However, this participation of the state does not furnish a basis for a state agency to exert its influence. Article 4 of the Church Agreement involves no veto power by the minister of culture or the state government. The duty to report in this instance is based on a voluntary agreement between church and state. Thus, the church’s right to self-determination has not been limited. 4. On these grounds the challenged ecclesiastical judgment is not an exercise of public authority within the meaning of § 90 (1) of the fcca. For this reason the constitutional complaint is inadmissible. Therefore the complainant’s motion for a temporary restraining order is rejected.

∂

Related Cases on Church Autonomy. Article 137 (3) of the Weimar Constitution— “Religious societies shall regulate and administer their affairs independently within the limits of the law applicable to all”—has been invoked and vindicated in several cases related to the hiring practices, trade union rights, and managerial organization of church-related institutions. The Catholic Hospital Abortion Case (1985), which vindicated the right of a religiously affi liated hospital to determine its internal employment policies,115 is a representative example of these cases. A Catholic hospital had dismissed a physician after he announced publicly that he was against the church’s stand on abortion. (A companion case involved a Catholic youth center that dismissed an accountant after the center learned that he had left the Catholic Church.) The hospital lodged a constitutional complaint against a decision of the Federal Labor Court invalidating the dismissal for contravening a public labor law. The Constitutional Court’s Second Senate, while recognizing the universal applicability of public laws designed to protect employees against unlawful dismissal, nevertheless invalidated the Federal Labor Court’s decision because it had not attached sufficient weight to the significance of the constitutional right of religious organizations to self-determination. The senate held that the dismissal in this case was an “affair” of the church, and thus subject to church regulation. “Th is right of self-government,” said the Court, “embraces all the measures that the hospital takes in carry ing out the charitable and pastoral tasks prescribed by its fundamental ecclesiastical mandate.” Th is mandate “includes the choice of staff, particularly when such a choice is inseparably linked . . . to the ‘religious dimension’ of the work according to the church’s own understanding of its mission.”116 In short, public law applies to all employer-employee relationships, but where the churches are concerned, this relationship can be shaped by the demands of their religious mission as they understand it. “By laying down such duties

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of loyalty in a contract of employment,” continued the Second Senate, “the ecclesiastical employer not only relies on the general freedom of contract, he simultaneously makes use of his constitutional right to self-determination, thus permitting churches to shape their social activity, even when regulated by contracts of employment according to a par ticu lar vision of Christian community ser vice shared by their members.”117 The Second Senate went on to emphasize that church autonomy is anything but absolute: The church employer’s right under Article 137 (3) to shape the employment relationship established by contract is subject to the reservation that it must respect the law valid for all. Th is law includes . . . labor laws protecting persons against unlawful dismissal. But these laws do not trump the church’s right to self-determination in every instance. The church-state provisions of the Weimar Constitution form an organic unity with the Basic Law, requiring the courts to balance and weigh the different interests and values at stake in the relationship between the freedom of the churches and the limits imposed on this freedom.118

Here the Federal Labor Court had failed to adequately consider the “serious and significant” nature of the church’s own law. That law—that is, canon law—treats abortion as the killing of innocent human life and “a major crime warranting automatic excommunication.” To require the church to retain the ser vices of a doctor who rejects this teaching, said the Court, would undermine its religious mission in the provision of hospital ser vices. In several related cases, the Court has advanced an equally liberal interpretation of the church’s autonomy.119

marriage and family rights Scope of Protection. Article 6 of the Basic Law extends special protection to marriage and the family. It provides: 1. Marriage and the family shall enjoy the special protection of the state. 2. The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state shall watch over them in the per formance of this duty. 3. Children may be separated from their families against the will of their parents or guardians only pursuant to a law, and only if the parents or guardians fail in their duties or the children are otherwise in danger of serious neglect. 4. Every mother shall be entitled to the protection and care of the community. 5. Children born outside of marriage shall be provided by legislation with the same opportunities for physical and mental development and for their position in society as are enjoyed by those born within marriage.

Like Germany’s generous system of social insurance, the provisions of Article 6 evoke the social state principle (Sozialstaatprinzip) anchored in Article 20 (1). Unsurpris-

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ingly, the Constitutional Court has put teeth into each of the provisions of Article 6, manifesting special solicitude, as noted in paragraphs 4 and 5, for the rights of mothers and nonmarital children. As for marriage and family more generally, Article 6 (1) represents a fundamental value decision of the Basic Law. It constitutionalizes the individual right to marry, elevates marriage and the family to the level of institutional guarantees, and obligates the state to preserve and protect them.120 For interpretive direction, the Constitutional Court has generally looked to the “structural principles” governing the institutions of marriage and family at the time of the Basic Law’s adoption, fi nding that these principles include “marriage” as a lifetime union between a man and a woman and “family” understood as including parents and children. The protections of Article 6, however, extend well beyond this traditional view of marriage and the family. As the references to mothers and nonmarital children in paragraphs 4 and 5 might suggest, the protection of Article 6 extends to unconventional family structures such as one-parent families, unmarried couples, and samesex civil unions. One important measure taken by the state to support and protect families is the child allowance system that grants cash payments (Kindergeld) to working parents to help them meet the fi nancial burden of raising children. Administered by local tax authorities, the allowance system includes a standard amount per child for the fi rst three children with an increasing payment for each additional child. Rules promulgated in the mid-1990s allow parents to receive monthly cash payments or an annual tax exemption equal to such payments. Constitutional issues arise when the tax exemption fails to satisfy the formula for determining the child allowance or falls below a required minimum level of material support. In 1998 alone, for example, the Court handed down no fewer than three decisions invalidating child support payments either because they were insufficient to support the family or were less than the parents were entitled to under the allowance system.121 In two of the decisions, the general equality clause of Article 3 (1) helped to reinforce the family’s right to “special protection” under Article 6 (1). The Court has also held that family income necessary to maintain a child or children at a minimum subsistence level must be tax exempt.122 In a related child-care case decided in 2001, the Court voided a premium that a public sector employee paid into a voluntary public nursing care insurance scheme because it imposed upon parents caring for children the duty to make insurance payments at the same level as couples without children. Article 3 (1) combined with Article 6 (1) to defeat an insurance plan that failed to consider the special circumstances of couples with children. Article 6 (1), said the Court, does not relieve parents of all fi nancial costs in the support of their children. Yet the state clearly violates the principle of equality when a public insurance scheme fails to account for the differences between persons with children and those who are childless.123 Finally, and importantly, the Court has invalidated a provision of a 1964 federal child benefit allowance statute excluding the child benefit allowance to unmarried parents. There is no valid reason, declared the Court, for treating unmarried parents differently from married parents.124

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The following decision, a seminal case on marriage and the family, charts the course that the Court would take in the years ahead with respect to the two institutions. 9.10 Joint Income Tax Case (1957) 6 BVerfGE 55 [Section 26 of the Income Tax Act of 1951 provided that if a wife earned money other than by a regular salary, she and her husband would be required to fi le a joint tax return. In this case, the husband received a pension as a retired civil servant while his wife earned income from her retail shop. Accordingly, under the law, owing to progressive rates of taxation, the couple would be required to pay more than they would if they were allowed to fi le separate returns. One of the legislative justifications for this regulation was that it would encourage women to stay at home and tend to their traditional household duties. The Federal Finance Court, seriously doubting that the regulation met the requirements of Articles 3 (gender equality) and 6 (special protection of marriage) of the Basic Law, certified the question to the Constitutional Court in a concrete judicial review proceeding.]

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Judgment of the First Senate. . . . D. II. Placing a heavier tax burden on married couples . . . violates Article 6 (1) of the Basic Law. 1. In contrast to Article 134 of the Weimar Constitution, the Basic Law contains no express provision requiring all citizens to pay taxes in proportion to their means. But there is no doubt that the legislature is bound by the principle of fair taxation implicit in Article 3 (1) of the Basic Law. The Federal Constitutional Court has said that the meaning of Article 3 (1) lies “to an essential extent in the fact that not all actual differences merit different treatment by the law; only those actual inequalities that have distinguishing legal significance should be treated differently, and the legislature is primarily responsible for deciding such matters.” The legislature’s discretion, however, is limited not only by the prohibition against arbitrariness under “concretizations” of the general principle of equality (in par tic u lar Article 3 (2) and (3)) but also by other norms, principles, and values adopted by the framers for the purpose of governing certain areas of the legal and social order. . . . Because § 26 of the Income Tax Act touches the institution of marriage, its constitutionality is to be determined mainly by an analysis of Article 6 (1). 2. Article 6 (1) is a value-setting fundamental norm. Marriage and the family, as the nucleus of every human community, whose importance cannot be compared with any other human bonding, are placed under the protection of the state. Article 6

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must be understood as a classic basic right . . . designed specifically to protect the private spheres of marriage and the family against the coercive influence of the state. By contrast to the total dominance of the state (Allstaatlichkeit) during the period of National Socialism, the Basic Law defends the independence and self-determination of persons in these areas of life. First, Article 6 involves a provision in the sense of classical basic rights, which, in view of experiences under National Socialist rule, are intended to protect the specific private sphere of marriage and family from external restraints by the state. . . . At the same time, it is indisputable that the constitutional proclamation of marriage and family embraces a guarantee of both forms of living, resulting in a so-called institutional guarantee. In this capacity, it safeguards the essential structure of marriage and the family, the legal effect being to constitutionally guarantee only the essential core of the [institutions] of marriage and the family. The task of constitutional interpretation is to develop the various meanings of a constitutional norm, particularly those of a fundamental right. Accordingly, in performing this task, interpreters are to give preference to the interpretation that “most strongly develops the legal effectiveness of the par ticu lar norm.” [Here the Court undertook a major review of the original history behind the adoption of Article 6, examining the background to equivalent provisions of the Weimar Constitution as well as the debates and proceedings of the Parliamentary Council and its Main Committee. The Court also acknowledged the influence of the marriage and family rights provisions of the Universal Declaration of Human Rights.] 3. The function of Article 6 (1) as a value-setting fundamental norm imposes legal limits on the legislature’s discretion to enact laws under this provision. As with any other constitutional norm, Article 6 (1) is binding upon the legislature only to the extent that its formulation is precise enough for a norm of inferior rank to be mea sured against it. The meaning of this article stems from the idea of “protection”; its literal meaning requires advancement of the object to be protected, a defense against any outside interference with or harm to the family and marriage, and above all the state’s own responsibility to refrain from interfering with these institutions. Thus, the special protection extended to marriage and the family by Article 6 (1) has two aspects: the fi rst is the positive obligation of the state to protect marriage and family from impairment by other forces and to advance these institutions through appropriate mea sures; the second is the negative aspect that prohibits the state itself from harming or otherwise impairing the institution of marriage. . . . 4. The effect of Article 6 (1) as an actual protective norm is critically important in evaluating the constitutionality of § 26 of the Income Tax Act of 1951; for the joint tax assessment of the married couple’s income violates the principle of individual taxation, and does so to the disadvantage of married people, thus constituting a disruptive interference with marriage. . . .

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Joint assessment serves the purpose of “bringing the wife back to her home”—the so-called didactic effect—by imposing a heavier tax burden to keep wives from working. . . . In principle it is constitutionally permissible to impose a tax for purposes other than collecting revenue. But this is possible only if these secondary purposes are themselves constitutionally neutral and are pursued with constitutionally valid taxes. With respect to the joint assessment of spouses, the didactic effect is relied upon, on the one hand, to justify a provision that is already unconstitutional for other reasons. On the other hand, the didactic purpose relates to an area that has already been circumscribed by decisions of the constitution. In this area, the legislature is therefore no longer completely free to choose other values. Th is reasoning follows from Article 6 (1) as well as from Article 3 (2) and (3). . . . In the sense of classical basic rights, Article 6 (2) and (3) acknowledges the freedom of the private sphere specifically involving marriage and family; it corresponds with a guiding idea of our constitution; namely, the basically limited authority of all public power to affect the free individual. . . . A married couple’s freedom of decision in private matters also includes the decision concerning whether the wife should devote herself exclusively to the household, assist her husband with his job, or earn her own income. The goal of the joint tax return requirement—to “bring” the working wife “back to the home”—advances a par ticu lar conception of the best way to arrange a marriage. But the constitutional mandate to protect marriage and the family within the meaning of Article 6 (1) refers to every marriage and family that corresponds today in the Federal Republic with the legally enacted civil-law institutions of marriage and the family, thus leaving the formation of life in these spheres to the spouses themselves. The legislature may not therefore directly impair the formation of the private marital sphere. If a direct impairment of marriage is unconstitutional, then the same goal cannot justify a measure that would indirectly advance this same goal. The failure of the so-called didactic effect to justify the joint tax assessment also follows from the principle of equal rights of the genders (Article 3 (2) and (3)). The Basic Law presupposes that equality of rights is compatible with the protection of marriage and the family. . . . However, equal rights for women include the opportunity for each woman to have the same legal chance to earn an income as any male citizen. To regard a wife’s gainful economic activity as destructive to marriage is inconsistent not only with that principle but also with the text of Article 3 (2). . . . 5. It follows from all this that § 26 of the Income Tax Act of 1951 discriminates against married persons and thus violates the value decision of Article 6 (1) to the detriment of the institution of marriage. . . .

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The Fundamental Right to Marry. In the years following Joint Income Tax the Constitutional Court repeatedly affi rmed the fundamental character of the right to marry and closely monitored legislation impinging upon or interfering with this

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right.125 The Spanish Marriage Case (1971) represented one of the strongest affirmations of the right to marry under Article 6 (1). The decision is important because the First Senate favored the domestic right to marry over a countervailing rule of private international law. A citizen of Spain long resident in Germany wanted to marry a German woman legally divorced under German law, but Spanish authorities refused to grant him the necessary papers to marry because his fiancée’s divorce was not recognized in Spain. In response to the couple’s constitutional complaint the First Senate nullified judicial rulings upholding the denial of a marriage certificate. Given the basic value decision of Article 6 (1), declared the senate, “the freedom to marry . . . applies not only to Germans within the meaning of . . . the Basic Law but also to foreigners and stateless persons.”126 The senate concluded that the contested judicial rulings unreasonably infringed on the right to marry, making the point that there are few interests that rank higher in the constellation of German constitutional values than the decision of a man and woman to spend their lives together in matrimonial perpetuity. Th is defi nition of marriage as a legally sanctioned, permanent heterosexual union was unambiguously set forth in the Civil Divorce Case (1980). The First Senate declared: “According to the structural principles guaranteed by Article 6 (1), which fall outside the legislature’s discretion, the preordained institution of marriage is the union of one man and one woman within an all-embracing and, in principle, indissoluble community of life.”127 The lifelong character of marriage, remarked the senate, has been expressly recognized by the Civil Code as the “core principle” (Leitprinzip) of the law on marriage. The “community of life” alluded to in Civil Divorce seems also to include, as a core structural principle, parents and their children; in short, the nuclear family. As late as 1993, a three-justice chamber of the First Senate observed, in a homosexual relationship case, that “the constitutional protection of marriage is mainly aimed at a legal safeguard for partners to found a family with children.”128 The chamber asserted this view even while recognizing that a valid marriage is not predicated on the ability or willingness of the partners to have children. In its reference in Civil Divorce to marriage as a “preordained institution,” the First Senate did not say whether marriage is to be defi ned by nature or by convention.129 However defi ned, the “structural principles” at the heart of Article 6 (1) would seem to exclude common-law marriages and unmarried couples from its protection. Even so, unconventional personal relationships or nontraditional living arrangements, such as extramarital cohabitation, are constitutionally protected. The Court has regarded these relationships as intimate lifestyle choices shielded by the personality clause of Article 2 (1) as well as by the Basic Law’s general freedom of action (allgemeine Handlungsfreiheit).130 Th is does not mean that “forms of social life similar to marriage,” as the First Senate put it, must be treated equally with marriage, although the legislature may opt to treat unmarried couples in certain situations equally with married couples.131 What seems to be prohibited is any law that would advantage unmarried over married couples in the light of the special protection marriage enjoys

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vis-à-vis other forms of intimate association or ways of life.132 The Court appears to view the traditional marriage as the basic unit of society and an ideal to be pursued in the best of all possible social worlds. So idealized, marriage is seen as a unique institution, generally more capable of providing for the long-term welfare of children, and defi ned by a male-female complementarity that is superior to any union between same-sex partners. In this view of complementarity, marriage seems not to stand or fall on biological considerations, but rather on the assumption that in their psychological makeup couples composed of a man and a woman are simply different from couples consisting of two persons of the same sex.133 The constitutional case law just cited gave every indication that the Court was unprepared to confer upon same-sex couples the legal right to marry. But in the 1993 chamber case just mentioned, the Court noted the hindrances these couples faced relative to persons united in marriage. Th is acknowledg ment, along with the growing demands of gay and lesbian persons, was doubtless one of the reasons the Bundestag passed the Civil Partnership Act of 2001, legalizing same-sex unions and offering them advantages similar to those of marriage. The statute was immediately challenged in the Federal Constitutional Court as a repudiation of the state’s responsibility under Article 6 (1) to confer its special protection on marriage and the family. Strong arguments in favor of same-sex marriage were not unavailing. Years earlier, the Court had upheld the right of a man and a transsexual male to marry, although the Second Senate based this right on the dignity and personality clauses of Articles 1 (1) and 2 (1).134 Still, if transsexuals can marry, and there is no possibility of children resulting from such a marriage, why then should same-sex persons be denied the right to marry? The answer may rest in what was said in the previous paragraph about the differences between male and female personalities. The justification for privileging opposite-sex marriage may be metaphysical or psychological rather than biological. In the following case, the Court sustained the legalization of same-sex partnerships while declining the invitation to elevate such unions to the level or dignity of marriage under Article 6 (1). 9.11 Civil Partnership Case (2002) 105 BverfGE 313 [On 16 February 2001, after months of legislative hearings and reports, the Bundestag enacted the Civil Partnership Act, the object being to reduce discrimination against same-sex couples and to allow them to stabilize their relationship in the form of registered civil partnerships. The act would permit some forty-seven thousand same-sex couples cohabiting in the Federal Republic in the year 2000 to live in a legally binding relationship. The Partnerships Act stopped short of according same-sex unions all the rights and privileges of heterosexual marital unions, but did grant the former many of the benefits bestowed on married persons under tax, inheritance, social security, and child custody laws. In addition, both partners would be legally responsi-

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ble for each other and required to set forth their fi nancial relationship in a binding contract. Finally, the partnership could be terminated by a simple decree of annulment. The Land governments of Bavaria and Saxony initiated an abstract judicial review proceeding in the Federal Constitutional Court, challenging the Partnerships Act as a violation of Articles 6 (1), 14 (1), and 3 (1) of the Basic Law. The Court had little trouble rejecting the claims under Articles 14 and 3. The harder issue revolved around Article 6 (1), which declares that “marriage and family enjoy the special protection of the state.” The petitioners claimed that the Civil Partnerships Act elevated civil partnerships to a level equal to that of marriage, thus undermining the state’s duty to promote marriage as one of the essential elements of the social order. Article 6 (1), ran the argument, demands what the petitioners called a “clear distance” between the legal form of marriage and that of a civil partnership because marriage enjoys the protection of its exclusivity. The following extracts from the Court’s wide-ranging opinion engage the arguments rooted in Article 6 (1) in which the Court rejected the constitutional challenge to the Civil Partnerships Act. Two justices dissented.]

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Judgment of the First Senate. . . . B. The applications are unfounded. The Civil Partnerships Act is compatible with the Basic Law. . . . II. The Civil Partnerships Act is also substantively constitutional. 1. It is compatible with Article 6 (1) of the Basic Law. The introduction of the new institution of the registered civil partnership for same-sex couples and its legal structure infringe neither the freedom of marriage guaranteed by Article 6 (1) of the Basic Law nor the institutional guarantee it establishes. . . . a. As a fundamental right, Article 6 (1) of the Basic Law protects the freedom to enter into a marriage with a partner of one’s own choosing. Th is right to unhindered access to marriage is not affected by the Civil Partnerships Act. aa. Even after the introduction of the registered civil partnership, the path to marriage remains open to every person who has the capacity to marry. However, marriage is only possible for opposite-sex partners. It is inherently heterosexual, just as the right to marry is confi ned to persons of the opposite sex. Even after the Civil Partnerships Act, same-sex couples are still unable to marry. The only legal institution open to them for a long-term commitment is the registered civil partnership. Similarly, the act neither directly nor indirectly affects the freedom of heterosexual couples to marry. Since they cannot enter into a registered civil partnership, this institution cannot prevent them from marrying. bb. Access to marriage is not restricted by the Civil Partnerships Act. Under the statute, a civil partnership that already has been formed does not . . . create an express impediment to marriage. Still, if someone involved in a civil partnership wants to

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marry, then the registrar of births, deaths, and marriages must examine whether, as a requirement of marriage, the partners have a serious intention to be married, and the registrar must refuse to participate in the wedding if such an intention is missing. The legislature has left open the question whether a marriage entered into when a registered civil partnership already exists has legal consequences for the continuing existence of the civil partnership and if so, what these would be. The answer to these questions is in the last instance left to the decision of the courts. Th is gap in the statute can be closed constitutionally only if we consider the protection owed to marriage under Article 6 (1) of the Basic Law. Here it is important to take into account that marriage is distinguished by a close two-person relationship between a man and a woman and characterized by personal exclusivity. Marriage might lose this characteristic if one or both of the spouses were permitted to keep their civil partnership with another partner, which is also intended to be permanent. The protection of marriage under Article 6 (1) of the Basic Law requires that alongside marriage no other legally binding partnership of a spouse should be permitted, and in Article 1 (1) [2] of the act the legislature itself proceeded on this assumption. For this reason, it is suggested in the scholarly literature that the possibility that the Civil Partnerships Act does not exclude a person from entering into a marriage when a civil partnership exists, is linked to the legal consequence that the marriage dissolves the civil partnership by operation of law, so that it no longer legally exists. . . . b. When the legislature introduced the registered civil partnership, it did not violate the constitutional requirement . . . to protect marriage as a way of life. . . . The Basic Law itself contains no defi nition of marriage, but presupposes it as a special form of human association. The realization of the constitutional protection of marriage therefore needs a legal provision that structures and restricts the form of partnership that enjoys the protection of the constitution. Here, the legislature has considerable freedom in determining the form and content of marriage. . . . [But] part of the content of marriage, as it has stood the test of time . . . is that it is the union of one man with one woman to form a permanent partnership, based on a free decision and with the support of the state in which man and woman are in an equal partnership with one another. bb. Th is protection does not cover the institution of the registered partnership. . . . A registered civil partnership is not marriage within the meaning of Article 6 (1). What it does is to grant rights to same-sex couples. In this way, the legislature takes account of Article 2 (1) and Article 3 (1) and (3) by helping these persons to better develop their personalities by reducing discrimination. . . . c. Article 6 (1) does not merely guarantee the essential structure of marriage but also, as a binding value decision of the Basic Law, requires the state to give its special protection to the whole area of private and public law relating to marriage and the family. In order to satisfy the requirement of protection, it is in particular the duty of the state on the one hand to refrain from everything that damages or otherwise adversely affects marriage and, on the other hand, to promote marriage by suitable measures. The legislature did not violate these principles in the Civil Partnerships Act. . . .

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aa. . . . The par ticu lar protection accorded to marriage under Article 6 (1) prohibits treating it less favorably than other ways of life. 1. There is no such unfavorable treatment if the Civil Partnerships Act gives samesex couples the possibility of entering into a registered civil partnership with rights and duties approximate to those of marriage. It is true that in large areas the legislature has modeled the legal consequences of the new institution of the registered civil partnership on provisions of marriage law. But in this way, marriage or spouses are not treated less favorably than previously and not disadvantaged in relation to the civil partnership or civil partners. The institution of marriage is not threatened by any risk from an institution that is directed at persons who cannot be married to each other. . . . 2. . . . The Civil Partnerships Act specifically does not privilege civil partners as against spouses with regard to their obligation to support each other. . . . In introducing the new institution of the registered civil partnership, the legislature did not violate the requirement of promoting marriage as a way of life. The act does not divest marriage of any promotion that it previously enjoyed. It merely gives legal protection to another partnership and gives it rights and duties. . . . 1. If Article 6 (1) places marriage under the special protection of the state, this special element resides in the fact that marriage alone, like the family, enjoys constitutional protection as an institution. No other way of life, however, merits this protection. Marriage cannot be abolished nor can its essential structural principles be altered without an amendment to the constitution. A constitutional duty of promotion exists for marriage alone. To attach to the special nature of the protection a meaning above and beyond this to the effect that marriage must always be protected more than other partnerships . . . has no basis either in the wording of the fundamental right or in its genesis. [In this part of its opinion, the Court focused on the original history behind Article 6 (1). The six-justice majority noted that in the course of Parliamentary Council debates, Article 6 (1) had undergone a large number of amendments, with the wording “alternating between a protection of marriage and a special protection of marriage.” Much of the debate focused on the meaning of the word “special.” The majority concluded that “although there was agreement on subjecting marriage and the family to constitutional protection, there was no clarification as to what this means in detail for its relationship to other ways of life.”] 2. Article 6 (1) protects marriage as it is structured by the legislature from time to time, preserving its essential fundamental principles. As a partnership lived by human beings it is both a sphere of freedom and at the same time a social institution uninsulated against change. The legislature is empowered to respond to social change and adapt the structure of marriage to changed needs. In this way, the relationship of marriage to other forms of human cohabitation changes. The same applies if the legislature does not restructure marriage by statute but provides for

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other partnerships. Therefore ways of life do not stand at a fi xed distance from each other, but in a relative relationship to one another. At the same time, they may differ from or resemble each other by reason of their given structure not only in the rights and duties allocated to them, but also in their function and with regard to the group of persons who fi nd access to them. Thus, the protection of marriage as an institution cannot be separated from the persons who are addressed by the provisions, for whom marriage is to be made available as a protected way of life. 3. The duty of the state to promote marriage must orient itself toward the protective purpose of Article 6 (1). If the legislature itself, in creating norms, contributed to the diminution of marriage, it would violate the requirement of promotion under Article 6 (1). Such a danger might exist if the legislature created another institution in competition with marriage, with the same function as marriage and, for example, with the same rights . . . so that the two institutions were interchangeable. Such interchangeability, however, is not associated with the registered civil partnership. It cannot compete with marriage, because, if for no other reason, the group of persons for whom the institution is intended does not overlap with the group of married persons. The registered civil partnership, because of this difference, is also not marriage. Its different nature does not result from its name, but from the circumstance that, instead of an opposite-sex union, two persons of the same sex can create a union in the registered civil partnership. In their totality, the structural principles that characterize marriage give it the form and exclusivity in which it enjoys constitutional protection as an institution. Article 6 (1), however, does not reserve individual structural elements of this group for marriage alone. It does not prohibit the legislature from offering legal forms for a permanent cohabitation to other constellations of persons than the union of man and woman. The characteristic of permanence does not make such legal relationships marriage. Nor is it discernible in any other way that they could harm the structure of this institution. . . . Justice Papier, dissenting. . . . I am unable to agree with the reasoning of the majority of the senate, in par ticu lar with respect to the institutional guarantee of marriage laid down in Article 6 (1). . . . Article 6 (1) places marriage under the special protection of the state order. . . . Under this article, every provision of ordinary law must observe the essential principles that defi ne the institution of marriage. These include the principle that marriage is the union of one man and one woman in a comprehensive, essentially indissoluble partnership. Th is is also acknowledged by the senate majority, which regards the heterosexuality of the spouses as one of the constitutive characteristics of marriage, the result being that the legislature would be prevented from including the partnership of two persons of the same sex as a form of marriage by nonconstitutional law. . . . If the legislature, albeit under another name, creates a legally defi ned partnership between two persons of the same sex that in other respects corresponds to the rights and duties of marriage, the legislature in doing this disregards an essential structure laid down by Article 6 (1).

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. . . The Civil Partnerships Act reflects a fundamental misunderstanding of the nature of an institutional guarantee. . . . The purpose of the institutional guarantee is to oblige the legislature when legislating on marriage to follow certain structural principles, which include the fact that the partners are of different sexes. The legislature is therefore prevented from introducing an institution under another name for same-sex couples that in other respects resembles marriage. . . . Justice Haas, dissenting. . . . 1. I agree with the majority of the senate that there are fundamentally no constitutional objections to introducing a legal form of registered civil partnership for samesex couples. In this way, everyone (with some exceptions governed by statute) may have his or her partnership with a partner of the same sex registered without a homosexual relationship existing or being intended between these two persons. But the introduction of the legal form of the registered civil partnership was not constitutionally required. 2. a. In par ticu lar, the decision of the majority does not take into account in the required degree the significance and effect of the institutional guarantee of marriage. . . . Article 6 (1) places marriage under the special protection of the state. . . . Contrary to the opinion of the senate majority, the constitutionally required promotion means more than only preventing marriage from being discriminated against. Promotion means positive consideration beyond the normal degree, and therefore giving marriage privileged treatment. . . . The legislature is required to observe the essential structural principles that determine the institution of marriage. The essential structural principles of marriage include the fact that the partners are of different sexes.

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Changing Nature of Marriage and Family. In the Spanish Marriage Case (1971) the Constitutional Court underscored the legislature’s wide discretion in regulating marital and family relationships.135 Indeed, in the late 1970s the West German parliament substantially amended its family law code, particularly in the domain of divorce and remarriage (along with property settlement and adoption).136 One revision in the law changed the basis of divorce from a fault to a no-fault principle, the constitutionality of which several family courts questioned. Although indissolubility remained an important structural principle of marriage, the Court recognized that marriages do fail and that law would have to adjust accordingly if personality rights under Article 2 were to be respected. In the Civil Divorce Case (1980) the First Senate sustained the validity of the no-fault principle over the objection that it undermines the institutional guarantee of marriage.137 The specific provision at issue here was the law’s “conclusive presumption that a marriage has failed when the spouses have been separated for three years.”138 More controversial was the new family code’s hardship clause, which prohibited divorce when “special reasons in the interest of minor children born of the marriage” are present or when the divorce would result in a severe hardship “owing to exceptional

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circumstances,”139 a provision that did not apply if the spouses have lived apart for more than five years. In Civil Divorce the First Senate split 4–4 over the validity of this provision, leaving the matter temporarily unresolved. Several months later, however, in the Divorce Hardship Case (1980),140 the senate invalidated the five-year clause as applied to a woman in ill health and still burdened with minor children born of the marriage. The five-year clause, said the Court, was incompatible with Article 6 (1) to the extent that it permitted the immediate dissolution of the marriage upon the application of one spouse, without considering the extraordinary hardship that the divorce may impose on the other spouse. Article 6 (1) thus applied to a failed as well as to an intact marriage. Marriage, the Court noted, entails certain continuing responsibilities, and the legislature must ensure that these responsibilities are met in order to prevent unreasonable hardship for one of the spouses.141 Parental Rights and Responsibilities. The Basic Law privileges parental rights. Article 6 (2), for example, defi nes the care and upbringing of children as the “natural right of parents and a duty primarily incumbent upon them,” and concludes by affi rming that “the state shall watch over them in the per for mance of this duty.”142 In addition, for the sake of children, Article 6 (4) entitles mothers to the “protection and care of the community.” The rights and interests of the child, however, are not expressly laid down in Article 6 except for Article 6 (5), which grants nonmarital children the “same opportunities for physical and mental development . . . as are enjoyed by those born within marriage.” Generally, however, the Court has found the basis for the protection of children in the personality clause of Article 2 (1), a provision regularly construed in tandem with Article 6 (2) and (4). One example of such a decision was the Prenuptial Agreement Case (2001) in which the Constitutional Court voided a premarital contract between a pregnant woman and her live-in boyfriend. The agreement substantially limited the husband’s alimony payments in case of divorce. When the couple did divorce several years later the mother, who had custody of the child and whose income was substantially less than the father’s, was placed at a serious economic disadvantage that compromised the constitutional values associated with motherhood and the care of children. The First Senate overturned a judicial decision upholding the contract because the mother had been unduly pressured by her future husband into an agreement opposed to the constitutional interests of both mother and child.143 The wrenching constitutional cases in this area are those arising under provisions of the Civil Code that defi ne parentage and rights to parental custody. Under § 1626 of the Civil Code both parents have the right and duty to care for their minor children. Similarly § 1625 declares that the best interests of the child as a general rule include contact with both parents. As for a child born out of wedlock, the Civil Code had, prior to 1997, automatically placed the child in the custody of the mother and conferred visiting rights on the natural father only if a family court determined that such rights were in the child’s best interests, a provision the Constitutional Court had invalidated as an interference with parental rights.144 In response, the Family

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Reform Act of 1998 amended the Civil Code to permit parents of a minor child born out of wedlock to exercise joint custody if they make a declaration to that effect. Absent such a joint declaration, however, § 1626a (2) grants the mother sole custody of the child.145 In defense of their parental rights under Article 6, two fathers who separated from their unwed partners sued for joint custody of their biological children. In the Joint Parental Responsibility Case of 29 January 2003—a concrete judicial review proceeding—the Constitutional Court’s First Senate held § 1626a (2) generally compatible with the Basic Law.146 Awarding parental custody as a matter of principle to the unmarried mother, said the senate, does not infringe the parental rights of the unmarried father. The senate based its view on evidence that fathers as a rule fail to assume responsibility for a child born out of wedlock and that the welfare of a newborn child is best assured by placing its custody in the hands of the mother who bears the child. And if the evidence for this assumption of the child’s “best interest” is not foolproof, said the senate, the statute is nevertheless constitutional because after the child’s birth parents wishing to share responsibility for the child may legally do so by fi ling a declaration of joint custody. Six years later, however, the European Court of Human Rights (ecthr) held that the judicial dismissal of the unwed father’s request for joint custody without examining whether it would be in the child’s best interest violated the “right to respect for family life” secured by Article 8 in conjunction with Article 14 of the European Convention on Human Rights. Under Article 14 the dismissal was also found discriminatory because domestic courts had afforded the unwed father different treatment in comparison with the mother and a married father.147 The European Convention, by the way, also came into play in the famous Görgülü Case of 2004, featured and discussed in Chapter 6, involving a Turkish citizen seeking custody of and access to the child the unwed mother had given up for adoption at birth. Later, after marrying a German citizen, the father sought custody over the objection of the child’s foster parents.148 A different situation presented itself in the Biological Father Case. Under § 1672 (2) of the Civil Code, a family court is authorized to transfer sole custody to the father with the mother’s consent if the transfer would serve the best interests of the child. But if the mother acknowledges the paternity of a man other than the natural father, that person, with the mother’s consent, is regarded as the legal father of the child under § 1592 of the Civil Code, thus trumping rights or privileges associated with biological fatherhood. In the following case, biological fathers challenged these provisions as violations of their parental rights under Article 6 (2). One of the complaints bears a resemblance to the situation in Michael H. v. Gerald D. (1989), in which the U.S. Supreme Court upheld a California law that regarded a child born to a married woman living with her husband as the child of the marriage even if the husband was not the biological father of the child.149 In Germany, however, the laws governing parenthood and parental custody favored the mother regardless of her marital status.

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9.12 Biological Father Case (2004) 108 BVerfGE 82 [Two constitutional complaints were consolidated for decision. Both involved fathers who challenged judicial rulings denying them rights to establish contact with their biological children. In the fi rst case, the child was born several months after its married parents had separated. Months later the father, still living apart from the mother, reestablished his relationship with the mother and helped to care for the child, although the extent of the father-child relationship remained disputed. But when the couple separated permanently, the mother, who had legal custody of the child, refused the father all contact with the child. In the second case, an unmarried father acknowledged the paternity of his child, a birth that had been planned by both parents. The father was present at the child’s birth and cared for it in the months after its birth. But later, when the couple broke up, another man acknowledged the paternity of the child with the mother’s consent. In upholding lower court rulings, Cologne’s Higher Regional Court rejected the applications of both fathers for contact with their biological children. In the second case, the Higher Regional Court ruled that the natural father’s petition for a judicial determination of his paternity was inadmissible under § 1600.d.1 of the Civil Code in the presence of another man’s acknowledg ment of paternity with the consent of the mother. In response to the complaints, the Federal Constitutional Court reversed the order of the Higher Regional Court by holding the applicable provisions of the Civil Code incompatible with Article 6 (1) and (2) of the Basic Law. The fi rst part of the opinion deals with the nature of parenthood, the second with the condition required for a parent’s right of contact with his child.]

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Judgment of the First Senate. . . . C. The constitutional complaints are well-founded. . . . Section 1600 of the Civil Code is incompatible with Article 6 (2) of the Basic Law insofar as it excludes the natural father of a child without exception from challenging the legal paternity of another man. Section 1685 is incompatible with Article 6 (1) of the Basic Law to the extent that it excludes the natural father of a child who has a social and family relationship to his child from contact with the child although such contact would be in the interest of the child’s welfare. I. [Parenthood] 1. The natural father of a child who is not the legal father is also protected by Article 6 (2) of the Basic Law. But merely being the natural father of a child does not make him the subject of the parental right guaranteed by Article 6 (2). . . . Th is protection

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gives him no right in every case to be granted the position of father with higher priority than the legal father. However, the legislature must give [the natural father] the opportunity to attain the position of legal father if this serves to protect the relationship between the child and its legal parents and is established that he is the natural father of the child. a. Under Article 6 (2) of the Basic Law, the care and upbringing of the child are the right and duty of the parents. The concept of parents . . . includes the natural parents of a child regardless of the parents’ marital status. . . . When Article 6 (2) speaks of the natural right of the parents, this expresses, on the one hand, that this right is not granted by the state, but is recognized by the state as preexisting. On the other hand, this makes it clear that the persons who give life to a child are by nature fundamentally prepared and called upon to assume responsibility for the child’s care and upbringing. The legislature is therefore required to base the legal responsibility of parents on the child’s parentage. . . . 2. a. The subjects of parental rights under Article 6 (2) may only be one mother and one father. The very fact that a child can have only two parents leads to the conclusion that the constitution intended to assign parental rights for a child to only two parents. bb. Article 6 (2) of the Basic Law excludes a person from enjoying parental rights without at the same time having duties toward the child. From the outset, the parental right is connected to the duty to care for and bring up the child and this is the element that determines the nature of parenthood. Those who claim the parental right for themselves may not merely demand rights for themselves but must also bear duties. . . . The legal father of a child who accepts parental responsibility for the child is the subject of parental rights under Article 6 (2) and does not lose this right and the position as father connected with it merely by virtue of the fact that another man is shown to be the natural father of the child. . . . c. Natural paternity also needs to be recognized legally in order that parental rights may be asserted on this basis. If it corresponds to the statutory presumption this connection gives it its legally binding nature. But if the natural father has no interest in accepting parental responsibility for the child, then the fact that the child is his biological child [gives him no right to claim legal paternity] unless he is prepared to take on parental responsibility for the child in place of the legal father. The natural father’s ability to displace the legal father of the child therefore requires that natural paternity be established and confi rmed and that the natural father intends to assume parental responsibility with legally binding effect. 3. Article 6 (2) protects the interest of the natural father of a child in assuming the legal position of the father. The assumption behind Article 6 (2) is that if possible natural and legal parenthood should coincide. But in such cases where there are doubts as to paternity, proceedings should be commenced in which the parentage is examined and the parental rights, if necessary, are legally adjusted. To this extent, Article 6 (2) of the Basic Law in principle grants the biological father the possibility of obtaining parental rights by legal proceedings. . . .

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b. Th is also applies to a person who can assume by reason of par tic u lar facts and evidence that he is the natural father of a child, but who has not yet been able to prove this because the mother has not cooperated. If he were refused the possibility of having his natural paternity examined and confi rmed as the requirement for obtaining legal paternity, he would be barred from acquiring his fundamental rights, even if he were indeed the natural father of the child. Th is would be contrary to the purpose behind Article 6 (2) which is to allow for the possibility that the natural father could assume the position of the legal father. Examining and establishing paternity is therefore part of the procedural guarantee under Article 6 (2) of the Basic Law. 4. It cannot be inferred from Article 6 (2) [1] of the Basic Law that natural paternity must always be preferred to legal paternity. Th is provision confers no right on the natural father to be granted the position of father in every case with priority over the legal father and therefore to displace the latter from his position as father. [In this section of the opinion, the Court defi ned the nature of parentage within the meaning of Article 6 (2). The real—and legally recognized—parents of a child are the man and woman, regardless of marital status, who bear and accept responsibility for the child’s care and upbringing. Parents and child in this sense form a “socially connected” and integrated community of relationships of the kind recognized by Article 6 (2).] 5. In principle, it is constitutionally unobjectionable that the legislature grants priority to the interests of the child and its legal parents in maintaining an existing social family organization as against the interest of the natural father to be recognized legally as the father. In this connection, § 1600 of the Civil Code excludes the natural father from challenging the paternity of the legal father. But if natural and legal paternity does not coincide, the courts must decide which of the two is to be assigned parental rights over the child. Th is decision affects not only the interest of the natural father, but also the interests of the legal parents and in par ticu lar the interest of the child. 6. Section 1600 of the Civil Code is incompatible with Article 6 (2) of the Basic Law insofar as it refuses the biological father the right to challenge the legal paternity of another person despite the fact that the legal parents do not form a social family together with the child who is in need of protection under Article 6 (1). If a man who is not the natural father of the child has acknowledged paternity but does not live together with the mother and the child and is merely a “paying father,” there is no sufficient reason to refuse the natural father the right to be recognized as the legal father and to take on the associated duty in connection therewith. Nor may the interests of the mother and the child prevent this. II. [Contact Rights] An older version of the Civil Code, which provided that a guardianship court could grant the father personal contact with the child if such contact served the welfare of the child, did not violate Article 6 (1) of the Basic Law.

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1. The natural father who is not the legal father of a child also forms a family together with the child. Article 6 (1) protects this family if there is a social relationship between natural father and the child that arises from the fact that at least for a period of time he was actually responsible for the child. Article 6 (1) of the Basic Law protects the interest of the natural father and the child in preserving their social and family relationship. It therefore protects their ability to remain in contact. It is a violation of Article 6 (1) if the biological father who has a relationship of this kind with his child is denied contact with the child even though the contact is in the interests of the child’s welfare. a. Article 6 (1) protects the family as a community of parents with children. In this connection it is insignificant whether the children are the children by birth of the parents or whether they are legitimate or illegitimate. A family consists of an actual long-term and caring relationship between children and the parents who are responsible for them. A child living with both parents constitutes a family. If this is not the case but both parents bear responsibility for the child, then the child in effect has two families that Article 6 (1) protects, namely, the family with the mother and the family with the father. b. If the natural father who is not the legal father has actual responsibility for his child, and if a social relationship has developed between them, the two form a family covered by the protection of Article 6 (1) despite the fact that he lacks the status of a legal father. . . . c. The protection of Article 6 (1) does not cease when the biological father can no longer continue taking responsibility for his child. The family that has come into existence between the biological father and his child continues under the Basic Law’s protection. True it is that neither Article 6 (2) nor Article 6 (1) of the Basic Law gives the natural father who is not the legal father a claim to continue to act with responsibility for the child. But even when this possibility ends, the personal connection that has developed between the biological father and his child continues in existence; moreover, it is kept in existence by the blood relationship between father and child. The interest of the biological father in preserving the relationship with his child, along with the interest of the child in continuing the relationship, is protected by Article 6 (1) as an aftereffect of the protection that previously covered their family community of responsibility. d. Th is protection, which continues to have an effect, gives rise to the biological father’s right to contact with his child, assuming that the contact serves the welfare of the child. cc. Article 6 (1) of the Basic Law protects the relationship between the child and its parent. . . . The provision containing the fundamental right can therefore give the individual only a right that corresponds to the interest of the other family member who is connected with him or her and that serves the protection of the family relationship. A right of the biological father to contact with his child for the purpose of maintaining the social relationship that exists between them therefore exists only to

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the extent that this serves the welfare of the child. . . . What is decisive is the concrete social network of relationships in which the child was involved. Accordingly the [applicable complainant] suffered no violation of his right under Article 6 (2) of the Basic Law as a result of the decisions challenged, but the decisions do violate his right to the protection of his social and family relationship to his child under Article 6 (1) of the Basic Law.

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Parental Rights and Sex Education. Parental rights are implicated when parents oppose school programs that allegedly undermine their ability to direct the moral education of their children. The constitutional guarantee that confers on parents the natural right and duty to direct the upbringing of their children, however, is usually considered in tandem with paragraphs of Article 7 that place the school system under the supervision of the state and confers on parents and guardians “the right to decide whether children shall receive a religious education.” So both state and parents are charged with directing the education of children, the consequence of which requires a delicate balancing process when courts are called upon to decide confl icting claims arising out of these provisions. The Sex Education Case (1977),150 a leading decision on parental rights, is a paradigmatic example of this balancing process at work. In 1970 Hamburg school officials promulgated guidelines for sex education in the public schools. Carried out within the framework of existing courses and adjusted to the age and maturity of the students, the program covered subjects such as sexual development, the biological aspects of human reproduction, various problems of sexuality, and the responsibilities of parenthood. Its adoption triggered constitutional complaints by parents challenging the guidelines as an infringement of parental rights under Article 6 (1). In rejecting the constitutional complaints, the First Senate nevertheless admonished that sex education is primarily a parental duty and that it ideally “takes place most naturally within the protected and sheltered atmosphere of the family.”151 Yet under the terms of Article 7 (1), the state is not excluded from this domain. In supervising the “entire educational system,” the state shares in prescribing courses and setting educational goals, both functions equal in constitutional significance to parental rights in education. “Neither the parental right nor the state’s mandate,” declared the senate, “has absolute priority over the other.”152 As for sex education, the state must be allowed to treat it as “an important element in the education of young people,” in part to make sure that human sexuality, owing to its social implications, is responsibly exercised in human affairs. The senate also recognized the interests of children as required by their dignitarian and personality rights, both to provide for their healthy social development and to avoid the serious “psychological damage that may occur as a result of misconceived educational models.”153 For these reasons, given its balancing approach to constitutional analysis, the senate insisted that sex education “must be planned and implemented with the greatest possible cooperation between parents and the

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school.”154 The senate found that the interests of parents, state, and children had been adequately considered and attended to in the design of the Hamburg sex education program, even as it cautioned that schools “must refrain from attempting to indoctrinate pupils by advocating or opposing certain forms of sexual behavior.” In short, said the senate, schools “must respect the natural modesty of children and must generally consider the religious and ideological convictions of parents as they manifest themselves in the sexual sphere.”155 Given “the spirit of restraint and tolerance” with which sex education in the Hamburg context was being taught, the senate also ruled that objecting students were not entitled to be constitutionally exempt from the instructional program. As Sex Education shows, there is considerable tension between the “natural right of parents” to provide for the education of their children under Article 6 (2) and the duty of the state to supervise the “entire educational system” under the terms of Article 7 (2). The Obligatory School Case (1972) is another example in the education field of a particularly sharp confl ict between these constitutional values.156 In the mid1950s, the state of Hesse set up, on an experimental basis, the so-called comprehensive school (Gesamtschule). Under the traditional system of education in Germany, students are channeled into one of three major secondary schools (Gymnasium, Realschule, or Hauptschule) after they have completed four years of common elementary education. Hesse established two additional years of common schooling designed as a compulsory observational stage (Förderstufe) during which students were to be channeled into special courses and tracks based on interest and ability. Student progress would be closely monitored, and on that basis they would then be advised, following consultation with teachers and parents, as to their future course of studies. Th is program deprived parents of the option of sending their children, after the fourth grade, directly to the Gymnasium, the highly demanding school whose nine-year classical and scientific curriculum has served as the main route to a university education in Germany. Several parents fi led constitutional complaints against the new system because the Förderstufe limited their freedom of choice with respect to both schools and courses of study for their children. The First Senate, recognizing the “far-reaching creative freedom of the individual states” in the field of education, sustained the validity of the new system as well as the Förderstufe’s program of student selection and advancement. Th is creative authority, said the senate, “extends not only to the organ izational structuring of schools but also to the determination of educational goals and course content.”157 Yet this authority is limited by and equal to the constitutionally guaranteed right of parents under Article 6 (2). “The state must therefore respect the responsibility of parents for the total plan of education for their children and lend a sympathetic ear to the variety of opinions expressed on educational matters so long as this is compatible with an orderly school system orga nized by the state.”158After carefully examining the statute and the history that led to its enactment, the senate concluded that the state had not unconstitutionally invaded the rights of parents. The state’s interest prevailed over any exclusive right on the parents’ part to dictate the school or curriculum of

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their children at this formative stage (the fi ft h and sixth grades) of educational development. But the state’s interest is controlling only so long as parents are not deprived of the right to send their children to a private school or of the right generally to be consulted with respect to the placement and training of their children in the Förderstufe.159

conclusion Historical forces have molded the shape of church-state relations in Germany, just as social change has influenced the contemporary development of the constitutional law of marriage and the family. Article 6, as we have seen, confers the state’s “special protection” on marriage and the family, protects the “natural right of parents” to care for their children, places mothers under the “protection of the community,” and declares that nonmarital children shall have the “same opportunities for physical and mental development” as marital children. The religion clauses of the Basic Law include the general provisions of Article 4, which secure against state infringement the fundamental freedoms of faith and conscience. Article 140 also counts toward the Basic Law’s religion clauses. It incorporates into the Basic Law five articles of the Weimar Constitution that govern the rights and status of religious societies and defi ne the relationship between church and state. When considered together, Articles 4 and 140 command the state to remain neutral in the sphere of ideological or religious values and to follow a policy of equal treatment with respect to churches and creeds. The religion clauses imply more than mere tolerance of religious diversity. We have seen that they require the state to bestow special protection on religiously motivated behavior so long as such conduct does not impinge on otherwise valid community interests of the rights of others. Still more, the principle of state neutrality in church-state relations, as adumbrated by the Federal Constitutional Court, permits a measurable degree of cooperation between church and state. Contrary to the “separationist” thrust of American constitutional law, the Basic Law accords religion a special role in the nation’s public life, one manifested in constitutional provisions on parental rights and religious instruction in the public schools. German constitutionalism in the field of church-state relations, like the rights associated with marriage and parenthood, represents a delicate balance between competing constitutional values and interests, both personal and communal. The Basic Law itself often requires the Federal Constitutional Court to balance constitutional provisions against one another. A perfect example of this, as illustrated by the Sex Education Case, is the balance the Court sought to strike between the natural right of parents to bring up their children under Article 6 (2) and the duty of the state under Article 7 (1) to supervise the entire school system. Similarly, under the religion clauses, as illustrated by the School Prayer, Interdenominational School, and Classroom Crucifix cases, the Court has had to engage in a delicate balance between the negative

R eligion, Conscience, and Fa mily R ights 621

and positive rights to religious belief and expression. But as we have seen, the weight attached to a par ticu lar clause or provision of the Basic Law depends on its location within the hierarchical ordering of values the Court has discovered in the constitution. Th is general approach to interpretation in the jurisprudential areas considered in this chapter means that no par ticu lar constitutional right or value should be allowed to negate entirely, under the interpretive principle of concordance, a competing constitutional right or value. In the German constitutionalist view, the task of the interpreter is to optimize to the extent possible each of the confl icting constitutional values involved in a given set of circumstances.

10 Economic Liberties and the Social State ∂ Germans often describe their economic system as a “social market economy” (soziale Marktwirtschaft).1 An outgrowth of German neoliberal and Catholic social thought, the social market economy is predicated on a belief in the compatibility of a free market with a socially conscious state. It seeks to promote a unified political economy based on the principles of personal freedom and social responsibility. But the freedom of the individual and the responsibility of the state are constrained by the constitutional framework within which the economy operates. Th is framework includes the rights of property and inheritance (Article 14); freedom to choose and exercise a trade or profession (Article 12); freedom to form and join economic or trade associations (Article 9 (3)); freedom of commerce, contract, and industry flowing from the general right of personality (Article 2); and the social state principle (Sozialstaatprinzip). The social state principle is of par ticu lar importance because it establishes the boundaries and infuses the meaning of all economic rights created by the Basic Law (Grundgesetz).2 As noted in Chapter 2 of this volume, the Sozialstaat is anchored in two constitutional clauses: Article 20 (1) defi nes Germany as a “social federal state,” and Article 28 (1) requires the states to conform to a constitutional regime faithful to “the principles of a republican, democratic and social state governed by the rule of law” (emphasis added). The italicized words are a loose translation of sozialer Rechtsstaat, a more succinct rendering of which is “social constitutional state.” The constitutional state (Rechtsstaat) and social state (Sozialstaat) principles thus join in a higher unity under the Basic Law.3 The fi rst, a concept rooted in bourgeois liberalism, protects the individual from the state; the second, rooted in the needs of modern industrial society as informed by Germany’s rich tradition of socialist thinking, obligates the state to construct a just social order. In the understanding of some commentators the Sozialstaat places social justice on the same constitutional footing as classical civil rights.4 But the Basic Law is largely silent with regard to the nature of the social state. The entitlement of “every mother . . . to the protection and care of the community” (Article 6 (4)) and the provisions in Article 15 for the nationalization of property are two exceptions to this general opacity. In any case, most of the individual rights expressly secured in the Basic Law’s fi rst nineteen articles, including the right to property and the guarantee of occupational freedom, are primarily regarded as defensive (Abwehr) protections against the state’s intrusion on individuals’ lives, and are thus associated with the tradition of liberal democracy. When the Basic Law was drafted in 1949, the German public mind appeared committed fi rst and foremost to this vision of the Rechtsstaat. In its new incarnation under the

Economic Liberties and the Social State 623

Basic Law, the Rechtsstaat was to be based on law and justice,5 two standards appearing to need special protection at the time in the light of their debasement by the Nazis. In spite of the clarity, if not the explicit priority, given to the principle of the Rechtsstaat, the Sozialstaat is no less an established value in German public law, and it has sound pedigree in German constitutional history.6 The social welfare provisions of the Basic Law, including the social obligation attached to the right of property, occasioned little debate in the Parliamentary Council.7 A variety of reasons account for the constitution’s lack of specificity regarding the social state principle. The economic liberals among the framers preferred the broad language already alluded to; socialists were confident that a progressive social agenda could be set in place by ordinary legislation under the general rubric of the Sozialstaat; still others were leery of building a par ticu lar social or economic model into the constitution. Little wonder, then, that in the march of time the exact content of the Sozialstaat has become a matter of dispute among constitutional lawyers and commentators.8 For its part, the Federal Constitutional Court (Bundesverfassungsgericht) has repeatedly called attention to the fundamental status of the social state principle and has often reminded the federation and the federal states (Länder) of their constitutional duty to establish a just social order.9 The Court has been reluctant to lay down guidelines for the realization of socioeconomic justice or the achievement of other social goals beyond the foundational guarantee of a “subsistence minimum . . . ensuring to each person in need of assistance the material prerequisites that are indispensable for his or her physical existence and for a minimum of participation in social, cultural and political life.”10 But in this “legal and economic-political realm,” the Court has said, “the legislature enjoys wide-ranging discretion,”11 latitude that extends to the nature and scope of the social welfare to be provided as well as the means of its promotion and delivery.12 And so, while the social state principle has some bite, it does not appear to cut very deeply on behalf of individual litigants seeking relief under its terms.13 The principle has been used to much greater effect in justifying social welfare legislation against the objection that it interferes with classical individual freedoms such as the right to property.

nature of the economic system It has long been understood, even if the issue remains contentious, that “[t]he Bonn Basic Law does not reflect a specific economic system. Thus, it is lawful for the legislature to pursue any economic policy which it deems feasible. Even a socialized economy would not violate the constitution, since Article 15 allows it under specific conditions.”14 But the constitution is not silent as regards the parameters of the economic system the framers envisioned. All economic policies must be enacted within the framework and in the light of the Basic Law’s values. These leave ample room for tension and interpretation.

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Neither of two extremes can claim constitutional priority. For example, the left ist political movement resurgent at the end of the fi rst decade of the twenty-fi rst century strains the meaning of the Basic Law when it asserts that the social state principle obliges Germany to combat globalization and capitalism.15 The Left Party (Die Linke) invokes the socialist potential of the Basic Law in support of its platform, including labor market regulation (minimum wage and maximum working hours), the maintenance of comprehensive social welfare programs, the implementation of redistributive tax policies, and the renationalization of recently privatized economic holdings.16 These claims would seem to conflict with the Basic Law’s provisions guaranteeing the ownership of property and the freedom of entrepreneurial risk-taking, which, in turn, cannot support the claim made by conservative thinkers that the Basic Law throws up an impenetrable barrier to socialist legislation.17 The Federal Constitutional Court’s view falls between these poles. It proclaims the fundamental neutrality of the Basic Law with respect to economic policy, but undergirds this view with certain assumptions about the nature of humankind and its relationship to society, thus combining elements of the Rechtsstaat with those of the Sozialstaat. Former Constitutional Court justice Renate Jaeger, an expert in social law, confi rmed this when she concluded that “[t]he constitution does not prescribe a specific economic social order but it sets seemingly confl icting pa rameters.”18 For Justice Jaeger the Court’s jurisprudence consists of “continuity and change” as regards the economic system, while always aiming at preserving both liberalism and social justice. One of the Court’s earliest attempts at balancing these principles and articulating a vision of Germany’s “economic constitution” arose in the context of the postwar reconstruction of Germany’s devastated iron and coal industries. 10.1 Investment Aid I Case (1954) 4 BVerfGE 7 [After World War II the iron and coal industries lacked the necessary capital to fi nance their reconstruction. On the recommendation of the Common Market the Parliament (Bundestag) enacted the Investment Aid Act in 1952 (as amended in 1953) for the purpose of creating an investment fund to benefit these industries. The fund was created by compulsory contributions from the profits of other manufacturers and traders. Several corporations fi led a constitutional complaint claiming that the legislation imposed a special tax on them in violation of a number of constitutional provisions. The Constitutional Court ruled that the Investment Aid Act did not violate the Basic Law.]

∂

Judgment of the First Senate. . . . D. First, the complainants attack the legislation as a whole.

Economic Liberties and the Social State 625

1. Some argue that the federal government had no authority to pass this law. The Court has already decided this question. . . . The administration derives the authority for this legislation from Article 74 (1) [11] of the Basic Law. The content and history of this section do not support the interpretation that the legislative authority of the federation is limited to areas of merely organizational import or to the regulation of legal relations of those branches of the economy which are mentioned separately in Article 74 (1) [11]. Rather, under Article 74 (1) [11], the federation may also pass laws that intervene in economic life with the purpose of ordering and directing that life. The Investment Aid Act is such a law. Its purpose is to channel capital for investment purposes from one area of the economy to another. . . . [A. The Basic Law’s Image of Man] 3. Complainants allege a violation of the constitutional guarantee of the free development of personality because of an alleged limitation on their free entrepreneurial initiative. Article 2 (1) of the Basic Law is not violated. . . . If one views Article 2 (1) only as a limited protection of human freedom without which humans cannot exist as intellectual and moral persons, the investment aid law does not reach this area at all. The statute does not touch the autonomous entrepreneurial personality. If one sees in this constitutional right a comprehensive guarantee for freedom of action, such a freedom can, in principle, exist only to the extent that it does not violate the rights of others, the constitutional order, or morality. The image of humankind in the Basic Law is not that of isolated, sovereign individuals. On the contrary, the Basic Law has resolved the tension between individual and society in favor of coordination and interdependence with the community without touching the intrinsic value of the person. Th is principle follows from a comprehensive review of Articles 1, 2, 12, 14, 15, 19, and 20 of the Basic Law. The individual has to accept those limits on freedom of action that the legislature imposes to cultivate and maintain society. In turn, such acceptance depends upon the limits of what can reasonably be demanded in a par tic u lar case, provided the autonomy of the person is preserved. The Investment Aid Act falls within these limits. No “charged debtor” is prevented from developing his or her personality in this sense, even if the law temporarily limits the authority to dispose of the means of production and forces him or her to enter a legal relationship with certain entrepreneurs. Despite such limitations, there remains ample opportunity for free development of responsible entrepreneurship. . . . [B. Neutrality of Economy] 5. Complainants further allege that division of the economy into fi rms that give and receive violates the constitutional principle of equality as well as the principle of neutrality in economic policy and the customary economic and social order; they also allege that investment aid is incongruous with a market economy. The Basic Law guarantees neither the neutrality of the executive or legislative power in economic matters nor a “social market economy.” . . . The Basic Law’s neutrality in economic matters consists merely in the fact that the “constituent power” has not adopted a specific economic system. Th is omission enables the legislature to

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pursue economic policies deemed proper for the circumstances, provided the Basic Law is observed. Although the present economic and social order is . . . consistent with the Basic Law, it is by no means the only one possible. It is based upon a political decision sustained by the will of the legislature that can be substituted or superseded by a different decision. Consequently, it is constitutionally irrelevant whether the Investment Aid Act fits with the existing economic and social order and whether the means employed for guiding the economy are congruent with a market system. . . . The Constitutional Court is not authorized to assess laws to determine whether they are efficacious, in sum or in their discrete parts. . . . The Constitutional Court must examine such measures only to the extent of determining whether the legislature has observed the ultimate limits of its discretionary power and whether it has abused that power. . . . The principle of equality does not extend the authority of review granted to the Constitutional Court. The yardstick of Article 3 (1) always remains the same. If one applies this yardstick to the Investment Aid Act, it becomes evident that the legislature did not transgress the ultimate limits of its discretionary power. In this context one has to realize that every directive measure more or less restricts the free play of market forces. . . . In principle, the constitutional authority even includes power to pass laws in the interest of par ticu lar groups. Such laws must, however, be aimed at the public welfare, and they must not neglect the interests of others that merit protection. The Investment Aid Act makes allowances for such considerations. The “charged debtors” receive bonds for the amount of their contributions. Those bonds will yield interest and perhaps even dividends. . . . The economic interests of the “charged debtors” are consequently not arbitrarily impaired even if their own plans for investment must be deferred. . . . Because no violation of the Basic Law has been established, the constitutional complaints must be dismissed as unfounded.

∂

The Basic Law and Industrial Relations. As Investment Aid I makes clear, the Basic Law does not ordain the nature and structure of the economic system beyond a framework of core protections and principles. The economy may be organized in any manner that does not encroach, in the words of Article 19 (2), on the “essential content of a basic right,” including the right to property under Article 14 and the right of occupational freedom under Article 12. For a half-century there was general consensus in Germany that government has a major responsibility for the direction and organization of the economy. Prior to the severe recession and fi nancial crisis that beset the global economy in 2008, this consensus was starting to show signs of strain as Germany struggled to respond to globalized pressure for liberalization and the European Union’s continuing demands for market harmonization. Since the late 1980s the federal and state governments have been selling their stakes in a number of publicly held monopolies in an effort to privatize the transportation, telecommunication, and energy sectors. The aim was to promote the efficiency and competitiveness of state-run

Economic Liberties and the Social State 627

companies like Luft hansa (the former national airline), Deutsche Telekom (the former telecommunication monopoly), Deutsche Post (the former state-run postal system), and Deutsche Bahn (the national railroad, with a fi rst round of privatization that began in 2009). The wave of sell-offs had two additional aims. First, it helped balance government budgets by shift ing public sector jobs to the market and by providing one-time cash infusions from the sales. Second, it was hoped that share offers in well-respected public entities would promote broader participation by Germans in the equities market. Encouraging individuals to pursue their own savings and investment strategies is seen as a necessary cultural shift away from dependence on Germany’s comprehensive social welfare scheme at a time when governments continue to consider tough and controversial pension and labor market reforms. Government intervention in the economy remains considerable, however, taking the form of massive investment in industry and major regulatory policies such as the Restraint of Trade Act of 1957, the Economic Stabilization Act of 1967, the Codetermination Acts of 1951 and 1976, the Employment Promotion Act of 1985, the Telecommunications Act of 2004, and the Second National Energy Act of 2005.19 In Germany, as in many other developed economies, the government bucked the seemingly inexorable trend of recent decades toward liberalization and privatization by responding to the “Great Recession” of 2008–9 by implementing the largest economic stimulus plan in the postwar era.20 And more than one-third of Germany’s banks are still publicly owned, a factor that may have contributed to the management practices that left the once proudly stodgy German banking sector humbled and on the verge of ruin in the wake of the 2008 global fi nancial crisis.21 The states operate Landesbanken that sustain consortia of local savings banks that often operate in two or more federal states. These banks benefit from a variety of competitive advantages including subsidies, occasional government bailouts, and the enhanced creditworthiness enjoyed by their sponsor governments. A relationship between government and industry like that found in the German fi nancial sector implicates constitutional concerns that in other constitutional democracies are strictly matters of public policy. Th is is due, on the one hand, to numerous provisions of the Basic Law that defi ne the government’s interest in property. 22 On the other hand, as already noted, the Basic Law guarantees the right to property and the right to choose and exercise an occupation, and the rights to freedom of contract and economic competition.23 Contending that these personal rights cannot coexist with massive investments by government in private industry or with large state-owned enterprises operating under the rules of a market economy, some commentators have questioned the legitimacy of state-operated commercial activities.24 While the principle of economic neutrality leaves much in this field to legislative discretion, the Constitutional Court has observed that “a state economic monopoly is a foreign body in a free economy; such monopolies not only interfere with [economic] activities that individuals could carry out voluntarily, but they also impinge resolutely upon the free development of broader aspects of the economy.”25 The Court expressed similar skepticism toward

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economic regulation,26 a view that, in the opinion of one leading scholar, “allows the Government actively to carry out . . . economic policies by fiscal means, in fulfi llment of its social political functions, without, however, allowing it to interfere with constitutionally protected private activities.”27 In spite of these assertions and the obiter dicta about “foreign bodies” in the stream of commerce, the Constitutional Court continues to approach general economic policy with great restraint and is unlikely to risk the political backlash that would greet significant judicial intervention in this field. In the landmark Codetermination Case (1979; no. 10.9) the Court reiterated the doctrine of neutrality by refusing to treat the social market economy as a constitutionally prescribed principle.28 According to management, the coparticipation of labor in the management of industry would interfere not only with individual rights essential to entrepreneurial activity but also with the substantive guarantees of the Basic Law. The Court’s answer, supported in part by the Sozialstaat principle, was that, while the legislature’s discretion in shaping the economy is surely bound by the Basic Law, the constitution does not incorporate any par ticu lar economic framework of organization prior to or independent of guaranteed individual rights. In the Court’s view the legislature may pursue any economic policy it chooses so long as par ticu lar fundamental rights of the Basic Law are taken into account. It is fitting that Volkswagen, Europe’s largest automaker and a brand indelibly linked with Germany, frequently has been at the forefront of the struggle over the contrasting economic visions sanctioned but not ordained by the Basic Law. Recent legislation, for example, is evidence of the government’s stubborn entanglement with industry in Germany. In 2007 the European Court of Justice took exception to a fi ft yyear-old German law that requires an 80 percent super majority of voting shares for all major strategic decisions at Volkswagen.29 The law gives the state of Lower Saxony, the owner of 20 percent of the company’s shares, a minority veto. The reform of the law undertaken in response to the European Court’s judgment essentially left Lower Saxony’s voting priority intact, setting up another round of challenges in the European Union institutions. As another example, commentators have pointed to the Constitutional Court’s Volkswagen Denationalization Case, involving the partial privatization of the automaker, as a leading illustration of the Basic Law’s posture of economic neutrality. Article 15 of the Basic Law permits the public ownership of land, natural resources, and the means of production “by a law which shall provide for the nature and extent of compensation.” But may an industry that is nationalized under this provision later be denationalized? Th is was a key issue in the following case. 10.2 Volkswagen Denationalization Case (1961) 12 BVerfGE 354 [After World War II the West German federal government and the state of Lower Saxony inherited the Volkswagen Company. In 1960, with the consent of Lower Saxony, the Parliament enacted a law denationalizing the fi rm through

Economic Liberties and the Social State 629

the public sale of 60 percent of its stock. To encourage wide public ownership, the statute provided for the sale of the stock at reduced value, limited the number of shares any one person could buy, and allowed the fi rm’s employees to purchase the bulk of the stock. Several groups of people brought constitutional complaints against the denationalization statute, claiming violations of Article 15. The Court found that the denationalization policy did not offend the Basic Law.]

∂

Judgment of the First Senate. . . . IV. [A. Permissible Public Sale] 1. Complainants desire a better position within the framework of denationalization. Before this concern can be examined, the Court must decide whether denationalization itself is constitutional. Th is ruling is imperative not only because of the measure’s broad significance for the political system but also because of the effect of such a decision on other cases. a. No constitutional principle prohibits the sale of purely economic enterprises owned by the federation. Th is measure lies within the discretion of the federation’s political organs, as long as its implementation does not violate constitutional law and, in par ticu lar, basic rights [citing the Investment Aid I case]. . . . In a modern liberal state different views will always exist as to what broad economic and social policy and what specific measures serve the public interest. The objectives of denationalization may not fi nd general approval; the measure itself may even be partially intended to win over constituencies that presently oppose the policy. . . . But that sort of compromise cannot be excluded where social, political, or economic measures are concerned. Political compromise is probably inevitable in a modern state that is forced to intervene in social life, and it should not be deemed unconstitutional. . . . In any event, a court cannot, with binding force for the general public, rule that the denationalization of Volkswagen does not serve the public interest. Th is principle of restraint would apply even if serious doubts existed as to whether the goals pursued . . . could be achieved by means of the acquisition of shares. . . . Confi rmation or refutation of the wisdom of such measures by their later success or failure is a matter for which the responsible political organs must answer. [B. The Socialization of Property] Neither does Article 15 of the Basic Law contain anything to impede denationalization of Volkswagen. Th is article contains no constitutional order to socialize the economy, but only an authorization for the legislature to do so. Whether and to what extent the legislature makes use of this authorization must be left to its political discretion. . . . We must therefore reject the view that enterprises that could be socialized according to Article 15 cannot be “denationalized” after they have become public property. Also, one cannot deduce a “tendency toward socialization” from Article 15,

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meaning that the legislature, if it wants to regulate property conditions in branches of the economy that may be socialized, can do so only in the direction toward socialization. Such fundamental restrictions on the legislature’s freedom of decision in economic policy do not follow from the words, the genesis, or the meaning of the provision. b. The fundamental constitutionality of denationalization does not exempt the federation from the obligation . . . to seek an adequate price when selling public property. Establishment of an adequate price may often be difficult. . . . But if special goals are pursued along with the sale (e.g., goals of an economic or sociopolitical nature) deviation from the market price may be justified. So-called political considerations also may be taken into account if the decision remains within certain limits and if the constitutional state principle is respected. Accordingly, regulation of the sale of Volkswagen stock is not constitutionally objectionable. aa. As the oral proceedings have shown, competent agencies of the federation proceeded from the assumption that the true value of the enterprise must be the basis for deciding the sale price of the original stock. To determine this value several experts whose knowledge and authority are recognized were asked to write detailed estimates. . . . The responsible federal agencies have adhered to the framework of considerations that are clearly the basis for the law itself; namely, a compromise between the optimum capital for the Volkswagen Foundation from high sales proceeds, on the one hand, and certain general sociopolitical purposes, on the other. In assessing this procedure and its results, the Court cannot conclude that the federal government abused its discretion, even if one acknowledges that the true value—and thus also the sale price—could have been set higher according to available expert opinions. Nothing to the contrary is proven by the fact that, in the meantime, the market price of Volkswagen stock has risen to more than double the sale price. Th is development was hardly predictable at the time the sale price was fi xed. Share prices . . . are affected by numerous circumstances that often have nothing to do with the real value of individual stocks, but arise, for example, from mere speculation. But the law’s intent was to interest exactly those persons in acquiring permanent portfolios who would not have been able to buy the stocks if they had been sold to the highest bidder. Under these circumstances it would hardly have been justifiable to let the sale price be influenced by the possibility of a considerably higher value in the market.

∂

right to property Reflecting the tension inherent in the Basic Law’s economic provisions, Article 14 establishes a confl icted constitutional regime respecting property. The Article’s fi rst paragraph guarantees a fundamental liberty interest in property while granting Parliament the authority to define the “content and limits” of this guarantee. The property guarantee of Article 14 (1) is subject to two additional constitutional limitations.

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Article 14 (2) imposes a “social obligation” on property owners (relying on words and phrases with exact equivalents in the Weimar Constitution). Article 14 (3) permits the state to expropriate property “for the public good,” but only pursuant to “a law that determines the nature and extent of compensation.” Thus, what the Basic Law gives—an unequivocal, fundamental liberty interest in the protection of property unlike anything provided by the U.S. Constitution30—it also takes away. First, the Basic Law subordinates property to the interests of society (Article 14 (2)). Second, the Basic Law authorizes the Parliament to defi ne (Article 14 (1) [2]) or even deprive (Article 14 (3)) owners of their property rights. Th is tension is the key feature of the Basic Law’s property regime. Not surprisingly, resolving and giving force to Article 14’s confl icting mandates has been the focus of the Federal Constitutional Court’s property jurisprudence. As an initial matter it must be noted that the tension at work in Article 14 cannot be interpreted as the framers’ desire to subvert the protection of property. Parliament’s authority to define the content and limits of the right to property is limited by Article 19 (2) of the Basic Law, which provides that “in no case may the essence of a basic right be affected.” In addition, any restriction of a basic right must be, under the terms of Article 19, “by or pursuant to a law” and “must apply generally and not merely to a single case” and “must specify the basic right affected.” In short, Parliament’s authority to define the content and limits of the right to property pursuant to Article 14 (1) [2] cannot be interpreted to permit legislation that interferes with the essence of the right. For the most part, the Federal Constitutional Court has resolved the tension at work in Article 14 to the advantage of the individual liberty interest secured in the article’s fi rst paragraph. In the Hamburg Flood Control Case, for example, the Court articulated the confl icting characteristics of the Basic Law’s property regime. Property, the Court underscored, is both a classically liberal personal liberty interest and an essential element of the constitutional order subject to the authority of the Parliament. Property is personal and social. But the Court expressed the general significance of the personal right to property with clarity and consequence, emphasizing that the fundamental liberty interest protected by Article 14 (1) is not to be sacrificed lightly to property’s social function. 10.3 Hamburg Flood Control Case (1968) 24 BVerfGE 367 [Owing to damage caused by an enormous flood in 1962, the city-state of Hamburg passed the Dikes and Embankments Act of 1964. The act converted all grassland classified as “dikeland” in the land register into public property. It terminated all private interests in the property and provided compensation to the owners. Several owners of the dikeland property filed constitutional complaints alleging a violation of their fundamental right under Article 14. The Court rejected their complaints.]

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Judgment of the First Senate. . . . D. I. 1. Article 14 (1) [1] of the Basic Law guarantees property both as a legal institution and as a concrete right held by the individual owner. To hold property is an elementary constitutional right that must be seen as sharing a close nexus with the protection of personal liberty. Within the general system of constitutional rights its function is to secure for its holder a sphere of liberty in the economic field in which he or she can lead a self-governing life. The protection of property as a legal institution secures this basic right. Th is individual constitutional right is conditioned upon the legal institution of “property.” Property could not be effectively secured if lawmakers were empowered to replace private property with something no longer deserving the label “ownership.” . . . The regulation of property may be adjusted to social and economic conditions. The legislature’s task is to regulate property in the light of fundamental constitutional values. The institutional guarantee, however, prohibits any revision of the private legal order that would remove the fundamental cata log of constitutionally protected activities relating to the area of property and that would substantially curtail or suspend the protected sphere of liberty secured by this fundamental right. . . . [Despite these broad principles, which are protective of the property right, the Court went on to hold that the state could legitimately place the dikeland properties under public control. The expropriation of the lands near the dike satisfied the terms of Article 14 (3) and did not constitute an abridgment of the right to property guaranteed by Article 14 (1) [1]. The Court emphasized, however, that Article 14 (3) had been satisfied because the property was to be used for a particularly important public purpose, namely the pressing need to build an effective system of dikes and embankments to avert another disastrous flood. Thus, the Court proved unwilling to permissively interpret Parliament’s authority under the Basic Law to limit (in this case, expropriate) the fundamental interest in property secured by Article 14 (1). Th is restraint is one of the core interpretive principles of Article 14, whether applied to the “contents and limits” clause of paragraph 1; the “social obligation” clause of paragraph 2; or, as in following extracts from Hamburg Flood Control, the “public good” clause of paragraph 3.] E. III. 1. a. . . . Article 14 (3) permits the expropriation of real property if the public good requires it. But the overriding standard of the public good limits the legal power to expropriate property that ordinarily is protected by Article 14. Th is standard—and only this standard—permits an expropriation of property under Article 14 (3). . . . The object of a valid expropriation under Article 14 (3) must be clearly specified in the law. The Basic Law establishes that in the recurring tension between the property interest of the individual and the needs of the public, the public interest may, in case of confl ict, take precedence over the legally guaranteed position of the individual. . . . The constitution does not leave the resolution of this confl ict to the

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legislature but settles the issue itself. If all these relationships are borne in mind, then Article 14 (3) [2], which permits expropriation “only by or pursuant to a law,” does not involve a restriction on a basic right that is subject to the terms of Article 19 (1). b. The terms of Article 14 (3) [1] [the “public good” requirement] limit the taking of property under the terms of Article 14 (3) [2] [the “by law” and “compensation” requirements]. . . . If these requirements are not met, the basic right to property is violated. The owner’s duty to tolerate an intrusion on his or her right to property is limited to the terms established by the constitution itself. These limits are fi xed and permanent. The legislature is not empowered to change them. Beyond all this, the right to property as specified in Article 14 (3) is secured by the fact that property may not be expropriated in the absence of just compensation. The core guarantee under a permissible expropriation is the value of the property in question. Thus, the state is obligated to compensate owners whose special rights and privileges are forcibly sacrificed for the public good. If compensation is not compatible with the requirements of Article 14 (3) [3], then the basic right is violated, resulting in an unconstitutional expropriation. By the same token, the legislature is powerless to restrict or deny adequate compensation as provided by the constitution. It is essential to understand that the property right guaranteed by Article 14 has far-reaching significance going well beyond the protection afforded by the Weimar Constitution. The function of Article 14 is not primarily to prevent the taking of property without compensation—although in this respect it offers greater protection than Article 153 of the Weimar Constitution—but rather to secure existing property in the hands of its owners. The view propounded under the Weimar Constitution, and to some extent also under Article 14, is that the property guarantee is essentially a guarantee of the value of property and that its expropriation is acceptable so long as the parties are adequately compensated. Yet this view does not reflect the full purpose and spirit of Article 14. Because the Weimar Constitution had no provisions for testing the constitutionality of expropriation laws, and because judicial review was severely restricted, the judiciary had to be concerned primarily with protecting property owners through compensation. Thus, the basic right of property evolved into a demand for adequate compensation. By contrast, as already pointed out, the property guarantee under Article 14 (1) [2] must be seen in relationship to the personhood of the owner (i.e., to the realm of freedom within which persons engage in self-defi ning, responsible activity). The property right is not primarily a material but rather a personal guarantee. The basic right protects the individual against every unjustified infringement of the entire range of protected interests.

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Features of the Right to Property. The protection of property guaranteed by Article 14 has subjective and objective aspects. German constitutional law particularly stresses the subjective character of the right to property: property is associated with

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liberty and personhood, just as it provides space for the exercise of autonomy and self-realization. Accordingly, as Hamburg Flood Control pointed out, the legislature may not change the Civil Code (Bürgerliches Gesetzbuch) in a way that would constrict or obliterate the core of this individual freedom. It follows, therefore, that restrictions on or regulation of property must respect the constitutional value of personhood underlying individual ownership. The Court also requires that any restriction on property be consistent with other basic constitutional values that have significance for individual autonomy, such as the principle of equal protection.31 But Hamburg Flood Control also confi rmed that the right to property, like other basic decisions of the founders, is an autonomous legal institution. To use the standard formulation, the right to property is an objective constitutional value that the state is obliged affi rmatively to preserve and foster. Exactly and precisely what positive duty the state has under this theory has never been laid out in full. But some commentators have suggested that the objective character of Article 14 may require, for example, environmental protection legislation to preserve the value of property, the productive use of which depends on clean water and unspoiled forests.32 The Court has also underscored the significance of the personal liberty interest implicated by the property guarantee by liberally interpreting the subject matter of Article 14. The protection of property naturally applies to the forms of property recognized by private law, including movables and immovables, and particularly property in land.33 These traditional notions of property are examples of the interests that Article 14 was meant to protect, which, as identified by the Court in Hamburg Flood Control, includes securing a “realm of freedom within which persons are able to engage in self-defi ning, responsible activity.” Real and personal property, however, no longer adequately account for these interests for most people, leading the Court to hold that the private-law and constitutional-law aspects of property are not coextensive.34 The constitutional protection embraces traditional German public-law jurisprudence in recognizing an “enlarged concept of property rights.”35 The Federal Constitutional Court reasoned that “the notion of property as guaranteed by the constitution must be derived from the constitution itself. The notion of property in the constitutional sense cannot be fi xed by ordinary statutes ranking below the constitution, nor can the range of the guaranteed right be determined on the basis of provisions of private law.”36 Th is “enlarged” protection of property extends to “all rights representing fi nancial assets,” including intangible property, intellectual property, claims against third parties, and social welfare benefits derived in some part from an individual’s direct contributions to the program that manages and distributes the benefits.37 Pension and unemployment payments are examples of the latter; whereas general institutional or infrastructural public support for housing, education, health, and welfare are not.38 The broad, public-law notion of property applied by the Court to the interpretation of Article 14 has led it to extend property protections to a wide array of interests, prompting one commentator to conclude that “[t]he history of the established case law of the Federal Constitutional Court concerning Article 14 . . . is a history of the

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expansion of the constitutional protection of ownership.”39 The Tenant’s Right of Occupancy Case (1993) is frequently cited as an example of the Court’s liberal approach to defi ning the nature of Article 14’s protection. 10.4 Tenant’s Right of Occupancy Case (1993) 89 BVerfGE 1 [A landlord sought to evict a tenant from his rented apartment. The landlord wanted to rent the apartment to her son so that he would have ready access to assist her in her ailing health and advancing age. The apartment in question lay directly above an apartment occupied by the landlord and there was ready access between the tenant’s and the landlord’s apartments through the building’s common stairwell. The tenant challenged his eviction without success in the ordinary courts, which found the landlord’s justifications adequate under the relevant provisions of private law. In a constitutional complaint the tenant argued that the ordinary courts’ decisions upholding his eviction had the effect of violating, among other provisions of the Basic Law, his right to property under Article 14 (1). The Court had long left open the question whether a tenant’s private-law right to occupy an apartment constituted a property interest protected by Article 14. The Court held that it does, but nonetheless found that the ordinary courts’ judgments did not constitute a violation of the constitutionally protected right in this case.]

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Judgment of the First Senate. . . . II. C. 2. . . . a. The fundamental characteristic of property, as used in Article 14 of the Basic Law, is the assignment of a right that has value as an asset because the holder of the right has exclusive authority to privately use and dispose of the privileges granted by the right. The exclusivity of this authority must approximate that which attaches with the ownership of real or personal property. The property protection secured by the Basic Law should give the holder of property rights freedom in the realm of such assets and, thereby, make it possible for the individual to develop and to take personal responsibility for fashioning his or her life. . . . The home is the center-point of everyone’s private existence. There, the individual satisfies elementary necessities of life and enjoys the assurances of freedom necessary for the development of his or her personality. The great majority of people, however, are not able to meet the need for a home by resorting to real property ownership. Instead, they are obliged to rent living space. The tenant’s right of occupancy, under these circumstances, serves functions typically associated with real or personal property. The legislature acknowledged that apartments have this character when it established the tenant’s right of occupancy. Th is private-law right assigns to the tenant a legal status that is the equivalent of that enjoyed by the owner of real or personal property.

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Th is legal authority fi nds its expression in the protected privileges that are assigned to the tenant for application against all others. The tenant is authorized to use the apartment (§§ 535 (1) and 536 bgb). If the tenant is illegally disturbed in the apartment, then he or she may seek the elimination of the disturbance and seek to prevent the recurrence of the disturbance (§§ 862 (1) and 858 (1) bgb). If the tenant is illegally denied occupancy of the apartment, it is possible to seek to have the right of occupancy restored (§ 861 (1) bgb). These claims operate on behalf of the tenant against everyone else, even the landlord. . . . Th is right of occupancy is a legal status that has value as an asset, a status that contains the authority to privately use and dispose of the privileges granted by the status.

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There are, however, limits to the Court’s broad conception of property. As noted earlier the Court has not extended Article 14 protection to general social welfare entitlements that are not supported by direct personal contributions. In the Glycol Wine Case (2002) the Court recognized some additional limits when it refused to treat future business opportunities and a business’s reputation as protected property. In Glycol members of the German wine industry lodged constitutional complaints against a federal ministry’s publication of a list of German vintners and bottlers who used diethylene glycol (glycol or deg) in the production of some of their wines. Glycol is a chemical compound frequently used in anti-freeze. The Federal Ministry for Youth, Family and Health issued the list in 1985 after press reports of the use of glycol in Austrian and German wines fueled what came to be known as the “glycolscandal.”40 The First Senate found the complainants’ allegations of a violation of Article 14 to be unfounded because the publication of the list did not affect a subject matter protected by the constitutional guarantee of property.41 First, the complainants argued that publication of the list infringed their property interest in future sales and earnings. In rejecting this claim, the Court explained that the constitution protects the concrete existence of assets against unjustified interference by public authorities. It does not, the Court held, “create a general guarantee of the value of assets. It only encompasses existing legal positions and not future opportunities or earning potential.”42 The Court emphasized that the constitutional protection of property is characterized by the owner’s fundamental power to dispose of the subject, including the right to sell it. The Court concluded that the publication of the list did not restrict the complainants’ right to offer their wine on the market. Potential sales, the Court said, are not part of the wine’s acquired and constitutionally protected status but are, instead, the unprotected result of future undertakings.43 Second, the complainants argued that publication of the list violated Article 14 by doing harm to their business reputation. The Court rejected this argument as well, fi nding that it only sought protection for lost business possibilities and the opportunity to earn a profit. The Court explained that even if a business’s reputation performs an

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extremely important ser vice for the fi rm it cannot be counted as part of the business’s protected property under Article 14 (1) because reputation is fashioned in the market by the achievements and undertakings of the enterprise, on the one hand, and by the evaluation of the participants in the market, on the other hand. Th is wholly contingent dynamic, the Court said, is played out again and again and, thus, is subject to constant change. The Court reiterated that Article 14 protects only established legal positions and not “the results of situational valuations of participants in the market, even if those valuations have economic consequences.” 44 Social Obligation of Property. It would be wrong to read the Court’s prioritization of the liberty interests associated with property and its expansive characterization of the subject matter protected by Article 14 as indications of the Court’s desire to weaken the social elements of the Basic Law’s protection of property. The Court has never endorsed the laissez-faire approach to property rights that the U.S. Supreme Court followed in the Lochner era.45 Of course, this path is foreclosed by the text of Article 14, which explicitly anticipates a variety of state infringements on property rights. Significantly, Article 14 (2) imposes a “social obligation” on property, which establishes that the use of property “should serve the public good.” Th is feature of Article 14 is attributable to a number of factors. It reflects the long tradition of socialist thought and Catholic social teaching in German politics and society. Equally significant is the immediate context in which the Basic Law was drafted. The Parliamentary Council met to draft West Germany’s constituent document amidst the ruins and devastation left behind by Germany’s unconditional defeat in World War II. The framers were painfully aware of the fact that the republic they intended to create had almost no viable housing and faced a food shortage that would threaten Germans with mass starvation.46 Also, unlike the American Constitution, the Basic Law was drafted and enacted after the emergence of the modern welfare state, which assumes the citizen’s entanglement with public institutions and structures. An earlier draft of Article 14 (2) considered by the Parliamentary Council expressed the framers’ intent. It read: “Ownership entails a social obligation. Its use shall fi nd its limits in the living necessities of all citizens and in the public order essential to society.”47 Th is wording would suggest that the Parliament has been given a wide berth for regulating property in the public interest. Yet the regulation of property, as already explained, cannot go so far as to infringe the essence of ownership. The core of one of the Basic Law’s objective values, such as the right to property, may not be infringed even in pursuit of the social obligation the Basic Law imposes on the ownership of property.48 The public interest may have to give way if the power of eminent domain is used to offend rights that are rooted in personhood. For example, the condemnation of private property may not fundamentally change the structure of important social and personal relationships, even if the policy for doing so aims to promote the public interest. The collectivization of agriculture is a possible example of such an impermissible fundamental change. In this situation, as George Fletcher

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has suggested, “Article 19 (2) [might] deny to the government the power to recast these relationships, even if it left the wealth of the affected individuals intact.” 49 Parliament’s Authority to Expropriate or Regulate Property. There are two ways in which Parliament can infringe the right to property. First, Parliament can fully dispossess a property owner of his or her ownership interests through expropriation (Article 14 (3)). The social obligation of property, described above, has its most prominent manifestation in this authority, exemplified, as we have seen, by the condemnation of wetlands in the Hamburg Flood Control Case. The Constitutional Court has insisted, however, on independently assessing what constitutes a public interest within the meaning of the expropriation clause. In Hamburg Flood Control, for example, the Court validated the taking of dikeland properties because it was satisfied that the expropriated land was to be used for a par ticu lar public purpose. Alongside this independent judicial analysis of the social justification for expropriation, the general rule in Germany is that private property may be taken only when adequate compensation is paid.50 According to Article 14 (3) the extent of compensation “shall be determined by establishing an equitable balance between the public interest and the interests of those affected.” Second, as noted earlier, Parliament can interfere with the property right secured by Article 14 (1) [1] by circumscribing the scope of that right pursuant to regulations that defi ne the content and limits of property (Article 14 (1) [2]). No compensation is owed to the property owner for these limitations on the enjoyment of his or her property. But, in these cases “the social-obligation norm requires that the legislature establish and the courts maintain an equitable balance between the owner’s individual liberty interests and the well-being of the community.” 51 Th is mandate has been fulfi lled chiefly through the application of the proportionality principle described in Chapter 2. As one commentator noted, proportionality analysis ensures “that the regulation starts with but also ends with the public interest, and that it respects and protects both the public interest and the individual interests equally.” 52 Pursuant to the judicially created proportionality principle courts will examine “content and limits” regulations for their suitability, necessity, and fit.53 Other general standards seeking to balance public and private interests in the field of property regulation have been worked out by the Federal Court of Justice (Bundesgerichtshof) and the Federal Administrative Court (Bundesverwaltungsgericht).54 The two main principles involved are individual sacrifice and regulatory intensity (the Federal Court of Justice has tended to emphasize the former, the Federal Administrative Court the latter). On the one hand, if the burden of a content and limits regulation falls heavily on an individual owner, depriving him or her of the use of property, and if all benefits of the regulation are claimed by the public, an expropriation has occurred and the state must compensate the owner. On the other hand, no compensation is due if a uniformly imposed regulation confers benefits on all owners while exacting limited costs from all for the sake of the common good. Considerations of equality undergird these approaches. Simply put, the state must provide

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compensation if it forces a single individual to sacrifice essential rights for the public good.55 If, however, an individual affected by a general regulation also is part of the general public that benefits from the measure, then the property owner is expected to bear its costs, in which case the loss is not compensable. The Federal Constitutional Court has declined to give priority to individual sacrifice or regulatory intensity; it considers them in tandem.56 The Court’s essential position, as articulated in the Vineyard Case (1967),57 is that property can be regulated but not to an intolerable degree. In Vineyard the Court sustained a federal restriction on the cultivation of new vineyards not only because the regulation helped to maintain the quality of German wine, but also because it contributed to the economic position of the German wine industry as a whole, particularly grape growers. The burden imposed by the regulation, therefore, was not deemed compensable. In regulating the content and limits of property under Article 14 (1) [2], the Parliament is required by the Federal Constitutional Court to give due weight to the framers’ fundamental value decision in favor of private property. As with other fundamental rights, balancing is again the order of the day, because any such regulation is subject to certain overarching values that inform the meaning of the entire constitution. These values embrace the principles of human dignity, personality, and equality, which are enshrined in the fi rst three articles of the Basic Law. Parliament’s responsibility is to bring these values into some kind of working balance, albeit with a heavy thumb on the property right side of the scale. Finally, the principle of proportionality, the constitutional state principle, and the social state principle must be fed into the equation. The function of the Constitutional Court in reviewing an alleged intrusion on the right of property that falls short of a formal expropriation is to determine whether lawmakers have adequately considered and properly weighed these competing values. A number of seminal cases illustrate the manner in which the Court has adjudicated these often confl icting values. In the Small Garden Plot Case (1959) the Court struck down a federal statute that sought to limit the right of landowners to terminate garden plot leases.58 Garden plots rented from landowners on the fringes of cities were a major feature of German social organization and once played a large role in feeding the population. The Parliament felt that limiting the landowners’ right to terminate garden plot leases was consistent with the social duty of property and an emerging national policy against urban sprawl. But, in the light of changed economic conditions and developments in commercial agriculture, the burden on the property owner was deemed by the Court to be too heavy relative to the value of the protected interest. As noted earlier, in the Tenant’s Right of Occupancy Case (1994; no. 10.4), the Court made a turn in the opposite direction, declaring that the right of a tenant to live in a rented apartment constitutes “property” within the meaning of Article 14 (1). Th is right protects the tenant against termination of a rental contract when termination is not based on a well-founded interest of the landlord.59 In the Tenancy and Rent Control Case (1974) the Court invalidated several decisions from the ordinary courts for the harsh manner in which the courts applied a

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federal rent control statute to owners of rental dwelling units.60 But, at the same time, the Court announced that the social obligation related to property requires lawmakers to accord equal weight to the interests of tenants and owners in defi ning their respective rights under law. The Thalidomide Case (1976) is a dramatic example of an important social concern overriding a claim based on a traditional property right.61 Thalidomide sustained a federal plan providing benefits to children seriously deformed by a drug marketed in Germany, thus nullifying settlement agreements under private law that did not provide for the special needs of these handicapped children. In the Feldmühle Case (1962) the Court sustained the validity of a company reorga nization statute permitting majority shareholders who owned more than threefourths of the capital stock of a joint-stock company to convert it into a new company over the objection of minority stockholders.62 Because the legislature was acting in the general interest by fostering the creation of larger business enterprises, the Court explained, the three-fourths conversion rule was not “manifestly out of proportion to the severity of the encroachment on the property interest of minority shareholders.” Introduction to the Groundwater Case. The Groundwater Case that follows is among the most important property rights cases decided since Hamburg Flood Control. It highlights the confl icting mandates the Court must reconcile in its Article 14 jurisprudence. Relying on traditional protections afforded to property owners under the Civil Code, the Federal Court of Justice questioned the constitutionality of a federal statute interfering with the right of a property owner to dispose of the groundwater under his property and referred this question to the Constitutional Court. At issue was the degree to which the Constitutional Court would embrace the Civil Code’s characterization of the right to property, which emphasizes the property owner’s interests and fi nds its constitutional expression in Article 14 (1) [1] of the Basic Law. According to this approach, the law’s imposition on the property owner’s free use of the groundwater would be deemed a compensable expropriation to be governed by Article 14 (3) of the Basic Law. Yet, by accentuating the liberal character of the right to property, the Civil Code does not acknowledge the social obligation that Article 14 (2) of the Basic Law attaches to property. In light of the social obligation of property, Parliament might choose to restrict the use of groundwater as a content and limits regulation under Article 14 (1) [2] of the Basic Law. In Groundwater the Constitutional Court departed from the liberal orientation, prevalent in many of the cases just discussed, whereby its concept of property gave deference to the historical, private-law notion of the right to property codified in the Civil Code. Instead, the Court gave priority to the social obligation that accompanies property ownership, which fi nds its expression in the case through the limits established by Parliament on the use of groundwater. The Court achieved this shift by embracing public-law—as opposed to private-law—notions of property in its Article 14 analysis. As noted earlier in this chapter, the Court declared: “The concept of property as guaranteed by the constitution must be derived from the consti-

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tution itself. Th is concept of property in the constitutional sense cannot be derived from legal norms (ordinary statutes) lower in rank than the constitution, nor can the scope of the concrete property guarantee be determined on the basis of privatelaw regulations.”63 10.5 Groundwater Case (1981) 58 BVerfGE 300 [The case emerged out of the Federal Water Resources Act in its amended version of 16 October 1976. Designed to preserve public water supplies against contamination or other uses that are harmful to the public welfare, the statute required any person whose activities affect the quantity or quality of groundwater to procure a permit granted for limited periods and specified purposes sanctioned by law. The plaintiff owned and operated a gravel pit near Münster. For decades he had freely used the groundwater beneath his property for the purpose of extracting gravel. Th is unlimited use of groundwater was restricted in 1968 with the creation of a new water conservation district by the city of Rheine. The quarry was located within the district and near the city’s water wells. Because these wells were threatened by the quarry operation, the city denied the operator a permit to use the water beneath his property. After exhausting his administrative remedies the plaintiff sued North Rhine–Westphalia for damages, claiming that the denial of the permit for wet gravel extraction violated his right to property as well as his right to pursue his occupation. He won in the fi rst instance court but lost in the state appeals court. The Federal Court of Justice, doubting that the Water Resources Act (as amended) was compatible with the right to property secured by Article 14, referred the constitutional question to the Federal Constitutional Court. The Constitutional Court concluded that the Water Resources Act was an appropriate exercise of the Parliament’s authority to defi ne the contents and limits of the constitution’s property right, especially in light of the social obligation of property found in Article 14 (2).]

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Judgment of the First Senate. . . . [The Court began with a lengthy opening discussion of the legislature’s power to regulate property, the distinction between regulating and taking property, the means by which property may be taken, the remedies available in the event of impermissible takings, and the extent of the ordinary courts’ reviewing authority.] C. II. 2. a. The referring court [Federal Court of Justice] proceeds on the assumption that groundwater is part of the owner’s property and thus within his rights under § 905 of the Civil Code. [§ 905, in part, declares: “The right of the owner of a plot of

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land extends to the space above the surface and to the subsoil under the surface.”] The relevant property right includes the authority to dispose of the groundwater found on the premises. The Water Resources Act therefore violates a “right that is indigenous to property.” We do not accept this interpretation of the law. . . . b. The referring court adheres to the legal view that the right to property encompasses every possible and econom ical ly reasonable utilization of that property the content of which is determined by . . . § 903 of the Civil Code. [Th is section declares: “The owner of a thing may, to the extent that a statute or third-party rights do not confl ict with this, deal with the thing at his or her discretion and exclude others from every influence.”] According to this view, the limits imposed by the Water Resources Act on rights secured by private law unduly restrict the right to property. In the eyes of the referring court, the Water Resources Act amounts to an expropriation of property because of the “infringement here of the private sphere.” . . . The legal view that the right to property conferred by § 903 of the Civil Code takes precedence over public-law norms—a view sanctioned under the Weimar Constitution—contradicts the Basic Law. The concept of property as guaranteed by the constitution must be derived from the constitution itself. Th is concept of property in the constitutional sense cannot be derived from legal norms [ordinary statutes] lower in rank than the constitution, nor can the scope of the concrete property guarantee be determined on the basis of private-law regulations. The Basic Law assigns to the legislature the task of defi ning property law in such a way as to protect the interests of the individual and the public. The legislature has a twofold responsibility: fi rst, to make the rules of private law governing the [protection and transfer] of property; and second, to safeguard public interests—in which every citizen has a stake—mainly through public-law norms. . . . Both private and public law contribute equally to the determination of the constitutional legal position of the property owner. The corpus of property law represented in the Civil Code is not the exclusive defi nition of the content and limits of property. . . . The totality of regulations over property that exist at par ticu lar points in time determine the concrete rights the property owner enjoys. If these regulations divest the property owner of a certain control over his or her property, then this control is not included in the right to property. . . . 3. b. . . . The Water Resources Act does not constitute expropriation by law, as would have been the case under the old Prussian Water Resources Act, which granted to the owner an absolute right to the water beneath his property. The [current] law merely defi nes for the future and for the entire Federal Republic of Germany, as a matter of objective law, the content of property in relation to groundwater. Such a change in objective law does not result in a deprivation of a concrete legal interest protected by the institutional guarantee of Article 14 (1) and thus does not constitute an expropriation of property. . . . III. Further examination reveals that the regulations in question properly defi ne the content and limits of the right to property.

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1. When defi ning the content and limits of property under Article 14 (1) the legislature must acknowledge the constitutional right of private ownership in accordance with Article 14 (1) and the social duty attached to property under Article 14 (2). As emphasized repeatedly by the Federal Constitutional Court, the legislature must observe certain [constitutional] standards when curtailing the right to property. The issue here is whether the legislature has violated the right of ownership when it separates the use of groundwater from the right to property. a. First, we cannot infer from the terms of Article 14 that, as a matter of principle, groundwater must be legally allocated to the owner of property because of a presumed natural relationship between groundwater and the property on which it is located. The legislature is not bound to adhere to a concept of ownership that would emanate from “the nature of things” when enacting a set of regulations pertaining to property rights in accordance with the Basic Law. The institutional guarantee of private property does bar lawmakers from modifying or undermining the core of the right to property embedded in private law in such a way as to remove or substantially reduce the realm of freedom guaranteed by Article 14. But the defi nition of property is not the exclusive domain of private law. The institutional guarantee is not adversely affected when public law intrudes to protect and defend aspects of property vital to the well-being of the general public. . . . 2. The objections raised against these regulations rest on the mistaken assumption that, constitutionally speaking, groundwater is legally inseparable from the right to property. a. First, it is incorrect to assume that the Water Resources Act would lead to an “erosion of the substance of the right to property” because it would be subject to “total control in the interest of society.” Property ownership does not result in the loss of usufruct simply because the owner’s right to use groundwater is subject to governmental approval. The property owner’s right has always been primarily the right to use the surface of the property, whereas the right to take material buried in the ground has always been subject to far-reaching restrictions. Even the right to dispose of [surface] property is, in many ways, subject to constitutional restriction. The possibility of making meaningful economic use of property does not—as a rule—depend on whether or not groundwater can be brought to the surface or [used by the owner]. The constitutionally guaranteed right to property does not ensure that the owner can make use of the property in a way that promises the greatest possible economic advantage. . . . [In the next section of the opinion the Court found the Water Resources Act to be consistent with the principle of equality secured by Article 3. The owner had argued that he was required to sustain an undue economic burden merely because of the proximity of his quarry to the municipal water supply, whereas other quarry operators farther away from the water supply were not so burdened.] D. The fi ndings of the initial proceedings show that the plaintiff has been quarrying gravel since 1936. The decision in this case, therefore, also hinges on whether the

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Water Resources Act took away a constitutionally protected legal position to which the plaintiff was entitled prior to the enactment of the Water Resources Act. Thus, the earlier legislation as well as the transitional provision of the Water Resources Act must be taken into consideration. . . . I. . . . The constitutional test must proceed from the fact that the provisions of the Prussian Water Resources Act did not prevent the owner of the property from quarrying gravel and that the guarantee of the right to property protected the authority to use groundwater that had been granted and exercised under the old law. It would be incompatible with the content of the Basic Law if the government were authorized, abruptly and without any transitional period, to prevent the continuation of property rights the exercise of which had required substantial initial investments. Such a regulation would devalue labor and capital investment from one day to the next. It would upset confidence in the stability of the legal order, without which responsible structuring and planning of life would be impossible in the area of property ownership. . . . [The Court found that § 17 of the Water Resources Act provided the owner with sufficient time to adjust to the new regulations. The transitional provisions of the act are mentioned below.] II. . . . 2. The Water Resources Act is not constitutionally infi rm. It neither denies the right to the stated use of property nor fails to provide the bases for a claim to compensation. a. The constitutional guarantee of ownership exercised by the plaintiff does not imply that a property interest, once granted, would have to be preserved in perpetuity or that it could be taken away again only by way of expropriation. The Federal Constitutional Court has repeatedly ruled that the legislature is not faced with the alternative of either preserving old legal positions or taking them away in exchange for compensation every time a legal area is to be regulated anew. Within the framework of Article 14 (1) the legislature may restructure individual legal positions by issuing an appropriate and reasonable transitional rule whenever the public interest merits precedence over some justified confidence—secured by the guarantee of continuity—in the continuance of a vested right. . . . c. . . . Moreover, section 17 (1) [1] of the Water Resources Act afforded the rightful claimant the possibility of continuing his or her unhindered use of groundwater without a permit for another five years after enactment. Because the Water Resources Act was not implemented until thirty-one months after its enactment, the affected parties had almost eight years during which to adjust to the changed legal position. The deadline was even extended if an application for a permit to continue the use unhindered had been fi led. The right to use groundwater without a permit did not terminate in these cases until a fi nal and conclusive decision had been reached on the petition. As a result, the plaintiff was able to continue his gravel pit operation unhindered for seventeen years beyond the point in time when the Water Resources Act had been enacted. . . . With respect to gravel pit operations begun under the provisions of an earlier law, the transitional provision of the current statute is therefore reasonable since it con-

Economic Liberties and the Social State 645

siders sufficiently the interests of the affected party. Th is applies also to the effects, if any, it had on his business.

∂

Regulation and Remedy. An expropriation under Article 14 (3) deprives a property owner of his or her interests, a reversal of fortune permitted only to advance the public good and only when ordered by law. As a consequence of such an expropriation the owner is due statutorily defi ned compensation. In Groundwater the Federal Constitutional Court interpreted the terms of Article 14 (3) to distinguish an expropriation from content and limits regulations under Article 14 (1) [2]. Th is strictly applied, formalistic distinction confl icted with the jurisprudence of the Federal Court of Justice and Federal Administrative Court, which had been willing to characterize disproportionate content and limits regulations on the right to property as de facto expropriations meriting some recompense even if the imposition on an owner’s property interests did not satisfy the formal terms of Article 14 (3). Th is approach is known as the “threshold theory” (Schwellentheorie) because it recognizes a threshold at which content and limits regulations become so burdensome that they merit compensation. Of course, the ordinary and administrative courts did not refer to these awards as “compensation,” which would have been a glaring disregard for the terms of Article 14 (3). Instead, the courts provided relief to the affected property owners in the form of monetary awards or as adaptations to or restrictions on the relevant regulations. Th is relief came to be known as “equalization,” which the ordinary and administrative courts justified by reasoning that “equalization . . . is not compensation for an expropriation as such, because there has been no expropriation.” In the Monument Protection Act Case discussed below the Constitutional Court restricted the practice of awarding solely monetary “equalization” in the case of overly burdensome “content and limits” regulations. Confi rming the formal distinction upon which it relied in Groundwater, the Court held that the appropriate remedy for disproportionate content and limits regulations is the negation of the challenged law. Th is is true, the Court reasoned, even when a content and limits regulation is so invasive that it practically forecloses any use of the property. American constitutional property law has avoided this formalism through its doctrines of “regulatory takings” and “inverse condemnation,” pursuant to which “money damages may be awarded where [a] taking occurs as the result of [regulation] as well as in cases of direct expropriations.”64 In Monument Protection the Constitutional Court found the regulation to be so burdensome that it left the owner an interest that no longer merited the label “property.” Nonetheless, true to the formal distinction it has drawn between expropriation and regulation, the Court held that a monetary award included in an equalization scheme was not the proper constitutional remedy because the law in question was an Article 14 (1) [2] content and limits regulation and not an Article 14 (3) expropriation. “To be clear,” said the Court, “excesses that result from the Parliament’s efforts to define the content and limits of property do not lead to a constitutional claim for compensation.”

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10.6 Monument Protection Act Case (1999) 100 BVerfGE 226 [An industrial fi rm was denied the permit it needed to demolish a nineteenthcentury villa. The permit was required by Rhineland-Palatinate’s Monument Protection and Care Act, which imposes on owners the duty to preserve and care for designated properties. The fi rm sought permission to raze the villa because it could not use the building in a manner that was compatible with its industrial interests. The fi rm reached this conclusion after many years of fruitless efforts to fi nd a compatible use. The fi rm also bore considerable costs for maintaining the building in compliance with the Monument Protection Act. The appeals court to which the industrial fi rm turned for relief referred the question of the Monument Protection Act’s compatibility with Article 14 of the Basic Law to the Federal Constitutional Court pursuant to the Court’s concrete judicial review jurisdiction. The Court struck the Monument Protection Act as an improper exercise of Parliament’s authority to defi ne the content and limits of the right to property and further ruled that the Parliament’s overreach could not be mitigated by the award of compensation under the act’s “saving clause.”]

∂

Judgment of the First Senate. . . . I. 1. Section 13 (1) [2] of the Monument Protection and Care Act is concerned with the defi nition of the content and limits of property under the authority of Article 14 (1) of the Basic Law and not an expropriation under Article 14 (3). With an expropriation the state imposes itself on the property of a discrete individual. Expropriation has the goal of partially or completely depriving the owner of concrete legal interests secured by Article 14 (1) [1]. Th is is done in order to fulfi ll a specific public undertaking. Expropriation is achieved either through a law that strips away concrete property rights from a particular person or group of people—legal expropriation—or through an executive agency’s action, taken pursuant to legislatively delegated authority to expropriate property rights—administrative expropriation. These conditions are not present here. Neither the challenged Act, which requires a permit for the destruction of protected monuments, nor the administrative agency’s refusal to issue the permit, constitute an expropriation as anticipated by Article 14 (3). The historic preservation regime does not lead to the withdrawal of concrete legal interests with the aim of fulfi lling a specific public undertaking. Rather, the Act limits the general and abstract potential uses of a piece of property that is a designated monument. The denial of a permit, as an administrative act, merely actualizes this statutory limitation. Section 13 (1) [2], therefore, defi nes the content and limits of property pursuant to Article 14 (1) [2] of the Basic Law. This classification of the rule is not affected by the intensity of the regime’s impact on the property owner. And

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this classification retains its validity even in those cases in which the infringement, in its effect on the property owner, approximates or approaches an expropriation. Thus, the effort to determine whether the challenged Act conforms with Article 14 (1) and (2) of the Basic Law has nothing to do with the requirements established by Article 14 (3) [2] and 14 (3) [4]. . . . 2. In defi ning the content and limits of property pursuant to Article 14 (1) [2], the legislature must place those interests of the property owner that merit protection in a just and proportionate balance with the significance of the public good sought to be secured by the law. In so doing, the legislature must respect all other constitutional norms; the legislature particularly is bound by the constitutional principle of proportionality and the equality provision of Article 3 (1) of the Basic Law. The well-being of the general public is not only the basis, but also the limit of the burdens to be imposed on property rights. Limits on the privileges enjoyed by property owners may go no farther than the objective that is to be achieved by the regulation. The essential core of the right to property may not be undermined by the regulation. The interests that constitute the essential core of the right to property include the following: the right privately to make use of the property; the right to assign the property to a rightsholder who, in turn, must be free to use the property as the basis of private initiative; and the right to dispose of the property. The Parliament’s authority to defi ne the content and limits of property is appraised under various standards. To the degree that the personal freedom of the individual in regard to property is assured, the legislature enjoys significant deference. The legislature’s discretion is even greater if the property has strong social significance. In this regard the distinctive nature and function of the property is of determinative importance. Fundamentally, compensation is not to be expected as a result of limitations on the privileges of property that derive from the social obligation that accompanies the constitution’s property protection (Article 14 (2) of the Basic Law). Should the legislature exceed its authority to defi ne the content and limits of property, the resulting legislation is inapplicable. The relevant limitations or burdens imposed on the right of property are illegal and can be disregarded in favor of the superseding constitutional legal interest. To be clear, excesses that result from the Parliament’s efforts to defi ne the content and limits of property do not lead to a constitutional claim for compensation. II. In light of these fundamental principles, Section 13 (1) [2] of the Monument Protection and Care Act is not compatible with Article 14 (1) of the Basic Law. . . . [The Court concluded that the legislation, unlike other state laws providing for the protection of monuments, could lead in specific circumstances to severely disproportionate limits on a property owner’s rights. The Court recognized that the protection of monuments is a legitimate state objective grounded in the state constitution. Further, the Court accepted that the permit requirement was an appropriate and necessary means for achieving this

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objective. Finally, the Court found that the application of the permit requirement generally did not lead to a disproportionate burdening of the property owner’s interests. After these generally approving characterizations, and before turning to the analysis that led to its disapproval of the law, the Court underscored the fundamentally limited nature of the protection the Basic Law gives to property.] c. . . . Prohibiting the destruction of a monument does not impose a limitation on the use to which the preserved monument may be put. In light of the considerable significance of preserving monuments and with a view toward Article 14 (2) [2], property owners must fundamentally accept that they may be precluded from making the most profitable use of their property. Article 14 (1) does not protect property’s most lucrative use. d. It is altogether different, however, if the protection of a monument permits no reasonable possible use of the property. Th is might be the case if the original use of the property, as a result of changed circumstances, is no longer tenable and another use of the property, which reasonably could be suggested to the property owner, cannot be realized. For example, if the property owner in possession of a protected historical monument can make neither reasonable use of the property nor, as a practical matter, alienate it, the right privately to make use of the property [Privatnützigkeit— one of the essential, core privileges of the constitution’s property protection] is almost completely eradicated. If the Act’s preservation obligation is upheld, the Act imposes on the property owner alone a burden to secure the public’s interest in the monument without leaving to the property owner the opportunity to enjoy the benefit of making private use of the property. In such a situation the legal standing of the property owner approaches a condition that no longer merits the label “property.” The state may not refuse to grant a permit for the destruction of the monument in such circumstances. If the Parliament is of the opinion that the well-being of the general public necessitates the preservation of a monument, as is imaginable in the case of buildings of significant cultural or historical meaning, the state may achieve this end through expropriation. The Court need not decide today where the acceptable border lies in individual cases. The Court also need not decide in which circumstances property owners will be unconstitutionally affected by the challenged Act. The unconstitutionality of the Act is established, fi rst and foremost, by the fact that it does not exclude the imposition of disproportional burdens on property owners and does not contain measures that preclude such unacceptable limitations on the right of property. . . . [In the decision’s final section the Court explained that the law’s “saving clause” could not remedy the disproportionate character of the prohibition on destruction. The “saving clause” required the state to provide adequate compensation if the preservation regulations left intact the traditional and historical use of the property but nevertheless had an expropriating effect. Some mitigating measures might satisfy the protections of Article 14 (1), the Court explained. But mitigation

Economic Liberties and the Social State 649

in the form of compensation does not permit the state to contravene the substance of property rights or the principle of equal protection. Furthermore, the Court held that mitigating measures must satisfy, inter alia, the following terms: they must be the result of legislation and not administrative decisions; and, they are never acceptable in particularly severe cases if they exclusively provide for monetary compensation in disregard of the property owner’s constitutional and higher-priority interest in making private use of the property itself.] c. The “saving clause” of the Monument Protection and Care Act does not satisfy these requirements. It does not provide that unconstitutional demands on property, in the fi rst instance, be mitigated by way of exceptions and exclusions. . . . Thus, the “saving clause” does not secure a constitutionally sufficient basis for the mitigation of disproportional infringements resulting from the application of Section 13 (1) [2]. . . . III. The incompatibility of Section 13 (1) [2] of the Monument Protection and Care Act with Article 14 (1) of the Basic Law does not, however, render the law void. The Federal Constitutional Court can imagine fi nding that the constitutional infi rmities have been overcome if the legislature were to provide more possibilities for avoiding and mitigating any disproportionality resulting from the preservation regime.

∂

The Court’s holding with respect to the Monument Protection and Care Act’s saving clause merits some further comment. The Court emphasized that, by prohibiting monetary payments as the exclusive or primary form of equalization for disproportionate content and limits regulations, it was not giving the Parliament free rein under Article 14 (1) [2] to severely burden property interests. “Content and limits” regulations are permissible, the Court concluded, only when the property owner’s fundamental liberty interests are respected. Th is will be enforced through the courts’ use of proportionality analysis, which is central in reviewing regulations under Article 14. When confronted with burdensome regulations, the courts may resort to the standard of proportionality and emphasize mitigation measures that have been incorporated into the terms of the statute. These statutory mitigation measures must aim, in the fi rst instance, at minimizing the disproportionate burden on the property owner by preserving as much as possible the owner’s right to make personal use of the property. In par ticu lar cases of atypical individual burdens on property interests, these statutory mitigation measures also may include monetary equalization. Taken together the Court’s regulation and expropriation jurisprudence reveals two important trends. On the one hand, the Court has broadly interpreted the legislature’s authority to defi ne the content and limits of the general property right in Article 14 (1), a legislative prerogative the exercise of which the Court has justified with charitable references to the social obligation that Article 14 (2) attaches to property rights. On the other hand, only a narrow range of state actions have been recognized by the Court as compensable expropriations under Article 14 (3). These trends combine to

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form a constitutional framework that reconciles the often confl icting demands of the modern state—codified in just a few short sentences in Article 14 of the Basic Law— which aspires to the liberal tradition while pursuing a regulatory, social welfare agenda. Although the Basic Law does not ordain Germany’s famed social market economy, the Court has woven Article 14’s seemingly contradictory threads into a property rights jurisprudence that is perfectly adapted to that tradition and the nature of the modern state. Intellectual Property. The field of intellectual property encompasses a number of distinct private-law subjects that can be roughly divided into two categories. Copyright law is chiefly concerned with cultural undertakings while other rules, including patent law and trademark law, are aimed at regulating industrial and commercial interests. Article 14 applies to both categories.65 As with material property, Article 14 protects possessory and pecuniary interests while also imposing a social obligation on the enjoyment of intellectual property rights. More than in the area of material property rights, the tension inherent in the Basic Law’s protection of property is thrown into stark relief by the field of intellectual property, the products of which play such an important role in a society’s cultural identity and its technological and economic progress. Society’s interest, for example, in medical advances surely is served by motivating researchers with the promise that they will enjoy the commercial fruits of their labor. Yet society’s interest is no less served by limiting commercial exploitation of medical advances to ensure that they are widely available. And more than in the area of material property rights, intellectual property poignantly intersects with other basic rights including the free development of one’s personality (Article 2), the freedom of expression, art, and research (Article 5), occupational freedom (Article 12), and human dignity (Article 1).66 After all, the root concept Geist, out of which the phrase geistiges Eigentum (intellectual property) is formed, refers to the unique characteristic of the human “spirit” or “mind.” Still, the Constitutional Court has been satisfied in treating intellectual property as a matter to be decided under Article 14, even while relying on a defi nition of the relevant protectable interest as “spiritual,” distinguishing it from “material” property.67 The Constitutional Court has been most active in copyright matters, producing a body of jurisprudence that can be applied to other fields in intellectual property. Five controversial copyright cases decided in 1971 established that artistic and other intellectual creations constitute “property” within the meaning of Article 14. But, as with material property, the nature and extent of the protected property interest in copyrighted material, patented objects, or a trademark is to be determined by the legislature in the public interest. Here, more than in cases dealing with material property, the Court places a heavy accent on intellectual property’s social character. The Schoolbook Case, the Court’s leading copyright opinion, is presented not only for what it has to say about the Court’s intellectual property jurisprudence but also because it brings together many of the standards and principles governing the Constitutional Court’s construction of the content and limits clause of Article 14 more generally.

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10.7 Schoolbook Case (1971) 31 BVerfGE 229 [In 1965 Parliament amended the Copyright Act to permit already-published “literary and musical works of small extent, single artistic works, or single photographs” to be published in a collection “that assembles the works of a considerable number of authors and is intended, by its nature, exclusively for religious, school, or instructional use” (§ 46 of the Urheberrechtsgesetz [UhrG or Copyright Act]). Such collections had to bear a clear statement of their purpose on the title page. In addition, authors had to be notified by registered mail of the use of their work before reproduction and distribution could begin. Several musicians fi led constitutional complaints alleging that the amendment violated their property rights under Article 14. The Court found that the right of access to copyrighted works properly served society’s interests as secured by Article 14 (2). But the Court also found that the denial of any compensation for the prescribed use of copyrighted works violated the copyright holders’ interests in property under Article 14 (1).]

∂

Judgment of the First Senate. . . . B. The constitutional complaints are justified. I. Copyright protects the author’s intellectual and personal relation to his or her work and also the utilization of that work. In accordance with this understanding of the content of copyright, the act differentiates between the moral rights of authors and their utilization rights. The question as to the legal relationship between the two aspects of copyright and as to which basic constitutional rights govern the author’s personal and intellectual relations to a work need not be elaborated in this case. The constitutional evaluation must focus solely on the economic aspect of the copyright. In this question the Federal Constitutional Court, in accordance with prevailing opinion, proceeds on the grounds that the constitutionality of the author’s utilization rights must be assessed under Article 14. The idea and purpose behind the constitutional guarantee of freedom of art [Article 5 (3)] is to keep government out of those processes, actions, and decisions rooted in the inherent laws of artistic creation and motivated by aesthetic considerations. Freedom of art prohibits any official attempt to influence the tendency or content of artistic activity, to prescribe universally binding rules for the creative process, or to narrow the field of artistic activity [citing the Mephisto Case (1971; nos. 7.2 and 8.13)]. In the case of § 46 of the Copyright Act, these par ticu lar matters are not at issue. Th is provision presupposes the publication of the works, copies of which are in circulation and are being sold with the consent of the author. Hence this case is concerned neither with artistic activity as such nor even with the process of exposing creative works to the general public as an initial matter. Critical here is the economic utilization

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of an intellectual creation. The issue is whether the statutory limitation on the economic rights of authors is compatible with the constitution, a question within the normal protective range of the property guarantee of Article 14. Considered within the framework of the constitution as a whole, this guarantee is primarily intended to protect the holder of the basic right to property by granting and affording control over the utilization and disposition of property, and thus enabling the independent direction of his or her life. . . . The protective and defensive character of the right to property requires us to classify the author’s economic rights as “property” within the meaning of the Article 14 and to extend its protection to these rights. In our constitutional assessment, however, we must consider the inextricable link between personal-artistic creation and its economic utilization, together with the special nature and character of the property rights. . . . II. . . . Section 46 of the Copyright Act is incompatible with the property guarantee of Article 14 (1). Because there is no preexisting and absolute defi nition of property, and because the content and function of property need to be adjusted to social and economic change, the constitution vests the legislature with the authority to defi ne its content and limits. The economic rights of authors, like tangible property rights, are not excluded from being shaped by the legal order. Bound by the constitution, however, the legislature is not totally free to dispose of such rights. In determining the content of the right, the legislature must ensure that the essential core of the right is preserved and conforms to all other constitutional provisions. . . . Article 14 (1) fi rst and foremost guarantees the legal institution of property. Th is institution grants to the individual the right to use and dispose privately of his or her property. In the copyright field the meaning of this is clear; included in the essential elements of copyright as property within the meaning of the constitution are the author’s right, secured by private law, to have the property-like facets of creative activity attributed to the author and to enjoy the freedom to dispose of this creative work on his or her own responsibility. Th is is the essence of copyright as protected by the constitution. The author’s fundamental freedom to dispose of the economic rights associated with copyright does not mean, however, that every conceivable use of the property is constitutionally secured. The institutional guarantee ensures a basic set of legal rules that must exist in order to justify a characterization of the right as “private property.” In the course of defi ning the content of copyright under Article 14 (1) the legislature is responsible for laying down standards designed to guarantee the appropriate utilization of a creative work that corresponds to the nature and social significance of the right. Under section 15 of the Copyright Act the author has, inter alia, the exclusive right to utilize his or her work in material form; the author is basically at liberty to dispose of the work by way of contractual agreements. This right, however, is not unlimited. There are various limitations on copyright contained in the act that are on different levels and

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of varying degrees. The challenged provision of the act, which allows third parties to use the author’s work without prior consent and free of charge, is permissible. In assessing the constitutionality of this provision the Court must keep in mind that the legislature is not only obliged to safeguard the interests of the individual but also to circumscribe individual rights to the extent necessary to secure the public good. It must strive to bring about a fair balance between the sphere of individual liberty and the interests of the public. The validity of the contested provision depends, therefore—apart from whether it is in other respects consistent with the constitution—on its justification in terms of the public interest. III. 1. There are no objections against authorial rights with respect to the collections specified in § 46 (1) of the Copyright Act. When a protected work has been published it is no longer at the exclusive disposal of the individual, for at that point it simultaneously enters the social sphere and thus becomes an independent factor contributing to the cultural and intellectual climate of the time. Thus, the general public has a substantial interest in seeing that young people, in the course of their education, have access to these artistic creations. Th is also applies to those who participate in such educational programs. The realization of this social task would not be possible if an author were wholly free to bar the use of his or her work in an educational collection. . . . The author’s legitimate interests have been taken into account in a reasonable manner in the light of the narrowly defi ned purposes for which the collections can be used. The inclusion of a work in collections to be used for religious reasons is thus justified in view of the special position of churches in our public life. 2. The contested provision is not constitutional, however, to the extent that it allows the incorporation of copyrighted material into the aforementioned collections without any compensation. The denial of all compensation for the reproduction and distribution of a copyrighted work in such collections . . . impairs the author’s right to dispose of his or her property because the author is unable to prevent the use of the work or to establish by contract the conditions under which the work is to be used. Th is limitation results in a substantial impairment of the economic value attached to a copyrighted work if the ordinary opportunity to bargain for royalties is not available and if the legislature fails to enact as a substitute for this usual bargaining power some provision for authorial remuneration. In accord with the property guarantee the author has the right to claim compensation for the economic value of his or her work insofar as the interests of the general public do not take priority over those of the author. We should remember that the artist’s intellectual and personal creativity is at stake here. . . . Thus, not every consideration of public interest justifies the denial of the right to remuneration; in par ticular the general public’s interest in the unrestricted access to the copyrighted works in and of itself does not suffice as a justification. The intensity of the limitation on the copyright owner must be justified by a compelling public interest if its validity is to be sustained.

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A general public interest of this nature does not exist in the present case. . . . [Here the Court considered and rejected various arguments in favor of the provision in the law granting a free right to use the copyrighted work with no obligation for remuneration. The copyright laws, past and present, exempt materials used in schoolbooks for educational purposes. Citing parliamentary hearings on these laws, the Court found that the legislature had serious doubts about the constitutional validity of current policy, which the Court viewed as presumptive evidence of a lack of consensus on the matter. Legislators, however, felt that a requirement of remuneration would force school and church officials to use only materials in the public domain, prompting them to exclude more up-to-date works from their institutional materials. They also believed that such a requirement would make the cost of producing such materials prohibitively expensive. The Court appeared to reject both of these contentions.] d. The reasoning advanced in Parliament that authors are duty-bound to permit reproduction of their works free of charge because they owe a special debt of gratitude to the general public is unacceptable. Authors are not the only persons who build “on traditional cultural values” and “the common intellectual property of the people.” The same is true for all intellectual and creative persons. What is decisive, however, is that in no other comparable sphere of life is there a legal duty to put the fruits of one’s labor at the disposal of the public for purposes of education in the absence of remuneration. Complainants point out correctly that the use of instruments in natural science classes is protected under patent laws. . . . The author’s work is a prerequisite for the production of schoolbook anthologies. His or her creation is decisive, for without these contributions such collections would be impossible. Yet the full burden of the statutory limitation falls on the shoulders of the author; who is expected to donate creative ser vices free of charge. The statute denies no one else—neither the editor, nor the publisher, nor the printer—of a share of compensation for such common efforts. There is thus no convincing justification for this policy.

∂

In the Broadcast Lending Case (1971) the Constitutional Court sustained a provision of law that permitted schools to lend out, on a nonprofit basis, broadcasts of the single works of authors after equitable remuneration has been provided for the original use.68 In its School Broadcast Case (1971), a companion to Broadcast Lending, the Court held that an author need not be paid for each broadcast of his or her work. Th is limitation on the author’s right to control the reproduction of his or her work is permissible, the Court reasoned, because the work may have to be aired several times in order to reach all of its intended school audiences.69 In the Tape Recording I Case (1971) the Court sustained a section of the Copyright Act that conferred upon authors a claim against manufacturers of tape recorders capable of being used to repro-

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duce protected works for personal use. The Court approved the balance struck by the legislature between the interests of manufacturers of tape recorders, producers of tape recordings, retailers, and the ultimate buyers.70 Finally, in the Phonograph Record Case (1971), the Court upheld a change in the law that limited a recording copyright to twenty-five instead of fi ft y years, as originally provided.71 As in Groundwater, the Court pointed out that compelling public interests may warrant a redefi nition of ownership rights so long as proper regard is paid to the principles of certainty and proportionality in the law. In the important Church Music Case (1978) the Court was again concerned with the tension between the private and social dimensions of intellectual property.72 Several composers of church music challenged provisions of the Copyright Act of 1965, which allowed the reproduction of a musical score without authorization or payment of royalties if it is played at a nonprofit public event, in a church, or in connection with a religious event. The Court ruled that the per for mance of a musical piece without authorization at a state-sponsored public event may be justified by the “social character of intellectual property.” But the Court went on to hold as a general principle that the public or nonprofit character of an event does not always justify a denial of royalties or compensation. The major part of the opinion concentrated on the “church per for mance” provisions of the law, which the Court sustained, although somewhat grudgingly. The right to remuneration can be overridden, the Court concluded, only when the public interest prevails in a given situation, a balancing act that the ordinary courts would not be obliged to perform.73 Having announced the foundational principles governing the constitutional implications of intellectual property in these cases, the Court’s three-justice chambers have developed the practice of turning away constitutional complaints involving intellectual property issues. The chambers regularly conclude that intellectual property complaints raise questions already settled by the Court’s decisions or lack sufficient prospects for success. The second of these justifications for resolving intellectual property cases in the three-justice chambers is evidence of the Court’s willingness to defer to Parliament’s decisions about acceptable content and limits for the defi nition of property, decisions that frequently fi nd the Parliament denying property holders’ pecuniary interests in order to advance a public good. Th is was true of the closely watched din Standards Copyright Case (1998).74 The nearly one hundred-year-old German Institute for Standardization (Deutsches Institut für Normung or din) is a private, not-for-profit entity that, according to its website, “develops norms and standards as a ser vice to industry, the state and society as a whole. . . . din’s primary task is to work closely with its stakeholders to develop consensus-based standards that meet market requirements.” The success of din is exemplified by the fact that its A4 paper format has been adopted by every country in the world except the United States and Canada. The adoption of din standards as enforceable regulations for the building and construction industry in Germany led one publisher to invoke § 5 of the Copyright Act when refusing to pay permission fees for the reproduction of these din standards in works the publisher offered for

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sale. Section 5 of the Copyright Act exempts “laws, ordinances, official decrees and notices as well as decisions and official grounds of decisions” from copyright protection. The ordinary courts acknowledged that din’s standards were private works entitled to copyright protection but nonetheless found that the standards had been converted into exempted “official works” by their adoption into the law. A three-justice chamber of the Constitutional Court concluded that neither the substance of § 5 nor the ordinary courts’ interpretation of it in the din Standards Copyright Case merited the full senate’s review. No violation of Article 14 resulted, the chamber concluded, because § 5 constitutes an acceptable legislative choice regarding the content and limits on the protection of property. The Parliament acknowledged the fact that public authorities are not motivated by the pecuniary interests secured by copyright law but are duty-bound to produce official works. The chamber also emphasized that § 5 advances the important democratic interest in transparency and the wide dissemination of the law. Particularly this latter interest, the chamber explained, justified the ordinary courts’ conclusion that din’s standards had been converted into exempted “official works” through their adoption into law.75 The First Senate’s three-justice chambers also have shown deference to parliamentary infringements on property interests in turning away recent complaints arising out of the trademark and patent areas. In 2004 a three-justice chamber found no basis for the full senate’s review in the Cyber Squatting Case,76 which involved a “cyber squatter’s” property interest in an Internet domain name. The chamber found that the exclusive-use contract issued by a domain administrator (in this case the Deutsches Network Information Center or denic, which administers the “.de” domain) for an Internet domain name gives rise to property interests.77 But the chamber concluded that trademark law permissibly limited that property interest by foreclosing a cyber squatter from registering, as a domain name, a word or phrase that qualifies as another person’s protectable trademark. A three-justice chamber similarly found no reason to pass the Clinical Trials Case, a patent law matter, on to the full senate. In its decision, the chamber relied extensively on the principles established by the Court in the Schoolbook Case—especially creative property’s par ticu lar social significance—to conclude that the issues raised by the case had been settled by the Court’s existing jurisprudence. 10.8 Clinical Trials Case (Chamber Decision) (2000) 1 BvR 1864/95 54 Neue Juristische Wochenschrift 1783 (2001) [The defendant in the original proceedings conducted clinical trials with an interferon-gamma protein strain for which the plaintiff held an exclusive German license from the patentee. When the Federal Court of Justice ruled in the defendant’s favor in the initial proceedings, the plaintiff asserted a violation of the property rights secured by Article 14 in a constitutional complaint brought before the Federal Constitutional Court. The complainant’s property interest derived from §§ 9 and 10 of the Patent Act, which provide that the patentee (or his or

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her licensees) alone shall be authorized to use and exploit the patented invention. But the Federal Court of Justice concluded that the “experiment exception” to the patent holder’s monopoly, provided by § 11 (2) of the Patent Act, constituted an acceptable legislative limitation on the patent holder’s property interest. Section 11 (2) states that “the effects of a patent shall not extend to acts done for experimental purposes relating to the subject matter of the patented invention.” Based on the Court’s well-established jurisprudence, the three-justice chamber found that neither § 11 (2) of the Patent Act nor the ordinary court’s interpretation and application of that provision constituted a violation of Article 14.]

∂

The First Chamber of the First Senate. . . . II. . . . 2. b. The constitutional complaint . . . is not well-founded. The decision of the Federal Court of Justice does not infringe Article 14 (1) [1] of the Basic Law. aa. Section 11 (2) of the Patentgesetz [Patent Act] formed the basis of the decision that is the object of the constitutional complaint. Th is provision of the Patent Act does not infringe the right to property. It limits the effects of the patent but nevertheless constitutes an admissible defi nition of the “contents and limits” of property in the sense of Article 14 (1) [2] of the Basic Law. . . . When defining the content of the right to property, the legislature . . . is . . . bound by constitutional law. The legislature cannot act without any limitation when exercising its discretion to further refine patent law but must conserve the basic content of the property guarantee when defining the privileges and duties that constitute the substance of the law and, at the same time, remain in line with all other constitutional standards. First of all, Article 14 (1) [1] of the Basic Law guarantees private property as a legal institution, the essential characteristics of which are its private benefit and the right to dispose of the owned object. Th is means that the constituent characteristic of patents as property, in the constitutional sense, is the principle that the pecuniary value of the creative activity be credited to the patentee by way of private law and that the patentee enjoy the freedom to dispose of this value at his or her discretion. Th is is the core of the patent right that is protected by the Basic Law. Th is basic association of the pecuniary value of the patent right with the owner’s disposition does not, however, establish a constitutional right to every conceivable exploitation of the invention. . . . Pursuant to Article 14 (1) [2] of the Basic Law, when establishing the content of the patent right, it is the legislature’s task to defi ne appropriate standards that ensure that its use and adequate exploitation correspond to the nature and the social importance of property. With the right of exclusivity under §§ 9 and 10 of the Patent Act, the legislature has established a regulation that complies with these basic requirements. Section 11 of the Patent Act establishes limits to the patent right, as it precludes the effects of patents for certain areas. When evaluating the constitutionality of § 11 (2) of the Patent Act, the

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starting point must be the understanding that the task of the legislature does not only consist in securing individual interests but also in establishing limits to individual rights and privileges that are necessary in the interest of the public good; the legislature must achieve an equitable balance between the sphere of the individual and the concerns of the public good. The jurisprudence and scholarly literature accept that § 11 (2) of the Patent Act is a constitutional determination of the content of the patent right. Research and its resulting scientific and technical development are only possible through experiments that are based on the state of the art in a field at any given time. From the constitutional point of view there are, therefore, no objections to the legislature giving these matters priority over the patentee’s interests. . . . bb. . . . There also is no evidence that the Federal Court of Justice failed to see the importance and implications of Article 14 (1) [1] of the Basic Law in its decision in this case. Certainly, the Federal Court of Justice has not explicitly designated the patent right as protected property in the sense of Article 14 (1) [1] of the Basic Law. But it has clearly held that the law grants the inventor, as compensation for having provided the general public with a benefit, an exclusive right of use. Yet, the Federal Court of Justice has treated this legislatively granted right of exclusive use as a form of property within the meaning of the constitution. Th is is clear from the Federal Court of Justice’s justification of restrictions on the patent right by reference to the social obligations connected with property. [Here the chamber approved of the balancing undertaken by the Federal Court of Justice, which recognized that a too-extensive grant of exclusivity to a patentee risks hindering technical advancement, on the one hand, but that the exception must be motivated by discrete, socially significant aims, on the other hand.] Th is Federal Court of Justice’s reasoning does not raise considerable constitutional reservations. In this context, it must be assumed that patentees—like authors—have, as a matter of principle, a property interest that includes the pecuniary benefits derived from their work so long as no public good takes priority over the patentee’s interest. On these terms it would be incompatible with Article 14 (1) [1] of the Basic Law if the patentee was forced to tolerate, not only clinical trials conducted with his or her patented inventions in the interest of the common good, but also was expected to renounce the economic value of the invention without a special public interest for this. The direct losses suffered by the patentee due to clinical trials can be tolerated because they will be limited. Disproportionate losses would only result if an actual commercialization takes place due to an abuse of the experiment exception. It would be incompatible with Article 14 (1) [1] of the Basic Law to extend the experiment exception to such cases of abuse. . . . Th is decision is fi nal. Justices Papier, Steiner, and Hoff mann-Riem

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Considering the pace and complexity of technological development, and the ubiquity and saturation of cultural and intellectual production in today’s “infotainment” society, the Court’s deference to the popularly elected legislature on matters involving the contents of and limits on constitutional intellectual property rights may be both practical and prudent.

occupational and associational rights The Basic Law is said to be neutral with respect to economic policy. Th is reigning German view recalls Justice Holmes’s dictum, in Lochner v. New York (1905), that a constitution rooted in liberal democratic theory “is not intended to embody a par ticular economic theory.”78 Yet the Federal Constitutional Court has been anything but neutral in its approach to socioeconomic legislation. The Court has been extremely active in reviewing the constitutionality of laws affecting the liberty of an individual to pursue a business, trade, or occupation. The U.S. Supreme Court, by contrast, is extremely reluctant to void any law involving social or economic policy. As the Court noted in 1963, “courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.”79 The differing view of the German Court is easily traceable to Article 12 (1) of the Basic Law. It declares: “All Germans shall have the right freely to choose their occupation or profession, their place of work and their place of training.” The right to choose one’s occupation and place of work, like the right to property, fosters an economy based on entrepreneurship and ownership. But the protection of these economic rights also may be regarded as one manifestation of the Sozialstaat, limiting an economy of unbridled entrepreneurship. The opening materials in this section focus on the celebrated Codetermination Case and related decisions on the right to associate for economic purposes. They furnish a link to the previous discussion of property rights and lay the groundwork for our consideration of the seminal occupational rights decision, the Pharmacy Case of 1958, and its progeny. Its principles and standards of review continue to govern the Court’s approach to assessing laws deemed to infringe the choice or practice of an occupation under Article 12 (1). The right to property, as the Groundwater Case illustrates, often implicates occupational rights. Codetermination is also important because it raises the larger question of how far the state may go in regulating the economy as a whole, allowing us to loop back to the related concerns of the nature of the economic system. The Codetermination Act of 1976, although based on historic precedents, effected a major change in the governance of large industrial enterprises. The Fair Trade and Competition Act of 1957 and the Economic Stabilization Act of 1967 are other examples of major governmental interventions in the economy. But only the Codetermination Act resulted in a spirited constitutional controversy implicating several rights guaranteed by the Basic Law, among them the rights to property, association, and occupational liberty.

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10.9 Codetermination Case (1979) 50 BVerfGE 290 [The Codetermination Act of 1976, passed by an overwhelming majority of the Bundestag, provided for the representation of employees on the supervisory boards of business and manufacturing fi rms with two thousand or more employees. At the time of its enactment the act covered no fewer than 476 companies employing 4.1 million persons. The idea of coparticipation by employees in corporate enterprises, as the fi rst part of the opinion shows, has a long history in Germany. The 1976 act, modeled on the Works Constitution Act of 1972, which entitles employees to one-third of the seats on the supervisory boards of fi rms with less than two thousand employees, entitles employees and shareholders to equal representation on supervisory boards (§ 7). In addition, the act provides (1) that the supervisory board chairman and vice chairman be elected by a two-thirds majority of its members (§ 27), (2) that other decisions of the board be taken by a majority of board votes (§ 29), and (3) that the legal representatives of the enterprise as well as its labor director be selected by the supervisory board in accordance with prescribed procedures (§§ 3 and 33). Nine business fi rms and twenty-nine employer associations fi led constitutional complaints against each of these sections of the Codetermination Act for violating the rights of property (Article 14), association (Article 9), occupational liberty (Article 12), and freedom of economic activity allegedly covered by the Basic Law’s general personality clause (Article 2). The act was also the subject of a concrete judicial review reference by Hamburg’s Regional Court. The Constitutional Court heard all of these cases in a single consolidated proceeding marked by four days of oral argument. A battery of corporate and government lawyers armed with thick briefs drafted by distinguished law professors argued their respective positions before the justices of the First Senate. In a ninety-one-page opinion the Court rejected all the arguments marshaled against the act, including the assertion that a constitutional amendment would be required to bring about such a major restructuring of Germany’s corporate culture.]

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Judgment of the First Senate. . . . A. I [History of Codetermination and Nature of the Economy] I. The idea of coparticipation of workers in the sense of participation in economic and social decisions in works and enterprises, in Germany, dates back to the beginning of industrialization. It was constitutionally recognized—after initial statutory elaborations—in Articles 156 (2) and 165 (1) of the Weimar Constitution, and it achieved statutory form in the Works Council Act of 4 February 1920, and also in the Law on

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the Election of Works Council Members to the Supervisory Committee of 15 February 1922. Hitler’s National Socialist regime repealed these statutes. In the course of the reorganization after 1945, some of the German Länder incorporated rules concerning the codetermination and coparticipation rights of workers into their constitutions. The Basic Law essentially limits itself to guaranteeing classical human and civil rights; accordingly, it contains no express rules on the coparticipation of workers. Th is matter is left to federal legislation. . . . C. The constitutional complaints are unjustified. The provisions of the Codetermination Act submitted for review are compatible with the Basic Law. . . . [In the fi rst part of its opinion the Court rejected the employers’ assertion that the 1976 act conferred absolute equality of participation on workers and shareholders. The Court noted that, in the event of a deadlock between workers and shareholders, the chairman of the board, who is usually a representative of the shareholders, may cast the deciding vote. In so concluding, the Court refrained from suggesting that codetermination based on absolute parity would be unconstitutional. That issue was left to another day. But once again the Court observed that in regulating the economy the legislature enjoys wide-ranging discretion. Employers had argued that the cumulative effects of codetermination and related economic policies would eventually burden property and association rights in a manner incompatible with the letter and spirit of the constitution. The Court, however, declined to anticipate the future. Nor would it burden the legislature with the task of predicting the ultimate effects of codetermination. The Court was satisfied that the legislature had performed its task carefully after holding many hearings and considering Germany’s previous experience with codetermination and giving due regard to the individual freedom of citizens. Th is was sufficient to override anticipated but unproven assertions of unconstitutionality.] III. [Right to Property] The Codetermination Act does not violate the fundamental rights of shareholders or of the enterprises under Article 14 (1). . . . 1. The statute does not infringe the guarantee of property. The provisions infringe neither the property of the shareholders nor that of the enterprises; on the contrary, they defi ne the content and limits of property in pursuance of the powers conferred upon the legislature under Article 14 (1) [1] of the Basic Law. Admittedly, [the provisions] reduce the powers of the shareholders as members of the supervisory board, although not by half, inasmuch as the shareholders as a whole retain their decisive influence in the enterprise. But this restriction remains within the ambit of the commitments of property owners to society in general, and these commitments increase in scope as the relationship between the property in question and its social environment as well as its social function narrows. As a rule, the personal relationship conferred by holding shares covered by the Codetermination Act has less of an impact upon the law affecting the right

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to membership of the supervisory board. On the other hand, these shareholdings have far-reaching social relevance and serve a significant social function, especially since the use of this property always requires the cooperation of the employees whose fundamental rights are affected by such use. To the extent that the property of companies responsible for the undertakings affected by the act is concerned, one cannot assume [solely] on the basis of the legislature’s prognosis that extended codetermination will render enterprises unworkable or produce conditions similar to unworkableness. . . . [The Court emphasized that property in shares is controlled by company law. Th at law imposes valid limits on the rights of shareholders. Property in shares is not like ordinary property: it cannot be used or disposed of in the manner of tangible property. Moreover, shareholder rights vary according to the partic u lar form of corporate orga nization and its internal decision-making procedures. In any case, as the Court noted, “codetermination was intended in part to bestow a larger mea sure of social legitimacy upon private enterprise. The Codetermination Act does not promote narrow group interests. Rather, the cooperation and integration served by institutional coparticipation . . . have general importance as social policy; coparticipation is a legitimate political means of safeguarding the market economy. It serves the public welfare and cannot be regarded as an unsuitable means for the achievement of this purpose.”] C. [The Right to Form Associations] IV. 2. Sections 7, 27, 29, and 31 are compatible with Article 9 (3) of the Basic Law. They leave untouched the freedom to found and to join associations as well as the guarantee to organize economic actors without state interference. They do not unconstitutionally add to the collective agreement system an additional layer of labor and economic conditions. They do not impermissibly restrict the principle of independence from opponents. Nor can one proceed on the assumption that they will lead to the inability of collective bargaining autonomy to function. Pursuant to the rulings regularly handed down by the Federal Constitutional Court, the Basic Law protects the crucial part of the right of free association. Th is also includes the general guarantee of autonomy in negotiating collective wage agreements . . . [and the] independence of employers’ associations. In view of the justifiable prognosis made by the legislature we cannot assume that the contested provisions of the Codetermination Act will result in the autonomy of concluding collective wage agreements becoming unworkable. If the existing statutory provisions should nevertheless prove insufficient to ensure the fundamental independence of employer associations, the legislature would have to provide a remedy. . . . C. [Freedom of Occupational Choice] III. 3. a. Article 12 (1) is not violated. . . . Article 12 (1) of the Basic Law protects the freedom of the citizen in an area especially important for a modern society based on the division of labor. It guarantees the individual the right to take up any work for

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which he or she feels suited as an “occupation,” that is, to make it the basis of his or her life. [More than the freedom to trade is involved here.] An “occupation” is understood in its relation to the personality of the human being as a whole, which is only fully formed and completed when an individual devotes himself or herself to an activity that is the task and basis of life and through which he or she contributes to the overall social per formance. . . . In view of the size of the enterprises that fall within the scope of the Codetermination Act, freedom of choice with regard to an occupation or profession in such fi rms largely lacks the personal element forming the real core of this fundamental right. To this extent, freedom of choice with regard to a trade, occupation, or profession may be deemed to have a social relationship and a social function in [those] enterprises that can exercise this freedom only through their employees. Hence, the contested provisions of the Codetermination Act prove to be admissible limitations of the exercise of one’s trade, occupation, or profession. To the extent that we also must consider Article 2 (1) of the Basic Law, [the Act’s provisions] also do not infringe that fundamental right. Complainants have not shown that the challenged provisions unduly constrain the development of entrepreneurial initiative, thus [adversely] affecting the substance of that freedom of activity enjoyed by companies or shareholders.

∂

Freedom of Economic Association and the Rights of Labor. Article 9 (1) guarantees to all Germans “the right to form corporations and other associations.” Paragraph 2, however, contributes to Germany’s militant democracy by prohibiting associations whose “aims or activities contravene the criminal laws, or that are directed against the constitutional order or the concept of international understanding.” Paragraph 3, fi nally, confers on “every individual” and “every occupation or profession” the right to associate for the purpose of “improving working and economic conditions.” From an American perspective, the last clause of this paragraph is interesting because it reaches into private contractual relationships: “Agreements that restrict or seek to impair this right,” the clause reads, “shall be null and void.” Accordingly, a complainant would have a constitutional cause of action against private parties for any infringement of his or her right to join or not to join an association. The leading case under Article 9 (1) is Erfurt Public Corporation Case (1959),80 in which a mining company challenged its compulsory membership in a state-created association of property owners and industries organized to conserve water resources in the highly industrialized area where they operated. The freedom to associate or not to associate, the First Senate said, is a right that Article 9 confers on individual persons, not on associations of persons—that is, a public-law corporation—created and organized by the state to perform “legitimate public tasks” the fulfi llment of which is in the interest of the whole community.81 Compulsory membership in such an association is constitutionally permissible and indeed consistent with the spirit of

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the Sozialstaat so long as the controlling statute conforms to the constitutional order, satisfies the principle of proportionality, and requires the per formance of public tasks that private entities acting alone cannot accomplish or regular state organs are reluctant to undertake. The First Senate noted that a par ticu lar company or individual contesting compulsory membership in a corporation organized under public law would have to vindicate the claim to freedom of association under Article 2 (1) of the Basic Law. 82 In the related Chamber of Workers Case (1974) the First Senate sustained a Bremen Land statute requiring all employed persons to join the Chamber of Workers, a public corporation organized to tender advice on labor relations to public authorities and employees and to coordinate the aims of various professional organizations.83 The First Senate conceded that the performance of a legitimate public function does not always justify a statute such as this, which “in principle constitutes a severe infringement of the individual’s freedom of action in economic and social life.”84 Various trade unions also raised constitutional objections to the state-created chamber, arguing that its “arbitrary establishment” imperiled the existence of voluntary associations— here labor unions—that could just as easily perform the public tasks assigned to the chamber. The senate suggested that if the activities of a public corporation prevented or inhibited the establishment of a voluntary or private-law association with similar goals, then its establishment would be an unconstitutional infringement of the right of economic association within the meaning of Article 9 (3). Here, however, the Court found that the Chamber of Workers did not compete with trade unions and that the small fee each employee had to pay for membership in the chamber was an insignificant burden on the right to associate. The decision in the Lockout Case (1975),85 which includes a general restatement of the rights of labor and management under Article 9 (3), resulted from a company’s lockout of its employees following a strike and the company’s refusal to reinstate certain employees after the strike was settled. The Court reaffi rmed the legality of both strikes and lockouts, regarding them as legitimate techniques of pressure and counterpressure as well as essential aspects of economic association and associational autonomy. In this case, however, the employer had refused to reinstate employees who were members of the company’s works council. Members of such councils, elected by their fellow employees, deal directly with employers over matters affecting safety and working conditions.86 These councils are an important feature of German labor orga nization. The Court therefore concluded that the members of these councils cannot be dismissed consistent with the protection afforded expressly to the right to associate for the improvement of working and economic conditions. The IG-Metall Case (1976) also involved the activity of a member of a works council.87 The chairman of IG-Metall’s works council distributed handbills to employees on the factory grounds urging them to vote for union members (nearly all of whom belonged to the spd) running for election to the town council in a nearby Bavarian community. The employer then sought and eventually obtained a ruling from a Bavarian

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labor court excluding the employee who distributed the bills from the works council. The lower court’s order was based on a provision of the Works Council Act that provides for such an exclusion if the employee “engages in party politics” on the factory’s premises. In response to the employee’s complaint, the Federal Constitutional Court ruled that, while Article 9 (3) may not secure a general right of association, it does protect the right to organize for the purpose of improving working conditions. On the facts of this case the Court found that the employee’s behavior was not a “gross violation” of his legal obligations. The Court might have sustained the complaint by a broader construction of Article 9 (3) but chose instead to base its decision on the worker’s right to freedom of speech under Article 5 of the Basic Law. The “political party activity” provision of the Works Constitution Act, said the Court, has to be construed narrowly to give the fundamental value of freedom of speech its proper and legitimate scope within the workplace. In the Postal Workers Strike Case (1993), fi nally, the Constitutional Court applied the provisions of Article 9 (3) to government employees (Angestellte and Arbeiter). After German postal workers struck for higher wages, the Ministry of Post and Telecommunications sought to replace them temporarily with civil servants (Beamten), an action sustained by the Federal Labor Court (Bundesarbeitsgericht). The Constitutional Court affi rmed the complaint fi led by the German Postal Union, the Constitutional Court reversed, holding that the right of public ser vice workers to strike is a legitimate tool under Article 9 (3) for safeguarding and improving their working conditions, at least in the absence of legislation limiting their right to strike. The Court also emphasized the special character of the civil ser vice and its duty to remain neutral in labor disputes of this kind. Civil servants who belong to the traditional class of state officials responsible for the day-to-day administration of the Rechtsstaat enjoy a higher status and more privileges than ordinary public employees.88 Judicial Intervention versus Self-Restraint. The Codetermination Case was hailed as a disciplined exercise of judicial self-restraint. Th is is not an altogether inaccurate characterization. As in the Kalkar I Case (1978; no. 4.6), the Court allowed the legislature considerable leeway (Prognosespielraum) in regulating the economic order. Parts of the Codetermination opinion, however, reveal that the Court may have stayed its hand only temporarily. A significant feature of the opinion is its exacting scrutiny of the coparticipation statute’s content and the legislative basis for its enactment. The Court recognized that the statute “brings about substantial changes in the economic order” and “regulates a sector of complex interconnections,” but nevertheless regarded it as “constitutionally tenable” because Parliament paid close attention to the political, economic, and legal aspects of codetermination. The Court was doing no less than examining the adequacy of the legislative process and fi nding that the various interests at stake had been properly considered. The Court went on to emphasize, however, that if future developments under codetermination should unduly impinge on the right to property, association, or occupational liberty, Parliament would be constitutionally obliged to make the necessary

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corrections. Any legislative negligence in this regard is presumably subject to further judicial scrutiny. The Pharmacy Case is a trailblazing decision in the field of occupational rights. It is also an illustration of the judicial vigilance that characterizes constitutional adjudication under Article 12. The rights vindicated by this article accord with the logic of the social market economy, just as they mark the Basic Law’s victory over a once hierarchically orga nized social structure. In the Federal Constitutional Court’s jurisprudence, occupational rights are ranked as fundamental not only for their value in promoting economic liberty but also for their intrinsic moral worth. Indeed, the Court has favored an elevated philosophy of work over mere prosperity. The choice and practice of an occupation are seen less as a means of earning a living than as a foundation for the development of the human personality. Work is a vocation as well as a job and necessary for personal growth and self-fulfi llment. Yet, as Pharmacy shows, laws regulating the choice of an occupation are reviewed more stringently than the regulation of its practice. 10.10 Pharmacy Case (1958) 7 BVerfGE 377 [Bavaria restricted the number of pharmacies licensed in any given community. The state’s Apothecary Act provided for the issuance of additional licenses only if the new pharmacies would be commercially viable and would cause no economic harm to nearby competitors. In 1955 Bavaria invoked this statute to deny a license to a person who had recently immigrated from East Germany, where he had been a licensed pharmacist. The aggrieved applicant fi led a constitutional complaint against the decision of the Bavarian government and the statutory provision under which the action was taken. In striking down the relevant provision of the law, the Constitutional Court set forth the general principles governing its interpretation of the right to occupational choice.]

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Judgment of the First Senate. . . . Section 3 (1) of the Bavarian Apothecary Act of 16 June 1952, as amended on 10 December 1955, is void. . . . B. IV. Whether Article 3 (1) of the Apothecary Act is consistent with Article 12 (1) requires a discussion of the fundamental propositions concerning the importance of the right to choose a trade. 1. Article 12 (1) protects the citizen’s freedom in an area of par ticu lar importance to a modern society based on the division of labor. Every individual has the right to take up any activity that he or she feels prepared to undertake as an “occupation”—that is, to make [the activity] the very basis of his or her life. . . . Article 12 (1) guarantees the individual more than just the freedom to engage independently in a trade. To be

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sure, the basic right aims at the protection of economical ly meaningful work, but it also views work as a “vocation” [Beruf]. Work in this sense is seen in terms of its relationship to the human personality as a whole: It is a relationship that shapes and completes the individual over a lifetime of devoted activity; it is the foundation of a person’s existence, through which that person simultaneously contributes to the total social product. . . . 2. . . . The idea of an “occupation” within the meaning of the Basic Law embraces not only those activities identified by custom or by law, but also freely chosen activities that do not correspond to the legal or traditional conception of a trade or profession. b. The text of Article 12 (1), when viewed against the backdrop of the real significance of the basic right, suggests that the legislature may regulate the practice but not the choice of an occupation. But this cannot be the [true] meaning of the provision, for the concepts of “choice” and “practice” are not mutually exclusive. Taking up a profession represents both the choice of an occupation and the beginning of its practice. Indeed, the choice of an occupation may not be manifested until it is practiced. Similarly, the intent to remain in an occupation, expressed through its continued practice, together with the voluntary discontinuance of its practice, are essentially acts of vocational choice as well. Both concepts represent a complex unity and, although viewed from different angles, are incorporated into the notion of “vocational activity.” Thus, an interpretation that would absolutely bar lawmakers from every interference with vocational choice cannot be correct. . . . Rather, a legal regulation purporting primarily to limit the practice of an occupation would survive constitutional analysis even if it has an indirect effect on the choice of an occupation. Th is situation occurs primarily where the choice of an occupation is largely dependent upon admission standards. Article 74 (19), authorizing the federation to enact laws governing admission to certain occupations, is evidence that the framers did not intend to summarily exclude legislation pertaining to occupational admission standards. But the history of this provision [citing the original debates in the Parliamentary Council] shows that, as a general rule, they also sought to curtail this power. . . . To be sure, the framers of the Basic Law fell short of a fully objective and conceptual clarification of these problems. Ultimately they came up with a formulation that closely followed the distinction between “choice” and “practice” familiar in the field of trade law and were content to leave the rest to regulation by law. . . . In any case, Article 12 (1) is a unified basic right in the sense that the reservation clause of sentence 2 [“The practice of trades, occupations, and professions may be regulated by or pursuant to a law”] grants the legislature the power to make regulations affecting either the choice or the exercise of an occupation. But this does not mean that the legislature is empowered to regulate each of these aspects of vocational activity to the same degree. For it is clear from the text of Article 12 (1) that occupational choice is to remain “free” while the practice of an occupation may be regulated. Th is language does not permit an interpretation that assumes an equal

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degree of legislative control over each of these “aspects.” The more legislation affects the choice of an occupation, the more limited is the regulatory power. Th is interpretation accords with the basic concepts of the constitution and the image of man founded on those concepts. The choice of an occupation is an act of self-determination, of the free will of the individual; it must be protected as much as possible from state encroachment. In practicing an occupation, however, the individual immediately affects the life of society; this aspect of vocational activity is subject to regulation in the interest of others and of society. The legislature is thus empowered to make regulations affecting either the choice or the practice of an occupation. The more a regulatory power is directed to the choice of an occupation, the narrower are its limits; the more it is directed to the practice of an occupation, the broader are its limits. . . . c. . . . The general principles governing the regulation of vocational activity may be summarized as follows: The practice of an occupation may be restricted by reasonable regulations predicated on considerations of the common good. The freedom to choose an occupation, however, may be restricted only for the sake of a compelling public interest; that is, if after careful deliberation, the legislature determines that a common interest must be protected, then it may impose restrictions in order to protect that interest, but only to the extent that the protection cannot be accomplished by a lesser restriction on freedom of choice. In the event that an encroachment on freedom of occupational choice is unavoidable, lawmakers must always employ the regulative means least restrictive of the basic right. A graduated scale of possible restrictions governs the legislature’s authority to regulate vocational activity. Lawmakers have the most discretion when they regulate the practice of an occupation. In regulating such practice, they may broadly consider calculations of utility. Lawmakers may impose limitations on the right to practice an occupation so as to prevent detriment and danger to the general public; they may also do so to promote an occupation for the purpose of achieving greater total performance within society. Here, the constitution protects the individual only against excessively onerous and unreasonable encroachments. Apart from these exceptions, such restrictions on the freedom of occupation do not greatly affect the citizen since he or she already has an occupation and [the statutory restrictions] leave the right to exercise an occupation inviolate. On the other hand, if [the legislature] conditions the right to take up an occupational activity on the fulfi llment of certain requirements, thus impinging on the choice of an occupation, then regulations for the public good are legitimate only when such action is absolutely necessary to protect particularly important community interests; in all such cases the restrictive measures selected must entail the least possible interference. But the nature of a regulation prescribing conditions for admission to an occupation depends on whether the legislation deals with individual conditions, such as those of educational background and training, or with objective conditions irrelevant to one’s personal qualifications and over which one exercises no control.

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The regulation of individual (subjective) conditions [for admission to an occupation] is a legitimate exercise of legislative authority. Only those applicants possessing the proper qualifications, determined in accordance with preestablished formal criteria, will be admitted to a trade or profession. Many occupations require knowledge and skills that can be acquired only through theoretical and practical training. Without such preparation the practice of such occupations would be impossible or deficient and perhaps even dangerous to the general public. . . . Thus, the limits on freedom of choice here are needed to safeguard the public against certain liabilities and hazards. Such limits are reasonable because applicants for various occupations know well in advance of their choice whether or not they have the proper qualifications. The principle of proportionality governs here; any requirements laid down must bear a reasonable relationship to the end pursued [i.e., the safe and orderly practice of an occupation]. The situation is different, however, when the state proceeds to control the objective conditions of admission. Here, the matter is simply out of the individual’s hands. Such restrictions contradict the spirit and purpose of the basic right because even one whom the state has permitted to make his choice by meeting the requirements of admission may nevertheless be barred from an occupation. Th is encroachment on a person’s freedom cuts all the more deeply the longer he or she has had to attend school and the more specialized the training is. . . . Because it is not altogether clear what direct disadvantages for the general public will result when a professionally and morally qualified applicant exercises his occupation, the [legislature] will often not be able to show a connection between the limitation on occupational choice and the desired result. In such situations the danger of impermissible legislative motivations is present. In this case it appears that [the legislature] intends to impose the restriction on admission in order to protect practicing pharmacists from further competition, a motive which, by general consensus, can never justify a restriction on the freedom to choose an occupation. Th is crude and most radical means of barring professionally and presumably morally qualified applicants from their chosen profession thus violates the individual’s right to choose an occupation, quite apart from any possible confl ict with the principle of equality. Limits upon the objective conditions of admission are permissible on very narrowly defi ned terms. Generally speaking, [the legislature] may impose them only when they are needed to address highly probable dangers to community interests of overriding importance. . . . V. . . . Public health is doubtless an important community interest whose protection may justify encroachments on the freedom of the individual. Additionally, there is no doubt that an orderly supply of drugs is crucial for the protection of public health. “Orderly” in this context means that needed drugs will be available to the general public and that their distribution will also be controlled. . . . The Bavarian legislature presumably had these objectives in mind, but between the lines of the legislation we can also discern the political aims of a pharmacy profession at work to protect its [narrow] interests and the traditional concept of the “apothecary.”

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The decisive question before us is whether the absence of this restriction on the establishment of new pharmacies would . . . in all probability disrupt the orderly supply of drugs in such a way as to endanger public health. We are not convinced that this danger is impending. VII. . . . Section 3 (1) of the Bavarian Apothecary Act is unconstitutional because it violates the basic right of the complainant under Article 12 (1).

∂

Pharmacy and Its Progeny. Pharmacy reaffi rmed the standard rule in German constitutional law that any restriction imposed on a fundamental right must be accomplished by a specific legislative enactment (Gesetzesvorbehalt).89 As suggested earlier, the decision is also a resounding affi rmation of the dignity of work and its relationship to the human personality. The term “occupation” or “vocation” (Beruf) is broadly construed to relate to any occupational activity an individual may legally choose as his or her life’s work. Choosing one’s life work is an act of self-determination, an act that by itself ranks among the Basic Law’s highest values. Finally, and most importantly for present purposes, Pharmacy sets forth for the fi rst time the “gradation theory” (Stufentheorie) for assessing restrictions on occupational choice. Pharmacy also represents the fi rst major case in which the principle of proportionality appeared as an analytical tool for assessing the legitimacy of limits on fundamental rights, in this instance the right to choose and practice one’s trade or profession. But as noted below, the practice of a vocation or occupation may be regulated in the public interest so long as the freedom to choose an occupation is not thereby unduly burdened. Thus, the Court follows the text of Article 12 in differentiating between the choice of an occupation and its practice. The Court does so even while regarding choice and practice as interrelated liberties that represent a “complex unity.” Still, the regulation of occupational choice ordinarily triggers a higher standard of review than a regulation of its practice. Under the “gradation theory,” the Court scrutinizes limitations on choice within an exacting three-pronged analytical framework. First, any law regulating the choice of an occupation must be justified by a compelling public purpose. Such a purpose requires more than a good or even a substantial reason for the limitation. It must be compelling. Second, the regulation must be necessary to achieve the legislative purpose. In short, a less restrictive means to achieve the state’s end must be unavailable. Finally, the means used must not be disproportionate to the accomplishment of the task. In addition, any regulation of occupational choice must satisfy what the Court describes as “subjective” and “objective” requirements. Under the standard of subjectivity, the state may regulate choice only to the extent needed to ensure that individuals embarking upon a given occupation possess the requisite qualifications. Occupational licensing standards can be imposed to certify the competence or education of an applicant. The standard of objectivity, by contrast, relates to the regulation of an occupation or profession itself in the public interest or for the common good. An example of the former is the Technician Licensing Case (1992). The Court sustained legislation that requires sufficient

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professional knowledge and expertise before a license can be issued to persons setting themselves up as independent advisors or experts in their specific professional field; in following Pharmacy, the Court denied the state’s authority to refuse such a license on the ground that there are enough experts already operating in the field.90 An illustration of “objective need” analysis is the Long-Haul Truck Licensing Case (1975).91 Transportation officials refused to grant long-haul trucking permits to certain companies because the quota for such permits, fi xed by law, had already been fi lled. Employing the “gradation theory,” the Court found that the restriction was a necessary and proper means of preventing a major threat to the compelling public interest in an efficient railroad transportation system. Declared the Court: “The federal railroad is indispensable for the national economy. Th is is true not only for passenger transportation, but for freight traffic as well, whose protection fi xed quotas are meant to serve. A modern economy based on the division of labor cannot do without this means of transportation, which moves great volumes of freight quickly and over long distances. . . . Supplying the population with vital goods could not be guaranteed without the railroad; thus the railroad helps to safeguard the existence of every individual.”92 As we shall see in the section below on occupational liberty and reunification, East German bureaucrats constitutionally could be turned out of their jobs in the interest of establishing greater efficiency in the field of public administration. As Pharmacy indicates, a lower standard of review is ordinarily applied to laws regulating the practice of an occupation. Such a regulation need not be justified by a compelling public purpose. The practice of a trade or occupation may be limited by reasonable regulations in the public interest. The Federal Constitutional Court, accordingly, has upheld laws 1) imposing reasonable age limits on the practice of an occupation, 2) permitting only licensed pharmacists to sell certain drugs, 3) prohibiting general public advertising by physicians, 4) regulating the hours when business establishments may remain open, 5) forbidding bakery shops from operating during certain nighttime hours, and 6) withdrawing an attorney’s license if he or she engages in a second occupation that is incompatible with that of an independent lawyer.93 On the other hand, the Court invalidated a law restricting the number of doctors allowed to treat patients covered by a statutory medical insurance fund (Medical Insurance I Case [1960]),94 as well as several judicial rulings preventing certain lawyers from serving as defense counsel in par ticu lar cases.95 The Chocolate Candy Case, featured below, illustrates the point that even general consumer protection legislation may run afoul of Article 12 (1) if it violates the principle of proportionality. Limitations on Entry into and Choice of an Occupation. Consistent with the “gradation theory” espoused in Pharmacy, the Court has been notably vigilant with respect to admission and entry standards impinging on occupational choice. Regulations governing entry into a profession generally survive constitutional analysis unless such admission standards violate the principle of proportionality, a test requiring not only a substantial relationship between means and ends but also a compelling reason for the law itself. The Retail Trade Case (1965) illustrates the compelling reason prong

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of the proportionality principle. Here the Court invalidated statutorily imposed technical educational requirements as applied to a general merchandise dealer. Such knowledge, said the Court, was unnecessary to operate a general store in the public interest. The requirement was thus an “undue burden” on freedom of occupational choice.96 In the Handicraft Admission Case (1961), however, the Court sustained a federal statute introducing an examination requirement before master craftsmen could obtain a certificate of proficiency. The Court found this measure a reasonable means of protecting and promoting handicraft trades and small economic enterprises.97 In a number of other cases the Court held that any sudden upgrading of otherwise legitimate admission standards may require a transitional stage during which those disadvantaged by the new standards are given the opportunity to meet them.98 Moreover, as Pharmacy illustrates, admission to an occupation may not be grounded on any effort to protect existing trades or businesses against competition. The denial of a license to a new taxi concern merely because the local community is already well served by the taxicab trade is therefore invalid.99 The difference between the result in this case and Truck Licensing pivots on the Court’s assessment of the relative public interests involved. Notaries public may also be limited in number because of their quasi-public status and special relationship to the state.100 Finally, the Milk Distributor Case (1958) invalidated a regulation denying a license to a milk distributor unless he could offer for sale a specified minimum quantity of milk.101 10.11 Chocolate Candy Case (1980) 53 BVerfGE 138 [A federal consumer protection statute barred the sale of foodstuffs that might be confused with products made of chocolate. The statute was successfully invoked against a producer of Christmas and Easter candy made of puffed rice and coated with chocolate. The company brought a constitutional complaint, grounded on Article 12 (1), against a decision of the Federal Court of Justice sustaining the ban as applied. The Constitutional Court found a violation of the candymaker’s occupational rights.]

∂

Judgment of the First Senate. . . . II. The constitutional complaint is justified. 1. Section 14 (2) of the Chocolate Products Act on June 1975, is incompatible with Article 12 (1) to the extent that it imposes an absolute ban on the sale of the designated product. The provision under discussion regulates the practice of an occupation. Under Article 12 (1) a regulation may be imposed only by law or pursuant to a law. If an administrative decree regulates the practice of an occupation, then it must be rooted in a delegated power authorized by the Basic Law and must adhere to the confi nes of this

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delegated power. Reasonable concern for the common good must justify the regulation, and the means chosen to implement the regulation must be necessary and proper for the achievement of its purpose. Section 14 (2) of the Chocolate Products Act satisfies this requirement only in part. . . . c. aa. In deciding whether a regulation that limits the practice of a trade is consistent with the principle of proportionality, we must take into account the discretion the legislature enjoys—within the framework of its authority—in the sphere of commercial activity. The Basic Law grants the legislature wide latitude in setting economic policy and devising the means necessary to implement it. In the instant case, however, the legislature has exceeded the proper bounds of its discretion, for less restrictive means can easily achieve the purpose of the statute. . . . Statutes like those involved here are designed to protect the consumer from confusion when purchasing food and from health threats. . . . Section 14 (2) of the Chocolate Products Act is designed to protect the consumer from deception. Th is protection is undoubtedly in the public interest and justifies restrictions on the practice of a trade. To achieve this purpose the legislature has not only required proper labeling but also prohibited the sale of the product. Prohibiting the sale of a product, however, is one of the most drastic means imaginable of protecting the consumer from confusion and deceptive trade practices. The regulator can ordinarily avert these threats to the public interest just as effectively and efficiently by mandating proper labeling. It may indeed be true that a consumer bases his decision to purchase a product not on a careful scrutiny of the product but rather on its external appearance. But this does not justify the presumption that the regulator must ban the sale of every form of food product described in section 14 (2) of the statute in order to protect the “fl ighty” consumer. Nor do other considerations justify the competitive edge given here to pure chocolate products. If a case involves possible confusion between milk and margarine products, then the legislature may indeed adopt measures in the public interest for maintaining a productive farm economy thus serving a purpose beyond the immediate goal of consumer protection. In the instant case, however, no justifiable grounds exist for imposing a broader restriction than is needed to safeguard the consumer from false labeling. Thus, the regulator should take only those measures that are necessary for the protection of the consumer. To accomplish this end it would have been enough to require proper labeling.

∂

Public Health Regulations. Chocolate Candy demonstrated that consumer protection regulations are likely to be upheld when designed to protect public consumers against deceptive trade practices or business practices adversely affecting public health or the environment. The three cases discussed in this subsection are more recent examples of how the Federal Constitutional Court has dealt with such laws or regulations when they impinge on occupational rights. Two prominent health regulation decisions implicating such rights are the earlier-discussed Glycol Wine (2002) and the Smoking Ban (2008) cases. In Glycol, besides the property interests litigated

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by the wine distributors,102 the two bottling fi rms also argued that the federal government report warning consumers of the hazards of glycol violated their rights under Article 12 (1). The Court was unmoved. Occupational freedom, held the Court, did not protect the fi rms against the government’s dissemination of information about their products even though the information might harm the fi rms’ ability to compete in the market.103 Article 12 (1), said the Court, includes the right of a company to market its goods but does not grant it the right to protect its reputation when faced with evidence that its products are unhealthy. The Court held that government has the duty to dispense objective information of this kind in the interest of both market transparency and the proper functioning of the social market economy.104 The Court employed similar “common good” reasoning in the Tobacco Warning Label Case (1997), (discussed in Chapter 8), when upholding health warning labels on cigarette packages over the objection that they unconstitutionally infringed freedom of speech. In the Smoking Ban Case, however, Article 12 (1) was successfully invoked to defeat smoking bans in several Länder.105 Given the Bundestag’s reluctance to pass a national nonsmokers protection statute, nearly every Land parliament proceeded to enact its own smoking ban. The typical ban prohibited smoking in all public buildings and enclosed spaces, including bars, restaurants, cafes, and clubs. Some Länder, among them Berlin and Baden-Württemberg, exempted from the ban larger establishments able to provide separate rooms for smokers, an exception that worked a severe hardship on small, single-room establishments. For smoking-friendly Germans, many of these smaller establishments were neighborhood havens of relaxation and camaraderie. Surveys showed that the ban was causing owners of these establishments to lose 20 to 40 percent of their income. Several owners claimed to be on the verge of closing their businesses altogether. Bar owners from Berlin and Tübingen fi led constitutional complaints against the bans, the exemption for larger establishments in par ticu lar, claiming a violation of Article 12 (1) in tandem with the principle of equality under Article 3 (1). In weighing the health interests of nonsmokers against the basic right of certain bar owners to the free exercise of their occupation under Article 12 (1), the Court invalidated the exemption for larger establishments. The six justices in the majority found that the protection of nonsmokers against passive smoke is a compelling public purpose that would justify a general prohibition of smoking in all enclosed spaces, but that the Land laws unreasonably burdened small bars relative to larger establishments able to provide separate rooms for smokers. In a familiar decisional move, the Court allowed the Land laws to remain in effect until the end of 2009, by which time the Länder were ordered to bring them into conformity with the Court’s recommendations. The First Senate’s majority advised that these laws could either impose a general smoking ban on all establishments or provide an appropriate exemption for small as well as large establishments. (The Court declined to rule on whether a ban on smoking altogether violated the general freedom of action under Article 2 (1) of the Basic Law.) In dissent, Justice Brun-Otto Bryde—the Court’s fi rst justice to have been nominated by the center-left

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Green Party—felt that the right to occupational liberty would simply have to give way before the overriding importance of the “community’s interest in the preservation of life and health.”106 By contrast, Justice Johannes Masing, also dissenting, thought that a general smoking ban extending to all bars, clubs, and restaurants would be “paternalistic in the extreme” and “wholly disproportionate” to the otherwise valid objective of protecting public health.107 A related case worthy of note involved a Hessen Land statute authorizing municipal councils to levy a tax on the sale of nonreusable food and beverage containers, pursuant to which the city of Kassel adopted such a measure. As an environmental protection ordinance, the levy would be less revenue-producing than regulatory, designed as it was to reduce waste by discouraging the use of nonreusable containers. Hesse’s Regional Administrative Court upheld the ordinance over the objection of a vending machine company and fast-food chain. In response, the two businesses fi led constitutional complaints against the ruling, alleging a violation of their occupational liberty. As in Glycol, the issue was whether occupational rights had been impaired in accordance with the Basic Law. According to Article 74 (1) [24], the federation’s concurrent power extends to the regulation of waste disposal. But under Article 105 (2a) the Länder are empowered to impose taxes on “consumption and expenditures” so long as these taxes do not confl ict with similar tax measures passed by the federal government. In its unanimous opinion, the Constitutional Court recognized that a regulatory tax would be permissible so long as the ordinance is within the substantive competence of the municipal government. The Court found this not to be the case. Accordingly, it ruled that the measure violated Article 12 (1) when considered in tandem with Articles 74 (1) [24] and 105 (2a).108 Business Practice Regulations. As for business regulation decisions that implicate occupational rights under Article 12 (1), two important cases already have been discussed in Chapters 7 and 9 respectively. In the fi rst case, Bavarian Abortion III, Bavaria had enacted regulations permitting abortions to be performed only by gynecologists and related specialists, together with barring physicians from earning annually more than 25 percent of their income from performing abortions. Pursuant to constitutional complaints fi led by several Bavarian physicians, the Court in a 5–3 vote struck down these regulations as an infringement of a physician’s occupational rights under Article 12 (1) of the Basic Law.109 But here the right to life might have prevailed over occupational liberty had federal rather than Land law been involved; the majority held that Bavaria’s statute was beyond the competence of the Länder. Similarly, in the Ritual Slaughter Case (2002; no. 9.3), claims to religious liberty, personality rights, and equality were invoked by the complainant in tandem with Article 12 (1). A Muslim butcher whose faith required that he prepare and sell the meat of ritually slaughtered animals challenged an animal protection act whose neutral terms made Islamic halal slaughter a prohibited act. The Court held that because the butcher in question was a Turkish citizen he could not rely directly on the protection of occupational liberty under Article 12 (1), a basic right fully enjoyed only by German

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citizens.110 With respect to noncitizens, however, the First Senate noted that Article 12 (1) is of “subsidiary validity” (subsidiär geltend) when summoned in tandem with a valid claim to a basic right enjoyed by all persons.111 The Court concluded that occupational freedom is a facet of certain basic rights enjoyed by all persons—to wit, rights to general liberty under Article 2 (1) and religious freedom under Article 4.112 For this reason Ritual Slaughter required the state to carve out of the applicable statute an exemption for Muslim butchers obliged by their faith to use ritual methods to slaughter animals. Doctors and lawyers were the complainants in several related business regulation cases. In the Stem Cell Research Case (2000), for example, several doctors challenged a federal law forbidding the use of stem cells in the production of certain medications. Licensed doctors were using stem cells from sheep embryos for use in treating human patients for therapeutic purposes. The Constitutional Court ruled that the federation had overreached its authority to pass laws on “pharmacies, medicines, and medical products” (Article 74 (1) [19]) by disallowing doctors to administer treatments to their patients as they deemed medically necessary. Hence, their occupational rights under Article 12 (1) had been infringed.113 In the Medical Specialization Case (2002) the Court also found that Article 12 (1) had been infringed by a federal law limiting doctors to advertising themselves as specialists in only one area of medicine. The complainant was a general practitioner who also designated himself as a pediatrician on his letterhead and in directories. Given the possibility of specializing in more than one area of medicine, the Constitutional Court held that the “one specialty” designation rule violated the doctor’s liberty to practice medicine under Article 12 (1) of the Basic Law.114 In the Physician Age Limit Case (2001), however, the Court sustained an age limit of fi ft y-five years for physicians eligible to participate in a federal health insurance scheme.115 The Court rejected the complaint of a sixty-year-old specialist in internal medicine who, for the fi rst time, wanted to enroll in the official list of eligible physicians. The Court found, after examining in great detail the economic structure of the statutory health insurance system, that the legislature could legitimately conclude that physicians who worked outside the system during most of their professional lives would not have acquired the kind of experience or the cost-consciousness required to “organize justifiable medical treatment in an economical ly sensible manner.”116 Physicians affected by the age limit, said the Court, are “neither denied the continued practice of their profession as a physician nor the change to a different form of practicing it.”117 Finally, in the Lawyer- Client Relationship Case (2003) the Constitutional Court invalidated a restriction on the practice of law intended to avoid confl icts of interest among lawyers. A bar association regulation upheld by the Federal Court of Justice barred a law fi rm from litigating a case after having employed a lawyer who was previously employed by another fi rm representing the opposing side in the same legal matter. The fi rm was obliged to do so even though the lawyer in question, when employed by the opposing fi rm, had not personally represented the opposing clients or

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interests. In responding to the law fi rm’s constitutional complaint, the Court ruled that in situations where lawyers themselves have not previously represented opposing clients or interests, the regulation as upheld constituted an encroachment on the right to practice law in violation of Article 12 (1).118 In a related case, the Federal Constitutional Court invalidated a bar association regulation prohibiting an attorney from being admitted to the bar of the Higher Regional Court (Oberlandesgericht) of Hamm because the relevant exceptions permitting out-of-jurisdiction admission were applicable only to those admitted to practice in North Rhine–Westphalia. The Court held that the rule interfered with the complainant lawyer’s per for mance of his legal duties. To keep a lawyer from bar memberships open to similarly qualified lawyers simply on the basis of the Land in which he was admitted to the bar violates his occupational rights under Article 12 (1) of the Basic Law.119 Each of these cases reiterates Pharmacy’s teaching that only an important public purpose will justify any state interference with the practice of a profession or occupation. Shop Closing Law Cases. Germany’s shop closing laws command attention because they interfere with the liberty of store and shop owners to determine for themselves when to open their places of business. Despite curtailing the hours and days on which persons might wish to ply their trades, the Court has upheld shop closing laws unless they impinge on the choice or exercise of an occupation under Article 12 (1). Shop closing or working hours are heavily regulated in Germany to afford workers adequate rest, to protect employees (retail workers in par ticu lar) from abusive work schedules, and to encourage fair market competition. The Court has regarded these objectives as “compelling” when applying the principle of proportionality. The current version of the Federal Shop Closing Act requires all stores and shops to close on Sundays and holidays and on Monday through Friday before 6 a.m. and after 8 p.m.120 On Saturdays the general rule allows stores to open from 6 a.m. to 4 p.m. But there are many exceptions to these baseline business hours depending on the location of a shop (e.g., in a train station) or the nature of its business (e.g., a pharmacy). Complicating this picture are the many supplementary regulations promulgated by the Länder to meet local needs for goods and ser vices, many of them exceptions to the federal baseline business hours. These exceptions have generated several constitutional complaints allegedly in violation of the right to occupational freedom under Article 12 (1) and the prohibition against discrimination laid down in Article 3 (1) of the Basic Law. A prominent example of these complaints is the Pharmacy Opening Hours Case (2002). The Shop Closing Act allowed pharmacies to open every day of the week during the baseline business hours but barred them from selling goods other than pharmaceuticals and personal hygiene products on Saturdays and Sundays when other shops were required to close. Other shops were permitted to remain open, with normal business hours, on only four Sundays each year. The complainant challenged a Land regulation permitting pharmacies to open on Sundays on a rotating basis and obliging them to hang a sign on their door with the address of the nearest pharmacies

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open for business. The complainant was fi ned for keeping her pharmacy open on one of the four Sundays during which other businesses and shops were allowed to open even though, according to Land law, her pharmacy was scheduled for a rotating closure on that par ticu lar Sunday. She claimed the fi ne infringed both the equality and occupational freedom clauses of the Basic Law. The Federal Constitutional Court agreed but confi ned its analysis to Article 12 (1), ruling that the complainant’s occupational freedom had been infringed. In applying the principle of proportionality, the Court held that infringements of occupational freedom may not go beyond what is required for the public welfare.121 An important earlier decision, the Barber Shop Closing Case (1982), involved a section of the Shop Closing Act permitting barber and beauty shops to remain open until 6 p.m. on Saturdays but requiring these shops to close on the following Monday morning if they took advantage of the longer Saturday hours. At the time, shops generally were required to close at 2 p.m. on Saturdays. The Federal Administrative Court, however, in a labored construction of the act, ruled that barber and beauty shops located in department stores would have to close on Monday mornings even though they had not opted to extend their working hours on Saturday. The Constitutional Court’s First Senate overturned the decision for infringing the right “to pursue a vocation” under Article 12 (1) in conjunction with the general equality clause of Article 3 (1) of the Basic Law. Once more, since occupational freedom was implicated, the Court applied its heightened standard of review. It concluded that the administrative court had, without sufficient reason, imposed on barber and beauty shops located in department stores a burden disproportionate to the purpose of the regulatory policy.122 Occupational Choice and Higher Education. The modern German university, built on the Humboldtian reforms of the early nineteenth century,123 was traditionally an elite institution professionally oriented and hierarchically organized around teaching and research programs monopolized by full professors. As one commentator notes, “the state provided higher education in the fi nest tradition of independent inquiry, and students educated in this manner provided the state with enlightened ministers.”124 Controversial political reforms of the 1960s transformed this elite system into a mass system of higher education.125 The high postwar birthrate and reforms in secondary education that allowed students from the lower strata of German society to obtain university degrees drove the number of university students to 533,000 in 1970, almost triple the 1950 figure. By the late 1970s enrollment had surged to nearly one million students. These soaring figures prompted several universities to place a limit on the number of students admitted into oversubscribed fields of study such as law, medicine, pharmacy, dentistry, architecture, and veterinary medicine. Until the mid-1960s any student in possession of the Abitur, the traditional college preparatory diploma, was entitled to embark on his or her chosen field of study in the university of his or her choice. The Abitur certifies that a student is competent to enter the university. It can be obtained only by completing an eight- or nine-year

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course of studies at the Gymnasium, an advanced secondary school “neither designed for the pupil of average intelligence nor likely to be recommended for children from [lower-income] families.”126 Most German students attended other secondary schools, oriented toward basic literacy or toward preparing their students for advanced training in a technical school. Th is tracking system tended to reinforce the elitism of German universities. When the numerus clausus—a numerical limit on admissions to a field of study— was imposed in the late 1960s, several universities modified their admission policies. The Abitur remained the most important qualifying factor, but now university admissions officials began to rank students according to their Abitur grades, placing those with lower grades on waiting lists. In addition, a limited number of students received preferential treatment. Among these privileged applicants were the young men who had completed their obligatory military ser vice, those on waiting lists for one or more years, and those resident in the state of the university to which they had applied. The Numerus Clausus I Case, involving the medical schools of the Universities of Hamburg and Munich, emerged out of these new admission policies. 10.12 Numerus Clausus I Case (1972) 33 BVerfGE 303 [Students rejected on the basis of the new numerus clausus restrictions, but otherwise presumptively qualified for admission to university, challenged the regulations. For example, in the Hamburg case, the plaintiff passed his Abitur with a grade point average of 3.25. It must be noted that this average is not commensurate with the typical American grading scheme in which the best grade (a letter A) is valued as 4 points. Instead, in the traditional German scheme, academic per for mances are valued as follows: a score of 1 indicates “very good” (sehr gut); a score of 2 indicates “good” (gut); a score of 3 indicates “satisfactory” (befriedigend); a score of 4 indicates “sufficient” (ausreichend); a score of 5 indicates “inadequate” (mangelhaft); and a score of 6 indicates “insufficient” (ungenügend). An Abitur is awarded if an average of at least 4.0 (sufficient) is met for all marks awarded during the last two years and the fi nal exams. An average of 3.25 means the student was rather unremarkable. After unsuccessfully applying for admission to medical school during the winter semester of 1969–70, the plaintiff reapplied for the summer semester of 1970. The university again refused plaintiff ’s application because of insufficient seats in the medical program. (Today, the Abitur grade point average entitling a student to admission to medical school is around 1.0.) After being informed of his ranking on the admission waiting list, the plaintiff fi led an unsuccessful objection to the university’s decision and subsequently brought an action in the administrative courts to ascertain the legality of the policy that resulted in his inability to enroll in the medical school. Doubting the compatibility of the numerus clausus with the right of all Germans to freely choose a trade or an occupation under

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Article 12, the administrative courts referred the question to the Federal Constitutional Court pursuant to its concrete judicial review jurisdiction. The Court found the numerus clausus restrictions to be a violation of the constitution.]

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Judgment of the First Senate. . . . C. The Hamburg and Bavarian university admission policies are not fully consistent with the Basic Law. I. The primary standard used in assessing the constitutionality of admission restrictions, as established by our precedents and in the legal literature, is the guaranteed right of all Germans under Article 12 (1) to choose where they are to be educated. The inclusion of this right in the Basic Law, and its initial interpretation, clearly indicate that Article 12 (1) was designed as a right of the individual to defend against official encroachments on educational freedom. The deliberations of the Parliamentary Council’s Main Committee emphasized that the individual would enjoy the freedom to choose among the various universities and to attend the lectures of outstanding professors in order to receive a well-rounded education under all circumstances. . . . Indeed, an important aspect of the protective function of this freedom. . . . is circumscribed when the capacity of all educational institutions is exhausted, making the planned distribution of applicants unavoidable. Overcrowded educational facilities highlight another important aspect of the right to freely choose the place of one’s training; that is, the closely related right, also guaranteed by Article 12 (1), to freely choose an occupation. As a rule, education is the fi rst step in taking up an occupation; both are integral parts of a coordinated life process. The Federal Constitutional Court’s Article 12 (1) jurisprudence has long emphasized not only the inseparability of the choice and the later practice of an occupation, but also the importance of guidelines for occupational training. Because of the integral relationship between training for an occupation and practicing it, the Federal Administrative Court has already concluded that legislatures may not impose limits on admission to professional training as a means of steering the choice of an occupation. Th is close relationship also leads us to conclude that we shall judge any restrictions on the admission to a course of study as stringently as restrictions on the choice of the occupation when the choice of an occupation—for example, the medical profession—involves a prescribed program of study. In the field of education the constitutional protection of basic rights is not limited to the function of protection from governmental intervention traditionally ascribed to the basic liberty rights. The Federal Constitutional Court has repeatedly declared that basic rights, in their capacity as objective norms, also establish a value order that represents a fundamental constitutional decision in all areas of the law. Therefore, the Court has said that basic rights are not merely defensive rights of the citizen against

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the state. The more involved a modern state becomes in assuring the social security and cultural advancement of its citizens, the more the complementary demand that participation in governmental ser vices assume the character of a basic right will augment the initial postulate of safeguarding liberty from state intervention. Th is development is particularly important in the field of education. . . . The freedom to choose an occupation—apart from the special provisions of Article 33 relating to civil service employment—is at present predominantly put into practice in the private sector and is largely directed toward protecting the individual’s chosen lifestyle; that is, its purpose is to ensure freedom from any coercion or prohibition with respect to one’s choice or practice of a profession. By contrast, freedom of choice with respect to one’s place of education is geared, by its very nature, toward free access to institutions; this right would be worthless without the actual ability to exercise it. Accordingly, the proposed federal guidelines for higher education proceed from the initial assumption that every German is entitled to carry out a chosen program of study if he or she demonstrates the requisite qualifications. The legislature must help realize this right. We may put aside the question of whether participatory rights in state benefits can be partially derived from the concept that a social, constitutional state takes on a guarantor’s obligation to implement the value system of the basic rights. We have determined that the legislature must decide whether and to what extent it will grant participatory rights within the limits of administrative ser vices, even in a modern state based on social justice, and the citizen cannot force the legislature to make this decision. But, when the state has created certain educational institutions, then claims of access to these institutions may arise from the principle of equality in tandem with Article 12 (1) and the social state principle. Th is is especially true when the state has laid claim to a factual monopoly that cannot easily be abandoned, as in the sphere of education, and when participation in governmental ser vices is also an indispensable precondition for the exercise of basic rights, as in the field of training for academic professions. In a social and constitutional state one cannot leave it to the limited discretion of governmental agencies to determine the circle of beneficiaries and to exclude some citizens from these privileges, especially since this would result in the government steering the choice of a profession. To the contrary, every citizen qualified for university studies has the right to share equally in the opportunity being offered. Th is conclusion flows from the fact that the state offers these ser vices. Therefore, Article 12 (1) together with Article 3 (1) [the principle of equality] and the social state principle guarantee any citizen meeting the individual admission requirements the right to be admitted to the institution of higher education of his or her choice. 2. The view is widespread that this right of admission, by its nature, is limited exclusively to a claim of participation in existing educational opportunities. By contrast, the Hamburg Administrative Court, in its reference to this Court, maintains that the state must expand educational facilities. Thus, any regulation in the form of absolute admission restrictions on entering students would be permissible only if accomplished by a

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law expressly providing for the fulfi llment of this obligation within a specified period of time. Both interpretations, however, neglect aspects necessary for the protection of the basic right in the present context. The problematic nature of absolute limits on admission lies in the fact that the existing capacity is insufficient to afford an educational opportunity to everyone entitled to it. If, from the outset, we would confi ne our scrutiny to the right to participate in the educational opportunities that already exist, then our analysis would miss the crux of the difficulty. Normally, with regard to social services—that is, fi nancial benefits—the legislature can redistribute funds to deal with the disadvantageous consequences of confi ning ser vices to existing means. An absolute restriction on admission to the university, however, leads to the “inequal ity that one class of applicants receives everything and the others nothing”—at least for a more or less long and possibly decisive period. . . . Because of these effects, absolute admissions restrictions are undisputedly on the edge of constitutional acceptability. In the long run, expanding capacity is the only way to deal with these effects. As a consequence, the . . . question arises whether the value decisions manifested in basic rights together with the state’s educational monopoly vest a social state with an objective constitutional mandate to provide sufficient educational capacity for all courses of study. We need not decide whether this question should be answered in the affi rmative or whether, under certain circumstances, an individual citizen can use this constitutional mandate as the basis for an enforceable claim against the state to create opportunities for higher study. For constitutional consequences would arise only if that constitutional mandate were manifestly violated. We can ascertain no such violation with respect to the field of medical studies today. Even to the extent that participatory rights are not entirely restricted to existing benefits, they are still subject to the limitation of what is possible, meaning that which the individual may reasonably claim from society. The legislature has the primary responsibility for determining what may reasonably be claimed. According to the explicit provision of Article 109 (2), the legislature must consider other public welfare concerns as well as the demands of overall economic balance when setting its spending policy. It is also incumbent on the legislature to decide whether to enlarge existing facilities as well as which construction projects have priority, considering too that the enlargement and new construction of universities are to be regarded as joint tasks of the federation and the states within the meaning of Article 91. a. . . . Any constitutional obligation of the legislature that may exist does not include the duty to supply a desired place of education at any time to any applicant. Th is would make costly investments in the realm of higher education exclusively dependent upon individual demands, which often fluctuate and are influenced by manifold circumstances. It would also lead to a misunderstanding of the concept of freedom—to a failure to recognize that personal liberty, in the long run, cannot be effectuated in isolation either from its equilibrium or from the ability of the whole to function effectively. The idea that the individual has an unlimited claim that is en-

Economic Liberties and the Social State 683

forceable at the expense of the community as a whole is incompatible with the principle of a social state. . . . It would be contrary to the state’s mandate to achieve social justice as articulated by the principle of equality if the state gave only a privileged portion of the population the benefit of limited public fi nancial resources while neglecting other important concerns of the public welfare. [The Court concluded that the states had made adequate efforts to expand the number of openings in medical schools but found that regulations governing admission to existing facilities fell short of constitutional requirements. After noting that, under the terms of Article 12 (1), the right to choose an occupation and one’s place of training is subject to regulation by law, the Court set forth the conditions under which admission might be restricted: the state may limit admissions to the university, but on the basis of criteria clearly defi ned by law; every applicant must be given a fair chance to be admitted under specified selection procedures; additionally, the numerus clausus would survive constitutional analysis only if the state could demonstrate that all the places in a given academic department were fi lled.] c. In the light of these considerations, any absolute limit on admissions must meet strict requirements. According to the Federal Constitutional Court’s so-called gradation theory, the more the freedom of occupation is affected, the more the regulatory power of the state is limited. The choice of occupation depends upon the choice of education, and absolute restrictions on admissions to a par ticu lar educational program resulting from the depleted capacity in the educational facility are equivalent to an objective precondition for admission within the meaning of the gradation theory. Therefore a regulation based on general principles developed under Article 12 (1) is permissible only to combat a demonstrably serious or highly probable threat to an exceedingly important community value. Also, the legislature must strictly observe the basic principle of proportionality and not wholly fail to consider objectionable side effects, for example, by forcing students to change their programs of study or to study in a foreign country. . . . In the light of past experience, an absolute restriction on the admission of beginning students is constitutional only if 1) the legislature imposes the restriction only when absolutely necessary, after having exhausted currently available publicly funded facilities; and 2) the statute bases the choice and distribution of openings on equitable criteria and provides each applicant with the opportunity to compete for an opening, devoting the greatest possible attention to where the individual wishes to study. . . . 1. Both the provision concerning the selection of applicants and the aforementioned order to impose admissions restrictions belong to the core of admission procedures for higher education. In terms of substantive law, the problems in this area center on the fact that some applicants for higher education will have the privilege of being admitted, and other equally qualified candidates will be rejected and consequently hindered from commencing their studies or possibly from choosing a

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par tic u lar occupation. In this connection we need not discuss either the importance of the Abitur as the termination of general schooling or whether this manner of qualifying for higher education should be reformed. In any case, no matter where one draws the line for entrance requirements, the absolute restriction of admissions presents the problem of selecting among applicants who fulfi ll all the individual requirements for acceptance. Since this selection means unequal treatment of equally qualified persons, the creative leeway in setting the rules of selection normally afforded by the principle of equality is not very great. Of course, the provision may not be arbitrary in the sense of being patently subjective. Here especially, those responsible for admitting students are obliged to make a selection which is reasonably acceptable to rejected applicants, always using the principle of fairness as a guideline. In par ticu lar the provision must give every qualified applicant a real chance [to be accepted]. As to the procedural aspect of this issue, the legislature must establish the rules for selection since the effects of this provision are so far-reaching. If the legislature authorizes a delegation of its authority, it must at least determine the selection criteria and their order of importance. The constitution permits the legislature to delegate its legislative power to others through explicit legal authorization. Yet, if the regulation interferes with the fundamental rights contained in Article 12 (1), then it can have the effect of allocating chances to shape one’s life. Consequently, in a parliamentary democracy based on the constitutional state principle, the constitutional requirement of a specific enactment, which permits the restriction of basic rights only by statute or on the basis of a statute, can only mean that the legislature must be responsible for the basic elements of this decision.

∂

Judicial Review and University Admission. Numerus Clausus I marks the beginning of major judicial intervention in university governance.127 The Court declared that any absolute numerical limit on admission into a course of study is unconstitutional unless the institution applying it can demonstrate that all available space is completely fi lled.128 In so deciding, the Constitutional Court accelerated the movement toward central control of higher education. Numerus Clausus I prompted the various states, in cooperation with their universities, to create a centralized office for university admissions. Following the Court’s guidelines, the Central Admissions Office worked out procedures for measur ing available space and formulated concrete standards for making admission decisions. These procedures and standards generated yet another round of judicial decisions. In the Freiburg University Admissions Case (1975) the Federal Constitutional Court ruled in favor of twenty-two applicants denied admission by the Central Admissions Office to the medical school of the University of Freiburg.129 The novelty of the case consisted in the Court’s decision to bypass the Central Admissions Office and order the direct admission of the complaining students.130 On the same day, in the Munich University Admissions Case (1975),131 the Court reversed a decision denying admission to a medical school applicant who

Economic Liberties and the Social State 685

was able to show that Munich’s medical facilities were underused. The Central Admissions Office would now have to fi nd ways of verifying the spatial capacities of the universities if suits against par tic u lar schools by disappointed applicants were to be avoided. In 1976 the Court handed down decisions in two more cases in which it was asked to review the standards governing the imposition of the numerus clausus.132 Meanwhile, and partly in response to the Court’s university admissions decisions, the federation enacted the University Framework Act of 1976. Its detailed provisions on university admission standards specified criteria for determining teaching capacity, established admission quotas, and laid down general and special selection procedures.133 The Constitutional Court, however, was still not satisfied. In the Numerus Clausus II Case (1977), the Court found deficiencies in the new admission criteria laid down in the University Framework Act.134 In the Court’s view there was still too much emphasis on scholastic achievement scores. In 1982 the Court even nullified provisions of the act that denied students the right to study medicine as a minor subject unless it was meaningfully related to their major course of studies.135 The provisions were invalidated as applied to an applicant who had begun his studies in the mid-1970s when it was possible to embark on a secondary (or “minor”) course of study at the university. At the cost of harsh public criticism the Constitutional Court has transformed itself into a veritable ministry of education. With each successive decision the Court seemed to narrow the discretion of university officials, forcing legislators to devise increasingly precise and nondiscriminatory standards governing university admissions.136 In treating the cases discussed in this section, Hans Weiler concluded: “The role of the Federal Constitutional Court has been particularly significant in two respects: (a) in overcoming the vestiges of absolute state discretion in educational matters and in making these matters subject to judicial review; and (b) in reasserting, by way of greater ‘parliamentarization’ of the policy process, the legitimating role of formal legislative action for ‘essential’ policy decisions in education.”137

reunification and economic liberties Unifying the two halves of Germany after nearly a half century of Cold War division, if it was going to happen at all, was never going to be a simple affair. Among the many social institutions that would be called upon to make reunification possible, the law was no less important than the political parties, the organs of government, and the churches. In fact, reunification was a foundational priority of West Germany’s constitutional charter, which, as noted in earlier chapters, deliberately bore the more provisional title “Basic Law.” In several places the Basic Law explicitly anticipated unification, perhaps nowhere more poignantly than in the Preamble, which improbably declared the new constitution’s applicability to “the entire German people” (“für das gesamte Deutsche Volk”).

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The Road to Unity. Not surprisingly, then, the abrupt and almost unforeseeable unification of East and West Germany in 1990 after the long, tense, and sometimes deadly Cold War, when it fi nally happened, proceeded along distinctly legal paths. International law and domestic legislative measures designed to unify Germany played the most prominent roles. For example, the State Treaty on Monetary, Economic, and Social Union (18 May 1990), which was a fi rst major step toward German reunification, integrated the economies of eastern and western Germany within the framework of the Federal Republic’s social market economy. The State Treaty introduced West Germany’s currency (dm or Deutsche mark) into East Germany (German Democratic Republic); incorporated East Germany’s command economy into West Germany’s market economy; and transformed East Germany’s obsolete and inefficient system of industrial management into one of private ownership, competition, and the free movement of goods, capital, and ser vices. The immediate conversion of a planned economy into a free enterprise economy caused considerable hardship in East Germany, including factory closings, high rates of unemployment, and the loss of social benefits not available in the Federal Republic’s social welfare system.138 The Unification Treaty (31 August 1990) fi nally merged the two halves of Germany, triggering structural and representational changes in the Basic Law.139 Nevertheless, to allow the new federal states in the former East Germany time to adjust to the new legal order—particularly laws relating to abortion, property rights, and federal-state relations—the Unification Treaty temporarily suspended the Basic Law’s application to specified policies and procedures held over from East German law in the new federal states. Many of these legal changes spawned a large body of constitutional jurisprudence as, inevitably, the Constitutional Court would be called upon to judge the constitutionality of the mix of treaty and legislative provisions that framed the new, unified Berlin Republic. The most fundamental constitutional question raised by reunification, however, had never been addressed by the Court. Article 146 of the Basic Law seemed to clearly anticipate that reunification would cause West Germany’s Basic Law to expire, to be succeeded by a new constitution “negotiated by all the German people.” Instead, when the day fi nally arrived on 3 October 1990, German unity was achieved by accession under Article 23; that is, within the framework of the Basic Law itself. Under Article 23 East Germany was absorbed into the existing West German constitutional scheme as five new Länder. The decision to retain the Basic Law as an all-German constitution and to continue its designation as the Grundgesetz was not unanticipated. Over the course of the preceding forty years, particularly in the light of the huge body of decisional law issued by the Federal Constitutional Court, the Basic Law had come to assume the character of a constitution framed to last in perpetuity. But there were good reasons to quarrel with the decision to achieve German unification through Article 23. First, Article 146 of the Basic Law called for a fresh constitutional start. Given their totally different legal, social, and economic systems, the two German states might have pursued a revolutionary vision equal to

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the heady spirit of the times by fashioning a system that combined the freedoms of the Basic Law with cherished East German principles of solidarity. Th is is what many East Germans meant, as they worked toward reunification, when they spoke of a “third way.”140 Second, the national discourse that necessarily would have attended the promulgation of a new, all-German constitution also might have done much to mitigate the social strains that inevitably burden a national transition and reconstruction like the one implicated by Germany’s reunification. Voices could be heard raising this concern in 1990 but they were brushed aside by East Germans and West Germans alike. No opportunity was granted to the German people as a whole to ratify a new constitution—or even the old Basic Law.141 Two decades later there remains troubling evidence of a psychological divide between East and West Germans—a wall in Germans’ minds—leading some commentators to wonder whether the failure to achieve unification through a new all-German constitutional convention bears some of the blame. The Constitutional Court was deeply involved in the adjudication of a large number of issues pertaining to reunification,142 just as it had played an important role in the management of the always-fragile East-West relationship throughout the Cold War.143 Due to their peculiarity, many of these reunification-related constitutional cases do not seem to have changed the fundamental character of the Basic Law or its interpretation. Yet exemplary of this important chapter in Germany’s postwar constitutional odyssey are the areas of property rights and occupational freedom, the focus of the rest of this chapter. Property and Reunification. Several factors signaled, well in advance of 1990, that property issues would pose some of the most intractable problems in the event of the hoped-for reunification. First, the question of property ownership was clouded in that both German states rose from the ashes of World War II under strict supervision of the Allies. The occupying powers made their own claims to German property in their respective sectors, if only as a means to maintaining an extensive military presence in Germany. The Soviet Union, and to a lesser degree France, expropriated German property and stripped industrial capital in their sectors as a crude form of reparations for the inestimable costs the two countries had incurred during the war.144 More radically, the Soviet occupying authority instituted a massive land redistribution program aimed at breaking up large landholdings in order to “democratize” property generally and to make agriculture in its occupation zone more productive. Second, a massive westward migration that began at war’s end and persisted into the early 1960s meant that property often was abandoned and then claimed without clear or proper transfer of title. At the same time, the large number of newly arrived immigrants from the east posed a distinct challenge to the distribution of property in the west. Th ird, reunification would require the rationalization of two dichotomous economic systems. In West Germany, property rights were scrupulously protected and respected in the legal, economic, and moral orders. In East Germany private ownership of property was formally guaranteed but was, in practice, regarded as

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anathema in the socialist state’s foundational ideology.145 In pursuit of “real existing socialism” East Germany expropriated and collectivized property, on the one hand, and imposed strict limitations on its possession, use, and transfer, on the other hand. For all of these reasons, property was on the minds of German elites even before they dared dream of reunification. In the era of Ostpolitik, which paved the way for deepening relations across the presumably permanent east-west border, a protocol to the 1972 East-West Basic Treaty expressed regret that, due to confl icting legal positions, the two states could not resolve what was diplomatically called “the open property question.” Not surprisingly, then, property issues attracted considerable attention amidst all the issues that confronted Germans in their rush to unity. In an attempt to get ahead of the matter, on 15 June 1990, the two German governments issued the Joint Declaration on the Settlement of Open Property Issues. The Joint Declaration laid down the general policy of restitution before compensation (Rückgabe vor Entschädigung).146 Incorporated into the Unification Treaty as Annex III,147 the agreement provided that expropriated property in East Germany, including seized businesses and real estate, would be returned to its original owners or their heirs. Compensation also was available as a solution to the open property question, but as the less preferred option. The Land Reform Controversy. The Joint Declaration contained one major exception to the policy of restitution and it would come to be one of the most contentious political and constitutional issues in the unification process. The fi rst provision of the Joint Declaration provides that “expropriations under occupation law or on the basis of sovereign acts by occupying powers (from 1945 to 1949) shall not be reversed.” The effect of this language was to ensure that property seized and redistributed during the massive Land Reform (Bodenreform) undertaken during the Soviet occupation would not again change hands. The Soviet Union and East Germany flatly refused to undo these takings, which chiefly involved the uncompensated seizure of large industrial enterprises and agricultural holdings of 250 acres or more, the latter having been distributed to poor farmers and organized into agricultural production cooperatives during the Soviet administration of the eastern occupation sector. Indeed, it was believed that the Soviet Union would not have signed the fi nal peace treaty necessary for unification to go forward without this exception. Ultimately the Land Reform exception was incorporated into Article 41 of the Unification Treaty. In anticipation of clamorous objections from the victims of the Soviet Land Reform, who would have to sit by empty-handed and watch as other victims of expropriation in the east would fi nally have their property restored to them, the Unification Treaty constitutionalized the Land Reform exception to the general policy of restitution in Article 143 (3) of the Basic Law, which provides that “Article 41 of the Unification Treaty and the rules for its implementation shall . . . remain in effect insofar as they provide for the irreversibility” of the Land Reform expropriations. But the former land owners and their heirs were not deterred. They immediately launched

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a decade-long battle, waged in the pages of Germany’s leading newspaper, the Frankfurter Allgemeine Zeitung, and in the courts. On four separate occasions the Constitutional Court has ruled on the issue. 10.13 Land Reform I Case (1991) 84 BVerfGE 90 [Former owners, and the heirs of former owners, of land in eastern Germany that had been expropriated by or under the authority of the Soviet occupiers between 1945 and 1949 brought constitutional complaints challenging the exemption clause in the fi rst provision of the Joint Declaration, which had been codified as Article 41 of the Unification Treaty and ultimately constitutionalized as Article 143 (3) of the Basic Law. Almost one-third of the territory of East Germany was implicated by the exemption, and the issue was made more complicated by the fact that it was so readily susceptible to the combustible cliché of well-to-do westerners trying to wrench back long-forgotten properties from long-suffering easterners. But the complainants, too, invoked powerful images of injustice. In many cases, they had been forced by the Soviet reform of land ownership to abandon properties that had been in their families’ hands for generations. Behind the personal elements of the confl ict lay the clash between the Federal Republic’s strict, liberal approach to property rights and East Germany’s socialist, collective understanding of property. All of this was at stake in the complaints that alleged that the Land Reform exemption violated property guarantees secured by Article 14 (1) and (3), the right to equality under Article 3 (1), and the constitutional state principle laid down in Article 20 and made unalterable by Article 79 (3). The Constitutional Court rejected the complaints.]

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Judgment of the First Senate. . . . C. The constitutional complaints are unfounded. . . . II. . . . The provision in Article 41 (1) of the Unification Treaty, in conjunction with no.1 sentence 1 of the Joint Declaration (Annex III to the Unification Treaty)— providing that the expropriations under occupation law or on the basis of sovereign acts by occupying powers (from 1945 to 1949) cannot be reversed—does not violate the fundamental rights asserted by the complainants. The challenged provision is expressly stated to be constitutionally fi nal and absolute by subsection 3 of Article 143 of the Basic Law. Article 143 was added to the Basic Law by Article 4 no. 5 of the Unification Treaty. Thus, the challenged provision could only violate the constitution and fundamental rights if Article 143 (3) of the Basic Law is void. Th is is not the case. 2. The substance of Article 143 (3) of the Basic Law—like every constitutional amendment—is to be reviewed according to the standard derived from Article 79 (3) of the Basic Law. . . .

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a. Article 79 (3) of the Basic Law prohibits constitutional amendments affecting the principles laid down in Article 1 and Article 20 of the Basic Law. Th is includes the principle of human dignity enshrined in Article 1 (1) of the Basic Law. The norm found in Article 1 (2) of the Basic Law that holds that “human rights are inviolable and inalienable as the basis of every human community, of peace, and of justice” also is included. Furthermore, the reference in Article 1 (3) of the Basic Law to the “following fundamental rights” brings the referenced rights into the sphere of Article 79 (3) and protects them from restriction to the extent that they are indispensable to the maintenance of an order that corresponds to Article 1 (1) and (2) of the Basic Law. Just like the original framers and ratifiers of the constitution, a subsequent legislature that amends the Basic Law may not neglect fundamental requirements of justice. These include the principle of equality before the law and the prohibition of arbitrariness. Similarly, fundamental elements of the constitutional state principle and the social state principle, which are expressed in Articles 20 (1) and (3) of the Basic Law, must be observed. In connection with all these provisions Article 79 (3) of the Basic Law requires only that the principles named should not be affected. But Article 79 (3) does not prevent the constitution-amending legislature from modifying the positive law aspect of these principles for appropriate reasons. b. According to the Joint Declaration the expropriations may not be voided. In addition, it excludes the possibility of comprehensively eliminating the consequences of the expropriations through restitution of property to the former owners. Yet, the provision does not prohibit fi nancial compensation for the harm suffered. Such compensation, the amount of which is not prescribed, is expressly reserved to the legislature in no. 1 sentence 4 of the Joint Declaration. . . . The constitutional amendment making the provisions governing the expropriations final and absolute constitutional law does not violate Article 79 (3) of the Basic Law. aa. If, in the fi rst instance, public international law claims are disregarded, then the persons affected no longer had a legal position upon which the legislature might have encroached when enacting the challenged provision. Therefore, a defect under constitutional law can be excluded from the outset. 1. The question as to whether a person has a right to a par ticu lar legal position can be answered only with regard to a specific legal system. In the legal situation in the territory of the former Soviet zone and later the German Democratic Republic, no such legal position existed after the expropriation measures had been completed. The acts of expropriation were intended to completely and fi nally remove the owners’ legal position. The normative bases of the expropriations were regarded as lawful by the occupying power, by the German state authority in the Soviet-occupied zone, and later by the German Democratic Republic. Even if the relevant legal foundations were interpreted too broadly or, when judged by the standards of the constitutional state principle, were applied arbitrarily . . . no legal protection was possible. The expropriations also were regarded as fi nal and absolute. 2. The expropriations in the territory of the Soviet occupation zone of Germany, irrespective of whether they were occasioned directly by the Soviet occupying power

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or whether the German authorities established by this occupying power had their own scope for decision in this respect, cannot be attributed to the sphere of responsibility of the state power of the Federal Republic of Germany, which is bound by the Basic Law. Admittedly, the Federal Republic has always felt itself responsible for the whole of Germany, in the meaning of the preamble to the Basic Law. But the Federal Republic’s state power was restricted not only in fact, but also under constitutional law, to the existing territory of the Federal Republic of Germany. Under [the former] Article 23 (1) of the Basic Law the Federal Republic of Germany could no more assume responsibility for measures undertaken by the German state power in the Sovietoccupied zone than it could for measures taken by a foreign state power. In addition, most of the expropriation measures cannot be judged by the standards of the Basic Law because at the date when these measures were taken the Basic Law was not yet even in force. . . . bb. It is not necessary to decide whether the former owners could have raised claims against the occupying power under principles of international law and whether any such claims might have involved a right of restitution. Even more, it is not necessary to decide whether those public international law claims, if they existed, have been removed by the challenged provision. Such claims could not have been enforced even in the absence of the challenged provision and, thus, they would have been without value as a practical matter. Even without Article 143 (3) of the Basic Law, the legislature would have been entitled to consent to the exclusion of such claims in order to bring about the unification of Germany, which was a constitutional goal and requirement of high priority. cc. No violation of Article 79 (3) of the Basic Law results from the fact that expropriated property will not be returned to its earlier owners or the successors in title of such owners. Th is is true even in light of the principle that urges subsequent compensation for earlier injustice. If these were expropriations in favor of the Soviet occupying power and the objects were removed from the area of influence of the Federal Republic of Germany, then there is nothing the Federal Republic can do to effectuate their return. Even if there were a possibility of restitution in kind, Article 79 (3) of the Basic Law would not prevent an exclusion of restitution. 1. In its decisions on the law on the consequences of war, the Federal Constitutional Court has examined arrangements for compensation of damage and loss suffered during the occupation. The Court has held that, under the value system of the Basic Law, particularly with regard to the social state principle expressed in Article 20 (1) of the Basic Law, the legislature of the Federal Republic of Germany is obliged to provide reparations for an internal equalization of the burdens resulting from occupation. The Court has explained, however, that the Federal Republic is not answerable for damage resulting from the consequences of war in the way it would be if its institutions had caused the damage. The legislature has a wide scope for structuring an equalization of burdens and may adapt the payments to take account of what is possible, particularly with a view to the Federal Republic’s other burdens and the fi nancial requirements for future tasks. To the extent that these principles are not

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satisfied by the existing provisions of the law of equalization of burdens, they may be taken account of in the arrangements for equalization provided in no. 1 sentence 4 of the Joint Declaration, which reserves the question of equalization payments for a “future parliament for the whole of Germany.” 2. After assuming state power from a political system that was based on different conceptions of order, the legislature, which is bound by the Basic Law, may or may not fi nd it necessary to provide compensation for measures taken by the superseded system if those measures are shown to be unacceptable by the standards of the constitutional state principle. Compensation of this kind goes beyond the general, obligatory equalization of burdens. The Unification Treaty’s provision that prefers restitution as a remedy for expropriations other than the Soviet land reform [expropriations not covered by no. 1 of the Joint Declaration] is based on this fundamental idea. In the present connection, it is unnecessary to decide how far the legislature has a constitutional duty to introduce compensation for the expropriations. In any event, Article 79 (3) of the Basic Law does not require compensation by way of a return of the expropriated property. When providing compensation for earlier injustices perpetrated by a different state power the legislature generally has a particularly wide scope. Th is also applies to the type of compensation. Compensation for earlier injustice in the meaning set out above can have its roots only in the constitutional state principle and the social state principle. The basic elements of these principles, which the constitution-amending legislature may not disregard, are not violated if the expropriations in question are not corrected by restitution in kind. Th is is the only conclusion that can be drawn from the fundamental constitutional right to property in this connection. Compensation does not result from individual fundamental rights, but has its roots exclusively in the idea of the constitutional state principle and the social state principle. Even if the right to property were affected, it would not be possible to derive from its central sphere (which is guaranteed by Article 79 (3) of the Basic Law) that compensation had to be made in the form of restitution in kind. The challenged provision, moreover, does not prevent the affected persons from being given the opportunity to reacquire their former property in the course of the intended equalization arrangements, at least insofar as this is possible in the individual case and appropriate from the nature of the interests involved. 3. No constitutional violation results from the fact that, except for the excluded expropriations, all other expropriations are in principle to be compensated by restitution. Th is does not violate the basic elements of the principle of equality, which, under Article 79 (3) of the Basic Law, may not be changed by amendment. The exclusion of restitution in the challenged provision is sufficiently justified by the fact that the German Democratic Republic and the Soviet Union insisted on this policy and that the Federal Republic of Germany, by its assessment of the situation in accordance with its duty, had no choice but to accept this condition in order to achieve the unification of Germany. The examination of Federal Minister of Justice Dr. Kinkel,

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retired Minister-President de Maiziere, and Permanent Secretary of the Ministry of Foreign Affairs Dr. Kastrup in the oral hearing before the Federal Constitutional Court confi rmed the Federal Government’s submission, which claimed that the German Democratic Republic and the Soviet Union made the exclusion of restitution a preliminary condition at the talks about the Unification Treaty and at the TwoPlus-Four Talks. The failure of these talks would have made it impossible to achieve German unity. Both states, the Federal Government explained, had convincingly set out their reasons for this position. On the one hand, the German Democratic Republic was interested, above all, in promoting social peace in its area by avoiding the prospect of calling into question all the new property relationships that had been created by the expropriations. The Soviet Union, on the other hand, as became clear in par ticu lar from the statements by Permanent Secretary Dr. Kastrup, was interested in ensuring that the measures that had been carried out under its sovereignty as the occupying power, which corresponded to its ideas as to law, economics, and social policy, were not subsequently put at the disposition of Germany, which at that time had been defeated. In these circumstances, the Federal Government was entitled to assume that the chance to unify Germany would have been missed if this condition had not been met. The assessment of what could be achieved in view of the situation of the talks was subject to the Federal Government’s decision made on its own responsibility and in accordance with its duty. Such a decision is not subject to constitutional review. . . .

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Land Reform I was an exercise in judicial pragmatism. As it often would do in the charged context of reunification, the Court acted decisively—some critics felt it had acted sloppily148—to buttress a major political decision of the reunification period. But, as one of the most important property rights cases to arise out of the reunification process, Land Reform I is remarkable for the fact that the Court reached its decision without having to grapple with Article 14 of the Basic Law. The clear prohibition on expropriation without legislation and compensation found in Article 14 (3) simply did not apply to the Soviet Land Reform, the Court explained, because the properties were expropriated by the Soviet Union at a time when they were not subject to the Federal Republic’s territorial authority and, in any event, the Basic Law had not yet entered into force.149 Instead, the Court considered only whether the deal struck in the Unification Treaty and later ratified as Article 143 (3) of the Basic Law constituted a violation of Article 79 (3)—the perpetuity clause—which permanently enshrines the constitutional protections of Articles 1 and 20. Of greatest concern in this regard were the unamendable guarantees of equality and the constitutional state principle, and the protection against arbitrariness. These interests, the Court reasoned, had not been harmed because none of them mandated “restitution in kind” for the lost properties and because nothing in the Land Reform exemption secured by Article 143 (3) precluded a future all- German legislature from implementing a compensation scheme for the benefit of the former owners. The Court

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seemed to acknowledge the patent disparity in the treatment of the victims of the Soviet Land Reform relative to all the other victims of eastern expropriations who would receive restitution. But the Court concluded that the unamendable guarantee of equal treatment secured by Article 1 (in conjunction with Article 3) and Article 79 (3) of the Basic Law was superseded by the higher constitutional goal of reunification. In support of this conclusion the Court emphasized the Soviet Union’s apparent nonnegotiable stance against any return of properties expropriated during its occupation of the eastern postwar sector, and the Court accepted the Federal Government’s argument that, on this basis, the exemption was necessary to achieve reunification.150 The Court’s embrace of the claim that the Soviet Union had insisted on the Land Reform exemption as a condition for its indulgence of German reunification provided the determined victims of the Land Reform with a slight hope that they might convince the Constitutional Court to reverse its decision. Even as the Court was writing its opinion in Land Reform I, the Soviet Union was disintegrating. The communist regime’s collapse in the fall of 1991 loosened the tongues of one-time Soviet policy makers and led to improved access to Soviet-era records. New information, including statements made to the press and media by former Soviet president Mikhail Gorbachev and former Soviet foreign minister Eduard Shevardnadze, allowed advocates for complete restitution of expropriated eastern properties to argue, contrary to the Court’s fi ndings in Land Reform I, that the Soviets had not insisted on the exemption as a nonnegotiable element of the Unification Treaty. To the degree that the decision in Land Reform I had been based on this factual mistake, the complainants argued, it was necessary for the Court to revisit the question. In Land Reform II (1996) the Court conclusively upheld the constitutionality of the Unification Treaty’s exemption of Soviet-era expropriations from the general policy of restitution.151 Again the Court limited its review to alleged violations of Article 79 (3) and refused to consider allegations of direct violations of Article 14. The Court explained that, by promulgating Article 143 (3) of the Basic Law, Parliament had constitutionalized the Unification Treaty’s exemption compromise. In this posture, said the Court, its review was limited to investigating whether alleged infringements of Article 14 touched the unamendable “basic principles” protected by Articles 1 and 20 of the Basic Law. On this point, the Court simply concluded that “the protection of property, insofar as it is covered by Article 79 (3) of the Basic Law, gives rise to no constitutional objections to the exclusion of restitution for the expropriations of the years 1945 to 1949.” In terms that echo the U.S. Supreme Court’s reliance on the political question doctrine in foreign affairs, the Court also refused to be drawn into a de novo consideration of the federal government’s negotiating strategy and effectiveness in the light of the new evidence of Soviet flexibility on the issue of restitution.152 Instead, the Court deferred to the federal government’s prerogative in treaty negotiations. The Federal Constitutional Court said it was “neither in a position nor authorized to investigate whether the Federal Government correctly recognized the scope for negotiations available to it and attained the result of negotiations that was

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best in every respect. Still less may the Court substitute its own assessment of the situation for that of the Federal Government.” Conscious of the resolute opposition to the exemption raised by the victims of the Soviet Land Reform, and taking up the invitation issued by the Joint Declaration and later reasserted by the Court in Land Reform I, the new all-German Parliament enacted a series of laws that provided compensation to persons who had lost properties in the east but had not benefited from restitution in kind. Th is compensation scheme came to be known by the acronym ealg (Entschädigungs- und Ausgleichsleistungsgesetz or Compensation and Equalization Payments Act) and had as its goal the payment of compensation to three distinct groups: the victims of the Soviet Land Reform; the victims of Nazi expropriations for which the East German government had not provided compensation commensurate with the West German treatment of these claims; and those who, although entitled to restitution under the terms of the Joint Declaration, had been denied that right because the movable property had been lost or lay outside the jurisdiction of the Federal Republic or because restitution had been frustrated by some exception to the general rule. The ealg provided for compensation (usually in the form of bonds payable in 2004) and established various scales for determining property values and amounts of compensation (usually some reduction of the present value of the property on the basis of its assessment at the time of expropriation). The regime also gave Land Reform victims the opportunity to purchase portions of state-held agricultural and forestry lands as a mechanism for reclaiming some portion of their landed interests in Germany’s east. Th is land acquisition opportunity, however, was subject to the priority given to other groups to purchase land in the former east. The ealg compensation and land acquisition scheme proved a bitter disappointment to many of its intended beneficiaries, including many of the victims of the Soviet Land Reform, who challenged the underlying statutes in a number of constitutional complaints grouped for consideration by the Constitutional Court. At their core these complaints argued that just compensation had not been paid and that, in any event, the recipients of compensation were unfairly treated when compared to a number of other groups. In the ealg Case (2000), the third of the Court’s Land Reform cases, the justices again brushed aside allegations of direct violations of Article 14 of the Basic Law.153 And again the Court upheld an intensely political and highly complex reunification statute against challenges that the law violated the equality (Article 3), the social state (Article 20), and the constitutional state (Article 20) principles. The Court held that Article 14 was inapplicable because its terms do not extend to the infringement of property carried out by another state agency, namely the Soviet occupation authority and, later, the East German government. For the rest, the Court recognized Parliament’s broad discretion to structure the manner in which society shares the burdens of injustice, as required by the social state principle, to pursue substantive justice pursuant to the constitutional state principle, and to avoid arbitrary state actions as prohibited by the principle of equality. Only the ealg provision that established a regressive

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scale for calculating the amount of compensation, with smaller property values reduced by 30 percent and higher property values reduced by 95 percent, raised some justices’ hackles. Four justices dissented from the reasoning in the controlling opinion.154 The prevailing justices argued that any seeming arbitrariness in calculating the amount of compensation was diminished by a number of considerations. First, they noted that a range of other social injustices resulting from the war and the emergence of the communist dictatorship in East Germany—loss of freedom and degraded health conditions to name only two—had gone uncompensated altogether. Second, they noted that disappointing compensation calculations were justified by the government’s redirection of funds to projects supportive of public goods, including infrastructure redevelopment in the former East Germany. Finally, they noted that reduced compensation was provided in the context of the Federal Republic’s broader, constitutional commitment to promoting equivalent living standards across all of Germany. The Constitutional Court addressed the Land Reform exemption for the fourth time in 2004. The constitutional complaints in Land Reform III challenged the exception to the general policy of restitution as a violation of international law.155 Th is had the important procedural significance of permitting the victims of the Soviet Land Reform to lodge their complaints with the Court’s Second Senate. The preceding Land Reform cases had been heard by the First Senate, which typically has jurisdiction over constitutional complaints. But with three negative decisions on the books already, the Land Reform victims justifiably concluded that the First Senate was likely to be inhospitable to a renewed challenge. The Second Senate, which typically has jurisdiction over cases involving the intersection of constitutional and international law, had not yet had its say on the matter. The complainants argued that the Soviet expropriations constituted a violation of public international law and that the Federal Republic violated its constitutional obligation to guarantee the integrity of international law when, upon reunification, it did not render the expropriations void and order the property restored to its former owners. The Second Senate proved no more obliging than the First Senate. It fi rst ruled that it was not required to submit the case to the Court’s plenum—both senates sitting together—because the international law questions with which it was confronted were distinct enough from those upon which the First Senate had previously ruled. For this reason, said the senate, there was no risk that it would “deviate in a question of law from an interpretation of the law contained in a decision of the other Senate.”156 Once seized of the matter, however, the Second Senate also refused to apply Article 14 to the Land Reform complaints. The Court concluded that the Soviet expropriations had effectively extinguished the former owners’ property rights, leaving them with no valuable property interests to form the basis of an Article 14 complaint. The Court also was not receptive to the international law claims raised by the complainants. As noted in Chapter 6, the Court gave a clear statement of the Basic Law’s openness to customary international law before giving the relevant international norms a restrictive interpretation. First, the Court con-

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cluded that the Soviet expropriations were not a violation of public international law, which had not yet developed a universal norm for the protection of property rights. Second, the Court concluded that public international law did not oblige the Federal Republic to pursue a policy of restitution following reunification even if it were possible to characterize the Soviet expropriations as wrongful acts under international law. With Land Reform III, it was hoped, the constitutional conclusion to “one of the most significant problems of German unification” had been achieved.157 The victims of the Soviet Land Reform, many of whom were heirs to eastern Germany’s feudal, landed Junkers,158 would have to accept the loss of their historical estates as their unhappy share of what the Constitutional Court described in sacrificial terms as “the consequences of the Second World War, [which] must be borne by the Germans as a community of fate and also, within par ticu lar limits, as the individual experience of injustice.”159 But, as their resolve throughout the legal struggle for restitution demonstrated, the victims of the Land Reform were not inclined to quietly give up their cause. With the euphoria surrounding the October 2009 celebrations marking the twentieth anniversary of the fall of the Berlin Wall, many observers would have overlooked the single but meaningful sentence buried on page 155 of the newly minted governing coalition agreement forged between the center-right cdu/csu and the liberal fdp after their victory in the September 2009 federal election. The parties promised to “set up a working group to examine whether there are still opportunities to offer persons affected by expropriations in the Soviet Occupation Zone between 1945 and 1949 preferential conditions for the acquisition of properties that are in public ownership.”160 Philip Plickert, writing for the Frankfurter Allgemeine Zeitung, concluded that this sentence “would once again rouse the hopes of the victims of the communist Land Reform in the Soviet Occupation Zone.”161 Reunification and Article 14. Although the Land Reform cases steered clear of the Basic Law’s protection of property, a number of other cases required the Court to struggle with the fundamental, confl icting mandates of Article 14 in the compelling and complex circumstances of German unification. The Court characteristically interpreted legislative provisions in this context to be permissible “contents and limits” defi nitions of the property right as permitted by Article 14 (1) [2]. The Court also relied on the “social obligation” of property, enunciated in Article 14 (2), to justify the laws’ encroachment on property-holders’ interests. In these cases, however, property’s social obligation had the added gravity of contributing to the historic peaceful and stable unification of the two German states. Finally, the Court narrowly interpreted the expropriation provision of Article 14 (3). Th is was the interpretive approach the Court followed in the Key Date Case in which it had to consider another significant exception to the general policy of restitution.

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10.14 Key Date Case (1999) 101 BVerfGE 239 [Section 4 (2) of the Property Act, as amended by the Second Property Law Amendment Act of 1994, created an exception to the general policy of restitution for good-faith purchases of property completed in East Germany between 8 May 1945 and 18 October 1989. In cases of good-faith acquisition during these years, legitimate former property owners could only hope for compensation. But property purchased during the German Democratic Republic’s convulsive last year would not benefit from this exception and was subject to the general policy providing for restitution. The distinction triggered by the 18 October 1989 “key date” sought to deny the mantle of Rechtsstaatlichkeit to the many predatory, speculative, and cynical property transactions concluded in East Germany in the heady months that followed the fall of the Berlin Wall. In an abstract review proceeding the Court concluded that the “key date” provision did not violate Article 14.]

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Judgment of the First Senate. . . . II. . . . Section 4 (2) of the Property Act does not violate the purchasers’ fundamental rights. 1. In par ticu lar, it does not violate the fundamental property guarantee of Article 14 of the Basic Law. a. In the area of private law the protection of the fundamental right of property covers, in principle, all property rights that are allocated to a person who is entitled by the legal system to exercise the powers connected with property to his or her own private benefit and following decisions taken on his or her own responsibility. Article 14 of the Basic Law gives protection against sovereign encroachments by the Federal Republic of Germany even to property interests that derive from a foreign legal system, provided this legal system does not contradict German public order in this respect (this is a reservation in favor of the Federal Republic’s public policy principles). The rights acquired under the legal system of the German Democratic Republic (ownership of land, ownership of buildings, rights of use, etc.) have therefore, since the accession, been protected by Article 14 (1) of the Basic Law. b. The provision in Section 4 (2) of the Property Act changes the buyer’s legal position. It extinguishes the claims for per for mance under the contract of sale and, where applicable, to the reversal of the in rem acquisition of the rights. But there is no expropriation in the meaning of Article 14 (3) of the Basic Law. Expropriation is state encroachment on an individual’s property. It is directed toward the complete or partial removal of concrete subjective legal positions guaranteed by Article 14 (1) [1] of the Basic Law with the aim of fulfi lling specific public tasks. In contrast, the provision in Section 4 (2) of the Property Act is concerned with legally correcting pur-

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chase processes with the purpose of creating a balance between diverging private interests. The provision challenged is related to the reorganization of ownership relations that were impaired by unjust state measures. Section 4 (2) of the Property Act is a provision determining the content and limits of ownership in the meaning of Article 14 (1) of the Basic Law. c. The legislature that defi nes the content and limits of protected property does not have unlimited discretion. Instead, in carry ing out its duty to create law, the legislature must respect the protection given to private property by Article 14 (1) [1] of the Basic Law and act in accordance with all other constitutional norms. . . . a. When the legislature defi nes the content and limits of the property right it has a par ticu lar duty to achieve a just balance and a harmonious relationship between the interests of those involved. One-sided favorable or unfavorable treatment does not give force to the constitutional idea of private property’s social component. The provision in Section 4 (2) of the Property Act, however, satisfies these requirements. In the interest of peace under the law, at the time of reunification the legislature had the task of creating a socially acceptable balance between the interests of two constituencies. On one side were the former owners and their successors in title who had an interest in obtaining compensation for the unconstitutional loss of assets during the time when Germany was divided. On the other side were the buyers of these assets or their successors in title who had an interest in keeping the assets. The former owners demanded the most extensive reparation possible in the form of restitution. The buyers demanded protection of the rights acquired under the legal system of the German Democratic Republic and wanted the former owners to be given state compensation. In solving this confl ict of interests there were no means that would have been equally just to both constituencies in every respect. Restitution in all cases would have been incompatible with the buyers’ interests in the continuation of their acquired property rights. Providing only compensation would have inadequately satisfied the former owners’ desire for restitution. Furthermore, from a fi nancial point of view, compensation at the full market value for all property would not have been possible in light of the state of public budgets; and, in any case, compensation at the full value would not have compensated for immaterial losses. The legislature therefore had to weigh the interests of the former owners in obtaining restitution against the interests of the buyers in having their good-faith acts protected by the law. Here, the idea of material justice argued more strongly in favor of restoring the original state of affairs. Restitution would have largely compensated the injustice suffered by the former owners in material and immaterial respects. But the idea of legal certainty and the reliability of legal dealings argued more strongly for the protection of buyers. If the ownership relations that developed in the German Democratic Republic had not changed, then the decision to favor compensation also would have had the economic advantage of providing greater certainty for investors. Since, from a constitutional point of view, the advantages of the one solution did not outweigh the advantages of the other solution, a par ticu lar decision in this confl ict of interests was not prescribed by the Basic Law.

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Instead, the legislature had considerable discretion. It could decide in favor of the former owners and their successors in title and follow the principle that their former property holdings be restored in kind by the buyers. But the legislature would not have to enforce this principle without exception. Instead, in order to achieve a socially acceptable balance, the legislature could provide that in the case of good faith acquisition there would be no restitution. To ensure the priority of restitution the legislature was also permitted to set a “key date” before which the protection of public confidence has priority and after which restitution in favor of the former owners or their successors in title takes precedence without restrictions. In this way the legislature was able, on the one hand, to take into account the interest in the protection of public confidence of the purchasers, who seemed particularly deserving of protection by reason of their law-abiding conduct when purchasing the property and because they had normally been owners for an extended period of time. On the other hand, in the cases where purchase had been manipulative or the purchaser had exercised legal control over the property for only a short time, the legislature could give priority to the former owners’ interest in restitution. The statutory provision does not contain a general assumption of acquisition in bad faith after the key date. Instead, it represents an assessment of the degree to which opposed interests are worthy of legal protection at different times. Such a solution, which differentiates factually and depending on the date, is not inappropriate preferential or unfavorable treatment and leads to an acceptable balancing of the differing interests. . . . In view of the purchase transactions, beginning toward the end of the year 1989 and undertaken in large numbers in spring 1990, the legislature may have feared that if the provisions excluding restitution in cases of good faith acquisition were permitted to apply without restriction, the principle of restitution might be further constrained. For this reason the legislature must have regarded it as necessary to set a key date. Nor did the legislature exceed the scope of its discretion when it chose the key date. 18 October 1989 is a justifiable date to separate the short-term ownership that followed, which is less worthy of protection, from the long-term legal control, which is more worthy of protection. If a much later date had been chosen as the key date, then there would have been a danger that the principle of restitution would be substantially restricted. Th is is true because of the mass sale of real property that had been commenced. Th is mass sale of plots of land and buildings was not set in motion only by the Sale Act of 7 March 1990. Instead, on the basis of the statute of 19 December 1973, the sales were instigated to a considerable extent by the instructions to sell that were issued on 5 and 14 December 1989. These instructions were similar to guidelines; here, persons who were “close to the state and close to the party” in the German Democratic Republic clearly had an advantage. Therefore, the legislature was able to choose a key date that was antecedent to this fi rst “small” wave of sales and that did not apply only to the “large” wave of sales that began with the Sale Act of 7 March 1990. In view of this, the 18 October 1989 key date presented itself as appropriate because the date when Erich Honecker retired from the office of the

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Chairman of the council of State marked a break in the history of the German Democratic Republic and because this key date had been used as a key date not only in the Joint Declaration, but also in the Registration Ordinance of the German Democratic Republic and thus had already entered the law of the German Democratic Republic. . . . III. Nor does the key date provision violate the fundamental rights of the former owners and their successors in title. 1. The original key date provision in Section 4 (2) sentence 2 of the Property Act does not affect the constitutional rights of the former owners to compensation because the injustice done to them is not protected by Article 14 (1) of the Basic Law at dates before its defi nition in the Property Act. Since the former owners de facto had no more property rights, the claim to the restoration of the legal interests of which they had been deprived can be based only on the constitutional state principle and the social state principle. As a consequence of this the legislature had particularly broad scope when providing for a statutory right of compensation in the Property Act. It is not apparent that the legislature exceeded its discretion when draft ing the provision in Section 4 (2) of the Property Act. 2. The subsequent restriction of the claim to restitution in Section 4 (2) sentence 2 of the Property Act, amended version, also does not violate the constitutional rights of the former owners. Even if one assumes that the claim to restitution, following its inclusion in the Property Act, is protected by Article 14 (1) of the Basic Law, the subsequent amendment of the key date provision and the ensuing expansion of the exclusion of restitution in cases of good-faith acquisition must be regarded as an acceptable determination of the content and limits of the right to property. The fundamental right to property does not require that legal positions once created are forever to remain unchanged in their content. To the contrary, under Article 14 (1) [2] of the Basic Law the legislature may alter individual legal positions by appropriate and reasonable transitional provisions. The amendment of Section 4 (2) sentence 2 of the Property Act had the objective of taking into account a relatively small group of purchasers particularly worthy of protection that had been overlooked in the original key date provision and correcting the hardships associated with the key date provision. In the purchase initiation cases, the key date provision was restricted because it appeared unfair to apply them even if the desire to purchase had not been satisfied in time for reasons over which the purchaser had no influence. In the “enterprise protection cases,” economic reasons argued in favor of departing from the restitution solution that affected the foundations of the business operations of craftsmen and other small entrepreneurs. Finally, in the “investment protection cases,” there had been an extraordinary amount of reliance involved and this needed to be taken into consideration. In the interest of these goals relating to the public interest, the legislature was permitted to regard a restriction of the claim to retransfer as necessary and proportionate in the narrower sense because the interest of the former owners was overridden only to a very limited extent and the amendment of the statute also adequately took

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into account aspects relating to the protection of public confidence. The revised provision, under Article 14 (4) of the Second Property Law Amendment Act, applied only to restitution procedures that on the date when the amending statute entered into force had not yet been terminated by an administrative decision closing the administrative procedure. In addition, the provisions of the Property Act that were contained in the Unification Treaty, in view of the complexity of the factual and legal position in the area of the former German Democratic Republic, cannot be regarded as established permanently and in all details. These provisions were rather a “legislative pi lot project,” which was undertaken with potential for amendment, adjustment and rearrangement in mind, in view of the experience and understanding that might be acquired later. Finally, the former owners were not deprived of the right to restitution without compensation: the right was converted into a right to compensation.

∂

Key Date differs from the Land Reform cases in that the challenged state action (restitution of eastern properties purchased after 18 October 1989) would have been the result of statutes enacted by the all-German Parliament in 1992 and 1994, after unification and clearly within the framework of the Federal Republic’s constitutional order. The Basic Law, and with it Article 14, applied to these statutory decisions both as a matter of territory and time in ways that it could not apply to the Soviet Land Reform expropriations that took place between 1945 and 1949 or the negotiations in 1990 that produced the Unification Treaty. But that is not a fully satisfactory explanation for why Article 14 applied in Key Date but not in the Land Reform cases. After all, the compensatory scheme challenged in the ealg Case also was enacted by the allGerman Parliament after unification. Perhaps pragmatism accounts for the distinction. The Land Reform exception to restitution upheld in the Land Reform cases left nearly one-third of East German property in the hands of its East German owners. The “good-faith exception” to restitution, which was not to be recognized in the short period after the 18 October 1989 “key date” that was upheld in the Key Date Case, had a similar effect. It could be that the Court interpreted the applicability and meaning of Article 14 in these distinct reunification circumstances in the manner most likely to promote social stability and promote investors’ confidence in the new Länder. Another, more charitable way of reading the Land Reform cases and Key Date is as expressions of the Constitutional Court’s understanding of the hardship suffered by ordinary East Germans throughout the socialist state’s four-decade history and of sympathy for the difficulty the Federal Republic’s new citizens faced in their transition to a market-oriented economy. As the preceding discussion has demonstrated, the constituencies demanding restitution of long-lost eastern properties were determined and vocal. But heeding their demands would have further shaken an East German population already facing significant social upheaval. If the seeds of the alienation many former Easterners feel currently were sown in Westerners’ sometimesarrogant approach to reunification, then the Court’s property jurisprudence might be an important expressive contribution to integration.

Economic Liberties and the Social State 703

Occupational Freedom and Reunification. The Unity Treaty provided that the laws of the German Democratic Republic would remain in force temporarily as federal law so long as compatible with the Basic Law. Depending on the nature of the agencies involved, governmental bureaus and ministries, including the courts and the administration of justice, were also brought under the jurisdiction of the Federal Government or the new Länder. Educational institutions, advanced research institutes, and scientific academies would all be affected by the values and constitutional division of powers laid down in the Basic Law. Accordingly, limited employment contracts of the staff employed in these institutions and academies were extended for a transitional period in each of the new Länder, but they would soon be subject to revision or cancellation in the face of the massive changeover to West German professional and political standards. At the same time, the fundamental rights secured by the Basic Law would be available to all persons in reunited Germany. The freedom to practice one’s occupation and choose one’s own place of work, guaranteed by Article 12, was one of these rights. As the following discussion shows, former residents of East Germany vigorously sought to vindicate these rights in the Federal Constitutional Court. Dismantling East German Bureaucracies. The Unity Treaty authorized the dismissal of public employees no longer needed to staff the reorganized bureaucracies in the five new eastern Länder. Many agencies were targeted for dissolution (Abwicklung), and other administrative units were restructured in accordance with the law of the Federal Republic of Germany. Employees of dissolved agencies were entitled to draw 70 percent of their pay for six to nine months, depending on their age, during which time an effort would be made to fi nd them new jobs in the public ser vice. If they were not reassigned within the prescribed “waiting period” (Warteschleife)—and most were not—their government employment would come to an end, making them eligible for unemployment compensation. Hundreds of affected employees fi led constitutional complaints, asserting that the treaty provisions authorizing their dismissal deprived them of their property interest in government employment and their freedom to choose an occupation and place of work in violation, respectively, of Articles 14 and 12. All complaints were consolidated for decision in the Public Servant Dissolution Case (1991).162 In confi ning its extended analysis to Article 12, the Constitutional Court’s First Senate held that the treaty’s dismissal provision was “essentially compatible with the Basic Law, but that East German public servants could not be discharged simply because the East German government had ceased to exist. The Unity Treaty converted former East Germany public servants into employees of the Federal Republic of Germany; hence, any interference with their employment contracts would have to be assessed in the light of Article 12. Choosing a place of work, said the Court, is linked to one’s guaranteed right to choose an occupation, and the state may not interfere with the exercise of either choice unless for valid reasons related to the public interest. In organizing the public ser vice, however, the state may determine the number of its agencies and their location.

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Having made these points, and after examining the Unity Treaty’s general waiting period provisions in the light of the principle of proportionality, the Court found that the measures taken under the treaty were necessary to achieve the goals of unification, among which was the establishment of a modern and effective system of public administration in the new Länder. The Court went on, however, to invalidate the dismissal of pregnant women and women on maternity leave as incompatible with the constitutional injunction of Article 6 (4), which requires the care and protection of all mothers. The Court also objected to terminating the contracts of single parents, disabled persons, and the elderly, pointing out that, because of the special vulnerability of these groups, the state would have to adopt measures to ensure their nondiscriminatory treatment.163 Another important occupational freedom case growing out of postunification social and political reconstruction involved the dismantling of East Germany’s wellknown Academy of Science, a major governmental research organization centrally controlled and consisting of some twenty-four thousand scholars, scientists, and other employees organized into academic units on the basis of their expertise. (Article 38 of the Unity Treaty laid down the procedures for dissolving and evaluating the structures of science and research in East Germany. Paragraph 3 designated 31 December 1991 as the day on which many East German research institutes would cease to exist.) In responding to the petitions of nearly five hundred scientists and employees whose jobs and departments were being terminated or reconstituted, the Court found, as in Public Servant Dissolution, that the procedures employed in dissolving or reordering scientific institutes and reassessing the credentials of individual scholars were necessary to bring research and science up to the traditional standards of academic governance in the Federal Republic. The Court once again invoked Article 12 (1), which guarantees not only free choice of an occupation, but also “free choice of a place to work.” In this instance Article 12 (1) “protected working women against loss of their place of work during pregnancy and after giving birth.”164 In addition, the Court extended the employment contracts of persons who were given insufficient notice of their dismissal and thus little time to fi nd alternative employment.165 Accordingly, the Court demonstrated considerable empathy for those workers and professionals faced with par ticu lar disabilities or pressing circumstances. In so doing, the Constitutional Court sought to protect the occupational freedom of East Germany’s most vulnerable citizens, thus helping to build confidence among former East Germans in the Basic Law’s system of constitutional governance. And, as several cases discussed below show, the Court’s solicitude would extend to persons dismissed from their jobs for political reasons. Judging the Past in Unified Germany. In the aftermath of reunification, the allGerman government adopted a set of procedures and policies to deal with the legacy of East German communism. How the Federal Republic would judge East Germany’s past was a matter that invited comparisons with the postwar treatment of persons accused of crimes under National Socialism. Many commentators doubted

Economic Liberties and the Social State 705

whether West Germany had fully atoned for its Nazi past and the Holocaust. Human rights violations, degrading as they were in East Germany, did not compare with those of the Nazi period. Still, East Germany’s one-party (Socialist Unity Party or sed) state punished political dissent, suppressed religious liberty, seized private property without compensation, ostracized, exiled, or imprisoned citizens seeking lawfully to settle in West Germany, and damaged countless human relationships with its nationwide network of spies and infor mants, the reach of which was so vast as to produce a society almost singularly marked by intimidation, coercion, and betrayal. Worse, East Germans were shot and killed for their “illegal” attempts to cross the fortified barrier separating East from West Germany or to breach the wall imprisoning the residents of East Berlin. The Unity Treaty of 31 August 1990 sought to deal with the most flagrant of these wrongdoings. Since East Germany was instantly incorporated into the Federal Republic’s constitutional and legal order, East German citizens—now full-fledged citizens of the Federal Republic—were entitled to all the protections of the Basic Law. But they would also be judged by the constitutional and legal standards governing admission to the Federal Republic’s civil ser vice and other occupational categories. The Unity Treaty also provided for the dismissal of officials and administrators who had collaborated with the Ministry of State Security (the Stasi) or were implicated in human rights violations incompatible with the Basic Law. Their wrongdoing had to be serious enough to render them “unsuitable” for continued employment in the professional civil ser vice, and they had to meet the educational and professional standards required of their positions. By 1997, some forty thousand civil servants— teachers, police officers, judges, prosecutors, and university professors—had been dismissed after vetting by screening boards.166 As Joachim Gauck, the East German pastor placed in charge of the eponymous “Gauck Agency” (officially known as the Federal Commissioner for the Records of the State Security Ser vice of the Former German Democratic Republic), was quoted as saying: “If after more than 55 years of Nazi and communist dictatorship, citizens were going to trust [their] officials under the new democratic system, it was important that those officials be trustworthy.”167 His clarion commitment to transparency and justice, not to mention his personal integrity and courage, was one reason for Gauck’s election to the federal presidency in 2012. In several decisions, the Constitutional Court ruled that mere membership in the sed was an insufficient reason to dismiss a teacher or other public servant. The Court remarked that the fact of being civil servants in higher administrative offices, or even teachers in school leadership positions, who carried out sed party or East German state directives did not by itself demonstrate a lack of the required aptitude within the meaning of the Basic Law’s Article 33.168 What was required to demonstrate this deficiency, declared the Court, were “acts of a severely repressive or damaging nature.”169 Dismissals from the civil ser vice, said the Court, must be carefully reviewed in the light of the fundamental value the Basic Law attaches to occupational choice. Clearly, the freedom to choose one’s occupation and place of work under Article 12 (1)

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would have to meet, in the case of public employees, the “aptitudinal” requirements demanded of civil servants by Article 33 (2). It would be unfair, the Court repeatedly said, to judge the aptitude of civil servants only by their loyal stewardship as citizens of East Germany. In the sed Educator’s Case (1997) the First Senate declared that the right “aptitude includes the ability and the inner willingness to carry out one’s official duties in compliance with the principles of the constitution, in par ticu lar to observe citizens’ rights and liberties and to comply with the regulations of the constitutional state principle.”170 In assessing the right to occupational liberty under Article 12 (1) in tandem with the aptitudinal requirements of Article 33 (2), labor courts were permitted to consider the totality of a teacher’s record for evidence of an “inner attitude” that he or she was committed the principles of a Rechtsstaat. Slavish adherence to the East German state or unquestioning loyalty over many years to the sed were often regarded as legitimate grounds for disqualification. The Fink Case (1997) is a particularly noteworthy example of a complainant found to lack the “inner willingness” to carry out his official duties in the spirit of the Basic Law. Fink involved a Unity Treaty provision permitting a civil servant to be dismissed without notice if he or she had worked for the Stasi. The complainant, a professor of practical theology at Humboldt University in East Berlin, was appointed Rector of the University in April 1990. But in late 1991 the Gauck Commission reported that, for over twenty-five years, Fink had been an unofficial Stasi collaborator. Records in the Gauck Agency’s archives established that Fink had been awarded the Gold Merit Medal of the National People’s Army along with a payment of 750 marks for his service. Fink was dismissed from his postreunification position as Rector even though the record failed to show that he had caused “concrete harm to other people through his activity.”171 In upholding the Federal Labor Court’s rejection of the complainant’s claim that his dismissal infringed his right to his choice and place of work under Article 12 (1) (along with his fundamental rights to dignity (Article 1), personality (Article 2), and equality (Article 3)), the Constitutional Court concluded that he did not possess the “aptitude” required by Article 33 (2) of the Basic Law. In applying the familiar principle of proportionality, the Court found 1) that the Unity Treaty was an adequate statutory basis for the infringement of the rights protected by Article 12 (1); 2) that the restriction of the right was justified by the compelling public interest in the employment of civil servants committed to human rights and the constitutional state principle; and 3) that the termination of employment was a “suitable and necessary” means to achieve this goal.172 Even though the complainant’s ser vice to the Stasi apparently had done no concrete harm, his knowing and willing collaboration over many years was a sufficient reason for concluding that the university could not reasonably be expected to employ him given the significance of his position as Rector and the “great public attention” that the case attracted.173 The case featured below was brought by East German lawyers who had been excluded from the practice of law after reunification for having collaborated with the Stasi. In July 1992 Parliament enacted a statute disbarring any East German lawyer whose activities prior to 15 September 1990 had disregarded the principle of humanity

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or the constitutional state principle, or had involved official or unofficial collaboration with the Stasi. Any such person was considered “unworthy” (unwürdig) of membership in the legal profession. In the East German Disbarment Case the Court narrowed the statute’s application. It would apply to former East German lawyers found to have engaged in serious violations of human rights, but not to lawyers whose behavior fell short of this. The Court ruled, for example, that Article 12 (1) forbade the disbarment of lawyers who had done little more than fi le periodic reports with the Stasi, especially if such reports had not resulted in any serious infringement of human rights. 10.15 East German Disbarment Case (1995) 93 BVerfGE 213 [Lawyers in East Germany were expected to advance the cause of socialist legality and to provide state agencies with information about clients and fellow lawyers. The lawyers disbarred in this case were unofficial Stasi collaborators. The fi rst complainant lost her license because she provided information on the habits, marital problems, and political attitudes of fellow lawyers and on the problems of clients who sought her assistance to emigrate. The second complainant was disbarred for agreeing to provide reports on the general mood and activities of persons with whom he was professionally involved. The Federal Court of Justice upheld the revocation of their licenses to practice law by local judicial authorities. The lawyers fi led constitutional complaints against these decisions, alleging a violation of their occupational rights under Article 12 (1) of the Basic Law. The Constitutional Court agreed.]

∂

Judgment of the First Senate. . . . III. The interpretation and application of Section 1 (1) of the Act Concerning the Review of Practicing Certificates for Lawyers and the Appointments of Notaries and Honorary Judges in the challenged decisions do not entirely take into account the requirements of Article 12 (1) of the Basic Law. 1. If a judicial decision affects the freedom to choose an occupation or a profession, as is the case here, Article 12 (1) of the Basic Law demands that the courts interpret and apply the pertinent provisions in compliance with the fundamental right. a. The determination and assessment of the facts as well as the interpretation and application of the statute remain a matter for the competent courts. Constitutional review in the case of a constitutional complaint is restricted to the question of whether the challenged decisions contain mistakes that are based on a fundamentally erroneous view of the meaning and scope of a fundamental right and, in particular, the extent of its protection. Where the courts revoke or withdraw a practicing certificate they must ensure that the loss of a practicing certificate does not lead to a disproportionate restriction on the fundamental right to freely exercise an occupation or a profession.

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b. The Federal Court of Justice initially interpreted the provision as meaning that activity as an unofficial collaborator for the Ministry for State Security alone did not justify the revocation of a practicing certificate. Th is interpretation is constitutionally unobjectionable. According to this interpretation, the person affected must have violated the principle of humanity or the constitutional state principle; it must be possible to judge his or her personal conduct as culpable conduct of some importance. But in applying the provision, the Federal Court of Justice blurs the distinction between its two elements. Th is adds to the factors that would justify revocation of a certificate authorizing the practice of law and is, thus, no longer in conformity with the protection of occupational and professional freedom guaranteed by Article 12 (1) of the Basic Law. The Federal Court of Justice is of the view that a violation of human rights or of the constitutional state principle already took place when an unofficial collaborator . . . voluntarily and selectively collected information about legal colleagues and fellow citizens, which he or she obtained, in particular, through invading the private spheres of others and abusing their personal trust and passed on such information to the Ministry for State Security, an orga nization known in the German Democratic Republic for its repressive and inhumane activities. . . . The Federal Court of Justice’s view that the mere collection of information constitutes a breach of human rights or the constitutional state principle is too broad since only in exceptional cases would spying by an unofficial collaborator not be covered. . . . Unofficial collaboration, such as the complainants’, involved in some cases little more than the collection of information reflecting the general mood of the population on certain questions but in other cases involved targeted spying upon specific individuals. In for mants won the trust of persons in opposition circles and passed on what was thought and done in such circles as well as information on what actions were planned. . . . Such invasions of the private sphere of others and the abuse of personal trust are common indications that the person is an unofficial collaborator or spy. Whoever provided these ser vices to the Ministry for State Security had to know that the information he or she delivered could be used to the disadvantage of the person spied upon at any time. In view of these circumstances, normal collaboration by an unofficial collaborator would be sufficient according to the Federal Court of Justice’s application of the law to justify the revocation of a practicing certificate. c. But the statute does not provide a foundation for such a far-reaching restriction of occupational and professional freedom. Parliament did not make the mere recruitment of a lawyer as an unofficial collaborator and the fact that he or she had conspired with the Ministry for State Security a sufficient reason for revocation due to the completely different circumstances in the German Democratic Republic. The additional requirement that there be a violation of the principles of humanity and the constitutional state principle can only be met if other circumstances are added. The unofficial collaborator must have injured fundamental, protected interests by his or her culpable conduct or it must have been foreseeable that his or her information could lead to such injury through the Ministry for State Security. . . .

Economic Liberties and the Social State 709

2. In the case of information passed on from such spying, it is necessary to distinguish between anonymous reports on the mood of the people and information relating to a par ticu lar individual. Furthermore, reports on a par ticu lar individual that relate to conduct or remarks that are public or known for other reasons, are less serious than psychological observations, conjecture, and conclusions. Generally speaking, the more intimate the facts, the more significant disclosure by the unofficial collaborator will be; the harder it is to check the facts, the greater the likelihood that the victim will be endangered by suspicions. 3. Since an unofficial collaborator for the Ministry for State Security acts as the extended arm of the state apparatus, his or her reports must be weighed according to the conceivable damage caused, . . . . Nevertheless, a serious accusation of personal guilt is only justified if the acts were intended or were obviously suited to initiate system-related persecution. Furthermore, it must be taken into account whether the system required that the act be done, whether it was necessary for the person’s own safety, or whether it was based on loyalty to socialist legality. 2. The challenged decisions do not fully satisfy these conditions. a. In the case of the fi rst complainant, the fi nding of facts was not sufficient to form the basis for a balanced assessment of her conduct as a whole. The challenged orders and the notice of revocation are to be overturned. [The Court faulted the Federal Court of Justice for fi nding the fi rst complainant personally guilty for reports she fi led on the fi nancial circumstances and political views of a fellow lawyer who told her that he wanted to leave East Germany. But there was no evidence to show that the lawyer’s subsequent arrest while trying to leave the country was actually caused by the information fi led in the reports.] bb. The order of the Professional Disciplinary Tribunal was also made on the basis of an insufficient fi nding of facts. The order does not contain indications that justify the accusation against the fi rst complainant that she betrayed her client and that this was associated with considerable damage for the persons involved. In view of the seriousness of the accusations that entail the loss of the fi rst complainant’s certificate authorizing the practice of law, a general reference to her role as a spy and unofficial collaborator is not enough; instead there must be evidence that she violated the principles of humanity or the constitutional state principle and culpable conduct on her part must be proven. Revocation of a certificate authorizing the practice of law cannot be based simply on the unofficial collaborator’s participation in a repressive system, even when it is sought to more precisely defi ne such participation as cooperation in the uncontrolled and endless surveillance of citizens by the state or through a general accusation of disregard for the confidentiality of the spoken word. Insofar as the revocation of the certificate is to be based on a breach of trust, the seriousness of the possible breach fi rst must be determined using the criteria set out in the statute. Not every disclosure of private conversations and perceptions violates the principles of humanity. Reference to the uncontested oppression of the

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population by the Ministry for State Security does not replace evidence of individual guilt. cc. The revocation notice, which is also based on the suspicion that the complainants betrayed client confidences, also does not satisfy constitutional requirements. The conclusion that the fi rst complainant was in part responsible for the encroachments on the personal privacy [of the surveyed person] is not proved, but simply assumed due to the context. c. With regard to the second complainant, the decision of the Federal Court of Justice must also be overturned. Conduct that could justify the revocation of a practicing certificate according to the constitutional standards explained above has not been established. . . . [The second complainant had reported to the Stasi regularly over many years, beginning his collaboration at the age of twenty-five. He had fi led reports on the mood of his acquaintances and on a number of artists associated with a gallery in his home town. His reports, however, contained no incriminating information, resulted in no intrusion into any person’s intimate sphere of personality, and were obtained from sources of information shared with other individuals. What is more, there was no evidence that reprisals were taken against the persons upon which he fi led reports.] Undoubtedly, the second complainant was entangled in the East German system, but his conduct did not rise to the level of an obvious and intolerable abdication of his professional duties or the elementary facets of the constitutional state principle or the elementary principles of humanity such as would justify an accusation of guilt sufficient to draw into question his personal integrity and reliability. The complainant did pass on information about a par ticu lar circle of artists, but the simple fact that he collected information for the Ministry for State Security, without serious consequences or an intention to cause anyone harm, was nevertheless regarded as a violation of the principles of humanity and the constitutional state principle. But this was insufficient to support his disbarment. [The Court rejected, however, the constitutional complaint of a third disbarred lawyer who had represented another lawyer arrested and tried for an attempted illegal border crossing. The complainant had revealed to the Stasi the defense strategy he had worked out with his client during meetings in a predetention center. Here the Constitutional Court sustained the view of the Federal Court of Justice that the complainant’s disbarment was justified for his guilt in seriously breaching the legally protected fiduciary relationship between lawyer and client, thus violating, in the Court’s view, “the constitutional state principle.”]

∂ Judging the Judges. In circumstances similar to the Fink Case, some legal professionals had their licenses revoked owing to their records as East German criminal court

Economic Liberties and the Social State 711

judges. In Criminal Court Judge I Case (1997), for example, a lawyer’s practice certificate was revoked after it was discovered that, as an East German criminal court judge, he had sentenced some fi fteen defendants to long prison terms for their efforts to leave East Germany. A three-justice chamber of the Constitutional Court’s First Senate found that the Federal Court of Justice had applied the correct standard of review in upholding the decision of local judicial authorities to revoke the lawyer’s license. In following, as it must, the prevailing opinion of the full senate, the chamber acknowledged that “not every judge in the German Democratic Republic who was involved in criminal cases of a political nature should be excluded from the legal profession.”174 Here, however, the lawyer had been involved in cases of “flagrant injustice” as an East German judge and had not set forth in the original proceedings against him any mitigating circumstances that might have led his examiners to believe that he possessed the aptitude required of civil servants under Article 33 (2) of the Basic Law. In the Criminal Court Judge II Case, by contrast, the same three-justice chamber upheld the constitutional complaint of a woman who lost her notary’s license because, as an East German judge, she had been involved in the punishment of dissidents who sought to emigrate. But the record failed to show that she engaged in gross violations of human rights. Merely being part of the handling of political crimes in East Germany’s criminal justice system was insufficient to show that one lacked the aptitude to be a notary. Furthermore, the complainant’s record as a notary between 1990 and 1997 was beyond reproach. Accordingly, under the principle of proportionality, the standard applied to the revocation of the complainant’s license failed to meet the stringent criteria necessary to restrict the right to occupational liberty under Article 12 (2) of the Basic Law.175

conclusion Germany’s postwar economic system steered a middle way between unregulated market forces and a collectivized economy. The social market economy facilitated by the Basic Law permitted state intervention in the economy in the interest of the common good. The social market economy, by contrast, emphasized the importance of competition and the private ownership of the means of production. Accordingly, as the materials in this chapter have shown, Parliament has a large measure of discretion in regulating industry and directing the economy. Yet the rights of property and occupational liberties are fundamental freedoms under the Basic Law, and they have been protected with great vigor by the Federal Constitutional Court. Bound up as these rights are with the development of the human personality, they are crucial to the Basic Law’s scheme of ordered liberty. They may be limited by law but, as we have seen, only to an extent sufficient and necessary to achieve a compelling state interest. Given their objective character these rights may also require the state’s affi rmative protection. At the very least, as the Numerus Clausus I Case illustrates, the state may be obligated to establish the rules and conditions by which these rights or liberties can

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flourish. Finally, Germany’s reunification inaugurated a discrete chapter in the jurisprudence of property rights and occupational liberties. While the Constitutional Court has upheld all the political goals of the Unity Treaty, including restrictions on East German property settlements, the dissolution of East German institutions, and the dismissal of civil servants for human rights violations, it has rejected the harshest of these policies by protecting the most vulnerable among the citizens of the former East Germany and by raising the bar for the termination of employment contracts in the civil ser vice and other public institutions. In so doing, the Court has made a significant contribution to the integration of East Germans into the Basic Law’s political and legal system.

appendix a Federal Constitutional Court Justices 1951–2011 ∂ first senate: elected by bundestag justice

position

Seat 1 Höpker-Aschoff, Hermann † (1951–54) Wintrich, Josef † (1954–58) Müller, Gebhard † (1959–71) Benda, Ernst † (1971–83) Herzog, Roman (1983–87); (by Bundesrat 1987– 94) Haas, Evelyn (1994–2006) Schluckebier, Wilhelm (2006– )

President President President President Vice President President Justice Justice

Seat 2 Zweigert, Kurt † (1951–52) Heck, Karl † (1954–64) Böhmer, Werner (1965–83) Niedermaier, Franz † (1983–86) Seidl, Otto (1986– 95); (1995– 98) Papier, Hans-Jürgen (1998) (by Bundesrat 1998–2002) (by Bundesrat 2002–10) Paulus, Andreas (2010– )

Justice Justice Justice Justice Justice; Vice President Justice Vice President President Justice

Seat 3 Heiland, Gerhard † (1951–61) Haager, Karl † (1962–79) Heußner, Hermann † (1979–89) Kühling, Jürgen (1989–2001) Bryde, Brun-Otto (2001–11) Baer, Susanne (2011– )

Justice Justice Justice Justice Justice Justice

Seat 4 Scholtissek, Herbert † (1951–67) Brox, Hans † (1967–75) Katzenstein, Dietrich † (1975–87) Söllner, Alfred † (1987– 95) Steiner, Udo (1995–2007) Kirchhof, Ferdinand (2007–10); (2010– )

Justice Justice Justice Justice Justice Justice; Vice President

714 Chronological Chart of the Justices justice Seat 5 (seat abolished 1956) Zweigert, Konrad † (1951–56)

position Justice

first senate: elected by bundesrat justice

position

Seat 1 Stein, Erwin † (1951–71) Faller, Hans † (1971–83) Henschel, Johann Friedrich † (1983– 93); (1994– 95) Hömig, Dieter (1995–2006) Eichberger, Michael (2006– )

Justice Justice

Seat 2 Wessel, Franz † (1951–58) Berger, Hugo † (1959–67) Zeidler, Wolfgang (†) (1967–70) Simon, Helmut (1970–87) Dieterich, Thomas (1987– 94) Jaeger, Renate (1994–2004) Gaier, Reinhard (2004– )

Justice Justice Justice Justice Justice Justice Justice

Seat 3 Scheffler, Erna † (1951–63) Rupp-von Brünneck, Wiltraut † (1963–77) Niemeyer, Gisela † (1977–89) Seibert, Helga † (1989– 99) Hohmann-Dennhardt, Christine (1999–2011) Britz, Gabriele (2011– )

Justice Justice Justice Justice Justice Justice

Seat 4 Rittersprach, Theodor † (1951–75) Hesse, Konrad † (1975–87) Grimm, Dieter (1987– 99) Hoff mann-Riem, Wolfgang (1999–2008) Masing, Johannes (2008– )

Justice Justice Justice Justice Justice

Seat 5 (seat abolished 1956) Ellinghaus, Wilhelm † (1951–55) Kutscher, Hans † (1955–56)

Justice Justice

Seat 6 (seat abolished 1963) Drath, Martin † (1951–63)

Justice

Justice Justice Justice; Vice President

chronological chart of the justices 715

second senate: elected by bundestag justice

position

Seat 1 Rupp, Hans † (1951–75) Zeidler, Wolfgang † (1975–83); (1983–87) Franßen, Everhardt (1987– 91) Sommer, Bertold (1991–2003) Gerhardt, Michael (2003– )

Justice Vice President; President Justice Justice Justice

Seat 2 Hennecka, Anton † (1951–68) Rinck, Hans-Justus † (1968–86) Graßhof, Karin (1986– 98) Osterloh, Lerke (1998–2010) Hermanns, Monika (2010– )

Justice Justice Justice Justice Justice

Seat 3 Federer, Julius † (1951–67) von Schlabrendorff, Fabian † (1967–75) Niebler, Engelbert (1975–87) Kruis, Konrad (1987– 98) Broß, Siegfried (1998–2010) Huber, Peter Michael (2010– )

Justice Justice Justice Justice Justice Justice

Seat 4 Leibholz, Gerhard † (1951–71) Hirsch, Martin † (1971–81) Mahrenholz, Ernst Gottfried (1981–87) (1987–94) Limbach, Jutta (1994– 94) (1994–2002) Lübbe-Wolff, Gertrude (2002– )

Vice President; President Justice

Seat 5 (seat abolished 1956) Roediger, Conrad Frederick † (1951–56)

Justice

Justice Justice Justice; Vice President

716 chronological chart of the justices

second senate: elected by bundesRAt justice

position

Seat 1 Katz, Rudolf † (1951–61) Wagner, Friedrich † (1961–67) Seuffert, Walter will helm † (1967–75) Steinberger, Helmut (1975–87) Kirchhof, Paul (1987– 99) Di Fabio, Udo (1999–2011) Müller, Peter (2011– )

Vice President Vice President Vice President Justice Justice Justice Justice

Seat 2 Geiger, Willi † (1951–77) Träger, Ernst (1977–89) Winter, Klaus † (1989–2001) Mellinghoff, Rudolf (2001–11) Kessal-Wulf, Sibylle (2011– )

Justice Justice Justice Justice Justice

Seat 3 Fröhlich, Georg † (1951–56) Kutscher, Hans † (1956–70) Wand, Walter Rudi † (1970–83) Klein, Hans Hugo (1983– 95) Jentsch, Hans-Joachim (1996–2005) Landau, Herbert (2005– )

Justice Justice Justice Justice Justice Justice

Seat 4 Leussner, Carl † (1951–52) Schunck, Egon † (1952–63) Geller, Gregor † (1963–71) Rottmann, Joachim † (1971–83) Böckenförde, Ernst-Wolfgang (1983– 95) Hassemer, Winfried (1996–2002) (by Bundestag 2002–8) Voßkuhle, Andreas (2008–10) (by Bundestag 2010– )

Justice Justice Justice Justice Justice Justice Vice President Vice President President

Seat 5 (seat abolished 1956) Wolff, Bernhard † (1951–56)

Justice

Seat 6 (seat abolished 1963) Friesenhahn, Ernst † (1954–63)

Justice

appendix b Biographical Sketches federal constitutional court presidents and vice presidents (1951– 2012)

∂ presidents hermann höpker-aschoff was the fi rst president of the Federal Constitutional Court, serving in this capacity from 1951 until his death on 15 January 1954. As was customary early on, the president was also the presiding judge of the First Senate. Born the son of a distinguished Prussian family in 1883, he spent most of his life in public ser vice, fi rst as a member of the Prussian legislature and later as Prussia’s minister of fi nance. As an active member of the German Democratic Party, he was elected to the Imperial Parliament (Reichstag) in 1930, by which time he had achieved national prominence as an authority on fiscal and monetary policy. He was opposed to federalism as it had developed during the Weimar Republic and was also known for his advocacy of a strong central government and a unitary state. But he was also a strong democrat and withdrew from public life when the Nazis came to power in 1933. He returned to public ser vice in 1946 as the fi nance minister of North Rhine– Westphalia. He was also a member of the Parliamentary Council (constitutional convention), serving as chair of its important fi nance committee, in which capacity he helped to author most of the fiscal provisions of the Basic Law. Later, as a member of the Free Democratic Party, he was elected to the fi rst Federal Parliament (Bundestag) (1949–53) where he presided over the Committee on Finance and Taxation. Widely respected for his intellectual capacity, disciplined habits, and impeccable political credentials, he was known for the strong leadership and prestige he brought to the Court during its formative years.

josef marquard wintrich was the second president of the Federal Constitutional Court. Like Höpker-Aschoff, he died in office after four years of ser vice (1954–58). He was born in Bavaria in 1891. Devoutly Catholic, intensely intellectual, and a man of high culture and refi nement, he was one of Germany’s most respected jurists. He began his early career as a judge and public prosecutor in Munich and then taught church law at the Bavarian Academy of Public Administration. For a brief time he joined the Bavarian People’s Party. An opponent of Nazism, he left public office in 1933 and never again engaged in politics. In 1947 he received an appointment as judge of Munich’s Higher Regional Court (Oberlandesgericht), becoming its president in 1953. During this time he was also a judge of Bavaria’s Constitutional Court, which he helped to create and then to mold into one of West Germany’s leading Land constitutional tribunals. An antipositivist in legal theory, he played a major role in reviving the natural-law tradition in postwar Germany. He brought to the Federal Constitutional Court a fi rm resolve to root its jurisprudence in the value order undergirding the Basic Law and the concept of human dignity on which it is based.

718 Biogr aphical Sketches of Pr esidents and Vice Pr esidents gebhard müller , born in 1900, was elected president of the Federal Constitutional Court in 1958 shortly after Wintrich’s death. The son of a school teacher, he studied theology before switching to law and economics at the Universities of Tübingen and Berlin. During the Weimar Republic he was active in the Catholic Center Party. After earning his doctorate in law in 1929, he entered the judiciary in Württemberg, where he remained as a judge, despite his refusal to join the Nazi party, until 1944. In that year, at the age of forty-five, he was inducted into military ser vice for the third time in his life. Upon release from a French prisoner-of-war camp in 1945 he returned home to take a leading role in the political reconstruction of southwestern Germany and the founding there of the cdu. The French military government entrusted him with the task of rebuilding the court system and reforming the administration of justice in Württemberg-Hohenzollern, a task that propelled him into heading the Land’s Finance and Justice Ministries between 1948 and 1952. He was also a close associate of leading members of the Parliamentary Council and the principal force behind the reorga nization of three southwestern states into the single and politically strong Christian Democratic Land of Baden-Württemberg, serving as its minister-president between 1953 and 1958.

ernst benda was the fourth president of the Federal Constitutional Court, serving from 1971 to 1983. A native of Berlin, he was born in 1925. Immediately after the war, having served in the German navy and merchant fleet, he embarked upon the study of law in Berlin, where he was active in the student opposition to the Communist takeover of Humboldt University. Having lost that battle, he continued his legal studies and student activism at the newly founded Free University of Berlin, an experience interrupted by a year in the United States at the University of Wisconsin, where he studied journalism and political science. Upon returning to Berlin he fi nished his legal studies and plunged into politics as a young member of the Christian Democratic Union. His political rise was meteoric. He served in Berlin’s senate until his election to the Bundestag in 1957. By the mid-1960s he was chairman of the Bundestag’s important Committee on Legal Affairs; soon thereafter, he became the state secretary in the Interior Ministry, in which capacity he played a central role in draft ing the highly controversial emergency laws of 1968. From April 1968 to October 1969 he was minister of the interior within West Germany’s “Grand Coalition” government. As president of the Federal Constitutional Court and “chief judge” of the First Senate, he presided over many of the Court’s most notable decisions, including the famous Abortion I Case of 1975.

wolfgang zeidler , the fi ft h president of the Federal Constitutional Court, was born in 1924. He was a native of Hamburg. After fi nishing his legal studies in 1953, he entered the judiciary and from that point forward his life was largely interwoven with that of the Constitutional Court. In 1955, at the age of thirty-one, he embarked upon a three-year clerkship with Justice Erna Scheffler, the fi rst woman appointee to the Federal Constitutional Court, after which he spent a year as a research fellow in the International Legal Studies Center of the Harvard Law School. Returning to Hamburg, he rose rapidly in the civil ser vice, becoming the city-state’s chief administrative head in 1966. As a Social Democrat and protégé of Helmut Schmidt, he was elected one year later as a justice of the Constitutional Court’s First Senate. He resigned in 1970 to accept the presidency of the Federal Administrative Court in Berlin. Five years later he was again elected to the Federal Constitutional Court, this time as its vice president and presiding judge of the Second Senate. By prearrangement he succeeded to the Court’s presidency in 1983, serving as its president until the expiration of his term in 1987. Shortly after retiring from the Court, and with the fi nancial support of the Eu ropean

Biogr aphical Sketches of pr esidents and vice pr esidents 719 Community, he had planned to head a major institute on comparative constitutional law at Bologna University. He was already in Bologna to begin this innovative project when on 31 December 1987, at the age of sixty-three and only one month after his judicial term expired, he died in a tragic mountain-climbing accident. Sadly, the Bologna project died with him.

roman herzog , the sixth president of the Federal Constitutional Court, was born in Bavaria in 1934. The son of a museum director, he belonged to a prominent Protestant family. He spent the years 1953 to 1966 at the University of Munich, fi rst as a law student and later as a research assistant and instructor in constitutional law. In 1966 he became professor of constitutional law and politics at the Free University of Berlin. In 1969 he accepted an appointment in Speyer’s distinguished College of Public Administration. From there he entered public ser vice under the tutelage of Helmut Kohl (cdu)—later chancellor of Germany— who appointed him to represent Rhineland-Palatinate in the West German capital of Bonn. In 1978 he became Baden-Württemberg’s minister of education and sports. Two years later he became the Land’s minister of the interior, all the while continuing his collaboration with Theodor Maunz—the dean of German constitutional scholars—in coauthoring updated editions of one of West Germany’s leading commentaries on the Basic Law. For many years he was active in the Synod of the Evangelical Lutheran Church as well as a member of the cdu/csu’s Evangelical Working Group. With the backing of Chancellor Kohl he was elected vice president of the Federal Constitutional Court in 1983 with the understanding that he would be selected as president upon the expiration of President Zeidler’s term. He resigned as the Court’s president in 1994 to run for the presidency of the Federal Republic, to which he was subsequently elected in 1995.

jutta limbach succeeded Roman Herzog as president of the Federal Constitutional Court in 1994. She had been elected as the Court’s vice president earlier in the same year and was the fi rst woman to occupy both positions. Born in 1934, she studied law in Berlin and Freiburg. After graduating in 1966 with a doctorate in law from the Free University of Berlin, she went on to write her habilitation thesis and was appointed professor of commercial law and legal sociology at the Free University. Active in the Social Democratic Party, she served as the head of Berlin’s Justice Ministry from 1989 to 1994. Earlier she had specialized in family and women’s issues and served as an advisor to the Federal Ministry of Family Affairs. As Berlin’s senator for justice during Germany’s reunification, she played a central role in dismantling East Berlin’s judicial system and vetting the qualifications of its judges and lawyers. As the Court’s president she was also an influential player in furthering the rights of women and the family; in addition, she frequently spoke and wrote on the relationship between law and politics. Having reached the retirement age of sixty-eight, she left the Court’s presidency in 2002 to take up the presidency of the Goethe Institute. In 2004 she was repeatedly hailed as a possible candidate to succeed Johannes Rau as president of the Federal Republic. hans-jürgen papier was elected president of the Federal Constitutional Court and presiding judge of the First Senate in April 2002 at fi ft y-nine years of age. He had been elected as the First Senate’s vice president in February 1998 after a distinguished legal career, fi rst as professor of law at the University of Bielefeld (1974– 91) and then as judge of the Higher Administrative Court of North Rhine–Westphalia (1977–87). Between 1991 and 1998 he served as the honorary chair of the Independent Commission of Inquiry into the Assets of East German Political Parties and Mass Organizations. He also served as professor of German

720 Biogr aphical Sketches of pr esidents and vice pr esidents and Bavarian constitutional and administrative law at the University of Munich and as director of legal studies at the Public Administration Academy of Ostwestfalen-Lippe. From 1994 to 1998 he was also a member of the Federal Republic’s Commission on the Supplementary Pensions and Compensation Pensions Acts providing respectively for the suspension of pensions for former members of East Germany’s secret ser vice and compensation for the victims of National Socialist injustice.

andreas vo ß kuhle , after a distinguished academic career, was elected vice president of the Federal Constitutional Court and presiding judge of the Second Senate in May 2008. While continuing to preside over the Second Senate and still in his late forties, he was elected president in 2010. After passing his fi rst state law examination in 1989, he received the University of Munich’s Faculty Award for his doctoral dissertation on legal remedies within the meaning of Article 19 (4) of the Basic Law. He passed his second state law examination in 1993 while serving as a senior research assistant in administrative law at Augsburg University. In 1997, having fi nished his habilitation thesis at the University of Augsburg, he was appointed professor and director of the Institute of Public Law and Legal Philosophy at the University of Freiburg. From 2000 to 2002 he served as the Faculty of Law’s dean of academic affairs and dean of the Law Faculty between 2004 and 2006. He was elected rector of Freiburg University in July of 2007, one year before his election to the Federal Constitutional Court.

vice presidents rudolf katz was the fi rst vice president and presiding judge of the Federal Constitutional Court’s Second Senate. Born on 30 September 1895 in Pomerania, he served as an officer in the German army during World War I, after which he entered the practice of law in Hamburg-Altona. He was politically active in the Social Democratic Party and in 1929 headed the party in Hamburg’s city council. Exhibiting enormous courage, he defended many communists in German courts late in the Weimar period. Jewish by birth and deeply religious (he was the son of a cantor), he left Germany in 1933 and went to Nanking as an advisor to the League of Nations. In 1935 he arrived in New York, eventually becoming a U.S. citizen. In the following years he lectured at Columbia University, edited Die Neue Volkszeitung (a New York German-language newspaper), and served as a member of the German labor delegation affi liated with the American Federation of Labor. He returned to Germany in 1946, renewed his contacts with spd leaders, regained his German nationality, became minister of justice in Schleswig-Holstein and, as a member of the Parliamentary Council, was one of the fathers of the Basic Law. Like Höpker-Aschoff, he was a fitting choice to lead the Court during its formative years. Upon his election as vice president, he renounced his spd membership and skillfully led the Second Senate until his death in 1961. While a judicial pragmatist, he was uncompromising—again like Höpker-Aschoff—in his defense of the Constitutional Court in West Germany’s new political system and had no qualms about responding publicly to the Court’s critics, even when they turned out to be former spd colleagues.

friedrich wilhelm wagner was elected to succeed Rudolf Katz as vice president and presiding judge of the Second Senate on 19 December 1961. Born in 1894, he studied law in Tübingen, Munich, Berlin, and Heidelberg. He practiced law in Ludwigshafen from 1930 to

Biogr aphical Sketches of pr esidents and vice pr esidents 721 1933 while serving as an spd member of the Reichstag. After being imprisoned and then released by the Nazis in March of 1933 he fled Germany, spending the next fourteen years in France and the United States before returning to Germany in 1947 to resume his law practice and to defend one of the directors of I.G. Farben in the Nuremberg War Crimes Trials. He was elected to Rhineland-Pfalz’s legislature in 1947. Along with Rudolf Katz, he was an spd delegate to the Parliamentary Council, where he presided over one of its leading committees. Active in the legal profession, he served as the president of Rhineland-Pfalz’s bar association for six years and later as president of the Land’s Disciplinary Court for Attorneys. He was a member of the Bundestag between 1949 and 1961 and presided over its Standing Committee on Patent and Commercial Law. He was also a member of the Bundestag’s Judicial Selection Committee, the body charged with electing one-half of the members of the Federal Constitutional Court.

walter seuffert became the third vice president of the Federal Constitutional Court in 1967. He was born in Rahway, New Jersey, on 4 February 1907, but moved back to Germany with his family in 1911. He studied law and political science in Heidelberg, Frankfurt (Main), and Munich. Having passed the bar in 1932, he established his law practice in Munich. He specialized in tax law while working as an assistant in the Institute for Constitutional and Administrative Law at the University of Munich. He was imprisoned for a short time in 1940 and then drafted into military ser vice. Late in the war, he was imprisoned again, this time by the French, and held in captivity until the end of 1946, at which time he returned to his law practice in Munich. Early on he served as an advisor to the newly established Bavarian chancellory office. He was also a member of the Economic Council for the Allied zones of occupation. Active in the spd, he was elected to the fi rst Bundestag in 1949 and remained a member of that body until his election as vice president of the Constitutional Court. Between 1964 and 1967 he was a member of the Eu ropean Parliament. wolfgang zeidler (See entry under Presidents) roman herzog (See entry under Presidents) ernst gottfried mahrenholz , the sixth vice president and presiding justice of the Second Senate, was born in 1929, the son of a theology professor and a high-ranking layman in the Evangelical Church. Variously described as “brooding,” “charming,” “intellectually rigorous,” and “extremely gifted,” he studied law at Göttingen University under the aegis of his renowned Doctorvater, Professor Gerhard Leibholz, who at the time was one of the Federal Constitutional Court’s most distinguished sitting justices. He served as a special assistant to the minister-president of Lower Saxony from 1965 to 1971, specializing in media and church law. A practicing Evangelical Christian, he was knighted by Pope Paul VI for his work in concluding a new concordat with the Vatican. Also a member of the spd, he headed the North German radio-television station and served as Lower Saxony’s minister of culture. With the support of the spd he was elected a justice of the Second Senate in 1981 and later, in 1987, its vice president. Known for his political liberalism, he dissented frequently from the judgments of his colleagues on the Second Senate, having written separate opinions in several landmark cases involving the rights of minority parties and the stationing of cruise missiles on West German territory.

722 Biogr aphical Sketches of pr esidents and vice pr esidents jutta limbach (See entry under Presidents) johann friedrich henschel , born in 1931, was elected a justice of the Federal Constitutional Court’s First Senate in 1983 and vice president in 1994. He presided over the First Senate as vice president until the expiration of his twelve-year term one year later in 1995. After his admission to the bar, he embarked upon a legal career in Lower Saxony. He started his career as a judge on Hannover’s Regional Court (Landgericht) but resigned three years later, in 1968, to practice law. In 1983 he was licensed to practice before the Federal Court of Justice (Bundesgerichtshof) in Karlsruhe, and in the same year was elected a justice of the Federal Constitutional Court. (He was one of the few Constitutional Court justices recruited from the private practice of law.) In 1987 he received an appointment as an honorary professor of law at the University of Göttingen. During his time on the Court he played a central role in cases involving religious freedom, property rights, and school law. As vice president he shepherded the highly controversial Classroom Crucifi x II Case through the Second Senate, the result of which he publicly and forthrightly defended against its critics. After retiring from the Court in 1995, he resumed his practice before the Federal Court of Justice while turning back to his longtime literary and operatic interests.

otto seidl was elected vice president of the Federal Constitutional Court in 1995, in which capacity he served until the expiration of his term in 1998. Earlier, in 1986, he had been elected a justice of the Court’s First Senate at the age of fi ft y-five. After completing his legal studies at the University of Munich, he was active, variously, as a prosecutor and then a judge of Munich’s Higher Regional Court while also serving as a member of Bavaria’s distinguished Constitutional Court. In 1978 he was elected a judge of the Federal Court of Justice, a position he held until his election to the Federal Constitutional Court. While on the Court he served as the senate’s reporter (Berichterstatter) in cases involving the expropriation of property, environmental law, copyright and patent law, and trademarks. He is also known for his dissent, along with Justices Evelyn Haas and Alfred Söllner, from the senate’s famous Classroom Crucifi x II Case. In 1998, after his departure from the Court, Bavaria and the Federal Republic conferred upon him its highest honors. hans-jürgen papier (See entry under Presidents) winfried hassemer , born in 1940 in Gau-Algesheim, was elected a justice of the Federal Constitutional Court’s Second Senate in 1996 and vice president in 2002. (He was an spd nominee.) After passing his fi rst state bar examination, he served as a research assistant in the Institute of Law and Social Philosophy at the University of Saarland, during which time he held a prestigious scholarship from the Catholic Cusanus Society. In 1972, after passing his second state examination, and having fi nished his habilitation thesis in criminal law, he received an appointment as professor of legal theory and criminal law at the University of Frankfurt (Main). From 1991 to 1996, he served as the Ombudsman of Hesse’s Public Data Protection Office. Unsurprisingly, he was the Second Senate’s specialist on criminal law. Several well-known data-protection cases, along with the famous AWACS II Temporary Injunction Case of 2003, were decided under his vice presidency. He holds honorary doctoral degrees from several foreign universities, among them the University of Thessalonika (Greece), the Federal University of Rio de Janeiro (Brazil), and the University of Seville (Spain). He was made an honorary professor of law at the Renmin University of China in 2005.

Biogr aphical Sketches of pr esidents and vice pr esidents 723 andreas vo ß kuhle (See entry under Presidents) ferdinand kirchhof was elected a justice of the Federal Constitutional Court’s First Senate in October 2007 and vice president in March 2010. Born in 1950, he studied law at Heidelberg University following two years of military ser vice. He passed his fi rst and second state bar examinations respectively in 1975 and 1978. After earning his doctoral degree in 1981 and fi nishing his habilitation thesis at Speyer in 1985, he received teaching assignments at the Universities of Saarbrücken, Munich, Speyer, and Tübingen. In 1989 he was appointed dean of Tübingen University’s Faculty of Law. He was awarded the European Union’s JeanMonnet Chair for European Fiscal Law in 1993 and between 1999 and 2001 was vice rector of the University of Tübingen. In 2003 he was an elected member of the important Commission on the Reform of the Federal System of Government established by the Bundestag and the Federal Council of States (Bundesrat). From 2003 until his election to the Federal Constitutional Court, he was a judge of Baden-Württemberg’s Constitutional Court.

Notes ∂ chapter one 1. For a general discussion of centralized and decentralized systems of judicial review, see Mauro Cappelletti & William Cohen, Comparative Constitutional Law (Indianapolis: BobbsMerrill, 1979), 73– 90. See also Mauro Cappelletti, Judicial Review in Comparative Perspective (Oxford: Clarendon Press, 1989), 136–46. 2. Gerhard Leibholz, Politics and Law (Leiden: A. W. Sythoff, 1965), 329. 3. For an excellent overview of the German judicial system, see Wolfgang Heyde, Justice and the Law in the Federal Republic of Germany (Heidelberg: C. F. Müller Juristischer Verlag, 1994), 38–65. See also Nigel Foster & Satish Sule, German Legal System and Laws, 3d ed. (Oxford: Oxford University Press, 2002), 66–80. 4. See Bundesministerium der Justiz, Zahl der Richter, Staatsanwälte und Vertreter des öffentlichen Interesses in der Rechtspflege der Bundesrepublik Deutschland am 31. Dezember 2008 (Stand 30.10.2009), available at www.bmj.de. It is interesting to consider the difference in the size of the German and American judiciaries: “In 1998 there were 20,969 state and federal judges in Germany. Assuming a population of 85 million, there is nearly one judge for every 4,000 residents of Germany. By comparison, the United States, in 1998, claimed 28,172 state and federal judges. With a population of 284 million, even in the reputedly over-litigious American society, there is only one judge for every 10,000 Americans.” Russell Miller, “Judicial Selection Controversy at the Federal Court of Justice,” German Law Journal 2/8 (May 1, 2001): ¶ 19, available at www.germanlawjournal.com/article.php?id=69. 5. “In spite of the dual Bar/Bench possibilities that result from German legal training, the formal aim of the German legal education system remains qualification for ser vice on the Bench (Befähigung zum Richteramt).” Annette Keilmann, “The Einheitsjurist: A German Phenomenon,” German Law Journal 7 (2006): 293, 294, available at www.germanlawjournal .com/pdf/Vol07No03/PDF_Vol _07_No_03_293-312_Developments_Keilmann.pdf. 6. See Arnold J. Heidenheimer & Donald P. Kommers, The Governments of Germany, 4th ed. (New York: Thomas Y. Crowell, 1975), 264; Dieter Leuze, “Richterliche Unabhängigkeit,” Der Öffentliche Dienst 58 (2005): 78–83; Hans-Jürgen Papier, “Die richterliche Unabhängigkeit und ihre Schranken,” Neue Juristische Wochenschrift 54 (2001): 1089– 98. 7. For a thorough consideration of the complicity of the German judiciary in the Nazi tyranny, a fact that fueled postwar German skepticism of the judiciary, see Ingo Müller, Hitler’s Justice, trans. Deborah Lucas Schneider (Cambridge: Harvard University Press, 1991). See also Manfred Krohn, Die deutsche Justiz im Urteil der Nationalsozialisten 1920–1933 (Frankfurt am Main: Peter Lang GmbH, 1989), 229–86. 8. See Rupert Emerson, State and Society in Modern Germany (New Haven: Yale University Press, 1928); Hans Fenske, Deutsche Verfassungsgeschichte-vom Norddeutschen Bund bis heute (Berlin: Wissenschaft sverlag Volker Spiess, 1993), 9–44, 104–18; Adolf Laufs, “Ein Jahrhundert wird besichtigt-Rechtsentwicklung in Deutschland: 1900 bis 1999,” Juristische Schulung 40 (2000): 1–10. 9. The fi rst major scholarly study of constitutional and judicial review in Germany appears to be Gutachten der Juristenfakultäten in Heidelberg, Jena, und Tübingen: Die Hannoversche

726 Notes to Chapter One Verfassungsfrage, ed. Friedrich Dahlmann (Jena: Friedrich Frommann, 1839). Dahlmann, a liberal intellectual who played a major role in the constitutional assembly of 1849, was dismissed from his professorship at Göttingen University for defending Hanover’s constitution. In defense of his position Dahlmann enlisted several university law professors to write briefs in support of constitutional government in Hanover. These were published in the cited work. In the course of their briefs they traced the history of constitutional review in Germany. We learn among other things that the Court of the Imperial Chamber not only deprived the prince of Mecklenburg of his throne for constitutional violations but also on several occasions reviewed the constitutionality of state statutes. For a general treatment of constitutional review in German history, see also Robert C. Binkley, “The Holy Roman Empire versus the United States: Patterns for Constitution-Making in Central Eu rope,” in The Constitution Reconsidered, ed. Conyers Read (New York: Columbia University Press, 1938), 274; Otto Kimminich, Deutsche Verfassungsgeschichte, 2d ed. (Baden-Baden: Nomos Verlagsgesellschaft , 1987), 193– 98; Die Grundrechte, eds. Karl August Bettermann, Hans Carl Nipperdey & Ulrich Schermer (Berlin: Duncker and Humblot, 1967), 3:645–58. 10. Modern German constitutionalism began with the establishment of the German Confederation of 1815, created by the Congress of Vienna nine years after Napoleon’s invading armies had demolished the loose alliance known as the Holy Roman Empire of the German Nation. The fusion of kingdoms and principalities into a more compact confederation— consisting now of thirty-four sovereign states and four free cities—set the stage for a century of constitution making in Germany at both state and national levels. It also marked the beginning of a century-long confl ict between the monarchical and republican traditions. One of the best English-language treatments of German constitutionalism since 1800 is John A. Hawgood, Modern Constitutions Since 1787 (London: Macmillan, 1939), 111–26, 197–214, 230– 47, 346–65. 11. Such confl icts are currently resolved by the Federal Constitutional Court under Article 93 (1) [3] and [4] of the Basic Law. These provisions trace their nineteenth-century roots to Article II of the Vienna Constitution (1815) and Article 61 of the Vienna Accords (Schlussakte) of 1820. Article II obligated the states (i.e., the sovereign principalities and free cities) to submit their constitutional disputes to the Imperial (Reich) Assembly for peaceful resolution; Article 61 authorized the states to submit even their internal constitutional confl icts (e.g., between the princes and their estates) to the same body if they could not be resolved within their borders. See “Deutsche Bundesakte, Article II, and Wiener Schlussakte, Article 61,” in Dokumente zur Deutschen Verfassungsgeschichte, ed. Ernst R. Huber (Stuttgart: Verlag W. Kohlhammer, 1978), 1:87, 99. Almost identical provisions appear in the national constitutions of 1849 (Article 126 [Frankfurt Constitution]), 1867 (Article 76 [North German Confederation]), 1871 (Articles 19 and 76 [Imperial Constitution]), and 1919 (Article 19 [Weimar Constitution]). English translations of the 1849, 1871, and 1919 constitutions appear in The Democratic Tradition: Four German Constitutions, ed. Einar M. Hucko (Leamington Spa, England: Berg, 1987). 12. When deciding federal-state disputes over the administration of national law, the State High Court consisted of a special seven-judge panel composed of the president and three additional judges of the Imperial Court of Justice chosen by the Court as a whole, and one judge each elected by the Prussian, Bavarian, and Saxon administrative courts of appeal. For the settlement of cases perceived as more political in character, the State High Court also consisted of a seven-person bench headed by the president of the Imperial Court of Justice, but Parliament chose four of its members. When presiding over impeachment cases, the most political of all, it consisted of a much larger panel of fi fteen judges with even wider public

Notes to Chapter One 727 representation. See Reichsgesetzblatt I (1921): 907, §§ 3, 18, and 31. See also Carl Hänisch, Der Staatsgerichtshof als Gericht für Anklagen gegen Reichsminister (Halle: Buchdruck Anhaltische Rundschau, 1927), 3384. 13. Hideo Wada, “Continental Systems of Judicial Review,” Jahrbuch des Öffentlichen Rechts 31 (1982): 35. See Mauro Cappelletti & John C. Adams, “Judicial Review of Legislation: European Antecedents and Adaptations,” Harvard Law Review 79 (1966): 1207–24. 14. Franz W. Jerusalem, Die Staatsgerichtsbarkeit (Tübingen: J. C. B. Mohr [Paul Siebeck], 1930), 50–51. See Mahendra P. Singh, German Administrative Law (Berlin: Springer Verlag, 1985), 8–12. 15. By the second half of the nineteenth century, German legal scholars accepted a limited form of judicial review. Then as now they distinguished sharply between a law’s procedural and substantive constitutionality. In their view, courts might refuse to enforce laws that had not been enacted and promulgated in strict accordance with procedures laid down in the constitution, but they were not authorized to invalidate laws for any substantive reason. For a general historical treatment of judicial review in Germany, see Christoph Gusy, Richterliches Prüfungsrecht: Eine verfassungsgeschichtliche Untersuchung (Berlin: Duncker and Humblot, 1985); Harold von Konschegg, Ursprung und Wandlung des richterlichen Prüfungsrechts in Deutschland im 19. Jahrhundert (Borna-Leipzig: Großbetrieb für Dissertationsdruck von Robert Noske, 1936), 42–65. 16. Robert von Mohl, Staatsrecht, Völkerrecht und Politik (Tübingen: Buchhandlung Laupp, 1860), 1:66– 95. 17. The one recorded instance of judicial review during this period was greeted as a reckless act. In overturning a decision of the Hanseatic Court of Appeals (see Johann A. Seuffert’s Archiv für Entscheidungen der Obersten Gerichte [Munich: Rudolf Odenbourg, 1876], 32:129– 31) that declared a local tax law unconstitutional, the Imperial Court of Justice reasserted the conventional doctrine: “The constitutional provision that well-acquired rights must not be injured is to be understood only as a rule for the legislative power itself to interpret and does not signify that a command given by the legislative power should be disregarded by the judge because [he believes] it injures well-acquired rights.” (See Decision of February 7, 1883, 9 RGZ 235. Th is decision, K. v. Dyke Board of Niedervieland, is translated in Brinton Coxe, An Essay on Judicial Power and Unconstitutional Legislation [Philadelphia: Kay and Brother, 1893].) In 1910 Otto von Gierke remarked: “It is a fundamental deficiency of our public law that there exists no protection of constitutional principles by an independent court of justice.” Otto von Gierke, “German Constitutional Law in Its Relation to the American Constitution,” Harvard Law Review 23 (1909–10): 284. 18. The “free law” movement, led by Rudolf von Ihering, Josef Kohler, Ernst Zitelmann, Eugen Ehrlich, Ernst Fuchs, and above all, Hermann Kantorowicz and Gustav Radbruch, was an assault on philological and deductive methods of judicial reasoning that foreshadowed the legal realist movement in the United States. These scholars were skeptical of a jurisprudence founded exclusively on the formal rules of code law. Arguing in favor of judicial creativity, they stressed the importance of a judicial process informed by knowledge of society and economics as well as formal legal rules. The free law, or realist, movement started in Germany around 1900, reached its zenith prior to World War I, and then ebbed late in the Weimar Republic. For discussions of the impact of the free law school in Germany, see Albert S. Fouilkes, “On the German Free Law School (Freirechtsschule),” Archiv für Rechtsund Sozialphilosophie 55 (1969): 367–417; Frank Kantorowicz Carter, “Gustav Radbruch and Hermann Kantorowicz: Two Friends and a Book—Reflections on Gnaeus Flavius’ Der Kampf um die Rechtswissenschaft (1906),” German Law Journal 7 (2006): 657, available at

728 Notes to Chapter One www.germanlawjournal .com/pdf/Vol07No07/PDF_Vol _07_No_07_657-700_Articles _Carter.pdf. See also Karlheinz Muscheler, Relativismus und Freirecht—ein Versuch über Hermann Kantorwicz (Heidelberg: C. F. Müller Juristischer Verlag, 1984), 85–151; Joachim Schmidt, Das “Prinzipielle” in der Freirechtsbewegung—Studien zum Frei-Recht, seiner Methode und seiner Quelle (Bonn: H. Bouvier u. Co. Verlag, 1986), 79–136; Klaus Adomeit, “Gustav Radbruch-zum 50. Todestag-geboren 21.11.1878 in Lübeck, gestorben 23.11.1949 in Heidelberg,” Neue Juristische Wochenschrift 52 (1999): 3465–69; Laufs, supra note 8. For a discussion of the influence of the “free law” movement on American legal realism, see James E. Herget & Stephen Wallace, “The German Free Law Movement as the Source of American Legal Realism,” Virginia Law Review 73 (1987): 399–439. Kantorowicz’s free-law manifesto was published for the first time in an English-language translation as Gnavius Flavius & Hermann Kantorowicz (Cory Merrill trans.), “The Battle for Legal Science,” German Law Journal 12 (2011): 2005, available at www.germanlawjournal.com/pdfs/Vol12-No11/PDF_Vol _12_No _11_2005-2030_Merrill%20FINAL .pdf. 19. Legal scholars were deeply split over the question of judicial review. Gerhard Anschütz, Weimar’s leading constitutional authority, maintained that courts had no power to examine the constitutionality of laws. Under Article 70 of the Weimar Constitution, according to Anschütz, only the president of the republic had the authority to review the constitutionality of Reich legislation, and even he was limited to reviewing the constitutionality of laws on procedural grounds. See Gerhard Anschütz, Die Verfassung des deutschen Reichs (Berlin: Verlag von Georg Stilke, 1932), 367. Anschütz was joined in this view by other authoritative commentators such as Walter Jellinek, Richard Thoma, Julius Hatschek, Friedreich Giese, Gustav Radbruch, Franz W. Jerusalem, and Carl Schmitt. Equally strong voices in support of judicial review were Hans Fritz Abraham, Hans Nawiasky, Fritz Potzsch, Eduard Hubrich, Rudolf Stammer, and Heinrich Triepel. Jellinek, incidentally, reported that a majority on the constitutional committee in the Weimar Constituent Assembly that considered judicial review was against it. See Walter Jellinek, “Verfassungswidrige Reichsgesetze,” Deutsche Juristenzeitung 26 (1921): 753. 20. See Carl J. Friedrich, “The Issue of Judicial Review in Germany,” Political Science Quarterly 43 (1928): 190. Hugo Preuss was a liberal democrat and one of the fathers of the Weimar Constitution. According to Friedrich, Preuss and his colleagues in the National Assembly did not fully understand the implications of judicial review: “Careful consideration of the various arguments would seem to indicate that there existed no very clear idea as to just what was to be understood by judicial review. There is little doubt that the special significance of the question was realized by only a few in the committee.” Ibid., at 190– 91. For a good treatment in English of judicial review as practiced in the Weimar Republic, see J. J. Lenoir, “Judicial Review in Germany under the Weimar Constitution,” Tulane Law Review 14 (1940): 361–83. See also Peter C. Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law (Durham, N.C.: Duke University Press, 1997); Michael Stolleis (Thomas Dunlap trans.), A History of Public Law in German 1914–1945 (Oxford: Oxford University Press, 2004). 21. 5 Sammlung der Entscheidungen und Gutachten des Reichsfinanzhofs 233–36 (1921); Decision of December 15, 1921, 56 Entscheidungen des Reichsgerichts in Strafsachen 179– 91, 182 (1922); Decision of October 21, 1924, 4 Entscheidungen des Reichsversorgungsgerichts 168 (1925). 22. See “Erklärung des Richtervereins beim Reichsgericht zur Aufwertungsfrage,” in Huber, supra note 11, at 3:383–84; Wolfgang Hoff mann-Riem, “Two Hundred Years of Marbury v. Madison: The Struggle for Judicial Review of Constitutional Questions in the United

Notes to Chapter One 729 States and Europe,” German Law Journal 5 (2004): 685, 687–88, and 696, available at www. germanlawjournal .com/pdf/Vol05No06/PDF_Vol _05 _No_06_685-701 _EU_Hoff mann -Riem.pdf. 23. 107 RGZ 377–81, 379 (1924). 24. See Bavarian Constitution of 1919, Article 72, and Schamburg-Lippe Constitution of 1922, Article 47, in Otto Ruthenberg, Verfassungsgesetze des deutschen Reichs und der deutschen Länder (Berlin: Verlag von Franz Vahlen, 1926), 78–79, 204. The willingness of judges to nullify laws reflected the judiciary’s distrust of, even opposition to, democracy. They often asserted the power of judicial review, as the U.S. Supreme Court was doing at about the same time, when legislation threatened property rights. Walter C. Simon, president of the Imperial Court of Justice from 1922 to 1929 and the regular judiciary’s chief spokesman on behalf of the American doctrine of judicial review, betrayed his own feelings toward the Republic when he spoke of the need to check “the overbearing power of parliamentarianism and the secret influence of ministerial bureaucracy.” Th is check, he insisted, would never come about “if the Supreme Court is not perfectly independent and on the same footing with both the other powers of the state. Until now,” he lamented, “the Reichsgerichtshof has not found a Chief Justice Marshall.” Walter Simon, “Relation of the German Judiciary to the Executive and Legislative Branches,” American Bar Association Journal 15 (1929): 762. 25. Germany 1947–1949: The Story in Documents, U.S. Department of State Publication 3556 (Washington, D.C.: U.S. Department of State, 1950), 49. 26. See Donald P. Kommers, Judicial Politics in West Germany: A Study of the Federal Constitutional Court (Beverly Hills, Calif.: Sage Publications, 1976), 70; Bodo Pieroth, “Amerikanischer Verfassungsexport nach Deutschland,” Neue Juristische Wochenschrift 42 (1989): 1333–37. 27. Some suggest a greater influence for the American tradition of judicial review, which was “invented” by U.S. Supreme Court Chief Justice John Marshall in the historic decision Marbury v. Madison (1803). See Hoff mann-Riem, supra note 22; Uwe Wesel, Der Gang nach Karlsruhe (Munich: Blessing Verlag, 2004), 19–25. See also Edmund Spevack, Allied Control and German Freedom (Münster: Lit Verlag, 2001), 233: “The establishment of the new German Supreme Court [Bundesverfassungsgericht, or bvg] signified one of the most important instances of the export of American constitutional theory and practice into the West German Basic Law. The making of the bvg brought two completely new practices to Germany. One was the judicial review function of the U.S. Supreme Court.” See also Pieroth, supra note 26. 28. For a discussion of the background of the participants in the Herrenchiemsee Conference, see Heinz Laufer, Verfassungsgerichtsbarkeit und politischer Prozess (Tübingen: J. C. B. Mohr [Paul Siebeck], 1968), 35–38. 29. Bericht über den Verfassungskonvent auf Herrenchiemsee vom 10. bis 23. August 1948 (Munich: Richard Plaum Verlag, n.d.), especially Articles 98 and 99. 30. For a description of constitutional review in Austria and Kelsen’s influence, see Cappelletti & Cohen, supra note 1, at 86– 90. See also Mauro Cappelletti, Judicial Review in the Contemporary World (Indianapolis: Bobbs-Merrill, 1971), 90– 93; Mauro Cappelletti, “Review of Edward McWhinney’s Supreme Courts and Judicial Law Making: Constitutional Tribunals and Constitutional Review,” American Journal of International Law 82 (1988): 421. Kelsen fi rst conceptualized and implemented a model of centralized judicial review to be undertaken by a distinct and uniquely political “constitutional court” in 1920 while playing a leading role in draft ing the constitution that established the Austrian Second Republic. He more thoroughly developed and defended the model in an influential

730 Notes to Chapter One article published in 1931. Hans Kelsen, “Wer soll Hüter der Verfassung sein?,” Die Justiz 6 (1930/1931): 576. The article, responding to Carl Schmitt’s strident and, at the time, increasingly fashionable advocacy on behalf of a strong executive, urged that the judiciary be charged with protecting the constitution. See, e.g., Carl Schmitt, Der Hüter der Verfassung (Tübingen: J. C. B. Mohr [Paul Siebeck], 1931). Kelsen is universally regarded as the father of the constitutional court model, which, as adopted across much of Eu rope and elsewhere around the world, frequently is referred to as merely the “Kelsenian” or “Eu ropean” approach to constitutionalism. 31. For an account of the structure and powers of the Staatsgerichtshof, see Frederick E. Blachly & Miriam Oatman, The Government and Administration of Germany (Baltimore: Johns Hopkins University Press, 1928), 441–46. 32. Bericht Herrenchiemsee, supra note 29, at Article 100. 33. A plan modeled on Weimar’s State High Court would have proposed a part-time tribunal consisting of judges chosen from various federal and state appellate courts who would meet at specified times to resolve pending constitutional disputes. See Blachly & Oatman, supra note 31. 34. The constitutional convention was known as the Parliamentary Council (West German Constituent Assembly). It convened in Bonn on 1 September 1948. Its sixty-five delegates, elected by the state parliaments, consisted of twenty-seven Christian Democrats, twenty-seven Social Democrats, five Free Democrats, and six additional delegates representing (two each) the Center Party, the German Party, and the Communist Party. An excellent account of its proceedings in English is John E. Golay, The Founding of the Federal Republic of Germany (Chicago: University of Chicago Press, 1958). See also Peter H. Merkl, The Origin of the West German Republic (New York: Oxford University Press, 1963). For excellent treatments in German see Michael F. Feldkamp, Der Parlamentarische Rat 1948–1949: Die Entstehung des Grundgesetzes (Göttingen: Vandenhoeck and Ruprecht, 1998), 44–56; Volker Otto, Das Staatsverständnis des parlamentarischen Rates—Ein Beitrag zur Entstehungsgeschichte des Grundgesetzes für die Bundesrepublik Deutschland (Düsseldorf: Rheinisch-Bergische Druckerein-und Verlagsgesellschaft, 1971), 41–56. 35. Parlamentarischer Rat, Verhandlungen des Hauptausschusses (Bonn, 1950) (mimeograph; 1948–49), 275. 36. For a detailed discussion of this debate, see Kommers, supra note 26, at 72–77. See also Laufer, supra note 28, at 52–59; and Hans Lietzmann, Das Bundesverfassungsgericht: Eine soziowissenschaftliche Studie (Opladen: Leske and Budrich, 1988), 46–49. 37. The confl ict is described in Kommers, supra note 26, at 78–82; and Laufer, supra note 28, at 93–139. 38. Gesetz über das Bundesverfassungsgericht (Federal Constitutional Court Act— hereinafter cited as fcca) in the version of 11 August 1993, Bundesgesetzblatt (hereafter referred to as BGBl.) I:1473. Th is statute has been amended frequently since its original enactment. All subsequent references to the fcca are based on the amended statute up to and including the amendments of 1 December 2009 (BGBl. 1:3822). For an excellent discussion of the fcca’s genesis, see Will Geiger, Gesetz über das Bundesverfassungsgericht (Berlin: Verlag Franz Vahlen GmbH, 1951), iii–xxv; and Laufer, supra note 28, at 97–139. See also Wolfgang Kralewski & Karl Heinz Neunreiter, Oppositionelles Verhalten im ersten deutschen Bundestag 1949–1953 (Cologne: Westdeutscher Verlag, 1963), 192–204. These treatments of the politics surrounding the establishment of the Federal Constitutional Court are based on the debates and proceedings of the Bundestag’s Legal and Constitutional Affairs Committee. The protocols are included in Ausschuss für Rechtswesen und Verfassungsrecht, Die Verfassungsgericht

Notes to Chapter One 731 des (23.) Ausschusses für Rechtswesen und Verfassungsrecht über das Gesetz über das Bundesverfassungsgericht, Deutscher Bundestag, 1. Wahlperiode (mimeograph; 1950). 39. 1 Cranch 137 (1803). 40. There is one exception to the exhaustion rule. The Court may accept a constitutional complaint before all remedies have been exhausted “if recourse to other courts fi rst would entail a serious and unavoidable disadvantage to the complainant.” FCCA, § 90 (2). 41. FCCA, § 93. For a detailed discussion of the constitutional complaint procedure in English see Michael Singer, “The Constitutional Court of the German Federal Republic: Jurisdiction over Individual Complaints,” International and Comparative Law Quarterly 31 (1982): 331–36. See also Walter Seuffert, “Die Verfassungsbeschwerde in der Verfassungsgerichtsbarkeit,” in Das Bundesverfassungsgericht 1951–1971, ed. Das Bundesverfassungsgericht, rev. ed. (Heidelberg: C. F. Müller Juristischer Verlag, 1971), 159–69; Christoph Gusy, “Die Verfassungsbeschwerde,” in Festschrift 50 Jahre Bundesverfassungsgericht, eds. Peter Badura & Horst Dreier (Tübingen: J. C. B. Mohr [Paul Siebeck], 2001), 1:641–71; Peter Häberle, “Die Verfassungsbeschwerde im System der bundesdeutschen Verfassungsgerichtsbarkeit,” Jahrbuch des öffentlichen Rechts der Gegenwart 45 (1997): 89–135; Roland Fleury, Verfassungsprozessrecht, 6th ed. (München/Unterschleißheim: Luchterhand Verlag, 2004), 60–106; Christian Hillgruber & Christoph Goos, Verfassungsprozessrecht, 2d ed. (Heidelberg: C. F. Müller Juristischer Verlag, 2006), 31–106; Michael Sachs, Verfassungsprozessrecht (Heidelberg: Verlag für Recht und Wirtschaft, 2004), 134–56. 42. FCCA, § 93a (2). 43. Basic Law, Article 93 (1) [4b]. 44. Public address by Justice Wolfgang Zeidler (undated and unpublished typescript). 45. FCCA, § 93c. 46. In 2004, attorneys assisted in fi ling 55 percent of constitutional complaints. Rüdiger Zuck, Das Recht der Verfassungsbeschwerde (Munich: C. H. Beck’sche Verlagsbuchhandlung, 2006), 42. 47. Significantly, in recent years nearly 90 percent of successful complainants have been represented by lawyers. Ibid. 48. FCCA, §§ 80–82. 49. See Franz-Wilhelm Dollinger, “Elfter Abschnitt: Verfahren in den Fällen des § 13 nr. 11 und 11a (Konkrete Normenkontrolle; - Registerzeichen: 1BvL . . . oder 2 BvL . . . ),”in Bundesverfassungsgerichtsgesetz Mitarbeiterkommentar und Handbuch, eds. Dieter C. Umbach, Thomas Clemens & Franz-Wilhelm Dollinger, 2d ed. (Heidelberg: C. F. Müller Juristischer Verlag, 2005), 995–1051. See also the Preliminary Judgment Case, in which the Court held inadmissible a request by an ordinary court to issue a preliminary judgment on the validity of a statute the latter regarded as null and void, fi nding that the ordinary court had not fully evaluated the question and failed to consider the possibility of construing the statute in such a way as to render it valid under the Basic Law (85 BVerfGE 329 [1992]). In 1993, the chambers were authorized to dismiss judicial referrals if the three justices unanimously voted to dismiss. The full senate must decide, however, if the referral comes from a state constitutional court or one of the high federal courts (fcca, § 81a). For commentary on concrete judicial review in German see Rainer Wernsmann, “Konkrete Normenkontrolle (Art. 100 Abs. 1 GG),” Juristische Ausbildung 27 (2005): 328–36; Fleury, supra note 41, at 41–51; Hillgruber & Goos, supra note 41, at 207–32; Sachs, supra note 41, at 64–80. 50. See Zuck, supra note 46, at 347–48. 51. See Bundesverfassungsgericht, “Aufgaben, Verfahren und Organisation—Jahresstatistik 2011—Durchschnittliche Verfahrensdauer von Verfassungsbeschwerden der Eingangsjahre

732 Notes to Chapter One 2003 bis 2011,” available at www.bundesverfassungsgericht.de/organisation/gb2011/A-IV-3. html. 52. See the Second Senate’s rejection of a temporary injunction application in an Organstreit challenge to Chancellor Schröder’s decision to deploy awacs surveillance planes in support of Turkey as the U.S.-led invasion of Iraq drew near in 2003. 108 BVerfGE 34 (2003). Five years later, long after the political and strategic import of the decision to deploy the awacs to Turkey had passed, the Court upheld parts of the underlying substantive constitutional challenge. AWACS II Case, 121 BVerfGE 135 (2008). 53. Sunday Trucking Ban Temporary Injunction Case, 6 BVerfGE 1 (1956); Law in Force— Temporary Injuction Case, 7 BVerfGE 175 (1957); 12 BVerfGE 276 (1961); Support Grades Temporary Injunction Case, 29 BVerfGE 120 (1970). 54. See Dieter Lorenz, “Der Organstreit vor dem Bundesverfassungsgericht,” in Bundesverfassungsgericht und Grundgesetz, ed. Christian Starck (Tübingen: J. C. B. Mohr [Paul Siebeck], 1976), 1:225–59; Jost Pietzcker, “Organstreit,” in Badura & Dreier, supra note 41, at 1:587–614; Hillgruber & Goos, supra note 41, at 303– 99; Sachs, supra note 41, at 64–80. 55. With respect to the Bundestag, these entities would include the Committees on Foreign Affairs and Defense (Article 45a), the Parliamentary Commissioner (Article 45b), the Petitions Committee (Article 45c), and even individual deputies deprived of rights or entitlements under Articles 46, 47, and 48. 56. See Abelein Case, 60 BVerfGE 374 (1982); Wüppesahl Case, 80 BVerfGE 188 (1989). 57. See Party Finance V Case, 73 BVerfGE 40 (1986). For a general discussion of decisions affecting the rights of parliamentary parties see Gerald Kretschmer, Fraktionen: Parteien im Parlament, 2d ed. (Heidelberg: Decker/Müller, 1992). Parliamentary political parties may initiate an Organstreit proceeding to vindicate their status as parliamentary parties. 58. Plenum Party Case, 4 BVerfGE 27 (1954). 59. Party Finance II Case, 20 BVerfGE 56 (1966). 60. For a general discussion of the Court’s jurisdiction over constitutional controversies involving the highest organs of the Federal Republic, see Dieter C. Umbach, “Sechster Abschnitt: Verfahren in den Fällen des § 13 Nr. 5 (Organstreit: - Registerzeichen: 2BvE . . . ),” in Umbach, Clemens & Dollinger, supra note 49, at 806–77. See also Julius Federer, “Aufbau, Zuständigkeit, und Verfahren des Bundesverfassungsgerichts,” in Das Bundesverfassungsgericht 1951–1971, supra note 41, at 64–66. 61. Basic Law, Article 93. 62. FCCA, § 31 (2). 63. Klaus Schlaich & Stefan Korioth, Das Bundesverfassungsgericht— Stellung, Verfahren, Entscheidungen, 7th ed. (Munich: C. H. Beck’sche Verlagsbuchhandlung, 2007), 73–74. See Wolfgang Roth, “Die verfassungsgerichtliche Überprüfung verfassungskonformer Auslegung im Wege der abstrakten Normenkontrolle,” Neue Zeitschrift für Verwaltungsrecht 17 (1998): 563–67; Roland Fleury, supra note 41, at 25–33; Hillgruber & Goos, supra note 41, at 181–206; Sachs, supra note 41, at 49–63. 64. FCCA, §§ 69 and 67. See also Frank Schorkopf, “Siebter Abschnitt: Verfahren in den Fällen des § 13 Nr. 7 (Bund-Länder-Streit; - Registerzeichen: 2 BvG . . . ),” in Umbach, Clemens & Dollinger, supra note 49, at 883– 97. 65. See Socialist Reich Party Case, 2 BVerfGE 1 (1952); Communist Party Case, 5 BVerfGE 85 (1956). 66. See National List Case, 91 BVerfGE 262 (1994); Free German Workers Party Case, 91 BVerfGE 276 (1994).

Notes to Chapter One 733 67. For a general discussion of the Court’s status, see Gerhard Leibholz, “Der Status des Bundesverfassungsgerichts,” in Das Bundesverfassungsgericht l951–1971, supra note 41, at 31– 57. See also Kommers, supra note 26, at 83–86; Udo Wengst, Staatsaufbau und Regierungspraxis 1948–1953—zur Geschichte der Verfassungsorgane der Bundesrepublik Deutschland (Düsseldorf: Droste Verlag, 1984), 316–25; Winfried Brohm, “Die Funktion des BVerfG— Oligarchie in der Demokratie?,” Neue Juristische Wochenschrift 54 (2001): 1–10; Hillgruber & Goos, supra note 41, at 1–19. 68. “Bericht des Berichterstatters an das Plenum des Bundesverfassungsgerichts zur ‘Status’-Frage,” [21 March 1952], Jahrbuch des Öffentlichen Rechts 6 (1957): 120–37. For other views on the Court’s status, see “Denkschrift des Bundesverfassungsgerichts,” [27 June 1952], Jahrbuch des Öffentlichen Rechts 6 (1957): 144–48; and Richard Thoma, “Rechtsgutachten betreffend der Stellung des Bundesverfassungsgerichts,” [15 March 1953], Jahrbuch des Öffentlichen Rechts 6 (1957): 161– 94. 69. “Denkschrift,” supra note 68, at 148. For an assessment of Höpker-Aschoff ’s contribution to the early development of the Constitutional Court see Theo Ritterspach, “Hermann Höpker-Aschoff: Der erste Präsident des Bundesverfassungsgerichts 1883–1954,” Jahrbuch des Öffentlichen Rechts 32 (1983): 55–62. 70. See Leibholz, supra note 67, at 31–57; Laufer, supra note 28, at 254–334. 71. Deutsches Richtergesetz in the version of 8 September 1961, BGBl. I:1665. See also Wilhelm K. Geck, “Zum Status des Bundesverfassungsrichters: Besoldungs- und Versorgungsrecht,” in Festschrift für Wolfgang Zeidler, eds. Walther Hirst, Roman Herzog & Dieter C. Umbach (Berlin: Walter de Gruyter Verlag, 1987), 1:189–218; Christian Starck, “Das Bundesverfassungsgericht in der Verfassungsordnung und im politischen Prozess,” in Badura & Dreier, supra note 41, at 1:1–32. 72. Basic Law, Article 115h. 73. The Constitutional Court’s orga nization, procedures, and jurisdiction are regulated by the fcca. The Court’s internal administration (i.e., budget, administrative duties of justices, authority and procedures of the plenum, selection and responsibilities of law clerks, judicial conference procedures, and the rules governing oral argument and preparation of written opinions) is regulated by the Court’s Rules of Procedure. See Geschäft sordnung des Bundesverfassungsgerichts (Rules of Procedure of the Federal Constitutional Court), Law of 2 September 1975, BGBl. I:2515; the current version was enacted as 1986, BGBl. I:2529, last amended by 2002, BGBl. I:1171 (hereinafter referred to as the GOBVerfG). The Court’s organization and internal administration are treated at considerable length in Kommers, supra note 26, at 69–108. See Horst Säcker, Das Bundesverfassungsgericht— Status, Funktion, Rechtsprechungsbeispiele (Munich: C. H. Beck’sche Verlagsbuchhandlung, 1975), 23–24; Georg Hermes, “Senat und Kammern,” in Badura & Dreier, supra note 41, at 1:725–49. 74. Jurisdiction over cases involving the constitutionality of political parties was originally vested in the First Senate. With the backing of the Adenauer-led government this jurisdiction was transferred to the Second Senate in 1957. The transfer grew out of the government’s impatience and dissatisfaction with the First Senate’s slow handling of the Communist Party Case. See Kommers, supra note 26, at 190– 91. 75. For an excellent survey of the functioning of concrete judicial review, see Karl August Bettermann, “Die konkrete Normenkontrolle und sonstige Gerichtsvorlagen,” in Starck, supra note 54, at 1:323–73. 76. See Amending Act of 21 July 1956, BGBl. I:662. Decisions of the plenum redistributing the Court’s internal workload must be published in the Federal Law Gazette (Bundesgesetzblatt).

734 Notes to Chapter One 77. FCCA, § 2. 78. See Kommers, supra note 26, at 128–44. See also Uwe Wesel, Die Hüter der Verfassung— Das Bundesverfassungsgericht, seine Geschichte, seinen Leistungen, seine Krisen (Frankfurt am Main: Eichborn Verlag, 1996), 16–22. 79. FCCA, § 15 (2). 80. FCCA, § 19 (4). 81. Schlaich & Korioth, supra note 63, at 22. 82. FCCA, § 1 (3). 83. FCCA, § 14 (4). 84. FCCA, § 16 (1). 85. Schlaich & Korioth, supra note 63, at 22. 86. Unwanted Child Case, 96 BVerfGE 375 (1997). 87. Plenum Referral Case, 96 BVerfGE 409 (1997). 88. Law of 21 July 1956, BGBl. I:662. FCCA, § 93a (earlier version of the statute). The procedures for establishing these committees were initially laid down in GOBVerfG, §§ 38 and 39. 89. FCCA, § 93a (1). 90. FCCA, § 15a (1). 91. FCCA, § 93b (2). 92. GOBVerfG, § 40 (1). 93. FCCA, § 93d (3). 94. Th is discussion of the complaint procedure relies heavily on Hans Spanner, “Die Beschwerdebefugnis bei der Verfassungsbeschwerde,” in Starck, supra note 54, at 1:374–95; and Hans H. Zacker, “Die Selektion der Verfassungsbeschwerden—die Siebft unktion der Vorprüfung, des Erfordernisses der Rechtswegerschöpfung und des Kriteriums der unmittelbaren und gegenwärtigen Betroffenheit des Beschwerdeführers,” in Starck, supra note 54, at 1:396–431. See also Christoph Görisch, “Grundrechtsrüge und Prüfungsumfang bei der Verfassungsbeschwerde,” Neue Zeitschrift für Verwaltungsrecht 26 (2007): 1007–12; Hillgruber & Goos, supra note 41, at 71– 98; Sachs, supra note 41, at 138–47; Fleury, supra note 41, at 60– 90; Rüdiger Zuck, Das Recht der Verfassungsbeschwerde, 3rd ed. (Munich: C.H. Beck’sche Verlagsbuchhandlung, 2006). 95. FCCA, § 93b (2). 96. FCCA, § 93c (1). 97. FCCA, § 93d (1). 98. Some of these opinions are extremely controversial. See, for example, the Tucholsky I Case, Europäische Grundrechte Zeitschrift 21 (1994): 463– 65. 99. FCCA, § 34 (2). Between 1962 and 2011 the Court imposed fi nes for abuse of process in a mere 2,920 cases, totaling € 583,386. The number of fi nes imposed peaked with 330 in 1980 and has averaged around fi ft y each year in the three decades since. See Bundesverfassungsgericht,“Aufgaben,VerfahrenundOrganisation—Jahresstatistik2011—Missbrauchsgebühren,” available at www.bundesverfassungsgericht .de/organisation/gb2011/A-VIII-1 .html. The Court’s general reluctance to impose fi nes is doubtless a reflection of the democratic importance it places on its accessibility, but it also can be explained in more pragmatic terms: already overworked justices and clerks often simply opt to dismiss even genuinely questionable complaints rather than also take up the burden of researching and draft ing an official justification for the imposition of a fi ne. 100. Th ree-Justice Committee I Case, 7 BVerfGE 241 (1958); Th ree-Justice Committee II Case, 18 BVerfGE 440 (1965); Th ree-Justice Committee III Case, 19 BVerfGE 88 (1965). See

Notes to Chapter One 735 Karin Graßhof, “§ 93a BVerfGG,” in Bundesverfassungsgerichtsgesetz—Kommentar, Band 2, eds. Theodor Maunz, Bruno Schmidt-Bleibtreu & Klaus Winter (Munich: C. H: Beck Verlag, 2007), 2: 23; Rüdiger Zuck, “Vor § 93a BVerfGG,” in Bundesverfassungsgerichtsgesetz— Kommentar, eds. Hans Lechner & Rüdiger Zuck, 5th ed. (Munich: C. H. Beck’sche Verlagsbuchhandlung, 2006), 546–49. 101. Th ree-Justice Committee I Case, 7 BVerfGE 241 (1958). 102. Singer, supra note 41, at 338. 103. Schlaich & Korioth, supra note 63, at 147–48. 104. Ibid., at 145. 105. Ibid., at 332. 106. FCCA, § 3 (4). 107. FCCA, § 4 (1) and (2). 108. Influential in the adoption of the dissenting opinion was the detailed study by Konrad Zweigert, a former justice of the Federal Constitutional Court. Konrad Zweigert, Empfiehlt es sich, die Bekanntgabe der abweichenden Meinungen des überstimmten Richters [dissenting opinion] in den deutschen Verfahrensordnungen zuzulassen? Gutachten für den 47. Deutschen Juristentag, pt. D, vol. I (Munich: C. H. Beck’sche Verlagsbuchhandlung, 1968). See also Gerd Hager, “Freie Meinung und Richteramt,” Neue Juristische Wochenschrift 41 (1988): 1694– 98; Frank Halle, “Sondervotum und separate opinion im Rechtsvergleich,” in Verfassungsrichter: Rechtsfindung am U.S. Supreme Court und am Bundesverfassungsgericht, eds. Bernhard Großfeld & Herbert Roth (Münster: Lit Verlag, 1995), 141–50. 109. See Kommers, supra note 26, at 195– 98; Wilhelm K. Geck, Wahl und Amtsrecht der Bundesverfassungsrichter (Baden-Baden: Nomos Verlagsgesellschaft, 1986). 110. Schlaich & Korioth, supra note 63, at 25; Claudia Fischer, “Die Bestellung der Verfassungsrichter,” in Großfeld & Roth, supra note 108, at 71–88; Bettina Heüveldop, “Verfassungsrechtliche Anforderungen an das Besetzungsverfahren für die Kammern des BVerfG,” Neue Juristische Wochenschrift 43 (1990): 28–29; Sybille Koch, “Die Wahl der Richter des Bundesverfassungsgerichts,” Zeitschrift für Rechtspolitik 29 (1996): 41–44. 111. Schlaich & Korioth, supra note 63, at 25. 112. Wesel, supra note 27, at 12. 113. FCCA, § 6 (2). The jsc is unique among Bundestag committees. For one thing, its decisions are, in effect, the decisions of the Bundestag. For another, only parliamentary parties may submit lists of candidates for committee membership. Several parliamentary parties may agree on a common list, as is usually done, so long as the Bundestag has at least two competing lists to vote for. No changes in these lists are permitted from the floor. The Judicial Selection Committee’s proceedings take place behind closed doors, and its members are obliged by law “to keep secret the personal circumstances of candidates which became known to them as a result of their [inquiries].” See FCCA, § 6 (4). 114. FCCA, § 7. 115. FCCA, § 5. 116. FCCA, § 7a. 117. There are no public hearings on judicial nominees in Germany. As a consequence, many of the persons elected to the Court are unknown to the public at large. In any event, as the spd magazine, Vorwärts, noted on the occasion of the election of six new justices in November 1987, public hearings reminiscent of the congressional inquiry into the background and qualifications of Robert Bork for a seat on the Supreme Court of the United States “would be unthinkable in the Federal Republic.” Vorwärts, November 21, 1987, at 14. Nevertheless, the secrecy of the Judicial Selection Committee’s deliberations is occasionally the

736 Notes to Chapter One subject of severe criticism in the German press. See Der Spiegel 34 (1987): 30–32; Roll Lamprecht, “Kungelei hinter den Kulissen, Deutsche Richterzeitung 64 (August 1986): 314. 118. In 1971, for example, Christian Democrats were in confl ict over a judicial appointment. Minister-President Hans Filbinger of Baden-Württemberg worked hard in the Bundesrat for the appointment of his aide, Paul Feuchte, to a vacancy on the First Senate; Christian Democrats on the jsc preferred Hans Faller, a judge of the Bundesgerichtshof (Federal Court of Justice). What fi nally tipped the scale in favor of Faller—a former legal assistant at the Constitutional Court—was the Court’s “intervention” on his behalf. A majority of the justices issued a statement claiming that the member in question must be chosen from the federal bench, a highly dubious proposition because the First Senate was already staffed with three justices recruited from the high federal courts. The Bundesrat, however, yielded to this view and elected Faller. In the Henschel Judicial Selection Case (65 BVerfGE 152 [1983]), the First Senate had to decide whether one of its own members had been legally elected. Johann Friedrich Henschel, a lawyer, was chosen by the Bundesrat to succeed Faller. The Court rejected the argument that, because Faller was a federal judge, his successor would have to be elected from the federal bench. Th is action was necessary to ensure the legitimacy of the Court’s proceedings in the light of the constitutional provision (Article 101) that prohibits the removal of any person from the jurisdiction of his lawful judge. On the role of the Federal Constitutional Court in the judicial selection process, see Henning Frank, “Die Mitwirkung des Bundesverfassungsgerichts an den Richterwahlen,” in Festschrift: Hans Joachim Faller, eds. Wolfgang Zeidler et al. (Munich: C. H. Beck’sche Verlagsbuchhandlung, 1984), 37–52. Regarding the Henschel Judicial Selection Case, see Rolf Lamprecht, “Bis zur Verachtung—Verfassungsrichterwahlen am Rande der Legalität,” Neue Juristische Wochenschrift 48 (1995): 2531–33; and Friedrich Karl Fromme, “Verfassungsrichterwahlen,” Neue Juristische Wochenschrift 53 (2000): 2977–78. 119. The controversial failure of the spd’s nominations of Herta Däubler-Gmelin (1993) and Professor Horst Drier (2008) for the Court’s vice presidency was a dramatic departure from the spirit of compromise. Blocked for nine months by conservatives in the Bundestag, Däubler-Gmelin eventually withdrew from consideration. Even in this case, however, the tone did not reach the fevered pitch of the senate hearings on the nominations of Robert Bork or Clarence Thomas in the United States. Many Germans would regard such hearings as an assault on the institutional integrity of the Constitutional Court itself. Traditionally, any public fi xation on how a judicial nominee would vote in a par tic u lar case or in a wide range of cases would have been seen as a potential threat to the independence of that nominee. By the same token, any interest group lobbying on behalf of a par tic u lar judicial nominee, accompanied by threats of retaliation against legislators who voted the wrong way, traditionally would have been regarded as interference with the independence of those entrusted with the duty of selecting justices. Finally, the public exposure of every facet of a judicial nominee’s life and personality traditionally would have been regarded as an egregious intrusion on his or her privacy. However, the failed nomination of Horst Drier in 2008 may signal a change to this tradition of circumspection. Advocates and politicians on the left and right vilified Drier, a well-respected professor, for his controversial positions on the constitutional protection of human dignity. Those on the left, including the leadership of the German chapter of Amnesty International, focused on Drier’s scholarly commentary suggesting that balancing interests in dignity could conceivably justify torture in unique cases. Drier’s support for stem cell research, based on a graduated approach to the protection owed to unborn life, drew fi re from the right. The lifelong member of Germany’s Protestant church was called an atheist in the press. Th is very public assault from two sides led one prominent

Notes to Chapter One 737 commentator to describe Drier’s treatment as “Rufmord” (reputational murder). Faced with the cdu/csu’s threatened veto in the Bundesrat, the spd withdrew Drier’s nomination. 120. Wesel, supra note 27, at 41. 121. See GOBVerfG, supra note 73; Schalich & Korioth, supra note 63, at 17. 122. See Schlaich & Korioth, supra note 63, at 27–28; Joachim Wieland, “The Role of the Legal Assistants at the German Federal Constitutional Court,” in Constitutional Courts in Comparison, eds. Ralf Rogowski & Thomas Gawron (New York: Berghahn Books, 2002), 197; Otwin Massing, “The Legal Assistants at the German Federal Constitutional Court: A ‘Black Box’ of Research? A Comment,” ibid., at 209; Kirsten Beckmann, “Urteilsentstehung und wissenschaft liche Mitarbeiter,” in Großfeld & Roth, supra note 108, at 123–40. 123. FCCA, §§ 17–35. 124. FCCA, § 18. 125. FCCA, § 19. 126. Two cases produced moments of high tension on the Court: Justice Gerhard Leibholz was recused from the Party Finance II Case (20 BVerfGE 56 [1966]) and Justice Joachim Rottmann was recused from the East-West Basic Treaty Case (36 BVerfGE 1 [1973]). In each instance petitioners complained that the justice compromised his impartiality by making off-the-bench—and admittedly indiscreet—public comments on the merits of pending litigation. For commentary on the Court’s decisions recusing these justices, see Wolfgang Roth, “Richterliche Befangenheit,” Die öffentliche Verwaltung 51 (1998): 916–20; Karl-Hermann Schütz, Die Ablehnung von Bundesverfassungsrichtern wegen Besorgnis der Befangenheit (Heidelberg: Univ. Diss., 1974), 58–81; Claudia Gerdes, Die Ablehnung wegen Besorgnis der Befangenheit aufgrund von Meinungsäußerungen des Richters (Frankfurt am Main: Peter Lang Verlag, 1992), 109–38; Joachim Riedel, Das Postulat der Unparteilichkeit des Richters— Gefangenheit und Parteilichkeit—im deutschen Verfassungs- und Verfahrensrecht (Berlin: Duncker and Humblot, 1980), 120–34; Conrad Friedrich Rumpf, Richterliches Sozialmanagement und Befangenheit—Zugleich eine Stellungnahme für die Befangenheitsablehnung von Amts wegen (Frankfurt am Main: Peter Lang Verlag, 1998), 54–84. Other cases of recusal include the Kirchhof Exclusion Case (82 BVerfGE 30 [1990]); Schlabrendorff Exclusion Case (32 BVerfGE 288 [1972]); and the Hirsch Exclusion Case (46 BVerfGE 14 [1977]). See Gerdes, this note. 127. FCCA, § 30. 128. The seven oral arguments in 2011 involved cases related to Germany’s integration in the European Union (2 BvE 4/11; 2 BvE 8/11; 2 BvR 987/10; 2 BvR 1099/10; 2 BvR 1485/10; 2 BvC 4/10; 2 BvC 6/10; 2 BvC 8/10); cases concerned with Germany’s preventive detention regime (2 BvR 2365/09; 2 BvR 740/10; 2 BvR 2333/08; 2 BvR 571/10; 2 BvR 1152/10); and a case involving a constitutional challenge to university professors’ compensation (2 BvL 4/10). These cases represented three constitutional complaint proceedings, two Organstreit proceedings, one concrete judicial review proceeding, and an election review proceeding. All the oral arguments in 2011 were held by the Second Senate. See the Constitutional Court’s press releases, available at www.bundesverfassungsgericht.de/pressemitteilungen. See also www.bundesverfassungsgericht.de/organisation/gb2011/A-II-4.html . 129. FCCA, § 31 (2). 130. Any jurisdictional dispute between the senates at this stage of the decision-making process would be resolved by a committee composed of the president, the vice president, and two justices from each senate. The president casts the deciding vote in the event of a deadlock. FCCA, § 14 (5). 131. Kommers, supra note 26, at 178.

738 Notes to Chapter One 132. FCCA, § 26 (1). 133. Courtroom Television Case, 103 BVerfGE 44 (2001). See Peer Zumbansen, “Federal Constitutional Court Affi rms Ban of TV-Coverage of Court Proceedings,” German Law Journal 2/3 (2001), available at www.germanlawjournal.com/article.php?id=49; Rüdiger Zuck, “Mainstream-Denken contra Medienöffentlichkeit—Zur Politik des n-tv-Entscheidung des BVerfG,” Neue Juristische Wochenschrift 54 (2001): 1623–24. The monumental importance of the Court and its proceedings, and the desire to foster respect for the institution and its rulings, are offered as justifications for these limits on media coverage. Schlaich & Korioth, supra note 63, at 39. 134. Kommers, supra note 26, at 179–81. 135. See, for example, Incest Case, 120 BVerfGE 224 (2008). Justice Hassemer, as rapporteur, wrote a dissenting opinion and Justice Gerhardt wrote the majority opinion. 136. Kommers, supra note 26, at 181– 91. 137. Bundesverfassungsgericht, “Aufgaben, Verfahren und Organisation—Statistik für das Geschäftsjahr 2011— Gesamtübersichten seit 1951—Entscheidungen mit oder ohne Sondervotum in der amtlichen Sammlung (BVerfGE)—Bände 30–127 (1971–2011),” available at www.bundesverfassungsgericht.de/organisation/gb2011/A-I-7.html. 138. Schlaich & Korioth, supra note 63, at 30–31 (authors’ translation). 139. Herzog Presidential Candidacy Case, 89 BVerfGE 359 (1994). 140. GOBVerfG, § 59. 141. GOBVerfG, § 60. 142. Bundesverfassungsgericht, “Aufgaben, Verfahren und Organisation—Statistik für das Geschäftsjahr 2011— Geschäft sanfall im Allgemeinen Register (AR) seit 1999,” available at www.bundesverfassungsgericht.de/organisation/gb2011/D.html . 143. On the relationship between the senates and their respective chambers, see Ernst Gottfried Mahrenholz, “Kammerbeschlüsse-Nichtannahmegewehren,” in Hirst, Herzog & Umbach, supra note 71, at 2:1364–65. 144. Wieland, supra note 122, at 202. 145. Kommers, supra note 26, at 173. 146. See Donald P. Kommers, “The Federal Constitutional Court in the German Political System,” Comparative Political Studies 26 (Jan. 1994): 470– 92. 147. See, for example, Rudolf Dolzer, Die staatstheoretische und staatsrechtliche Stellung des Bundesverfassungsgerichts (Berlin: Duncker and Humblot, 1972), 114–18. 148. See Milton C. Regan Jr., “Community and Justice in Constitutional Theory,” Wisconsin Law Review (1985): 1074. 149. See, for example, Peter Häberle, Verfassungsgerichtsbarkeit zwischen Politik und Rechtswissenschaft (Königstein: Athenäum Verlag, 1980); Christian Starck, Das Bundesverfassungsgericht im politischen Prozess der Bundesrepublik (Tübingen: J. C. B. Mohr [Paul Siebeck], 1976); Rolf Lamprecht & Wolfgang Malanowski, Richter machen Politik (Frankfurt am Main: Fischer, 1978); Laufer, supra note 28; Wiltraut Rupp-von Brünneck, “Verfassungsgerichtsbarkeit und gesetzgebende Gewalt: Wechselseitiges Verhältnis zwischen Verfassungsgericht und Parlament,” Archiv des öffentlichen Rechts 102 (1977): 1–26; Klaus Stern, Verfassungsgerichtsbarkeit zwischen Recht und Politik (Opladen: Westdeutscher Verlag, 1980); Christine Landfried, Bundesverfassungsgericht und Gesetzgeber (Baden-Baden: Nomos Verlagsgesellschaft, 1984); Hartmut Schiedermair, “Das Bundesverfassungsgericht auf der Grenze zwischen dem Recht und der Politik,” in Der Staat des Grundgesetzes—Kontinuität und Wandel— Festschrift für Peter Badura zum siebzigsten Geburtstag, eds. Michael Brenner, Peter M. Huber & Markus Möstl (Tübingen: J. C. B. Mohr [Paul Siebeck], 2004), 477–89.

Notes to Chapter One 739 150. Hans G. Rupp, “Some Remarks on Judicial Self-Restraint,” Ohio State Law Journal 21 (1960): 507. 151. 29 U.S. 288, 345–48 (1936). Justice Hans Rupp, an original appointee to the Federal Constitutional Court, compared the American “Ashwander rules” to practices developed by the Court in the fi rst ten years of its work. See Rupp, ibid., at 503–15. Justice Rupp, who studied at the Harvard Law School in the 1930s, was thoroughly acquainted with the Supreme Court and the American legal system, and he kept abreast of the Supreme Court’s work during his tenure (1951–75) on the Second Senate. Another excellent article in English on the theme of judicial self-restraint was written by Wiltraut Rupp-von Brünneck, a justice of the First Senate and the wife of Justice Rupp. See Wiltraut Rupp-von Brünneck, “Admonitory Functions of the Constitutional Court,” American Journal of Comparative Law 22 (1972): 387–403. The fi rst two subsections of this part of the chapter rely heavily on these two articles. 152. The fcca authorizes the Court to grant a temporary injunction only “if this is urgently needed to avert serious detriment, to ward off imminent force, or for any other important reasons concerning the commonweal.” FCCA, § 32 (1). 153. There are many Constitutional Court cases establishing this principle; many are enumerated in G. Leibholz & H. J. Rinck, Grundgesetz für die Bundesrepublik Deutschland: Kommentar an hand der Rechtsprechung des Bundesverfassungsgerichts, 6th ed. (Cologne: Verlag Dr. Otto Schmidt kg, 1970), 7, and looseleaf supplement 36, Nov. 1999, pp. 8/2–14. See also Dollinger, supra note 49, at 1017; Jörn Lüdemann, “Die verfassungskonforme Auslegung von Gesetzen,” Juristische Schulung 44 (2004): 27–30. 154. 49 BVerfGE 89 (1978). 155. 50 BVerfGE 290 (1979). 156. A good discussion in English of these rules is Jörn Ipsen, “Constitutional Review of Laws,” in Main Principles of the German Basic Law, ed. Christian Starck (Baden-Baden: Nomos Verlagsgesellschaft, 1983), 114–17. 157. Judicial Reference Case, 80 BVerfGE 54, 58–59 (1989). On the problems associated with the process of referring questions to the Constitutional Court, see Karl-Georg Zierlein, “Zur Prozessverantwortung der Fachgerichte im Lichte der Verwerfungskompetenz des Bundesverfassungsgerichts nach Artikel 100 Abs. 1 GG,” in Grundrechte, soziale Ordnung und Verfassungsgerichtsbarkeit: Festschrift für Ernst Benda, ed. Eckart Klein (Heidelberg: C. F. Müller Juristischer Verlag, 1995), 458– 98. 158. The Constitutional Court affi rmed the subordinate status of these preconstitutional laws in the Reich Tax Levy Case (11 BVerfGE 126, 131–36 [1960]). 159. Ipsen, supra note 156, at 155. 160. See German Spelling Reform Case, 98 BVerfGE 218, 241–42 (1998). See also Hartmut Bauer & Christoph Möllers, “Die Rechtsschreibreform vor dem Bundesverfassungsgericht,” Juristenzeitung 54 (1999): 697–702; Volkmar Wagner, “Einzelfallentscheidung oder Paradigmenwechsel? Zum Verhältnis zwischen objektiver und subjektiver Funktion der Verfassungsbeschwerde nach dem Urteil des BVerfG zur Rechtschreibreform vom 14.7.1998,” Neue Juristische Wochenschrift 51 (1998): 2638–40; Matthias Cornils, “Zur Rücknahme der Verfassungsbeschwerde—verfassungsprozessuale Anmerkungen zum RechtsschreibreformUrteil,” Neue Juristische Wochenschrift 51 (1998): 3624–26; Hinnerk Wissmann, “Wo kein Kläger, da kein Richter—verfassungsprozessuale Anmerkung zum Urteil des BVerfG vom 14.7.1998,” Die öffentliche Verwaltung 52 (1999): 152–56; and Bernhard W. Wegener, “Rechtschreibreform und Verfassungsrecht,” Juristische Ausbildung 21 (1999): 185– 90. 161. A study published in 1979 includes a list of all federal legal provisions invalidated by the Constitutional Court up to and including the year 1978. Th is ambitious project, undertaken

740 Notes to Chapter One by Professor Ernst Benda, a former president of the Constitutional Court, presents an interesting profi le of the constitutional cases nullifying these provisions. Of the 112 cases listed, fi ft y-one were the direct result of constitutional complaints and forty-seven were referrals by ordinary courts under the procedure of concrete judicial review. Fift y-five cases implicated one or more of the equality clauses of Article 3, often in connection with the principle of the social state (Sozialstaat) or one of the provisions of Article 6 on marriage and the family, and dealt mainly with tax and social welfare legislation. Twenty-three involved occupational rights under Article 12, and in ten cases statutes were struck down because they violated the principle of Rechtsstaatlichkeit. See Ernst Benda, Grundrechtswidrige Gesetze (Baden-Baden: Nomos Verlagsgesellschaft, 1979), 64–75. See also Klaus von Beyme, Das Politische System der Bundesrepublik Deutschland nach der Vereinigung (Munich: R. Piper, 1991), 382. 162. See FCCA, § 31 (2). 163. See M. Graßhof, “Zehnter Abschnitt: Verfahren in den Fällen des § 13 Nr. 6 und 6a (Abstrakte Normenkontrolle; - Registerzeichen: 1BvF . . . oder 2 BvF . . . ),” in Umbach, Clemens & Dollinger, supra note 49, at 959. 164. For good treatments in English of these admonitory decisions, see Rupp-von Brünneck, supra note 151; and Wolfgang Zeidler, “The Federal Constitutional Court of the Federal Republic of Germany: Decisions on the Constitutionality of Legal Norms,” Notre Dame Law Review 62 (1987): 508–20. 165. An illustration is the Rendsburg Illegitimacy Case (25 BVerfGE 167, 181–88 [1969]). After an earlier decision (Marburg Illegitimacy Case [8 BVerfGE 210 (1958)]), in which the Court unsuccessfully admonished the legislature to repeal all discriminatory statutes against illegitimate children consistent with Article 6 (5) of the Basic Law, the Court declared in the 1969 case that “at the end of the current legislative term (autumn 1969)—all discriminatory statutes would become automatically unconstitutional and void; and in case of further delay by the legislature, it would be up to the courts to implement the constitutional requirement: i.e., they would have to decide which of the old provisions were clearly in violation of the constitution and to close the gap with judge-made law.” See Rupp-von Brünneck, supra note 151, at 388. The pending crisis was avoided, however, when the legislature proceeded forthwith to carry out the Court’s instructions. 166. Party Finance III Case, 24 BVerfGE 300 (1968). 167. See Delf Buchwald, Objektive Bindungswirkung, Materielle Rechtskraft , Richterrecht: eine verfassungsprozessuale und methodologiesche Untersuchung (Aachen: Shaker Verlag, 1997), 141–61; Ewald Wiederlin, “Die Gesetzeskraft der Entscheidungen des Bundesverfassungsgerichts,” in Brenner, Huber & Möstl, supra note 149, at 605–38. 168. FCCA, § 79 (1). 169. FCCA, § 79 (2). 170. See Alexander M. Bickel, The Least Dangerous Branch (Indianapolis: Bobbs-Merrill, 1962). 171. See Bundesverfassungsgericht, “Aufgaben, Verfahren und Organisation—Statistik für das Geschäftsjahr 2011—Eingänge nach Verfahrensarten,” Bundesverfassungsgericht, “Aufgaben, Verfahren und Organisation—Statistik für das Geschäftsjahr 2011—Erledigungen nach Verfahrensarten—Plenar-/Senats-/Kammerentscheidungen,” and “Aufgaben, Verfahren und Organisation—Statistik für das Geschäftsjahr 2011—Erledigungen auf sonstige Weise, z.B. mitentschiedene Verfahren, Antragsrücknahmen, etc.,” all available at www. bundesverfassungsgericht.de. 172. Rudolf Smend, “Festvortrag zur Feier des zehnjährigen Bestehens des Bundesverfassungsgerichts am 26. Januar 1962,” in Das Bundesverfassungsgericht, ed. Das Bundesverfassungsgericht (Heidelberg: C. F. Müller Juristischer Verlag, 1963), 24.

Notes to Chapter One 741 173. Christian Starck, “Das Bundesverfassungsgericht im politischen Prozess,” Recht und Staat in Geschichte und Gegenwart 466/467 (1976), 17. To say that the Court is the capstone of the constitutional state is not to suggest that it is the suprema potestas, or even that it should have the last word on the meaning of the constitution. On ceremonial occasions such as those just mentioned, high public officials customarily refer to the Court’s coordinate status alongside the Bundestag, Bundesrat, federal president, and federal government. Conventional wisdom holds that each of these constitutional organs is responsible for actualizing the Basic Law; each interprets the Basic Law with respect to its assigned functions and duties. Just as the Bundestag, for example, is the institutional manifestation of the principle of parliamentary democracy and the Bundesrat of federalism, the Federal Constitutional Court represents the constitutional state principle (Rechtsstaat). The Court’s job, then, is not to control these other constitutional organs as much as it is to safeguard and preserve their legitimate roles within the constitutionally prescribed structure of separate and divided powers. Federal President Walter Scheel uttered the conventional view in his address on the occasion of the Constitutional Court’s twenty-fi ft h anniversary. See 25 Jahre Bundesverfassungsgericht 1951– 76, ed. Das Bundesverfassungsgericht (Heidelberg: C. F. Müller Juristischer Verlag, 1976), 12. For a lengthy treatment of this more restrictive view of the Constitutional Court’s role, see Peter Häberle, Die Verfassung des Pluralismus (Königstein: Athenäum Verlag GmbH, 1980). 174. Much of this literature is cited in Peter Häberle, “Verfassungsgerichtsbarkeit als politische Kraft,” in Häberle, supra note 149, at 59–79. See also Richard Hässler, Der Konflikt zwischen Bundesverfassungsgericht und Politischer Führung (Berlin: Duncker and Humblot, 1994). 175. See, especially, Lamprecht & Malanowski, supra note 149, in which several of these decisions are treated and criticized. See also Christine Landfried, “The Impact of the German Federal Constitutional Court on Politics and Policy Output,” Government and Opposition 20 (1985): 522–41; Friedhelm Hase & Matthias Ruete, “Constitutional Court and Constitutional Ideology in West Germany,” International Journal of the Sociology of Law 10 (1982): 267–76; and Barend van Niekerk, “Social Engineering in the German Constitutional Court,” South African Law Journal 92 (1975): 298–313. 176. For several case studies of this process at work, see Landfried, supra note 149, at 47– 146; Rupp-von Brünneck, supra note 149, at 9. 177. See, for example, Uwe Wesel, “Nach Karlsruhe gehen,” Kursbuch 77 (1984): 123–44; Hase & Ruete, supra note 175; Ulrich Preuss, “Political Concepts of Order for Mass Society,” in Observations on the “Spiritual Situation of the Age,” ed. Jürgen Habermas (Cambridge: mit Press, 1984), 89–121. 178. Landfried, supra note 149, at 152. 179. See, particularly, Rudolf Dolzer, Die staatstheoretische und staatsrechtliche Stellung des Bundesverfassungsgerichts (Berlin: Duncker and Humblot, 1972), 114–18. Christine Landfried reported that, in her interviews with all of the Court’s members, twelve of the justices favored retention of abstract judicial review. See Landfried, supra note 149, at 177. 180. See Häberle, “Recht aus Rezensionen,” in Häberle, supra note 149, at 1–53, in which the author classifies and assesses the importance of this literature. 181. See ibid., at 24–27. For an excellent example of a new generation of more critical and strongly independent scholarship regarding the Court, see Matthias Jestaedt et al., Das entgrenzte Gericht—Eine kritische Bilanz nach sechzig Jahren Bundesverfassungsgericht (Berlin: Suhrkamp Verlag, 2011). 182. Gerhard Casper, “The ‘Karlsruhe Republic’—Keynote Address at the State Ceremony Celebrating the 50th Anniversary of the Federal Constitutional Court,” German Law Journal 2/18 (Dec. 1, 2001): ¶¶ 3–4, available at www.germanlawjournal.com/article.php ?id=111.

742 Notes to Chapter Two

chapter two 1. Basic Law, Article 146. 2. The gdr’s voluntary accession to the Federal Republic under the Basic Law—a decision affi rmed in East Germany’s fi rst free elections on 18 March 1990—was also regarded as evidence of the document’s broad acceptance among East Germans. For a different view of the East German perspective, see Arthur Benz, “A Forum of Constitutional Deliberation: A Critical Analysis of the Joint Constitutional Commission,” German Politics 3 (1994): 99–117. See also Gerd Röllecke, “Schwierigkeiten mit der Rechtssicherheit nach der deutschen Wiedervereinigung,” Neue Juristische Wochenschrift 11 (1991): 657– 62; and Johannes Wassmuch, “Das Regulungswerk des Einigungsvertrags,” Deutsch-Deutsche Rechtszeitschrift 9 (1990): 294– 98. For a discussion of the general impact of the Unity Treaty on the eastern Länder, see Artur Wandtke, “Auswirkungen des Einigungsvertrags auf die neuen Bundesländer,” Gewerblicher Rechtsschutz und Urheberrecht 4 (1991): 263– 67. 3. For a detailed account of these amendments, see Peter E. Quint, The Imperfect Union: Constitutional Structures and German Unification (Princeton: Princeton University Press, 1996), 115–23; and Eckart Klein, “An der Schwelle zur Wiedervereinigung DeutschlandsAnmerkungen zu Deutschlands Rechtslage im Jahre 1990,” Neue Juristische Wochenschrift 43 (1990): 1065–73. For a general treatment of reunification, see Konrad H. Jarausch, The Rush to Germany Unity (Oxford: Oxford University Press, 1994). 4. Basic Law, Article 100 (1). See also Bundesverfassungsgerichtsgesetz (Federal Constitutional Court), Article 13 (11) (hereafter referred to as fcca). 5. Basic Law, Article 93 (1) [4a] and [4b]. See also FCCA, Article 13 (8a). 6. See Theodore Maunz & Reinhold Zippelius, Deutsches Staatsrecht, 25th ed. (Munich: C. H. Beck’sche Verlagsbuchhandlung, 1983), 181–84; see also Christian Starck, “Menschenwürde als Verfassungsgarantie im modernen Staat,” Juristenzeitung 36 (1981): 457–64. For a critical assessment of the concept of human dignity, see Hans S. Stoecker, “Menschenwürde und kritische Jurisprudenz,” Juristenzeitung 23 (1968): 685– 91. 7. See Johannes Mattern, Principles of the Constitutional Jurisprudence of the German National Republic (Baltimore: Johns Hopkins University Press, 1928). 8. An excellent discussion of this common enterprise is John Ford Golay, The Founding of the Federal Republic of Germany (Chicago: University of Chicago Press, 1958). See also Hasso Hofmann, “Die Grundrechte 1789–1949–1989,” Neue Juristische Wochenschrift 50 (1989): 3177–87. 9. “Die Grundrechte im Entstehungszusammenhang der bürgerlichen Gesellschaft,” in Dieter Grimm, Die Zukunft der Verfassung (Frankfurt am Main: Suhrkamp Verlag, 1991), 86–90. For an overview of the most important theories of the state, see Hans Peter Bull, “Staatszwecke im Verfassungsstaat,” Neue zeitschrift für Verwaltungsrecht 9 (1989): 801–6; and Edin Sarcevic, Der Rechtsstaat—Modernität und Universalitätsanspruch der klassischen Rechtsstaatstheorien: Eine Bilanz der Rechtsstaatstheorien zwischen aufgeklärten Liberalismus und Nationalsozialismus (Leipzig: Leipziger Universitätsverlag, 1996), 13–40. For specific references to Kant, see Sarcevic, 106–19. 10. Leonard Krieger, The German Idea of Freedom (Boston: Beacon Press, 1957), 121. 11. Georg W. Friedrich Hegel, Hegel’s Philosophy of Right, trans. with note by T. M. Knox (Oxford: Clarendon Press, 1942), 279. 12. Georg Wilhelm Friedrich Hegel, The Philosophy of History, trans. J. Sibree (New York: Wiley, 1944), 19. 13. For accounts of this tradition, see J. G. A. Pocock, The Machiavellian Moment (Princeton: Princeton University Press, 1975); Gary Wills, Explaining America: The Federalist (Gar-

Notes to Chapter Two 743 den City, N.Y.: Doubleday, 1980); Gordon Wood, The Creation of the American Republic (Chapel Hill: University of North Carolina Press, 1969). 14. Krieger, supra note 10, at 470. 15. See infra, “Objective Order of Values.” 16. For an excellent discussion of this essentially neo-Kantian approach to constitutional law, heavily influenced by the work of Hans Kelsen, see Rupert Emerson, State and Sovereignty in Modern Germany (New Haven: Yale University Press, 1928), 159–208. Many contemporary legal scholars fi nd no incompatibility between the Basic Law and the tradition of legal positivism because they read the constitution as applicable law. A useful discussion is ErnstWolfgang Böckenförde, “Methoden der Verfassungsinterpretation,” Juristische Wochenschrift 29 (1976): 2089– 99. 17. William F. Harris II, “Bonding Word and Polity: The Logic of American Constitutionalism,” American Political Science Review 76 (1982): 34. 18. Some American constitutional scholars have also seen the U.S. Constitution as embodying a preferred way of life. See Sotirios A. Barber, On What the Constitution Means (Baltimore: Johns Hopkins University Press, 1984). 19. Eckhart Klein, “The Concept of the Basic Law,” in Main Principles of the German Basic Law, ed. Christian Starck (Baden-Baden: Nomos Verlagsgesellschaft , 1983), 15–35. 20. Gerhard Leibholz, “Constitutional Law and Constitutional Reality,” in Festschrift für Karl Löwenstein (Tübingen: J. C. B. Mohr [Paul Siebeck], 1971), 308. See also Manfred Wiegant, “Gerhard Leibholz (1910–1982): Eine deutscher Staatsrechtler des 20. Jahrhunderts,” Juristische Schulung 12 (2001): 1156–60. 21. Karl Heinrich Friauf, “Techniques for the Interpretation of Constitutions in German Law,” in Proceedings of the Fifth International Symposium on Comparative Law (Ottawa: University of Ottawa Press, 1968), 9. 22. For a commentary on Article 28, see Ingo von Münch & Philip Kunig, GrundgesetzKommentar, 6th ed. (Munich: C. H. Beck’sche Verlagsbuchhandlung, 2012), Article 28. For an overview of the general structural principles of the Basic Law and the orga nization of the state, see Klaus Kröger, “Die Entstehung des Grundgesetzes,” Neue Juristische Wochenschrift 21 (1989): 1318–24. 23. For a particularly clear historical overview of the development of the idea of the Rechtsstaat, see Ernst-Wolfgang Böckenförde, State, Society and Liberty (New York: Berg Publishers, 1991), 47–70. The brief recapitulation of the history of the idea of the Rechtsstaat that follows draws heavily on Böckenförde’s analysis. 24. For a discussion of the use and meaning of these terms and the difficulty of interpretation they present, see Erhard Denninger, “Judicial Review Revisited: The German Experience,” Tulane Law Review 59 (1985): 1015–17. 25. It is of interest to note that the original version of Article 1 (3) made the basic rights binding only on the executive and the judiciary. A 1956 amendment added the legislature to this provision. Under the older conception of the Rechtsstaat, the principle of equal protection under law was understood to bind the executive in the administration of law and the judiciary in its interpretation, but not the legislature. During the Weimar period, Gerhard Leibholz, who in 1951 would be among the fi rst appointees to the Federal Constitutional Court, vigorously challenged the notion that the legislature was not bound by the constitutional principle of equality. See his Die Gleichheit vor dem Gesetz (Berlin: Liebmann, 1925). Leibholz continued his assault on this notion in the early years of the Federal Republic and was largely responsible for persuading the German legal community that the principle of equality and other basic rights bind the legislature as well as other branches of government.

744 Notes to Chapter Two See Christian Starck, “Die Anwendung des Gleichheitsatzes,” in Der Gleichheitssatz im modernen Verfassungsstaat, ed. Christoph Link (Baden-Baden: Nomos Verlagsgesellschaft , 1982), 53–54. 26. Böckenförde, supra note 23, at 67. 27. See Maunz & Zippelius, supra note 6, at 96– 97. 28. See Ernst Forsthoff, Rechtsstaatlichkeit und Sozialstaatlichkeit (Darmstadt: Wissenschaft liche Buchgesellschaft, 1968). 29. See Ernst Benda, “Der soziale Rechtsstaat,” in Handbuch des Verfassungsrechts (Berlin: Walter de Gruyter, 1984), 477–544. 30. See Lisbon Treaty Case, 123 BVerfGE 267 (2009); Hartz IV Case, 125 BVerfGE 175 (2010). 31. See Ernst Forsthoff, “Begriff und Wesen sozialen Rechtsstaates,” in Rechtsstaat im Wandel (Stuttgart, 1964), 27–56; “Grenze des Sozialstaat,” Deutsche Zeitung, June 7, 1974, at 2. For a criticism of Forsthoff ’s view, see Ernst Benda, Werner Maihofer & Hans-Jochen Vogel, Handbuch des Verfassungsrechts, vol. 1 (Berlin: Walter de Gruyter, 1984), 509–12; Peter Caldwell, “Ernst Forsthoff and the Legacy of Radical Conservative State Theory in the Federal Republic of Germany,” History of Political Thought 15 (1994): 631–39. See also Hans Michael Heinig, “The Political and the Basic Law’s Sozialstaat Principle—Perspectives from Constitutional Law and Theory,” German Law Journal 12 (2011): 1887, available at www.germanlawjournal.com/pdfs/Vol12-No11/PDF_Vol_12_No_11_1887-1900_Heinig%20FINAL .pdf. 32. It is difficult to see how this provision could ever be enforced. There is only one reported case in which this provision was raised as a defense. The Federal Court of Justice (Bundesgerichtshof) rejected this defense raised by demonstrators prosecuted for obstructing the delivery of several “right-wing” newspapers. See 59 BGHZ 30 (1972). 33. See Konrad Hesse, “Die verfassungsrechtliche Stellung der Parteien im modernen Staat,” Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 17 (1959): 11–47; Hans Justus Rinck, “Der verfassungsrechtliche Status der politischen Parteien in der Bundesrepublik,” in Die Moderne Demokratie und ihr Recht (2 vols.) (Tübingen: J. C. B. Mohr [Paul Siebeck], 1966), 1:305–30; and Gerhard Leibholz, Strukturprobleme der modernen Demokratie (Heidelberg: C. F. Müller Juistischer Verlag, 1958). 34. See Gerhard Leibholz, “Parteienstaat und repräsentative Demokratie: Eine Betrachtung z. Art. 21 und 38 des Bonner Grundgesetzes,” Deutsches Verwaltungsblatt 66 (1951): 1–8. 35. See Chapter 4, “Separation of Powers.” 36. Modern German Begriffsjurisprudenz is heavily indebted to the teaching of Hans Kelsen; see his Pure Theory of Law, trans. Max Knight (Berkeley: University of California Press, 1967), 1. See also Arthur Kaufmann & Winfried Hassemer, “Enacted Law and Judicial Decision in German Jurisprudential Thought,” University of Toronto Law Journal 19 (1969): 469– 76. See also Eugen Bucher, “Was ist Begriff sjurisprudenz?” in Theorie und Technik der Begriff sjurisprudenz (Darmstadt: Wissenschaft liche Buchgesellschaft , 1976), 358–89. 37. Clarence J. Mann, The Function of Judicial Decision in European Economic Integration (The Hague: Martinus Nijhoff, 1971), 95. For an excellent treatment of law so conceived, see Phillippe Nonet & Philip Selznick, Law and Society in Transition (New York: Octagon Books, 1974), 53–72. 38. Oliver W. Holmes, The Common Law (Boston: Little, Brown, 1881), 1. For an excellent contrast between the role of courts in civil- and common-law systems, see J. G. SauvePlanne, Codified and Judge-Made Law (Amsterdam: North-Holland Publishing, 1982).

Notes to Chapter Two 745 39. Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921), 52. 40. See, especially, James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth- Century United States (Madison: University of Wisconsin Press, 1956). 41. Holmes, supra note 38; Roscoe Pound, Justice According to Law (London: Cumberlege, 1951); Karl Llewellyn, Common Law Tradition (Boston: Little, Brown, 1960); Jerome Frank, Law and the Modern Mind (New York: Tudor Publishing, 1936); Cardozo, supra note 39; and Learned Hand, The Bill of Rights (Cambridge: Harvard University Press, 1958). 42. Georg Jellinek, Gesetz und Verordnung (Tübingen: J. C. B. Mohr [Paul Siebeck], 1919); Gerhard Anschütz, Die Verfassung des deutschen Reichs (Berlin: Verlag Georg Stilke, 1932); Franz W. Jerusalem, Die Staatsgerichtsbarkeit (Tübingen: J. C. B. Mohr [Paul Siebeck], 1930); George Friedrich Puchta, Kursus der Institutionen, ed. Paul K, 9th ed. (Leipzig: Brietkopf and Hartel, 1981); Karl Bergbohm, Jurisprudenz und Rechtsphilosophie (2 vols.) (Leipzig: Duncker and Humblot, 1892); Gustav Radbruch, Rechtsphilosophie (Stuttgart: K. E. Kochlet Verlag, 1963). 43. See Alfons J. Beitzinger, A History of American Political Thought (New York: Dodd, Mead, 1972), 204– 9. 44. See Leonard Krieger, supra note 10, at 86–138, 182–87. See also Wolfgang G. Friedmann, Legal Theory (New York: Columbia University Press, 1967), 157–70. 45. Mann, supra note 37, at 96– 97. 46. Various versions of historicism in German law are discussed in Hendrik Jan van Eikema Hommes, Major Trends in the History of Legal Philosophy (Amsterdam: North-Holland Publishing, 1979), 185–205. 47. See Friedmann, supra note 44, at 332–36. Interessenjurisprudenz, or “jurisprudence of interests,” set forth and encouraged an interest-balancing approach to judicial decision making. See also Phillipp Heck, “Interessenjurisprudenz und Gesetzestreue,” in Interessenjurisprudenz, eds. Günter Ellscheid & Winfried Hassemer (Darmstadt: Wissenschaft liche Buchgesellschaft , 1974), 32–35; and “Begriffsjurisprudenz und Interessenjurisprudenz,” Ellscheid & Hassemer, 88–108. 48. See Holmes, supra note 38, at 229–66. 49. A general discussion of the emergence and impact of natural-law doctrine in Germany after World War II and during the early years of the Federal Republic can be found in Heinrich Rommen, “Natural Law in Decisions of the Federal Supreme Court and of the Constitutional Courts in Germany,” Natural Law Forum 4 (1959): 1–25. See also Ernst von Hippel, “The Role of Natural Law in the Legal Decisions of the German Federal Republic,” Natural Law Forum 4 (1959): 106–18; and Gottfried Dietze, “Natural Law in Modern Eu ropean Constitutions,” Natural Law Forum 1 (1956): 73– 91. 50. For a discussion of the attempt to convert law into a science in nineteenth-century America, see Morton J. Horowitz, The Growth of American Law (Boston: Little, Brown, 1950), 269–76. Examples of the late twentieth-century attempt to “objectify” constitutional decision making in terms of moral principle are Ronald S. Dworkin, A Matter of Principle (Cambridge: Harvard University Press, 1986); Michael Perry, The Constitution, the Courts and Human Rights (New Haven: Yale University Press, 1982); and David A. J. Richards, The Moral Critique of the Law (Belmont, Calif.: Dickenson Publishing, 1977). 51. 1 BVerfGE 14, 32 (1951). See also Friedrich Klein, “Bundesverfassungsgericht und Südweststaatsfrage,” Archiv des Öffentlichen Rechts 77 (1951/52): 453–64. 52. 1 BVerfGE 14 (1951). 53. Gerhard Leibholz, Politics and Law (Leiden: A. W. Sythoff, 1965), 289.

746 Notes to Chapter Two 54. Rudolf Smend, Verfassung und Verfassungsrecht (Munich: Duncker and Humblot, 1928), 188–89. See also Wilhelm Hennis, “Integration durch Verfassung?,” Juristenzeitung 10 (1999): 485– 95. 55. Smend has influenced numerous constitutional theorists. See, for example, Ekkehart Stein, Staatsrecht, 8th ed. (Tübingen: J. C. B. Mohr [Paul Siebeck], 1982), 250–53. For a critical assessment of the theory as applied by the Federal Constitutional Court, see Friedrich Müller, Juristische Methodik, 3d ed. (Berlin: Duncker and Humblot, 1989), 217–19. 56. The proximate source of this notion of the constitution as substantive or material rather than a formal or procedural entity is the Bavarian Constitutional Court’s decision of 10 June 1949, interpreting the postwar constitution of Bavaria as a substantive unity. The Federal Constitutional Court cited the case at length in its famous Southwest State Case (1951; no. 3.1), one of the Court’s earliest judgments and a seminal opinion fully comparable in importance to Marbury v. Madison in American constitutional law. See 1 BVerfGE 14, 32– 35 (1951). 57. Lüth Case, 7 BVerfGE 198, 205 (1958). See also Annette Guckelberger, “Die Drittwirkung der Grundrechte,” Juristische Schulung 12 (2003): 1151–57; and Christoph Möllers, “Wandel der Grundrechtsjudikatur: Eine Analyse der Rechtsprechung des Ersten Senats des BVerfG,” Neue Juristische Wochenschrift 28 (2005): 1973–79. 58. Peter E. Quint puts it this way: “These [objective] values are not only specified rights of individuals but are also part of the general legal order, benefiting not only individuals who may be in a certain relationship with the state but possessing relevance for all legal relationships.” Peter Quint, “Free Speech and Private Law in German Constitutional Theory,” Maryland Law Review 48 (1989): 261. 59. The objective value theory and its adoption by the Federal Constitutional Court are the subjects of a large literature in Germany. Critics see the objective value approach as a disingenuous means for importing the personal values of the justices into constitutional law. See, for example, Helmut Goerlich, Wertordnung und Grundgesetz (Baden-Baden: Nomos Verlagsgesellschaft, 1973). A related view refers to the constant incantation of values as a “tyranny of values”— see Carl Schmitt, “Die Tyrannei der Werte,” in Säkularization und Utopie: Ernst Forsthoff zum 65. Geburtstag, eds. Karl Doehring & Wilhelm G. Greve (Stuttgart: Verlag W. Kohlhammer, 1967)—and a substitute for hard reasoning and the difficult task of legal justification. See also Erhard Denninger, “Freiheitsordnung-WertordnungPfl ichtordnung,” Juristenzeitung 30 (1975): 545–47. It is said that the mere designation of one basic right as ranking higher than another often foreordains without argument a given result. The Abortion I and Mephisto cases are often cited as illustrations of this process at work. For strong defenses of the basic values approach, see Hans Joachim Koch & Helmut Rüssmann, Juristische Begründungslehre (Munich: C. H. Beck’sche Verlagsbuchhandlung, 1982); and Robert Alexy, A Theory of Constitutional Rights, trans. Julian Rivers (New York: Oxford University Press, 2004). 60. See Goerlich, supra note 59, at 64. For a comprehensive discussion and critique of the objective value theory, see Alexy, supra note 59, at 93–110. 61. Mann, supra note 37, at 159. 62. Equality Case, 3 BVerfGE 225, 232 (1953). 63. Ibid., at 233. The opinion quotes with approval Gustav Radbruch’s affi rmation of natural-law theory in the 1950 edition of his Rechtsphilosophie. A leading defender of legal positivism in the 1920s, Radbruch eventually renounced legal positivism in the light of the Nazi regime. See Gustav Radbruch, “Gesetzliches Unrecht und übergesetzliches Recht,” Süddeutsche Juristenzeitung 1 (1946): 107; and Gustav Radbruch, Der Mensch in Recht (Göttingen: Vandenhoeck and Ruprecht, 1957), 105ff.

Notes to Chapter Two 747 64. In the Parental Control Case (10 BVerfGE 59, 81 [1959]), the Court explicitly foreswore reliance on natural-law doctrine in the light of what it regarded as adequate guidelines within the text of the Basic Law itself. Another reference to justice as a valid interpretive norm comes from the Denaturalization II Case (54 BVerfGE 53, 67 [1980]). Justice Hirsch wrote a dissenting opinion in Denaturalization II at 75–79. 65. The notion of an unconstitutional constitutional amendment fi rst surfaced in an obiter dictum in the Southwest State Case (1 BVerfGE 14, 32 [1951]). It appears to have originated with the Bavarian Constitutional Court, which noted in its decision of 24 April 1950: “It is not conceptually impossible to regard a constitutional provision as void even though it is part of the constitution. Some constitutional principles are so basic and so much the expression of a legal principle that antedates the constitution that they bind the constitutional framer himself. Other constitutional provisions that are not of equal rank may be void if they contravene them” (quoted in an advisory opinion prepared for the Federal Constitutional Court by the First Civil Senate of the Federal High Court of Justice, 6 Entscheidungen des Bayerischen Verfassungsgerichtshofes 47). The best critical treatment of this principle is Otto Bachof, “Verfassungswidrige Verfassungsnormen,” in Wege zum Rechtsstaat (Königstein: Athenäum Verlag, 1979), 1–48. 66. 3 BVerfGE 225, 234, (1953). 67. See Klass Case, 30 BVerfGE 225 (1970) (holding that a restriction of privacy in the interest of national security does not infringe human dignity); Land Reform I Case, 84 BVerfGE 90 (1991) (holding that property expropriated between 1945 and 1949, prior to the adoption of the Basic Law, is beyond the protection of the Basic Law); Land Reform II Case, 94 BVerfGE 12 (1996) (holding that different policies governing the restitution of property before and after 1949 did not violate the principle of equality); and Asylum Case, 94 BVerfGE 115 (1996) (holding that the right to asylum does not fall under the principle of human dignity). 68. Lisbon Treaty Case, 123 BVerfGE 267, 343–44 (2009). 69. Ibid., at 343, 347, 349, 362–63. 70. 27 BVerfGE 360, 362 (1972). 71. 33 BVerfGE 303, 333 (1972). See also Peter Häberle, “Das Bundesverfassungsgericht im Leistungsstaat: Die Numerus-Clausus-Entscheidung vom 18.7.1972,” Die Öfftentliche Verwaltung 21 (1972): 729–40. 72. W. Cole Durham, “General Assessment of the Basic Law: An American View,” in Germany and Its Basic Law, eds. Paul Kirchhof & Donald P. Kommers (Baden-Baden: Nomos Verlagsgesellschaft, 1993), 45. 73. Lüth Case, 7 BVerfGE 198 (1958). 74. An example is the Prenuptial Agreement Case (2001), involving a pregnant woman who signed an agreement with her husband-to-be. She was pregnant with his child. The agreement specified that in the event of a divorce she would not sue her husband for alimony, although he in turn agreed to pay her a monthly sum of dm 150 for the support of the child she was carrying. Several years later they divorced, and she sued him for additional support in the light of his superior fi nancial situation. The woman fi led a constitutional complaint against a lower court judgment sustaining the validity of the original agreement. Citing Lüth, the Constitutional Court demurred, holding that the judge below had misunderstood the scope and impact of the marriage and family clause of Article 6 when viewed in tandem with the principle of equality between men and women required by Article 3 (2). Even though entered into freely, said the Court, the marital agreement did not represent the “contractual parity” protected by the institution of marriage. Here a fi nancially well-off man had exploited a fi nancially distressed woman. The Court concluded that the constitutionally required equality

748 Notes to Chapter Two between men and women may not be sacrificed within the constitutionally protected marital relationship. 103 BVerfGE 89 (2001). For examples of commercial contracts voided by the Court in the light of constitutional values, see Commercial Agent Case, 81 BVerfGE 242 (1990); and Suretyship Case, 89 BVerfGE 214 (1993). 75. For a detailed discussion of this and competing theories of the horizontal effect doctrine, see Alexy, supra note 59, at 355–65. 76. See Ernst-Wolfgang Böckenförde, “Grundrechtstheorie und Grundrechtsinterpretation,” Neue Juristische Wochenschrift 27 (1974): 1530. 77. Examples of prominent constitutional cases that rest, at least in part, on these respective theories are: Codetermination Case, 50 BVerfGE 290 (1979) (liberal theory); First Broadcasting Case, 12 GVerfGE 205 (1961) (democratic theory); and Numerus Clausus I Case, 33 BVerfGE 303 (1972) (social theory). 78. A standard description of these techniques is found in Bruno Schmidt-Bleibtreu & Franz Klein, Kommentar zum Grundgesetz für die Bundesrepublik Deutschland, 5th ed. (Darmstadt: Verlag Luchterhand, 1980), 109–18. See also Gerd Roellecke, “Prinzipien der Verfassungsinterpretation in der Rechtsprechung des Bundesverfassungsgerichts,” in Bundesverfassungsgericht und Grundgesetz (2 vols.), ed. Christian Starck (Tübingen: J. C. B. Mohr [Paul Siebeck], 1976), 2:22–49; and Böckenförde, supra note 16, at 2089– 99. 79. See, for example, Probleme der Verfassungsinterpretation: Dokumentation einer Kontroverse, eds. Ralph Drier & Friedreich Schwegmann (Baden-Baden: Nomos Verlagsgesellschaft, 1976). 80. Friauf, supra note 21, at 9–22. See the Constitutional Court’s discussion of these techniques in Reich Tax Levy Case (11 BVerfGE 126, 129–32 [1960]). For an excellent comparison of these approaches with American methods of judicial interpretation, see Winfried Brugger, “Legal Interpretation, School of Jurisprudence, and Anthropology: Some Remarks from a German Point of View,” American Journal of Comparative Law 42 (1994): 396–402. See also Kaufmann & Hassemer, supra note 36, at 465–66. 81. Konrad Hesse, Grundzüge des Verfassungsrechts für die Bundesrepublik Deutschland, 16th ed. (Heidelberg: C. F. Müller Juistischer Verlag, 1988), 23. 82. Donald Kommers’ colleague, Sotirios Barber, fi nds this interesting in light of the argument of the New Right that original intent is the only way to restrain the exercise of judicial review in the United States. See also Stephen Macedo, The New Right v. The Constitution (Washington, D.C.: Cato Institute, 1987). 83. Th is, at least, is the prevailing theory of German constitutional interpretation. Yet historical arguments are frequently advanced in German constitutional opinions, and some decisions seem actually to be grounded in such arguments. See, for example, Soviet Zone Case, 2 BVerfGE 266, 276 (1953); Saarland Extradition Case, 4 BVerfGE 299, 304–5 (1955); and Medical Practice Case, 33 BVerfGE 125, 153–55 (1972). In the United States, by contrast, historical arguments based on the will of the founders of the constitution—if this can be discovered—are of “decisive importance.” For Germans the objective meaning of the text itself takes clear priority over the subjective will of the framers. See Koch & Rüssmann, supra note 59, at 21–25. 84. Friauf, supra note 21, at 13. 85. Hesse, supra note 81, at 22. It may be of interest to note here that some German writers have recently sought to reformulate the approach to constitutional interpretation by resorting to analytic philosophy. See Koch & Rüssmann, supra note 59; and Alexy, supra note 59, at 57–59.

Notes to Chapter Two 749 86. Siegfried Magiera, “The Interpretation of the Basic Law,” in Starck, supra note 19, at 93. See also Hesse, supra note 81, at 21–24. Hesse cites a large number of cases in which the Court has deviated from the customary methods of interpretation. 87. For an excellent discussion of Normgebundenheitstheorie, see Mann, supra note 37, at 153–62. 88. Ernst Friesenhahn, “Wesen und Grenzen der Verfassungsgerischtsbarkeit,” Zeitschrift für Schweizerisches Recht 73 (1954): 158. 89. Ibid., at 153. Th is statement parallels the view of Justice Owen Roberts: “When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the Government has only one duty—to lay the article of the constitution that is invoked beside the statute that is challenged and to decide whether the latter squares with the former. All the court does, or can do, is to announce its considered judgment upon the question. The only power it has, if such it may be called, is the power of judgment.” United States v. Butler, 297 U.S. 1, 62–63 (1936). 90. Justice Kirchhof ’s observation reminds one of U.S. Supreme Court Chief Justice John Roberts’s comment at his confi rmation hearing before the U.S. Senate Judiciary Committee. He solemnly reminded the committee that his role as a judge is analogous to a baseball umpire calling balls and strikes. 91. Leibholz, supra note 53, at 276. 92. Ibid., at 275. Th is “truth-fi nding” theory of judicial decision is compatible with the declaratory character of most German constitutional cases. “The judgments of a constitutional court,” Justice Leibholz observed, “have mostly a meaning which transcends the actual case itself; their significance affects the general weal and interest. They bind the state as a whole” (ibid., at 274). 93. Ibid., at 274. 94. See Helmut Simon, “Verfassungsgerichtsbarkeit,” in Handbuch des Verfassungsrechts, eds. Ernst Benda, Werner Maihofer & Hans-Jochen Vogel (Berlin: Walter de Gruyter, 1984), 1282. 95. Hesse, supra note 81, at 21. See also the classic criticism of conventional legal methodology by Josef Esser, Vorverständnis und Methodenwahl in der richterlichen Rechtsbildung des Privatrechts, 3d ed. (Tübingen: J. C. B. Mohr [Paul Siebeck], 1974). 96. See Böckenförde, supra note 76, at 1530–38. 97. Comment by Dieter Grimm in symposium discussion. See Constitutional Review and Legislation: An International Comparison, ed. Christine Landfried (Baden-Baden: Nomos Verlagsgesellschaft, 1988), 169. 98. Jutta Limbach, a former president of the Federal Constitutional Court, has uttered similar views. In her Clifford Chance Lecture delivered at Oxford University in 1997, she said, “Intellectual honesty compels us to state that there is no usable catalogue of criteria that could serve as a signpost in the ridge-walking between law and politics. The two fields of action partly overlap, and cannot unambiguously be separated from each other. As the constitutional review body, the Court has a share in politics.” Yet she insists on distinguishing between adjudication and lawmaking. In her view, “fi nding the law”—the Constitutional Court’s function—“is a matter for adjudication, while making law is by contrast a task for politics.” See Jutta Limbach, “The Law-Making Power of the Legislature and Judicial Review,” in Law Making, Law Finding and Law Shaping: The Diverse Influences, ed. Basil Markesinis (Oxford: Oxford University Press, 1997), 2:161, 174. 99. Leibholz, supra note 53, at 276.

750 Notes to Chapter Two 100. Leibholz, supra note 20, at 308. Leibholz expressed his ultimate view of the judicial task as fundamentally creative when he said, “It must be the task of the constitutional lawyer to reconcile rules of law and constitutional reality in such a way that the existing dialectical confl ict between rule and reality can be removed as far as possible by creative interpretation of the constitution without doing violence thereby either to reality in favor of the rule, or to the rule in favor of reality.” Ibid. 101. See Donald P. Kommers, Judicial Politics in West Germany: A Study of the Federal Constitutional Court (Beverly Hills, Calif.: Sage Publications, 1976), 182– 91. See also Peter Wittig, “Politische Rücksichten in der Rechtsprechung des Bundesverfassungsgerichts,” Der Staat 8 (1969): 137–58. 102. Leibholz, supra note 53, at 276–77. 103. Justice Zeidler, interview with Donald P. Kommers, April 9, 1986. 104. Kommers, supra note 101, at 185. It might be worth observing that many of the justices elected to the Federal Constitutional Court in recent years have been judges or professors of law rather than politicians. Of the Court’s sixteen current members, seven were recruited from the high federal courts—three justices of each senate must be chosen from these courts—and eight were professors of law. On the whole, they have far less political experience than justices chosen in earlier years. Past presidents and vice presidents, for example, along with other members of the Court, were often politicians with significant parliamentary or ministerial experience at the federal or Land level. Five of the Court’s eight presidents were national political leaders at the time of their selection, one of whom, Roman Herzog, after his ser vice as the Court’s president, was elected president of the Federal Republic. Only one current member, Peter Müller (who joined the Court in December 2011), came to the Court having chiefly built his reputation in politics. For nearly two decades he was a member of the Saarland state parliament and from 1999–2011 he was Saarland’s governor (Premierminister). There may be a reason to believe that justices with a background in politics arrive at the Court with different conceptions of the judicial role than justices without such experience. Th is, however, remains a matter of speculation. 105. Louis Henkin, “Infallibility under the Law: Constitutional Balancing,” Columbia Law Review 78 (1978): 1047. 106. Robert Alexy, “Balancing, Constitutional Review, and Representation,” International Journal of Constitutional Law 3 (2005): 572. 107. Ibid. 108. David P. Currie, The Constitution of the Federal Republic of Germany (Chicago: University of Chicago Press, 1994), 181. 109. See Bernhard Schlink, “German Constitutional Culture in Transition,” Cardozo Law Review (1993): 714–15. 110. Eberhard Grabitz, “Der Grundsatz der Verhältnismässigkeit in der Rechtsprechung des Bundesverfassungsgesetzes,” Archiv des Öffentlichen Rechts 98 (1973): 568–616; see also Ingo von Münch, Staatsrecht, 5th ed. (Stuttgart: Verlag W. Kohlhammer, 1993), 367– 68. 111. Hesse, supra note 81, at 27. 112. 93 BVerfGE 1, 22–23 (1955). See also Gregor Stricker, “Das Kruzifi xurteil in der wissenschaft lichen Diskussion,” Neue Juristische Wochenschrift 49 (1996): 440–41; and Roland Pofalla, “Kopft uch ja—Kruzifi x nein? Zu den Widersprüchen der Rechtsprechung des BVerfG,” Neue Juristische Wochenschrift 57 (2004): 1218–20. 113. See 108 BVerfGE 282 (2003) (citing Interdenominational School Case, 41 BVerfGE 29, 50–51 [1975], and Classroom Crucifi x Case, 93 BVerfGE 1, 22–23 [1995]). Dozens of articles have been written on this case. See in par tic u lar Ute Sacksofsky, “Die Kopft uch-

Notes to Chapter Two 751 Entscheidung von der religiösen zur föderalen Vielfalt,” Neue Juristische Wochenschrift 56 (2003): 3297–301; and Gerhard Czermak, “Kopft uch, Neutralität und Ideologie Das Kopftuch Urteil des BVerfG im ideologischen Streit,” Neue Zeitschrift für Verwaltungsrecht 23 (2004): 943–46. 114. See Alexander M. Bickel, The Least Dangerous Branch, 2d ed. (New Haven: Yale University Press, 1986), chap. 4. 115. See Christian Rau, Selbst Grenzen in der Rechtsprechung des United States Supreme Court und des Bundesverfassungsgerichts (Berlin: Duncker and Humblot, 1996). 116. See Rental Prepayment Case, 95 BVerfGE 64 (1996) (upholding against a property right claim the legal extension of contractual terms for the payment of rent in publicly subsidized housing). 117. 90 BVerfGE 286 (1994). See also Torsten Stein & Holger Kröninger, “Bundeswehreinsatz im Rahmen von nato-, weu- bzw. lvn-Militäraktionen—BVerfG vom 12.7.1994,” Juristische Ausbildung 5 (1995): 254– 62; Gerd Röllecke, “Bewaff nete Auslandseinsätze— Aussenpolitik oder Innenpolitik? Ein verfassungsänderndes Urteil des Bundesverfassungsgerichts,” Der Staat 34 (1995): 415–28; and Roland Pofalla, “Die Bundeswehr im Ausland—Eine Zwischenbilanz des Gesetzgebungsverfahrens,” Zeitschrift für Rechtspolitik 7 (2004): 221–25. 118. 37 BVerfGE 27 (1974). See Josef Isensee, “Vorrang des Europarechts und deutsche Verfassungsvorbehalte-offener Dissens,” in Verfassungsstaatlichkeit—Festschrift für Klaus Stern zum 65. Geburtstag (Munich: C. H. Beck’sche Verlagsbuchhandlung, 1997), 1239–68. 119. 73 BVerfGE 339 (1986). See also Udo Di Fabio, “Richtlinienkonformität als ranghöchstes Normauslegungsprinzip?—Überlegungen zum Einfluss des indirekten Gemeinschaftsrechts auf die nationale Rechtsordung,” Neue Juristische Wochenschrift 43 (1990): 947–50; Karl Eckart Heinz, “Grundrechtschutz und Gemeinschaft srecht—zur Entscheidung des BVerfG ‘Solange II’,” Die Öffentliche Verwaltung 40 (1987): 851–58; Günter Hirsch, “Kompetenzverteilung zwischen EuGH und nationaler Gerichtsbarkeit,” Neue Zeitschrift für Verwaltungsrecht 17 (1998): 907–10; and Manfred Zuleeg, “Die föderativen Grundsätze der Europäischen Union,” Neue Juristische Wochenschrift 53 (2000): 2846–51. 120. 102 BVerfGE 147 (2000). The regulations were also challenged as a violation of Basic Law, Articles 3 (1) and 23 (1). 121. For an English translation of the decision, see Human Rights Law Journal 21 (Oct. 31, 2000): 254. 122. Lisbon Treaty Case, 126 BVerfGE 267 (2009). Maastricht Treaty Case, 89 BVerfGE 155 (1993). See Karl M. Meessen, “Maastricht nach Karlsruhe,” Neue Juristische Wochenschrift 47 (1994): 549–54; and Hans-Jürgen Papier, “Die Entwicklung des Verfassungsrechts seit der Einigung und seit Maastricht,” Neue Juristishe Wochenschrift 50 (1997): 2841–48. 123. See Southwest State Case, 1 BVerfGE 14, 61 (1951), the landmark decision that has been compared to Marbury v. Madison, 1 Cranch 137 (1803). See Kommers, supra note 101, at 66–67. The relevance of these suprapositive principles was also emphasized in Schleswig-Holstein Voters’ Association Case,1 BVerfGE 208, 233 (1952); Equality Case, 3 BVerfGE 225, 232 (1953); and National Socialist Law Case, 23 BVerfGE 98, 106 (1968). 124. George Fletcher, “Human Dignity as a Constitutional Value,” University of Western Ontario Law Review 22 (1984): 178–82. 125. 45 BVerfGE 187, 227 (1977). 126. Investment Aid I Case, 4 BVerfGE 7, 15–16 (1954). Time and again over the years the Court has invoked this passage in its decisional law. See, for example, Conscientious Objector I Case, 12 BVerfGE 45, 51 (1960); and Klass Case, 30 BVerfGE 1, 20 (1970).

752 Notes to Chapter Two 127. See, for example, Electoral District II Case, 16 BVerfGE 130 (1963). 128. For a discussion of this principle and its application, see Chapter 3. See also Hartmut Bauer, Die Bundestreue (Tübingen: J. C. B. Mohr [Paul Siebeck], 1992); Hermann-Wilfried Bayer, Die Bundestreue (Tübingen: J. C. B. Mohr [Paul Siebeck], 1961). 129. Basic Law, Article 23 (2). 130. Handicraft Trade Case, 32 BVerfGE 54, 69 (1971). See also Ernst-Wolfgang Böckenförde, “Wie Werden in Deutschland die Grundrechte im Verfassungsrecht interpretiert,” Europäische Grundrechte 31 (2004): 598–603. A former justice of the Federal Constitutional Court, Böckenförde argues that issues dealing with the current interpretation of basic rights under the constitution cannot be understood in the absence of their historical development. 131. Bericht über den Verfassungskonvent auf Herrenchiemsee vom 10. bis 23. August 1948 (Munich: Richard Pflaum Verlag, 1949). The Herrenchiemsee report has been cited in several opinions. See, for example, Handicraft Trade Case, 32 BVerfGE 54, 69 (1971); Foreclosure I Case, 51 BVerfGE 97, 108 (1979); Parliamentary Dissolution I Case, 62 BVerfGE 1, 86– 105 (1983); Flick Case, 67 BVerfGE 100, 132 (1984); Preventive Detention I Case, 109 BVerfGE 133, 170 (2004); and Rudolf Hess Memorial Celebration Case, 124 BVerfGE 300, 328 (2009). 132. The stenographic report of the Parliamentary Council’s proceedings is available in typescript in the archives of the Bundestag and in the libraries of several law faculties. The reports have also been published. See, for example, Parlamentarischer Rat: Stenographischer Bericht: Verhandlungen des Hauptausschusses (Bonn: Bonner Universitäts-Buchdruckerei Gebr. Scheur G.m.b.H., 1950). All the protocols and documents related to the Basic Law were recently reorga nized by topic and committee proceedings and published in a set of twelve volumes. See Der Parlamentarische Rat 1948–1949 (Munich: Harald Boldt Verlag, 1999). The volumes appeared periodically between 1975 and 1999. A summary of the debates on each article of the Basic Law has also been published in Jahrbuch des Öffentlichen Rechts 1 (1951): 1– 926. 133. 83 BVerfGE 341, 355 (1991). 134. 67 BVerfGE 100, 130–31 (1984). 135. 62 BVerfGE 1, 44–47 (1983). 136. Ibid., at 86–105. 137. FCCA, Article 31 (1). 138. FCCA, Article 31 (2). 139. 108 BVerfGE 282 (2003). 140. The increasing importance of judicial precedents has been underscored by the publication of several casebooks in constitutional law. See, for example, Entscheidungen des Bundesverfassungsgerichts, ed. Jürgen Schwabe, 6th ed. (Hamburg: 1994 [privately published and distributed]). Th is short paperback book consists largely of headnotes and brief passages from relevant decisions arranged on an article-by-article basis without commentary. In addition, two former justices of the Federal Constitutional Court have published 104 of the Court’s leading opinions arranged in chronological order (again without commentary) in a twovolume paperback edition. See Entscheidungen des Bundesverfassungsgerichts: Studienauswahl, eds. Dieter Grimm & Paul Kirchhof, 2d ed. (Tübingen: J. C. B. Mohr [Paul Siebeck], 1997). A third casebook, and the most useful, has been organized under 30 of the 146 articles of the Basic Law and combines brief excerpts from leading cases with annotated commentaries. See Ingo Richter & Gunnar Folke Schuppert, Verfassungsrecht, 3d ed. (Munich: C. H. Beck’sche Verlagsbuchhandlung, 1996). 141. In recent decades, the original authors have been joined by Rupert Scholz, Peter Lerche, Hans-Jürgen Papier, Albrecht Randelzhofer, and Eberhard Schmidt-Aßmann, all

Notes to Chapter Two 753 distinguished professors of law. (Interestingly, Papier became president of the Federal Constitutional Court in 1998. He, like Herzog, was proposed by the cdu/csu.) Another authoritative and frequently cited commentary is the three-volume set by Hermann v. Mangoldt, Friedrich Klein & Christian Starck, Das Bonner Grundgesetz, 4th ed. (Munich: Verlag Franz Vahlen, 1999–2000). Its length of 8,183 pages is one measure of its scope and depth. Horst Dreier’s three-volume GG- Grundgesetz Kommentar rivals these in size (the second edition is nearly six thousand pages long) and professional reputation amongst scholars and practitioners. Dreier, whose nomination to the Constitutional Court by the spd was scuppered, has seen to it that his commentary (authored by Dreier and a dozen other scholars) is infused with rich historical and comparative insights. Horst Dreier, GG- Grundgesetz Kommentar, 2d ed. (Tübingen: J. C. B. Mohr [Paul Siebeck], 2007). 142. In the well-known Jehovah’s Witnesses Case, the Constitutional Court relied almost exclusively on Böckenförde’s off-the-bench writings on the relationship between the state and religious associations. See 102 BVerfGE 370 (2000). See Heinrich Wilms, “Glaubensgemeinschaften als Körperschaften des öffentlichen Rechts,” Neue Juristische Wochenschrift 56 (2003): 1083–90; and Christian Hillgruber, “Der Körperschaftsstatus von Religionsgemeinschaften— Objectives Grundverhältnis oder subjectives Grundrecht,” Neue Zeitschrift für Verwaltungsrecht 20 (2001): 1347–55. 143. v. Mangoldt, Klein & Starck, supra note 141. One commentary, however, is based exclusively on the decisions of the Federal Constitutional Court. The commentary is distinctive for this reason. See Gerhard Leibholz, Hans-Justus Rinck & Dieter Hesselberger, Grundgesetz für die Bundesrepublik Deutschland: Kommentar anhand der Rechtsprechung des Bundesverfassungsgerichts (Munich: C. H. Beck’sche Verlagsbuchhandlung, 2011). Interestingly, both Leibholz and Rinck, long deceased, were members of the Federal Constitutional Court. Dieter Hesselberger, a judge of the Federal Court of Justice—and now also deceased— edited later editions of the book. Th is book is not an analytical commentary on the American hornbook model. Like other commentaries, it proceeds article-byarticle with extended excerpts from relevant decisions of the Federal Constitutional Court. 144. See Lawrence H. Tribe, American Constitutional Law, vol. 1, 2d ed. (New York: Foundation Press, 2000); and John E. Nowak & Ronald D. Rotunda, Constitutional Law, 6th ed. (St. Paul, Minn.: West Group, 2000), 1307–428. 145. Basic Law, Article 100 (2). 146. It might be noted that the Court has occasionally expanded a basis right not recognized by general rules of international law. In the Foreign Spouse Case (1987), for example, the Court acknowledged, as a matter of general principle, that states may control the entry of aliens into their sovereign territory. In this sense, however, it ruled that Article 6 of the Basic Law, obliging the state to confer its special protection on marriage and the family, and incorporating both an institutional guarantee and an objective value, may not impose unreasonable barriers on the right of spouses living in non–European Union states (in this instance Turkey and Yugoslavia) from joining their alien-worker husbands permanently in Germany. See 76 BVerfGE 1 (1987). Foreign Spouse recalls our previous discussion of the Basic Law’s horizontal effect on third parties; the Federal Constitutional Court held that in denying these plaintiffs resident visas, the administrative courts had failed to consider the overriding significance of Article 6 in Germany’s constitutional order. 147. Presumption of Innocence Case, 74 BVerfGE 358, 370 (1978). 148. See, respectively, Lüth Case, 7 BVerfGE 198, 208 (1958) and Spiegel Case, 20 BVerfGE 162, 220–21 (1966). Lüth and Spiegel are featured and discussed at length in Chapter 8.

754 Notes to Chapters Two–Thr ee 149. See Jörg Manfried Mössler, “Rechtsvergleichung und Verfassungsrechtsprechung,” Archiv des öffenlichen Rechts 99 (1974): 228–42. 150. For example, in the famous Pharmacy Case, featured and discussed in Chapter 10, the Court drew on the Swiss experience in assessing the constitutionality of a Land law limiting the number of pharmacies permitted in its territory, just as the Court referred to English and American sources in deciding several extradition cases. 7 BVerfGE 377, 415–16 (1958). The extradition cases are the Death Penalty Extradition Case, 18 BVerfGE 112, 117–18 (1964) and Saarland Extradition Case, 4 BVerfGE 299, 301–2 (1955). 151. See, respectively, Abortion I Case, 39 BVerfGE 1, 73–74 (1975); Denaturalization II Case, 54 BVerfGE 53, 75–76 (1980); and Party Finance V Case, 73 BVerfGE 40, 103–4 (1986). 152. In recent years, a swirling debate on the propriety of considering the constitutional decisions of other nations has taken place on and off the U.S. Supreme Court. For a summary of the debate, see Vicki C. Jackson & Mark Tushnet, Comparative Constitutional Law (New York: Foundation Press, 2d ed. 2006), 172– 94. Th is debate has been far less intense in Germany. See Axel Tschentscher, “Dialektische Rechtsvergleichung—Zur Methode der Komparistik im öffentlichen Recht,” Juristenzeitung 62 (2007): 807–16. Peter Häberle, one of Germany’s leading constitutional scholars, has identified comparative law as a “fi ft h means of interpretation,” right behind the standard four mentioned earlier (i.e., grammatical, systematic, teleological, and historical). See Peter Häberle, “Grundrechtsgeltung und Grundrechtsinterpretation im Verfassungsstaat—Zugleich zur Rechtsvergleichung als ‘fünfter’ Auslegungsmethode,” Juristenzeitung 44 (1989): 913–16.

chapter three 1. For treatments of this movement toward unity, see Egmont Zechlin, Die deutsche Einheitsbewegung (Frankfurt-am-Main: Ullstein, 1967); Arnold Brecht, Federalism and Regionalism in Germany (New York: Oxford University Press, 1945); Peter Rassow, Deutsche Geschichte (Stuttgart: J. B. Metzlersche Verlagsbuchhandlung, 1987), 403–645; H. W. Koch, A Constitutional History of Germany (London: Longman, 1984), 105–63; Karl Peter Sommermann, “Art. 20,” in Das Bonner Grundgesetz-Kommentar (3 vols.), eds. Christian Starck, Hermann von Mangoldt & Friedrich Klein, 5th ed. (Munich: Franz Vahlen Verlag, 2005), 2:1, 9–12, ¶¶ 20–23; Hans-Jochen Vogel, “Die Bundesstaatliche Ordnung des Grundgesetzes,” in Handbuch des Verfassungsrechts der Bundesrepublik Deutschland, eds. Ernst Benda, Werner Maihofer & Hans-Jochen Vogel, 2d ed. (Berlin: Walter de Gruyter Verlag, 1994), 1041, 1044– 45, ¶¶ 4–6. 2. For a succinct discussion of Germany’s increasingly integrated economy, see Jochen Abr. Frowein, “Integration and the Federal Experience in Germany and Switzerland,” in Integration Through Law—European and the American Federal Experience, Vol. 1: Methods, Tools and Institutions, Book 1: A Political, Legal and Economic Overview, eds. Mauro Cappelletti et al. (Berlin: Walter de Gruyter, 1986), 574–81. 3. Arthur Gunlicks, “German Federalism Reform: Part One,” German Law Journal 8 (2007): 111, 115, available at www.germanlawjournal .com/pdf/Vol08No01/PDF_Vol _08 _No_01_111-132_Developments_Gunlicks. 4. The most important of these plans, submitted to the Brandt government in 1975, was considered by the Ernst Commission on the Reorga nization of the Federal Territory (see infra note 13). The goal of the plan was to create five or six states of roughly equal size, population, and economic structure. See Neugliederung des Bundesgebietes: Kurzfassung des Berichts

Notes to Chapter Thr ee 755 der Sachverständigenkommission für die Neugliederung des Bundesgebietes (Bonn: Heymanns Verlag, Köln, 1974); see also Rudolph Hebek, “Das Problem der Neugliederung des Bundesgebietes,” Aus Politik und Zeitgeschichte 46 (1971); Klaus Georg Meyer-Teschendorf, “Art. 29,” in Das Bonner Grundgesetz-Kommentar, eds. Chrsitian Starck, Hermann von Mangoldt & Friedrich Klein, 5th ed. (Munich: Franz Vahlen Verlag, 2005), 2:619, 624–25, ¶¶ 8– 9; Almuth Hennings, Der unerfüllte Verfassungsauftrag—Neugliederung des Bundesgebiets im Spannungsfeld politischer Interessengegensätze (Heidelberg: R. v. Decker’s/G. Schenk Verlag, 1983), 104– 7; Susanne Greulich, Länderneugliederung und Grundgesetz—Entwicklungsgeschichte und Diskussion der Länderneugliederungsoption nach dem Grundgesetz (Baden-Baden: Nomos Verlagsgesellschaft, 1995), 100–120; Reinhard Timmer, “Neugliederung des Bundesgebiets und die künft ige Entwicklung des föderativen Systems,” in Festschrift für Werner Ernst zum 70. Geburtstag, ed. Harry Westermann (Munich: C. H. Beck’sche Verlagsbuchhandlung, 1980), 463–74. 5. Philip M. Blair, Federalism and Judicial Review in West Germany (Oxford: Clarendon Press, 1981), 4. See also Roger H. Wells, The States in West Germany: A Study in Federal- State Relations, 1949–1960 (New York: Bookman, 1961). Th is perspective is bolstered by the view, held by former German president Roman Herzog, that the amendments to Article 29 that were implemented following the fusion of the southwestern states would make any future territorial reorga nization impossible. 6. Baden-Württemberg was formed out of the original states of Württemberg-Baden, Württemberg-Hohenzollern, and Baden. For an excellent discussion of the formation of the new southwestern state, see Theodor Eschenburg, “The Formation of the State of BadenWürttemberg,” in The German Southwest (Berlin: Verlag W. Kohlhammer, 1990), 37–57; Jörg Menzel, Verfassungsrechtssprechung—100 Entscheidungen des Bundesverfassungsgerichts in der Retrospektive (Tübingen: J. C. B. Mohr [Paul Siebeck], 2000), 43–47; Paul Feuchte, “Politische Einheit als Ziel der Staatsgründung und Auft rag der Verfassung—Dargestellt am Beispiel Baden-Württembergs—Teil I,” Verwaltungsblätter für Baden-Württemberg 13 (1992): 81–85; Paul Feuchte, “Politische Einheit als Ziel der Staatsgründung und Auft rag der Verfassung—Dargestellt am Beispiel Baden-Württembergs—Teil II,” Verwaltungsblätter für Baden-Württemberg 13 (1992): 125–31; Paul Feuchte, “Politische Einheit als Ziel der Staatsgründung und Auft rag der Verfassung—Dargestellt am Beispiel Baden-Württembergs— Teil III,” Verwaltungsblätter für Baden-Württemberg 13 (1992): 287– 91; Paul Feuchte, “Politische Einheit als Ziel der Staatsgründung und Auft rag der Verfassung—Dargestellt am Beispiel Baden-Württembergs—Teil IV,” Verwaltungsblätter für Baden-Württemberg 13 (1992): 413–16; Greulich, supra note 4, at 59–73; Hennings, supra note 4, at 65–82. 7. For an excellent discussion of this dispute, see Arthur T. von Mehren, “Constitutionalism in Germany—The First Decision of the New Constitutional Court,” American Journal of Comparative Law 1 (1952): 71–85. See also Friedrich Klein, “Bundesverfassungsgericht und Südweststaatsfrage,” Archiv des Öffentlichen Rechts 77 (1951/52): 453–64; Wilhelm Dörr, “Die Konstituante des Südweststaats,” Archiv des Öffentlichen Rechts 77 (1951/52): 465– 68; Ulrich Scheuner, “Die Rechtssprechung des Bundesverfassungsgerichts und das Verfassungsrecht der Bundesrepublik,” Deutsches Verwaltungsblatt 67 (1952): 645–49. 8. 1 Cranch 137 (1803). See von Mehren, supra note 7, at 70– 94; Gerhard Leibholz, “The German Constitutional Federal Court and the Southwest Case,” American Political Science Review 46 (1953): 723–31; Franz W. Jerusalem, “Das Urteil des Bundesverfassungsgerichts über den Südweststaat-Streit,” Neue Juristische Wochenschrift 5 (1952): 45–48. For an account of the proceedings and arguments before the court in the Southwest State Case, see Der Kampf um den Südweststaat (Munich: Isar Verlag, 1952).

756 Notes to Chapter Thr ee 9. 1 BVerfGE 14, 32 (1951). 10. See Charles Groves Haines, The Role of the Supreme Court in American Government and Politics 1783–1835 (Berkeley: University of California Press, 1944), 256– 65; Werner Frotscher & Bodo Pieroth, Verfassungsgeschichte, 5th ed. (Munich: C. H. Beck’sche Verlagsbuchhandlung, 2005), 20–25; Winfried Brugger, “Kampf um die Verfassungsgerichtsbarkeit,” Juristische Schulung 43 (2003): 320–25. 11. Leibholz, supra note 8. 12. 13 BVerfGE 54 (1961). See Greulich, supra note 4, at 79–80. 13. The federal minister of the interior formed a state boundary study group in 1972 known as the Ernst Commission. Its recommendation that the eleven existing states be reduced to fi ve or six in the interest of greater social and economic integration fell on deaf ears. See Sachverständigenkommission für die Neugliederung des Bundesgebietes (Bonn: Federal Interior Ministry, 1973). 14. The entire procedure for reorga nizing the federal territory was changed as a result of 1968 and 1976 amendments to Article 29. A principal change was the repeal of the original provision requiring a national referendum in the event that a proposed reorga nization of the federal territory should be rejected by a majority of voters in one area of the state. Measures for reorga nizing the federal territory must still be introduced by federal law subject to confi rmation by referendum in the state or area concerned. The current provisions of Article 29 specify the various conditions and percentages of the votes required in local referenda before territorial changes go into effect. See Theodor Maunz, Roman Herzog & Rupert Scholz, “Art. 29,” in Grundgesetz: Kommentar, eds. Theodor Maunz, Gunter Dürig & Roman Herzog, 32d ed. (Munich: C. H. Beck’sche Verlagsbuchhandlung, 1996), 4:13, 19, §19; Greulich, supra note 4, at 120; Timmer, supra note 4, at 463–500. 15. 49 BVerfGE 10 (1978). 16. 96 BVerfGE 139 (1997). 17. The federal minister of the interior has the authority to review such applications pursuant to the federal law enacted in accordance with Article 29 (6) of the Basic Law: “Other details respecting referenda, petitions, and advisory referenda shall be regulated by a federal law. . . .” See Law on the Process for Referenda, Petitions and Advisory Referenda Pursuant to Article 29 (6) of the Basic Law of 30 July 1979, Bundesgesetzblatt [hereafter referred to as BGBl.] I:1317. 18. Konrad Hesse, Der unitarische Bundesstaat, 20th ed. (Heidelberg: C. F. Müller Juistischer Verlag, 1995). 19. Ulrich Scheuner, “Struktur and Aufgabe des Bundesstaates in der Gegenwart,” Die Offentliche Venvaltung 15 (1962): 641–48. 20. Theodore Maunz, Gunter Dürig & Roman Herzog, “Art. 20,” in Grundgesetz: Kommentar, eds. Theodor Maunz, Gunter Dürig, & Roman Herzog 48th ed. (Munich: C. H. Beck’sche Verlagsbuchhandlung, 2006), 3:1. For a discussion of these differing conceptions of the federal state, see Ekkehart Stein & Frank Götz, Staatsrecht, 19th ed. (Tübingen: J. C. B. Mohr [Paul Siebeck], 2004), 287–88. 21. 13 BVerfGE 54 (1961). 22. Ibid., at 77. For a general treatment of West German federalism, see Heinz Laufer, Das Föderative System der Bundesrepublik Deutschland (Munich: Bayerische Landeszentrale für politische Bildungsarbeit, 1981); and Arthur Gunlicks, The Länder and German Federalism (Manchester: Manchester University Press, 2003). 23. Th is provision traces its origin to Articles 17 and 127 of the Weimar Constitution. See, generally, Wolfgang Löwer, “Art. 28,” in Grundgesetz: Kommentar, eds. Ingo von Münch & Philip Kunig, 5th ed. (Munich: C. H. Beck’sche Verlagsbuchhandlung, 2001), 2:314–20.

Notes to Chapter Thr ee 757 24. 60 BVerfGE 175 (1982). 25. Ibid., at 207–8. 26. Ibid., at 209. 27. State Constitutional Courts Case, 96 BVerfGE 345 (1997). See Johannes Dietlein, “Kontrollbefugnis der Landesverfassungsgerichte,” Juristische Ausbildung 22 (2000): 19–25; Eckart Klein, “Die Landesverfassungsbeschwerde—Ein Instrument zur Überprüfung der Anwendbarkeit von Bundesrecht?,” Juristische Schulung 40 (2000): 209–15; Karl Hain, “Anmerkung,” Juristen Zeitung 53 (1998): 620–24; Klaus Lange, “Kontrolle des bundesrechtlich geregelten Verfahrens durch Landesverfassungsgerichte?,” Neue Juristische Wochenschrift 51 (1998): 1278–82. 28. See Blair’s discussion of the cases, supra note 5, at 157–62. 29. 1 BVerfGE 299 (1952) (involving a federal law allocating funds to the various states for housing construction). 30. As amended in 1994, Article 87 (1) no longer refers to “postal and telecommunications ser vices” as among the subjects of direct federal administration. The federation’s exclusive administrative competence over postal and telecommunications ser vices is now established by Article 87f (2): “Sovereign functions in the area of posts and telecommunications shall be discharged by federal administrative authorities.” See Menzel, supra note 6, at 122–28. 31. 1 BVerfGE 117 (1952). 32. See Housing Funding Case, 1 BVerfGE 299 (1952); Christmas Bonus Case, 3 BVerfGE 52 (1953); and North Rhine–Westphalia Salaries Case, 4 BVerfGE 115 (1954). 33. 8 BVerfGE 104 (1958); 8 BVerfGE 122 (1958); and 6 BVerfGE 309 (1957). See Menzel, supra note 6, at 84– 90; Hans-Joachim Becker, “Zum Konkordatsurteil des Bundesverfassungsgerichts,” Neue juristische Wochenschrift 10 (1957): 694– 97; Wilhelm Wengler, “Zur bindenden Wirkung des Konkordatsurteils,” Neue juristische Wochenschrift 10 (1957): 1417–25. 34. Blair, supra note 5, at 164. 35. 8 BVerfGE 122 (1958). For a discussion of the case, see Menzel, supra note 6, at 113–17. See also Ernst-Werner Fuß, “Die Nichtigkeitserklärung der Volksbefragungsgesetze von Hamburg und Bremen,” Archiv des öffentlichen Rechts 108 (1983): 383–422; Theodor Maunz, “Grundgesetz und Volksbefragungsgesetze—Zu den Volksbefragungsurteilen des Bundesverfassungsgerichts,” Die Öffentliche Verwaltung 12 (1959): 1–5. For somewhat more contemporary commentary on this issue, see Jörg Menzel, “Das allgemeine politische Mandat der Landesparlamente,” Deutsches Verwaltungsblatt 114 (1999): 1385–456; Alexis von Komorowski, “Äußerungsrecht der kommunalen Volksvertretungen und gemeindliche Verbandskompetenz—Zugleich ein Beitrag zur Dogmatik der gegliederten Demokratie,” Der Staat 37 (1998): 122–46. 36. See Hans-Justus Rinck, “Der verfassungsrechtliche Status der politischen Parteien in der Bundesrepublik,” in Die modern Demokratie and ihr Recht, eds. Karl Dietrich Bracher et al. (Tübingen: J. C. B. Mohr [Paul Siebeck], 1966), 2:305–30. 37. 8 BVerfGE 122, 140 (1958). 38. For documentation of this development, see Waldemar Schreckenberger, “Intergovernmental Relations,” in Public Administration in the Federal Republic of Germany, eds. Klaus König et al. (Netherlands: Kluwer-Venenter, 1983), 78–80; Hans-Joachim Faller, “Das Prinzip der Bundestreue in der Rechtsprechung des Bundesverfassungsgerichts,” in Festschrift für Theodor Maunz zum 80. Geburtstag, eds. Peter Lerche, Hans Zacher & Peter Badura (Munich: C. H. Beck´sche Verlagsbuchhandlung, 1981), 54–59; Gunlicks, supra note 22. 39. State Treaty Case, 42 BVerfGE 103, 117 (1976). See Christian Pestalozza, “Anmerkung zu BVerfGE 42, 103,” Neue Juristische Wochenschrift 29 (1976): 1087–88.

758 Notes to Chapter Thr ee 40. In the Kalkar II Case (81 BVerfGE 310, 337 [1990]), which involved a confl ict between federal and state authorities over the construction of a nuclear power plant, the court reaffi rmed the “unwritten principle of a duty of reciprocal loyalty [requiring] the federal government and the Länder . . . to consider the interests of [each other].” See Kalkar II Case (1990; no. 3.12). See also Hans-Uwe Pera, “Bundesweisung bei der Bundesauft ragsverwaltung am Beispiel der Atomverwaltung,” Neue Zeitschrift für Verwaltungsrecht 8 (1989): 1120–25; Klaus Lange, “Probleme des Bund-Länder-Verhältnisses im Atomrecht,” Neue Zeitschrift für Verwaltungsrecht 9 (1990): 928–31. 41. Pofalla I Case, 103 BVerfGE 81, 88 (2001). See also Gorleben Case, 104 BVerfGE 238 (2001). For commentary on Gorleben, see Fritz Ossenbühl, “Abschied von der Ländertreue?,” Neue Zeitschrift für Verwaltungsrecht 22 (2003): 53. In general, see Hellmut Wagner, “Atomkompromiss und Ausstiegsgesetz,” Neue Zeitschrift für Verwaltungsrecht, 20 (2001): 1089– 97. 42. See the chapter entitled “Financing the Federal System,” Gunlicks, supra note 22, at 163–211; Gisela Färber, “On the Misery of the German Financial Constitution,” in German Public Policy and Federalism, ed. Arthur B. Gunlicks (Oxford: Berghahn Books, 2003), 47– 64. See also Arthur B. Gunlicks, Local Government in the German Federal System (Durham: Duke University Press, 1986), 119–42; Manfred Timmerman, “Budgetary and Financial Planning,” in König et al., supra note 38, at 189–203. For a general discussion of cooperative federalism, see Jost Pietzscher, “Landesbericht Bundesrepublik Deutschland,” in Zusammenarbeit der Gliedstaaten im Bundesstaat, ed. Christian Starck (Baden-Baden: Nomos Verlagsgesellschaft , 1988), 17–76. 43. Werner Heun, “Vorbemerkung zu Art. 104a-115 GG,” in Grundgesetz Kommentar, ed. Horst Drier (Tübingen: J. C. B. Mohr [Paul Siebeck], 2000), 3:711, 714, ¶ 6; Franz Klein, “Bund und Länder nach der Finanzverfassung des Grundgesetzes,” in Handbuch des Verfassungsrechts, eds. Ernst Benda, Werner Maihofer & Hans-Jochen Vogel (Berlin: Walter de Gruyter, 1994), 1104–7. 44. Gunlicks, supra note 22, at 163. 45. Basic Law, 104b (1). 46. Gunlicks, supra note 3, at 125. 47. “Together they make up about 72 percent of total tax revenue and about 88 percent of Länder revenues.” Gunlicks, supra note 22, at 176. 48. Ibid., at 178. 49. 1 BVerfGE 117, 131 (1952). 50. 72 BVerfGE 330 (1986). See Reinhart Mußgnug, “Der horizontale Finanzausgleich auf dem Prüfstand des Bundesverfassungsgerichts—BVerfGE, NJW 1986, 2629,” Juristische Schulung 26 (1986): 872–79; Joachim Wieland, “Die verfassungsrechtliche Rahmenordnung des Finanzausgleichs,” Juristische Ausbildung 10 (1988): 410–19. 51. 86 BVerfGE 148 (1992). See Hans-Wolfgang Arndt, “Anmerkung,” Juristen Zeitung 47 (1992): 971– 74; Hans- Günter Henneke, “Beistands- und Kooperationspfl ichten im Bundesstaat,” Juristische Ausbildung 15 (1993): 129–37; Peter Selmer, “Das Bundesverfassungsgericht an der Schwelle des fi nanzwirtschaft lichen Einigungsprozesses—BVerfGE 86, 148,” Juristische Schulung 35 (1995): 978–84. 52. Solidarity Supplemental Tax Case, Federal Constitutional Court, 2 BvL 310, from 8 September 2010, Neue Juristische Wochenschrift 64 (2011): 441. See also Supplemental Tax Case, 32 BVerfGE 333 (1972). 53. Gunlicks, Local Government, supra note 42, at xi. 54. Gunlicks, supra note 22, at 61. 55. Gunlicks, supra note 3, at 119.

Notes to Chapter Thr ee 759 56. For the development of local government in German history, see, Gunlicks, Local Government, supra note 42, at 5–31. 57. Municipal Financial Autonomy Case, 71 BVerfGE 25 (1985). 58. Article 106 (5) of the Basic Law provides that municipalities receive a share of the income tax apportioned to the states, with distribution to the municipalities to be determined on a per capita basis. Article 106 (5a) of the Basic Law provides that municipalities receive a share of the VAT based on a formula reflecting geographic and economic factors. Article 106 (6) of the Basic Law assigns, among others, real property taxes and taxes on the practice of trades exclusively to the municipalities. 59. Laatzen Case, 50 BVerfGE 50 (1978). When Thuringia enacted a redistricting law designed to incorporate small municipalities into larger units of government for the sake of administrative efficiency, the Court rejected a request for an injunction against the law. See Isserstedt Case, 91 BVerfGE 70 (1994). See also Papenburg Case, 82 BVerfGE 310 (1990). 60. Arthur B. Gunlicks, “Constitutional Law and the Protection of Subnational Governments in the United States and West Germany,” Publius 18 (1988): 141. 61. Ibid. 62. 426 U.S. 833 (1976). 63. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). 64. Gunlicks, supra note 60, at 22. 65. 79 BVerfGE 127, 143 (1988). See Friedrich Schoch, “Zur Situation der kommunalen Selbstverwaltung nach der Rastede-Entscheidung des Bundesverfassungsgerichts,” Verwaltungsarchiv 81 (1990): 18–54; Walter Frenz, “Der Schutz der kommunalen Organisationshoheit,” Verwaltungsarchiv 86 (1995): 378–97; Markus Kenntner, “Zehn Jahre nach ‘Rastede’— Zum dogmatischen Konzeption der kommunalen Selbstverwaltung im Grundgesetz,” Die Öffentliche Verwaltung 51 (1998): 701–12; Franz-Ludwig Knemeyer, “Staat, Kommunen, Gemeinden, Landkreise. Die Rastede-Entscheidung des Bundesverfassungsgerichts,” Der Staat 29 (1990): 406–14. 66. 79 BVerfGE 127, 145 (1988). 67. Article 50 of the Basic Law reads: “The Länder shall participate through the Bundesrat in the legislation and administration of the federation and in matters concerning the Eu ropean Union.” See Roman Herzog, “Aufgaben des Bundesrats,” in Handbuch des Staatsrechts III, eds. Josef Isensee & Paul Kirchhof (Heidelberg: C. F. Müller Juistischer Verlag, 2005), 966–67. 68. Gunlicks, supra note 22, at 344. 69. Ibid., at 346. 70. For an excellent review of the case in English, see Nina Arndt & Rainer Nickel, “Federalism Revisited: Constitutional Court Strikes Down New Immigration Act for Formal Reasons,” German Law Journal 4 (2003): 71, available at www.germanlawjournal .com/pdf /Vol04No02/PDF_Vol_04_No_02_71-89_Public_Arndt_Nickel.pdf. The English-language translation of the Bundesrat Protocol from the vote in the Immigration Act Case is taken from this article. 71. 39 BVerfGE 1 (1975); and 48 BVerfGE 127 (1978). See Günter Schulz, “Blick in die Zeit—Kriegsdienstverweigerung,” Monatsschrift für deutsches Recht 33 (1979): 721–23; H. Mandelartz, “Anmerkung,” Juristische Arbeitsblätter 10 (1978): 523–24. 72. Article 87b (2) declares: “Federal laws concerning defense, including recruitment for military ser vice and protection of the civilian population, may, with the consent of the Bundesrat, provide for their implementation by the federation itself . . . or by the states on behalf of the federation.”

760 Notes to Chapter Thr ee 73. 48 BVerfGE 127, 129 (1978). 74. Emergency Price Control Case, 8 BVerfGE 274 (1958). See also Income and Corporation Tax Administration Case, 1 BVerfGE 76 (1951) (requiring the Bundesrat’s consent when federal law lays down procedures to be used by a state in collecting federal revenue). 75. Conscientious Objector I Case, 12 BVerfGE 45 (1960). See Gustav Heinemann, “Anmerkung,” Neue Juristische Wochenschrift 14 (1961): 355–56; Hellmuth Günther, “Altes und Neues im Recht der Kriegsdienstverweigerung,” Deutsches Verwaltungsblatt 21 (1983): 1083– 95; Hans-Theo Brecht, Kriegsdienstverweigerung und Zivildienst—Kommentar, 5th ed. (Munich: C. H. Beck’sche Verlagsbuchhandlung, 2004), 2–5. 76. David P. Conradt, The German Polity, 8th ed. (New York: Pearson/Longman, 2005), 199–200. See also Uwe Thaysen, The Bundesrat, the Lander and the German Federation (Washington, D.C.: American Institute for Contemporary German Studies, 1994), 37. 77. See Konrad Reuter, Föderalismus: Grundlagen and Wirkungen in der Bundesrepublik Deutschland, 4th ed. (Heidelberg: Decker and Muller, 1991). 78. Conradt, supra note 76, at 200–02. 79. Arthur B. Gunlicks, “German Federalism and Recent Reform Efforts,” German Law Journal 6 (2005): 1283, available at www.germanlawjournal.com/pdf/Vol06No10/PDF_Vol _06_No_10_1283-1296_SI _Articles _Gunlicks.pdf. 80. “Article 70 (1) of the Basic Law assigns the legislative powers in principle to the Länder. In consequence of the almost complete utilization of the comprehensive and extensive enabling powers in several cata logues, legislation is in practice mostly federal legislation. . . . The requirement of Article 72 Basic Law that should limit the utilization of these powers has been construed so broadly and has been left to the assessing prerogative of the federal legislature to such an extent that this rule has practically no real effect.” Werner Heun, “The Evolution of Federalism,” in Studies in German Constitutionalism, ed. Christian Starck (BadenBaden: Nomos Verlagsgesellschaft , 1995), 167, 176–77. See Markus Kenntner, Justitiabler Föderalismus (Berlin: Dunckner and Humblot, 2000), 119–22; Jörn Ipsen, Staatsrecht I- Staatsorganisationsrecht (Munich: Luchterhand, 2005), 164–67. 81. Atomic Weapons Referenda II Case, 8 BVerfGE 122 (1958). See Frido Wagener, “The External Structure of Administration in the Federal Republic of Germany,” in König et al., supra note 38, at 49–64. 82. One example of such a response is the 1969 amendment to the Basic Law conferring on the federal government the authority to enact “general principles governing higher education” (Article 75 (1a)). The First Broadcasting Case (12 BVerfGE 205 [1961]), which emphasized the primacy of the states in the field of cultural policy, prompted the introduction of this amendment. See First Broadcasting Case (1961; no. 3.2). 83. Article 75 (1) makes framework legislation subject to the conditions established by Article 72. Jörn Ipsen, Staatsrecht I— Staatsorganisationsrecht (Munich: Luchterhand, 2005), 168–70; Hartmut Maurer, Staatsrecht I (Munich: C. H. Beck’sche Verlagsbuchhandlung, 2003), 553–55. 84. Gunlicks, supra note 3, at 119. 85. Wolfgang Schäuble, Interior Minister, Address at the Konrad-Adenauer-Stift ung Conference: Competition versus Cooperation (Oct. 19, 2006), available at www.bmi.bund .de/cln _012/nn _769688/Internet/Content/Nachrichten/Reden/2006/10/BM _ _Foeder alismusreform _ _en.html. 86. “Federal law shall be adopted by the Bundestag.” Article 70 (1). Articles 80 and 81 outline exceptional departures from the Bundestag’s exclusive authority to make law. 87. Under the new Article 87e, ratified in 1993, “federal railways shall be operated as private enterprises,” but the “construction, maintenance, and operation of tracks” shall remain

Notes to Chapter Thr ee 761 under federal control and ownership. Under Article 87d, as amended in 1992, Parliament may authorize the privatization of the airlines. 88. A discussion of the now-abolished federal framework legislation (Article 75) is reserved for the treatment of “cooperative federalism” in a following subchapter. 89. Explosives Control Case, 13 BVerfGE 367, 371–72 (1962). See Water Pollution Case, 15 BVerfGE 1 (1962); and Federal-State Salary Case, 34 BVerfGE 9 (1972). 90. U.S. Const. art. I, § 8, cl. 18. 91. Rather than remaining silent on the question of state legislative authority, which is implicated by the defi nition of federal legislative authority, Article 72 (1) declares: “On matters within the concurrent legislative power, the Länder shall have power to legislate so long as and to the extent that the federation has not exercised its legislative power by enacting a law.” Article 31, in combination with Article 70, would seem to establish the same principle when the federation is acting pursuant to its exclusive legislative power. Article 31 succinctly provides: “Federal law shall take precedence over Land law.” However, the preemptive force of the federation’s exercise of its concurrent legislative authority has been altered by the 2006 federalism reform, which granted the states the right to deviate from federal concurrent legislation with respect to a limited number of subjects (Article 72 (3)). 92. Basic Law, Article 74 (1) [13], [19a], and [33]. 93. For a discussion of this case, see Edward McWhinney, “Constitutional Law and Treaty-Making Power— German Vatican Concordat of 1933—Decision of the West German Federal Constitutional Court,” Canadian Bar Review 35 (1957): 842–48. 94. 252 U.S. 416 (1920). 95. Blair, supra note 5, at 246. An example of such decisions is the Road Traffic Case (27 BVerfGE 18 [1969]) (upholding a federal law regulating road traffic). Regarding this decision, see Klaus Tiedemann, “Die Gesetzgebungskompetenz für Ordnungswidrigkeiten,” Archiv des Öffentlichen Rechts 89 (1964): 56–87. Other representative cases include the Casino Tax Case (28 BVerfGE 119 [1970]) (voiding a federal tax on casinos); Freight Traffic Case (38 BVerfGE 61 [1974]) (sustaining a federal tax on road freight traffic); and the Wine Tax Case (37 BVerfGE 1 [1974]) (sustaining a federal tax on wine). The following cases upheld state taxes on various kinds of entertainment: Pleasure Tax Case (14 BVerfGE 76 [1962]); Music Box Tax Case (31 BVerfGE 119 [1971]). See generally Christian Maiwald, “Gesetzgebungszuständigkeit im Strafrecht,” Zeitschrift für Rechtspolitik 39 (2006): 18–22. 96. Petra Minnerop & Frank Schorkopf, “The German University Reform: Between Adjustment and Continuity,” in I Annual of German & European Law, eds. Russell Miller & Peer Zumbansen (Oxford: Berghahn Books, 2005), 1, 42. 97. The Commission of the Bundestag and Bundesrat for the Modernization of the Federal Order. 98. The resulting cases will be discussed in a subsequent subchapter treating cooperative federalism, which includes consideration of the federation’s competence to issue framework legislation. 99. Basic Law, Article 74 (1) [11]. 100. Prior to 1994 the limiting term had been “necessary.” Gunlicks, supra note 3, at 121. 101. The limit on the Parliament’s discretion was implied by the Court’s decision in the State Liability Case (61 BVerfGE 149 [1982]). The federal law in question in State Liability shifted liability for negligent acts of public officials to the states. In fi nding that the Bundestag had legislated outside its authority in enacting the law, the Court noted that the laws dealing with the relationship of civil servants to the state were within the domain of public law as well as a matter over which the states historically had exercised jurisdiction. See Fritz Ossenbühl, “Anmerkung,” Die Öffentliche Verwaltung 42 (1989): 987–89; Fritz Ossenbühl,

762 Notes to Chapter Thr ee Staatshaftungsrecht, 5th ed. (Munich: C. H. Beck’sche Verlagsbuchhandlung, 1998), 4–5; 452–55. 102. Gunlicks, supra note 3, at 121. 103. See Markus Rau, “Subsidiarity and Judicial Review in German Federalism: The Decision of the Federal Constitutional Court in the Geriatric Nursing Act Case,” German Law Journal 4 (2003): 223, available at www.germanlawjournal.com/pdfs/Vol04No03/PDF_Vol _04_No_03_223-236_Public _Rau.pdf. 104. 106 BVerfGE 62, 150 (2002). Regarding this decision, see Heike Jochum, “Richtungsweisende Entscheidung des Bundesverfassungsgerichts zur legislativen Kompetenzordnung des Grundgesetzes,” Neue Juristische Wochenschrift 56 (2003): 28–30; Markus Kenntner, “Der Föderalismus ist (doch) justiziabel!—Anmerkung zum ‘Altenpflegegesetz-Urteil’ des Bundesverfassungsgerichts,” Neue Zeitschrift für Verwaltungsrecht 22 (2003): 821–24. With respect to the Court’s new approach to federalism, see Günther Schneider, “Die Neuregelung der Altenpflege durch das Altenpflegegesetz,” Neue Juristische Wochenschrift 54 (2001): 3226–30. 105. 110 BVerfGE 141 (2004). Regarding this decision, see Christian Pestalozza, “Hund und Bund im Visier des Bundesverfassungsgerichts,” Neue Juristische Wochenschrift 57 (2004): 1840–44. In general, see Thomas Kunze, “Kampfhunde—Verfassungsrechtliche Aspekte der Gefahrenabwehr,” Neue Juristische Wochenschrift 54 (2001): 1608–13. 106. 111 BVerfGE 10 (2004). Regarding this decision, see Thomas Poschmann, “Inanspruchnahme konkurrierender Kompetenzen des Bundes und Neuordnung der Bundesstaatlichen Ordnung,” Neue Zeitschrift für Verwaltungsrecht 23 (2004): 1318–22; Hendrik Horstmann, “Neue Gesetzgebungskompetenzen bei Ladenschluss und Arbeitszeit,” Neue Zeitschrift für Arbeitsrecht 23 (2006): 1246–50; Katrin Fuchs, “Ladenschluss—und kein Ende?,” Neue Zeitschrift für Verwaltungsrecht 24 (2005): 1026–29. For a general discussion regarding the Shop Closing Act, see Achim Schundler, “Der Ladenschluss auf dem Rückzug?—Gesetz zur Verlängerung der Ladenöff nung an Samstagen,” Neue Juristische Wochenschrift 56 (2003): 2131–34. 107. Basic Law, Article 125a (2). 108. “Article 140 of the Basic Law, [the Court] explained, by incorporating Article 139 of the Weimar Constitution, expressly protects Sundays and holidays.” Craig T. Smith, “Constitutional Drift: Toward the End of the Federal Shop-Closing (Ladenschluss) Regulation,” German Law Journal 5 (2004): 1031, 1040, available at www.germanlawjournal .com/pdf/Vol05No09 /PDF_Vol_05_No_09_1031-1044_Public_Smith.pdf. 109. Ibid. 110. Gunlicks, supra note 3, at 127–28. 111. Werner Heun, “Artikel 91a,” in Grundgesetz Kommentar, supra note 43, at 3:326, 328, ¶ 2 (footnotes not included) (authors’ translation). 112. Sovereignty here refers only to legislative autonomy. As will be discussed later in this chapter, in Germany the federation and the states are bound up in a thick framework of interrelations because the states bear most of the burden of administering federal law. 113. Gunlicks, supra note 22, at 61. 114. Ibid., at 385. 115. Ibid. 116. Werner Heun, “The Evolution of Federalism,” in Studies in German Constitutionalism, ed. Christian Starck (Baden-Baden: Nomos Verlagsgeslleschaft , 1995), 167, 191. 117. 93 BVerfGE 319, 341 (1995). See Dietrich Murswiek, “Ein Schritt in die Richtung auf ein ökologisches Recht—zum ‘Wasserpfennig’—Beschluss des Bundesverfassungsgerichts,” Neue Zeitschrift für Verwaltungsrecht 15 (1996): 417–21; Hans Georg Raber, “Wassernutzungsentgelte und das Grundgesetz,” Neue Zeitschrift für Verwaltungsrecht 16 (1997): 219–23.

Notes to Chapter Thr ee 763 118. 4 BVerfGE 115 (1954). See generally Dieter Carl, “Besoldungskürzung durch bundesgesetzliche und/oder landesgesetzliche Maßnahmen,” Neue Zeitschrift für Verwaltungsrecht 8 (1989): 510–15. 119. Blair, commenting on the North Rhine–Westphalia Salaries Case, supra note 5, at 82. In Salaries the federal government had established a fi xed salary schedule for its own civil servants. Shortly thereafter, North Rhine–Westphalia passed a law providing its own employees with higher salaries. The federal government contested the validity of the state law. In applying the balancing test mentioned in the text, the Second Senate sustained the validity of the state’s salary schedule. North Rhine–Westphalia Salaries Case, 4 BVerfGE 115 (1954). The Court upheld similar statutes enacted by two other states even though the push of federal policy here was toward greater overall uniformity. See Schleswig-Holstein Salaries Case, 18 BVerfGE 159 (1964); and Hamburg Salaries Case, 30 BVerfGE 90 (1970); Judicial Title Case, 38 BVerfGE 1 (1974). 120. Widow’s Pension I Case, 25 BVerfGE 142, 152 (1969); and North Rhine–Westphalia Salaries Case, 4 BVerfGE 115 (1954). 121. “Article 75 was deleted from the Basic Law in the federalism reform of 2006, which was not surprising given the implications of the [Junior Professor case]. . . .” Gunlicks, supra note 3, at 123. 122. 112 BVerfGE 226 (2005). Regarding this decision, see Daniel Kransnick, “Aus dem Rahmen gefallen: Die Hochschulgesetzgebung des Bundes vor dem Aus?,” Die öffentliche Verwaltung 58 (2005): 902–8; Rainer Wernsmann, “Reichweite der Zustimmungsbedürft igkeit von Gesetzen im Bundesrat,” Neue Zeitschrift für Verwaltungsrecht 24 (2005): 1352–57. 123. For a detailed discussion of this crisis, see Peter J. Katzenstein, Policy and Politics in West Germany (Philadelphia: Temple University Press, 1987), 296–324. See also, Hartmut Maurer, Staatsrecht I (Munich: C. H. Beck’sche Verlagsbuchhandlung, 2005), 647–49; Werner Hoppe, “Planung,” in Handbuch des Staatsrechts der Bundesrepublik Deutschland, eds. Josef Isensee & Paul Kirchhof (Heidelberg: C. F. Müller Juristischer Verlag, 2006), 331–33. 124. Heun, supra note 111, at 328 ¶ 2; 332 ¶ 8. 125. Ibid., at 334 ¶ 11. 126. Gunlicks, supra note 22, at 172. 127. Gunlicks, supra note 3, at 124. 128. U.S. Const. art. I, § 8, cl. 1. See Erwin Chemerinsky, Constitutional Law—Principles and Policies, 3d ed. (New York: Aspen Publishers, 2006), 275 (citing John C. Eastman, “Restoring the ‘General’ to the General Welfare Clause,” Chapman Law Review 4 [2001]: 63). 129. Gunlicks, supra note 3, at 125. 130. For an excellent description of these various levels of administration, see Gunlicks, Local Government, supra note 3, 84–118. See also Maurer, supra note 123, at 630–49. 131. Article 74a. 132. Gunlicks, supra note 3, at 119. 133. See Chimney Sweep II Case, 63 BVerfGE 1 (1983). 134. See Klaus Stem, Das Staatsrecht der Bundesrepublik Deutschland (Munich: C. H. Beck’sche Verlagsbuchhandlung, 1980), 2:832–33. 135. 104 BVerfGE 249 (2002). 136. 81 BVerfGE 310, 332 (1990). 137. See supra note 40. 138. Brokdorf Demonstration Case, 69 BVerfGE 315 (1985).

764 Notes to Chapter Four

chapter four 1. References to the tripartite structure of government appear in two other constitutional provisions: Article 20 (3) binds the executive and the judiciary to “law and justice” while subjecting legislation “to the constitutional order”; and Article 1 (3) commands that constitutionally guaranteed fundamental rights of persons “shall bind the legislature, the executive, and the judiciary as directly enforceable law.” Provisions subjecting the powers of government to principles of liberty and justice reflect the Basic Law’s premise that separation of powers is not alone sufficient to ensure limited government. 2. See Veterans Assistance Case, 7 BVerfGE 183, 188 (1957) (regarding the decision, see Burkhard Sinemus, Der Grundsatz der Gewaltenteilung in der Rechtsprechung des Bundesverfassungsgerichts [Frankfurt am Main: Peter Lang Verlag, 1982], 110–15); Bremen Civil Servant Case, 9 BVerfGE 268, 280 (1959) (regarding the decision, see Sinemus, 115–25; in general, see Walter Leisner, “Die quantitative Gewaltenteilung—Für ein neues Verständnis der Trennung der Gewalten,” Die Öffentliche Verwaltung 22 [1969]: 405–11); and Fiscal Administration Case, 22 BVerfGE 106, 111 (1967) (regarding the decision, see Sinemus, 134–35). 3. The Court has ruled that the Basic Law’s scheme of separated powers is a “fundamental principle of the liberal democratic basic order.” See Graf Compensation Case, 3 BVerfGE 4, 13 (1953); Equality Case, 3 BVerfGE 225, 239 (1953) (regarding the decision, see Sinemus, supra note 2, at 103–7; in general, see Henning Zwirner, “Die Rechtsprechung des Bundesverfassungsgerichts zur Parteienfinanzierung,” Archiv des öffentlichen Rechts 118 [1993]: 81–135); and Judicial Qualification Case, 34 BVerfGE 52, 59 (1972) (regarding the decision, see Sinemus, supra note 2, at 151–54). For a general discussion of separation of powers, see H. J. Hahn, “Über die Gewaltenteilung in der Wertwelt des Grundgesetzes,” Jahrbuch des öffentlichen Rechts 91 (1965): 15–44; Klaus Stern, Staatsrecht der Bundesrepublik Deutschland (2 vols.) (Munich: C. K. Beck’sche Verlagsbuchhandlung, 1980), 2:513–46; Udo Di Fabio, “Gewaltenteilung,” in Handbuch des Staatsrechts (2 vols.), eds. Josef Isensee & Paul Kirchhof, 3d ed. (Heidelberg: C. F. Müller Juistischer Verlag, 2004), 613–58; Christoph Möllers, Die drei Gewalten: Legitimation der Gewaltengliederung in Verfassungsstaat, Europäischer Integration und Internationalisierung (Weilerswist, Germany: Velbrück Verlag, 2008). 4. These special units would include constitutionally created committees such as the Committee on Foreign Affairs and Defense (Article 45a), the Petitions Committee (Article 45c), and the Bundestag’s Defense Commissioner (Article 45b). In addition, the Federal Constitutional Court has conferred independent constitutional status on political party groups within the Bundestag. A minority party, for example, may vindicate its rights as a parliamentary party in a proper proceeding before the Court. See Party Finance III Case, 24 BVerfGE 300 (1968). These matters are discussed in Chapter 5. In general, see Hans Herbert von Arnim, “Politische Parteien,” Die Öffentliche Verwaltung 38 (1985): 593–605. 5. As suggested in note 4, intrabranch disputes may also be the subject of an Organstreit proceeding. For example, a political party represented in Parliament would be permitted to initiate an Organstreit proceeding against the Bundestag if the latter denied it a right to which it is entitled as a constituent unit of the parent body; see the Green Party Exclusion Case, 70 BVerfGE 324 (1986) (regarding the decision, see Walther Schmidt, “Informationsanspruch des Abgeordneten und Ausschußbesetzung—Zum Urteil des Bundesverfassungsgerichts vom 14. Januar 1986,” Die Öffentliche Verwaltung 39 [1986]: 236–39; Karl-Heinz Hohm, “Recht auf Chancengleichheit der Fraktionen und oppositioneller Minderheitenschutz—Zur Nichtrepräsentanz der GRÜNEN-Fraktion in Gremien und Ausschüssen der ‘sicherheitsempfi ndlichen Bereiches,’ ” Neue Juristische Wochenschrift 38 (1985): 408–14; Horst Dreier, “Regelungs-

Notes to Chapter Four 765 form und Regelungsinhalt des autonomen Parlamentsrechts,” Juristenzeitung 45 [1990]: 310–21; in general, see Hans Herbert von Arnim, “Parteifi nanzierung: Zwischen Notwendigkeit und Missbrauch—Alte Probleme und neue Entwicklungen,” Neue Zeitschrift für Verwaltungsrecht 22 [2003]: 1076–80); Minority Rights in Investigative Committees Case, 105 BVerfGE 197 (2002) (regarding the decision, see Meinhard Schröder, “Altes und neues zum Recht der Parlamentarischen Untersuchungsausschüsse aus Anlaß der cdu-Parteispendenaff äre,” Neue Juristische Wochenschrift 52 [2000]: 1455–58; Dieter Wiefelspütz, “Der Eid im Untersuchungsausschuss,” Zeitschrift für Rechtspolitik 35 [2002]: 14–18). Even an individual legislator would be able to bring such an action if the Bundestag were to deprive him or her of certain entitlements guaranteed under Articles 46, 47, and 48. 6. See Peter Haungs, “Kanzlerdemokratie in der Bundesrepublik Deutschland: Von Adenauer bis Kohl,” Zeitschrift für Politik 33 (1986): 44–66. Roman Herzog, former president of the Federal Constitutional Court and former federal president, called the chancellor democracy the “most significant example” of the concentration of power in the German system. “We associate its creation,” he explained, “with the name and political achievements of Konrad Adenauer. Chancellor democracy is a short term for a parliamentary system of government in which the head of government rules to a certain extent both the parliament and the government, with rather less influence over the government than the President of the United States has, for example, but consequently with more influence over parliament.” Roman Herzog, “The Separation and Concentration of Power in the Basic Law,” in Germany and Its Basic Law: Past, Present and Future—A German-American Symposium, eds. Paul Kirchhof & Donald P. Kommers (Baden-Baden: Nomos Verlagsgesellschaft, 1993), 391, 397. In general, see Anselm Doering-Manteuffel, “Strukturmerkmale der Kanzlerdemokratie,” Der Staat 30 (1991): 1–18. 7. Werner Maihofer, “Abschliessende Äusserungen,” in Handbuch der Veffassungsrechts (2 vols.), eds. Ernst Benda et al. (Berlin: Walter de Gruyter, 1984), 2:1412. See Herzog, supra note 6, at 398. 8. See Dieter Grimm, Einführung in das öffentliche Recht (Heidelberg: C. F. Müller Juristischer Verlag, 1985). 9. For studies of the Bundestag, see Gerard Braunthal, The West German Legislative Process (Ithaca: Cornell University Press, 1972); Gerhard Loewenberg, Parliament in the West German Political System (Ithaca: Cornell University Press, 1966); and Friedrich Schaefer, Der Bundestag (Opladen: Westdeutscher Verlag, 1982). For studies heavily touching on the relationship between the chancellor and the Federal Parliament, see R. Rausch, Bundestag and Bundesregierung (Munich: C. H. Beck’sche Verlagsbuchhandlung, 1976); E. U. Junker, Die Richtlinienkompetenz des Bundeskanzlers (Tübingen: J. C. B. Mohr [Paul Siebeck], 1965); and Nevil Johnson, Government in the Federal Republic of Germany (Oxford: Pergamon Press, 1973). For studies of parliamentary state secretaries and the presidency, see Heinz Laufer, Der Parlamentarische Staatssekretär (Munich: C. H. Beck’sche Verlagsbuchhandlung, 1969); and H. Rausch, Der Bundespräsident (Munich: Bayerische Landeszentrale für Politische Bildungsarbeit, 1979). 10. For detailed discussions of this process, see Klaus von Beyme & Manfred G. Schmidt, Policy and Politics in the Federal Republic of Germany (New York: St. Martin’s Press, 1985); Christof Degenhart, Staatsrecht I (Heidelberg: C. F. Müller Juristischer Verlag, 2002), 274– 81; Martin Nolte & Christian Tams, “Das Gesetzgebungsverfahren nach dem Grundgesetz,” Juristische Ausbildung 22 (2000): 158–65. 11. Gustav Heinemann, president from 1969 to 1974, once threatened not to sign any measure seeking to restore capital punishment in Germany. In 1970 he actually did refuse to sign a law regulating architects and thus prevented it from coming into force. In this instance he

766 Notes to Chapter Four based his refusal on the Court’s judgment in the Engineer’s Case (26 BVerfGE 246 [1969]), which invalidated a similar statute on the ground that the federation is not empowered under the Basic Law to legislate for the protection of the professions. In general, see Gustav Heinemann & Heinz Rausch, Der Bundespräsident (Munich: Bayerische Landeszentrale für politische Bildungsarbeit, 1979), 67–68, 79–83; Franz Reimer, “Vertrauensfrage und Bundestagsauflösung bei parlamentarischer Anscheinsgefahr,” Juristische Schulung 45 (2005): 680–83. 12. Ernst Benda, “Nur ein Trick,” Frankfurter Allgemeine Zeitung, June 8, 2005. 13. 62 BVerfGE 1 (1983). The decision featured a 6–2 split. See Wolf-Rüdiger Schenke, “Zur verfassungsrechtlichen Problematik der Bundestagsauflösung,” Neue Juristische Wochenschrift 36 (1983): 150–53; Christian Pestalozza, “Art. 68 gg light oder Die Wildhüter der Verfassung,” Neue Juristische Wochenschrift 57 (2005): 2817–20; Hans-Peter Schneider, “Sybillinisch oder salomonisch? Das Urteil des Bundesverfassungsgerichts zur Parlamentsauflösung,” Neue Juristische Wochenschrift 36 (1983): 1529–30; Willi Geiger, “Die Auflösung des Bundestags nach Art. 68 gg,” Jahrbuch des öffentlichen Rechts der Gegenwart 34 (1985): 41–61. 14. See Simon Apel et al., “The Decision of the German Federal Constitutional Court of 25 August 2005 Regarding the Dissolution of the National Parliament,” German Law Journal 6 (2005): 1243, 1245, available at www.germanlawjournal.com/pdf/Vol06No09/PDF_Vol _06_No_09_1243-1254_Developments _Apel .pdf; Jörn Ipsen, “Die Auflösung des 15. Deutschen Bundestages—Eine Nachlese,” Neue Zeitschrift für Verwaltungsrecht 24 (2005): 1147–50. In general, see Volker Busse, “Auflösung des Bundestages als Reformproblem,” Zeitschrift für Rechtspolitik 38 (2005): 257–60. 15. Karl Carstens, interview with Donald P. Kommers, Oct. 19, 1986, Washington, D.C. 16. See Benda, supra note 12. See also Josef Isensee, “Ein schmieriger Umweg,” Frankfurter Allgemeine Zeitung, May 24, 2005; Rupert Scholz, “Zuverlässig wäre nur der Rücktritt,” Frankfurter Allgemeine Zeitung, June 8, 2005; Erhard Denninger, “Vertrauensfrage setzt ‘Krisenlage’ voraus,” Frankfurter Allgemeine Zeitung, June 9, 2005; Dieter Grimm, “In Wahrheit keine Vertrauenskrise,” Frankfurter Allgemeine Zeitung, June 9, 2005; Philip Kunig, “Bedenklicher Weg,” Frankfurter Allgemeine Zeitung, June 9, 2005. 17. Mary Lovik, “The Constitutional Court Reviews the Early Dissolution of the West German Parliament,” Hastings International and Comparative Law Review 7 (1983): 116. 18. See, for example, Klaus von Beyme, Th e Political System of the Federal Republic of Germany (New York: St. Martin’s Press, 1983), 186. The author cited, in par tic u lar, the University Reform Case (35 BVerfGE 79 [1973]), which invalidated a mea sure requiring the participation of several groups in university governance. See Christian-Friedrich Menger, “Zu den Auswirkungen der Wissenschaft sfreiheit auf die Hochschulorganisation,” Verwaltungsarchiv 64 (1973): 75–85; Bernhard Schlink, “Die Wissenschaft sfreiheit des Bundesverfassungsgerichts—Zur Entscheidung des Bundesverfassungsgerichts vom 29. Mai 1973,” Die Öffentliche Verwaltung 26 (1973): 541–45. Von Beyme cited many other examples: East-West Basic Treaty Case, 36 BVerfGE 1 (1973) (requiring foreign policy makers to adhere to the goal of German reunification) (see Jörg Menzel, Verfassungsrechtssprechung [Tübingen: J. C. B. Mohr (Paul Siebeck), 2000], 226–33); Abortion I Case, 39 BVerfGE 1 (1975) (invalidating a liberal abortion law) (see Martin Kriele, “Anmerkung,” Juristenzeitung 30 [1975]: 222–25; Christian-Friedrich Menger, “Das verfassungsrechtliche Urteil zu § 218 StGB— Gesetzgebung durch das Bundesverfassungsgericht?,” Verwaltungsarchiv 66 [1975]: 397–403); Widower’s Pension II Case, 39 BVerfGE 169 (1975) (instructing Parliament to find a fairer method of transferring a wife’s pension entitlement to her surviving husband by the end of 1984) (see Rüdiger Zuck, “Anmerkung,” Neue Juristische Wochenschrift 28 [1975]: 922–23); Leg-

Notes to Chapter Four 767 islative Pay Case, 40 BVerfGE 296 (1975) (effectively ordering Parliament to increase the salaries of legislative representatives) (see Joachim Henkel, “Anmerkung,” Die Öffentliche Verwaltung 29 [1975]: 819–21; Hans H. Klein, “Diäten-Urteil und Diäten-Streit—Legendenbildung im Verfassungsrecht,” in Planung—Recht—Rechtschutz Festschrift für Willi Blümel zum 70. Geburtstag am 6. Januar 1999, eds. Klaus Grupp & Michael Ronellenfitsch [Berlin: Duncker and Humblot, 1999], 225–57). These cases, remarked von Beyme, “have deeply interfered with the prerogatives of the other constitutional powers.” For a critical discussion of these and other cases, see Christine Landfried, Bundesverfassungsgericht und Gesetzgeber (BadenBaden: Nomos Verlagsgesellschaft , 1984), 51–123; and Christine Landfried, “The Impact of the German Constitutional Court,” Government and Opposition 20 (1985): 522–41; Das Bundesverfassungsgericht im politischen System, eds. Robert Chr. Van Ooyen & Martin H. W. Möllers (Wiesbaden: VS Verlag, 2006); Robert Chr. Van Ooyen, Der Begriff des Politischen des Bundesverfassungsgericht (Berlin: Duncker and Humblot, 2005). 19. Wolfgang Hoff mann-Riem, “Two-Hundred Years of Marbury v. Madison: The Struggle for Judicial Review of Constitutional Questions in the United States and Eu rope,” German Law Journal 5 (2004): 685, 692–93, available at www.germanlawjournal.com/pdf/Vol05No06 /PDF_Vol _05_No_06_685-701_EU_Hoff mann-Riem.pdf. 20. Ibid., at 694– 96. 21. Ibid., at 697. 22. Referring to the city in Baden-Württemberg where the Court is based, Casper declared: “The Federal Constitutional Court is of great importance. As far as its institutions are concerned, the creation of the Federal Constitutional Court distinguishes the Federal Republic from its predecessors. Th is means that, in this respect too, the Federal Republic is the ‘Karlsruhe Republic.’ ” Gerhard Casper, “The “Karlsruhe Republic”—Keynote Address at the State Ceremony Celebrating the 50th Anniversary of the Federal Constitutional Court,” German Law Journal 2/18 (2001): ¶ 4, available at www.germanlawjournal.com/article.php ?id=111. Article 1 (2) of the Federal Constitutional Court Act makes the southwestern city Karlsruhe the seat of the Court. 23. See, respectively, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); and Immigration and Naturalization Ser vice v. Chadha, 462 U.S. 919 (1983). 24. 418 U.S. 683 (1974). 25. 67 BVerfGE 100, 129 (1984). Regarding the decision, see Harald Bogs, “Steuerakten— Vorlage für parlamentarische Untersuchung (Art. 44 GG, § 30 AO)—Zur Entscheidung des BVerfG v. 17.7.1984, BVerfGE 67, 100 (Flick-Untersuchungsausschuss),” Juristenzeitung 40 (1985): 112–19; Peter Badura, “Anmerkung,” Die Öffentliche Verwaltung 37 (1984): 760–64; Udo Di Fabio, Rechtschutz im parlamentarischen Untersuchungsverfahren (Berlin: Duncker and Humblot, 1988). 26. 105 BVerfGE 197 (2002). 27. See Volker Röben, “Federal Constitutional Court Defi nes the Power of Parliamentary Minorities in the Constitutionally Established, Parliamentary Investigative Committees,” German Law Journal 3/10 (2002): available at www.germanlawjournal.com/article.php ?id=194. 28. 124 BVerfGE 161 (2009). 29. 45 BVerfGE 1 (1977). 30. Ibid., at 35. 31. See Erwin Deutsch, “Berufshaft ung und Menschenwürde: Akt III,” Neue Juristische Wochenschrift 50 (1998): 510–12; Bernd Sangmeister, “ ‘Der Krieg der Richter’—BVerfG, NJW 1998, 519,” Juristische Schulung 39 (1999): 21–28; Rolf Stürner, “Das Bundesverfassungsgericht

768 Notes to Chapter Four und das frühe menschliche Leben—Schadensdogmatik als Ausformung humaner Rechtskultur?,” Juristenzeitung 53 (1998): 317–68. 32. 96 BVerfGE 375, 399 (1997). 33. Besides a matter of separation of powers as provided for in Article 20 (2), the “delegation” of adjudicatory authority could also be construed as a violation of the more specific command of Article 92: “The judicial power shall be vested in the judges; it shall be exercised by the Federal Constitutional Court, by the federal courts provided for in this Basic Law, and by the courts of the Länder.” 34. 30 BVerfGE 1, 27–28 (1970). Th is translation is from Walter F. Murphy & Joseph Tanenhaus, Comparative Constitutional Law (New York: St. Martin’s Press, 1977), 662. Regarding this decision, see Sinemus, supra note 2, at 142–51; Helmut Kalkbrenner, “Anmerkung,” Bayerische Verwaltungsblätter (1971): 146–47; Karl-Heinrich Hall, “Abhörentscheidung und Grundgesetz—BVerfGE 30, 1,” Juristische Schulung 12 (1972): 132–37; Peter Häberle, “Die Abhörentscheidung des Bundesverfassungsgerichts vom 15. 12. 1970—Analyse und kritik des Urteils sowie des Minderheitsvotums vom 4. Januar 1971,” Juristenzeitung 26 (1971): 145–56. 35. The Weimar Constitution contained no provision expressly regulating the delegation of legal authority to the executive. Th is lack of a check on the executive is what allowed Hitler to legally dissolve the Reichstag. Article 80 was the framers’ reaction to this experience. See Ingo von Munch, Grundgesetz Kommentar (3 vols.) (Munich: C. H. Beck’sche Verlagsbuchhandlung, 1983), 3:246. For a general discussion of this, see Dieter Wilke, “Bundesverfassungsgericht und Rechtsveränderung,” Archiv des öffentlichen Rechts 98 (1973): 196–247. 36. For a discussion of the ordinance power of the national government under the Weimar Republic and the various kinds of ordinances issued by executive officials, see Johannes Mattern, The Constitutional Law of the German National Republic (Baltimore: Johns Hopkins University Press, 1928), 453–507. See also Thomas F. W. Schodder, Föderative Gewaltenteilung in der Bundesrepublik Deutschland (Frankfurt am Main: Peter Lang Verlag, 1989), 14–18; Felix Hammer, “Die Verfassung des Deutschen Reiches vom 11. August 1919—Die Weimarer Verfassung,” Juristische Ausbildung 22 (2000): 57–63. 37. See Ernst K. Pakuscher, “Administrative Law in Germany—Citizen and State,” American Journal of Comparative Law 16 (Summer 1968): 309, 321–24; Marc Chase McAllister, “Judicial Review of Administrative Agency Action: Should America Adopt the German Model?,” in Annual of German & European Law, eds. Russell Miller & Peer Zumbansen (Oxford: Berghahn Books, 2006), 2:60–88. 38. Klaus Bosselmann, “Protection of Constitutional Rights and Reform of Nuclear Power Plant Licensing Procedures in West Germany: An Interim Assessment,” Hastings International and Comparative Law Review 6 (1983): 555. 39. 53 BVerfGE 30 (1979). Regarding this decision, see Helmut Simon & Hermann Heußner, “Sondervotum,” Neue Juristische Wochenschrift 32 (1980): 764–69. In general, see Ernst Kutscheidt, “Das stillgelegte Atomkraft werk,” Neue Zeitschrift für Verwaltungsrecht 15 (1987): 33–35; Peter Weides, “Noch einmal: Das stillgelegte Atomkraft werk Ursachen und Folgen des Fehlens einer immissionschutzrechtlichen Parallel— Genehmigung zu den atomrechtlichen (Teil-) Genehmigungen der Errichtung eines Kernkraft werks,” Neue Zeitschrift für Verwaltungsrecht 15 (1987): 200–204. 40. In 2002 the Basic Law was amended to provide an explicit constitutional protection for animals. The three words “and the animals” were added to Article 20a, which now reads: “Mindful also of its responsibility toward future generations, the state shall protect the natural bases of life and the animals by legislation and, in accordance with law and justice, by ex-

Notes to Chapter Four 769 ecutive and judicial action, all within the framework of the constitutional order” (emphasis added). See Johannes Caspar & Martin Geissen, “Das neue Staatsziel ‘Tierschutz’ in Art. 20a gg,” Neue Zeitschrift für Verwaltungsrecht 21 (2002): 913–17; Hans-Georg Kluge, “Staatsziel Tierschutz—Am Scheideweg zwischen verfassungspolitischer Deklamation und verfassungsrechtlichem Handlungsauft rag,” Zeitschrift für Rechtspolitik 37 (2004): 10–14. Regarding the Chicken Regulation Case, 101 BVerfGE 1 (1999), see Urs Kramer, “Wirksamkeit der Hennenverordnung,” Juristische Schulung 41 (2001): 962– 66. 41. “From a transatlantic perspective the Constitutional Court seems to have taken [the limits on parliamentary delegation] very seriously. In its very fi rst substantive decision, the Court struck down [a delegation which authorized any regulation ‘necessary for executing’ the underlying statute] on the basis of Article 80 (1).” David P. Currie, The Constitution of the Federal Republic of Germany (Chicago: University of Chicago Press, 1994), 126. 42. For an American view almost identical with this German perspective, see Kenneth L. Karst, “Legislative Facts in Constitutional Litigation,” Supreme Court Review (1960): 75–112. 43. 17 BVerfGE 1 (1963). Regarding the decision, see Rüdiger Zuck, “Anmerkung,” Neue Juristische Wochenschrift 27 (1975): 922–23. In general, see Michael Sachs, “Die Quotenregelung und der Rentenalterbeschluss des BVerfG,” Neue Zeitschrift für Verwaltungsrecht 10 (1991): 437–42. 44. Widower’s Pension II Case, 39 BVerfGE 169 (1975). 45. 53 BVerfGE 30 (1979). 46. 104 BVerfGE 249 (2002). See Richtern Di Fabio und Mellinghoff, “Abweichende Meinung,” Neue Zeitschrift für Verwaltungsrecht 21 (2002): 588– 91; Fritz Ossenbühl, “Abschied von der Ländertreue?,” Neue Zeitschrift für Verwaltungsrecht 22 (2003): 53–54; Walter Frenz, “Atomkonsens und Landesvollzugskompetenz,” Neue Zeitschrift für Verwaltungsrecht 21 (2002): 561–63. 47. Roman Herzog remarked: “In the United States, as well as in Germany, there has always been a second form of separation of powers, which we in Germany call vertical separation and which is connected to the phenomenon of the federal system.” Herzog, supra note 6, at 393. 48. See Thomas Giller, “Decommissioning Nuclear Power Plants: The United States, West Germany, and Canada,” Hastings International and Comparative Law Review 6 (1983): 490–98. 49. Bosselmann, supra note 38, at 559–64. 50. Article 67 provides a procedure known as a constructive vote of no confidence, pursuant to which Parliament can dismiss the chancellor provided it simultaneously elects his or her successor. 51. 1 BVerfGE 351 (1952). Regarding the Petersberg Treaty in general, see Horst Lademacher & Walter Mühlhausen, Sicherheit Kontrolle Souveränität—Das Petersberger Abkommen vom 22. November 1949—Eine Dokumentation (Melsungen: Kasseler Forschungen zur Zeitgeschichte Verlag, 1985). 52. 104 BVerfGE 151 (2001). See Eckart Klein & Stefanie Schmahl, “Die neue NATOStrategie und ihre völkerrechtlichen und verfassungsrechtlichen Implikationen,” Recht und Politik 35 (1999): 198–209; Ernst R. Zivier, “Der Kosovo: Einsatz als Präzedenzfall? Zum strategischen Konzept der NATO vom 23./ 24. April 1999,” Recht und Politik 35 (1999): 210– 15; Roland Pofalla, “Die Bundeswehr im Ausland—Eine Zwischenbilanz des Gesetzgebungsverfahrens,” Zeitschrift für Rechtspolitik 37 (2004): 221–25. 53. Recognizing the policy significance of the case, the Court held a daylong session for the arguments, giving a star-studded cast of political figures the opportunity to address the

770 Notes to Chapter Four issue in the morning session and reserving the arguments on constitutional and international law doctrine for the afternoon session. “Foreign Minister Joschka Fischer, the former peace activist turned pragmatist/hawk, appeared on behalf of the federal government, as did Defense Minister Rudolf Scharping. . . . The pds countered with Gregor Gysi [a reformer in the East German Socialist Unity Party and leading East German political figure during reunification], the party’s former Chairman and its most visible member.” Russell Miller, “Merely a Landmark or a Change of Course: The Federal Constitutional Court Hears Arguments in the nato Strategic Concept Case,” German Law Journal 2/11 (2001): ¶ 8, available at www.germanlawjournal.com/article.php?id=37. The impact of the case would reach far beyond its constitutional significance. It also served to represent two other historic and related shift s. The fi rst was an attempt by Gerhard Schröder (spd) and Joschka Fischer (Green Party) to realign Germany’s traditional center-left parties toward “die neue Mitte,” especially on matters of foreign policy and security. Th is shift had im mense personal consequences as well. “For Foreign Minister Fischer, the case [seemed] to have high personal stakes as the Court’s decision could serve as the legal and constitutional blessing (coming from such a highly respected institution as the Federal Constitutional Court) for his [personal] shift from hard-core peace activist and radical member of the political opposition to a more mainstream posture, admitting the utility of military engagement. Fischer acknowledged as much in his comments as he repeatedly invoked his past to chide the pds and bolster his credibility and objectivity before the Court.” Ibid. Second, this personal- and partybased reform was meant to signal Germany’s “normalization” following reunification. 54. See Andreas L. Paulus, “Quo vadis Democratic Control? The Afghan istan Decision of the Bundestag and the Decision of the Federal Constitutional Court in the nato Strategic Concept Case,” German Law Journal 3/1 (2002): ¶ 27, available at www.germanlawjournal .com/article.php?id=123 (arguing that the shift was more than incremental). 55. Andrew Rudalevige, The New Imperial Presidency (Ann Arbor: University of Michigan Press, 2005). 56. See Hamdi et al. v. Rumsfeld, Secretary of Defense, et al., 542 U.S. 507 (2004). 57. 104 BVerfGE 151, 207 (2001). 58. 68 BVerfGE 1 (1984). Regarding the decision, see Dieter Murswiek, “Anmerkung,” Juristische Schulung 24 (1985): 807– 9; Dietrich Rauschning, “Organstreit zur Nachrüstung— BVerfGE 68, 1,” Juristische Schulung 24 (1985): 863–68; Christian Sailer, Verfassungsbeschwerde gegen die Zustimmung der Bundesregierung zur Dislozierung amerikanischer Mittelstreckenraketen in der Bundesrepublik Deutschland (Munich: Meyster 1984), 161–75. In general, see Ingo von Münch, “Rechtsfragen zur Raketenstationierung,” Neue Juristische Wochenschrift 36 (1984): 577–82; Theodor Schweisfurth, “Rechtsfragen der Raketenstationierung,” Neue Juristische Wochenschrift 36 (1984): 1506– 9. 59. 68 BVerfGE 1, 85–87 (1984). 60. See Thomas M. Franck, Political Questions/Judicial Answers (Princeton: Princeton University Press, 1992), especially chap. 7, pp. 107–25. See also Degenhart, supra note 10, at 212–13. 61. 36 BVerfGE 1 (1973). 62. 1 Cranch 137 (1803). 63. 55 BVerfGE 349 (1980). 64. See Rudolf Dolzer, Verfassungskonkretisierung durch das Bundesverfassungsgericht und durch politische Verfassungsorgane (Heidelberg: Decker and Müller, 1982). 65. 55 BVerfGE 349, 365 (1980). 66. 46 BVerfGE 160 (1977). See Menzel, supra note 18, at 279–83.

Notes to Chapter Four 771 67. “Prominent on the surface of any case held to involve a political question is . . . a lack of judicially discoverable and manageable standards for resolving it. . . .” Baker v. Carr, 369 U.S. 186, 217 (1962). 68. Basic Law, preamble. 69. Basic Law, Article 1 (2). 70. Basic Law, Article 9 (2). 71. Basic Law, Article 26 (1). 72. Uwe Wese, Der Gang Nach Karlsruhe (Munich: Blessing Verlag, 2004), 73–75. 73. Ibid. 74. North Atlantic Treaty (Nordatlantkvertrag) from 4 April 1949, (1955) Bundesgesetzblatt [hereafter referred to as BGBl.] II:289, in the version of the Protocol from 17 November 1951, BGBl. II:293. 75. Basic Law, Article 87a. 76. Walter J. Lemanski, “Note, The Reemergence of German Arms: How Far Will Germany’s March Toward Full Use of Military Force Go?,” Vanderbilt Journal of Transnational Law 29 (1996): 857, 859. 77. Georg Nolte, “Germany: Ensuring Political Legitimacy for the Use of Military Forces by Requiring Constitutional Accountability,” in Democratic Accountability and the Use of Force in International Law, eds. Charlotte Ku & Harold K. Jacobson (Cambridge: Cambridge University Press, 2002), 231, 234–35. 78. “Thus, the perception of being threatened by [nuclear] extinction and the desire not to repeat the deeds of the past crystallized in the 1980s into a strong political force which abhorred the thought of German soldiers ever marching into foreign countries again for any reason.” Ibid., at 235. 79. For the debate that raged at the end of the Cold War, see, for example, Louis Henkin, Constitutionalism, Democracy, and Foreign Affairs (New York: Columbia University Press, 1990); Miroslav Nincic, Democracy and Foreign Policy (New York: Columbia University Press, 1992); and John Hart Ely, War and Responsibility (Princeton: Princeton University Press, 1993). For the debate ignited by the policies undertaken by the George W. Bush administration following the terrorist attacks of 11 September 2001, see, for example, John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 (Chicago: University of Chicago Press, 2005); Peter Irons, War Powers: How the Imperial Presidency Hijacked the Constitution (New York: Metropolitan Books, 2005); The Constitution in War time, ed. Mark Tushnet (Durham: Duke University Press, 2004); and Louis Fisher, Presidential War Power, 2d rev. ed. (Lawrence: University of Kansas Press, 2004). 80. 90 BVerfGE 286 (1994). Regarding the decision, see Werner Heun, “Anmerkung,” Juristenzeitung 21 (1994): 1073–75; Torsten Stein & Holger Kröninger, “Bundeswehreinsatz im Rahmen von nato-, weu- bzw. vn-Militäraktionen—BVerfG vom 12.7.1994,” Juristische Ausbildung 50 (1995): 254–62; Claus Arndt, “Verfassungsrechtliche Anforderungen an internationale Bundeswehreinsätze,” Neue Juristische Wochenschrift 46 (1994): 2197– 99; Norbert Riedel, “Die Entscheidung des Bundesverfassungsgerichts zum Bundeswehreinsatz im Rahmen von nato-, weu- bzw. un- Militäraktionen—Anmerkungen zum Adria-, awacs- und Somalia-Urteil des Bundesverfassungsgerichts,” Die Öffentliche Verwaltung 48 (1995): 135–41; Gerd Roellecke, “Bewaff nete Auslandseinsätze—Krieg, Außenpolitik oder Innenpolitik?— Ein verfassungsänderndes Urteil des Bundesverfassungsgerichts,” Der Staat 34 (1995): 415– 28; Roland Pofalla, “Die Bundeswehr im Ausland—Eine Zwischenbilanz des Gesetzgebungsverfahrens,” Zeitschrift für Rechtspolitik 37 (2004): 221–25; Peter Dreist, “Die Bundeswehr im Ausland,” Zeitschrift für Rechtspolitik 38 (2005): 35–36. Regarding Article 24 (2) in general,

772 Notes to Chapter Four see Hans-Georg Franzke, “Art. 24 II gg als Rechtsgrundlage für den Außeneinsatz der Bundeswehr?,” Neue Juristische Wochenschrift 45 (1992): 3075–78. 81. For an excellent discussion of the debate over the meaning of Article 87a (2), see Daniel-Erasmus Kahn & Markus Zöckler, “Germans to the Front, or Le malade imaginaire,” European Journal of International Law 3 (1992): 163–77. 82. 88 BVerfGE 173 (1993). 83. Somalia Military Mission Case, 89 BVerfGE 38 (1993). See Riedel, supra note 80, at 135– 41; Menzel, supra note 18, at 547–50; Klaus Dau & Gotthard Wöhrmann, Der Auslandseinsatz deutscher Streitkräfte—Eine Dokumentation des awacs-, des Somalia- und des Adria-Verfahrens vor dem Bundesverfassungsgericht (Heidelberg: C. F. Müller Juristischer Verlag, 1997). 84. 90 BVerfGE 286 (1994). 85. Critics would point out that the Court took a very different approach to its interpretation of the Maastricht Treaty. As the Maastricht Case (1993) shows, the Court had few qualms about fi nding serious deficiencies in the treaty, flaws that would have to be corrected by the European Union over the course of time if Parliament’s rightful powers were to be protected. Nonetheless, the dynamic approach again prevailed when the Court considered challenges to the broadening mandate of nato in the nato Strategic Concept Case (2001). 86. 104 BVerfGE 151 (2001), See Paulus, supra note 54, at § 27 (“As there is no note indicating unanimity, it may be guessed that there were dissenting voices on the bench.”). 87. 90 BVerfG 286 (1994). 88. Ibid. 89. Ibid. 90. Ibid. 91. Ibid. 92. Ibid. 93. Ibid. 94. Dr. Angela Merkel, “Speech— Germany’s Foreign and Security Policy in the Face of Global Challenges,” 42nd Munich Conference on Security Policy (Feb. 4, 2006), available at www.securityconference.de/konferenzen/rede.php?menu _2006= & menu _konferenzen= &sprache=en&id=170& print= &. 95. See 100 BVerfGE 266 (1999); 104 BVerfGE 151 (2001); 117 BVerfGE 359 (2007). 96. 104 BVerfGE 151 (2001). 97. Marianne Takle, Towards a Normalisation of German Society and Defence Policy: German Participation in International Military Operations (ARENA Working Papers WP 02/10): 9, available at www.arena.uio.no/publications/working-papers2002/papers/wp02_10.htm. 98. See supra note 53. 99. Paul Berman, Power and the Idealists (Brooklyn: Soft Skull Press, 2005), 10–11. 100. “Deutsche Politiker entsetzt,” Frankfurter Allgemeine Zeitung, September 12, 2001, at 2 (authors’ translation). 101. “Regierungserklärung des Bundeskanzlers Gerhard Schröder zur Aktuelle Lage nach Beginn der Operation gegen den internationalen Terrorismus in Afghan istan,” from Oct. 11, 2001, available at www.documentarchiv.de/brd.html (follow “Regierungserklärung des Bundeskanzlers Gerhard Schröder zur Aktuelle Lage nach Beginn der Operation gegen den internationalen Terrorismus in Afghan istan [11.10.2001]” hyperlink). 102. Ibid. 103. 117 BVerfGE 359 (2007). 104. Marcus Walker, “German Military Chief Resigns Over Afghan Strike,” Wall Street Journal (WSJ.com) November 29, 2009, available at http://online.wsj.com/article

Notes to Chapters Four–Five 773 /SB125922787790365143.html. See Constantin von der Groeben, “Criminal Responsibility of German Soldiers in Afghan istan: The Case of Colonel Klein,” German Law Journal 11 (2010): 469, available at www.germanlawjournal.com/pdfs/Vol11-No5/PDF_Vol _11_No _05_469-492_Articles_von%20der%20Groeben%20FINAL .pdf. 105. Rede von Bundeskanzler Gerhard Schröder aum Wahlkampfauft akt, from Aug. 5, 2002, available at http://archiv.spd.de/servlet/PB/show/1019519/Schröder%20Rede %20WahlkampfauftaktHannover.pdf. 106. Ibid. 107. Ibid., at ¶ 6. 108. Currie, supra note 41, at 44–45. 109. War Powers Resoultion, 50 U.S.C. §§ 1541–48 (2000). See Harold Hongju Koh, The National Security Constitution (New Haven: Yale University Press, 1990); John Hart Ely, War and Responsibility (Princeton: Princeton University Press, 1993); Louis Fisher, Presidential War Power (Lawrence: University Press of Kansas, 1995). 110. See Franck, supra note 60. See, for example, Padilla v. Hanft , 126 S. Ct. 1649 (2006) (a sharply divided Supreme Court refused to grant certiorari in the appeal of U.S. citizen Jose Padilla, who was held as an enemy combatant and without recourse to the American civilian courts for four years.); Doe v. Bush, 323 F.3d 133 (1st Cir. 2003); Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000). 111. See Konrad Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland, 20th ed. (Heidelberg: C. F. Müller Juristischer Verlag, 1995), 214–15. 112. Alexander Hamilton, John Jay & James Madison, The Federalist Papers, ed. E. Mead Earle (New York: Modern Library, 1941), no. 51, at 336 (J. Madison). 113. Ibid., no. 71, at 465 (A. Hamilton).

chapter five 1. Southwest State Case, 1 BVerfGE 14, 41 (1951). See Friedrich Klein, “Bundesverfassungsgericht und Südweststaatsfrage,” Archiv des öffentlichen Rechts 77 (1952): 453–64; Wilhelm Dörr, “Die Konstituante des Südweststaats,” Archiv des öffentlichen Rechts 77 (1952): 465–68; Ulrich Scheuner, “Die Rechtssprechung des Bundesverfassungsgerichts und das Verfassungsrecht der Bundesrepublik,” Deutsches Verwaltungsblatt 67 (1952): 645–49). See also Baden Home Association Case, 5 BVerfGE 34, 42 (1956). 2. See, especially, Klaus Stern, Das Staatsrecht der Bundesrepublik Deutschland (2 vols.), 2d ed. (Munich: C. H. Beck’sche Verlagsbuchhandlung, 1983), 1:587–635 (at pages 583–87 there is an extensive bibliography on the democratic principle underlying the Basic Law). See also Ernst-Wolfgang Böckenförde, “Demokratie als Verfassungsprinzip,” in Demokratie und Grundgesetz—Eine Auseinandersetzung mit der verfassungsrechtlichen Rechtsprechung, eds. Thomas Blanke & Martina Lüttmann (Baden-Baden: Nomos Verlagsgesellschaft, 2000), 8– 31; Christoph Degenhart, Staatsrecht I— Staatsorganisation, 18th ed. (Heidelberg: C. F. Müller Verlag, 2002), 3–8. 3. For a detailed discussion in English of each of these aspects of Germany’s system of political representation, see Helmut Steinberger, “Political Representation in Germany,” in Germany and Its Basic Law, eds. Paul Kirchhof & Donald P. Kommers (Baden-Baden: Nomos Verlagsgesellschaft, 1993), 121–72. 4. “[T]he Basic Law clearly rejects direct democracy, regardless of the—at least ostensibly—greater potential it has for legitimation.” Michael Brenner, “The Constitutional

774 Notes to Chapter Five Framework of Democratic Representation,” in Constitutionalism, Universalism and Democracy—A Comparative Analysis, ed. Christian Starck (Baden-Baden: Nomos Verlagsgesellschaft , 1999), 135, 139. 5. Article 28 (1) also requires the Länder to embrace “the principles of republican, democratic, and social government based on the constitutional state princple.” These provisions set forth the fundamental structural principles of the German state, principles which, under the terms of Article 79 (3), may not be amended out of the constitution. For a discussion of these structural principles, see Brun-Otto Bryde, “Art. 28 GG,” in Grundgesetz-Kommentar (3 vols.), eds. Ingo von Münch & Philip Kunig, 5th ed. (Munich: C. H. Beck’sche Verlagsbuchhandlung, 2000), 2:314–31. 6. Georg Ress, “The Constitution and the Requirements of Democracy in Germany,” in New Challenges to the German Basic Law, ed. Christian Starck (Baden-Baden: Nomos Verlagsgesellschaft , 1991), 111, 126. 7. Brenner, supra note 4, at 146. 8. See German Bundestag, Questions of German History: Paths to Parliamentary Democracy (Bonn: German Bundestag Public Relations Division, 1998); Ress, supra note 6, at 115–18. 9. Basic Law, Article 38 (3). 10. Ress, supra note 6. 11. Volker Röben, “Federal Constitutional Court Defi nes the Power of Parliamentary Minorities in the Constitutionally Established, Parliamentary Investigative Committees,” German Law Journal 3/10 (Oct. 1, 2002): ¶ 3, available at www.germanlawjournal.com. 12. Schleswig-Holstein Investigative Committee Case, 49 BVerfGE 70 (1978). 13. Flick Case, 67 BVerfGE 100 (1984); Surveillance of Members of Parliament Case, 124 BVerfGE 161 (2009). 14. Flick Case, 67 BVerfGE 100 (1984). 15. Article 21 (1) [3] of the Basic Law requires parties to “publicly account for their assets and for the sources and use of their funds.” 16. 49 BVerfGE 70 (1978). In general with respect to the law governing parliamentary investigations, see Frank Arloth, “Grundlagen und Grenzen des Untersuchungsrechts parlamentarischer Untersuchungsausschüsse,” Neue Juristische Wochenschrift 40 (1987): 808–12. 17. For a list and discussion of some thirty constitutional cases dealing with the rights of parliamentary political parties (Fraktionen), see Gerald Kretschmer, “Selbständige Rechtspersonen der Parlamentsrechts,” Das Parlament, May 22–29, 1992, 12–14. 18. Article 13 (10) of the Federal Constitutional Court Act (hereafter referred to as the fcca) provides: “The Federal Constitutional Court shall decide in the cases determined by the Basic Law, to wit . . . on constitutional disputes within a Land if such decision is assigned to the Federal Constitutional Court by Land legislation (Article 99 of the Basic Law).” 19. See James M. Markham, “Germany’s Volatile Greens,” New York Times Magazine, February 13, 1983, at 37ff; Wilhelm Bürklin, “The German Greens: The Post-Industrial NonEstablishment and the Party System,” International Political Science Review 6 (1985): 463–81; E. Gene Frankland, “The Role of the Greens in West German Parliamentary Politics, 1980–1987,” Review of Politics 50 (1988): 99–122; Gerd Langguth, The Green Factor in German Politics (Boulder, Colo.: Westview Press, 1986); and Bernhard Flor, Verfassungsrechtliche Aspekte des Demokratie- und Mandatsverständisses der Grünen (Darmstadt: Dissertations Druck, 1986), 10–24. 20. See Reinhard Brückner Case, 65 BVerfGE 101 (1983); Political Foundations Case, 73 BVerfGE 1 (1986) (regarding the decision, see Klaus Tiedemann, “Das Parteifi nanzier-

Notes to Chapter Five 775 ungsgesetz als strafrechtliche lex mitior,” Neue Juristische Wochenschrift 39 [1986]: 2475–79; Hwai-Tzong Lee, Chancengleichheit der politischen Parteien—Eine sich aus der “Natur der Sache” ergebende Betrachtung [Munich: VVF-Verlag, 1994], 132–43; Christof A. Hettich, Parteispenden und Verfassungsrecht—Die verfassungsrechtlichen Vorgaben einer Spendenfinanzierung politischer Parteien [Mannheim: JUPEC-Verlagsgesellschaft, 1989], 124–27, 236–39); and Party Finance Case V, 73 BVerfGE 40 (1986) (regarding the decision, see Ernst-Wolfgang Böckenförde, “Sondervotum zu BVerfGE 73, 40,” Neue Juristische Wochenschrift 39 [1986]: 2494– 97; Martin Morlok, “Spenden-Rechenschaft-Sanktionen—Aktuelle Rechtsfragen der Parteienfi nanzierung,” Neue Juristische Wochenschrift 53 [2000]: 761–69; Hettich, supra, at 138–47, 188– 93, 246–50). On 15 December 1983, the Court rejected the Green Party’s application for a temporary injunction against the Bundestag’s exclusion decision. See Hubert Kleinert Case, 66 BVerfGE 26 (1983) (regarding the decision, see Karl-Heinz Hohm, “Recht auf Chancengleichheit der Fraktionen und oppositioneller Minderheitenschutz,” Neue Juristische Wochenschrift 38 [1985]: 408–13; Paul Kirchhof, “Die Steuerung des Verwaltungshandelns durch Haushaltsrecht und Haushaltskontrolle,” Neue Zeitschrift für Verwaltungsrecht 2 [1983]: 505–15; Helmuth Schulze-Fielitz, “Gesetzgebung als materiales Verfassungsverfahren— Die Befugnisse des Vermittlungsausschusses und die Aufspaltung von Gesetzen,” Neue Zeitschrift für Verwaltungsrecht 2 [1983]: 709–17). 21. See Party Finance V Case, 73 BVerfGE 40 (1986). See Ernst-Wolfgang Böckenförde, “Sondervotum,” Neue Juristische Wochenschrift 39 (1986): 2495– 97. 22. 73 BVerfGE 40, 117 (1986). 23. 124 BVerfGE 161 (2009). 24. 80 BVerfGE 188 (1989). 25. Basic Law, Article 38 (1). 26. Eckart Klein & Thomas Giegerich, “The Parliamentary Democracy,” in The Constitution of the Federal Republic of Germany, ed. Ulrich Karpen (Baden-Baden: Nomos Verlagsgesellschaft , 1988), 141, 155. 27. Steinberger, supra note 3, at 121. 28. To harmonize dissimilar versions of legislation from the Bundestag and Bundesrat, Article 77 (2) of the Basic Law provides for the Mediation Committee: “Within three weeks after receiving an adopted bill, the Bundesrat may demand that a committee for joint consideration of bills, composed of Members of the Bundestag and the Bundesrat, be convened.” 29. Geschäftsordnung des Bundestages, as amended 12 November 1990, Bundesgesetzblatt [hereafter referred to as BGBl.] 1:2555. 30. 73 BVerfGE 40, 117 (1986). 31. 40 BVerfGE 296 (1975). See remarks of Ernst Benda in “Herausforderungen an die parlamentarische Demokratie,” Verhandlungen des fünfundfünfzigsten Deutschen Juristentages, pt. P (Munich: C. H. Beck’sche Verlagsbuchhandlung, 1984), 2:9. See also Walter Schmitt Glaeser, “Das Bundesverfassungsgericht als ‘Gegengewalt’ zum verfassungsändernden Gesetzgeber?—Lehren aus dem Diäten-Streit 1995,” in Verfassungsstaatlichkeit—Festschrift für Klaus Stern zum 65. Geburtstag, ed. Joachim Burmeister (Munich: C. H. Beck´sche Verlagsbuchhandlung, 1997), 1183– 99; Horst Dietrich, “Beamte als Abgeordnete und das DiätenUrteil des Bundesverfassungsgerichts,” Zeitschrift für Beamtenrecht 74 (1976): 97–105; Hans H. Klein, “Diäten-Urteil und Diäten-Streit Legendenbildung im Verfassungsrecht,” in Planung- Recht- Rechtsschutz- Festschrift für Willi Blümel zum 70. Geburtstag am 6. Januar 1999, eds. Klaus Grupp & Michael Ronellenfitsch (Berlin: Duncker and Humblot, 1999), 225–57; Peter Häberle, “Zum Diäten-Urteil des BVerfG (BVerfGE 40, 296),” in Kommentierte Verfassungsrechtsprechung, ed. Peter Häberle (Königstein: Athenäum Verlag, 1979), 215–32;

776 Notes to Chapter Five Christian-Friedrich Menger, “Zur Kontrollbefugnis des Bundesverfassungsgerichts bei Verfassungsbeschwerden gegen Rechtsnormen- zum Diätenurteil des BVerfG vom 5.11.1975,” Verwaltungsarchiv 67 (1976): 303–15; Joachim Henkel, “Anmerkung,” Die Öffentliche Verwaltung 28 (1975): 819–21. 32. See Frankfurter Allgemeine Zeitung, June 6, 1992, at 1. 33. See remarks of former Federal Minister of the Interior Werner Maihofer, ibid., at 10. 34. Recall the Atomic Weapons Referendum I Case (1958; no 3.7), in which the Court nullified state legislation providing for advisory referenda on equipping the Federal Armed Forces (Bundeswehr) with atomic weapons. For a general discussion of the constitutional implications of the various forms of direct democracy, see Peter Krause, “Verfassungsrechtliche Möglichkeiten unmittelbarer Demokratie,” in Handbuch des Staatsrechts (8 vols.), eds. Josef Isensee & Paul Kirchhof (Heidelberg: C. F. Müller Juristischer Verlag, 1987), 2:2313–37. 35. For background on the theme of direct democracy generally, see Christopher Schwieger, Volksgesetzgebung in Deutschland (Berlin: Duncker and Humblot, 2005), 270– 306; Albert Bleckmann, “Die Zulässigkeit des Volksentscheides nach dem Grundgesetz,” Juristenzeitung 33 (1978): 217–23; and Christian Graf von Pestalozza, Der Popularvorbehalt (Berlin: Walter de Gruyter, 1981). For a vigorous discussion of this problem, see the record of the panel discussion at the Fift y-fi ft h Annual Meeting of the German Lawyers Association. The participants were Professors Klaus Stern (University of Cologne), Ernst Benda (Freiburg University), Christian Graf von Krockow (Göttingen University), Werner Maihofer (Eu ropean University Institute [Florence]), and Christian Graf von Pestalozza (Free University, Berlin). In Verhandlungen, supra note 31, at 5–48. Another spirited discussion took place in the panel discussion at the meeting of the German Association of Municipal and Local Government, in Bürgerinitiativen—Wege oder Irrwege der Parlamentarischen Demokratie (Göttingen: Verlag Otto Schwartz, 1978). See also Klaus G. Troitzsch, Volksbegehren und Volksentschied (Meisenheim am Glan: Verlag Anton Hain, 1979). For a discussion of the contemporary case law on the issue of direct democracy, see Karl Schweiger, “Weiterentwicklung der verfassungsrechtlichen Rechtsprechung zum Plebiszit,” Bayerische Verwaltungsblätter 136 (2005): 321–32. 36. See also People’s Ballot Case, 74 BVerfGE 96 (1986). An orga nization known as Abstimmungsinitiative für Volksentscheid (aiv) tried to qualify for a position on the ballot in the federal elections of 25 January 1987. The group’s main objective was to secure a referendum that would allow citizens to vote on par ticu lar measures without regard to party identification. The effort was unsuccessful because the group failed to qualify as a party under § 2 of the Federal Parties Act. It was not, therefore, an “eligible electoral orga nization” within the meaning of § 18 of the Federal Election Act. Instead of running candidates for office, the aiv would have placed certain issues on the ballot. The aiv was particularly interested in securing votes on nuclear plant closings, the stationing of nuclear missiles in Germany, and a peace treaty between East and West. 37. The Joint Committee (Basic Law, Article 53a) is not to be confused with the Mediation Committee (Basic Law, Article 77 (2)). The former, as noted, is a standing committee. Twothirds of its membership is drawn, in proportion to the strength of the Fraktionen, from the Bundestag. The remaining one-third consists of Bundesrat delegates, one from each of the sixteen federal states. Its only constitutional mandate is to receive information from the federal government on “plans for a state of defense.” Its other activities are regulated by rules adopted by the Bundestag with the consent of the Bundesrat. 38. See Non-Party List Case, 5 BVerfGE 77 (1956) (regarding the decision, see Engelbert Niebler, “Die Entwicklung der Rechtsprechung des Bundesverfassungsgerichts zum Wahl-

Notes to Chapter Five 777 recht für den Deutschen Bundestag,” in Der verfasste Rechtsstaat—Festgabe für Karin Graßhof, eds. Gerd Pfeiffer, Udo Burgermeister & Gerald Roth [Heidelberg: C. F. Müller Juristischer Verlag, 1998], 87–108); and Ballot Admission Case, 3 BVerfGE 19 (1953) (regarding the decision, see Volker Nenstiel, Die Auswirkungen der Weimarer Wahlrechtsentwicklung auf die Rechtsprechung des Bundesverfassungsgerichts [Frankfurt am Main: Peter Lang Verlag, 1992], 284– 89; Joachim Lege, Unterschriftenquoren zwischen Parteienstaat und Selbstverwaltung—Die Rechtsprechung zum kommunalen Wahlvorschlagrecht [Berlin: Duncker and Humblot, 1996], 43–48). The Ballot Admission Case (1953) nullified a provision of federal law requiring new parties to produce the signatures of five hundred voters in each electoral district prior to securing a position on the ballot, whereas parties already seated in the Bundestag or a Land parliament needed only the signatures of the members of the state party executive committee. “Even though treatment differentiating between new parties and those represented in parliament for the purpose of their admissibility to elections is basically compatible with the principle of equality,” said the Court, “the par ticular provision is so onerous on new parties aspiring to parliamentary representation that the legislature must be held to have acted unreasonably and in excess of its discretionary latitude.” 3 BVerfGE 19, 29 (1953). The Court has been particularly vigilant when new political groups challenge local restrictions on access to the ballot. In the Stoevesandt Case (1960), for example, the Court nullified a Lower Saxony statute requiring a minimum number of signatures to secure a ballot position for a candidate nominated by local voters’ groups (in this case the Independent Voters Association) while exempting political parties from this requirement. The Court recognized that such regulations served the legitimate purpose of admitting only nominations supported by a politically significant group, but in this case the equality clause of Article 3 (1) combined with the principle of municipal autonomy under Article 28 to invalidate the measure. Declared the Court: “The principle of equality means equal voting rights for all citizens. In the field of election law the legislature enjoys only a narrow range of options. Differentiations in the field always require a particularly compelling justification. The guarantee of communal autonomy secured by Article 28 (2) makes it even plainer that in communities and election districts, locally oriented city council groups and voters’ associations are to be accorded essentially the same legal rights as political parties. Citizens are therefore entitled to submit candidacies on behalf of voters’ associations under essentially the same conditions and in the same manner as political parties.” 12 BVerfGE 10, 25 (1960). 39. For a detailed description of developments in German election law from 1949 to 1983, see Eckhard Jesse, Wahlrecht zwischen Kontinuität und Reform (Düsseldorf: Droste Verlag, 1985). A massive bibliography on German election law and electoral politics to that point appears at pages 383–432. See also Heino Kaack, Zwischen Verhältniswahl und Mehrheitswahl (Opladen: C. W. Leske, 1967). For a good description in English of the German election system, see U. W. Kitzinger, German Electoral Politics (Oxford: Clarendon Press, 1960), 17–37. See also Wolfgang Schreiber, Handbuch des Wahlrechts zum Deutschen Bundestag, 7th ed. (Cologne: Carl Heymann Verlag, 2002), 50–53. 40. See, for example, Hans Rass, “Die Mehrheitswahl—und was darn?,” Der Monat (Sept. 1965): 204; and Ferdinand A. Hermens, “Das Wahlrecht und die politische Stabilität,” Die Politische Meinung 4 (1959): 33–43; also Kaack, supra note 39. 41. See Jesse, supra note 39, at 164–71. 42. The Constitutional Court has always maintained that effective political representation depends to some extent on the proportional system of counting votes. See, for example, Eu ropean Parliament I Case, 51 BVerfGE 222, 253 (1979) (regarding the decision, see Niebler, supra note 38, at 87–108).

778 Notes to Chapter Five 43. Th is is the so-called Hare-Niemeyer system of calculating votes. The mathematics of the process is described in Schreiber, supra note 39, at 141–43. Regarding a comparison of the Hare-Niemeyer and d’Hondtschen systems as exemplified by the Bavarian state parliamentary election of 1986, see Lee, supra note 20, at 226–31. 44. 6 BVerfGE 84 (1957) (regarding the decision, see Otto Uhlitz, “Anmerkung,” Die Öffentliche Verwaltung 10 [1957]: 718; Niebler, supra note 38, at 87–108); 13 BVerfGE 127 (1961); 16 BVerfGE 130 (1963); 66 BVerfGE 291 (1984). Regarding Overhang Mandates in general, see Niebler, supra note 38, at 87–108. 45. “If the votes are equal, the Basic Law or other Federal law cannot be declared to have been infringed.” fcca Art. 15 (3). 46. Brenner, supra note 4, at 149–50. 47. Ibid., at 151. 48. Bundeszentrale für politische Bildung, “Hintergrund aktuell—Bundestagswahl 2009,” available at www.bpb.de. See “Streit um Überhangmandate,” sueddeutsche.de, Sept. 21, 2009, available at www.sueddeutsche.de. 49. State Lists Case, 121 BVerfGE 266 (2008). 50. Voting Computers Case, 123 BVerfGE 39 (2009). 51. 13 BVerfGE 243 (1961). 52. Minors and Districting Case, Federal Constitutional Court, 2 BVC 3/11, from 31 January 2012, Neue Zeitschrift Für Verwaltungsrecht 31 (2012): 622. 53. 3 BVerfGE 45 (1953). See Karl-Heinz Hohm, “Mandatsrotation und Grundgesetz— Zur verfassungsrechtlichen Problematik des Rotationsprinzips,” Neue Juristische Wochenschrift 37 (1984): 1657–63; Daniel Jung, “Der Spitzenkandidat der Landesliste als erster Reservekandidat?—Zu den Folgen des Ausscheidens eines Wahlkreisabgeordneten, dessen Parteie an der Sperrklausel gescheitert ist,” Neue Zeitschrift für Verwaltungsrecht 23 (2004): 703–5; Helmut Nicolaus, “Nachrückverfahren im Bundestag und Überhangmandate,” Juristische Schulung 40 (2000): 436–599. 54. 3 BVerfGE 45, 50 (1953). See also Territorial Reorga nization Case, 13 BVerfGE 54, 82 (1961) (regarding the decision, see Susanne Greulich, Länderneugliederung und Grundgesetz— Entwicklungsgeschichte und Diskussion der Länderneugliederungsoption nach dem Grundgesetz [Baden-Baden: Nomos Verlagsgesellschaft, 1995], 79–80). 55. Fixed Order of List Candidates Case, 7 BVerfGE 77 (1957). 56. List Election Case, 7 BVerfGE 63 (1957). 57. Bundestag Election Case, 21 BVerfGE 355 (1967). 58. For a comprehensive discussion of these rulings, see Hans Meyer, “Wahlgrundsätze und Wahlverfahren,” in Isensee & Kirchhof, supra note 34, at 10:269–311. 59. Deceased Overhang Mandate Case, 97 BVerfGE 317 (1998). 60. Gebhart Müller, minister-president of Württemberg-Hohenzollern, was one of those who urged his fellow delegates in the Parliamentary Council to anchor the 5 percent minimum threshold rule in the Basic Law; see Jesse, supra note 39, at 222. (Gebhart Müller became the president of the Federal Constitutional Court in 1959 and served in that capacity until his retirement in 1971.) For another discussion of the 5 percent minimum threshold clause, see Hans Meyer, Wahlsystem und Verfassungsordnung (Frankfurt am Main: Alfred Metzner Verlag, 1973), 225–54; Gerhard Leibholz, Strukturprobleme der modernen Demokratie, 3d ed. (Heidelberg: C. F. Müller Juristischer Verlag, 1967), 41–54. 61. 1 BVerfGE 208, 247–61 (1952) (regarding the decision, see Jörg Menzel, Verfassungsrechtssprechung [Tübingen: J. C. B. Mohr (Paul Siebeck), 2000], 49–55; Nenstiel, supra note 38, at 257–77; Heinz-Christian Jülich, Chancengleichheit der Parteien-Zur Grenze staatlichen

Notes to Chapter Five 779 Handelns gegenüber den politischen Parteien nach dem Grundgesetz [Berlin: Duncker and Humblot, 1967], 63–77; Niebler, supra note 38, at 87–108). 62. 6 BVerfGE 84 (1957). 63. Ibid., at 92. 64. Ibid., at 92– 93. 65. 4 BVerfGE 31 (1954). 66. See Hans-Georg Betz, “Alliance 90/Greens: From Fundamental Opposition to BlackGreen,” in Germany’s New Politics, eds. David Conradt et al. (Tempe, Ariz.: German Studies Review, 1995), 177– 92. 67. See All-German People’s Party Case, 6 BVerfGE 273 (1957) (regarding the decision, see Nenstiel, supra note 38, at 290– 93); and Eu ropean Parliament I Case, 51 BVerfGE 222 (1979). For a detailed study of the legality and effects of the 5 percent minimum threshold clause at all levels of government, see Ulrich Wenner, Sperrklauseln im Wahlrecht der Bundesrepublik Deutschland (Frankfurt am Main: Peter Lang, 1986). 68. Schleswig-Holstein Five Percent Th reshold Case, 120 BVerfGE 82 (2008). 69. Eu ropean Parliament I Case, 51 BVerfGE 222, 248 (1979). 70. Eu ropean Parliament II Case, Federal 4/10 c0nstitutional Court, 2 BVC 4/10, from 9 November 2011, Neue Zertschrift Für Verwaltungsrecht 31 (2012) : 33. 71. See Schreiber, supra note 39, at 561–62. See also David Nikolai Rauber, Wahlprüfung in Deutschland—Materiell-rechtliche Maßstäbe für die Wahlprüfung bei Parlamentswahlen und Wahlen auf kommunaler Ebene (Baden-Baden: Nomos Verlagsgesellschaft, 2005), 48– 60. 72. For an overview of the Court’s jurisprudence under Article 41, see von Münch, supra note 5, at 2:553–69. 73. Martin Morlock, “Artikel 41,” in Grundgesetz Kommentar (3 vols.), ed. Horst Dreier, 2d ed. (Tübingen: J. C. B. Mohr [Paul Siebeck], 2006), 2:1059–70 margin number 7 (translation by the authors). 74. Schleswig-Holstein Voters’ Association Case, 1 BVerfGE 208, 238 (1952). For other limits the Court has imposed on its power of review, see the Joseph C. Case, 1 BVerfGE 430 (1952) (regarding the decision, see Rüdiger Schenke, “Der gerichtliche Rechtsschutz im Wahlverfahren,” Neue Juristische Wochenschrift 34 [1981]: 2440–44); Democratic Economic Community Case, 2 BVerfGE 300 (1953); and Mail Ballot Case, 59 BVerfGE 111 (1981). 75. 103 BVerfGE 111 (2001) (regarding the decision, see Walter Schmidt, “Wahlprüfungsrecht als Veranschaulichungsbeispiel öffentlich-rechtlicher Grundsatzfragen—BVerfG, NJW 2001, 1048,” Juristische Schulung 41 [2001]: 545–49; and “Eine stillschweigende Verfassungsnovellierung—Zum Wahlprüfungsurteil des BVerfG vom 8.2.2001,” Neue Juristische Wochenschrift 54 [2001]: 1035–36). 76. Bush v. Gore, 531 U.S. 98 (2000). See Russell A. Miller, “Lords of Democracy: The Judicialization of ‘Pure Politics’ in the United States and Germany,” Washington and Lee Law Review 61 (2004): 587. 77. 59 BVerfGE 119 (1981). 78. Ibid., at 127. 79. 36 BVerfGE 139 (1973). 80. 58 BVerfGE 202 (1981). For a discussion of this case, see Robert Hilworth & Frank Montag, “The Right to Vote of Non-Resident Citizens: A Comparative Study of the Federal Republic of Germany and the United States of America,” Georgia Journal of International and Comparative Law 12 (1982): 269–79. The change in the Electoral Act also extended the franchise to German nationals resident in countries outside the European Community provided they have maintained a residence in Germany within ten years of casting their ballots. For an

780 Notes to Chapter Five overview of the Federal Constitutional Court’s case law, see Marten Breuer, Verfassungsrechtliche Anforderungen an das Wahlrecht der Auslandsdeutschen (Berlin: Duncker and Humblot Verlag, 2001), 83–101. 81. Foreign Voters II Case, 83 BVerfGE 60 (1990) (regarding the decision, see Hans A. Stöcker, “Der Binnen- und der Aussenaspekt der Volkssouveränität—Bemerkungen zu den Urteilen des Bundesverfassungsgerichts zum Ausländerwahrrecht vom 31.10.1990,” Der Staat 30 [1991]: 259– 68; Brun-Otto Bryde, “Die bundesrepublikanische Volksdemokratie als Irrweg der Demokratietheorie,” Staatswissenschaft und Staatspraxis 5 [1994]: 305–24; Klaus Bäumle, “Anmerkung,” Bayerische Verwaltungsblätter 125 [1994]: 689– 90). 82. For a discussion of militant democracy and the extraordinary mea sure of banning political parties, see the subsequent section in this chapter entitled, “Militant Democracy.” 83. Michaela Richter, “The Basic Law and the Democratic Party State: Constitutional Theory and Political Practice,” in Cornerstone of Democracy: The West German Grundgesetz, 1949–89 (Washington, D.C.: German Historical Institute, 1995), 37. The theory of the Parteienstaat traces its origin to the work and advocacy of Gerhard Leibholz, a justice of the Constitutional Court from 1951 to 1971. See Gerhard Leibholz, “Der moderne Parteienstaat,” in Verfassungsstaat—Verfassungsrecht, ed. Gerhard Leibholz (Stuttgart: Verlag W. Kohlhammer, 1973), 68– 94. 84. Schleswig-Holstein Voters’ Association Case, 1 BVerfGE 208, 225 (1952). 85. Weimar Constitution, Article 130. 86. See John F. Golay, The Founding of the Federal Republic of Germany (Chicago: University of Chicago Press, 1958), 138–58; Ilona K. Klein, Die Bundesrepublik als Parteienstaat— Zur Mitwirkung der politischen Parteien an der Willensbildung des Volkes 1945–1949 (Frankfurt am Main: Peter Lang Verlag, 1991), 224–35. In general, regarding the framing of the Basic Law, see Klaus Kröger, “Die Entstehung des Grundgesetzes,” Neue Juristische Wochenschrift 42 (1989): 1318–24; Hans-Peter Schneider, “50 Jahre Grundgesetz—Vom westdeutschen Provisorium zur gesamtdeutschen Verfassung,” Neue Juristische Wochenschrift 52 (1999): 1497–504. 87. 1 BVerfGE 208, 240–41 (1952). 88. See also 44 BVerfGE 125, 145 (1977); 44 BVerfGE 52, 63 (1979). See Karl-Heinz Ladeur, “Anmerkung,” Deutsches Verwaltungsblatt 99 (1984): 224–25; Peter Häberle, “Öffentlichkeitsarbeit der Regierung zwischen Parteien- und Bürgerdemokratie,” Juristenzeitung 32 (1977): 361–71. 89. Plenum Party Case, 4 BVerfGE 27 (1954). Th is case settled a disagreement between the senates as to which legal procedure was most appropriate for defending the rights of political parties. The Constitutional Court chose the Organstreit procedure over the constitutional complaint. 90. 6 BVerfGE 273 (1957). See Hettich, supra note 20, at 181, 191– 97; Robert Horn, Die Rechtsprechung des Bundesverfassungsgerichts zur Parteienfinanzierung (Giessen: Univ., Diss., 1991), 9–15. 91. The Basic Law’s silence on whether political parties could be supported out of public funds was one reason the Court had no reservation about suggesting the permissibility of public funding. There is some evidence, however, that the framers would not have approved. One of the Parliamentary Council’s leading pariticipants, Georg August Zinn, was quoted as saying that “the proposition that parties should be supported by the state was absolutely unimaginable to us back then.” See Ulrich Dübber, Geld und Politik: Die Finanzwirtschaft der Parteien (Freudenstadt: Lutzeyer, 1970), 97.

Notes to Chapter Five 781 92. See Party Finance Case II, 20 BVerfGE 56, 60 (1966); Peter Häberle, “Unmittelbare staatliche Parteifi nanzierung unter dem Grundgesetz—BVerfGE 20, 56,” in Kommentierte Verfassungsrechtsprechung, ed. Peter Häberle (Königstein: Athenäum Verlag, 1979), 173– 99. The Court described in detail the history and provisions of the Party Finance Act. See also All-German Party Finance Case, 20 BVerfGE 119 (1966); NPD Finance Case, 20 BVerfGE 134 (1966). For a detailed analysis of Party Finance III (1966), see Henning Zwirner, “Die Rechtsprechung des Bundesverfassungsgerichts zur Parteifi nanzierung,” Archiv des öffentlichen Rechts 93 (1968): 81–135. See also Peter Häberle, “Unmittelbare staatliche Parteifi nanzierung unter dem Grundgesetz—BVerfGE 20, 56,” Juristische Schulung 7 (1967): 64–74; Dimitris Tsatsos, “Die Finanzierung politischer Parteien—Die Urteile des deutschen Bundesverfassungsgerichts vom 19. Juli 1966 zur Frage der Zulässigkeit staatlicher Parteifinanzierung,” Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 26 (1966): 371–87. 93. 12 BVerfGE 276 (1961). 94. See Leibholz, supra note 83, at 68– 94. 95. See Donald P. Kommers, “Politics and Jurisprudence in West Germany,” American Journal of Jurisprudence 16 (1971): 223–41. 96. For a fuller discussion of this case, see ibid., 228–41. 97. See Erhard Blankenburg, Rainer Staudhammer & Heinz Steinert, “Political Scandals and Corruption Issues in West Germany,” in Political Corruption, eds. Arnold Heidenheimer, Michael Johnston & Victor T. LeVine (New Brunswick, N.J.: Transaction Publishers, 1989), 913–32. 98. See Political Parties Act (Parteiengesetz) from 31 January 1994, BGBl. I:149, last amended by Article 5a of the Act from 24 September 2009, BGBl. I:3145). See Michael Heinig & Th ilo Streit, “Die direkte staatliche Parteienfi nanzierung: Verfassungsrechtliche Grundlagen und parteigesetzliche Rechtsfragen,” Juristische Ausbildung 22 (2000): 393–400; KarlHeinz Seifert, Die politischen Parteien im Recht der Bundesrepublik Deutschland (Cologne: Carl Heymanns Verlag, 1975), 48–52. 99. For a general discussion of these steadily mounting subsidies, see Christine Landfried, Parteifinanzen und politische Macht (Baden-Baden: Nomos Verlagsgesellschaft, 1990), 91–117; Georg Vanberg, The Politics of Constitutional Review in Germany (Cambridge: Cambridge University Press, 2005), 143–67; Susan E. Scarrow, “Beyond the Scandals? Party Funding and the 2005 German Elections,” German Politics 15 (2006): 376– 92; and especially Hans Herbert von Arnim, Die Partei der Abgeordnete und das Geld (Munich: Droemersche Verlagsanstalt, 1996), 28–46 and 54–81. 100. Each of the four foundations had been created in the name of distinguished figures associated with the party or its ideology: the spd in the memory of the fi rst president of the Weimar Republic, the fdp in memory of the fi rst president of the Federal Republic, the cdu in memory of the Federal Republic’s fi rst and long-serving chancellor, and the csu in memory of Bavaria’s minister president from 1957 to 1960. Years later, when the Green Party and Left Party (Die Linke, successor to East Germany’s old Party of Democratic Socialism) entered Parliament, the Heinrich Böll and Rosa Luxemburg Foundations were created to represent their respective interests. 101. The raw data are contained in Arnim, supra note 99, at 363–370. See also Arthur B. Gunlicks, “Campaign Finance in the West German ‘Party State,’ ” Review of Politics 50 (1988): 30–49; and Wolfgang Hoff mann, Die Finanzen der Parteien (Munich: Praeger, 1973). 102. 73 BVerfGE 1 (1986). 103. 24 BVerfGE 300 (1968).

782 Notes to Chapter Five 104. In yet another decision, handed down in 1976, the Federal Constitutional Court ruled that an independent candidate who secured a spot on a constituency ballot and won twenty and six-one hundredth of a percent of the district’s vote in the 1969 federal election could not be denied funding. In this case, the Court pointed to the tension between Articles 21 and 38, saying, “Article 21 of the Basic Law does indeed expressly recognize that parties participate in forming the political will of the people, but Article 38 of the Basic Law also endorses the independence of representatives. Which principle shall prevail in resolving the tension between these provisions depends on the concrete constitutional question before the Court.” See Daniels Case, 41 BVerfGE 399, 416 (1976). In this case the “concrete question” was resolved in favor of the independent candidate. 105. 52 BVerfGE 63 (1979). 106. The so-called Flick Affair was the cause of a major tax exemption scandal in the early 1980s. As Arthur Gunlicks describes it, “[The affair] involved a very large and highly questionable tax exemption given to the Flick holding company, apparently in return for large contributions made to all the established parties but in par tic u lar to the fdp, whose ministers of fi nance had granted the tax exemptions. Th is was the most sensational of more than seven hundred cases of alleged illegal contributions pending in 1984.” See Gunlicks, supra note 101, at 106. For the constitutional adjudication on this case see the Flick Case, 67 BVerfGE 100 (1984). 107. 52 BVerfGE 63, 65 (1979). 108. 73 BVerfGE 40 (1986). 109. Ibid., 103–17. 110. See supra note 106. 111. 85 BVerfGE 264 (1992). See Thomas Drysch, “Staatliche Parteifi nanzierung und kein Ende: Das neue Parteifi nanzierungsgesetz,” Neue Zeitschrift für Verwaltungsrecht 13 (1994): 218–24; Horst Sendler, “Verfassungsmäßige Parteifi nanzierung?,” Neue Juristische Wochenschrift 47 (1994): 365–67; Jörn Ipsen, “Globalzuschüsse statt Wahlkampfkostenerstattung,” Juristenzeitung 47 (1992): 753–808. 112. 85 BVerfGE 264, 292 (1992). The Constitutional Court spelled out what would count as a voluntary donation and what must be excluded from calculating the relative and absolute limits on state funding. Its detailed enumeration of permissible and impermissible funding and fund-raising approached the level of judicial micromanagement of political fi nancing in Germany. 113. See Gunlicks, supra note 101, at 109. 114. The new law entered into force on time. See Political Parties Act (Parteiengesetz) from 31 January 1994, BGBl. I:149. For a discussion of this statute and the events leading up to its enactment, see Arthur Gunlicks, “The New Germany Party Finance Law,” German Politics 4 (1994): 101–21. 115. Weinheim Voter’s Association Case, 99 BVerfGE 84 (1998). 116. cdu Fund Distribution Case, 111 BVerfGE 54 (2004). See Joachim Wieland, “Schwarze Kassen,” Neue Juristische Wochenschrift 58 (2005): 110–12; Andreas Ransiek, “Verstecktes Parteivermögen und Untreue,” Neue Juristische Wochenschrift 60 (2007): 1727–30. 117. For a detailed description of the procedures and events leading up to the passage of the 2002 law, see Hans Herbert von Arnim, “Die neue Parteienfi nanzierung,” Deutsches Verwaltungsblatt 117 (2002): 1065–144. 118. The full text of the 2004 Political Parties Act as amended is included in Beck’sche Textausgaben: Grundgesetz, 58th ed. (Munich: C. H. Beck’sche Verlagsbuchhandlung, 2007), 327–51.

Notes to Chapter Five 783 119. German Bundestag, Questions on German History, supra note 8. 120. See Steven Ozment, A Mighty Fortress—A New History of the German People (New York: Perennial, 2005), 271–72. 121. German Bundestag, Questions on German History, supra note 8. See Verordnung des Reichspräsidenten zum Schutz von Volk und Staat [Order of the Reich President for the Protection of People and State], Feb. 28, 1933, Reichsgesetzblatt (hereafter referred to as RGB1) I:83. 122. Gregory H. Fox & Georg Nolte, “Intolerant Democracies,” Harvard International Law Journal 36 (1995): 1, 11 (“Not surprisingly, Hitler abused his power over the few key ministries held by his party by arresting and intimidating opponents before calling for new elections. Despite rampant intimidation of other parties and their candidates by the now unchecked Nazi storm troopers, the elections of March 1933 still did not yield an absolute majority for the Nazis.”). 123. Ozment, supra note 120, at 269 (“Using airplanes [the campaign was called ‘Hitler Over Germany’] and fi lm commercials for the fi rst time in a German political campaign, [Hitler] took 30 percent of the vote [in the 1932 presidential election] to Hindenburg’s 49 percent, rising to 37–53 percent in the runoff in May.”). 124. Ibid., at 260 (“Over the years the [Nazi] party would win more white-collar than blue-collar voters, while demonstrating a substantial appeal across the social spectrum.”). 125. Nationalsozialistische Diktatur, 1933–1945: Eine Bilanz, eds. K. D. Bracher et al. (Düsseldorf: Droste, 1983), 16 (quoting Joseph Goebbels, translation from Andras Sajó, “From Militant Democracy to the Preventive State,” Cardozo Law Review 27 [2006]: 2255, 2262 n. 20). 126. Basic Law, Article 1. 127. Basic Law, Article 2. 128. Basic Law, Articles 10 and 13. 129. David P. Currie, The Constitution of the Federal Republic of Germany (Chicago: University of Chicago Press, 1994): 213 (Militant democracy represents the most “startling aspects of the Basic Law to an observer from the other side of the Atlantic.”). 130. Karl Loewenstein coined the phrase. See Karl Loewenstein, “Militant Democracy and Fundamental Rights—Part I,” American Political Science Review 31 (1937): 417 (“A virtual state of siege confronts European democracies. State of siege means, even under democratic constitutions, concentration of powers in the hands of government and suspension of fundamental rights. If democracy believes in the superiority of its absolute values over the opportunistic platitudes of fascism, it must live up to the demands of the hour, and every possible effort must be made to rescue it, even at the risk and cost of violating fundamental principles.”); Karl Loewenstein, “Militant Democracy and Fundamental Rights—Part II,” American Political Science Review 31 (1937): 638. See also Max Lerner, It Is Later Than You Think—The Need for a Militant Democracy (New Brunswick, N.J.: Transaction Publishers, 1989); Karl Mannheim, “The Th ird Way: A Militant Democracy,” in Collected Works of Karl Mannheim—Diagnosis of Our Time, ed. Karl Mannheim (London: Routledge, 1943): 3:4; Militant Democracy, ed. András Sajó (Utrecht: Eleven International Publishing, 2004); The “Militant Democracy” Principles in Modern Democracies, ed. Markus Th iel (Surrey, U.K.: Ashgate, 2009); Michel Rosenfeld, “A Pluralist Theory of Political Rights in Times of Stress,” in Political Rights under Stress in 21st Century Europe, ed. Wojciech Sadurski (Oxford: Oxford Unitersity Press, 2006): 12; Jochen A. Frowein, “How to Save Democracy from Itself,” Israel Year Book on Human Rights 26 (1996): 201; Gerhard Leibholz, “Freiheitliche demokratische Grundordnung und das Bonner Grundgesetz,” in Grundprobleme der Demokratie, ed. Ulrich Matz (Darmstadt: Wissenschaft liche Buchgesellschaft, 1973); Johannes Lameyer, Streitbare Demokratie: Eine verfassungshermeneutische Untersuchung (Berlin: Duncker and Humblot, 1978); Eckhard Jesse, Streitbare Demokratie (Berlin:

784 Notes to Chapter Five Colloquium Verlag, 1980); Martin Kutscha, Verfassung and “streitbare Demokratie” (Cologne: Pahl-Regenstein Verlag, 1979); Peter Niesen, “Anti-Extremism, Negative Republicanism, Civic Society: Th ree Paradigms for Banning Political Parties,” German Law Journal 3/7 (July 1, 2002), available at www.germanlawjournal.com/article.php?id=164. 131. See Markus Th iel, Germany, in The “Militant Democracy” Principles in Modern Democracies, supra note 131, at 109; G. Brinkmann, “Militant Democracy and Radicals in the West Germany Civil Ser vice,” Modern Law Review 46 (1983): 584; Fox & Nolte, supra note 122; Judith Wise, “Dissent and the Militant Democracy: The German Constitution and the Banning of the Free German Workers Party,” University of Chicago Law School Roundtable 5 (1998): 301, 303; Ronald J. Krotozynski, “A Comparative Perspective on the First Amendment: Free Speech, Militant Democracy, and the Primacy of Dignity as a Preferred Constitutional Value in Germany,” Tulane Law Review 78 (2004): 1549. 132. See Russell A. Miller, “Comparative Law and Germany’s Militant Democracy,” in US National Security, Intelligence and Democracy, ed. Russell A. Miller (London: Routledge, 2008), 229. 133. 2 BVerfGE 1 (1952); 5 BVerfGE 85 (1956). 134. See Horst Rapp, Das Parteienprivileg des Grundgesetzes und seine Auswirkungen auf das Strafrecht (Tubingen: J. C. B. Mohr [Paul Siebeck], 1970), 6–65. 135. Niesen, supra note 130, at ¶ 10 (quoting 2 BVerfGE 1, 12 [1952]—his translation); Markus Th iel, “Zur Einführung: Die ‘wehrhafte Demokratie’ als verfassungsrechtliche Grundentscheidung,” in Wehrhafte Demokratie, ed. Markus Th iel (Tübingen: J. C. B. Mohr [Paul Siebeck], 2003), 1–24. 136. 5 BVerfGE 85 (1956). For commentaries on the Communist Party Case, see Edward McWhinney, “The German Federal Constitutional Court and the Communist Party Decision,” Indiana Law Journal 32 (1957): 295–312; and Paul Franz, “Unconstitutional and Outlawed Political Parties: A German-American Comparison,” Boston College International and Comparative Law Review 5 (1982): 51–89; Helmut Ridder, Aktuelle Rechtsfragen des kpdVerbots (Berlin: Luchterhand Verlag, 1966), 9–13. For an extremely critical view of the case, see Wolfgang Abendroth, “Das kpd-Verbotsurteil des Bundesverfassungsgerichts,” in Antagonistische Gesellschaft und politische Demokratie, ed. Wolfgang Abendroth (Neuwied: Hermann Luchterhand Verlag, 1967), 139– 74. For a communist view, see Th e Karlsruhe Trial for Banning the Communist Party of Germany (London: Lawrence and Wishart, 1956); Karl Pfannenschwarz, “kpd-Verbot und Berufsverbote,” in 20 Jahre kpd-Urteil—Eine Anti-Festschrift—Probleme des Kampfes um Freiheit und Demokratie, ed. Karl Pfannenschwarz (Frankfurt am Main: Marxistische Blätter Verlag, 1976), 50–55. For a discussion of the kpd and srp cases together, see Lars Flemming, Das npd-Verbotsverfahren—Vom “Aufstand der Anständigen” zum “Aufstand der Unfähigen” (Baden-Baden: Nomos Verlagsgesellschaft, 2005), 34–45. 137. Donald P. Kommers, Judicial Politics in West Germany (Beverly Hills, Calif.: Sage Publications, 1976), 190– 91. 138. Niesen, supra note 130, at ¶ 10. 139. 5 BVerfGE 85, 141–42 (1956). 140. Ibid., at 142. 141. Niesen, supra note 130, at ¶ 12. 142. 5 BVerfGE 85, 139 (1956). 143. Communist Voters’ League Case, 16 BVerfGE 4 (1963). 144. Peter Niesen questioned the propriety of the resulting equivalence, which had the effect of denying the singularity of National Socialism’s crimes. “The left-right equidistance

Notes to Chapter Five 785 expressed by militant democracy [as implemented by the Socialist Reich Party and Communist Party cases] buttressed an equal valuation of crimes committed by and against the German people.” Niesen, supra note 130, at ¶ 16. 145. Kommers, supra note 137, at 190– 91. 146. “The German economies did more than merely recover, however; both East and West Germany grew very rapidly during the 1950s and 1960s.” Frank B. Tipton, A History of Modern Germany Since 1815 (Berkeley: University of California Press, 2003), 496. 147. Ozment, supra note 120, at 289. 148. Tony Judt, Postwar: A History of Europe Since 1945 (New York: Random House, 2007), 82. 149. Ibid. 150. Ibid., at 86. 151. Tipton, supra note 146, at 502. 152. Jürgen Weber, Germany 1945–1990: A Parallel History (Budapest: Central European University Press, 2004), 3. 153. Tipton, supra note 146, at 508. 154. Judt, supra note 148, at 82. 155. Ibid, at 88. 156. 47 BVerfGE 198 (1978). 157. 40 BVerfGE 287 (1975). For a history of the npd up to 2000, see Flemming, supra note 136, at 46– 96. 158. Th ilo Rensmann, “Procedural Fairness in a Militant Democracy: The ‘Uprising of the Decent’ Fails Before the Federal Constitutional Court,” German Law Journal 4 (2003): 1117, 1120, available at www.germanlawjournal.com/pdf/Vol04No11/PDF_Vol _04_No_11_1117 -1136_Public _Rensmann.pdf. 159. See Birgit Schulz & Martin Block, Die Anwälte: Ströbele, Mahler, Schily—Eine deutsche Geschichte (Cologne: Fackelträger-Verlag, 2010); Russell A. Miller, “Federal Constitutional Court Issues Temporary Injunction in the npd Party Ban Case,” German Law Journal 2/13 (Aug. 1, 2001), available at www.germanlawjournal.com. 160. “Otto Schily Puts the Cuffs on Germany’s Far Right,” The Economist (Mar. 15, 2001). 161. Felix Hanschmann, “Federal Constitutional Court to Review npd Party Ban Motion,” German Law Journal 2/17 (Nov. 1, 2001), available at www.germanlawjournal.com/article .php?id=104. See also Kathrin Groth, “Der npd-Verbotsantrag—eine Reanimation der streitbaren Demokratie?,” Zeitschrift für Rechtspolitik 33 (2000): 500–505; Rudolf Wassermann, “Aktivierung der wehrhaften Demokratie—Zum Antrag auf NPD-Verbot,” Neue Juristische Wochenschrift 53 (2000): 3760–63; Ingo von Münch, “Der ‘Aufstand der Anständigen?,’ ” Neue Juristische Wochenschrift 54 (2001): 728–33. 162. Bundesverfassungsgericht (BVerfG) (Federal Constitutional Court), 2 BvB 1/01 from July 3, 2001 (regarding the decision, see Martin Morlok, “Parteiverbot als Verfassungsschutz— Ein unauflösbarer Widerspruch?,” Neue Juristische Wochenschrift 54 [2001]: 2931–41). 163. Bundesverfassungsgericht (BVerfG) (Federal Constitutional Court), 2 BvB 1/01 from July 3, 2001, ¶ 25. 164. Bundesverfassungsgericht (BVerfG) (Federal Constitutional Court), 2 BvB 1/01 from January 22, 2002 (regarding the decision, see Jörn Ipsen, “Rechtsfragen des npdVerbots,” Neue Juristische Wochenschrift 55 [2002]: 866– 68). 165. Alexander Hanebeck, “FCC Suspends Hearing in npd Party Ban Case,” German Law Journal 3/2 (Feb. 1, 2002), available at www.germanlawjournal.com/article.php?id=129. 166. Ibid., at ¶ 3.

786 Notes to Chapters Five–Six 167. Felix Hanschmann, “Another Test in Proceduralizing Democracy: The Oral Proceedings in the npd Party Ban Case Before the Federal Constitutional Court,” German Law Journal 3/11 (Nov. 1, 2002): ¶ 3, available at www.germanlawjournal .com/article.php ?id=204. 168. fcca, Article 15 (4). 169. See Felix Müller, “Report—Bundesverfassungsgericht (Federal Constitutional Court)—2003,” in Annual of German & European Law—2004, eds. Russell A. Miller & Peer C. Zumbansen (Oxford: Berghahn Books, 2006), 333. 170. Rensmann, supra note 158, at 1130. 171. Ibid., at 1128–29. 172. Ibid. 173. Ibid.

chapter six 1. Klaus Vogel, Verfassungsentscheidung des Grundgesetzes für eine internationale Zusammenarbeit (Tübingen: J. C. B. Mohr [Paul Siebeck], 1964), 10, 35; Stephan Hobe, Der offene Verfassungsstaat zwischen Souveränität und Interdependenz (Berlin: Duncker and Humblot, 1996). 2. See Vogel, supra note 1. See also Rudolf Geiger, Grundgesetz und Völkerrecht, 4th ed. (Munich: C. H. Beck’sche Verlagsbuchhandlung, 2009), 1–2. 3. See Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting). 4. See Peter E. Quint, The Imperfect Union (Princeton: Princeton University Press, 1997), 12. 5. Thomas Oppermann, “Anmerkung zu BVerfG, U. v. 31.07.1973 - 2 BvF 1/73,” Juristenzeitung 22 (1973): 594, 596; Dieter Wilke & Gerd H. Koch, “Außenpolitik nach Anweisung des Bundesverfassungsgerichts? Bemerkungen zur Bindungswirkung des GrundvertragsUrteils (Anmerkung zu: BVerfG, U. v. 31.07.1973 - 2 BvF 1/73 - = BVerfGE 36, 1),” Juristenzeitung 24 (1975): 233; Adalbert Podlech, “Logische und hermeneutische Probleme einer neueren Tenorierungspraxis des Bundesverfassungsgerichts,” Die öffentliche Verwaltung 26 (1974): 337; Meinhard Schröder, “Zur verfassungskonformen Auslegung völkerrechtlicher Verträge,” Juristische Rundschau 49 (1974): 182, 183; Otto Kimminich, “Das Urteil über die Grundlagen der staatsrechtlichen Konstruktion der Bundesrepublik Deutschland (Anmerkung zu: BVerfG, U. v. 31.07.1973 - 2 BvF 1/73),” Deutsches Verwaltungsblatt 23 (1973): 657, 660. 6. Bruno Simma, “Legal Aspects of East-West German Relations,” Maryland Journal of International Law & Trade 9 (1985): 97, 109; Meinhard Hilf, “General Problems of Relations Between Constitutional Law and International Law,” in Rights, Institutions and Impact of International Law According to the German Basic Law, ed. Christian Starck (Baden-Baden: Nomos Verlagsgesellschaft, 1987), 177, 195. 7. Ryszard W. Piotrowicz & Sam K. N. Blay, The Unification of Germany in International and Domestic Law (Amsterdam: Rodpoi, 1997), 38. 8. See Ingolf Pernice, “Article 59,” in II Grundgesetz Kommentar, ed. Horst Dreier, 2d ed. (Tübingen: J. C. B. Mohr [Paul Siebeck], 2006), 1343, 1359. 9. Eastern Treaties Case, 40 BVerfGE 141, 164 (1975). See ibid. 10. Pernice, supra note 8, at 1360. 11. “Monists” argue that states’ dependence on international law for their status and sovereignty is evidence of a unified legal order that does not recognize a distinction between the

Notes to Chapter Six 787 international and the domestic. In this approach international law enjoys priority over states’ domestic law because it provided the terms by which states are recognized and, in essence, delegated to states the competence to manage their internal legal matters. Monism anticipates the direct applicability of international law in the domestic legal order, especially supplanting domestic law when it confl icts with international law. “Dualists,” on the other hand, argue that, despite enjoying an existence largely defined and secured by international law, states nonetheless administer their internal law as a wholly independent legal order. International law and domestic law, according to dualism, are “supreme in their own sphere.” International law, then, has no force within the domestic legal order unless states consent to this intrusion upon their sovereignty, often through a law or decree that incorporates the international rule into the domestic legal order. Yet, for all the clarity seemingly provided by these two approaches, few constitutions explicitly and categorically appeal to either monism or dualism. The Basic Law is no exception to this tradition of ambiguity. See Philip Kunig, “Völkerrecht und staatliches Recht,” in Völkerrecht, ed. Graf Vitzthum, 4th ed. (Berlin: De Gruyter, 2007), 99; Oppenheim’s International Law, eds. R. Jennings & A. Watts, 9th ed. (Oxford: Oxford University Press, 1992), 53; Torsten Stein & Christian von Buttlar, Völkerrecht, 12th ed. (Cologne: Carl Heymanns, 2009), 57; Volker Röben, Außenverfassungsrecht (Tübingen: J. C. B. Mohr [Paul Siebeck], 2007), 66. 12. Hugo J. Hahn, “Review of G. Boehmer’s Der völkerrechtiche Vertrag im deutschen Recht (1965),” American Journal of Comparative Law 14 (1966): 731, 732. For discussions of all three views, see Geiger, supra note 2, at 155–64; Hilf, supra note 6, at 181–84. 13. Görgülü Case, 111 BVerfGE 307, 316 (2004); see Matthias Hartwig, “Much Ado about Human Rights: The Federal Constitutional Court Confronts the Eu ropean Court of Human Rights,” German Law Journal 6 (2005): 869, 875, available at www.germanlawjournal .com /pdfs/Vol06No05/PDF_Vol _06_No_05_869-894_Developments_Hartwig.pdf. 14. Görgülü Case, 111 BVerfGE 307, 318 (2004). 15. Margot Horspool & Matthew Humphreys, European Union Law, 5th ed. (Oxford: Oxford University Press, 2008), 197. 16. Görgülü Case, 111 BVerfGE 307, 319 (2004). 17. Hartwig, supra note 13, at 878. 18. The Constitutional Court affi rmed this role in the Land Reform III Case, concluding that “[t]he Basic Law places the state organs in the indirect ser vice of the enforcement of public international law. . . .” Land Reform III Case, 112 BVerfGE 1, 25 (2004). 19. Ingolf Pernice, “Article 25,” in II Grundgesetz Kommentar, ed. Horst Dreier, 2d ed. (Tübingen: J. C. B. Mohr [Paul Siebeck], 2006), 532. 20. 112 BVerfGE 1 (2004). 21. Ibid., at 21. 22. Lisbon Treaty Case, 123 BVerfGE 267, 353 (2009). 23. Horst Dreier, “Article 79 III,” in II Grundgesetz Kommentar, ed. Horst Dreier, 2d ed. (Tübingen: J. C. B. Mohr [Paul Siebeck], 2006), 1795, 1809. 24. Article 143 (3) of the Basic Law provides: “Independently of paragraphs (1) and (2) of the Article, Article 41 of the Unification Treaty [excluding the restitution of the property expropriated by the Soviet occupying authorities in East Germany] and the rules for its implementation shall also remain in effect insofar as they provide for the irreversibility of acts interfering with property rights in the territory specified in Article 3 of this Treaty.” 25. Land Reform III Case, 112 BVerfGE 1, 24 (2004). 26. See Medellín v. Texas, 552 U.S. 491 (2008). 27. Ibid.

788 Notes to Chapter Six 28. See Raphael Minder, “Spanish Judge Says His Fight for Human Rights Will Endure,” New York Times, June 8, 2010; Naomi Roht-Arriaza, The Pinochet Effect (Philadelphia: University of Pennsylvania Press, 2006). 29. Article 53 of the Vienna Convention of the Law of Treaties. See Malcolm Shaw, International Law, 5th ed. (Cambridge: Cambridge University Press, 2003), 117–19. 30. Land Reform III Case, 112 BVerfGE 1, 25 (2004). 31. See Hartwig, supra note 13, at 869; Felix Müller & Tobias Richter, “Report on the Bundesverfassungsgericht’s (Federal Constitutional Court’s) Jurisprudence in 2005/2006,” German Law Journal 9 (2008): 161, 168–69, available at www.germanlawjournal.com/pdfs/Vol09No02 /PDF_Vol_09_No_02_161-194_Developments_Mueller.pdf; Christian Tomuschat, “The Effects of the Judgments of the European Court of Human Rights According to the German Constitutional Court,” German Law Journal 11 (2010): 513, available at www.germanlawjournal .com/pdfs/Vol09No02/PDF_Vol_09_No_02_161-194_Developments_Mueller.pdf. 32. Gertrude Lübbe-Wolff, “echr and National Jurisdiction—The Görgülü Case,” Humboldt Forum Recht 11 (Dec. 2006): 2. See Tomuschat, supra note 31. 33. See Consular Rights I Case, 9 BVerfGK 174 (2006 and Consular Rights II Case, Federal Constitutional Court—Chamber Decision of 8 July 2010 [2 BvR 2485/07, 2 BvR 2513/07, 2 BvR 2548/07]), Neue Juristische Wochenschrift 64 (2011): 207 (regarding these decisions, see Jana Gogolin, “Avena and Sanchez-Llamas Come to Germany—The German Constitutional Court Upholds Rights under the Vienna Convention on Consular Relations,” German Law Journal 8 [2007]: 261, www.germanlawjournal.com/pdfs/Vol08No03/PDF_Vol _08_No_03 _261-278_Developments_Gogolin.pdf; Andreas Paulus, “A Comparative Look at Domestic Enforcement of International Tribunal Judgments,” asil Proceedings 103 [2009]: 42). See also Princess Caroline of Monaco III Case, 120 BVerfGE 180 (2008); Federal Constitutional Court—Chamber Decision of 4 February 2010 (2 BvR 2307/06), available at www.bundesverfassungsgericht.de/entscheidungen/rk20100204_2bvr230706.html. 34. See Tomuschat, supra note 31. 35. Preventive Detention I Case, 109 BVerfGE 133 (2004) (regarding the decision, see Andrew Hammel, “Preventive Detention in Comparative Perspective,” in Annual of German & European Law Volume II & III, eds. Russell Miller & Peer Zumbansen [Oxford: Berghahn Books, 2006], 89). 36. M. v. Germany, (2009) 51 EHRR 41 (regarding the decision, see Grischa Merkel, “Incompatible Contrasts?—Preventive Detention in Germany and the Eu ropean Convention on Human Rights,” German Law Journal 11 [2010]: 1046, available at www.germanlawjournal .com/pdfs/Vol11-No9/PDF_Vol _11_No_09_1046-1066_GMerkel.pdf). 37. “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.” 38. “Everyone has the right to liberty and security of person. (1) No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: [a] the lawful detention of a person after conviction by a competent court; . . .” 39. Preventive Detention Temporary Injunction Case (Chamber Decision), 2 BvR 2365/09 from 22 December 2009, available at www.bverfg.de/entscheidungen/rk20091222 _2bvr236509.html. 40. Haidn v. Germany, Application no. 6587/04 from 13 January 2011, available at http:// cm isk p .ech r .coe .i nt /t k p197 /v iew .asp ?item= 1 & por ta l = hbk m & ac t ion= ht m l & highlight=Haidn%20%7C%20Germany&sessionid=89612044&skin=hudoc-en (regarding

Notes to Chapter Six 789 the decision, see Grischa Merkel, “Case Note—Retrospective Preventive Detention in Germany: A Comment on the ECHR Decision Haidn v. Germany of 13 January 2011,” German Law Journal 12 [2011]: 968, available at www.germanlawjournal.com/pdfs/Vol12-No3/PDF _Vol _12_No_03_968-977_Developments_Merkel.pdf; Christopher Michaelsen, “ ‘From Strasbourg, with Love’—Preventive Detention before the German Federal Constitutional Court and the Eu ropean Court of Human Rights,” Human Rights Law Review 12 [2012]: 148). 41. Preventive Detention III Case, 128 BVerfGE 326 (2011). 42. On the European plane, legal authority is exercised independent of the Federal Republic of Germany. See European Community Regulations Case, 22 BVerfGE 293 (1967). Armin von Bogdandy has explained that “Europe’s community of law developed as an autonomous legal order. Its nature as such was not merely one principle among others, but rather a normative axiom, defended by the [European Court of Justice] with utmost resolve. In fact, this concept of separate legal orders was fundamental to the supranational legal order’s establishment. Th is autonomy of the legal order corresponds to Monnet’s conception for the Community’s political-administrative system.” Armin von Bogdandy, “Constitutional Principles,” in Principles of European Constitutional Law, eds. Armin von Bogdandy & Jürgen Bast (Oxford: Hart Publishing, 2007), 3, 34–35. 43. 37 BVerfGE 271 (1974). See Carl Lebeck, “National Constitutionalism, Openness to International Law and the Pragmatic Limits of European Integration—European Law in the German Constitutional Court from eec to the pjcc,” German Law Journal 7 (2006): 907, 914–15, available at www.germanlawjournal.com/pdfs/Vol07No11/Vol _07_No_11_907 -945_Articles_Lebeck _pdf.pdf. 44. Antje Wiener, “Conclusion: Th rough Uncharted Waters of Constitutional Quality. Navigating between Modern Statehood and International Orga nization,” in Political Theory of the European Union, eds. Jürgen Neyer & Antje Wiener (Oxford: Oxford University Press, 2010), 213, 214. 45. Solange I Case, 37 BVerfGE 271, 278 (1974). As former Constitutional Court justice Dieter Grimm explained, European integration has produced “a hybrid that is without either precedent or imitation.” Dieter Grimm, “The Eu ropean Court of Justice and National Courts: The German Constitutional Perspective after the Maastricht Decision,” Columbia Journal of European Law 3 (1996–1997): 229. 46. Solange I Case, 37 BVerfGE 271, 280 (1974). 47. See Case 6/64, Costa v. enel, 1964 E.C.R. 585, 593. See also Margot Horspool & Matthew Humphreys, European Union Law, 6th ed. (Oxford: Oxford University Press, 2010), 178–83; Solange I Case, 37 BVerfGE 271, 278 (1974). 48. Solange I Case, 37 BVerfGE 271, 278–79 (1974). 49. See Maastricht Treaty Case, 89 BVerfGE 155, 175 (1993). See also The European Courts and National Courts: Doctrine and Jurisprudence, eds. Anne-Marie Slaughter, Alec Stone Sweet & Joseph H. H. Weiler (Oxford: Hart Publishing, 1998); Alec Stone Sweet, The Judicial Construction of Europe (Oxford: Oxford University Press, 2004); Andreas Voßkuhle, “Multilevel Cooperation of the European Constitutional Courts—Der Europäische Verfassungsgerichtsverbund,” European Constitutional Law Review 6 (2010): 175; Norbert Reich, “On National Courts, Eu ropean Law and Constitutions: Dialogue and Confl ict,” European Law Journal 5 (1999): 154; Carl Baudenbacher, “The efta Court: An Actor in the European Judicial Dialogue,” Fordham International Law Journal 28 (2005): 353. 50. Solange I Case, 37 BVerfGE 271, 278 (1974). 51. Declaration on Democracy, Copenhagen Eu ropean Council, 8 April 1978, Bulletin EC3-1978, at 5–6.

790 Notes to Chapter Six 52. Paul Craig & Gránnie de Búrca, eu Law—Text, Cases, and Materials, 3d ed. (Oxford: Oxford University Press, 2003), 318. 53. Koen Lenaerts, Piet van Nuffel & Robert Bray, Constitutional Law of the European Union, 2d ed. (London: Sweet and Maxwell, 2005), 139–41. 54. The Constitutional Court must have had in mind the “symbolically important” but nonbinding 1977 Joint Declaration of the Parliament, Council, and Commission, in which all three Eu ropean organs endorsed the notion that fundamental rights are the basis for the Communities and committed themselves to respecting these rights “in the exercise of their powers and in pursuance of the aims of the Eu ropean Communities.” Joint Declaration by the Eu ropean Parliament, the Council, and the Commission of 5 April 1977, 1977 O.J. (C 103) 1. 55. In Nold, the Eu ropean Court of Justice explained that “fundamental rights form an integral part of the general principles of [Eu ropean] law,” and that “in safeguarding these rights, [the Eu ropean Court of Justice] is bound to draw inspiration from constitutional traditions common to the Member States” and from international human rights treaties, especially the Eu ropean Convention for Human Rights. Case 4/73, Nold v. Commission, 1974 E.C.R. 491. 56. Ibid. 57. Miriam Aziz, “Sovereignty Über Alles: (Re)Configuring the German Legal Order,” in Sovereignty in Transition, ed. Neil Walker (Oxford: Hart Publishing, 2003), 279, 289– 96. 58. Solange I drew sharp criticism from legal scholars. Hans Peter Ipsen called it “wrong in its result and reasoning . . . absurd, gratuitous, and misguided as a matter of legal-policy.” Hans Peter Ipsen, “BVerfG versus EuGH re. ‘Grundrechte,’ ” Europarecht 10 (1975): 1. Ulrich Scheuner called the decision “regrettable” and “unsustainable.” Ulrich Scheuner, “Der Grundrechtsschutz in der Europäischen Gemeinschaft und die Verfassungsrechtsprechung,” Archiv des öffentlichen Rechts 100 (1975): 30, 50–51. See Hans-Uwe Erichsen, “Bundesverfassungsgericht und Gemeinschaft sgewalt,” Verwaltungsarchiv 66 (1975): 177. 59. Th is included West Germany’s fi rst (and long-serving) chancellor, Konrad Adenauer of the center-right Christian Democratic Union. See Frank Schorkopf, Der Europäische Weg (Tübingen: J. C. B. Mohr [Paul Siebeck], 2010), 6, 13–14. It also included Carlo Schmid, one of the leading members of the postwar Social Democratic Party of Germany. See Carlo Schmid, “Germany and Europe,” Foreign Affairs 30/4 (1952): 531, 537–41. One commentator explained that “for more than 40 years the cornerstone of foreign policy of all relevant political parties in West Germany had been unification of Eu rope as a Eu ropean Federal State.” Joachim Wieland, “Germany in the European Union—The Maastricht Decision of the Bundesverfassungsgericht,” European Journal of International Law 5 (1994): 259. 60. Horspool & Humphreys, supra note 47, at 386. 61. The Bundestag passed the Act Concerning the European Union Treaty on 2 December 1992, by 543 of 568 votes cast (Sten. Bericht 12/126, p. 10879). The Bundesrat assented unanimously to the act on 18 December 1992. See BR Drucks. 810/92, Sten. Ber. Der 650. Sitzung, December 18, 1992. The act was published in the Bundesgesetzblatt on 30 December 1992, BGBl. II:1251. 62. The new Article 23 replaced the old “accession” Article, which was used to constitutionally facilitate German reunification, by having the newly created Länder in the disintegrating East Germany accede to the Federal Republic of Germany and its constitutional order. Reliance on Article 23 to achieve German unity was (and remains) controversial. It is argued that Article 146—apparently requiring a wholly new constitutional undertaking at the hoped-for time of reunification—was the proper mechanism for unifying East and West

Notes to Chapter Six 791 Germany. In any case, the old Article 23 was repealed by the Unification Treaty and Article 146 was amended to read: “The Basic Law, which since the achievement of the unity and freedom of Germany applies to the entire German people, shall cease to apply on the day on which a constitution freely adopted by the German people takes effect.” See the discussion of these issues in Chapter 10. 63. See Magdalena Suszycka-Jasch & Hans-Christian Jasch, “The Participation of the German Länder in Formulating German eu-policy,” German Law Journal 10 (2009): 1215, available at www.germanlawjournal.com/pdfs/Vol10No09/PDF_Vol_10_No_09_1215-1256 _Articles_ JaschJasch.pdf. 64. Rupert Scholz, “Article 23,” in Maunz-Dürig Grundgesetz, eds. Roman Herzog et al., 60th supplement (Munich: C. H. Beck’sche Verlagsbuchhandlung, 2010), margin number 55. 65. See Paul Kirchhof, “The Legal Structure of the European Union as a Union of States,” in Principles of European Constitutional Law, eds. Armin von Bogdandy & Jürgen Bast (Oxford: Hart Publishing, 2007), 765, 778. Th is view is disputed. See Christoph Schönberger, “Die Europäische Union als Bund. Zugleich ein Beitrag zur Verabschiedung des StaatenbundBundesstaat-Schemas,” Archiv des öffentlichen Rechts 129 (2004): 81. 66. The guaranteed personal rights allegedly under attack were human dignity (Article 1 (1)), freedom of action (Article 2 (1)), freedom of speech (Article 5 (1)), freedom of association (Article 9 (1)), the right to choose one’s occupation or trade (Article 12 (1)), and the right to property (Article 14 (1)). All of these claims were ruled inadmissible. 67. See Bruno de Witte, “Sovereignty and European Integration: The Weight of Legal Tradition,” Maastricht Journal of European & Comparative Law 2 (1995): 145. Karl M. Meesen, “Hedging European Integration: The Maastricht Judgment of the Federal Constitutional Court of Germany,” Fordham International Law Journal 17 (1993– 94): 511. 68. See Paul Kirchhof, “§ 183,” in II Handbuch des Staatrechts der Bundesrepublik Deutschland, eds. Paul Kirchhoff & Josef Isensee (Heidelberg: C. F. Müller Juistischer Verlag, 1993), 855. 69. “The Union shall respect fundamental rights, as guaranteed by the Eu ropean Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.” Article F (2) teu (now Article 6 teu). 70. Steve Boom, “The European Union after the Maastricht Decision: Will Germany Be the ‘Virginia of Eu rope?,’ ” American Journal of Comparative Law 43 (1995): 177, 183. 71. 89 BVerfGE 155, 210 (1993). See Wieland, supra note 59, at 264. 72. 89 BVerfGE 155, 190 (1993). 73. Craig & de Búrca, supra note 52, at 132. 74. Ibid., at 135. 75. 97 BVerfGE 350 (1998). 76. Ibid., at 369. 77. 102 BVerfGE 147 (2000). See Miriam Aziz, “Sovereignty Lost, Sovereignty Regained? Some Reflections on the Bundesverfassungsgericht’s Bananas Judgment,” Columbia Journal of European Law 9 (2002–2003): 109. 78. 113 BVerfGE 273 (2005). See Der Europäische Haftbefehl vor dem Bundesverfassungsgericht, ed. Frank Schorkopf (Tübingen: J. C. B. Mohr [Paul Siebeck], 2006); Oreste Pollicino, “European Arrest Warrant and Constitutional Principles of the Member States: A Case Law–Based Outline in the Attempt to Strike the Right Balance between Interacting Legal Systems,” German Law Journal 9 (2008): 1313, available at www.germanlawjournal.com/pdfs /Vol09No10/PDF_Vol _09_No_10_1313-1354_Developments_Pollicino.pdf.

792 Notes to Chapter Six 79. The Constitutional Court’s First Senate later ruled that member states also have discretion in implementing European directives. See Data Stockpiling Case, 125 BVerfGE 260 (2010). 80. Article 16 (2) of the Basic Law generally prohibits the extradition of German citizens except, as provided by law, to a member state of the Eu ropean Union, and so long as (solange) the constitutional state principle is observed. 81. The Court’s majority said this violated the constitutional state principle by depriving German citizens of their right of recourse to statutorily created courts, as guaranteed by Article 19 (4) of the Basic Law. 113 BVerfGE 273, 310–15 (2005). 82. Ibid., 300. 83. Lebeck, supra note 43, at 931. For discussions of the Eu ropean Union’s entry into the criminal law field under its third pillar, traditionally the jealous preserve of national sovereignty, see Ester Herlin-Karnell, “What Principles Drive (or Should Drive) European Criminal Law?,” German Law Journal 11 (2010): 1115, available at www.germanlawjournal .com/pdfs /Vol11 -No10/PDF_Vol _11 _No _10 _1115 -1130 _Articles _Herlin -Karnell %20FINAL .pdf; Christoph J. M. Safferling, “Eu rope as Transnational Law—A Criminal Law for Eu rope: Between National Heritage and Transnational Necessities,” German Law Journal 10 (2009): 1383, available at www.germanlawjournal.com/pdfs/Vol10-No10/PDF_Vol _10_No_10 _1383-1398_Articles_Safferling.pdf. 84. University of Heidelberg law professor, and former Constiutitonal Court justice, Paul Kirchhof was famous for beginning his lectures with the admonition: “Ladies and Gentlemen, do not forget that the Basic Law, by using the word ‘Bundesstaat,’ invokes not only the ‘Bundes’ (Federation) but also the ‘-staat’ (State).” Of course, this stresses the stateorientation of Article 20 (1) of the Basic Law. See Paul Kirchhof, “Die Identität der Verfassung,” in II Handbuch des Deutschen Staatsrechts, eds. Gerhard Anschütz & Richard Thoma, 3d ed. (Tübingen: J. C. B. Mohr [Paul Siebeck], 2003), § 21 mn. 69 (arguing that Germany’s constitutional identity as a federal state is an absolute limit to Eu ropean integration under the Basic Law). 85. Dieter Grimm, “Does Europe Need a Constitution?” European Law Journal 1 (1995): 282. 86. Joschka Fischer, “From Confederacy to Federation: Thoughts on the Finality of Eu ropean Integration (Speech at Humboldt University, Berlin, 12 May 2000),” in What Kind of Constitution for What Kind of Polity? Response to Joschka Fischer, eds. Christian Joerges, Yves Mény & J. H. H. Weiler (San Domenico, Italy: Eu ropean University Institute, 2000), 19. 87. Jürgen Habermas, “Why Europe Needs a Constitution,” New Left Review 11 (Sept./ Oct., 2001): 5, 16–19 (referring to what he calls a “catalytic constitution”). 88. Maria Cahill, “Ireland’s Constitutional Amendability and Eu rope’s Constitutional Ambition: The Lisbon Referendum in Context,” German Law Journal 9 (2008): 1191, available at www.germanlawjournal.com/pdfs/Vol09No10/PDF_Vol_09_No_10_1191-1218_Articles _Cahill.pdf. 89. Lisbon Treaty Case, 123 BVerfGE 267 (2009). Der Vertrag von Lissabon vor dem Bundesverfassungsgericht, ed. Karen Kaiser (Heidelberg: Springer, 2011); Franz C. Mayer, “Rashomon in Karlsruhe—Reflection on Democracy and Identity in the European Union,” International Journal of Constitutional Law 9 (2011): 757. For criticism of the Court’s decision, see Christian Tomuschat, “The Ruling of the German Constitutional Court on the Treaty of Lisbon,” German Law Journal 10 (2009): 1259, available at www.germanlawjournal.com/pdfs/Vol10No08 /PDF_Vol _10_No_08_1259 -1262_Lisbon%20Special _Tomuschat.pdf; Daniel Halberstam & Christoph Möllers, “The German Constitutional Court says ‘Ja zu Deutschland!’,” German Law Journal 10 (2009): 1241, available at www.germanlawjournal.com/pdfs/Vol10No08/PDF

Notes to Chapters Six–Seven 793 _Vol _10 _No _08 _1241 -1258 _Lisbon %20Special _Halberstam %20and %20Mollers .pdf; Christoph Schönberger, “Lisbon in Karlsruhe: Maastricht’s Epigones at Sea,” German Law Journal 10 (2009): 1201, available at www.germanlawjournal.com/pdfs/Vol10No08/PDF_Vol _10_No_08_1201-1218_Lisbon%20Special _Schonberger.pdf. Approving of the Court’s decision, see Frank Schorkopf, “The European Union as an Association of Sovereign States: Karlsruhe’s Ruling on the Treaty of Lisbon,” German Law Journal 10 (2009): 1219, available at www.germanlawjournal .com/pdfs/Vol10No08/PDF_Vol _10_No_08_1219 -1240_Lisbon %20Special _Schorkopf.pdf; Dieter Grimm, “Defending Sovereign Statehood against Transforming the European Union into a State,” European Constitutional Law Review 5 (2009): 353. 90. Lisbon Treaty Case, 123 BVerfGE 267, 371 (2009). 91. Solange II Case, 73 BVerfGE 339, 375–76 (1986). 92. Lisbon Treaty Case, 123 BVerfGE 267, 353–54 (2009). 93. Alfred Grosser, “The Federal Constitutional Court’s Lisbon Case: Germany’s “Sonderweg”—An Outsider’s Perspective,” German Law Journal 10 (2009): 1263, available at www.germanlawjournal .com/pdfs/Vol10No08/PDF_Vol _10_No_08_1263-1266_Lisbon %20Special _Grosser.pdf. 94. 126 BVerfGE 286 (2010). See Matthias Mahlmann, “The Politics of Constitutional Identity and Its Legal Frame—the Ultra Vires Decision of the German Federal Constitutional Court,” German Law Journal 11 (2010): 1407, available at www.germanlawjournal. com /pdfs /Vol11 -No12 /PDF _Vol _11 _No _12 _1407 -1420 _Developments _Mahlmann %20FINAL .pdf; Juliane Kokott, “The Basic Law at 60—From 1949 to 2009: The Basic Law and Supranational Integration,” German Law Journal 11 (2010): 99, 110–12, available at www .germanlawjournal .com /pdfs/Vol11-No1 /PDF_Vol _11 _No _01 _99 -114 _GG60 _Kokott .pdf. 95. On the principle of openness to European law (Europarechtsfreundlichkeit) see Franz C. Mayer, “Europarechtsfreundlichkeit und Europarechtsskepsis in der Rechtsprechung des Bundesverfassungsgerichts,” in Der “offene Verfassungsstaat” des Grundgesetzes nach 60 Jahren, ed. Thomas Giegerich (Berlin: Duncker and Humblot, 2010), 237; Karen Kaiser & Isabel Schübel-Pfister, “Der ungeschriebene Verfassungsgrundsatz der Europarechtsfreundlichkeit: Trick or Treat?,” in II Linien der Rechtsprechung des Bundesverfassungsgerichts, eds. Ariane Wiedmann & Sigrid Emmenegger (Berlin: de Gruyter, 2011). 96. Greek Rescue Package Case, 125 BVerfGE 385 (2011). 97. Lisbon Treaty Case, 123 BVerfGE 267, 346 (2009).

chapter seven 1. The framers lifted this language almost verbatim from the Universal Declaration of Human Rights. The declaration’s preamble acknowledges that “the inherent dignity and . . . the equal and inalienable rights of all members of the human family [are] the foundation of freedom, justice and peace of the world,” just as Article 1 affi rms that “all human beings are born free and equal in dignity and rights” (Universal Declaration of Human Rights, Dec. 10, 1948 [U.N. Doc. A/811]). 2. See Peter Haberle, “Die Menschenwürde als Grundlage der staatlichen Gemeinschaft ,” in Handbuch des Staatsrechts der Bundesrepublik Deutschland (8 vols.), eds. Josef Isensee & Paul Kirchhof (Heidelberg: C. F. Müller Juristischer Verlag, 1987), 1:815– 61. See also Karl Doehring, Staatsrecht der Bundesrepublik Deutschland, 3d ed. (Frankfurt am Main: Alfred Metzner Verlag, 1984), 280–84.

794 Notes to Chapter Seven 3. See Erhard Denninger, “Verfassungsrechtliche Schlüsselbegriffe,” in Festschrift für Rudolf Wassermann zum 60. Geburtstag, eds. Christian Broda et al. (Neuwied: Hermann Luchterhand Verlag, 1985), 279– 98. 4. For a discussion of the meaning of the term “moral code,” see the discussion that follows the Transsexual II Case (no. 7.10). 5. For a brief overview of the debate in English, see John Ford Golay, The Founding of the Federal Republic of Germany (Chicago: University of Chicago Press, 1958), 175–80. 6. The emphasis here on human dignity recalls the Cattle Slaughter Case (1999) whose significance for present purposes was the failure of an ecological orga nization to bring the treatment of animals within the protection of Article 1 (1). In 1994, the Basic Law was amended to require the state to protect “the natural foundations of life and of animals (Article 20a), but Cattle Slaughter makes clear that animals enjoy no protection under the Basic Law’s human dignity clause. 7. 119 BVerfGE 1 (2007). 8. Ibid., at 30. 9. Ibid., at 37–58. 10. The term “spiritual-moral being” appears in the Life Imprisonment Case (45 BVerfGE 187, 227 [1977]). Such references to the transcendental character of the human personality flow mainly from the prolific pens of justices and commentators associated with the naturallaw tradition. See, for example, Josef Wintrich, “Die Bedeutung der Menschenrechten für die Anwendung des Rechts,” Bayerische Verwaltungsblätter 5 (1957): 137–40; Willi Geiger, Gesetz über das Bundesverfassungsgericht (Berlin: Verlag Franz Vahlen GmbH, 1952), 134; Ernst Benda, Werner Maihofer & Hans-Jochen Vogel, “Die Menschenwürde,” in Handbuch des Verfassungsrechts (2 vols.) (Berlin: Walter de Gruyter, 1984), 1:110; Christian Starck, “Menschenwürde als Verfassungsgarantie im modernen Staat,” Juristenzeitung 36 (1981): 457–64; and “Article 1 (1),” in Grundgesetz: Kommentar, eds. Theodore Maunz, Gunter Durig & Roman Herzog, 3d ed. (Munich: C. H. Beck’sche Verlagsbuchhandlung, 1973), 3. Wintrich, Geiger, and Benda were enormously influential leaders in their respective senates. Wintrich and Benda served as president and presiding officer of the First Senate for a total of sixteen years; Geiger was one of the most articulate members of the Second Senate for twenty years. 11. See G. P. Fletcher, “Human Dignity as a Constitutional Value,” University of Western Ontario Law Review 22 (1984): 178–82. See also Peter Badura, “Generalprävention und Würde der Menschen,” Juristenzeitung 19 (1964): 337–44. 12. See Winfried Brugger, “Elemente verfassungsliberaler Grundrechtstheorie,” Juristenzeitung 42 (1987): 633–40. 13. 30 BVerfGE 173, 193 (1971). 14. 4 BVerfGE 7, 15–16 (1954). See also Conscientious Objector I Case, 12 BVerfGE 45, 51 (1960); and Klass Case, 30 BVerfGE 1, 20 (1970). 15. Fletcher noted that American commentators have discovered in Kantian rationalism a proper foundation for the primacy of rights and personal autonomy in American constitutionalism. In Fletcher’s view, this overemphasizes Kant’s individualistic legal theory to the neglect of his “communitarian moral theory.” Fletcher sees the Basic Law as an effort to “integrate Kant’s communitarian moral theory into a liberal legal order.” Fletcher, supra note 11, at 171–72. 16. Robert H. Wieber, “Lincoln’s Fraternal Democracy,” in Abraham Lincoln and the American Political Tradition, ed. John L. Thomas (Amherst: University of Massachusetts Press, 1986), 11–30.

Notes to Chapter Seven 795 17. Ernst Benda, writing in 1983 upon his retirement as president, uttered the conventional German view in noting that the Basic Law rejects the “individualistic conception of man derived from classical liberalism as well as the [more modern] collectivistic view” (see “Die Menschenwürde,” supra note 10, at 107). 18. See Furman v. Georgia, 408 U.S. 238 (1972); Gregg v. Georgia, 428 U.S. 153 (1976). 19. Polygraph Case (Chamber Decision), Neue Juristische Wochenschrift 35 (1982): 375. 20. 33 BVerfGE 1 (1972). 21. 35 BVerfGE 202. See also Dirk van Zyl Smit, “Is Life Imprisonment Constitutional? The German Experience,” Public Law (Summer 1992): 265–67. 22. Penal Code of the Federal Republic of Germany, trans. Joseph J. Darby (London: Sweet and Maxwell, 1987), §§ 57 and 57a. 23. 117 BVerfGE 71. 24. 72 BVerfGE 105 (1986). 25. 64 BVerfGE 261, 284 (1983). Th is case also involved a concentration camp official convicted and sentenced to fi fteen years for his complicity in the murder of hundreds of persons. In 1977, at the age of seventy-eight and after serving thirteen years of his sentence, he applied for a ten-day release from prison under a federal statute permitting such furloughs each year after the offender has spent six months in prison or ten years in the case of someone sentenced to life imprisonment. The Frankfurt Regional Court denied the release in this case because of the gravity of the offender’s crime, notwithstanding the offender’s advanced age, the serious condition of his health, and his exemplary prison record. The Second Senate, over the dissenting opinion of Justice Mahrenholz, ruled that the lower court’s decision was incompatible with Article 2 (1) considered in tandem with the human dignity clause of Article 1 (1). 26. 116 BVerfGE 69 (2006). 27. Ibid., at 86. 28. Ibid., at 90. 29. 98 BVerfGE 169. 30. 109 BVerfGE 133 (2004). 31. Ibid., at 151–56. 32. 109 BVerfGE 190 (2004). 33. Ibid. The senate held that the Länder violated Article 74 (1) [1] of the Basic Law for interfering with the federal government’s authority over “criminal law,” construed to include punishments such as preventive detention. 34. The senate decided 5–3 to keep the Land laws in force and the complainants in detention for a limited period to give the Länder time to promulgate local regulations in strict compliance with constitutional standards and without interfering with federal authority. The decision to continue the Land laws in force until a given date was hotly contested by Justices Siegfried Bross, Lerke Osterloh, and Michael Gerhardt. See their dissenting opinion at 109 BVerfGE 190, 244–55. For an informative discussion of Preventive Detention II, see Frieder Dünkel and Dirk van Zyl Smit, “Preventive Detention of Dangerous Offenders Reexamined: A Comment on Two Decisions of the German Federal Constitutional Court,” German Law Journal 5 (2004): 519–637, available at www.germanlawjournal.com/pdfs/Vol05No06/PDF _Vol_05_No_06_619-637_Public_Duenkel_van_Zyl_Smit.pdf. 35. 128 BVerfGE 326 (2011). 36. Ibid. Here too, as in Preventive Detention II, the senate permitted the detention policies to remain in force for a transitional period—until 31 May 2013—to give the legislature time to bring them into conformity with both domestic and international law. Unlike Preventive Detention II, the opinion was unanimous.

796 Notes to Chapter Seven 37. Honecker Case, Berlin Constitutional Court, VerfGH 55/92, Europäische Grundrechte Zeitschrift 20 (1993): 48. 38. See Bruno Schmidt-Bleibtreu & Franz Klein, Kommentar zum Grundgesetz für die Bundesrepublik Deutschland, 5th ed. (Neuwied: Hermann Luchterhand Verlag, 1980), 141–43. 39. See, for example, Acoustical Surveillance Case, 109 BVerfGE 279 (2004). Acoustical Surveillance held that the monitoring of a private dwelling, even for the purpose of criminal prosecution, violates dignity if it results in the collection of personal data unrelated to a criminal offense. See also Paternity Disclosure II Case, 117 BVerfGE 207 (2007). Paternity Disclosure held that the general right to personality, in tandem with human dignity, guarantees the right of a person to know the parentage of the child legally attributed to him. 40. 12 BVerfGE 1 (1960). A partial translation of this case appears in Walter F. Murphy & Joseph Tanenhaus, Comparative Constitutional Law (New York: St. Martin’s Press, 1977), 466–67. 41. 12 BVerfGE 1, 4 (1960). 42. These remarks are drawn from an unpublished paper by President Zeidler (undated typescript on fi le in the archives of the Federal Constitutional Court). See also Wolfgang Zeidler, “Grundrechte and Grundentscheidungen der Verfassung im Widerstreit,” in Verhandlungen des 53. Deutschen Juristentages (Berlin: 1980), I:1–29. 43. 410 U.S. 113 (1973). For a detailed comparison of the American and German abortion cases, see Donald P. Kommers, “Liberty and Community in Constitutional Law: The Abortion Cases in Comparative Perspective,” Brigham Young Law Review 1985 (1985): 371–409. See also Winfried Brugger, “A Constitutional Duty to Outlaw Abortion? A Comparative Analysis of the American and German Abortion Decisions,” Jahrbuch des Öffentlichen Rechts der Gegenwart 36 (1987): 49–66. 44. Abortion I Temporary Injunction Case, 37 BVerfGE 324 (1974). 45. See Wolfgang Zeidler, “Ehe and Familie,” in Handbuch des Verfassungsrechts der Bundesrepublik Deutschland (Berlin: Walter de Gruyter, 1983), 556–607. 46. See Brugger, supra note 43, at 50–55. For a comprehensive discussion of the American jurisprudence, see Laurence H. Tribe, American Constitutional Law, 2d ed. (Mineola, N.Y.: Foundation Press, 1988), 1337–62. 47. See Brüggemann and Scheuten v. Federal Republic of Germany, European Human Rights Reports 3 (1977): 244. 48. BGBl. I:1213 (1976). 49. For a discussion of the impact of Abortion I on the frequency of abortion in Germany, see Bericht der Kommission zur Auswertung der Erfahrungen mit dem reformierten Sec. 218 des Strafgesetzbuches, Deutscher Bundestag, 8. Wahlperiode, Drucksache 8/3630 (Jan. 31, 1980). See also Evert Ketting & Philip van Praag, Schwangerschaft sabbruch (Tübingen: Deutsche Gesellschaft Elie Verhaltenstherapie, 1985). 50. Susanne Walther, “Thou Shalt Not (but Thou Mayest): Abortion after the German Constitutional Court’s 1993 Landmark Decision,” German Yearbook of International Law 36 (1993): 387. 51. Unification Treaty, Article 31 (4). See Donald P. Kommers, “The Basic Law under Strain: Constitutional Dilemmas and Challenges,” in The Domestic Politics of German Unification, ed. Christopher Anderson et al. (Boulder, Colo.: Lynne Rienner, 1993), 142–43. 52. Section 13 of the Pregnancy and Family Assistance Act amended §§ 218 and 219 of the German Penal Code. These amended sections (Änderung des Strafgesetzbuches) constitute the Abortion Reform Act of 1992. Strafgesetzbuchreform [StGBR], § 13 (1992).

Notes to Chapter Seven 797 53. See Walther, supra note 50, at 389. 54. StGB, § 218a (2). 55. Frankfurter Allgemeine Zeitung, June 27, 1992, at 2. 56. Frankfurter Allgemeine Zeitung, June 30, 1992, at 1. 57. Articles commenting on Abortion II included: Donald P. Kommers, “The Constitutional Law of Abortion in Germany: Should Americans Pay Attention?,” Journal of Contemporary Health Law and Society 10 (1994): 1–32; Gerald L. Neuman, “Casey in the Mirror: Abortion, Abuse and the Right to Protection in the United States and Germany,” American Journal of Comparative Law 43 (1995): 273–314; and Walther, supra note 50, at 384–402. 58. Bavarian Pregnancy Assistance Amendment Act (Bayerisches Schwangerenhilfeergänzungsgesetz), Art. 3 § 1, Art. 5 § 2, and Art. 11 § 2 (1996). 59. Bavarian Abortion III Case, 98 BVerfGE 265 (1998). Earlier in the same year, the Court rejected applications for temporary injunctions against the implementation of Bavaria’s Pregnancy Assistance Act. See Bavarian Abortion I Case, 96 BVerfGE 120 (1997), and Bavarian Abortion II Case, 97 BVerfGE 102 (1997). 60. Article 74 (1) [19] confers concurrent jurisdiction on the federal legislature to regulate “admission to the medical profession.” Whether “admission” extended to the regulation of the “practice” of medicine was an issue here. The majority felt that neither the Basic Law nor federal legislation barred the Länder from imposing regulations on medical practices. 61. 505 U.S. 883 (1992). See also Udo Werner, “The Convergence of Abortion Regulation in Germany and the United States: A Critique of Glendon’s Rights Talk Thesis,” Loyola (L.A.) International and Comparative Law Journal 18 (1996): 571; Richard E. Levy & Alexander Somek, “Paradoxical Parallels in the American and German Abortion Decisions,” Tulane Journal of International & Comparative Law 9 (2001): 109. 62. Aviation Security Act Case, 115 BVerfGE 118, 127 (2006). 63. Ibid. 64. Ibid., at 154. 65. Ibid., at 152. 66. Ibid., at 157. 67. See Oliver Lepsius, “Human Dignity and the Downing of Aircraft: The German Federal Constitutional Court Strikes Down a Prominent Anti-Terrorism Provision in the New Air-Transport Security Act,” German Law Journal 7 (2006): 244, available at www.germanlawjournal .com /pdfs/Vol07No09/PDF_Vol _07_No _09_761-776 _Developments _Lepsius.pdf. 68. In addressing several of these issues, the Federal Parliament has proceeded with caution, permitting in vitro fertilization, for example, but severely restricting the production, transfer, and improper use of human embryos. See Embryo Protection Act of 13 December 1990, BGBl. I: 2746. Under this Act, Parliament has banned cloning, artificial alteration of human germinal cells, and genetic manipulation for purposes of sex selection. It has permitted surrogate motherhood agreements subject to the reservation that the identity of all parties be properly and fully documented. For its part, the Federal Constitutional Court has left most of these issues untouched, except for admonishing legislators—with respect to organ donations in particular—that persons retain control over their bodies in conformity with the principles of consent and self-determination as informed by the principle of human dignity. In this highly complex field of human engineering and genetic experimentation, both Court and legislature appear to be working in relative harmony. 69. The Federal Court of Justice has taken this stance in cases involving the discontinuance of treatment for terminally ill patients or palliative treatment that eventually results in

798 Notes to Chapter Seven death. See 27 BGHSt 336 (1978), 32 BGHSt 367 (1984), and 39 BGHSt 159 (1993). It is noteworthy, too, that in the Muscular Dystrophy Case the Constitutional Court held that it is incompatible with the personality and right-to-life clauses of Article 2—considered in tandem with the social state clause—for the state to deny payment to a doctor who treated a patient for an illness regarded as incurable but treatable. 115 BVerfGE 25 (2005). 70. New York Times, July 3, 2008, at A8. 71. 77 BVerfGE 170 (1987). 72. Ibid., at 215–16. 73. Ibid., at 234–40. 74. As the Court noted in the Lebach Case, “the preeminent importance of the right to the free development and respect of personality . . . follows from its close connection with the supreme value enshrined in the constitution, i.e., human dignity.” Lebach Case, 35 BVerfGE 202, 221 (1973). For a general discussion of the Constitutional Court’s interpretation of the personality clause, see R. Scholz, “Das Grundrecht der freien Entfaltung der Personlichkeit in der Rechtsprechung des Bundesverfassungsgerichts,” Archiv des Öffentlichen Rechts 100 (1975): 80–130, 265– 90. 75. See, for example, Christian Friedrich Case, 4 BVerfGE 52, 56 (1954). 76. Ekkehart Stein, Staatsrecht, 9th ed. (Tubingen: J. C. B. Mohr [Paul Siebeck], 1984), 217. See also Doehring, supra note 2, at 284–85. 77. Some commentators, such as Hans Peters, have adopted a narrower view of the personality clause. Th is view, which may be described as “Christocentric,” is that persons have been created in the image of God. They are fundamentally spiritual beings responsible before God within the larger community. Accordingly, their rights under the human dignity and personality clauses are confi ned to those liberties that are expressive of this “inner core” of the God-oriented human person; this is sometimes known as the Kernbereichstheorie of the personality clause, as opposed to the prevailing and broader Persönlichkeitskerntheorie. See Hans Peters, Das Recht auf freie Entfaltung der Persönlichkeit in der höchstrichterlichen Rechtsprechung (Opladen: Westdeutscher Verlag, 1963). For a general discussion in English of the right to personality in Germany, see Harry D. Krause, “The Right to Privacy in Germany— Pointers for American Legislation?,” Duke Law Journal (1965): 481–530. 78. 90 BVerfGE 145 (1994). 79. 90 BVerfGE 263 (1994). 80. The right to personality, incidentally, has not been confi ned to natural persons. Freedom of action has been extended by interpretation to corporations and legal persons. See Erfurt Public Corporation Case, 10BVerfGE 89 (1959); and Accident Insurance Case, 23 BVerfGE 12 (1967). 81. 55 BVerfGE 159 (1980). 82. In still another licensing case—the Public Assembly Case (20 BVerfGE 150 [1956])— the Court held that freedom of action protected by Article 2 (1) was violated by a standardless and arbitrary denial of license to an orga nization wishing to assemble in public and solicit funds for its activities. We have also seen from the materials in Chapter 5 that freedom of action as an expression of personality includes economic rights to the extent that such rights are not fully secured by other basic rights. See Small Garden Plot Case, 10 BVerfGE 221 (1959); Kurt L. Case, 30 BVerfGE 250 (1971). 83. 80 BVerfGE 137 (1989). 84. Ibid., at 166. 85. Ibid., at 168. 86. Punitive Damage Temporary Injunction Case, 91 BVerfGE 140 (1994).

Notes to Chapter Seven 799 87. Punitive Damage Case, 91 BVerfGE 335, 339–40 (1994). 88. Census Act Temporary Injunction Case, 64 BVerfGE 67 (1983). 89. Widow’s Child Welfare Case, 1 BVerfGE 97 (1951). 90. Donald P. Kommers, “Fundamental Rights: A Comparative Analysis” (Lecture presented at the Center for Contemporary German Studies, Johns Hopkins University, Washington, D.C., Sept. 23, 1987), 6. 91. Ibid. 92. 27 BVerfGE 344. 93. 34 BVerfGE 205 (1972). In still another decision, the Constitutional Court held that the human dignity and personality clauses barred the admissibility of a doctor’s records on a patient facing a criminal trial. Medical Confidentiality Case, 32 BVerfGE 373 (1972). Even the public’s interest in prosecuting a crime was insufficient here to breach the privacy of a doctor-patient relationship. In the Adolph M. Case, however, the Constitutional Court declined to extend the same degree of protection to the testimony of a social worker. The Court ruled that while such professionals are personal advisors, they are also agents of the state entrusted with the administration of public assistance. See 33 BVerfGE 367 (1972). 94. 96 BVerfGE 56 (1997). 95. 17 BVerfGE 202 (2007). 96. See Tape Recording II Case, 34 BVerfGE 238 (1973) (Barring the use in a criminal proceeding of a secret recording that the victim had made in a conversation with the accused.) See also Tape Recording I Case, 31 BVerfGE 255 (1971). 97. 49 BVerfGE 286 at 298. 98. Ibid., at 299. 99. 121 BVerfGE 175 (2008). 100. See, respectively, Transsexual I Case, 88 BVerfGE 87 (1993) and Transsexual IV Case, 116 BVerfGE 243 (2006). See also van Kück v. Germany (2003), 37 EHRR 51. 101. In the well-known Klass Case, 30 BVerfGE 1 (1970), the Constitutional Court sustained the validity of the amendment over the objection of Hesse’s Land government that it infringed a core constitutional value and was therefore unconstitutional under the terms of Article 79 (3). In subsequent cases, however, the Court made clear that it would examine such interferences with strict attention to the importance of Article 10’s core value of privacy as well as the principle of proportionality. See, for example, the Warsaw Pact Wiretapping Case, 67 BVerfGE 157 (1987). 102. Gesetz zur Beschränkung des Brief-, Post- und Fernmeldegeheimnisses in der Fassung des Gesetzes zur Änderung des Strafgesetzbuches, der Strafprozessordnung und anderer Gesetze (Verbrechensbekämpungsgesetz) [Crime Control Act], of 28 October 1994, BGBl. I:3186, geändert durch das Begleitgesetz zum Telekommunikationsgesetz (BegleitG) [Act Accompanying the Telecommunications Act], of 17 December 1997, BGBl. I:3108. (Hereinafter “G10 Act.”) 103. Paragraphs 3 (2), 3 (5), and 3 (8) [2] of the G10 Act. 104. 100 BVerfGE 313 (1999). 105. Ibid., at 373. 106. Ibid., at 381–82. 107. 109 BVerfGE 279 (2004). 108. The amendment to Article 13, together with laws adopted to carry out the surveillance, were challenged under the “eternity clause” of Article 79 (3) for infringing the fundamental principle of human dignity in violation of Article 1 (1). 109. 109 BVerfGE 279, 313.

800 Notes to Chapter Seven 110. Ibid., at 312. 111. Ibid., at 313. 112. Telecommunication Case, 107 BVerfGE 299 (2003). 113. 113 BVerfGE 29 (2005). 114. Ibid., at 44–45. Interestingly, the Court observed that the electronic positioning system used in this case did in fact impinge on the right to personality but did not invade that “untouchable core” of the human personality protected against state invasion by the human dignity clause of Article 1 (1) of the Basic Law. The use of this observational method, said the Court, did not rise to the level of infringement into privacy that would have resulted in an acoustical surveillance of a private home. For an excellent discussion of this case in English, see Jacqueline R. Ross, “Germany’s Federal Constitutional Court and the Regulation of gps Surveillance,” German Law Journal 6 (2005): 1805–12, available at www .germanlawjournal.com/pdfs/Vol06No12/PDF_Vol _06_No_12_1805-1812_Developments _Ross.pdf. 115. 115 BVerfGE 118 (2006). The Court decided Aviation Security Act in response to constitutional complaints brought by a fl ight captain and several lawyers. Apart from the dignitarian argument, the senate ruled that Article 35 of the Basic Law did not permit the direct employment of military weapons against a passenger plane. See Jochen von Bernstorff, Pflichtenkollision und Menschenwürdegarantie. Zum Vorrang staatlicher Achtungspflichten im Normbereich von Art. I GG, 41 Der Staat (2008): 21; Christian Starck, “Anmerkung,” JuristenZeitung 61 (2006): 417. 116. 115 BVerfGE 320 (2006). 117. Ibid., at 345. 118. Ibid., at 371–81. 119. 120 BVerfGE 274 (2008). 120. Ibid, at 311. 121. Ibid., at 314. 122. Data Stockpiling Case, 125 BVerfGE 260 (2010). The senate was called upon to assess the constitutionality of amendments to the Telecommunications Act and the Code of Criminal Procedure enacted in 2007 to satisfy a European Community Directive. 123. Ibid., at 317–19. 124. Schmidt-Bleibtreu & Klein, supra note 38, at 167–68. 125. 5 BVerfGE 13 (1956). 126. See Decision of Federal Administrative Court, 9 BVerwGE 78 (1959); and Neue Juristische Wochenschrift (1958): 800. 127. Schmidt-Bleibtreu & Klein, supra note 38, at 168. 128. 16 BVerfGE 194 (1963). 129. 17 BVerfGE 108 (1963). 130. Polygraph Case, supra note 19. See also 17 BVerfGE 347 (1963). 131. 1 BVerfGE 97 (1951). 132. See P. Kunig, “German Constitutional Law and the Environment,” Adelaide Law Review 8 (1983): 329. 133. 53 BVerfGE 30 (1979). 134. See Wolfgang Koch, “Pollution Cases Go to Court,” Kolner-Stadt-Anzeieer, July 22, 1983. The Chemical Weapons Case, decided in 1987, was the most important of these cases. Professor Michael M. Bothe fi led the original complaint—an unusually detailed eightynine-page typewritten brief—on behalf of sixteen German citizens on 1 July 1983. See the discussion of this case that follows the Schleyer Kidnapping Case (1977); no. 7.6).

Notes to Chapter Seven 801 135. One such source is the biblical injunction, “[s]o whatever you wish that men would do to you, do so to them.” For Confucius it was a matter of not “impos[ing] on others what you yourself do not want.” Kant’s categorical imperative—“[a]ct only according to the maxim by which you can at the same time will that it should become universal law”—was a modern variant of the Aristotelian view that we should treat our friends as we would wish them to treat us. Across the ages and a broad range of cultures, the principle of equality stands as a fundamental axiom for daily living. 136. Equality as a constitutional principle fi rst appeared in several Land constitutions— Bavaria, Württemberg, and Hessen in particular—adopted between 1808 and 1820. It appeared as a major principle of constitutional governance in Articles 134 and 137 of the Frankfurt Constitution of 1849 and the Weimar Constitution of 1919. 137. Johann Wolfgang von Goethe, Sorrows of Young Werther, Book 1, ¶ 9. 138. Other equality norms guarantee equality of voting rights (Article 28 (1) and Article 38 (1)); equal access to public office (Article 33 (2)); parity between capital and labor (Article 9 (3)); equal treatment of conscientious objectors, when compared to those performing military ser vice (Article 4 (3) and Article 12a (2)); and equal treatment of public and private schools (Article 4 (4)). In addition, Article 19 (1) requires that any restriction on a basic right must apply generally and not to a single case, just as Article 101 (1) bans extraordinary courts. 139. See Susanne Baer, “Equality: The Jurisprudence of the German Constitutional Court,” Columbia Journal of European Law 5 (1999): 249. For the most comprehensive accounts of equality in contemporary German constitutionalism, see Paul Kirchhof, “Der allgemeine Gleichheitssatz,” in Handbuch des Staatsrechts, eds. Paul Kirchhof & Josef Isensee (Heidelberg: C. F. Müller Juristischer Verlag, 1992), 5:837– 972; Michael Sachs, “Besondere Gleichheitsgarantien,” in Handbuch des Staatsrechts, eds. Paul Kirchhof & Josef Isensee (Heidelberg: C. F. Müller Juristischer Verlag, 1992), 5:1017–84; Lerke Osterloh, “Kommentierung zu Art. 3 GG,” in Grundgesetz Kommentar, ed. Michael Sachs, 3d ed. (Munich: C. H. Beck’sche Verlagsbuchhandlung, 2003). Th is section on equality draws heavily on the Baer and Kirchhof-Isensee essays. 140. Investment Aid I Case, 4 BVerfGE 7, 12 (1954). 141. U.S. Const. amend. XIV, § 1, cl. 2. (“No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”) Equal protection applies to the federal government under the Fift h Amendment’s due process clause. See the Civil Rights Cases, 109 U.S. 3 (1883) for the requirement of state action. 142. 1 BVerfGE 14, 52 (1951). It is widely accepted that Gerhard Leibholz, who served on the Constitutional Court from 1951 to 1971, was the father of the Court’s jurisprudence in this field. See Gerhard Leibholz, Die Gleichheit vor dem Gesetz, 2d ed. (Munich: C. H. Beck’sche Verlagsbuchhandlung, 1959). Justice Leibholz’s “understanding of the equality rule, in turn, relied heavily on Swiss and American precedents, which had developed the rationality [arbitrariness] test in equality cases.” See Michael Sachs, “The Equality Rule Before the German Federal Constitutional Court,” St. Louis–Warsaw Transatlantic Law Journal (1998): 139, 148. 143. “The rational basis test is the minimal level of scrutiny that all government actions challenged under equal protection must meet.” Erwin Chemerinsky, Constitutional Law— Principles and Policies, 3d ed. (New York: Aspen Publishers, 2006), 677. See also McGowan v. Maryland, 366 U.S. 420, 425–26 (1961) (“The constitutional safeguard is offended only if a classification rests on grounds wholly irrelevant to the achievement of the state’s objective. . . . Statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.”).

802 Notes to Chapter Seven 144. See also Rendsburg Illegitimacy Case, 25 BVerfGE 167 (1969). Th is case involves the principle of equality and family rights. For a detailed discussion of these standards of review, see Edward J. Eberle, “Equality in Germany and the United States,” (Feb. 29, 2008), Roger Williams University School of Law Faculty Papers. Paper 19, available at http://lsr.nellco.org /cgi/viewcontent.cgi?article=1018&context=rwu/rwufp; and Sachs, supra note 139, at 147. 145. 115 BVerfGE 1 (2005). 146. 116 BVerfGE 243 (2006). 147. 121 BVergfGE 175 (2008). For a discussion of this and related cases, see Note by Gregory A. Knott, “Transsexual Law Unconstitutional: German Federal Constitutional Court Demands Reformation of Law Because of Fundamental Rights Confl ict,” St. Louis University Law Journal 54 (2010): 997–1033. 148. 128 BVerfGE 109 (2011). 149. Preclusion in Civil Proceedings Case, 55 BVerfGE 72, 88 (1980). See also Kirchhof, “Der allgemeine Gleichheitssatz,” supra note 139, at 844–46. 150. 9 BVerfGE 338 (1959). 151. Ibid., at 346. 152. 116 BVerfGE 229 (2006). 153. Ibid., at 242. 154. See Gerhard Leibholz, Hans-Justus Rinck & Dietel Hesselberger, Grundgesetz für die Bundesrepublik Deutschland: Kommentar Rechtsprechung Des Bundesverfassungsgericht (Cologne: Dr. Otto Schmidt, 2006), Rz (marginal notes) 2601–3023. 155. For an excellent treatment of Germany’s patriarchal tradition, see Gordon Craig, The Germans (New York: G. P. Putnam’s Sons, 1982), 147–69. 156. See 3 BVerfGE 225, 237–48 (1953). 157. Under this standard, the Court invalidated laws favoring males in matters related to child rearing and inheritance (see, respectively, Parental Control Case, 10 BVerfGE 59, 72– 81 [1959] and Male Inheritance Case, 15 BVerfGE 337 [1963]), but sustained laws limiting, for health reasons, the kind of work women could perform (Female Workplace Case, 5 BVerfGE 9, 11–12 [1956]), punishing male but not female homosexuality (Homosexuality Case, 6 BVerfGE 389 [1957]), and limiting the military draft to men (Conscientious Objector I Case, 12 BVerfGE 45, 52–53 [1960]). In a series of social security cases, the Court also sustained laws advantaging men in the allocation of death and retirement benefits. See, respectively, Orphan’s Pension Case, 17 BVerfGE 1, 17–26 (1963) and Social Security III Case, 48 BVerfGE 346 (1978). See also Social Security II Case, 43 BVerfGE 213, 225–30 (1977) (requiring widowers but not widows to prove dependency as a condition for receiving death benefits). For a further listing and discussion of these cases, see Ingo von Münch & Philip Kunig, Grundgesetz Kommentar, 5th ed. (Munich: C. H. Beck’sche Verlagsbuchhandlung, 2000), 267– 79. 158. 52 BVerfGE 369, 378 (1979). 159. For a comprehensive discussion of affi rmative action for women in Germany, see Anne Peters, Women, Quotas, and Constitutions (The Hague: Kluwer Law International, 1999), 129–230. 160. Arbeitsrechtliches EG—Anpassungsgesetz [Employment Law—European Community Harmonization Act], of 13 August 1980, BGBl. I:1308. 161. See, for example, Marital Property Case, 63 BVerfGE 181, 194– 96 (1983) (striking a statute basing marital property rights on the husband’s citizenship) and Common Marital Name Case, 84 BVerfGE 9 (1991) (nullifying a law requiring the husband’s name to be used when the parties are unable to agree). For a list of related gender classifications struck by the

Notes to Chapter Seven 803 Federal Constitutional Court, see David Currie, The Constitution of the Federal Republic of Germany (Chicago: University of Chicago Press, 1994), 328–32. 162. 85 BVerfGE 191, 207 (1992). For an exhaustive account of statutory and jurisprudential developments in Germany with respect to gender equality, see Klaus Bertelsmann & Ursul Rust, Equality in Law between Men and Women in the European Community: Germany (Dordrecht: Martinus Nijhoff Publishers, 1995). Th is report was prepared under the auspices of the European Commission. 163. “There is a general consensus that East German women have been the losers in German unification. The percentage of women who have lost their jobs and are unemployed is much higher than that of men.” Ninon Colneric, “Making Equality Law More Effective: Lessons from the German Experience,” Cardozo Women’s Law Journal 3 (1996): 229–30. 164. Case C-345/89, Ministere Public v. Stoeckel, 1991 E.C.R. I-4047. 165. See Peters, supra note 159. 166. 85 BVerfGE 191, 209–10 (1992). 167. 84 BVerfGE 9 (1991). For a discussion of this and related cases on family law, see Rainer Frank, “Germany: Revolution from the Federal Constitutional Court,” University of Louisville Journal of Family Law 31 (1992– 93): 347–54. See also Currie, supra note 161. 168. 92 BVerfGE 91, 109 (1995). 169. 109 BVerfGE 64 (2003). 170. See Vera Slupik, Die Entscheidung des Grundgesetzes für Parität im Geschlechterverhaltnis (Berlin: Duncker & Humblot, 1988). 171. 74 BVerfGE 163 (1987). 172. 85 BVerfGE 191, 206–7 (1992). 173. 89 BVerfGE 276 (1993). 174. Ibid., at 290– 91. 175. Ibid., at 285. 176. Frankfurter Allgemeine Zeitung, Dec. 23, 1993, at 4. 177. Gesetz zur Durchsetzung der Gleichberechtigung von Frauen und Männern [Law for the Implementation of Gender Equality], of 24 June 1994, BGBl. I:1406, Art. 1, § 2. 178. Case C-450/93, Kalanke v. Freie Hansestadt Bremen, 1995 E.C.R. I-3050. 179. Case C-409/95, Marschall v. Land Nordrhein-Westfalen, 1997 E.C.R. I-6363. 180. See Manfred Zuleeg, “Gender Equality and Affi rmative Action under the Law of the Eu ropean Union,” Columbia Journal of European Law 5 (1999): 319. 181. Case C-158/97, Badeck v. Hessischer Ministerpräsident, 2000 E.C.R. I-1875. 182. Anke M. Stock, “Affi rmative Action: A German Perspective on the Promotion of Women’s Rights with Regard to Employment,” Journal of Law and Society 33 (2006): 59, 66. 183. The Treaty of Amsterdam (1997) amended former ec Article 119, now ec Article 141, “to impose a legislative obligation on the Community to adopt measures in the area of equal opportunities and equal treatment of men and women at work going beyond the field of pay, and permitting forms of ‘positive action’. . . . The Charter on Fundamental Rights contains a number of provisions relating to gender equality (Articles 21, 23, and 33 (2)), and there is some evidence that sex equality law is being influenced by the wider body of eu antidiscrimination law emerging at present.” Paul Craig & Grainne de Burca, eu Law—Text, Cases, and Materials, 3d ed. (Oxford: Oxford University Press, 2003), 842. The Eu ropean Parliament and Council adopted a Directive in 2002 amending the existing equal treatment directive (EC 76/207) and explicitly embraced the gender-based affi rmative action provision set down in the new Article 141 of the ec Treaty. The eu Constitution, defeated in referenda in France and the Netherlands in 2005, adopted “the principle of equality as one of the

804 Notes to Chapters Seven–Eight ‘values’ of the Union while at the same time includ[ing] among the Union’s objectives the fight against discrimination and the promotion of equality between woman and men.” See Koen Lenaerts, Piet van Nuffel & Robert Bray, Constitutional Law of the European Union, 2d ed. (London: Thomson/Sweet & Maxwell, 2005), 125. 184. “The Marschall ruling marks the ecj’s fi rst tentative steps toward a more substantive conception of equality. In traveling the distance from Kalanke to Marschall, the positive action discourse of the Court of Justice has proven to be notably more expansive than that of the U.S. Supreme Court.” Kendall Thomas, “The Political Economy of Recognition: Affi rmative Action Discourse and Constitutional Equality in Germany and the U.S.A.,” Columbia Journal of European Law 5 (1999): 329, 363. 185. See Chapter 6. 186. See Christopher D. Totten, “Constitutional Precommitments to Gender Affi rmative Action in the Eu ropean Union, Germany, Canada, and the United States: A Comparative Approach,” Berkeley Journal of International Law 21 (2003): 299. 187. Case C-285/98, Kreil v. Germany, 2000 E.C.R. I-69. 188. Allgemeine Gleichbehandlungsgesetz [General Equal Treatment Act], of 14 August 2006, BGBl. I:1897 (implementing Council Directive 2000/43 and Council Directive 2000/78). 189. See Hans P. Jarass & Bodo Pieroth, Grundgesetz Kommentar, 5th ed. (Munich: C. H. Beck’sche Verlagsbuchhandlung, 2000), 233. 190. Currie, supra note 161, at 324. 191. 2 BVerfGE 266 (1953). 192. 39 BVerfGE 334 (1975). See Currie, supra note 161, at 327. 193. 85 BVerfGE 191, 206. 194. See Alexander Somek, “The Deadweight of Formulae: What Might Have Been the Second Germanization of American Equal Protection Review,” University of Pennsylvania Journal of Constitutional Law 1 (1998), 284, 291– 92. 195. Katharina C. Heyer, “The ada on the Road: Disability Rights in Germany,” Law & Social Inquiry 27 (2002), 723, 730–39; see Stock, supra note 182. 196. Stock notes, “Th is indicates that society has a specific protective demeanor in favor of disabled persons who often visibly have special needs and have to rely on external support. However, except in the special circumstances of pregnancy and maternity leave, the same cannot be said of women.” See Stock, supra note 182. 197. Ibid.

chapter eight 1. See Helmut Steinberger, “Freedom of the Press and of Broadcasting and Prior Restraints,” in Völkerrecht als Rechtsordnung, Internationale Gerichtsbarkeit, Menschenrechte, Festschrift für Hermann Mosler, eds. Rudolf Bernhardt et al. (Berlin: Springer Verlag, 1983), 913. 2. Ibid. 3. For a comprehensive overview of the Federal Constitutional Court’s decisions, see Walter Schmitt-Glaeser, “Die Meinungsfreiheit in der Rechtsprechung des BVerfGE,” Archiv des Öffentlichen Rechts 97 (1972): 60–123. See also Christian Starck, “Meinungs- und Wissenschaftsfreiheit,” in Festschrift für Wolfgang Zeidler (Berlin: Walter de Gruyter, 1987), 1539–59. For a short review of the struggle to vindicate freedom of opinion in the history of

Notes to Chapter Eight 805 German constitutionalism, see Wolfram Sielmann, Kampf um Meinungsfreiheit im deutschen Konstitutianalismus (Kehl: N. P. Engel Verlag, 1986), 173–88. 4. Barenblatt v. United States, 360 U.S. 109 (1959) (Black, J., dissenting). 5. See Helmut Goerlich, Wertordnung und Grundgesetz (Baden-Baden: Nomos Verlagsgesellschaft , 1973), 51–60. 6. See also Turnover Tax Record Case, 36 BVerfGE 321, 331 (1974); and Abortion I Case, 39 BVerfGE 1, 41 (1975). 7. For an example of Drittwirkung, see Tenant’s Right of Occupancy Case, 89 BVerfGE 1, 9 (1993) (invoking the right to property in a dispute between owner and tenant). The Parliamentary Council did not appear to share the Federal Constitutional Court’s view of the relationship between constitutional and private law. According to the most authoritative account of the Council’s proceedings, the Basic Law was meant to apply to public, not private, law. See Hermann von Mangoldt, Das Bonner Grundgesetz (4 vols.) (Munich: Verlag Franz Vahlen, 1953), 1:34–42. The other view—that basic rights guarantees would apply to private legal relationships as well as to the relationship between individuals and the state—was strongly advocated by Günter Dürig. See Günter Dürig, “Grundrechte und  Zivilrechtsprechung,” in Vom Bonner Grundgesetz zur gesamtdeutschen Verfassung. Festschrift zum 75. Geburtstag von Hans Nawiasky, ed. Theodor Maunz (Munich: ISAR Verlag, 1956), 157– 90. See also Hans Nipperdey, “Grundrechte und Privatrecht,” in Festschrift für Erich Molitor zum 75. Geburtstag (Munich: C. H. Beck’sche Verlagsbuchhandlung, 1962), 17–33. 8. See Kurt Häntzschel, “Das Grundrecht der freien Meinungsäusserung and die Schranken der allgemeinen Gesetze des Artikel 18 der Reichsverfassung,” Archiv des Öffentlichen Rechts 49 (1926): 228–37. See also Frede Castberg, Freedom of Speech in the West (New York: Oceana Publications, 1960), 322–25. 9. For additional commentaries on the Lüth Case, see Gerhard Casper, Redefreiheit und Ehrenschutz (Heidelberg: C. F. Müller Juristischer Verlag, 1971), 30–39; Günter Dürig, “Zum ‘Lüth Urteil’ des Bundesverfassungsgerichts vom 15.1.1958,” Die Öffentliche Verwaltung II (1958): 184– 97; and Peter Lerche, “Zur verfassungsgerichtlichen Deutung der Meinungsfreiheit,” in Festschrift für Gebhard Müller (Tübingen: J. C. B. Mohr [Paul Siebeck], 1970), 197– 215. For critical analysis of Lüth in English, see Peter Quint, “Free Speech and Private Law in German Constitutional Theory,” Maryland Law Review 48 (1989): 252–65; Stephen Gardbaum, “The ‘Horizontal Effect’ of Constitutional Rights,” Michigan Law Review 102 (2003): 387; Jacco Bomhoff, “Lüth’s 50th Anniversary: Some Comparative Observations on the German Foundations of Judicial Balancing,” German Law Journal 9 (2008): 121, available at www .germanlawjournal.com/pdfs/Vol09No02/PDF_Vol_09_No_02_121-124_Articles_Bomhoff .pdf; Mattias Kumm, “Who’s Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitutionalization of Private Law,” German Law Journal 7 (2006): 341, available at www.germanlawjournal.com/pdfs/Vol07No04/PDF_Vol _07_No_04_341 -370_Articles%20Kumm.pdf; Elena Barnert and Natascha Doll, “Conference Impressions: The Persisting Riddle of Fundamental Rights Jurisprudence and the Role of the Constitutional Court in a Democratic State,” German Law Journal 4 (2003): 277, available at www. germanlawjournal.com/pdfs/Vol04No03/PDF_Vol _04_No_03_277-280_Legal _Culture _Barnert_Doll.pdf. 10. For a fuller discussion, see the section on delegation of legislative power in Chapter 4. 11. For an overview of the limits to free speech in West Germany’s “militant democracy,” see Hella Mandt, “Demokratie und Toleranz,” in Res Publica, ed. Peter Haungs (Munich: Wilhelm Fink Verlag, 1977), 233–60. See also the following cases of the Federal Constitutional

806 Notes to Chapter Eight Court: Socialist Reich Party Case, 2 BVerfGE 1, 12–15 (1952); Communist Party Case, 5 BVerfGE 85, 140–46 (1956); and Official Propaganda Case, 44 BVerfGE 125, 145–46 (1977). 12. 403 U.S. 15 (1971). 13. For related cases, see the Römerberg Speech Case, 54 BVerfGE 129 (1980); and Credit Shark Case, 60 BVerfGE 234 (1982). 14. 54 BVerfGE 129 (1980). 15. Ibid., at 131. 16. Ibid., at 132. 17. Ibid., at 139. 18. The motive behind a call for a boycott colors the Court’s view of whether such advocacy is constitutionally protected. See Supermarket Boycott Case, 62 BVerfGE 230 (1982). 19. For an application of the balancing test, see Physician Advertising Case, 71 BVerfGE 162, 175 (1985). 20. See Quint, supra note 9, at 277. 21. Ibid. See also Kenneth M. Levan, “The Significance of Constitutional Rights for Private Law: Theory and Practice in West Germany,” International and Comparative Law Quarterly 17 (1968): 587–88. For an updated and defi nitive treatment of the “horizontal effect” doctrine in Germany and elsewhere, see Gardbaum, supra note 9. 22. See Satellite Dish Case (Chamber Decision), Europäische Grundrechte Zeitschrift 20 (1993): 302–3. 23. 27 BVerfGE 71 (1969). 24. Ibid., at 81. In underlining the importance of informational freedom as an independent right, the Court invoked the free speech provisions of the Universal Declaration of Human Rights (Article 19) and the European Convention for the Protection of Human Rights (Article 10 (1)). Ibid., at 82. 25. Ibid., at 83. 26. For another example of this analytical approach, see Publications Seizure Case, 27 BVerfGE 104 (1969) (holding that Cologne’s regional court had not properly balanced the interests protected by informational freedom against penal provisions banning the disclosure of state secrets). 27. 27 BVerfGE 88 (1969). 28. Ibid., at 99–100. 29. Ibid., at 100. 30. The complainant also argued that in the absence of a formal judicial proceeding, he had been deprived of his lawful judge under Article 101 (1) of the Basic Law. Ordinarily, constitutional complaints are brought against a judicial decision after the complainant has exhausted his legal remedies. Under FCCA § 90 (2), however, the Court may accept a case prior to the exhaustion of remedies. Article 101 (1) is mainly a ban on “extraordinary courts,” but in this instance the Court ruled that neither customs officials nor public prosecutors qualify as extraordinary courts. Ibid., at 103. 31. See Ingo von Münch, Grundgesetz Kommentar (3 vols.), 3d ed. (Munich: C. H. Beck’sche Verlagsbuchhandlung, 1981), 1:271–72. 32. 27 BverfGE 88, 102 (1969). 33. Film Propaganda Case, 33 BVerfGE 52 (1972). See also Radical Groups Case, 47 BVerfGE 198 (1978). 34. The validity of such confiscations was sustained in Demokrat Newspaper Case, 27 BVerfGE 88 (1969).

Notes to Chapter Eight 807 35. See Film Propaganda Case, 33 BVerfGE 52 (1972). For a discussion of the act, see Steinberger, “Freedom of the Press,” supra note 1, at 925–27. 36. Bruno Schmidt-Bleibtreu & Franz Klein, Kommentar zum Grundgesetz für die Bundesrepublik Deutschland, 5th ed. (Neuwied: Hermann Luchterhand Verlag, 1980), 205; Gerhard Leibholz & Hans Justus Rinck, Grundgesetz für die Bundesrepublik Deutschland, 6th ed. (Cologne: Verlag Dr. Otto Schmidt, 1979), 217–18; and von Münch, supra note 31, at 271–72. 37. 21 BVerfGE 271 (1967). 38. Eric Barendt, Freedom of Speech (Oxford: Clarendon Press, 1985), 59. 39. 53 BVerfGE 96 (1980). 40. See, for example, Tobacco Warning Label Case, 95 BVerfGE 173 (1997) (holding that a legal requirement to affi x a healthy warning on tobacco products, and for which there is ample evidence that smoking constitutes a danger to health, does not violate the right of a person or company to engage in trade under Article 12 (1)). For further discussion of this case and commercial advertising more generally, see the section on “Resocialization, Privacy, Truth-Telling, and Assembly.” 41. See, e.g., United States v. O’Brien, 391 U.S. 367, 382 (1968) (holding that since the government’s interest in the continued availability of Selective Ser vice certificates was significant, and the prohibition on destruction of cards was an “appropriately narrow means of protecting this interest,” the First Amendment did not bar O’Brien’s conviction for burning his certificate during an antiwar protest). The O’Brien Court stated that “government regulation is sufficiently justified if it is within the constitutional power of government, if it furthers an important or substantial governmental interest, if the governmental interest is unrelated to the suppression of free expression, and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” Ibid., at 377. 42. See Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 505 (1969) (“[T]he wearing of armbands in the circumstances of this case was entirely divorced from actually or potentially disruptive conduct by those participating in it. It was closely akin to ‘pure speech’ which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment.”) 43. See, e.g., Hugo Black, A Constitutional Faith (New York: Alfred A. Knopf, 1968), 50–52. See also Herbert Wechsler, “Toward Neutral Principles of Constitutionalism,” Harvard Law Review 73 (1959): 1, 12. For a strong criticism of balancing by a noted German constitutional scholar, see Bernhard Schlink, “German Constitutional Culture in Transition,” Cardozo Law Review 14 (1992– 93): 711. Robert Alexy, one of Germany’s leading constitutional theorists, has ardently defended balancing as a legitimate mode of constitutional decision making. See “Balancing Constitutional Review and Representation,” International Journal of Constitutional Law 3 (2005): 572; Robert Alexy, A Theory of Constitutional Rights, trans. Julian Rivers (Oxford: Oxford University Press, 2002). 44. For a detailed discussion of this process of decision making see Quint, supra note 9, at 125–30. 45. 42 BVerfGE 143 (1976). 46. Ibid., at 148–49. 47. Ibid., at 144–46. 48. Princess Soraya Case, 34 BVerfGE 269 (1973). 49. See also Political Defamation Case, 43 BVerfGE 130 (1976); and Credit Shark Case, 60 BVerfGE 234 (1982). 50. 68 BVerfGE 226 (1984).

808 Notes to Chapter Eight 51. In the Old Age Home Case, 85 BVerfGE 23 (1991), the Court vindicated a newspaper’s right to express its opinion in a series of rhetorical questions about alleged abuses in old age homes even though the questions were impliedly defamatory. 52. 485 U.S. 46. 53. Ibid., at 48. 54. Ibid., at 50. 55. “Human Rights and Judicial Review in Germany,” in Human Rights and Judicial Review, ed. David M. Beatty (Dordrecht: Martinus Nijhoff Publishers, 1994), 270. 56. Tucholsky I (Soldiers Are Murderers) Case (Chamber Decision), Europäische Grundrechte Zeitschrift 21 (1994): 463–65. Worth recalling here is the procedure governing chamber decisions. Th ree-justice chambers may reject a complaint of unconstitutionality if the decision is unanimous and offers little prospect of success. The panel may, however, accept a complaint if at least two justices feel that a constitutional issue will be clarified by its decision and no new rule of constitutional law is to be expected. See FCCA, § 93a (4). 57. Frankfurter Allgemeine Zeitung, January 20, 1995, at 12. 58. Frankfurter Allgemeine Zeitung, September 28, 1994, at 12. 59. For cases in which the right to freedom of expression prevailed over the right to dignity or personality, see Stern-Strauss Interview Case, 82 BVerfGE 277 (1990) (nullifying a damage award against a reporter who called Franz Josef Strauss an “opportunist democrat”); Anti-Strauss Placard Case, 82 BVerfGE 43 (1990) (overruling a damage award against persons who displayed placards accusing Strauss of protecting Fascists); and Titanic Magazine Case, 86 BVerfGE 1 (1992) (reversing a judgment against satirizing a crippled person for expressing his wish to serve in the armed forces). Justice Dieter Grimm, a member of the chamber that handed down the Tucholsky I (Soldiers Are Murderers) decision, defended these and related decisions in a magazine interview. See Zeitschrift für Rechtspolitik (1994): 276–79. See also Dieter Grimm, “Die Meinungsfreiheit in der Rechtsprechung des Bundesverfassungsgerichts,” Neue Juristische Wochenschrift 27 (1995): 1697–705. 60. Darmstadt Signals Case (Chamber Decision), Europäische Grundrechte Zeitschrift 20 (1993): 28–37. 61. See Neue Juristische Wochenschrift 23 (May 14, 1970): 908–10. 62. Peter W. Case, 28 BVerfGE 55 (1970). 63. 28 BVerfGE 191, 205 (1970). 64. 42 BVerfGE 234 (1976). 65. For a discussion of Scientology and its treatment by the German legal community, see Paul Horwitz, “Scientology in Court: A Comparative Analysis and Some Thoughts on Selected Issues in Law and Religion,” DePaul Law Review 47 (1997): 85, 118–27. 66. 99 BVerfGE 185 (1998). 67. 114 BVerfGE 339 (2005). 68. Sexual Abuse Case, 97 BVerfGE 391 (1998). 69. Disparaging Questions Case, 85 BVerfGE 23 (1991). 70. Ibid., at 30. 71. Ibid., at 32. 72. Steinberger, supra note 1, at 917. 73. Youth Imprisonment Case, 116 BVerfGE 69 (2006) (reemphasizing the importance of rehabilitation and resocialization in German prison reform). 74. Prisoner’s Diary Case, 80 BVerfGE 367, 373 (1989). 75. See, for example, the Tape Recording II Case, 34 BVerfGE 238, 248 (1973). 76. 42 BVerfGE 143 (1976).

Notes to Chapter Eight 809 77. 30 BVerfGE 173, 218–27. Her dissent here, as in the Deutschland Magazine Case, echoes the theme of “uninhibited, robust, and wide-open” debate on public issues sounded in New York Times v. Sullivan, 376 U.S. 254, 270 (1964). 78. 54 BVerfGE 208 (1980). 79. Ibid, at 218. 80. Quint, supra note 9, at 332. 81. See Grimm, “Meinungsfreiheit,” supra note 59. 82. von Hannover v. Germany, 40 Eur. Ct. H.R. 1, at 25 (2005). 83. Ibid., at 26–27. 84. Ibid., at 28. 85. 120 BVerfGE 180 (2008). 86. Ibid, at 204. 87. Ibid., at 209–16. 88. Ibid., at 223. 89. 90 BVerfGE 1 (1994). For examples of other cases in which the Court was unwilling to sacrifice freedom of speech on the basis of a sharp distinction between fact and opinion, see the Bayer Pharmaceutical Case, 85 BVerfGE 1 (1991) (reversing a judgment punishing statements made about the drug company’s business practices) and Old Age Home Case, 85 BVerfGE 23 (1991) (reversing a judgment against published criticism of the quality of care in a nursing home). 90. 102 BVerfGE 347 (2000). 91. 95 BVerfGE 173 (1997). For a further discussion of this case, see Chapter 10. 92. 85 BVerfGE 1 (1991). 93. Ibid., at 14. 94. Ibid., at 15. 95. 102 BVerfGE 347, 359 (2000). 96. Ibid. 97. 69 BVerfGE 315 (1985). For an excellent account of the Brokdorf and related decisions involving penalties for civil disobedience, see Peter E. Quint, Civil Disobedience and German Courts (New York: Routledge-Cavendish, 2008). 98. See §§ 14 and 15 of the Assembly Act, of 15 November 1978, BGBl. I:1790. 99. For related decisions, see Bitburg Case, 71 BVerfGE 158 (1985); and Mutlangen Demonstration Case, 73 BVerfGE 206 (1986). 100. 73 BVerfGE 206. 101. Ibid., at 249. 102. 84 BVerfGE 203. 103. Ibid., at 209. 104. 128 BVerfGE 226, 249–50 (2011). The senate also declared, importantly, that the Frankfurt Airport, being an enterprise over which the public has a controlling influence, is directly bound by the fundamental rights of the Basic Law under the terms of Article 1 (3). Ibid., at 244–45. 105. Press Freedom Case, 10 BVerfGE 118, 121 (1959). 106. 80 BVerfGE 124. 107. Ibid., at 129. 108. The political turmoil surrounding the Spiegel Case is described in Donald P. Kommers, “The Spiegel Affair: A Case Study in Judicial Politics,” in Political Trials, ed. Theodore L. Becker (Indianapolis: Bobbs-Merrill, 1971), 5–33; and David Schoenbaum, The Spiegel Affair (Garden City, N.J.: Doubleday, 1968).

810 Notes to Chapter Eight 109. Donald P. Kommers, Judicial Politics in West Germany (Beverly Hills, Calif.: Sage Publications, 1976), 152–53. 110. The balancing approach was reaffi rmed again in the Journalist Treason Case, 21 BVerfGE 239 (1967). 111. Herbert Bernstein, “Reflections on the Spiegel Case,” American Journal of Comparative Law 14 (1967): 560–61. 112. One of the strongest endorsements of the “public function” doctrine appeared in the Press Freedom Case, 10 BVerfGE 118, 121 (1959). North Rhine–Westphalia sought to bar publishers and editors from their profession if they disseminated materials advocating socialism, militarism, totalitarianism, and racial discrimination. The Constitutional Court declared that the act violated freedom of the press and was incompatible with Article 18. Under Article 18, only the Federal Constitutional Court is authorized to order the forfeiture of basic rights. For an excellent statement of the press’s public role in Germany and the relationship of a free press to the principle of human dignity, see Jutta Limbach, “Human Dignity and the Freedom of the Press,” Bulletin of the German Historical Institute 44 (Spring, 2009): 59– 68. Limbach was president of the Federal Constitutional Court from 1994 to 2002. 113. 103 BVerfGE 44 (2001). 114. For an earlier list of the press laws of each of the sixteen Länder, see Press Laws, 3d ed. (Bonn: Inter Nationes, 1993), 10–11. An English-language translation of Hamburg’s Press Act, as amended through 1998, is available online at the German Law Archive, www.iuscomp.org /gla/statutes/HmbPG.htm. 115. See, generally, Film Propaganda Case, 33 BVerfGE 52 (1972); Tax Consultant Advertising Case, 64 BVerfGE 108 (1983); and Liebesgrotte Case, 51 BVerfGE 304 (1979). The Wallraff Case (1984) is yet another illustration of the importance of editorial confidentiality. The confl ict in the case involved competing claims under Article 5 (1). 66 BVerfGE 116. In this libel action the conservative newspaper Bildzeitung (Bild) sued Walraff, an investigative reporter, for publishing damaging information about Bild’s editorial practices, information he had collected while working for the newspaper under an assumed name. Courts of ordinary jurisdiction sustained Walraff ’s free speech claim in light of the importance of the newspaper’s “shady” practices. In the circumstance of this case, however, the First Senate placed a higher value on editorial confidentiality, which it regarded as an important element of a free press. The balancing process pursued in Walraff has resulted in frequent victories for freedom of speech and press, particularly when the subject of the utterance is an important matter of public policy. 116. See German Law Archive, supra note 114. 117. Ibid. 118. 113 BVerfGE 63, 82–83 (2005). 119. Ibid., at 86. 120. 117 BVerfGE 244 (2007). 121. 107 BVerfGE 299, 332 (2003). 122. 117 BVerfGE 244, 258 (2007). 123. See Sixth Broadcasting Case, 83 BVerfGE 238, 295 (1991). 124. See Wolfgang Hoff mann-Riem, “Massenmedien,” in Handbuch des Verfassungsrechts, eds. Ernst Benda, Werner Maihofer & Hans-Jochen Vogel (Berlin: Walter de Gruyter, 1984), 389–496. Th is excellent study includes citations to nearly all of the relevant literature and judicial decisions dealing with Article 5 and the media. 125. Uwe Wessel, Der Gang nach Karlsruhe: Das Bundesverfassungsgericht in der Geschichte der Bundesrepublik (Munich: Blessing, 2004), 121.

Notes to Chapter Eight 811 126. See, for example, the representation of interest groups on the television board of the Second German Television Station, in C. C. Schweitzer et al., Politics and Government in the Federal Republic of Germany: Basic Documents (Leamington Spa, England: Berg, 1984), 256–57. 127. 31 BVerfGE 328 (1971). 128. Ibid., at 330. 129. Ibid., at 343 (Justices Geiger, Rinck, and Wand, dissenting). 130. The most comprehensive English-language account of the constitutional case law governing the broadcasting industry appears in Christopher Witteman, “Constitutionalizing Communications: The German Constitutional Court’s Jurisprudence of Communications Freedom,” Hastings International and Comparative Law Review 33 (2010): 95–202. For Witteman’s earlier account covering the Constitutional Court’s case law up to 1983, see Christopher Witteman, “West German Television Law: An Argument for Media as Instrument of Self-Government,” Hastings International and Comparative Law Review 7 (1983): 145–210. Other treatments of the broadcasting industry include Arthur Williams, Broadcasting and Democracy in West Germany (Philadelphia: Temple University Press, 1977); Marcellus Snow, “Telecommunications and Media Policy in West Germany,” Journal of Communications 32 (1982): 9; Peter J. Tettinger, “New Mass Media and German Constitutional Law,” Public Law Forum 5 (1986): 125–35; and Michael Zoeller, “Public Control— Cause or Consequence of Scarcity? The Example of Regulating Electronic Media in the United States and in Germany,” in The Political Economy of Freedom, ed. Kurt R. Leube & Albert H. Zlabinger (Munich: Philosophia Verlag, 1984), 143–57. 131. 57 BVerfGE 295, 322 (1981). 132. In 1997, Germany had eleven regional broadcasting corporations, one broadcasting corporation orga nized under federal law, the national television network, Zweites Deutsches Fernsehen (zdf), based on an agreement among all the Länder, and the public corporation, Deutschland Radio. The regional corporations form the Association of Public Broadcasting Corporations in the Federal Republic of Germany (Arbeitsgemeinschaft der öffentlichrechtlichen Rundfunkanstalten der Bundesrepublik Deutschland [ard]). For a comprehensive description of the German broadcast industry see European Commission Report on the Financing of Public Ser vice Broadcasters in Germany, available at http://ec.europa.eu/comm /competition/state_aid/register/ii/doc/E-3-2005-WLWL -en-24.04.2007.pdf. 133. The German title of the treaty is Staatsvertrag über den Rundfunk im vereinten Deutschland vom 31 August 1991 [Inter-State Treaty of 31 August 1991 Concerning Broadcasting in United Germany]. The Inter-State Treaty has been amended several times since 1991, most recently in June of 2009. Th is version can be found at www.hans-bredow-institut .de. For a detailed account of the Inter-State Treaty, see Witteman, Constitutionalizing Communications, supra note 130, at 103–11. 134. 73 BVerfGE 118 (1986). 135. Ibid., at 125. 136. 74 BVerfGE 297, 332 (1987). 137. 83 BVerfGE 238 (1991). In this case, the composition of the West German Television Station’s governing council was also challenged for its alleged selectivity of the groups represented and involving the charge that liberal groups were favored over conservative ones. The Court ruled that the broadcast council was not constitutionally required to represent every “relevant social group” so long as it included a broad spectrum of the public as a whole. 138. 87 BVerfGE, 181 (1992). 139. 90 BVerfGE 60, 98 (1994). 140. 114 BVerfGE 371 (2007).

812 Notes to Chapter Eight 141. 119 BVerfGE 196 (2007). 142. See Einar M. Hucko, The Democratic Tradition (Leamington Spa, England: Berg, 1987), 3–21. 143. For a description of the university system, see Peter J. Katzenstein, Policy and Politics in West Germany (Philadelphia: Temple University Press, 1987), 296–302. 144. See Henning Zwirner, “Zum Grundrecht der Wissenschaft sfreiheit,” Archiv des Öffentlichen Rechts 98 (1973): 313. See also Kommentar zum Grundgesetz fair die Bundesrepublik Deutschland (Neuwied: Hermann Luchterhand Verlag, 1984), 590–651. For an extensive bibliography on the freedom of scientific and scholarly inquiry, see pp. 584–89. 145. von Münch, supra note 31, at 294. 146. Posthumous Libel Case (Chamber Decision), Europäische Grundrechte Zeitschrift 20 (1993): 146–47. 147. Adult Theatre Case, 47 BVerfGE 109 (1978). See also Mathias Reimann, “Prurient Interest and Human Dignity: Pornography Regulation in West Germany and the U.S.,” University of Michigan Journal of Law Reform 21 (1987–88): 201–53. The discussion in this section relies heavily on this article. 148. See Nudist Colony Case, 7 BVerfGE 320 (1958) (sustaining the Youth Protection Act but vindicating the right of parents to educate their children in a nudist culture); Heinrich Case, 11 BVerfGE 234 (1960) (upholding the right of the Federal Censorship Office to list materials morally harmful to children); and Nudist Magazine Case, 30 BVerfGE 336 (1971) (invalidating the application of the Youth Protection Act to a magazine promoting nudism). 149. BGBl. I:377 (1953). Th is statute was at issue in the Historical Fabrication Case (1994). 150. Th is was the approach of the U.S. Supreme Court in Memoirs v. Massachusetts, 383 U.S. 413 (1966). 151. Reimann, supra note 147, at 229. 152. 83 BVerfGE 130 (1990). 153. Ibid. 154. In this connection the Court noted that “the heroine could be viewed as the incarnation of every man’s sexual fantasy which is presented here as a response to an upbringing whose objective was the suppression of sexual matters. There is even evidence of parody.” Ibid. 155. Ibid. 156. Horror Film is a related case in which free speech was vindicated. Horror Film involved the seizure under the Youth Protection Act of an American fi lm because of its excessive violence. The Court acknowledged that the state is permitted to safeguard the dignity of youth by shielding them against fi lms exhibiting excessive or gratuitous violence, but in this instance the seizure was nullified because it occurred prior to being listed as “harmful” under the act’s rating guidelines. Th is, said the Court, is prior restraint in violation of the censorship clause of Article 5 (1). See 87 BVerfGE 209 (1992). 157. Political Satire Case, 75 BVerfGE 369 (1987). 158. Ibid. See also Flag Desecration Case, 81 BVerfGE 278, 290– 98 (1990). 159. 81 BVerfGE 278 (1990). 160. 491 U.S. 397 (1989). For an insightful comparison of the two cases, see Peter E. Quint, “The Comparative Law of Flag Desecration: The United States and the Federal Republic of Germany,” Hastings International and Comparative Law Review 15 (1992): 613–38. 161. 81 BVerfGE 278, 297 (1990). 162. 81 BVerfGE 298 (1990). 163. Ibid., at 299–300.

Notes to Chapters Eight–Nine 813 164. Ibid., at 307. 165. Ibid. 166. 111 BVerfGE 333 (2004). 167. 126 BVerfGE 1 (2010). 168. 111 BVerfGE 333, 359 (2004). 169. 126 BVerfGE 1, 25–26 (2010).

chapter nine 1. See Ingo von Münch & Philip Kunig, Grundgesetz-Kommentar, 5th ed. (Munich: C. H. Beck’sche Verlagsbuchhandlung, 2003), 3:1452–53. In one of its earlier religious liberty cases, the Federal Constitutional Court acknowledged that the compromise resulted from the framers’ failure to secure a major vote on any of their own proposals. Church Construction Tax Case, 19 BVerfGE 206, 218 (1965). 2. von Münch & Kunig, supra note 1, at 1:333. 3. See especially Axel von Campenhausen, “Article 140,” in Das Bonner Grundgesetz, eds. Hermann von Mangoldt, Friedrich Klein & Christian Starck (Munich: Verlag Franz Vahlen, 2001), 3:2682–89. Leading commentaries on church-state relations under the Basic Law are Josef Listl, “Das Grundrecht der Religionsfreiheit in der Rechtsprechung des Bundesverfassungsgerichts,” Archiv des Öff entlichen Rechts 92 (1967): 99–127; and, “Das Staatskirchenrecht in der Rechtsprechung des Bundesverfassungsgerichts,” Archie des Öffentlichen Rechts 106 (1981): 218–83; Paul Mikat, “Staat, Kirchen and Religionsgemeinschaften,” in Handbuch des Verfassungsrechts, eds. Ernst Benda, Werner Maihofer & Hans-Jochen Vogel (Berlin: Walter de Gruyter, 1984), 2:1059–87; Staatskirchenrecht oder Religionsverfassungsrecht? Ein begriffspolitischer Grundsatzstreit, eds. Hans Michael Heinig and Christian Walter (Tübingen: J. C. B. Mohr [Paul Siebeck], 2007); 100 Begriffe aus dem Staatskirchenrecht, eds. Hans M. Heinig and Hendrik Munsonius (Tübingen: J. C. B. Mohr [Paul Siebeck], 2012). For a brief overview in English, see Klaus Obermayer, “State and Religion in the Federal Republic of Germany,” Journal of Church and State 17 (1975): 97–111. 4. See John Golay, The Founding of the Federal Republic of Germany (Chicago: University of Chicago Press, 1958), 194– 96. 5. Ibid., at 196– 98. 6. Koppel S. Pinson, Modern Germany, 2d ed. (New York: Macmillan, 1966), 165–67, 173– 93. 7. Ekkehart Stein, Staatsrecht, 7th ed. (Tübingen: J. C. B. Mohr, 1980), 222. 8. von Münch & Kunig, supra note 1, at 1:338–43. 9. According to the Court, the principle of the constitution’s unity requires this result. See Church Tax Resignation I Case, 44 BVerfGE 37, 50 (1977). 10. The wide berth granted to the value of free exercise seems greater in Germany than in the United States. The negative and positive character of this freedom, like that of free speech, means that government and private enterprise must accommodate the religious practices of citizens and employees. German constitutional doctrine requires a higher mea sure of accommodation than does American doctrine. For example, the U.S. Supreme Court cases Goldman v. Weinberger, 475 U.S. 503 (1986) and Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985) probably would have been decided differently, favoring religious exercise, in Germany. On the other hand, the German School Prayer Case (1979; no. 9.5) is in sharp contrast to the result in similar American cases. For commentary on American

814 Notes to Chapter Nine doctrine, see John Nowak et al., Constitutional Law, 3d ed. (St. Paul: West Publishing, 1986), 1067– 79. 11. See Tobacco Atheist Case, 12 BVerfGE 1, 4 (1960); and Karl Doehring, Staatsrecht, 3d ed. (Frankfurt am Main: Alfred Metzner Verlag, 1984), 302–3. 12. 32 BVerfGE 98, 106. 13. Ibid., at 109–10. 14. 12 BVerfGE 1, 4–5 (1960). 15. Ibid. Th is translation appears in Walter F. Murphy & Joseph Tanenhaus, Comparative Constitutional Law (New York: St. Martin’s Press, 1977), 467. 16. 35 BVerfGE 366, 375 (1973). 17. Ibid. 18. von Münch & Kunig, supra note 1, at 1:335–37. 19. An exception to this generalization is when a ser viceman seeks conscientious objector status after his induction into the armed ser vices. In the Soldier’s Conscientious Objector I Case (28 BVerfGE 243 [1970]), the Court rejected a soldier’s complaint that he had been invalidly placed in detention for refusing to carry arms while his application for conscientious objector status was pending. In this situation, said the First Senate, when the ser viceman is an unrecognized conscientious objector, the claim on behalf of conscience must be balanced against competing legal values of constitutional rank and in the light of the “unity of the constitution and the entire range of values protected under it.” In short, the right of the ser viceman was being weighed against the “necessity of the uninterrupted functioning of the armed forces” pending a fi nal decision of the would-be objector’s status. In another decision, however, handed down on the same day, the Court invalidated a sentence of detention imposed prior to the soldier’s recognition as a conscientious objector but carried out after he was so recognized. Soldier’s Conscientious Objector II Case, 28 BVerfGE 264 (1970). See also Soldier’s Conscientious Objector III Case, 32 BVerfGE 40 (1971) (sustaining an order requiring a soldier to perform military duties pending his application for conscientious objector status). 20. Military Ser vice Act, of 21 July 1956, BGBl. I (1956): 651. 21. See von Münch & Kunig, supra note 1, at 1:774–77. 22. 12 BVerfGE 45 (1960). 23. Ibid., at 54. 24. Ibid., at 55. 25. See Bundesgerichtshof, Neue Juristische Wochenschrift (1992): 1407. The decision was confi rmed by the Federal Constitutional Court. Neue Juristische Wochenschrift (1993): 455. 26. Alternative Civilian Ser vice I Case, 19 BVerfGE 135 (1965). 27. Th is conclusion resulted from two cases handed down, respectively, by the Second and First Senates. In Alternative Civilian Ser vice II Case (22 BVerfGE 178 [1967]), the Second Senate—its jurisdiction extended to procedural issues involving basic rights—ruled that repeated convictions arising out of “the same act” would violate Article 103 (3) of the Basic Law (“no one may be punished for the same act more than once under general penal legislation”). In Alternative Civilian Ser vice III Case (24 BVerfGE 178 (1968)), the First Senate—its jurisdiction extended to substantive basic rights issues—reinforced the Second Senate’s decision by ruling that no legitimate community interest in multiple punishment could be found to override freedom of conscience. 28. See tabular material in von Münch & Kunig, supra note 1, at 1:346–47. 29. Act of 13 July 1977, BGBl. I:1229. 30. Die Zeit, Dec. 16, 1977, at 4. 31. Süddeutsche Zeitung, Dec. 6, 1977, at 1.

Notes to Chapter Nine 815 32. Registration Injunction Case, 46 BVerfGE 337 (1977). 33. 48 BVerfGE 127 (1978). 34. Ibid., at 169. 35. Section 24 (2) of the Compulsory Civilian Ser vice Act as amended, September 1983, BGBl. 1: 1221. 36. The Extended Alternative Ser vice Case was brought by 195 members of the Bundestag and by four state governments (Bremen, Hamburg, Hesse, and North Rhine–Westphalia) controlled by the spd. 37. 69 BVerfGE 127 (1985). 38. 105 BVerfGE 61 (2002). 39. Ibid., at 63. 40. Michael Slackman, “Germany Takes a Step toward Ending Its Draft ,” New York Times, September 28, 2010, at A9; Judy Dempsey, “German Plans Major Restructuring of Military,” New York Times, August 24, 2010, at A6. 41. These facts and figures have been culled from Statistisches Jahrbuch der Bundesrepublik Deutschland (2007): 66– 67; and www.tatsachen-ueber-deutschland .de/en/society/content /background/religions.html. 42. 105 BVerfGE 279, 294. 43. Leela Förderkreis ev v. Germany, (2009) 49 E.H.R.R. 117, 140. 44. See Stefan Muckel, “The ‘Church of Scientology’ under German Law on Church and State,” German Yearbook of International Law 41 (Berlin: Duncker and Humblot, 1998): 299–312. 45. See www.religioustolerance.org. The $400 million figure was reported already in 1993. New York Times, October 22, 1993, at A12. 46. Bundesverwaltungsgericht, Neue Juristische Wochenschrift 59 (2006): 1303. 47. Ibid. On the same day, the Constitutional Court handed down the Glycol Wine Case, yet another judgment involving the dissemination of state information. The Court held that a Federal Ministry of Health publication listing wines containing the anti-freeze glycol was market-related information that did not interfere with the freedom of professional competition secured by Article 12 (1). 105 BVerfGE 252 (2005). 48. Bundesverwaltungsgericht, Neue Juristische Wochenschrift 59 (2006): 1303. It was sufficient for the Court that she accepted “Hubbard’s teachings about the immortal soul as bearer of a life energy that changes in the course of uncountable lives, and shows the way to higher levels of existence.” See Diana Zacharias, “Protective Declarations against Scientology as Unjustified Detriments to Freedom of Religion: A Comment on the Decision of the Federal Administrative Court of 15 December 2005,” German Law Journal 7 (2006): 838, available at www.germanlawjournal.com/pdfs/Vol07No10/PDF_Vol _07_No_10_833-842 _Developments_Zacharias.pdf. For a sterling defense of Scientology as a religion, see Paul Horwitz, “Scientology in Court: A Comparative Analysis and Some Thoughts on Selected Issues in Law and Religion,” DePaul Law Review 47 (1997): 85–154. 49. In the Bahá’í Religious Community Case, for example, the Court noted that a community’s assertion that it professes a religion and is a religious community may be a sufficient basis for invoking the guarantees of religious freedom under Article 4 (1) and (2). The community must be “religious” as measured by its “spiritual content” and “outer manifestation.” 83 BVerfGE 341 (1991). 50. Ibid. 51. For a survey of the Weimar-era provisions, incorporated into the Basic Law, see Hans Michael Heinig, Öffentlich-rechtliche Religionsgesellschaften. Studien zur Rechtsstellung der

816 Notes to Chapter Nine nach Art. 137 Abs. 5 WRV korporierten Religionsgesellschaften in Deutschland und der Europäischen Union (Berlin: Duncker and Humblot, 2003). 52. For two excellent articles on the experience of the Jehovah’s Witnesses in Germany, see Scott Kent Brown II, “Jehovah’s Witnesses v. Land Berlin: Requiring Religious Communities Seeking Public Corporation Status in Germany to Satisfy the ‘Meaning of Purpose of Corporation Status’ Test,” Brigham Young University Law Review no. 2 (1999): 673–702; Pauline Cote, “Rule of Law and Religious Minorities: A Case Study of Jehovah’s Witnesses,” The Review of Faith & International Affairs 5 (2007): 11–16. 53. See Engel v. Vitale, 370 U.S. 421 (1962); Abington School District v. Schempp, 374 U.S. 203 (1963); and Wallace v. Jaff ree, 472 U.S. 38 (1985). 54. For a critical commentary on the School Prayer Case, see Ernst-Wolfgang Böckenförde, “Zum Ende des Schulgebetsstreit: Stellungnahme zum Beschl. des BVerfGE v. 16.10.1979,” Deutsche Öffentliche Verwaltung 33 (1980): 323–27. See also Ulrich Scheuner, “Nochmals: Zum Ende des Schulgebet,” Deutsche Öffentliche Verwaltung 33 (1980): 513–15; Christoph Link, “Die Schulgebetsentscheidung des Bundesverfassungsgerichts,” Juristenzeitung 35 (1980): 564–66. 55. See Udo Steiner, “Der Grundrechtsschutz der Glaubens- and Gewissensfreiheit (Art. 41, 2 GG),” Juristische Schulung 22 (1982): 157–66. See also von Münch & Kunig, supra note 1, at 1:226–27. 56. See Klaus G. Meyer-Teschendorf, Staat and Kirche im Pluralistischen Gemeinwesen (Tübingen: J. C. B. Mohr [Paul Siebeck], 1979), 145–62; and Klaus Schlaich, Neutralität als verfassungsrechtliches Prinzip (Tübingen: J. C. B. Mohr [Paul Siebeck], 1972), 26–39. 57. See C. Durham, “Religion and the Public Schools: Constitutional Analysis in Germany and the United States” (Paper presented at the First Annual Conference of the Western Association for German Studies, Oct. 21, 1977), 14–23. The following discussion draws heavily from this marvelous and hitherto unpublished paper. 58. Ibid., at 22–23. 59. Ibid., at 14. 60. Ibid., at 17–18. 61. See Ernst Christian Helmreich, Religious Education in German Schools (Cambridge, Mass.: Harvard University Press, 1959), 53–71, 132–50. 62. While Article 7 guarantees the right to establish private schools, it clearly accords priority to the public schools. The state may withhold its approval of private secondary schools if they are academically inferior to public schools or if they perpetuate the segregation of children on the basis of parental income. A private elementary school of a religious or ideological nature may be approved under the terms of Article 7 (5) only “if it serves a special pedagogic interest” or when the state has failed to establish its own confessional or interdenominational schools. The Hamburg Private School Case, decided on 8 April 1987, gave an enormous boost to private schools, in this case to a nonsectarian private school. The First Senate ruled that when a state permits a private school to operate on the request of the parents, it must guarantee the school’s minimal existence. See 75 BVerfGE 40 (1987). 63. Frankfurter Rundschau, July 21, 1988. 64. See Durham, supra note 57, at 39–67. Th is section of Durham’s paper deals with the controversy surrounding the so-called Bremen clause—the provision of the Bremen Constitution providing for nonsectarian instruction in all public schools—and the equally controversial decision of the Hesse Constitutional Court holding unconstitutional a nonsectarian prayer recited in the public schools. Durham’s critical analysis of these controversies includes comparative references to American constitutional case law.

Notes to Chapter Nine 817 65. Helmreich, supra note 61, at 254. 66. 85 BVerfGE 94 (1991). 67. Frankfurter Allgemeine Zeitung, Aug. 12, 1995, at 1. 68. See “Christen fühlen sich irritiert and verletzt,” Münchner Neueste Nachrichten, Sept. 25, 1995, at 33. See also the lead story on the controversy in Der Spiegel in Münchner Neueste Nachrichten, August 14, 1995 (no. 33/14), at 22–34. 69. See, for example, Freidrich Karl Fromme, “Und wenn das Urteil falsch ware,” Frankfurter Allgemeine Zeitung, August 22, 1995, at 1; Frankfurter Allgemeine Zeitung, August. 23, 1995, at 16; and Munchner Neuste Nachrichter, September 25, 1995, at 33. See also the cover story in Germany’s leading weekly news magazine entitled “Das Kreuz mit dem Kruzifi x: Abschied von der christlichen Kultur,” Der Spiegel, August 14, 1995, at 22–25; Hans Maier, ed., Das Kreuz im Widerspruch: Der Kruzifi x-Beschluss des Bundesverfassungsgerichts in der Kontroverse (Freiburg in Breisgau: Herder, 1996). 70. Frankfurter Allgemeine Zeitung, September 26, 1995, at 1. 71. Frankfurter Allgemeine Zeitung, August 18, 1995, at 29. 72. The Week in Germany (Germany.info & the German Information Center, USA, Washington, D.C.), September 8, 1995, at 6. 73. “Wenn ein Gericht zuviel will,” Frankfurter Allgemeine Zeitung, September. 7, 1995, at 1. 74. Frankfurter Allgemeine Zeitung, August 24, 1995, at 3. 75. Frankfurter Allgemeine Zeitung, October 25, 1995, at 9. 76. 108 BVerfFGE 282, 284–85 (2003). 77. Ibid., at 290. 78. Ibid., at 320. 79. Ibid., at 319. 80. Ibid., at 306. 81. Ibid., at 311. 82. For a comparison of American and German constitutional policies with respect to the place of religion in public schools, see Inke Muehlhoff, “Freedom of Religion in Public Schools in Germany and the United States,” Georgia Journal of International and Comparative Law 28 (2000): 439–505. 83. 74 BVerfGE 244 (1987). 84. Ibid., at 252. 85. Ibid., at 254. 86. The ler case generated an enormous controversy throughout Germany, one reflected in hundreds of press reports and newspaper articles. The Konrad Adenauer Foundation collected and orga nized an impressive 316-page report, which includes, inter alia, the text of Brandenburg’s contested statute, the cdu/csu’s abstract judicial review petition to the Federal Constitutional Court, the opposing briefs of Berlin and Brandenburg, the constitutional complaints of several churches and concerned parents, and scores of editorials and newspaper articles. See Religion in den Schulen: Der Streit um das Fach ler in Brandenberg—Ein Beispiel für die Ausenandersetzung um das Verhältnis von Staat und Religion (Documentation prepared by the Konrad Adenauer Foundation, April 1997). For a shorter and well-informed discussion of the dispute, see Imma Hillerrich, “Bildungspolitik und Religion: Zum Streit um das Schulfach ler in Brandenburg,” in Religion— Staat—Politik, eds. M. Brocker, H. Behr & M. H. Hildebrandt (Wiesbaden: Westdeutscher Verlag, 2003), 199–220. 87. 104 BVerfGE 305 (2001). 88. For the text of these amendments see www.mbjs.brandenburg.de/sixms/media.php /1227/broschuere_schulgesetz _2007.pdf.

818 Notes to Chapter Nine 89. Berlin Ethics Case, 10 BVerfGK 65 (2007) 90. What made the Berlin plan so controversial was that many schoolchildren who were required to enroll in the ethics course refused to attend the voluntary course provided by their religious denominations. This reality triggered a successful “freedom of choice” initiative to hold a referendum on whether religious instruction should also be made compulsory so that Berlin students would have the choice of either ethics or a faith-based course. A bitter campaign ensued, pitting West against East Berlin, liberals against conservatives, nonreligious persons against religious adherents, cdu against the spd and left party, and Federal Chancellor Angela Merkel (cdu) against Berlin’s Mayor Wolfgang Wowereit (spd), although leading members of the national spd such as Foreign Minister Frank-Walter Steinmeier and the Parliamentary Vice President Wolfgang Th ierse weighed in on the side of the proreligion supporters. The success of the referendum depended on the participation of at least one-quarter of Berlin’s citizens and “yes” votes by a majority of those voting. The referendum lost substantially on both counts. For detailed accounts of Berlin’s “culture war” see “Pro Reli spaltet die Stadt,” Berliner Morgenpost, April 18, 2009, at 11; Rolf Scheider, “Religion is nicht Privatsache,” Frankfurter Allgemeine Zeitung, April 22, 2009, at 11; “Religion oder Eisdiele?” Die Welt, April 24, 2009, at 2; and “Die geteilte Stadt,” Süddeutsche Zeitung, April 24, 2009, at 3. 91. Church Money Case, 73 BVerfGE 388, 399 (1986). 92. Ibid., at 401. 93. See Frederic Sports, The Churches and Politics in Germany (Middletown, Conn.: Wesleyan University Press, 1973), 193– 99. 94. In 2006, the church tax yielded € 4.1 billion. The funds were distributed proportionately to the eligible religious denominations and, in the case of the Catholic Church, divided proportionately among Germany’s twelve dioceses. Statistisches Jahrbuch für die Bundesrepublik Deutschland 2007 (Berlin: Statistischer Bundesamt), 67. 95. Ibid., at 198. 96. Church Construction Tax Case, 19 BVerfGE 206, 217–18 (1965). 97. See ibid. (holding that the church tax applies only to natural persons). See also MixedMarriage Church Tax Case II, 19 BVerfGE 242 (1965) (invalidating a law that makes a spouse who is not a church member responsible for paying the tax of the spouse who belongs to the church); Bremen Church Tax Case, 19 BVerfGE 248 (1965) (invalidating a church tax that a salaried non–church member was required to pay on behalf of his nonsalaried spouse, who was a church member); Split Income Church Tax Case, 19 BVerfGE 268 (1965) (invalidating a law basing the church tax on half the income of both spouses in a marriage where only one spouse belongs to the church); Church Membership Case, 30 BVerfGE 415 (1971) (sustaining provisions of a treaty between Schleswig-Holstein and the Evangelical Lutheran church defi ning church membership for purposes of taxation); Church Tax Resignation I Case, 44 BVerfGE 37 (1977) (invalidating court decisions extending the application of the church tax to the entire year even though the taxed wage earner had withdrawn from his church earlier in the year); and Lutheran Church Tax Office Case, 19 BVerfGE 288 (1965) (holding that a church tax measure is an act of public authority within the meaning of § 90 (1) of the fcca). Other cases dealing with the legal character of a tax imposed by religious societies are the Bavarian Church Tax Case, 19 BVerfGE 282 (1965); and the Hamburg Church Tax Case, 19 BVerfGE 253 (1965). 98. Church Construction Tax Case, 19 BVerfGE 206, 216 (1965). 99. Ibid., at 216–17. 100. The featured case and several of the cases cited in the following paragraphs—and elsewhere in this chapter—have been translated into English and incorporated into a collec-

Notes to Chapter Nine 819 tion published under the auspices of the Federal Constitutional Court. See Decisions of the Bundesverfassungsgericht—Federal Constitutional Court—Federal Republic of Germany, Vol. 4: The Law of Freedom of Faith and the Law of the Churches 1960–2003 (Baden-Baden: Nomos Verlagsgesellschaft, 2007). 101. 19 BVerfGE 242 (1965). 102. 19 BVerfGE 268 (1965). See also Bremen Church Tax Case, supra note 97. 103. 19 BVerfGE 206, 216 (1965). 104. See 30 BVerfGE 415 (1971). 105. See, respectively, Church Tax Resignation I Case, 44 BVerfGE 37 (1977) and Church Tax Resignation II Case, 44 BVerfGE 59 (1977). 106. See Otto Kimminick, Deutsche Verfassungsgeschichte (Frankfurt am Main: Athenaum Verlag, 1970), 141–64. 107. Meyer-Teschendorf, supra note 56, at 3–27. 108. See Josef Listl, Konkordat and Kirchenverträge in der Bundesrepublik Deutschland (Berlin: Duncker and Humboldt, 1987). Drawing on Listl’s study, R. Taylor Cole reported that “the post–World War II period has witnessed an escalation of religious treaties.” “Protestant church treaties,” he noted, “differ from the Catholic Concordats in that they are negotiated between the state governments and the Protestant churches whereas the Concordats are negotiated between the state governments and the Holy See.” See “Two Concordats of the Fascist Period: A Postmortem” (unpublished manuscript, undated). 109. Roman Herzog, a former president of the Federal Constitutional Court, put forth this view in “Die Kirchen in pluralistischen Staat” (unpublished manuscript, undated). These competing theories are discussed at length in Meyer-Teschendorf, supra note 56. An extensive bibliography on these competing views and on the church-state relationship, generally, appears at 211–23. 110. 42 BVerfGE 312, 333 (1976). 111. Ibid., at 331. 112. Ibid. 113. Ibid., at 323. 114. Ibid., at 330–31. 115. 70 BVerfGE 138 (1985). 116. Ibid., at 162. 117. Ibid., at 163. 118. Ibid., at 166–67. 119. In several related cases the Court also invalidated judicial decisions involving the rights of labor in religious institutions. See, especially, Goch Hospital Case, 46 BVerfGE 73 (1977) (exempting religiously affi liated hospitals from general laws governing employee representation on industry work councils); Marion Hospital Case, 53 BVerfGE 366 (1980) (invalidating a state law regulating the governing procedures of religiously affi liated hospitals); Bethel Hospital Case, 57 BVerfGE 220 (1981) (permitting religiously affi liated hospitals and rest homes to exclude union organizers from their premises); and Church Occupational Standards Case, 72 BVerfGE 278 (1986) (invalidating the application of the Federal Occupational Training Act to religious institutions). 120. See Hans D. Jarass & Bodo Pieroth, Grundgesetz für die Bundesrepublik Deutschland: Kommentar (Munich: Verlag C. H. Beck, 2007), Art. 6, Rn 1, at 223. 121. Child Support I Case, 99 BVerfGE 246 (1998); Child Support II Case, 99 BVerfGE 268 (1998); and Child Support III Case, 99 BVerfGE 273 (1998). 122. Child Support III Case, 99 BVerfGE 273 (1998).

820 Notes to Chapter Nine 123. Nursing Care Insurance Case, 103 BVerfGE 242 (2001). 124. Limited Child Benefit Case, 106 BVerfGE 166 (2002). 125. The income tax case is an example of how closely the Court monitors tax legislation deemed to confl ict with the Basic Law’s fundamental commitment to the institutions of marriage and the family. The Court has taken the same critical stance with respect to general welfare legislation. In a series of orphan benefit cases, for example, the Court held that state support for orphans may not automatically be withdrawn when they decide to marry. Under the statute at issue in the leading case, unmarried orphans eighteen years and older (up to the age of twenty-five) are entitled to support payments if they are still in school or training for a job, but such payments terminate when they marry. Under the Court’s analysis, values derived from the equality clause of Article 3 (1) and the social state principle of Article 20 (1) combine with the institutional guarantee of Article 6 (1) to render the withdrawal of benefits after marriage unconstitutional if the person affected derives no support from his or her spouse. See Orphan Benefit I Case, 29 BVerfGE 1 (1970); Orphan Benefit II Case, 29 BVerfGE 57 (1970); and Orphan Benefit III Case, 29 BVerfGE 71 (1970). See also Child Tax Relief I Case, 45 BVerfGE 104 (1977); Child Tax Relief II Case, 47 BVerfGE 1 (1977); and Unemployment Assistance Case, 67 BVerfGE 186 (1984). 126. 31 BVerfGE 58, 68. 127. 53 BVerfGE 224, 245. 128. Same Sex Marriage Case (Chamber Decision), Neue Juristische Wochenschrift 47 (1993): 3058. 129. Earlier, in 1970, the Court had passed on the issue of whether marriage as contemporaneously defi ned was a natural institution beyond substantial legislative redefi nition. War Time Marriage Recognition Case, 29 BVerfGE 166 (1970). 130. See Parental Control Case, 10 BVerfGE 59 (1959); Widow’s Pension III Case, 62 BVerfGE 323, 330–31 (1982); and Common Law Marriage Case, 87 BVerfGE 234, 264–65 (1992). 131. Common Law Marriage Case, 87 BVerfGE, 234, 264–65 (1992). 132. Multiple Marriage Tax Case, 75 BVerfGE 361 (1987). 133. Robert Rodes takes this position in his view of marriage as a metaphysical rather than a biological relationship. See “On Marriage and Metaphysics,” The National Catholic Bioethics Quarterly 7 (2007): 693–702. 134. Transsexual I Case, 49 BVerfGE 286, 300 (1978). 135. 31 BVerfGE58 (1971). 136. For a complete translation of the family code provisions, see Introductory Act to the German Civil Code and the Marriage Law of the Federal Republic of Germany: 1981 Supplement, trans. Simon L. Goren (Littleton, Colo.: Fred B. Rothman, 1982); and Introductory Act to the German Civil Code and the Marriage Law of the Federal Republic of Germany, trans. Simon L. Goren, ed. I. S. Forrester (Littleton, Colo.: Fred B. Rothman, 1976). 137. 53 BVerfGE 224 (1980). 138. Ibid., at § 1566 (2), p. 19. 139. Ibid., at sec. 1568, p. 19. 140. 55 BVerfGE 134 (1980). 141. The Divorce Hardship Case prompted the Bundestag to amend § 1568 of the German Civil Code. The hardship provision was retained save for the five-year clause. It now reads: “A marriage shall not be severed also when it has failed, if and as long as the maintenance of the marriage is a necessary exception for special reasons in the interest of minor children born of the marriage or when and as long as the divorce would result in [such] severe hardship to the party opposing the application owing to exceptional circumstances, that the

Notes to Chapters Nine–Ten 821 maintenance of the marriage, also when the interest of the petitioner is taken into account, appears a necessary exception.” See The German Civil Code, rev. ed., trans. Simon L. Goren (Littleton, Colo.: Fred B. Rothman, 1994), 267. 142. In the Bremen School Administration Case (1982), the Constitutional Court acknowledged that the upbringing of a child—in this case its education—is primarily the responsibility of parents and indeed a “natural right” that preexists the orga nization of the state. 59 BVerGE 360, 376. 143. 103 BVerfGE 89 (2001). 144. See Child Custody II Case, 84 BVerfGE 168 (1991). In this case, the First Senate overruled its 1981 decision sustaining a law that granted the mother but not the father legal custody of an illegitimate child (Child Custody I, 56 BVerfGE 363 [1981]). The senate held that the law discriminated against illegitimate children in violation of Article 6 (5) of the Basic Law. Both father and mother, declared the senate, are entitled to joint custody of the child if they continue to live together and assume joint responsibility for the child’s welfare. 145. Kindschaft srechtsreformgesetz, of 17 December 1997, BGBl. I: 2942. 146. The senate found the statute unconstitutional, however, insofar as it lacked a transitional period to accommodate unmarried couples living together with their children in 1996 but who had separated before the Family Reform Act entered into force in 1998. The transitional legislation, whose passage the senate required by 31 December 2003, would allow for the possibility of joint custody if in the child’s best interest. 107 BVerfGE 150, 152 and 168 (2003). 147. Zaunegger v. Germany, (2009) 50 E.H.R. R. 38. 148. 111 BVerfGE 307 (2004). 149. 491 U.S. 110 (1989) 150. 47 BVerfGE 46 (1977). 151. Ibid., at 70. 152. Ibid., at 71. 153. Ibid., at 74. 154. Ibid., at 75. 155. Ibid., at 76. 156. 34 BVerfGE 165 (1972). 157. Ibid., at 181. 158. Ibid., at 183. 159. Ibid.

chapter ten 1. See, for example, Martin Kriele, Legitimitätsprobleme der Bundesrepublik (Munich: Verlag C. H. Beck’sche Verlagsbuchhandlung, 1977), 115–20. 2. One of the best treatments of the background and interpretation of the social state principle is Ernst Benda, “Der soziale Rechtsstaat,” in Handbuch des Verfassungsrechts (2 vols.), eds. Ernst Benda, Werner Maihofer & Hans-Jochen Vogel, 2d. ed. (Berlin: Walter de Gruyter, 1994), 1:719. See also Peter Badura, “Die Rechtsprechung des Bundesverfassungsgerichts zu den verfassungsrechtlichen Grenzen wirtschaftspolitischcr Gesetzgebung im sozialen Rechtsstaat,” Archiv des Öffentlichen Rechts 92 (1967): 382–407; Hans Michael Heinig, “The Political and the Basic Law’s Sozialstaat Principle—Perspectives from Constitutional Law and Theory,” German Law Journal 12 (2011): 1887, available at www.germanlawjournal.com/pdfs/Vol12-No11/PDF _Vol_12_No_11_1887-1900_Heinig%20FINAL .pdf.

822 Notes to Chapter Ten 3. See Hans F. Zacher, “Die soziale Staatsziel,” in Handbuch des Staatsrechts der Bundesrepublik Deutschland (8 vols.), ed. Josef Isensee & Paul Kirchhof (Heidelberg: C. F. Müller Juristischer Verlag, 1987), 1:1045, 1101–4. 4. See Erhard Denninger et al., Kommentar zum Grundgesetz für die Bundesrepublik Deutschland, 3d ed. (Neuwied: Hermann Luchterhand Verlag, 2002). 5. For an excellent overview of the history of the concept of the Rechtsstaat, see Ernst Wolfgang Böckenförde, State, Society and Liberty, trans. J. A. Underwood (Oxford: Berg, 1991), 47–70. 6. Th is is particularly true of the concept of social democracy; see Zacher, supra note 3, at 1096–1101. 7. See, for example, the protocols of the Main Committee of December 4, 1948, 18th session (fi rst reading) (typescript), 216ff. Some scholars have severely criticized Social Democratic delegates for not fighting for a bill of social rights in the Parliamentary Council. See Hans Hermann Hartwich, Sozialstaatspostulat und gesellschaftlicher Status Quo (Opladen: Westdeutscher Verlag, 1970), 27–33. 8. See Zacher, supra note 3, at 1:1101–4. 9. See Child Welfare Case, 22 BVerfGE 180, 204 (1967); Allied Property Damage Case, 27 BVerfGE 253, 283 (1969); and Lebach Case, 35 BVerfGE 202, 235 (1973). In addition, the Court has specifically recognized the importance of the individual’s constitutional interest in securing work, housing, and health care. See Employment Agency Case, 21 BVerfGE 245, 251 (1967) (concerning work); Tenant Security Case, 18 BVerfGE 121, 132 (1964) (concerning housing); and the Mülheim-Kärlich Case, 53 BVerfGE 30 (1979). Mülheim-Kärlich deals mainly with the right to life and bodily security. The state’s obligation to promote and safeguard the health of its citizens is implied in this case. 10. See Hartz IV Case, 125 BVerfGE 175 (2010); Widows’ Pension II Case, 40 BVerfGE 121, 133 (1975); Tax-Free Subsistence Minimum Case, 82 BVerfGE 60, 85 (1990). 11. See Heinz B. Case, 10 BVerfGE 354, 372 (1960); and Medical Insurance II Case, 18 BVerfGE 257, 273 (1964). 12. See, for example, the Child Welfare Case, 22 BVerfGE 180 (1967). The Court sustained, over the objection of several states, a federal grant-in-aid program (Youth Welfare Act of 1961) that sought to enlist the support of various private organizations in caring for young people at risk. 13. See Hans Michael Heinig, Der Sozialstaat im Dienst der Freiheit (Tübingen: Mohr Siebeck, 2008). 14. Ernst Karl Pakuscher, “Judicial Review of Executive Acts in Economic Affairs in Germany,” Journal of Public Law 20 (1971): 274; Reiner Schmidt, “Principles of the Economic System in the Federal Republic of Germany—A Legal View,” in Germany and Its Basic Law, eds. Paul Kirchhof & Donald P. Kommers (Baden-Baden: Nomos Verlagsgesellschaft, 1993), 311. 15. The declining legitimacy of Marxist economic theory following the collapse of the Soviet Union might have made the neo-Marxist economic vision of the Basic Law articulated by Abendroth and others seem simply incredible. See W. Abendroth et al., Der Kampf um das Grundgesetz: Über die politische Bedeutung der Verfassungsinterpretation (Frankfurt: Syndikat, 1977). But a variation on these themes has flowered into a new, fully credible political force in Germany. Strenuously advocating a modernized social welfare state as a counter to Germany’s recent concessions to neo-liberalism and “unbridled capitalism,” the predecessor to the new Left Party (Die Linke) won nearly 9 percent of the vote in the 2005 federal parliamentary election. See Dan Hough, Michael Koss & Jonathan Olsen, The Left Party in Contemporary German Politics (Hampshire: Palgrave Macmillan, 2007); Mathias Greff rath,

Notes to Chapter Ten 823 “Germany: New Left, Old Right,” Le Monde Diplomatique (September 2005); Charles Hawley, “Demagogues, Communists, and Germany’s New Left-Wing Heavyweight,” SpiegelOnline (June 19, 2007). The Left Party won 12 percent of the vote in the 2009 federal elections. 16. In a summary of its “Key Programmatic Points,” The Left Party invokes the socialist potential of the Basic Law in support of its goals: “In the Federal Republic of Germany, the Basic Law requires that law and regulations ensure that property serve the common good. Articles 14 and 15 of the Basic Law provide the possibility of countering the agglomeration of economic power to political power. Under those articles, key areas of the economy can be transferred to public ownership.” Die Linke, Key Programmatic Points, p. 3, at http://die -linke.de/fi leadmin/download/international/programmatic _points.pdf. 17. See Rechsstaatlichkeit and Sozialstaatlichkeit, ed. Ernst Forsthoff (Darmstadt: Wissenschaft liche Buchgesellschaft, 1968), 171. 18. Renate Jaeger, “The Reform of the Statutory Social Welfare System and the Case Law of the Bundesverfassungsgericht,” in II/III Annual of German & European Law, eds. Russell A. Miller & Peer C. Zumbansen (New York: Berghahn Books 2006), 23, 24. 19. Partial translations of these acts appear in Carl-Christoph Schweitzer et al., Politics and Government in the Federal Republic of Germany 1944–1994: Basic Documents, 2d. ed. (Oxford: Berghahn Books, 1995), 411–12 and 417–19. Even Germany’s sacred tradition of codetermination has been called into question by European harmonization. 20. See “Germany Seals 50 billion Euro Stimulus Plan,” SpiegelOnline—International, January 13, 2009; available at www.spiegel.de/international/germany/0,1518,600977,00.html; Katrin Bennhold, “German Stimulus Plan Includes Tax Breaks on Cars,” New York Times, November 6, 2008, available at www.nytimes.com/2008/11/06/business/worldbusiness /06stimulus.html. 21. See Carter Dougherty, “Germany Has Been Slow to Fix Its Banks,” New York Times, July 15, 2009, available at www.nytimes.com/2009/07/15/business/global/15credit.html; Stefan Theil, “The Germans Are Toxic Too,” Newsweek, June 12, 2009, available at www .newsweek .com/id/201749; Wolfgang Reuter, “German State-Owned Banks on Verge of Collapse,” SpiegelOnline—International, February 20, 2008, available at www.spiegel.de/international/business/0,1518,536635,00.html. 22. Articles 134 and 135, the residue of economic arrangements going back to Bismarck’s time, transfer Reich property and Prussian commercial enterprises to the federation. Article 110 specifically refers to revenues earned by “federal enterprises.” Article 15 provides for the socialization of natural resources and means of production. 23. See Elfes Case, 6 BVerfGE 32, 41–45 (1957). 24. See Georg Ress, “Government and Industry in the Federal Republic of Germany,” International and Comparative Law Quarterly 29 (1980): 90. Some commentators maintain that governmental enterprises operating under private law are entitled to the same entrepreneurial liberty that Article 12 confers on private concerns; others take a more restrictive view of their legality; and still others would sanction their existence so long as they serve a “public interest beyond purely commercial purposes.” Ibid., at 88– 92. 25. Employment Agency Case, 21 BVerfGE 245, 249 (1967). 26. See Milk and Butterfat Case, 18 BVerfGE 315, 327 (1965). 27. Ress, supra note 24, at 91– 92 (emphasis added). 28. For comments on this case, see Fritz Rimier, “A New Constitution for German Big Business: The Codetermination Act of 1976,” Hastings International and Comparative Law Review (1977): 113–22; and Herbert Wiedemann, “Codetermination by Workers in German Enterprises,” American Journal of Comparative Law 28 (1980): 79– 92.

824 Notes to Chapter Ten 29. “Germany Approves New vw Law, but Questions Linger,” International Herald Tribune, May 27, 2008, at www.iht.com/bin/printfriendly.php?id=13250896. 30. “That the world’s leading market-oriented nation relegates property to the ranks of subordinate constitutional rights creates at least an apparent paradox. The paradox grows when the status of property under the American Constitution is compared with property’s place in the constitutional hierarchy of Western nations with strong roots in the tradition of social welfarism. A pertinent example is the Federal Republic of Germany. Unlike the American Constitution, whose Due Process and Takings Clauses do not recognize property rights in affi rmative terms and do not explicitly recognize private property as a legitimate institution, the German Constitution . . . both explicitly affi rms private property’s institutional legitimacy and grants it constitutional protection in positive terms.” Gregory S. Alexander, “Property as a Fundamental Constitutional Right? The German Example,” Cornell Law Review 88 (2003): 733, 736. See also Christopher Brunner, “Power and Purpose in the ‘AngloAmerican’ Corporation,” Virginia Journal of International Law 50 (2010): 579. 31. Compensation Exclusion Case, 34 BVerfGE 118 (1972). An excellent overview of the right to property in German constitutional law is Peter Badura, “Eigentum,” in Handbuch des Verfassungsrechts, eds. Ernst Benda et al. (Berlin: Walter de Gruyter, 1984), 653– 96. 32. See P. Kunig, “German Constitutional Law and the Environment,” Adelaide Law Review 8 (1983): 326–27; and Georg Ress, “The Right to Property under the Constitution of the Federal Republic of Germany” (Paper delivered at Notre Dame German-American Constitutional Law Conference, April 1986), 10. 33. BGB §§ 90, 903. See Chimney Sweep I Case, 1 BVerfGE 264 (1952) (property consists of “the legal institution of property, as it has been formed by civil law and by the views prevailing in society”). See also Gunnar Folke Schuppert, “The Right to Property,” in The Constitution of the Federal Republic of Germany, ed. Ulrich Karpen (Baden-Baden: Nomos Verlagsgesellschaft, 1988), 107, 108; Otto Kimminich, “Property Rights,” in Rights, Institutions and Impact of International Law According to the German Basic Law, ed. Christian Starck (Baden-Baden: Nomos Verlagsgesellschaft, 1987), 75, 76. 34. Right of Pre-emption Case, 83 BVerfGE 201 (1991). 35. Kimminich, supra note 33, at 76 and note 2 (quoting the Reichsgericht, 109 RGZ 319 [1924]). 36. Groundwater Case, 58 BVerfGE 300 (1981) (translation from Folke Schuppert, supra note 33, at 108). Significantly, the Court departs from the principal defi nition of property in the Civil Code: Section 903—Powers of the Owner The owner of a thing may, to the extent that a statute or third-party rights do not confl ict with this, deal with the thing at his discretion and exclude others from every influence. The owner of an animal must, when exercising his powers, take into account the special provisions for the protection of animals. Th is defi nition is absolutely binding under private law because the “law of things” (Sachenrecht) in the Civil Code is based, among others, on the concept of “Typenzwang,” meaning that, in contrast to the law of obligations under the Civil Code, no “rule” can be circumvented by agreement of the parties. Th is means that property only exists for corporal objects in the sense of § 90 of the Civil Code. For all other property interests (for example, rights) special regulations apply (for example, copyright provisions). See Ralph Weber, Sachenrecht I, 2d ed. (Baden-Baden: Nomos Verlagsgesellschaft, 2010), § 7 mn. 6. 37. Feldmühle Case, 14 BVerfGE 263 (1962); Schoolbook Case, 31 BVerfGE 229 (1971); Right of Pre-emption Case, 83 BVerfGE 201 (1991). See Sabine Michalowski & Lorna Woods,

Notes to Chapter Ten 825 German Constitutional Law—The Protection of Civil Liberties (Aldershot, U.K.: Ashgate/ Dartmouth, 1999), 320–21. 38. Kimminich, supra note 33, at 77. 39. Folke Schuppert, supra note 33, at 109. 40. Marion Albers, “Rethinking the Doctrinal System of Fundamental Rights: New Decisions of the Federal Constitutional Court,” German Law Journal 3 (2002), available at www .germanlawjournal.com/article.php?id_203. 41. 105 BVerfGE 252, 277 (2002). 42. Ibid. 43. Ibid., at 277–78. 44. Ibid., at 278. 45. 198 U.S. 45 (1905). 46. Christian Bommarius, Das Grundgesetz: Eine Biographie (Berlin: Rowohlt, 2009). 47. Rudolf Dolzer, Property and Environment: The Social Obligation Inherent in Ownership (Marges, Switzerland: International Union for the Conservation of Nature and Natural Resources, 1976), 17. See also Klaus-Berto Doemming, Rudolph Werner Fusslein & Werner Matz, “Entstehungsgeschichte der Artikel des Grundgesetzes,” Jahrbuch des Öffentlichen Rechts, n.s., I (1951): 144. 48. Feldmühle Case, 14 BVerfGE 263 (1962). 49. George Fletcher, “Troubled by Takings: An Inquiry into Constitutional Theory in West Germany and the United States” (Paper presented at Conference on Comparative Constitutional Law, University of Southern California, April 5–7, 1979), 11. 50. See Württemberg-Baden Civil Servant Case, 4 BVerfGE 219 (1955). 51. See Alexander, supra note 30, at 133. 52. Ibid. (quoting van der Walt, Constitutional Property Clauses [Alphen aan den Rijn, the Netherlands: Kluwer Law International, 1999], 135). 53. See Chapter 2. 54. Ordinarily only one set of courts in Germany has jurisdiction over a given subject area of law. In the field of property, however, jurisdiction is divided between administrative and ordinary courts: the former have authority to decide whether property has been taken, the latter to decide the amount of compensation. Because these issues are interlinked, both tribunals have been forced to defi ne a “public good” and a “compensable taking.” Th is discussion relies heavily on Dolzer, supra note 47; Badura, supra note 31; and Fletcher, supra note 49. 55. Regulatory takings are much less likely to be compensated in American than in German law. Fletcher found these contrasting approaches to regulatory takings to be rooted in differing postures toward the doctrine of sovereign immunity. The doctrine has a strong lineage in the Anglo-American legal tradition but is severely limited by Article 34 of the Basic Law. (Article 34, which has no equivalent in the U.S. Constitution, renders the state liable for injuries caused by the negligence of public officials.) Under German tort theory, on the other hand, a landowner forced to sacrifice a property interest for the sake of the higher social good of his neighbor is also a victim entitled to compensation. The principle of justice behind the theory—“the party benefiting from the justified intrusion must bear the risk of the resulting harm”—permeates the constitutional law of regulatory takings: The state is obligated to compensate owners whose special rights and privileges are forcibly sacrificed for the common good. See Fletcher, supra note 49, at 15–20. 56. Lower Saxony Dikeland Case, 25 BVerfGE 112, 121 (1969). 57. 21 BVerfGE 150 (1967). 58. 10 BVerfGE 221(1959).

826 Notes to Chapter Ten 59. 89 BVerfGE 1 (1993). 60. 37 BVerfGE 132 (1974). 61. 42 BVerfGE 263 (1976). 62. 14 BVerfGE 263 (1962). 63. 58 BVerfGE 300 (1981). 64. Gregory S. Alexander, The Global Debate over Constitutional Property (Chicago: University of Chicago Press, 2006), 116. 65. See Schoolbook Case, 31 BVerfGE 229 (1971); Broadcast Lending Case, 31 BVerfGE 248 (1971); Tape Recording I Case, 31 BVerfGE 255 (1971); School Broadcast Case, 31 BVerfGE 270 (1971); and Phonograph Record Case, 31 BVerfGE 275 (1971). 66. Manfred Rehbinder, Urheberrecht, 15th ed. (Munich: C. H. Beck’sche Verlagsbuchhandlung, 2010), 58–60. 67. Church Music Case, 49 BVerfGE 382, 392 (1978); Frank Fechner, Geistiges Eigentum und Verfassung (Tübingen: J. C. B. Mohr [Paul Siebeck], 1999), 155. 68. 31 BVerfGE 248 (1971). 69. 31 BVerfGE 270 (1971). 70. 31 BVerfGE 255 (1971). 71. 31 BVerfGE 275 (1971). 72. 49 BVerfGE 382 (1978). 73. The Church Music Case is marked by still another nuance. “The constitution not only protects the different proprietary rights laid down in the Copyright Act,” said the Court, “but also protects potential property rights [the emphasis is ours] and the right of exploitation [Verwertungsrecht]. The legislature is, in principle, required to vest in the author economic control over his creative work and to allow him the freedom to dispose of it on his own responsibility.” Notwithstanding the self-restraint exhibited by the court in this case, there is some suggestion here that the justices are prepared to determine independently, apart from legislative policy, what kind of intellectual property is deserving of protection under Article 14. 74. Bundesverfassungsgericht, Chamber Decision of 29 July 1998 [1 BvR 1143/90], Neue Juristische Wochenschrift 51 (1999): 414. 75. Malte Stieper, “Amtlich wider Willen—Zur gesetzlichen Übernahme nichtamtlicher Paragrafenüberschriften,” Gewerblicher Rechtsschutz und Urheberrecht 105 (2003): 398, 403. 76. Cyber Squatting Case, 4 BVerfGK 210 (2004). 77. See Robert Kaemi & Ander Leopold, “Die Internetdomain im Schutzbereich des Article 14 Abs. 1 GG,” Multimedia und Recht 7 (2004): 287. The American courts have been split on the question. See Dorer v. Arel, 60 F. Supp. 2d 558 (E.D. Va. 1999); Zurakov v. Register.com, 304 A.D.2d 176 (N.Y. App. Div. 2003); Network Solutions v. Umbro, 529 S.E.2d 80 (Va. 2000)—trending toward rejecting property claims for domain names. But see Kremen v. Cohen, 337 F.3d 1024 (9th Cir. 2003); Harrods v. Sixty Internet Domain Names, 302 F.3d 214 (4th Cir. 2002); Caesars World, Inc. v. Caesars-Palace.com, 112 F. Supp. 2d 502 (E.D. Va. 2000)—trending toward accepting property claims for domain names. Sheldon Burshtein argues against treating domain names as property, equating them with telephone numbers or street addresses. See Sheldon Burshtein, “Is a Domain Name Property?,” Journal of Intellectual Property Law & Practice 1 (2005): 59. 78. 198 U.S. 45, 75 (1905). 79. Ferguson v. Skrupa, 372 U.S. 725 (1963). 80. 10 BVerfGE 89 (1959). 81. Ibid., at 102. 82. For a detailed consideration of Article 2 (1), see the section on the "Right to Personality" in Chapter 7.

Notes to Chapter Ten 827 83. 38 BVerfGE 281 (1974). 84. Ibid., at 301–2. 85. 38 BVerfGE 386 (1975). 86. The functions and rights of these councils are set forth in the Works Constitution Act (Betriebsverfassungsgesetz) of 1972, BGBl. I:13. Th is is the statute that confers on labor certain limited rights of codetermination within industry and laid the groundwork for the Codetermination Act of 1976. 87. See 42 BVerfGE 133 (1976). 88. 88 BVerfGE 103 (1993). 89. The Medical Practice Case, which concerns the right of a doctor to label himself a specialist, is an illustration of this principle. The Court ruled that the activities of medical specialists cannot be controlled by the medical association. Any such regulation would require an act of the legislature. See 33 BVerfGE 125 (1972). 90. 86 BVerfGE 28 (1992). 91. 40 BVerfGE 196 (1975). 92. Ibid., at 227–28. 93. See, respectively, Midwife Case, 9 BVerfGE 338 (1959); Drug Order Case, 9 BVerfGE 73 (1959); Medical Advertising Case, 9 BVerfGE 213 (1959); Barber Shop Closing Case, 59 BVerfGE 336 (1982); Baker’s Working Hours Case, 23 BVerfGE 50 (1968); and Attorney Regulation Case, 87 BVerfGE 287 (1992). 94. 11 BVerfGE 30 (1960). 95. See Defense Counsel Case, 16 BVerfGE 214 (1963); Kaul Case, 22 BVerfGE 114 (1967); and Ensslin Case, 34 BVerfGE 287 (1992). These cases involved, respectively, judicial rulings 1) preventing a lawyer from serving as defense counsel in a case merely because he was called as a witness by the prosecution; 2) barring an East Berlin lawyer from continuing as defense counsel in a case because of his membership in East Germany’s Socialist Unity Party; and 3) preventing an attorney from defending his client on the ground of his suspected complicity in the crime for which his client was on trial. In Ensslin the Court held that any such restriction on the role of defense counsel would require “unequivocal statutory authorization.” In response, Parliament amended the Penal Code in 1974 to bar an attorney serving as defense counsel in proceedings where he or she is strongly suspected of participation in the act that is the subject of the trial. 96. 19 BVerfGE 330 (1965). 97. 13 BVerfGE 97 (1961). 98. See Tax Agent Case, 21 BVerfGE 173 (1967); Pharmaceutical Technical Assistant Case, 32 BVerfGE 1 (1971); and Tax Consultant Case, 21 BVerfGE 227 (1967). 99. Taxi Case, 11 BVerfGE 168 (1960). 100. Federal Notaries Regulation Case, 17 BVerfGE 371 (1964). 101. 9 BVerfGE 19 (1958). 102. See supra note 41. 103. Ibid. 104. A significant question before the Court in Glycol was whether the government’s warning constituted a lawful intrusion into the protected scope of the basic right. The question was difficult because here the intrusion was not based on the required parliamentary statute but rather on an administrative directive that did not specifically or directly authorize it. The Court, however, appears to have gotten around this problem by equating the obligation of the government to warn the public when health is endangered with the power to do so, a doctrine that remains controversial among constitutional scholars. See the exchange between Albers, supra note 40, and Reinhard Ruge, “Between Law and Necessity: The Federal Constitutional

828 Notes to Chapter Ten Court Confi rms the Right of the Federal Government to Warn the Public (In Reply to Marian Albers),” German Law Journal 3 (2002), available at www.germanlawjournal.com/index .php ?pageID=11&artID=213. 105. 121 BVerfGE 317 (2008). 106. Ibid., at 378–79. 107. Ibid., at 381. 108. Municipal Packaging Tax Case, 98 BVerfGE 106 (1998). 109. 98 BVerfGE 265 (1998). 110. 104 BVerfGE 337, 346. 111. Ibid. 112. Ibid. 113. 102 BVerfGE 26 (2000). 114. 106 BVerfGE 181 (2002). 115. 103 BVerfGE 172 (2001). 116. Ibid., at 191. 117. Ibid. 118. 108 BVerfGE 150 (2003). 119. Hamm Higher Regional Court Case, 103 BVerfGE 1 (2000). 120. Ladenschlussgesetz, BGBl. I: 875 (1956), last amended by Art. 228 V, 31 October 2006 [BGBl. I 2407]. In two early decisions the Federal Constitutional Court described the history of shop closing laws in Germany, upheld the legislative power to pass such laws, and placed its seal of approval on the purposes behind such regulations. See Working Hours Case, 1 BVerfGE 283 (1952); and Shop Closing Act II Case, 13 BVerfGE 237 (1961). 121. 104 BVerfGE 357. For a discussion of this case, see also “Constitutional Standards, Working Time and Pharmacy Opening Hours: The FCC’s Message to Managers and Law Makers,” German Law Journal 3 (2002), available at www.germanlawjournal.com/index .php ?pageID=11&artID=136. 122. 59 BVerfGE 336 (1982). 123. See Fritz K. Ringer, “Higher Education in Germany in the Nineteenth Century,” Journal of Contemporary History 2 (1967): 123–38. 124. Daniel Fallon, The German University: A Heroic Ideal in Conflict with the Modern World (Boulder: Colorado Associated University Press, 1980), 24. 125. For an account of these reforms, see Peter J. Katzenbach, Policy and Politics in West Germany (Philadelphia: Temple University Press, 1987), 296–325. See also Donald P. Kommers, “The Government of West Germany,” in Introduction to Comparative Government, eds. Michael Curtis et al. (New York: Harper and Row, 1985), 267–73. 126. Richard Merritt, “The Courts, the Universities and the Right of Admissions in the Federal Republic of Germany,” Minerva 22 (1979): 7. 127. For other studies of judicial intervention in the field of German education, see David J. Jung & David Kirp, “Law as an Instrument of Education Policy-Making,” American Journal of Comparative Law 32 (1984): 625; Hans Weiler, “Equal Protection, Legitimacy, and the Legalization of Education: The Role of the Federal Constitutional Court in West Germany,” Review of Politics 47 (1985): 66–69; and Joyce Marie Mushaben, “The State v. the University: Juridicalization and the Politics of Higher Education at the Free University of Berlin 1969– 1979” (Ph.D. diss., Indiana University, 1981). 128. As Richard Merritt noted, this principle has been traced back to the Pharmacy Case. See Merritt, supra note 126, at 10n13. See also Ulrich Karpen, “Zulassungsschranken und Neuordnung des Hochschulzuganges,” Die deutsche Universitätszeitung 30 (1975): 823.

Notes to Chapter Ten 829 129. 39 BVerfGE 276 (1975). 130. “Th is ruling in effect threw the universities to the wolves. Those denied admission by the central admissions office did not have to sue that institution itself, but could turn directly to individual universities to dig up and take advantage of lapses in the latter’s measurement of reporting of unfi lled places.” Merritt, supra note 126, at 24. 131. 39 BVerfGE 258 (1975). 132. See Transfer Student Case, 43 BVerfGE 34 (1976); and Numerus Clausus Temporary Injunction Case, 43 BVerfGE 47 (1976). 133. These general requirements once again emphasized that every German student who furnishes proof that he holds the requisite qualifications is entitled to pursue his chosen course of study. The statute requires the states to lay down admission quotas for each institution of higher learning and to coordinate their regulations with the activities of the Central Admissions Office, which is now bound by the state rules. Some university departments have opted out of this centralized scheme; most notably the law faculties of most German universities autonomously administer their admissions process. In either case, Abitur scores and scholastic achievement are the main criteria of admission. In the centralized process, however, fi xed quotas are established for foreign students, hardship cases (i.e., applicants whose denial of admission would constitute an unusual hardship), students on waiting lists, and those who have fi nished their military obligation or substitute ser vice in a noncombatant occupation. Residence in a par tic u lar state, fi nally, does not constitute a basis of admission. The full text of this statute is available in English. See Framework Act for Higher Education (Hochschulrahmengesetz) (Bonn: Ministry of Education and Science, 1976). 134. 43 BVerfGE 291 (1977). 135. Double-Track Admissions Case, 62 BVerfGE 117 (1982). 136. In 1976, consistent with its view that any limitation on a basic right requires a statutory basis, the Court ruled that graduation requirements were to be regulated by law and that administrative decrees with respect to this matter would be valid only during a transitional period. University Ordinance Case, 41 BVerfGE 251 (1976). 137. Hans N. Weiler, “Equal Protection and Education,” Review of Politics 47 (1985): 67. 138. Konrad Jarausch used the phrases “creative destruction” and “market shock” to describe the economic conditions that prevailed in the periods leading up to and immediately after reunification. See Konrad H. Jarausch, The Rush to German Unity (New York: Oxford University Press, 1994), 148–56. For another excellent discussion of developments in the social economy of the old gdr, see Eric Owen Smith, The German Economy (London: Routledge, 1994), 254–318 and 416–542. 139. For a detailed account of these amendments, see Peter E. Quint, The Imperfect Union: Constitutional Structures of German Unification (Princeton: Princeton University Press, 1996), 115–123; and Eckart Klein, “An der Schwelle zur Wiedervereinigung DeutschlandsAnmerkungen zu Deutschlands Rechtslage im Jahre 1990,” Neue Juristische Wochenschrift 40 (1990): 1065–73. 140. See Jarausch, supra note 138, at 75. 141. East Germany’s voluntary accession to the Federal Republic under the Basic Law—a decision affi rmed by East Germany’s fi rst freely elected parliament (following elections on 18 March 1990)—also was regarded as evidence of the Basic Law’s broad acceptance among East Germans. For a different view, see Arthur Benz, “A Forum of Constitutional Deliberation: A Critical Analysis of the Joint Constitutional Commission,” German Politics 3 (1994): 99–117. See also Gerd Röllecke, “Schwierigkeiten mit der Rechtssicherheit nach der deutschen Wiedervereinigung,” Neue Juristische Wochenschrift 41 (1991): 657–62; and Johannes

830 Notes to Chapter Ten Wassmuch, “Das Regelungswerk des Einigungsvertrags,” Deutsch-Deutsche Rechtszeitschrift 9 (1990): 294– 98. For a discussion of the general impact of the Unity Treaty on the new eastern Länder, see Artur Wandtke, “Auswirkungen des Einigungsvertrags auf die neuen Bundesländer,” Gewerblicher Rechtsschutz und Urheberrecht 4 (1991): 263– 67. 142. A. James McAdams usefully classified the questions of transitional justice confronting Germany as a consequence of reunification into four categories: criminal justice: prosecuting gdr officials; disqualifying justice: the search for Stasi collaborators; moral justice: assessing the complete record of dictatorship; and corrective justice: returning private property. A. James McAdams, Judging the Past in Unified Germany (New York: Cambridge University Press, 2001). 143. See East-West Basic Treaty Case, 36 BVerfGE 1 (1973). 144. Richard Bessel, Germany 1945 (New York: Harper Collins, 2009). 145. GDR 1949 Constitution Arts. 22–26. 146. For more detailed discussion, see Quint, supra note 139, at 124–53. 147. Unification Treaty, Article 41 (I), in tandem with Exhibit III, Einigungsvertrag, Bulletin no. 104 (Bonn: Presse-und Informationsamt der Budesrepublik, September 6, 1990), 1:119–20. 148. See McAdams, supra note 142, at 145; Johathan J. Doyle, “A Bitter Inheritance: East German Real Property and the Supreme Constitutional Court’s ‘Land Reform’ Decisions of April 23, 1991,” Michigan Journal of International Law 4 (1992): 832– 64. 149. Unification Treaty, supra note 147, at 122–25. 150. Ibid., at 127–28. 151. 94 BVerfGE 12 (1996). 152. See Goldwater v. Carter, 444 U.S. 996 (1979). 153. 102 BVerfGE 254 (2000). 154. Article 15 (4) of the Federal Constitutional Court Act provides that the Court typically acts pursuant to a majority and that, in the event the votes are equal, “the Basic Law or other Federal law cannot be declared to have been infringed.” 155. 112 BVerfGE 1 (2004). 156. Ibid., at 23. Article 16 (1) of the Federal Constitutional Court Act provides that the plenum of the Federal Constitutional Court must decide a matter if, “in a point of law, a panel intends to deviate from the legal opinion contained in a decision by the other panel.” 157. Dorothy Ames Jeff ress, “Resolving Rival Claims on East German Property upon German Unification,” Yale Law Journal 101 (1991– 92): 527. 158. Literally “young lord” or “country squire.” For a history of this powerful Prussian class, see William W. Hagen, Ordinary Prussians—Brandenburg Junkers and Villagers, 1500– 1840 (New York: Cambridge University Press, 2003). 159. Land Reform III Case, 112 BVerfGE 1, 39 (2004). 160. Growth. Education. Unity. The Coalition Agreement Between the cdu, csu and fdp for the 17th Legislative Period, available at www.cdu.de/doc/pdfc/091215-koalitionsvertrag-2009 -2013-englisch.pdf. 161. Philip Plickert, “Späte Hoff nung für die Opfer der Bodenreform,” Frankfurter Allgemeine Zeitung, November 9, 2009, at 16. 162. 84 BVerfGE 133 (1991). 163. For a much more detailed discussion of this case and other decisions treated in this section, see Quint, supra note 139, at 168–71. 164. Academy of Science II Case, 85 BVerfGE 360, 372–73 (1992).

Notes to Chapter Ten 831 165. Th ree months before the decision in Academy of Science II, the Court had issued a temporary injunction to the same effect. See Academy of Science I Case, 85 BVerfGE 167 (1991). See also Agricultural Academy Case, 86 BVerfGE 81 (1992). 166. For comprehensive treatment of the policies and practices governing the dismissal of gdr officials from public employment, see McAdams, supra note 142. 167. Ibid., at 58–59. For an account of his experience as the commissioner in charge of the Stasi fi les, see Joachim Gauck, Winter in Sommer—Frühling im Herbst: Erinnerungen (Munich: Siedler Verlag, 2009). 168. Article 33 (2) reads: “Every German shall be equally eligible for any public office according to his or her aptitude, qualifications, and professional achievements.” 169. sed Educator’s Case, 96 BVerfGE 152, 168. 170. Ibid., at 163. 171. 96 BVerfGE 189, 192– 93 (1997). 172. Ibid., at 198. 173. Ibid., at 201. 174. Decision of the Second Chamber of the First Senate of 28 May 1997 [1 BvR 304/97] (revocation of an admission to the bar for a former gdr judge due to involvement in politically motivated sentences), Europäische Grundrechte-Zeitschrift 24 (1997): 376. 175. Decision of the Second Chamber of the First Senate of 21 September 2000 [1 BvR 661/96] (dismissal of a notary public due to involvement in political sentences during the gdr), Europäische Grundrechte-Zeitschrift 27 (2000): 475.

Table of Cases ∂ The featured cases are in italic type for both the case name and page numbers. Cases cited or discussed in the text or endnotes are in roman type.

germany A. Federal Constitutional Court Abelein Case, 60 BVerfGE 374 (1982), 732 n.56 Abortion I Case, 39 BVerfGE 1 (1975), 37, 39, 60, 114, 173, 373, 374, 384–87, 390– 92, 394, 398, 399, 419, 746 n.59, 754 n.51, 766 n.8, 796 n.49, 805 n.6 Abortion I Temporary Injunction Case, 37 BVerfGE 324 (1974), 796 n.44 Abortion II Case, 88 BVerfGE 203 (1993), 386, 387, 393, 394, 399, 797 n.57 Abortion II Temporary Injunction Case, 86 BVerfGE 390 (1992), 387 Academy of Science I Case, 85 BVerfGE 167 (1991), 831 n.165 Academy of Science II Case, 85 BVerfGE 360 (1992), 830 n.164, 831 n.165 Accident Insurance Case, 23 BVerfGE 12 (1967), 798 n.80 Acoustical Surveillance Case, 109 BVerfGE 279 (2004), 415, 796 n.39 Adolph M. Case, 33 BVerfGE 367 (1972), 799 n.93 Adult Theatre Case, 47 BVerfGE 109 (1978), 812 n.147 Agricultural Academy Case, 86 BVerfGE 81 (1992), 831 n.165 Aircraft Noise Case, 56 BVerfGE 54 (1981), 172 All- German Block Party Case, 12 BVerfGE 276 (1961), 274, 732 n.53 All- German Party Finance Case, 20 BVerfGE 119 (1966), 781 n.92 All- German People’s Party Case, 6 BVerfGE 273 (1957), 273, 779 n.67 Allied Property Damage Case, 27 BVerfGE 253 (1969), 822 n.9 Alternative Civilian Ser vice I Case (19 BVerfGE 135 (1965), 814 n.26

Alternative Civilian Ser vice II Case, 22 BVerfGE 178 (1967), 814 n.27 Alternative Civilian Ser vice III Case, 24 BVerfGE 178 (1968), 814 n.27 Anti-Strauss Placard Case, 82 BVerfGE 43 (1990), 808 n.59 Arms Deployment Case, 66 BVerfGE 39 (1983), 198 Assembly Dispersal Case, 84 BVerfGE 203 (1991), 501 Asylum Benefits Case, 116 BVerfGE 229 (2006), 426 Asylum Case, 94 BVerfGE 115 (1996), 747 n.67 Atomic Weapons Deployment Case, 68 BVerfGE 1 (1984), 195, 196 Atomic Weapons Referendum I Case, 8 BVerfGE 104 (1958), 94, 123, 124–25, 776 n.34 Atomic Weapons Referendum II Case, 8 BVerfGE 122 (1958), 94, 760 n.81 Attorney Regulation Case, 87 BVerfGE 287 (1992), 827 n.93 Aviation Security Act Case, 115 BVerfGE 118 (2006), 39, 394– 95, 396– 98, 416, 797 nn.62– 66 awacs i Case, 90 BVerfGE 286 (1994), 201–5, 208, 211–14 awacs ii Case, 121 BVerfGE 135 (2008), 207, 209, 213, 214, 732 n.52 Baden Home Association Case, 5 BVerfGE 34 (1956), 773 n.1 Bahá’í Religious Community Case, 83 BVerfGE 341 (1991), 72, 561, 815 n.49 Baker’s Working Hours Case, 23 BVerfGE 50 (1968), 827 n.93 Ballot Admission Case, 3 BVerfGE 19 (1953), 777 n.38 Banana Market Regulation Case, 102 BVerfGE 147 (2000), 69, 340, 349 Barber Shop Closing Case, 59 BVerfGE 336 (1982), 678, 827 n.93

834 Table of Cases Bavarian Abortion I Case, 96 BVerfGE 120 (1997), 797 n.59 Bavarian Abortion II Case, 97 BVerfGE 102 (1997), 797 n.59 Bavarian Abortion III Case, 98 BVerfGE 265 (1998), 675, 797 n.59 Bavarian Church Tax Case, 19 BVerfGE 282 (1965), 818 n.97 Bavarian Party Case, 6 BVerfGE 84 (1957), 254 Bayer Pharmaceutical Case, 85 BVerfGE 1 (1991), 498, 499, 809 n.89 Benetton Advertising Case, 102 BVerfGE 347 (2000), 498, 499 Berlin Ethics Case, 10 BVerfGK 65 (2007), 589, 818 n.89 Bethel Hospital Case, 57 BVerfGE 220 (1981), 819 n.119 Biblis-A Case, 104 BVerfGE 249 (2002), 148, 185 Biological Father Case, 108 BVerfGE 82 (2004), 613, 614 Bitburg Case, 71 BVerfGE 158 (1985), 809 n.99 Blinkfüer Case, 25 BVerfGE 256 (1969), 454–55, 457, 458 Blood Transfusion Case, 32 BVerfGE 98 (1971), 544 Böll Case, 54 BVerfGE 208 (1980), 485 Brandenburg Ethics Case, 104 BVerfGE 305 (2001), 576, 588–89, 817 n.86 Brandenburg Higher Education Act Case, 111 BVerfGE 333 (2004), 536 Bremen Church Tax Case, 19 BVerfGE 248 (1965), 818 n.97, 819 n.102 Bremen Civil Servant Case, 9 BVerfGE 268 (1959), 764 n.2 Bremen School Administration Case, 59 BVerfGE 360 (1982), 821 n.142 Broadcast Lending Case, 31 BVerfGE 248 (1971), 654, 826 n.65 Brokdorf Demonstration Case, 69 BVerfGE 315 (1985), 150, 499–501, 763 n.138 Budget Control Case, 45 BVerfGE 1 (1977), 164 Bundesrat Case, 37 BVerfGE 363 (1975), 114, 115–16, 154 Bundestag Election Case, 21 BVerfGE 355 (1967), 115, 220, 227, 231, 252, 265, 778 n.57 Casino Tax Case, 28 BVerfGE 119 (1970), 761 n.95

Catholic Hospital Abortion Case, 70 BVerfGE 138 (1985), 599 Cattle Slaughter Case, 101 BVerfGE 1 (1999), 794 n.6 cdu Fund Distribution Case, 111 BVerfGE 54 (2004), 782 n.116 Census Act Case, 65 BVerfGE 1 (1983), 37, 39, 408–9, 412, 459 Census Act Temporary Injunction Case, 64 BVerfGE 67 (1983), 799 n.88 Chamber of Workers Case, 38 BVerfGE 281 (1974), 664 Chemical Weapons Case, 77 BVerfGE 170 (1987), 398, 800 n.134 Chemist Advertising Case, 53 BVerfGE 96 (1980), 460, 498 Chicken Regulation Case, 101 BVerfGE 1 (1999), 181, 182–83, 185, 769 n.40 Child Custody I Case, 56 BVerfGE 363 (1981), 821 n.144 Child Custody II Case, 84 BVerfGE 168 (1991), 821 n.144 Child Legitimacy Case, 90 BVerfGE 263 (1994), 400 Child Support I Case, 99 BVerfGE 246 (1998), 819 n.121 Child Support II Case, 99 BVerfGE 268 (1998), 819 n.121 Child Support III Case, 99 BVerfGE 273 (1998), 819 nn.121–22 Child Tax Relief I Case, 45 BVerfGE 104 (1977), 820 n.125 Child Tax Relief II Case, 47 BVerfGE 1 (1977), 820 n.125 Child Welfare Case, 22 BVerfGE 180 (1967), 822 n.9, 822 n.12 Chimney Sweep I Case, 1 BVerfGE 264 (1952), 824 n.33 Chimney Sweep II Case, 63 BVerfGE 1 (1983), 144, 763 n.133 Chocolate Candy Case, 53 BVerfGE 138 (1980), 671, 672, 673 Christian Friedrich Case, 4 BVerfGE 52 (1954), 798 n.75 Christmas Bonus Case, 3 BVerfGE 52 (1953), 757 n.32 Church Construction Tax Case, 19 BVerfGE 206 (1965), 813 n.1, 818 n.96, 818 nn.98– 99 Church Membership Case, 30 BVerfGE 415 (1971), 595, 818 n.97

table of cases 835 Church Money Case, 73 BVerfGE 388 (1986), 818 n.91 Church Music Case, 49 BVerfGE 382 (1978), 655, 826 n.67, 826 n.73 Church Occupational Standards Case, 72 BVerfGE 278 (1986), 819 n.119 Church Tax Resignation I Case, 44 BVerfGE 37 (1977), 813 n.9, 818 n.97, 819 n.105 Church Tax Resignation II Case, 44 BVerfGE 59 (1977), 819 n.105 Cicero Case, 117 BVerfGE 244 (2007), 509, 510 Civil Divorce Case, 53 BVerfGE 224 (1980), 605, 611, 612 Civil Partnership Case, 105 BverfGE 313 (2002), 354, 606–7 Civil Servant Loyalty Case, 39 BVerfGE 334 (1975), 434 Classroom Crucifi x I Case, 85 BVerfGE 94 (1991), 577, 582 Classroom Crucifi x II Case, 93 BVerfGE 1 (1995), 68, 577, 583–86, 620, 750 n.113 Clergyman in Public Office Case, 42 BVerfGE 312 (1976), 596, 597 Clinical Trials Case, (Chamber Decision) (2000)1 BvR 1864/95 54 Neue Juristische Wochenschrift (njw) 1783 (2001), 656–57 Codetermination Case, 50 BVerfGE 290 (1979), 34, 628, 659, 660, 665, 748 n.77 Commercial Agent Case, 81 BVerfGE 242 (1990), 748 n.74 Commercial Treaty Case, 1 BVerfGE 372 (1952), 190, 191, 194, 748 n.74 Common Law Marriage Case, 87 BVerfGE 234 (1992), 820 nn.130–31 Common Marital Name Case, 84 BVerfGE 9 (1991), 431, 802 n.161 Communist Party Case, 5 BVerfGE 85 (1956), 52, 290– 93, 732 n.65, 784 n.136, 785 n.144, 806 n.11 Communist Voters’ League Case, 16 BVerfGE 4 (1963), 784 n.143 Compensation Exclusion Case, 34 BVerfGE 118 (1972), 824 n.31 Concordat Case, 6 BVerfGE 309 (1957), 88, 94, 125–26, 129, 189, 576 Conscientious Objector I Case, 12 BVerfGE 45 (1960), 114, 550, 751 n.126, 760 n.75, 794 n.14, 802 n.157

Conscientious Objector II Case, 48 BVerfGE 127 (1978), 115, 552 Consular Rights I Case, 9 BVerfGK 174 (2006), 788 n.33 Consular Rights II Case, (Chamber Decision), 64 Neue Juristische Wochenschrift (njw) 207 (2011), 788 n.33 Courtroom Crucifi x, 35 BVerfGE 366 (1973), 545 Courtroom Television Case, 103 BVerfGE 44 (2001), 508, 738 n.133 Credit Shark Case, 60 BVerfGE 234 (1982), 806 n.13, 807 n.49 Criminal Court Judge I Case, (Chamber Decision), 24 Europäische Grundrechte Zeitschrift (EuGRZ) 376 (1997), 711 Criminal Court Judge II Case, (Chamber Decision), 27 Europäische Grundrechte Zeitschrift (EuGRZ) 475 (2000), 711 csu- npd Case, 61 BVerfGE 1 (1982), 461, 462, 464, 484, 497 Cyber Squatting Case, 4 BVerfGK 210 (2004), 656, 826 n.76 Dangerous Dogs Case, 110 BVerfGE 141 (2004), 136, 137 Daniels Case, 41 BVerfGE 399 (1976), 782 n.104 Danish Minority Case, 4 BVerfGE 31 (1954), 254 Darmstadt Signals Case, (Chamber Decision) 20 Europäische Grundrechte Zeitschrift (EuGRZ) 28 (1993), 416, 476, 808 n.60 Data Mining Case, 115 BVerfGE 320 (2006)), 416 Data Stockpiling Case, 125 BVerfGE 260 (2010), 417, 418, 800 nn.122–23 Death Penalty Extradition Case, 18 BVerfGE 112 (1964), 754 n.150 Deceased Overhang Mandate Case, 97 BVerfGE 317 (1998), 253, 778 N.59 Defense Counsel Case, 16 BVerfGE 214 (1963), 827 n.95 Democratic Economic Community Case, 2 BVerfGE 300 (1953), 779 n.74 Demokrat Newspaper Case, 27 BVerfGE 88 (1969), 806 n.34 Denaturalization II Case, 54 BVerfGE 53 (1980), 75, 747 n.64, 754 n.151

836 table of cases Deutschland Magazine Case, 42 BVerfGE 143 (1976), 461, 484, 485, 809 n.77 din Standards Copyright Case, (Chamber Decision), 51 Neue Juristische Wochenschrift (njw) 414 (1999), 655, 656 Disparaging Questions Case, 85 BVerfGE 23 (1991), 478, 808 nn.69– 71 Divorce Hardship Case, 55 BVerfGE 134 (1980), 612, 820 n.141 Divorce Records Case, 27 BVerfGE 344 (1970), 412 Double-Track Admissions Case, 62 BVerfGE 117 (1982), 829 n.135 Drug Order Case, 9 BVerfGE 73 (1959), 827 n.93

Eu ropean Community Regulations Case, 22 BVerfGE 293 (1967), 789 n.42 Eu ropean Parliament I Case, 51 BVerfGE 222 (1979), 263, 777 n.42, 779 n.67, 779 n.69 Eu ropean Parliament II Case, 31 Neue Zeitschrift für Verwaltungsrecht (NVwZ) 33 (2012), 263, 779 n.70 Evangelical Church Case, 18 BVerfGE 385 (1965), 597 Explosives Control Case, 13 BVerfGE 367 (1962), 124, 761 n.89 Extended Alternative Ser vice Case, 69 BVerfGE 1 (1985), 815 n.36 Extradition Case, 4 BVerfGE 299 (1955), 748 n.83

ealg Case, 102 BVerfGE 254 (2000), 695, 702 Eastern Treaties Case, 40 BVerfGE 141 (1975), 786 n.9 East German Disbarment Case, 93 BVerfGE 213 (1995), 707 East-West Basic Treaty Case, 36 BVerfGE 1 (1973), 39, 197, 303, 304, 308, 309, 311, 737 n.126, 766 n.18, 830 n.143 Eighth Broadcasting Case, 90 BVerfGE 60 (1994), 518 Electoral District I Case, 13 BVerfGE 243 (1961), 250 Electoral District II Case, 16 BVerfGE 130 (1963), 250, 252, 752 n.127 Elfes Case, 6 BVerfGE 32 (1957), 400, 401, 404, 823 n.23 Emergency Price Control Case, 8 BVerfGE 274 (1958), 175, 181, 760 n.74 Employment Agency Case, 21 BVerfGE 245 (1967), 822 n.9, 823 n.25 Engineer Case, 26 BVerfGE 246 (1969), 129–30, 766 n.11 Ensslin Case, 34 BVerfGE 287 (1992), 827 n.95 Eppler Case, 54 BVerfGE 148 (1980), 405, 406 Equality Case, 3 BVerfGE 225 (1953), 746 n.62, 751 n.123, 764 n.3 Equestrian Case, 80 BVerfGE 137 (1989), 404 Erfurt Public Corporation Case, 10 BVerfGE 89 (1959), 663, 798 n.80 Esra Case, 119 BVerfGE 1 (2007)), 361 Euro Case, 97 BVerfGE 350 (1998), 340 Eu ropean Arrest Warrant Case, 113 BVerfGE 273 (2005), 340, 341

Falconry License Case, 55 BVerfGE 159 (1980), 404 Federal Notaries Regulation Case, 17 BVerfGE 371 (1964), 827 n.100 Federal Postal Ser vice Case, 80 BVerfGE 124 (1989), 503 Federal-State Salary Case, 34 BVerfGE 9 (1972), 761 n.89 Feldmühle Case, 14 BVerfGE 263 (1962), 640, 824 n.37, 825 n.48 Female Workplace Case, 5 BVerfGE 9 (1956), 802 n.157 Fift h Broadcasting Case, 74 BVerfGE 297 (1987), 517 Film Propaganda Case, 33 BVerfGE 52 (1972), 806 n.33, 807 n.35, 810 n.115 Finance Equalization I Case, 72 BVerfGE 330 (1986), 98 Finance Equalization II Case, 86 BVerfGE 148 (1992), 98 Finance Equalization III Case, 101 BVerfGE 158 (1999), 98, 99–100, 103, 104, 150 Financial Equalization Act Case, 1 BVerfGE 117 (1952), 94, 98 Fink Case, 96 BVerfGE 189 (1997), 706 Fire Brigade II Case, 92 BVerfGE 91 (1995), 431 First Broadcasting Case, 12 BVerfGE 205 (1961), 90–91, 95, 123, 129, 130, 508, 510–11, 512, 513, 748 n.77, 760 n.82 Fiscal Administration Case, 22 BVerfGE 106 (1967), 764 n.2 Fixed Order of List Candidates Case, 7 BVerfGE 77 (1957), 253, 778 N.55

table of cases 837 Flag Desecration Case, 81 BVerfGE 278 (1990), 529, 530, 812 nn.158–59 Flick Case, 67 BVerfGE 100 (1984), 72, 162, 752 n.131, 774 nn.13–14, 781 n.106 Foreclosure I Case, 51 BVerfGE 97 (1979), 752 n.131 Foreign Spouse Case, 76 BVerfGE 1 (1987), 753 n.146 Foreign Voters I Case, 83 BVerfGE 37 (1990), 266, 269 Foreign Voters II Case, 83 BVerfGE 60 (1990), 780 n.81 Fourth Broadcasting Case, 73 BVerfGE 118 (1986), 517 Fourth Parliamentary Election Case, 13 BVerfGE 127 (1961)), 778 n.44 Franken State Case, 96 BVerfGE 139 (1997), 87 Frankfurt Airport Demonstration Case, 128 BVerfGE 226 (2011), 501 Free German Workers Party Case, 91 BVerfGE 276 (1994), 732 n.66 Freiburg University Admissions Case, 39 BVerfGE 276 (1975), 684 Freight Traffic Case, 38 BVerfGE 61 (1974), 761 n.95 Geriatric Nursing Act Case, 106 BVerfGE 62 (2002), 132–33, 136, 137, 139, 142, 150, 762 n.103 German Spelling Reform Case, 98 BVerfGE 218 (1998), 35, 739 n.160 Global Positioning System Case, 113 BVerfGE 29 (2005), 416 Glycol Wine Case, 105 BVerfGE 252 (2002), 65, 673, 815 n.47, 827 n.104 Goch Hospital Case, 46 BVerfGE 73 (1977), 819 n.119 Görgülü Case, 111 BVerfGE 307 (2004), 74, 310, 311, 319–20, 323–25, 613, 787 nn.13–14, 787 n.16, 788 n.32 Gorleben Case, 104 BVerfGE 238 (2001), 759 n.41 Graf Compensation Case, 3 BVerfGE 4 (1953), 764 n.3 Greek Rescue Package Case, 125 BVerfGE 385 (2011), 350, 351, 793 n.96 Green Party Exclusion, 70 BVerfGE 324 (1986), 223, 226, 227, 764 n.5 Groundwater Case, 58 BVerfGE 300 (1981), 640, 641, 645, 824 n.36

Grundmandatsklausel Case, 95 BVerfGE 408 (1997), 259–60 Hamburg Church Tax Case, 19 BVerfGE 253 (1965), 818 n.97 Hamburg Flood Control Case, 24 BVerfGE 367 (1968), 631, 632, 634, 638 Hamburg Private School Case, 75 BVerfGE 40 (1987), 816 n.62 Hamburg Salaries Case, 30 BVerfGE 90 (1970), 763 n.119 Hamm Higher Regional Court Case, 103 BVerfGE 1 (2000), 828 n.119 Handicraft Admission Case, 13 BVerfGE 97 (1961), 672 Handicraft Trade Case, 32 BVerfGE 54 (1971), 752 nn.130–31 Hartz IV Case, 125 BVerfGE 175 (2010), 50, 822 n.10 Hashish Drug Case, 90 BVerfGE 145 (1994), 399 Heinrich Case, 11 BVerfGE 234 (1960), 812 n.148 Heinrich P. Case, 5 BVerfGE 13 (1956)), 418 Heinz B. Case, 10 BVerfGE 354 (1960), 822 n.11 Henschel Judicial Selection Case, 65 BVerfGE 152 (1983), 736 n.118 Herzog Presidential Candidacy Case, 89 BVerfGE 359 (1994), 738 n.139 Hessen Election Review Case, 103 BVerfGE 111 (2001), 265 Hirsch Exclusion Case, 46 BVerfGE 14 (1977), 737 n.126 Historical Fabrication Case, 90 BVerfGE 1 (1994), 497, 812 n.149 Hoheneggelsen Case, 59 BVerfGE 216 (1982), 105, 106–8, 109 Holocaust Denial Case, 90 BVerfGE 241 (1994), 479, 485, 493, 497– 99 Homosexuality Case, 6 BVerfGE 389 (1957), 802 n.157 Honeywell Case, 126 BVerfGE 286 (2010), 349, 350 Horror Film Case, 87 BVerfGE 209 (1992)), 812 n.156 Housework Day Case, 52 BVerfGE 369 (1979), 428 Housing Funding Case, 1 BVerfGE 299 (1952), 90, 757 n.32, 759 n.70

838 table of cases Hubert Kleinert Case, 66 BVerfGE 26 (1983), 775 n.20 ig-Metall Case, 42 BVerfGE 133 (1976), 664 Immigration Act Case, 106 BVerfGE 310 (2002), 110–11, 268 Incest Case, 120 BVerfGE 224 (2008), 738 n.135 Income and Corporation Tax Administration Case, 1 BVerfGE 76 (1951), 760 n.74 Integrated Education Case, 96 BVerfGE 288 (1997), 436, 439 Interdenominational School Case, 41 BVerfGE 29 (1975), 572, 577, 579, 582, 583, 585, 620, 750 n.113 Investment Aid I Case, 4 BVerfGE 7 (1954), 362, 402, 624, 626, 629, 751 n.126, 801 n.140 Isserstedt Case, 91 BVerfGE 70 (1994), 759 n.59 Jehovah’s Witnesses Case, 102 BVerfGE 370 (2000), 562–63, 753 n.142 Joint Income Tax Case, 96 BVerfGE 55 (1957), 602, 604 Joint Parental Responsibility Case, 107 BVerfGE 150 (2003), 613 Joseph C. Case, 1 BVerfGE 430 (1952), 779 n.74 Journalist Treason Case, 21 BVerfGE 239 (1967), 810 n.110 Judicial Qualification Case, 34 BVerfGE 52 (1972), 186–87, 764 n.3 Judicial Reference Case, 80 BVerfGE 54 (1989), 739 n.157 Judicial Title Case, 38 BVerfGE 1 (1974), 763 n.119 Junge Freiheit Case, 113 BVerfGE 63 (2005), 509 Junior Professor Case, 111 BVerfGE 226 (2004), 139–40 Kalkar I Case, 49 BVerfGE 89 (1978), 34, 145, 173, 177, 181, 185, 186, 399, 665, 697, 698 Kalkar II Case, 81 BVerfGE 310 (1990), 145, 148, 149, 185, 758 n.40 Kaul Case, 22 BVerfGE 114 (1967), 827 n.95 Key Date Case, 101 BVerfGE 239 (1999), 698, 702 Kirchhof Exclusion Case, 82 BVerfGE 30 (1990), 737 n.126 Klass Case, 30 BVerfGE 1 (1970), 174, 747 n.67, 751 n.126, 794 n.14, 799 n.101

Kosovo Case, 100 BVerfGE 266 (1999), 205–6 Kurt L. Case, 30 BVerfGE 250 (1971), 798 n.82 Laatzen Case, 50 BVerfGE 50 (1978), 759 n.59 Land Reform I Case, 84 BVerfGE 90 (1991), 689, 693– 95, 747 n.67 Land Reform II Case, 94 BVerfGE 12 (1996), 694, 747 n.67 Land Reform III Case, 112 BVerfGE 1 (2004), 316–18, 696, 787 n.18, 787 nn.20–21, 787 n.25, 788 n.30, 830 n.159 Law in Force–Temporary Injunction Case, 7 BVerfGE 175 (1957), 732 n.53 Lawyer- Client Relationship Case, 108 BVerfGE 150 (2003), 676 Lebach Case, 35 BVerfGE 202 (1973), 368, 478, 479–80, 483, 484, 798 n.74, 822 n.9 Legislative Pay Case, 40 BVerfGE 296 (1975), 237, 766–67 n.18 Leipzig Daily Newspaper Case, 27 BVerfGE 71 (1969)), 458, 459 Liebesgrotte Case, 51 BVerfGE 304 (1979), 810 n.115 Life Imprisonment Case, 45 BVerfGE 187 (1977), 70, 363, 368– 72, 390, 399, 794 n.10 Limited Child Benefit Case, 106 BVerfGE 166 (2002), 820 n.124 Lisbon Treaty Case, 123 BVerfGE 267 (2009), 50, 59, 69, 75, 333, 343, 345, 349, 350, 352, 747 nn.68– 69, 751 n.122, 787 n.22, 792 nn.89– 90, 792 n.92, 793 n.97 List Election Case, 7 BVerfGE 63 (1957), 778 N.56 Lockout Case, 38 BVerfGE 386 (1975), 664 Long-Haul Truck Licensing Case, 40 BVerfGE 196 (1975), 671 Lower Saxony Dikeland Case, 25 BVerfGE 112 (1969), 825 n.56 Lüth Case, 7 BVerfGE 198 (1958), 60, 61, 66, 74, 442–43, 448, 449, 451, 453, 454, 456, 457, 461, 485, 500, 503, 507, 508, 746 n.57, 747 nn.73– 74, 753 n.148, 805 n.9 Lutheran Church Tax Office Case, 19 BVerfGE 288 (1965), 818 n.97 Maastricht Treaty Case, 89 BVerfGE 155 (1993), 69, 238, 334, 335, 338–40, 432, 751 n.122, 772 n.85, 789 n.49, 791 nn.71– 72 Machinist Case, 89 BVerfGE 276 (1993), 432

table of cases 839 Mail Ballot Case, 59 BVerfGE 111 (1981), 779 n.74 Male Inheritance Case, 15 BVerfGE 337 (1963), 802 n.157 Marburg Illegitimacy Case, 8 BVerfGE 210 (1958), 740 n.165 Marion Hospital Case, 53 BVerfGE 366 (1980), 819 n.119 Marital Property Case, 63 BVerfGE 181 (1983), 802 n.161 Maternity Leave Case, 109 BVerfGE 64 (2003), 431 Mayen Absentee Ballot Case, 59 BVerfGE 119 (1981), 265, 266 Mediation Committee Seat Assignment Case, 112 BVerfGE 118 (2004), 228, 229 Medical Advertising Case, 9 BVerfGE 213 (1959), 827 n.93 Medical Confidentiality Case, 32 BVerfGE 373 (1972), 799 n.93 Medical Insurance I Case, 11 BVerfGE 30 (1960), 671 Medical Insurance II Case, 18 BVerfGE 257 (1964), 822 n.11 Medical Practice Case, 33 BVerfGE 125 (1972), 748 n.83, 827 n.89 Medical Specialization Case, 106 BVerfGE 181 (2002), 676 Mephisto Case, 30 BVerfGE 173 (1971), 358, 361, 362, 461, 484, 485, 519, 523, 651, 746 n.59 Microcensus Case, 27 BVerfGE 1 (1969), 356, 407, 408 Midwife Case, 9 BVerfGE 338 (1959), 426, 827 n.93 Military Desertion Case, 105 BVerfGE 61 (2002), 553 Milk and Butterfat Case, 18 BVerfGE 315 (1965), 823 n.26 Milk Distributor Case, 9 BVerfGE 19 (1958), 672 Minority Rights in Investigative Committees Case, 105 BVerfGE 197 (2002), 163, 218–19, 222, 284, 765 n.5 Minors and Districting Case, 31 Neue Zeithschrift für Verwaltungsrecht (NVwZ) 622 (2012), 252 Mixed-Marriage Church Tax I Case, 19 BVerfGE 226 (1965), 591, 594 Mixed-Marriage Church Tax II Case, 19 BVerfGE 242 (1965), 594, 818 n.97

Monument Protection Act Case, 100 BVerfGE 226 (1999), 645, 646 Mülheim-Kärlich Case, 53 BVerfGE 30 (1979), 177, 185, 399, 419, 822 n.9 Multiple Marriage Tax Case, 75 BVerfGE 361 (1987), 820 n.132 Munich University Admissions Case, 39 BVerfGE 258 (1975), 684 Municipal Financial Autonomy Case, 71 BVerfGE 25 (1985), 759 n.57 Municipal Packaging Tax Case, 98 BVerfGE 106 (1998), 828 n.108 Muscular Dystrophy Case, 115 BVerfGE 25 (2005), 798 n.69 Music Box Tax Case, 31 BVerfGE 119 (1971), 761 n.95 Muslim Headscarf Case, 108 BVerFGE 282 (2003), 68, 72, 585, 587 Mutlangen Demonstration Case, 73 BVerfGE 206 (1986), 500, 809 nn.99–101 Mutzenbacher Case, 83 BVerfGE 130 (1990), 524, 525 National Anthem Case, 81 BVerfGE 298 (1990), 529, 530 National List Case, 91 BVerfGE 262 (1994), 732 n.66 National Socialist Law Case, 23 BVerfGE 98 (1968), 751 n.123 National Unity Election Case, 82 BVerfGE 322 (1990), 255–56, 262 nato Strategic Concept Case, 104 BVerfGE 151 (2001), 194, 196, 204, 205, 210, 772 n.85 Ninth Broadcasting Case, 114 BVerfGE 371 (2007), 518 Nocturnal Employment Case, 85 BVerfGE 191 (1992), 427, 428, 430–32, 434 Non-Party List Case, 5 BVerfGE 77 (1956), 776 n.38 Non-Resident Voting I Case, 36 BVerfGE 139 (1973), 266 Non-Resident Voting II Case, 58 BVerfGE 202 (1981), 266 North Rhine–Westphalia Salaries Case, 4 BVerfGE 115 (1954), 139, 757 n.32, 763 nn.119–20 npd Finance Case, 20 BVerfGE 134 (1966), 781 n.92 npd Party Ban Dismissal Case, 107 BVerfGE 339 (2003), 295–96, 299, 300

840 table of cases Nudist Colony Case, 7 BVerfGE 320 (1958), 812 n.148 Nudist Magazine Case, 30 BVerfGE 336 (1971), 812 n.148 Numerus Clausus I Case, 33 BVerfGE 303 (1972), 60, 679–80, 684, 711, 748 n.77 Numerus Clausus II Case, 43 BVerfGE 34 (1977), 39 Numerus Clausus Temporary Injunction Case, 43 BVerfGE 47 (1976), 829 n.132 Nursing Care Insurance Case, 103 BVerfGE 242 (2001), 820 n.123 Oath Refusal Case, 33 BVerfGE 23 (1972), 545, 546 Obligatory School Case, BVerfGE 165 (1972), 619 Official Propaganda Case, 44 BVerfGE 125 (1977), 233–34, 806 n.11 Old Age Home Case, 85 BVerfGE 23 (1991), 808 n.51, 809 n.89 Oldenburg State Case, 49 BVerfGE 10 (1978), 87 Online Computer Surveillance Case, 120 BVerfGE 274 (2008), 417 Orphan Benefit I Case, 29 BVerfGE 1 (1970), 820 n.125 Orphan Benefit II Case, 29 BVerfGE 57 (1970), 820 n.125 Orphan Benefit III Case, 29 BVerfGE 71 (1970), 820 n.125 Orphan’s Pension Case, 17 BVerfGE 1 (1963), 802 n.157 Osho Case, 105 BVerfGE 279 (2002), 554, 556 Overhang Mandates II Case, 95 BVerfGE 335 (1997), 243, 247–50, 252, 253 Papenburg Case, 82 BVerfGE 310 (1990), 759 n.59 Parental Control Case, 10 BVerfGE 59 (1959), 747 n.64, 802 n.157, 820 n.130 Parliamentary Dissolution I Case, 62 BVerfGE 1 (1983), 72, 155, 156, 161, 162, 752 n.131 Parliamentary Dissolution II Case, 114 BVerfGE 121 (2005), 155, 156–57, 161, 162 Party Finance I Case, 8 BVerfGE 51 (1958), 270, 271, 273, 274, 276, 281 Party Finance II Case, 20 BVerfGE 56 (1966), 37, 39, 270, 274, 277–80, 732 n.59, 737 n.126, 781 n.92

Party Finance III Case, 24 BVerfGE 300 (1968), 270, 280, 740 n.166, 764 n.4, 781 n.92 Party Finance IV Case, 52 BVerfGE 63 (1979), 270, 280 Party Finance V Case, 73 BVerfGE 40 (1986), 75, 270, 281, 282, 732 n.57, 754 n.151, 775 nn.20–21 Party Finance VI Case, 85 BVerfGE 264 (1992), 270, 281, 283 Paternity Disclosure I Case, 96 BVerfGE 56 (1997), 400, 412 Paternity Disclosure II Case, 117 BVerfGE 207 (2007), 413, 796 n.39 Penal Detention Case, 117 BVerfGE 71 (2006), 369 Pension Reform Case, 74 BVerfGE 163 (1987), 432 People’s Ballot Case, 74 BVerfGE 96 (1986), 776 n.36 Petersberg Case, 1 BVerfGE 351 (1952), 190, 191 Peter W. Case, 28 BVerfGE 55 (1970), 476, 808 n.62 Pharmaceutical Technical Assistant Case, 32 BVerfGE 1 (1971), 827 n.98 Pharmacy Case, 7 BVerfGE 377 (1958), 659, 666, 670– 72, 754 n.150 Pharmacy Opening Hours Case, 104 BVerfGE 357 (2002), 677 Philippine Embassy Case, 46 BVerfGE 342 (1977), 312, 316, 317 Phonograph Record Case, 31 BVerfGE 275 (1971), 655, 826 n.65 Physician Advertising Case, 71 BVerfGE 162 (1985), 806 n.19 Physician Age Limit Case, 103 BVerfGE 172 (2001), 676, 828 n.115 Picture Postcard Case, 68 BVerfGE 226 (1984), 465 Pleasure Tax Case, 14 BVerfGE 76 (1962), 761 n.95 Plenum Building Law I Case, 3 BVerfGE 407 (1954), 131 Plenum Party Case, 4 BVerfGE 27 (1954), 732 n.58, 780 n.89 Plenum Referral Case, 96 BVerfGE 409 (1997), 271, 734 n.87 Pneumoencephalography Case, 17 BVerfGE 108 (1963), 419 Pofalla I Case, 103 BVerfGE 81 (2001), 95, 758 n.41

table of cases 841 Political Defamation Case, 43 BVerfGE 130 (1976), 807 n.49 Political Foundations Case, 73 BVerfGE 1 (1986), 280, 774 n.20 Political Satire Case, 75 BVerfGE 369 (1987), 465, 467, 468, 529, 812 n.157 Polygraph Case, 17 BVerfGE 347 (1963), 795 n.19, 800 n.130 Polygraph Case, (Chamber Decision) 35 Neue Juristische Wochenschrift 375 (1982), 795 n.19 Postal Workers Strike Case, 88 BVerfGE 103 (1993), 665 Posthumous Libel Case, (Chamber Decision) 20 Europäische Grundrechte Zeitschrift (EuGRZ) 146 (1993), 522, 812 n.146 Preclusion in Civil Proceedings Case, 55 BVerfGE 72 (1980), 802 n.149 Preliminary Judgment Case, 85 BVerfGE 329 (1992), 731 n.49 Prenuptial Agreement Case, 103 BVerfGE 89 (2001), 612 Press Advertising Case, 21 BVerfGE 271 (1967), 460 Press Freedom Case, 10 BVerfGE 118 (1959), 809 n.105, 810 n.112 Presumption of Innocence Case, 74 BVerfGE 358 (1978), 753 n.147 Preventive Detention I Case, 109 BVerfGE 133 (2004), 371, 752 n.131, 788 n.35 Preventive Detention II Case, 109 BVerfGE 190 (2004), 371, 795 n.34 Preventive Detention III Case, 128 BVerfGE 326 (2011), 371, 789 n.41 Preventive Detention Temporary Injunction Case, (Chamber Decision) 2 BvR 2365/09, 22 December 2009), 788 n.39 Princess Caroline of Monaco II Case, 101 BVerfGE 361 (1999), 405, 479, 486, 491, 492 Princess Caroline of Monaco III Case, 120 BVerfGE 180 (2008)), 788 n.33 Princess Soraya Case, 34 BVerfGE 269 (1973), 165, 171, 172, 174, 407, 412, 807 n.48 Prison Correspondence Case, 33 BVerfGE 1 (1972), 368, 370 Prisoner’s Diary Case, 80 BVerfGE 367 (1989), 808 n.74 Prison Furlough Case, 64 BVerfGE 261 (1983), 369 Prison Labor Case, 98 BVerfGE 169 (1998), 370

Prison Privacy Case, 42 BVerfGE 234 (1976), 476 Public Assembly Case, 20 BVerfGE 150 (1956), 798 n.82 Publications Seizure Case, 27 BVerfGE 104 (1969), 806 n.26 Public Servant Dissolution Case, 84 BVerfGE 133 (1991), 703, 704 Punitive Damage Case, 91 BVerfGE 335 (1994), 404, 405, 799 n.87 Punitive Damage Temporary Injunction Case, 91 BVerfGE 140 (1994), 798 n.86 Radical Groups Case, 47 BVerfGE 198 (1978), 292, 806 n.33 Rag Collection Case, 24 BVerfGE 236 (1968), 540, 544 Registration Injunction Case, 46 BVerfGE 337 (1977), 815 n.32 Reich Tax Levy Case, 11 BVerfGE 126 (1960), 739 n.158, 748 n.80 Reinhard Brückner Case, 65 BVerfGE 101 (1983), 774 n.20 Religious Instruction Case, 74 BVerfGE 244 (1987), 588 Rendsburg Illegitimacy Case, 25 BVerfGE 167 (1969), 740 n.165, 802 n.144 Rental Prepayment Case, 95 BVerfGE 64 (1996), 751 n.116 Retail Trade Case, 19 BVerfGE 330 (1965), 671 Right of Pre-emption Case, 83 BVerfGE 201 (1991), 824 n.34, 824 n.37 Ritual Slaughter Case, 104 BVerfGE 337 (2002), 556–57, 675, 676 Road Traffic Case, 27 BVerfGE 18 (1969), 761 n.95 Römerberg Speech Case, 54 BVerfGE 129 (1980), 454, 806 nn.13–17 Rudolf Hess Case, 55 BVerfGE 349 (1980), 197 Rudolf Hess Memorial Celebration Case, 124 BVerfGE 300 (2009), 752 n.131 Saarland Extradition Case, 4 BVerfGE 299 (1955), 754 n.150 Satellite Dish Case, (Chamber Decision) 20 Europäische Grundrechte Zeitungschrift (EuGRZ) 302 (1993), 458, 806 n.22 Schlabrendorff Exclusion Case, 32 BVerfGE 288 (1972), 737 n.126

842 table of cases Schleswig-Holstein Five Percent Th reshold Case, 120 BVerfGE 82 (2008), 263, 779 n.68 Schleswig-Holstein Investigative Committee Case, 49 BVerfGE 70 (1978), 222, 774 n.12 Schleswig-Holstein Salaries Case, 18 BVerfGE 159 (1964), 763 n.119 Schleswig-Holstein Voters’ Association Case, 1 BVerfGE 208 (1952), 254, 271, 751 n.123, 779 n.74, 780 n.84 Schleyer Kidnapping Case, 46 BVerfGE 160 (1977), 173, 197, 394, 396– 99, 800 n.134 Schmid- Spiegel Case, 912 BVerfGE 113 (1961), 450, 453, 454, 464, 465, 476, 498 Schoolbook Case, 31 BVerfGE 229 (1971), 651, 656, 824 n.37, 826 n.65 School Broadcast Case, 31 BVerfGE 270 (1971), 654, 826 n.65 School Prayer Case, 52 BVerfGE 223 (1979), 566, 567, 577, 582, 586, 620, 813 n.10, 816 n.54 Scientology Case, 99 BVerfGE 185 (1998), 477 Second Broadcasting Case, 31 BVerfGE 328 (1971), 513 sed Educator’s Case, 96 BVerfGE 152 (1997), 706, 831 n.169 Seventh Broadcasting Case, 87 BVerfGE 181 (1992), 518 Sex Education Case, 47 BVerfGE 46 (1977), 618, 619 Sexual Abuse Case, 97 BVerfGE 391 (1998), 477, 808 n.68 Shop Closing Act II Case, 13 BVerfGE 237 (1961), 677, 828 n.120 Shop Closing Act III Case, 111 BVerfGE 10 (2004), 137, 762 n.106 Sixth Broadcasting Case, 83 BVerfGE 238 (1991), 518, 810 n.123 Small Garden Plot Case, 10 BVerfGE 221 (1959), 639, 798 n.82 Smoking Ban Case, 121 BVerfGE 317 (2008), 673, 674 Socialist Reich Party Case, 2 BVerfGE 1 (1952), 271, 286, 290– 93, 732 n.65, 785 n.144, 806 n.11 Social Security II Case, 43 BVerfGE 213 (1977), 802 n.157 Social Security III Case, 48 BVerfGE 346 (1978), 802 n.157 Solange I Case, 37 BVerfGE 271 (1974), 69, 326–29, 332, 344, 789 n.43, 789 nn.45–48, 789 n.50, 790 n.58

Solange II Case, 73 BVerfGE 339 (1986), 69, 327–28, 331, 332, 335, 338–41, 349, 793 n.91 Soldier’s Conscientious Objector I Case, 28 BVerfGE 243 (1970), 814 n.19 Soldier’s Conscientious Objector II Case, 28 BVerfGE 264 (1970), 814 n.19 Soldier’s Conscientious Objector III Case, 32 BVerfGE 40 (1971), 814 n.19 Solidarity Supplemental Tax Case, Federal Constitutional Court, 2 BvL 310, from 8 September 2010, 758 n.52 Somalia Military Mission Case, 89 BVerfGE 38 (1993), 772 n.83 Southwest State Case, 1 BVerfGE 14 (1951), 37, 56, 57, 80, 81–82, 85, 86, 420, 442, 746 n.56, 747 n.65, 751 n.123, 755 nn.8– 9, 773 n.1, 809 n.108, 810 n.111 Soviet Zone Case, 2 BVerfGE 266 (1953), 434, 748 n.83 Spanish Marriage Case, 31 BVerfGE 58 (1971), 605, 611 Spiegel Case, 20 BVerfGE 162 (1966), 74, 451–53, 458, 503–4, 506– 9, 753 n.148 Spinal Tap Case, 16 BVerfGE 194 (1963), 418, 419 Split Income Church Tax Case, 19 BVerfGE 268 (1965), 818 n.97 Startbahn West Case, BVerfGE 175 (1982), 89, 90 Stasi Stolpe Case, 114 BVerfGE 339 (2005), 477 State Constitutional Courts Case, 96 BVerfGE 345 (1997), 757 n.27 State Liability Case, 61 BVerfGE 149 (1982), 761 n.101 State Lists Case, 121 BVerfGE 266 (2008), 248, 249, 252, 778 n.49 State Treaty Case, 42 BVerfGE 103 (1976), 757 n.39 State Water Fees Case, 93 BVerfGE 319 (1995), 139 Stem Cell Research Case, 102 BVerfGE 26 (2000), 676 Stern-Strauss Interview Case, 82 BVerfGE 277 (1990), 808 n.59 Stoevesandt Case, 12 BVerfGE 10 (1960), 777 n.38 Street Theater Case, 67 BVerfGE 213 (1984), 523, 525–26, 529 Sunday Trucking Ban Temporary Injunction Case, 6 BVerfGE 1 (1956), 732 n.53

table of cases 843 Supermarket Boycott Case, 62 BVerfGE 230 (1982), 806 n.18 Supplemental Candidates Case, 3 BVerfGE 45 (1953), 252 Supplemental Tax Case, 32 BVerfGE 333 (1972), 758 n.52 Support Grades Temporary Injunction Case, 29 BVerfGE 120 (1970), 732 n.53 Suretyship Case, 89 BVerfGE 214 (1993), 748 n.74 Surveillance of Members of Parliament Case, 124 BVerfGE 161 (2009), 163, 227, 774 n.13 Tape Recording I Case, 31 BVerfGE 255 (1971), 407, 654, 799 n.96, 826 n.65 Tape Recording II Case, 34 BVerfGE 238 (1973), 799 n.96, 808 n.75 Tax Administration Case, 1 BVerfGE 76 (1951), 760 n.74 Tax Agent Case, 21 BVerfGE 173 (1967), 827 n.98 Tax Consultant Advertising Case, 64 BVerfGE 108 (1983), 810 n.115 Tax Consultant Case, 21 BVerfGE 227 (1967), 827 n.98 Tax-Free Subsistence Minimum Case, 82 BVerfGE 60 (1990), 822 n.10 Taxi Case, 11 BVerfGE 168 (1960), 827 n.99 Technician Licensing Case, 86 BVerfGE 28 (1992), 670 Telecommunication Case, 107 BVerfGE 299 (2003), 510, 800 n.112 Telecommunication Surveillance Act Case, 100 BVerfGE 313 (1999), 414–16 Telephone Data Archive Case, 125 BVerfGE 260 (2010), 792 n.79 Tenancy and Rent Control Case, 37 BVerfGE 132 (1974), 639 Tenant Security Case, 18 BVerfGE 121 (1964), 822 n.9 Tenant’s Right of Occupancy Case, 89 BVerfGE 1 (1993), 635, 639, 805 n.7 Tenth Broadcasting Case, 119 BVerfGE 196 (2007), 518 Territorial Reorga nization Case, 13 BVerfGE 54 (1961), 87, 88, 778 n.54 Thalidomide Case, 42 BVerfGE 263 (1976), 640 Theodore K. Case, 34 BVerfGE 205 (1972), 412 Third Broadcasting Case, 57 BVerfGE 295 (1981), 502, 514, 516, 517

Th ree-Justice Committee I Case, 7 BVerfGE 241 (1958), 734 n.100, 735 n.101 Th ree-Justice Committee II Case, 18 BVerfGE 440 (1965), 734 n.100 Th ree-Justice Committee III Case, 19 BVerfGE 88 (1965), 734 n.100 Titanic Magazine Case, 86 BVerfGE 1 (1992), 808 n.59 Tobacco Atheist Case, 12 BVerfGE 1 (1960), 545, 814 n.11, 814 n.14 Tobacco Warning Label Case, 95 BVerfGE 173 (1997), 498, 674, 807 n.40 Transfer Student Case, 43 BVerfGE 47 (1976), 829 n.132 Transsexual I Case, 49 BVerfGE 286 (1978), 413, 421, 799 n.100, 820 n.134 Transsexual II Case, 88 BVerfGE 87 (1993), 421–22, 425, 426 Transsexual III Case, 115 BVerfGE 1 (2005), 425 Transsexual IV Case, 116 BVerfGE 243 (2006), 425, 799 n.100 Transsexual V Case, 121 BVerfGE 175 (2008), 413, 425 Transsexual VI Case, 128 BVerfGE 109 (2011), 425 Transsexual Youth Case, 60 BVerfGE 123 (1982), 422, 424 Truck Licensing Case, 17 BVerfGE 371 (1964), 672 Tucholsky I, Soldiers Are Murderers) Case, (Chamber Decision) 21 Europäische Grundrechte Zeitschrift (EuGRZ) 463 (1994), 468, 469, 808 n.56, 808 n.59 Tucholsky II, Soldiers Are Murderers) Case, 93 BverfGE 266 (1995), 468, 469, 470, 476, 485, 734 n.98 Tuition Case, 112 BVerfGE 226 (2005), 141, 763 n.122 Turnover Tax Record Case, 36 BVerfGE 321 (1974), 805 n.6 Unemployment Assistance Case, 67 BVerfGE 186 (1984), 820 n.125 University Election Case, 66 BVerfGE 291 (1984), 778 n.44 University Ordinance Case, 41 BVerfGE 251 (1976), 829 n.136 University Reform Case, 35 BVerfGE 79 (1973), 531, 535, 766 n.18

844 table of cases Unwanted Child Case, 96 BVerfGE 375 (1997), 19, 169, 172, 734 n.86 Veterans Assistance Case, 7 BVerfGE 183 (1957), 764 n.2 Vineyard Case, 21 BVerfGE 150 (1967), 639 Volkswagen Denationalization Case, 12 BVerfGE 354 (1961), 628–29 Voting Computers Case, 123 BVerfGE 39 (2009), 249, 778 n.50 Wallraff Case, 66 BVerfGE 116 (1984), 810 n.115 War Criminal Case, 72 BVerfGE 105 (1986), 369, 370, 372 Warsaw Pact Wiretapping Case, 67 BVerfGE 157 (1987), 799 n.101 War Time Marriage Recognition Case, 29 BVerfGE 166 (1970), 820 n.129 Waste Disposal Case, 79 BVerfGE 127 (1988), 109 Water Pollution Case, 15 BVerfGE 1 (1962), 761 n.89 Weinheim Voter’s Association Case, 99 BVerfGE 84 (1998), 782 n.115 Werner Case, 28 BVerfGE 191 (1970), 476 Widower’s Pension I Case, 17 BVerfGE 1 (1963), 185, 769 n.43 Widower’s Pension II Case, 39 BVerfGE 169 (1975), 766 n.18, 769 n.44 Widow’s Child Welfare Case, 1 BVerfGE 97 (1951), 419, 799 n.89 Widow’s Pension I Case, 25 BVerfGE 142 (1969), 763 n.120 Widows’ Pension II Case, 40 BVerfGE 121 (1975), 822 n.10 Widow’s Pension III Case, 62 BVerfGE 323 (1982), 820 n.130 Wine Tax Case, 37 BVerfGE 1 (1974), 761 n.95 Wismar Technical College Case, 126 BVerfGE 1 (2010), 536 Working Hours Case, 1 BVerfGE 283 (1952), 828 n.120 Wüppesahl Case, 80 BVerfGE 188 (1989), 227, 228, 732 n.56 Württemberg-Baden Civil Servant Case, 4 BVerfGE 219 (1955), 825 n.50 Youth Imprisonment Case, 116 BVerfGE 69 (2006), 369, 370, 808 n.73

B. Other German Courts I. Federal High Courts Federal Court of Justice [Civil Matters], 45 Neue Juristische Wochenschrift (njw) 1407 (1992), 814 n.25 Federal Court of Justice [Civil Matters], 59 BGHZ 30 (1972), 744 n.32 Federal Court of Justice [Criminal Matters], 27 BGHSt 336 (1978), 798 n.69 Federal Court of Justice [Criminal Matters], 32 BGHSt 367 (1984), 798 n.69 Federal Court of Justice [Criminal Matters], 39 BGHSt 159 (1993), 798 n.69 Federal Administrative Court, 9 BVerwGE 78 (1959), 800 n.126 Federal Administrative Court, 23 Neue Juristische Wochenschrift (njw) 908 (1970), 808 n.61 Federal Administrative Court, 59 Neue Juristische Wochenschrift (njw) 1303 (2006), 815 n.46 II. Land Constitutional Courts Honecker Case (Berlin Constitutional Court, VerfGH 55/92, 20 Europäische Grundrechte Zeitschrift (EuGRZ) (1993), 372, 796 n.37 III. Imperial Courts Imperial Court of Justice, K. v. Dyke Board of Niedervieland, 9 RGZ 235 (1883), 727 n.17 Imperial Court of Justice [Civil Matters], 107 RGZ 377 (1924), 729 n.23

NON- GERMAN COURTS A. European Court of Human Rights Brüggemann and Scheuten v. Federal Republic of Germany, (1977) 3 E.H.R.R. 244, 796 n.47 Haidn v. Germany, Application no. 6587/04 (13 January 2011), 788 n.40 Leela Förderkreis ev v. Germany, (2009) 49 E.H.R.R. 117, 815 n.43 M. v. Germany, (2009) 51 E.H.R.R. 41, 788 n.36 van Kück v. Germany, (2003) 37 E.H.R.R. 51, 799 n.100

table of cases 845 von Hannover v. Germany, (2005) 40 E.H.R.R. 1, 809 nn.82–84 Zaunegger v. Germany, (2009) 50 E.H.R.R. 38, 821 n.147 B. European Court of Justice Badeck v. Hessischer Ministerpräsident, 2000 E.C.R. I-1875, 433, 803 n.181 Costa v. ENEL (Case 6/64), 1964 E.C.R. 585, 789 n.47 Kalanke v. Freie Hansestadt Bremen, 1995 E.C.R. I-3050, 433, 803 n.178, 804 n.184 Kreil v. Germany (Case 285/98), 2000 E.C.R. I-69, 433, 804 n.187 Marschall v. Land Nordrhein-Westfalen, 1997 E.C.R. I-6363, 433, 803 n.179, 804 n.184 Ministere Public v. Stoeckel, 1991 E.C.R. I-4047, 803 n.164 Nold v. Commission, 1974 E.C.R. 491, 332, 790 nn.55–56 C. United States Courts Abington School District v. Schempp, 374 U.S. 203 (1963), 816 n.53 Ashwander v. Tennessee Valley Authority, 29 U.S. 288 (1936), 34, 739 n.151 Baker v. Carr, 369 U.S. 186 (1962), 771 n.67 Barenblatt v. United States, 360 U.S. 109 (1959), 805 n.4 Bob Jones University v. United States, 461 U.S. 574 (1983), 75 Bush; Doe v., 323 F.3d 133 (1st Cir. 2003), 773 n.110 Bush v. Gore, 531 U.S. 98 (2000), 779 n.76 Butler; United States v., 297 U.S. 1 (1936), 749 n.89 Caesars World, Inc. v. Caesars-Palace.com, 112 F. Supp. 2d 502 (E.D. Va. 2000), 826 n.77 Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000), 773 n.110 Civil Rights Cases, 109 U.S. 3 (1883), 801 n.141 Cohen v. California, 403 U.S. 15 (1971), 453 Doe v. See name of opposing party Dorer v. Arel, 60 F. Supp. 2d 558 (E.D. Va. 1999), 826 n.77 Engel v. Vitale, 370 U.S. 421 (1962), 816 n.53 Estate of. See name of party

Ferguson v. Skrupa, 372 U.S. 725 (1963), 826 n.79 Furman v. Georgia, 408 U.S. 238 (1972), 795 n.18 Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), 759 n.63 Goldman v. Weinberger, 475 U.S. 503 (1986), 813 n.10 Goldwater v. Carter, 444 U.S. 996 (1979), 830 n.152 Gregg v. Georgia, 428 U.S. 153 (1976), 795 n.18 Hamdi v. Rumsfeld, 542 U.S. 507 (2004), 770 n.56 Harrods v. Sixty Internet Domain Names, 302 F.3d 214 (4th Cir. 2002), 826 n.77 Hustler Magazine v. Falwell, 485 U.S. 46 (1988), 468 Immigration and Naturalization Ser vice v. Chadha, 462 U.S. 919 (1983), 162, 767 n.23 Kremen v. Cohen, 337 F.3d 1024 (9th Cir. 2003), 826 n.77 Lochner v. New York, 198 U.S. 45 (1905), 659 Marbury v. Madison, 1 Cranch 137 (1803), 10, 85, 86, 197, 728 n.22, 746 n.56, 751 n.123, 755 n.8, 767 n.19, 770 n.62 McGowan v. Maryland, 366 U.S. 420 (1961), 801 n.143 Medellín v. Texas, 552 U.S. 491 (2008), 787 nn.26–27 Memoirs v. Massachusetts, 383 U.S. 413 (1966), 812 n.150 Michael H. v. Gerald D., 491 U.S. 110 (1989), 613 Missouri v. Holland, 252 U.S. 416 (1920), 125 National League of Cities v. Usery, 426 U.S. 833 (1976), 109 Network Solutions v. Umbro, 529 S.E.2d 80 (Va. 2000), 826 n.77 New York Times v. Sullivan, 376 U.S. 254 (1964), 809 n.77 Nixon; United States v., 418 U.S. 683 (1974), 162 O’Brien; United States v., 391 U.S. 367 (1968), 807 n.41 Padilla v. Hanft , 126 S. Ct. 1649 (2006), 773 n.110 Palko v. Connecticut, 302 U.S. 319 (1937), 74 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 883 (1992), 394

846 table of cases Roe v. Wade, 410 U.S. 113 (1973), 374, 384, 394 Terminiello v. City of Chicago, 337 U.S. 1 (1949), 786 n.3 Texas v. Johnson, 491 U.S. 397 (1989), 529 Thornton, Estate of v. Caldor, Inc., 472 U.S. 703 (1985), 813 n.10 Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969), 807 n.42

United States v. See name of opposing party Vance v. Terrayas, 444 U.S. 252 (1980), 75 Wallace v. Jaff ree, 472 U.S. 38 (1985), 816 n.53 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), 162, 767 n.23 Zurakov v. Register.com, 304 A.D.2d 176 (N.Y. App. Div. 2003), 826 n.77

Index ∂ Tables are indicated by t following the page number. Abduction: of Hanns-Martin Schleyer, 394; hostages, negotiating for, 197– 98 Abitur (traditional college preparatory diploma), 678– 79 Abortion cases, 60, 75, 114–15, 373– 94; Abortion Reform Act of 1974, 374, 384–85; after reunification, 385–86; Bavarian physicians challenging regulations of abortion practice, 393– 94, 675; compared to U.S. cases, 374, 384, 394; counseling model of statute, 386, 393; criminalization of fi rst trimester abortions, 373–84; national health system fi nancing of, 393; Pregnancy and Family Assistance Act, 386, 387, 392 Absentee balloting, 265– 69 Abstract judicial review: abortion case, 374; Bundesrat veto rights, 116; consideration of, 33; contested elections, 265; fi nance equalization, 100; foreign affairs, judicial restraint in, 196– 97; judicial interpretive supremacy, 47; Key Date Case and property restitution, 698; oral arguments in, 15, 27; procedure, 35, 38; religious instruction in public schools, 589; same-sex marriage, 607; universal conscription, 552 Academic freedom, 519–36. See also Artistic and academic freedom Academic literature as source, 73 Academy of Science (East Germany), 704 Act Approving the Treaty of Lisbon, 345 Act Extending and Strengthening the Rights of the Bundestag and the Bundesrat in Eu ropean Union Matters, 345, 349 Act on the Dissemination of Publications Harmful to Young People, 497, 523–24, 525 Act to Control and Restrict Immigration and to Regulate the Residence and

Integration of eu Citizens and Foreigners (Immigration Act of 2002), 110–14 Adenauer, Konrad, 90, 153, 190, 201, 204, 290, 510 Administrative federalism, 104–5, 114–15, 120 Administrative lawmaking, 176– 77 Admissibility, question of, for hearing initial constitutional complaints, 20 Admonitory decisions (Appellentscheidungen), 36 Advertising: commercial speech, 460, 498– 99; physicians restricted to advertising only one specialty, 676; public vs. private broadcasting, 517–18 Affi rmative action, 431–33 Afghan istan, 207 Agenda 2010, 156, 161 Age restrictions on professions, 426, 671, 676 aids, 499 Airborne Warning and Control System (awacs), 201–5, 207–14 Aircraft Noise Act of 1971, 172– 74 Alexy, Robert, 66 Allgäu Regional Court, 525 Alliance 90, 255 Allied High Commission, 190– 91 Al- Qaeda, 207 Alternative ser vice, 551–53 “Der anachronistische Zug oder Freiheit und Democracy” (The Anachronistic Parade or Freedom and Democracy, Brecht), 525 Ancillary constitutional issues, 34 Animal Protection Act, 182–84, 556– 61, 675– 76 Animal Protection Commission, 182 Anthroposophy, 577 Antidemocratic policies. See Militant democracy

848 index Anti-Semitism, 294 Appellate courts, 3, 54 Appropriation of property. See Expropriation of property Army, German. See Military Arrest warrants, Eu ropean Arrest Warrant Act, 340–42 Art Copyright Act, 488 Artistic and academic freedom, 519–36; ban on novel’s publication, 358– 61, 461; flag desecration, 529–30; governing bodies of institutions of higher education, 531–35; history of academic freedom, 535–36; national anthem, 530; political satire as art, 465– 67, 529–30; pornography, 523–29 Assembly right, 499–502 Assignment of case, fcc, 26–27 Associational rights. See Occupational and associational rights Association of German Judges, 6 Associations: religious, 561; right to form, 51, 662, 663 Asylum Seekers Benefits Act of 1993 (Asylbewerberleistungsgesetz), 426–27 Atomic consensus, 148–49 Atomic energy. See Nuclear energy Atomic Energy Act, 177–81 Atomic weapons deployment, 195, 198–200 Atomic weapons referenda, 94– 95, 124–25 Attorneys: bar association regulation limited admission to Higher Regional Court, 677; confl ict of interest, 676– 77; disbarment of East German attorneys who collaborated with Stasi, 707–10; licensing, 671 Auschwitz Hoax, 493– 98 Austrian Constitutional Court, 7 Authority: division between federation and Länder, 120–37; implied-powers provision, 125; judicial vs. legislative, 164–75; legitimacy and moral authority of FCC, 38; Parliament’s authority to expropriate or regulate property, 638–50 Authorship of fcc decisions, 28–29 Autonomy: of churches, 595– 600; of individuals, 362, 670

Aviation: delegation of responsibilities by federation, 123; privatization of, 122, 627; security, 396– 98, 416 Aviation Security Act of 2005, 396 awacs (Airborne Warning and Control System) aircraft, 201–5, 207–14 Baden, 81–87 Baden-Württemberg: cdu using spd’s Eppler statements in campaign, 406–8; Christian interdenominational schools, 572–75; Church Tax Act, 591; Green Party in state parliamentary elections, 226; smoking bans, exemptions from, 674; State Media Act, 517–18; territorial reorga nization, 87 Badura, Peter, 73 Bahá’í religious community, 561 Balancing rights in constitutional interpretation, 66– 67. See also Equality; Freedom of speech and press Ballots, absentee, 265– 69 Banana market regulation, 69, 340 Banking industry, 627 Barendt, Eric, 460 Basic Law: Constitutional Court’s jurisdiction, 10; constitutional theory, 55–59; Eu rope Article (Article 23), 333; free democratic order under, 2; history, 1; international law and, 302–19; interpretation of, 42–76; judicial review, 3, 4; new constitutionalism of, 43–48; objective order of values, 57–58, 171; polity, nature of, 48–55; Preamble, 302, 685; proposed amendment to adopt plebiscitary devices at national level, 237; reunification and, 686; sources of interpretation, 70–75; state and morality, 45–46; state orga nization, 53–55; structural unity of, 56–57, 63; supremacy of, 46–48; unconstitutional constitutional amendments, 58–59 Basic rights. See Human dignity and basic rights Basic Treaty between East Germany and West Germany, 196 Bavaria: abortion regulations, 393– 94, 675; Administrative Court, 577; crucifi x in school classroom, 577, 585; Higher

index 849 Administrative Court, 577; labor court, 665; territorial reorga nization, 87 Bavarian Apothecary Act, 666–70 Bavarian Constitution, 6, 7 Bavarian Party, 254 Bayer Pharmaceutical Company, 498 Benda, Ernst, 411–12, 415, 469 Benetton, 499 Berlin-Brandenburg: ethics instruction in public schools, 589; merger of, 80–81 Berlin smoking bans, exemptions from, 674 Berlin Wall, 303 Bernstein, Herbert, 507–8 Biblis-A nuclear power plant, 148–50 Bickel, Alexander, 68 “Bill of rights,” 44–45, 331, 355. See also Human dignity and basic rights Binding effect rule, 37 Bismarck’s Kulturkampf against Catholic Church, 540 Black, Hugo, 442 Blair, Philip, 80, 94, 128 Blinkfüer (pro-communist weekly), 454–58 Blood transfusions refused on religious grounds, 544 Böckenförde, Ernst-Wolfgang, 49, 65, 73, 75, 204, 226, 237, 392– 93, 552 Böll, Heinrich, 485, 522 Bonn Constitution. See Basic Law Boom, Steve, 339 Bosnia-Herzegovina, 202–3 Boycotts, 442–43, 454 Brandeis, Louis, 215 Brandenburg and Berlin, merger of, 80–81 Brandenburg Higher Education Act, 536 Brandenburg School Act, 588–89 Brandt, Willy, 154–55, 196, 304 Brecht, Bertolt, 525 Bremen: preference for women in civil ser vice hiring, 433; statute requiring all employed persons to join Chamber of Workers, 664 Bremen Clause and secular ethics instruction, 576, 589– 90 Bremen Evangelical Church, 597 Brenner, Michael, 217, 247 Brinkman, Karl, 73

Broadcasting: dual broadcasting system, 516–18; Inter-State Broadcast Treaty of 1991, 517; legislative authority over, 123, 354; national television station, 510–13; nonpolitical and information-oriented broadcast system, 518; radio stations, privately owned, 514–16; remuneration of authors by schools for multiple broadcasts, 654–55; rights and responsibilities of, 508; speech clauses vs. personal interests, 479–83. See also Television Brokdorf demonstration against nuclear power plant, 500 Bryde, Brun- Otto, 674–75 Budget: amendment of Basic Law on, 96; Eu ropean authority over German budget, 351; executive-legislative relations and, 163– 64 Bundesrat: consent power, 114–20, 122; Constitutional Court members, election of, 23–24; enlargement of power of, 119–20; foreign policy, role in, 119; gridlock in, 114–15; lawmaking, 154; reform of German federalism and, 118–20, 122; representation in, 54; treaty-making powers, 309; veto power of, 114, 119; voting in, 110–20 Bundestag: chancellor’s position, 53; Committee on the Eu ropean Union, 190; Constitutional Court members, election of, 23; foreign affairs powers, 193; Judicial Selection Committee, 23–24; lawmaking, 154; military deployment, approval of, 209; nato Kosovo campaign, agreement to, 206; nato Treaty approval, 194; Rules of Procedure, 228; treaty-making powers, 195, 309 Business practice regulations, 675–77 Cabinet, power over foreign affairs, 190 “Cable Penny Case,” 518 Calvin, John, 549 Campaign broadcasting restrictions, 292 Campaign spending and fi nancing, 218, 269–84 Campenhausen, Axel von, 73 Candymaker’s occupational rights, 671, 672– 73

850 index Cardozo, Benjamin N., 55, 74 Caroline, Princess of Monaco, 486– 92 Carstens, Karl, 161 Case assignment in fcc procedures, 26–27 Caseload, FCC, 29–33, 31t Casper, Gerhard, 41, 162 Catholic Church: Bismarck’s Kulturkampf against, 540; concordat with Holy See, 125–28; corporate status, 562; German membership in, 540, 554 cdu. See Christian Democratic Union Celle Higher Regional Court, 478 Censorship. See Freedom of speech and press Census information, collection of, 356–57, 408–11, 459 Chamber of Workers, 664 Chancellor: Basic Law on power of, 77; election of, 154–55; foreign affairs power, 190; in state organ izational hierarchy, 53 “Chancellor democracy,” 153 Charter of Fundamental Rights (eu), 344 Chickens, Regulation for Keeping (1987), 182–84 Child allowance system payments to working parents, 601 Child benefit allowance to unmarried parents, 601 Child care, insurance coverage when childless couples forced to pay for, 601 Child custody of illegitimate children, 612–13 Children deformed by Thalidomide, nullifying settlement agreements for, 640 Chocolate Products Act of 1975, 672– 73 Christian Democratic Union (cdu): on abortion issue, 374; on basic rights as “God-given,” 357; campaign use of spd’s Eppler statements, 406–8; coalition with fdp under Kohl, 154; coalition with Social Democrats under Merkel, 120; Hessen state elections review (1997), 265; judicial selection, 24; as majority in Bundesrat, 114; parental rights, 539; in Parliamentary Council (1948–49), 9, 270; scandal investigation (2002), 218; on social state (Sozialstaat), 50; street theater derisive of, 525–29; 2005 federal election and inverse electoral effect, 248

Christian-natural law. See Natural-law theory Christian Social Union (csu), campaign speech of SPD candidate denouncing, 462– 64 Church: autonomy, 595– 600; public school instruction, church-state relations, 571–75. See also Religion and religious freedom Church music, copyright issues, 655 Church tax, 590– 95 Cicero (political magazine), 509–10 Cigarette manufacturers and tobacco warning labels, 498, 674 Citation Requirement (Zitiergebot), 181 Citizenship, jus sanquinis, 268 City-states, 51 Civil Partnership Act of 2001, 606–11 Civil servants. See Public employees Clergy in public office, 597 Coal and iron industries, Investment Aid Act for, 624–26 Codetermination Act of 1951, 627 Codetermination Act of 1976, 627, 659– 63 Coercion: demonstration as, 501; economic coercion and free speech rights, 454–57; prenuptial agreements and, 612 Cold War, 302–3, 414 Collaboration charges as defamation, 477 Colleges and universities. See Higher education Cologne Higher Regional Court, 485 Comity doctrine, 71, 78, 90– 95 Commerce clause (U.S.), 109 Commission of the Eu ropean Community, 331 Committees: fcc procedures, 20. See also Parliamentary committees Common-law judging, 55, 66 Common-law precedent, 55 Communist Federation of West Germany, 293 Communist Party of Germany (kpd), 16, 286, 290– 92, 293 Communist Voters’ League, 291 Community and organic association of persons, 362 Competing judicial visions in constitutional interpretation, 64– 66

index 851 Complaints, constitutional. See Constitutional complaints Computer information, confidentiality rights against exploratory online searches, 417 Computer voting, 249 Conceptual jurisprudence, tradition of (Begriff sjurisprudenz), 55–56 Concordats, 595. See also specific concordat by subject matter Concrete judicial review, 11t, 13, 553, 613, 660 Concurrent jurisdiction of federation and Länder, 121, 122–23 Concurrent legislation, essentiality of, 131–37, 143 Conferences, fcc, 28–29 Confessional schools, 125–28, 576 Confidentiality: Der Spiegel disclosure of state and military secrets, 503–7, 509; executive, 163; government reports, 459; market research report of private company, 459; security issues and confidential computer information, 417. See also Invasion of privacy Confl ict of interest of attorneys, 676–77 Confl icts, federal-state. See Federal-state relationship Conradt, David, 118–19 Conscientious objectors, 114, 115, 476, 550–53 Constitution, German. See Basic Law Constitution, U.S.: Article I, Section 5, 264; commerce clause, 109; equal protection clause, 420; establishment clause, 588; Fift h Amendment, 355, 373; First Amendment, 441, 442; Fourteenth Amendment, 355, 373, 421; jurisdiction over constitutional validity, 10; limited grounds for judicial review under, 47; minimum rationality analysis, 67; necessary and proper clause, 125; right under, 60; separation of church and state, 539; strict scrutiny, 67; Tenth Amendment, 109, 129. See also Due process clause; Supreme Court, U.S. Constitutional complaints: BadenWürttemberg’s establishment of Christian interdenominational schools, 572; ban on Mephisto book distribution, 358;

board representation of employees in large fi rms, 660; campaign speech and heightened scrutiny, 462; consumer protection legislation, 672; Eppler seeking injunction of cdu use of his alleged remarks, 406; fi nes for abuse of procedure, 21; free speech rights, 443; intrasenate chamber system, 20; invasion of privacy of semipublic figure, 486; Lisbon Treaty, 344; magazine challenge to treason complaint and search and arrest warrants, 504; Muslim ritual slaughter, 557; newspaper distribution and free speech rights, 455, 458; pharmacists, restrictions on licensing, 666; procedure, 11–13, 11t, 31; religious youth association and undisturbed practice of religion, 540–43; smoking bans, exemptions from, 674; sources of, 31, 32t Constitutional interpretation, 55– 73; academic literature as source, 73; common understanding of words and terms, 70–71; competing judicial visions, 64– 66; historical materials as source, 71–72; international and comparative materials as source, 73– 75; judicial precedent as source, 72–73; modes and techniques, 62– 69; objective order of values, 57–58, 171; optimization and balancing rights, 66– 67; passive virtues, 68– 69; practical concordance, 67– 68; principle of proportionality, 67; sources of interpretation, 70– 75; standard interpretive approaches, 63– 64; structural unity of Basic Law, 56–57, 63; theories of the constitution, 55–59; unwritten principles as source, 70; written text as source, 70– 71 Constitutional questions, fcc jurisdiction over, 3 Constitutional review, 4–5 Constitutional state (Rechtsstaat), 48–49, 405, 622–23, 639 Constitutional theory, 55–59 Constitution of 1867, 4 Consular rights, 318 Consumer protection legislation, 671, 672– 73

852 index Cooperative federalism, 95, 138–43 Coordination theory, 596 Copyright law, 651–56 Core functions doctrine (Kernbereich theory), 105, 108– 9 Co-responsibility, theory of, 114, 118 Corporations, religious bodies as, 561– 62 Corporation Tax Code, 281 Council of the Eu ropean Economic Community Directive 86/113, 182 Council of the Eu ropean Union, 344 Courtrooms. See Trial courts Courts. See specific courts Criminal procedure: Code of Criminal Procedure (Strafprozessordnung), 418, 546; criminal defendant’s right to freedom of expression, 476; new trials when defendant was convicted under subsequently voided statute, 37; polygraph use, 363; preventive detention, 324–25; sentencing in drug cases, 400 Crucifi x display: courtroom, 545; public schools, 68, 577–85 Cuius regio, eius religio, 539 Cults and sects, 554–55 Currency: change from Mark to Euro, 340; reunification and, 686 Customary international law, 311–19 Cybersquatting, 656 Daimler-Benz, 162– 63 Damages: expropriation of property, 645; invasion of privacy, 412; judicial award when not in statutory law, 165– 68, 170; punitive damages sought against German company by U.S. plaintiff, freedom-ofaction claim, 405 Danish Minority Party in SchleswigHolstein, 254–55 Darkazanli, Mamoun, 341 Data stockpiling in fight against terrorism, 417–18 Death penalty cases (U.S.) and foreign nationals’ consular rights, 318 Decisions, form and effect of, 35–38, 36t Declaratory rulings, 37–38 Defamation. See Libel and defamation

Defense, national. See Military; Security Dehler, Thomas, 17 Delegation of legislative power, 175–89 Democracy, 77, 216–301; defi nition of, 216; elections and voting, 238– 69; legislative committees, 228–33; Lisbon Treaty and, 344; majority party, limitations on, 233–37; militant, 52, 57, 269, 285–300, 663; minority party rights, 222–28; parliamentary, 216–37; parliamentary ossification and lack of creativity, 237; party state and political spending, 269–84; political spending, 269–84. See also Elections and voting Democratic state (Demokratieprinzip), 51–52, 339, 345, 349. See also Democracy Democratic theory, 62 Demonstrations and right to assemble, 499–502 Deportation, protests at airport against, 501–2 Deputies, parliamentary, 228, 231, 243 Der Spiegel disclosure of state and military secrets by, 503– 7, 509 Desertion from military, 553 d’Estaing, Valéry Giscard, 343 Deutsches Network Information Center (denic), 656 Deutschland Magazine, 462, 484 Di Fabio, Udo, 29, 149, 587 Dikes and Embankments Act of 1964, 631 din standards, 655–56 Disability classifications, 435–39 Discrimination. See Equality Disloyalty: public employees, ban on, 434; speech rights and government employees, 476; teachers engaging in disloyal speech, 449 Disparaging questions case, 478–79 Disputes between federal organs, 11t, 14–15, 32 Dissolution and vote of no confidence, 154– 62. See also Vote of no confidence Districting for voting, 249–52 Divorce, 412, 611–12 dna paternity testing, 413 Doctor-assisted suicide or euthanasia, 398 Doctors. See Physicians

index 853 Documentary evidence, parliamentary committee’s right to, 163 Dogs, breeding of dangerous breeds, 136–37 Drug cases, sentencing in, 400 Due process clause, 69, 355 Durham, W. Cole, 60, 571 Dürig, Günter, 73 Düsseldorf: Administrative Court, crucifi x in courtroom, 545; Higher Regional Court, 546; Regional Court, 540, 546 ealg (Entschädigungs-und Ausgleichsleistungsgesetz or Compensation and Equalization Payments Act), 695– 96, 702 East Germans. See German Democratic Republic East-West Basic Treaty, 303– 9 ECtHR. See Eu ropean Court of Human Rights Economic coercion and free speech rights, 454–57 Economic recovery of West Germany, 292 Economic Stabilization Act of 1967, 627, 659 Economic system, 622–712; governmental responsibility for, 626–27; Investment Aid Act, 624–26; nature of, 623–30; neutrality doctrine and, 628, 659; reunification and, 685–711; social market economy, 622; state-operated commercial activities, 626–28; Volkswagen and super majority voting requirement, 628–30. See also Property rights Education. See Confessional schools; Higher education; Public schools eec. See Eu ropean Economic Community efsf (Eu ropean Financial Stability Facility), 351 Ehard, Hans, 7 Election Review Act, 265 Elections and voting, 238– 69; absentee balloting, 265– 69; Article 21, 269–71, 278, 286, 290, 291, 293– 94, 299–300; Article 38, 338; Article 41 cases, 264; contested elections, 263– 65; denial of suff rage to German nationals working as civil servants for EU outside Germany, 266; direct election, 252–54; districting, 249–52; Eu ropean Parliament elections,

263; foreign resident aliens’ right to vote in municipal elections, 266– 68; foreign resident voting, 269; Hamburg’s constitution on voting rights of resident aliens, 269; Maastricht Treaty, 238–42, 269; minimum threshold of electoral success, 254– 63; mixed member-proportional system, 242–43, 247; overhang mandates, 243–48; party state and political spending, 269–84; political contributions, 269–84; rules governing elections, 242; Th ree Direct Constituencies Clause (Grundmandatsklausel), 259– 63; 2005 federal election and inverse electoral effect, 248–49; voting computers used in 2005 election, 249 Electronic monitoring of the home, 415–16 Electronic voting, 249 Embassies, jurisdiction issues, 312–16 Emergency price control, 182 Employment and labor: board representation of employees in large fi rms, 660– 63; Bremen statute requiring all employed persons to join Chamber of Workers, 664; Fair Employment Act of 1980, 428, 432; gender equality, 428–31; labor rights, 663– 65; lockout of employees, 664; machinists, gender equality issues, 432; maternity leave, 431, 704; occupational rights, 659–85; retirement and gender equality issues, 432; strikes, 664, 665; working hours of women, 430; Works Constitution Act of 1972, 660, 665; Works Council Act, 665. See also Public employees Employment Promotion Act of 1985, 627 End-of-life decision making, 398 Engineer Act, 130–31 England, fcc reliance on cases from, 75 Enlightenment, 539–40 Environmental pollution, 398 Environmental protection, 634, 675 Environment and Peace Task Force (eptf), 478 Eppler, Erhard, 406–8 Equality, 354, 355, 419–39; asylum seekers, 426–27; causation standard, 434; disability classifications, 435–39;

854 index Equality (continued) elections, 243–52; equal protection analysis, 420–25; gender discrimination, 427–33; heightened judicial review, 421, 435; political party funding and, 273–78, 281–82; proportionality principle and, 425–27; public entities and, 420; rationality approach, 421; suspect classifications, 433–35 Equal protection clauses, 420 Equal Treatment Directive, 433 Esra (novel), 361 Ethical theory, 361– 62 Ethics instruction in public schools, 576, 589– 90 Euro, implementation of, 340 Eu ropean Arrest Warrant Act, 340–42 Eu ropean Arrest Warrant and Surrender Procedure, 340–43 Eu ropean Commission on Human Rights on abortion issues, 384 Eu ropean Community: concrete judicial review proceedings, 69; fundamental rights and, 326; gender equality directives, 428. See also Maastricht Treaty Eu ropean Convention for the Protection of Animals Kept for Farming Purposes, 182, 184 Eu ropean Convention on Human Rights, 74, 197, 310, 324–25, 332, 344; invasion of privacy of semipublic figure, 491; joint child custody when parents unwed, 613; Osho association’s rights, 555; religious freedom, limitations in interest of public order, 587 Eu ropean Court of Human Rights (ECtHR): dualism of decisions, 310, 311, 319–25; as interpretive aid for domestic courts, 74, 78; invasion of privacy of semipublic figure, 491– 92; judicial activism of, 339; Osho association’s rights, 554–55; on preventive detention, 371–72 Eu ropean Court of Justice: Constitutional Court’s relationship with, 327; Eu ropean arrest warrants, 341–42; on fundamental rights, 335; on gender discrimination in employment, 430, 432–33; identity reviews by Constitutional Court, 349; as

interpretive aid for domestic courts, 78; on property rights, 332; subsidiarity principle, 123, 344; Volkswagen and super majority voting requirement, 628 Eu ropean Defense Community, 201 Eu ropean Economic Community (eec), 191; Council of the Eu ropean Economic Community Directive 86/113, 182; Treaty of Rome, 331 Eu ropean Financial Stability Facility (efsf), 351 Eu ropean integration, 326–27, 338, 343, 350 Eu ropean law, 325–52 Eu ropean Monetary Union, 351 Eu ropean Parliament: elections, 263; role in Eu ropean Community lawmaking, 327, 331 Eu ropean Union (eu): Charter of Fundamental Rights, 344; comity, 71; Council of the Eu ropean Union, 344; currency, change to Euro, 340; directive requiring data stockpiling in fight against terrorism, 417–18; Germany’s participation in, 27; sovereign debt crisis, 350–51; third pillar policies, 341–42. See also Lisbon Treaty; Maastricht Treaty Euthanasia, 398 Evangelical Church, 554, 597 Eviction and tenant’s right of occupancy, 635–41 Evidence: documentary, 163; executive privilege to withhold, 218 Executive discretion: separation of powers, 153; treaty-making power, 190–205 Executive-legislative relations, 72, 153– 64; budget and, 163– 64; executive privilege, 162– 63; lawmaking, 153–54; Parliament’s right to seek and obtain information from executive government, 162– 63; vote of no confidence and power of dissolution, 154– 62 Executive privilege, 162– 63 Experiment exception to patent law, 656–59 Expression. See Freedom of speech and press Expropriation of property, 638–50; groundwater, property owner’s right to dispose of, 640–45; monetary “equalization,” 645; Monument Protection and Care Act,

index 855 645–50; reunification and East German property, 688; “threshold theory” (Schwellentheorie), 645 Extradition, 341 Fair Employment Act of 1980, 428, 432 Fair Trade and Competition Act of 1957, 659 False no-confidence votes, 155 Falwell, Jerry, 468 Family Reform Act of 1998, 612–13 Family rights, 539, 612–20; biological father and paternity rights, 613–18; child allowance system payments to working parents, 601; maternity leave, 431, 704; parental rights and responsibilities, 612–18; personality clause and, 612; sex education and parental rights, 618–20. See also Marriage Fanny Hill (novel), 524 fcc. See Federal Constitutional Court fcca. See Federal Constitutional Court Act fdp. See Free Democratic Party Federal Administrative Court (Bundesverwaltungsgericht): expropriation of property, 645; in federal court system, 3; Hamburg protective declaration on Church of Scientology, 555–56; judicial review, 327; party fi nance, 284; pornographic novel ban, 524; property cases, 638; school prayers in North Rhine– Westphalia denominational school, 567; shop closing hours, 678 Federal Census Act of 1983, 408–11 Federal comity. See Comity doctrine Federal Constitutional Court (fcc), 3–41; authority of, 54; authorship of decisions, 28–29; case assignment, 26–27; caseload and impact, 29–33, 31t; committees/ chambers, 20, 35; concrete judicial review, 11t, 13; conferences, 28–29; creation of, 1; decision-making procedure, 25–26; dissenting opinions, 503; draft ing opinions, 28; internal administration, 25; intrasenate chamber system, 20–22; judgments, 26; judicial removal, 26; jurisdiction, 8–16; leadership of presiding justice, 28; legislative debate over creation of, 9–10; legitimacy and

moral authority of, 38; machinery of judicial selection, 23; number of justices, 19; open defi ance of ruling of, 584; oral arguments, 26, 27–28; orders or rulings, 26; plenum, 19–20; publication of decisions, 26; qualifications and tenure, 22–24, 39; rapporteur’s role, 27, 28; Rules of Procedure, 25–26; secret deliberations, 26; specific issues, 10–16, 11t; split decisions, 503; status and prestige, 17–18, 39; temporary injunctions, 11t, 13–14; two-senate structure, 18–20; unconstitutional parties, 11t, 16; Votum, 27, 28; women justices, 24 Federal Constitutional Court Act (fcca): constitutional complaints, admission of, 12, 20; decision-making procedure, 25; fi nes for abuse of constitutional complaint procedure, 21; judicial selection process, 23; jurisdiction, 10; passage of, 9; qualifications and tenure of justices, 22–24; split decisions, 503; temporary injunctions, 14; two-senate structure, 19; unconstitutional parties, 16 Federal Council of States. See Bundesrat Federal Court of Justice (Bundesgerichtshof): commercial speech and freedom of press, 499; consumer protection legislation, 672; defamation cases, 477, 485; East German criminal court judges, license revocation, 711; equality principle, 420; experiment exception to patent law, 656–59; expropriation of property, 645; in federal court system, 3; freedom of art vs. human dignity, 358; free press, 503; groundwater rights and Water Resources Act, 641; invasion of privacy of semipublic figure, 486; as last court of appeal, 54; pornographic literature, 524; property cases, 638; tort liability, 170, 171 Federal Criminal Police memorandum, 509 Federal Election Act, 242, 243, 248, 252, 253, 259, 265– 66 Federal Finance and Economics Ministry, 162, 163 Federal Finance Court, 3 Federal Intelligence Ser vice (Bundesnachrichtendienst), 414

856 index Federalism, 77– 78, 79–151; arbitrating federal-state relationship, 128–32; Bundesrat, voting in, 110–20; comity doctrine, 90– 95; concurrent legislation, essentiality of, 121, 122–23, 131–37; cooperative, 95, 138–43; division of legislative power, 120–37; homogeneity, principle of, 88– 90; implementation of federal law, 143–50; judicial review, 131–37; jurisprudence of, 123–24; local self-government, 104– 9; nature of, 87–88; reform of, 118–20, 122–23, 131–32, 143, 144; revenue apportionment and distribution, 95–104; states’ legislative powers, 125–28; territorial orga nization, 80– 90. See also Administrative federalism Federalist Papers, influence of, 5 Federal Labor Court (Bundesarbeitsgericht), 3, 599, 665 Federal Law Gazette, 26 Federal Ministry of Justice, 9 Federal Nuclear Energy Act, 145–48 Federal organs, disputes between. See Organstreit proceedings Federal Penal Enforcement Act, 370 Federal Republic of Germany (West Germany): East-West Basic Treaty, 303– 9; Paris Trade Agreement (1950), 193; property rights, 687. See also Reunification Federal Social Assistance Act, 50 Federal Social Court (Bundessozialgericht), 3 Federal state (Bundesstaat), 50–51, 88. See also Federalism Federal-state relationship: arbitrating, 128–32; confl icts, 11t, 15–16, 32, 152; cooperation, 123, 143 Federal Waste Disposal Act of 1972, 109 Federal Water Resources Act of 1976, 641 Fichte, Johann Gottlieb, 56 Fift h Act for the Amendment of the Higher Education Framework Law, 139, 140 Fighting words, 453–54 Film Importation Act of 1961, 459 Finance Court, 104, 591 Finance equalization. See Taxation Financial constitution (Finanzverfassung), 79, 96, 99, 120. See also Taxation

Financial Equalization Act, 100–103 Firefighters, gender restrictions for, 431 First Senate, 18–20; constitutional complaints handled by, 32, 32t Fischer, Joschka, 205, 226, 294, 343 5 percent minimum threshold rule, 254–59, 262 Flag desecration, 529–30 Fletcher, George, 362, 637–38 Flick Corporation, 162– 63, 283 Flood control, 631–34 Foreign affairs, 189–214; distribution of foreign affairs powers, 122, 189– 90; executive discretion, parliamentary consent, and treaty-making power, 190–205; Iraq War, 207–14; treaty-making power, 200–214 Foreign nationals: death penalty (U.S.), 318; right to vote in Germany, 266– 69 Formal questions to government (kleinen Anfragen), 227 Framework jurisdiction, 123 France: Eu ropean Defense Community and, 201; fcc reliance on cases from, 75; working women’s rights in, 430, 432–33 Frankfurt Airport demonstration, 501–2 Frankfurt Constitution of 1849, 4, 6, 71, 105, 419, 519, 535 Frankfurt Higher Regional Court, 369 Frankfurt’s Römer art forum, 454 Free Democratic Party (fdp), 17, 24, 154, 208, 226, 234, 357 Freedom of action (Handlungsfreiheit), 400–405; horseback riding restrictions, 404–5; hunting license testing, 404; passport denial case, 401–4; punitive damages sought against German company by U.S. plaintiff, 405 Freedom of economic association, 663– 64 Freedom of information, 458– 60; opinion vs., 459– 60; state security and, 458–59 Freedom of religion. See Religion and religious freedom Freedom of speech and press, 354, 441–537; assembly right and, 499–502; balancing against other private interests (Lüth), 60– 61, 66, 74, 442–53, 461, 507; balancing against personality, 484– 92; balancing

index 857 test’s perils, 507–8; broadcasting, 510–18; commercial speech, 460, 498– 99; counterattack (Gegenschlag) theory of speech, 453–54; criminal defendant’s right to free speech, 476; criminal libel statute used against press, 450–53; disparaging questions case, 478–79; fighting words, 453–54; freedom of information, 457– 60; free press, overview of, 502–3, 508; heightened judicial scrutiny, 460, 461, 462, 464– 69, 484; Holocaust denial, 493– 98; journalistic sources, protection of, 509–10; liberty vs. dignity, 467– 75; mosaic theory of treason, 507; objective value of, 58; opinion vs. information, 459– 60; political opinion, 462– 64; prior censorship, 459; public person in semipublic settings, 479–84; rationality and proportionality, 460, 461; reputational interests and offensive speech, 460–79; right to personality vs., 461, 465, 478, 479, 480, 485; “soldiers are potential murderers,” 468– 76. See also Artistic and academic freedom; Libel and defamation Free German Workers Party, 16 Freier Rundfunk ag (fr ag—Free Broadcasting, Inc.), 514–16 Friauf, Karl Heinrich, 48, 63, 64 Friedrich Ebert Foundation, 279 Friedrich Naumann Foundation, 279 Friesenhahn, Ernst, 64 Fromme, Friedrich Karl, 585 Fundamental rights. See Human dignity and basic rights Gaier, Reinhard, 361 Garden plot leases, 639 Gender change. See Transsexuals Gender discrimination, 354, 427–33; Eu ropean Court of Justice on, 430, 432–33; fi refighters, 431; machinists, 432; maternity leave, 431, 704; public employees, 432; retirement and, 432; working hours of women, 430 General Register’s Office, 30 Genscher, Hans-Dieter, 202 Geriatric Nursing Act, 132–37, 139, 142

German Civil Code (Bürgerliches Gesetzbuch), 316 German Code of Civil Procedure (Zivilprozessordnung), 316 German Communist Party. See Communist Party of Germany (kpd) German Confederation of 1815, 4 German Democratic Republic (East Germany), 303–4; abortion issues, 385; collaboration charges as defamation, 477; dismantling of bureaucracies of, 703–4; East-West Basic Treaty, 303– 9; former East Germans’ trust in fcc, 40; newspapers seizure, security risk to West Germany, 458–59; property rights, 687–88; travel restrictions on East Germans, 434; working hours of women, 430. See also Reunification German Imperial Court. See Imperial Court of Justice German Institute for Standardization (Deutsches Institut für Normung or din), 655–56 German Mark (Deutsche Mark), discontinuation of use of, 340 German Municipal Code, 107 German Postal Union, 665 German Press and Information Office, 234–37 German Press Council, 508– 9 German-Vatican Concordat of 1933, 576 Global fi nancial crisis of 2008, 627 Global positioning system (gps), 416 “God-given” right, human dignity viewed as, 357 Goebbels, Joseph, 285 Gorbachev, Mikhail, 694 Görgülü, Kazim, 319–25, 613 Government employees. See Public employees Great Recession of 2008– 9, 627 Greek rescue package (2011), 350–51 Green Party: after reunification, 255; challenge to Maastricht Treaty, 334; coalition with sdu under Schröder, 226; in Constitutional Court, 24; early success of, 237; exclusion from committees, 195, 223–26; on executive privilege, 163;

858 index Green Party (continued) Political Parties Act challenge, 280, 281; surveillance of members of, 227–28; on treaty-making powers of Bundestag, 195 Grimm, Dieter, 65, 343, 404–5, 584–85 Groundwater, property owner’s right to dispose of, 640–45 Gründgens, Gustaf, 358 G10 Act, 414–15 Gunlicks, Arthur, 104–5, 109, 110, 119, 122, 283 Guttenberg, Karl-Theodore zu, 553 Haas, Evelyn, 417, 470, 475, 581 Häberle, Peter, 40 Hague Convention on the Ser vice of Documents Abroad, 405 Hallstein Doctrine, 303 Hamburg: constitution on voting rights, 269; flood control, 631–34, 638; national television station, 510–13; protective declaration on Church of Scientology, 555–56; sex education, 618 Hamburg’s Regional Court, 443, 486, 660 Hamilton, Alexander, 55, 215 Hans Seidel Foundation, 279 Harlan, Veit, 61, 442–43, 449 Hartwig, Matthias, 311 Hazardous working conditions, 398 Heck, Philipp, 56 Heckel, Martin, 597 Hegel, Georg W.F., 45, 56 Helmreich, Ernst Christian, 577 Henkin, Louis, 66 Herrenchiemsee Conference, 7–8, 72, 357 Herzog, Roman, 29, 73, 386 Hess, Rudolf, 197 Hesse (Land): comprehensive school (Gesamtschule), 619; local referenda in, 89, 95; state elections, cdu victory review (1997), 265; tax on sale of nonreusable food and beverage containers, 675; territorial reorga nization, 87 Hesse, Konrad: on constitutional interpretation, 65, 68; on objective will thesis, 64; on separation of powers, 214–15; on unitary federal state, 88 Hesse’s Regional Administrative Court, 675

Hessian Judiciary Act of 1962, 186–89 Heun, Werner, 142 Higher education: Abitur (traditional college preparatory diploma), 678–79; academic decision making, 536; Brandenburg Higher Education Act, 536; concurrent jurisdiction of federation and Länder, 121; governing bodies of, 531–35; history of academic freedom, 535–36; Lower Saxony system of governance, 531–35; numerus clausus limiting admissions to field of study, 60, 679–84; postwar reform, 678; professors, appointment of, 139–41; teaching outside of academic field, 536; tuition to state institutions, 141–42; university admission, judicial review, 684–85. See also Artistic and academic freedom Higher Education Framework Act, 139–41 Hirsch, Martin, 75, 552 Historical materials as source, 71– 72 Historical structures, Monument Protection and Care Act, 645–50 hiv/aids, 499 Hoff mann-Riem, Wolfgang, 162, 361, 658 Hohmann-Denhardt, Christine, 361, 415 Holmes, Oliver Wendell, 55, 659 Holocaust denial, 493– 98 Holy Roman Empire, 4 Homogeneity, principle of, 88– 90 Honecker, Erich, 309, 372, 700 Höpker-Aschoff, Hermann, 17 Horizontal effect doctrine, 60– 61, 171, 449 Horseback riding restrictions, 404–5 Hostages, negotiating for, 197– 98 Hours: business regulation, 671; Shop Closing Act, 677–78; working hours of women, 430 Human dignity and basic rights, 355–440; in Basic Law, 44–45, 57, 59– 62, 285; basis of dignity, 357– 61; Charter of Fundamental Rights, 344; community membership and, 362; disability classifications, 435–39; doctor-assisted suicide or euthanasia, 398; dual character of rights, 60; economic liberties and social state, 622– 712; equality, 419–39; Eu ropean Community’s protection of, 331; freedom of action

index 859 (Handlungsfreiheit), 400–408; gender discrimination, 427–33; God-given rights, 357; horizontality of rights, 60– 61, 171; human dignity clause, 355, 399; human person, description of, 362; intellectual property, 650–59; inviolability of the home, 414–16; marriage and family rights, 600– 620; objective and subjective character of, 372; occupational and associational rights, 659–85; paternity cases, 412–13, 418–19; physical integrity, 418–19; polity and conception of human person, 361–73; prison cases, 363–73; private information and collection of census information, 356–57, 408–11, 459; property rights, 630–59; right to die, 398; right to informational self-determination, 356–57, 408–19; right to life, 373– 99; substantive rights theories, 61– 62; suspect classifications, 433–35; terrorism and balancing of liberty rights vs. security, 413–18; Transsexuals Act, 413, 420–25, 606; unconstitutionality of constitutional amendments, 59; values and, 57–58. See also Abortion cases; Freedom of speech and press; Religion and religious freedom; Right to personality Hunting license testing, 404 Hustler magazine, 468 ig-Metall’s works council, 664– 65 Ihering, Rudolf von, 6 Illegitimacy: child benefit allowance to unmarried parents, 601; child custody and, 612–13; rights of children, 400, 412–13, 418–19, 539 Immigration Act of 2002, 110–14, 268 Immunity, unqualified privilege of, 162 Imperial Chamber Court, 4 Imperial Constitution of 1871, 4, 51, 94, 96, 130 Imperial Court of Justice, 6, 54 Implied-powers provision, 125 Imprisonment: constitutional rights of prisoners, 368; criminal defendant’s right to freedom of expression, 476; former Communist official seeking release in light of serious illness, 372; former Nazis

seeking release, 369, 373; life sentence, 70, 363– 69; parole denied to prisoner who traded tobacco to fellow inmates for abandonment of Christian faith, 373, 545; preventive detention, 324–25, 371–72; prison labor, 370–71; refusal to release prisoner who is likely to repeat criminal acts, 369; rehabilitation/resocialization of prisoners, 368, 370, 371, 479–83; release from prison for probationary period, 368– 69; sex offenders, 370, 371– 72; youth imprisonment and resocialization, 369–70 Incest charges as defamation, 477–78 Income Tax Act of 1951, 602 Individualism, 70 Information, right to. See Freedom of information Informational self-determination, right to, 356–57, 408–19 Injunctions, temporary, 11t, 13–14 Institutional theory, 62 Institutions of higher education. See Higher education Insurance payments for child care, 601 Intellectual property, 650–59; Article 14, 650; copyright law, 651–56; cybersquatting, 656; din standards, 655–56; patent law, 656–59 Interest groups, 273, 278, 516 Intergovernmental organizations, 334 International Court of Justice, Article 38, 311 International law, 302–52; Basic Law, Article 25, 311, 316; Cold War and, 302–3; comparative materials as source, 73–75; constitutional limits to, 308– 9, 318–19, 326–27, 351; customary international law, 311–19; East-West Basic Treaty, 303– 9; Eu ropean Arrest Warrant and Surrender Procedure, 340–42; Eu ropean law, 74, 325–52; international tribunals and, 319–25; Statute of the International Court of Justice, 311; supranational law vs. domestic constitutional law, 78; treaties, 309–11. See also Lisbon Treaty; Maastricht Treaty International tribunals, 319–25 Inter-State Broadcast Treaty of 1991, 517

860 index Intimate sphere, 405–8, 484 Invasion of privacy, 165; past criminal event and right of prisoner, 484; public figures, 405–8, 484. See also Right to personality Inverse condemnation, 645 Inverse electoral effect, 248–49 Investment Aid Act, 624–26 Iraq War, 207–14 Iron industry, Investment Aid Act for, 624–26 Irving, David, 493 Islam. See Muslims Iure gestionis, 315 Jaeger, Renate, 415, 624 Jehovah’s Witnesses, 551, 562– 66 Jerusalem, Franz, 5 Jews: anti-Semitism, 294; courtroom crucifi x, objection to, 545; Holocaust denial, 493– 98; in post-reunification Germany, 554; in Weimar Republic, 540 John Paul II (Pope), 583 Joint Committee of the Bundestag and Bundesrat, 237 Joint Declaration on the Settlement of Open Property Issues, 688, 689 Joint parental responsibility, 613 Josefine Mutzenbacher: The Life of a Viennese Prostitute as Told by Herself (novel), 524–25 Judges and justices: background and training of, 3–4; East German criminal court judges, license revocation, 710–11; number of fcc justices, 19; objectivity of fcc justices, 66; salaries and pensions, 121–22 Judgments, fcc, 26 Judicial authority. See Authority Judicial lawmaking, 165– 68, 171–75 Judicial precedent: common-law precedent, 55; as source in constitutional interpretation, 72–73. See also Stare decisis Judicial removal, 26 Judicial restraint: in economic regulation, 665–73; in foreign affairs, 196– 98 Judicial review: fcc’s powers, 1, 3; federalism, 131–37; form and effect of decisions, 35–38, 36t; “gradation theory,” 670, 671; in operation, 33–40; origins of, 4–10; polity

and, 38–40; scope of review, 33–35; separation of powers and, 162; university admission, 684–85. See also Abstract judicial review Judicial system, 54, 164– 65 Judicial Training Regulation, 186 Judicial vs. legislative authority, 164– 75 Judiciary Act, 186 Judt, Tony, 292 Junge Freiheit (magazine), 509 Jurisdiction: concurrent jurisdiction of federation and Länder, 121; election review, 264; over embassies, 312–16; exclusive jurisdiction of federation, 122; FCC, 8–16; framework jurisdiction, 123 Jurisprudence: of federalism, 123–24. See also International law Jus sanquinis citizenship, 268 Justices. See Judges and justices Just Leave Me in Peace (book), 529–30 Kantian thought, 45, 56, 358, 362, 372, 524 Karlsruhe, 40 Kelsen, Hans, 7 Kirchhof, Paul, 29, 64, 338 Klein, Friedrich, 73 Koblenz Higher Regional Court, 480 Kohl, Helmut, 154–55, 161– 62, 202, 218, 284, 583 Köhler, Horst, 156 “Kohlgate,” 284 Konrad Adenauer Foundation, 279 Kosovo campaign of nato, 194, 205– 6 kpd. See Communist Party of Germany Krieger, Leonard, 46 Labor rights, 663– 65. See also Employment and labor Länder. See Federal-state relationship; States Landesbanken, 627 Landlords. See Property rights Land ownership. See Property rights Lawmaking: administrative lawmaking, 176–77; executive-legislative relations and, 153–54; notice of Eu ropean legislation to national parliaments, 344, 349 Lawyers. See Attorneys Least restrictive effect (Erforderlichkeit), 67

index 861 Left Party, 262 Legal positivism, 55–56, 58, 357 Legal scholarship, 73, 167– 68 Legal thought: German vs. U.S., 55–56. See also Kantian thought; Legal positivism Legislation. See Lawmaking Legislative committees. See Parliamentary committees Legislative power: in Bundestag and Bundesrat, 54; delegation of, 175–89; division between federation and Länder, 120–37; executive-legislative relations, 72, 153– 64; federalism and, 125–28; judicial authority vs., 164–75 Leibholz, Gerhard, 17, 57, 64, 65, 86 Leusser, Claus, 7 Leutheusser-Schnarrenberger, Sabine, 417 Libel and defamation: disparaging questions case, 478–79; freedom of art, 522; free speech, 450–53, 454; political satire, 468; reputational interests, 461, 462, 464; sexual abuse case, 477–78; Stasi Stolpe case, 477; street theater case, 525–29 Liberal theory, 62 Liberty interests, 355, 399. See also Human dignity and basic rights; Right to personality Licensing, occupational. See Occupational and associational rights Life, right to, 373– 99. See also Abortion cases Life imprisonment, 70, 363– 69 Limbach, Jutta, 24 Lincoln, Abraham, 362 Lisbon Treaty, 50, 59, 69, 75, 343–52 Listl, Joseph, 73 Local self-government, 104– 9 Long-haul trucking permits, 671 Lower Saxony: Higher Administrative Court, 500; higher education governance, 531–35; private broadcasting, 517; Volkswagen and super majority voting requirement, 628 Loyalty. See Disloyalty Lüneburg Higher Regional Court, 458 Lüth, Erik, 61, 442–43, 449 Luther, Martin, 549 Lutheranism, 540, 562

Maastricht Treaty, 69, 238–42, 269, 332–40, 341 Machinists, gender equality issues, 432 Madison, James, 215 Mahler, Horst, 294 Mahrenholz, Ernst Gottfried, 226, 386, 392, 399, 552 Main Committee of the Parliamentary Council, 357 Mainz Regional Court, 480 Majority party, limitations on, 233–37 Majority rule, 228 Mann, Clarence, 58 Mann, Klaus, 358, 519 Marriage, 354, 539, 600– 612; church tax on spouses in mixed marriages, 591– 94; defi nition of marriage, 605; divorce and remarriage, 611–12; fundamental right to marry, 604– 6; husband’s surname, required use of, 431; joint tax fi ling of married couples, 602–4; prenuptial agreements, 612; same-sex marriage, 606–11; Spanish man wanting to marry German woman, 605, 611 Marshall, John, 10 Marxism-Leninism, 290. See also Communist Party of Germany (kpd) Marxist-Leninist German Communist Party, 292– 93 Masing, Johannes, 675 Maternity leave, 431, 704 Maunz, Theodor, 73, 88 Maximilian I (Holy Roman Emperor), 4 Max Planck Institute of Comparative Public Law and Public International Law, 469 Mayen’s absentee ballots, 265– 66 Mediation Committee, 228, 229–33 Medical schools, admission policies, 684–85 Mellinghoff, Rudolf, 149, 587 Mephisto (Mann), 358, 461, 484–85, 519–23 Merkel, Angela, 29, 114, 120, 204–5, 227, 398 Midwives, age restrictions on, 426 Militant democracy, 52, 57, 269, 285–300, 663 Military: alternative ser vice, 551–53; conscientious objectors, 114, 115, 476, 550–53; deployments in un and nato operations, 200–203, 207–14; desertion,

862 index Military (continued) 553; gender discrimination, 433; modernization of armed forces, 553; parliamentary approval of armed operations, 69; “soldiers are murderers,” 468– 76 Military affairs power, 200–214 Military and Civilian Ser vice Acts, 551 Minimum rationality, 67 Mining industry, 663– 64 Minority party rights, 71, 222–37; nato and un preace-keeping measures and, 202; parliamentary committees and, 163, 217–33; public funding, 274–78; public relations measures of government during 1976 federal election campaign, 234–37; right to receive government information, 227; surveillance of members of minority party, 227–28 Minority religions, 553– 66; cults and sects, 554–55; membership in, 554; status of, 564– 66 Minors. See Children; Youth Missiles deployment, 198–200 Mohl, Robert von, 5 Monarchical constitutionalism, 4 Montesquieu, 164 Monument Protection and Care Act, 645–50 Moot questions, 34 Moral authority of fcc, 38 Moral law, 46 Morlock, Martin, 264 Mosaic theory of treason, 507 Mothers. See Women Multipartyism, principle of, 153 Munich University medical school, admission to, 684–85 Municipalities: core functions doctrine (Kernbereich theory), 105, 108– 9; local self-government, 104– 9 Murderers, soldiers as, 468–76 Mushroom importing, 327–31 Muslims: headscarf ban in public schools, 68, 72, 73, 585–87; Islamic classes in North Rhine–Westphalia, 576; in post-reunification Germany, 554; ritual slaughter, 556– 64, 675– 76 Mutlangen demonstration against military installations, 500–501

Name changes of municipalities, 104– 9 National anthem, 530 National Democratic Party of Germany (npd), 16, 293–300, 462 National List (nl), 16 nato. See North Atlantic Treaty Orga nization Natural-law theory, 56, 58, 358, 361– 62 Nawiasky, Hans, 7 Nazis: former Nazis seeking prison release, 369, 373; militant democracy measures against, 285; neo-Nazi parties, prohibition of, xxx, 286–89, 293–300. See also Socialist Reich Party (srp) Necessary and proper clause (U.S.), 125 Neo-Marxist critics, 39 Neo-Nazi parties, prohibition of, xxx, 286–89, 293–300. See also Socialist Reich Party (srp) Neutrality: church-state relations and, 571–75, 595; economy and, 628, 659 New constitutionalism of Basic Law, 43–48 Newspapers. See Freedom of speech and press New trials in criminal cases in which defendant was convicted under subsequently voided statute, 37 Niesen, Peter, 290, 291 No-confidence vote, 154– 62 No-fly zone, 202 Noise control, 172– 74 Nolte, Georg, 202 Normgebundenheitstheorie (theory of binding norms), 64– 65 North Atlantic Treaty Orga nization (nato), 27, 202; German troop deployment, 204; International Security Assistance Force, 207; Serbia and Montenegro bombing campaign, 205; Strategic Concept, 194, 204, 205, 210; Turkey’s appeal for assistance from, 208, 209 North Rhine–Westphalia, 291, 417; Administrative Court of Appeals, 177; gender discrimination in statute, 428; Islamic classes, 576; Office for the Protection of the Constitution, 509; school prayer in denominational school, 567

index 863 Notaries public, 672 npd. See National Democratic Party of Germany Nuclear energy, 145–50, 185, 398– 99 Null and void decisions, 72– 73 Oath refusal and freedom of religious belief, 545–50 Objective needs analysis, 671 Occupational and associational rights, 354, 659–85; business practice regulations, 675–77; candymakers, 671, 672–73; entry and admission regulations, 671–72; existing trades or businesses, attempting to protect against competition, 672; freedom of economic association and rights of labor, 663–65; “gradation theory” of judicial review, 670, 671; judicial intervention vs. self-restraint, 665–73; long-haul trucking permits, 671; master craftsmen, examination for certificate of proficiency, 672; milk distributors, licensing of, 672; Muslim butchers, 675–76; numerus clausus limiting admissions to field of study, 60, 679–84; occupational choice and higher education, 60, 678–84; personality and, 667, 670; public health regulations, 673–75; retail trade, technical educational requirements, 671–72; reunification, effect of, 704, 707–11; shop closing law cases, 677–78; technician licensing, 670–71; university admission and judicial review, 684–85. See also Attorneys; Physicians Oldenburg, 87 Open state, commitment to, 302–52. See also International law Operation Enduring Freedom, 207 Opinion: freedom of information vs., 459– 60; protected speech, 468– 69, 476 Optimization doctrine, 484 Optimization requirements, 66– 67 Oral arguments: abstract judicial review, 15, 27; cases of major political importance, 26; fcc, 26, 27–28 Orders or rulings, FCC, 26 Organstreit proceedings: declaratory judgments as result of, 162; deployment of German military and, 202, 209, 214;

election funds and, 234, 274, 281; electoral rights and, 52; Green Party exclusion from parliamentary committees and, 223, 227, 229; Lisbon Treaty and, 344; no-confidence votes and, 155; oral arguments in, 27; plenum role in, 271; political issues in, 38; procedure for disputes among federal organs, 15–16, 152, 219; temporary injunctions and, 14 Original intent, 71 Osho Movement, 554 Ostpolitik, 304, 308, 688 Out-of-wedlock children. See Illegitimacy Overhaus, Marco, 208 Pacifism, 468– 69, 476 Papier, Hans-Jürgen, 610, 658 Parental rights and responsibilities, 612–18; personality clause and, 612; religious education and, 576, 588; sex education and, 618–20 Parishes, church, on right to split, 595– 600 Paris Trade Agreement of 1950, 191 Parliament. See Bundestag Parliamentary committees, 217–33; on Election Scrutiny, 228; on Eu ropean Union, 228; on Foreign Affairs and Defense, 190, 228; importance in Bundestag, 228–33; on Judicial Selection, 228; Mediation Committee, 228, 229–33; on Petitions, 228; right to documentary evidence, 163 Parliamentary Council, 7, 8– 9, 357, 637 Parliamentary democracy, 216–37 Parliamentary investigations, 163 Parliamentary ossification, 237 Parody. See Political satire Parole. See Imprisonment Party ban proceedings. See Political parties Party Finance Act of 1959, 273 Party of Democratic Socialism (pds), 194, 255, 256, 259– 62 Party state (Parteienstaat), 52–53, 278, 286. See also Political parties Passive virtues, 68– 69 Passport denial, violation of freedom of movement, 401–4 Patent law, 656–59

864 index Paternity cases, 412–13, 418–19 “Peace constitution,” 200 Peace-keeping role of German troops, 202 Peace of Augsburg (1555), 539 Pension Reform Act of 1972, 116 Perpetuity clause, 693 Persian Gulf War, 469 Personality, right to. See Right to personality Personal spheres, theory of, 484 Petersberg Agreement, 191 Petitions, 30 Pharmacists: drug sales, limitations on, 671; restrictions on licensing, 666–70; Shop Closing Act, 677– 78 Philippine Embassy, 312–16 Phonograph records, copyright issues, 655 Physical integrity, right to, 418–19 Physicians: advertising restricted to only one specialty, 676; age limit for participation in federal health insurance scheme, 676; assisted suicide or euthanasia, 398; performing abortions, 393– 94, 675; using stem cells, 676 Plenum: composition of, 229; equality principle and, 231; judicial lawmaking and, 172; Organstreit proceedings role of, 271; procedures, 19–20 Plickert, Philip, 697 Police, 501, 509 Political contributions, 269–84; equality among parties and state subsidies, 273–79; illegal contributions (Umwegfi nanzierung), 280; limits on state subsidies, 283–84; as tax deductions, 271–73, 278–84 Political parties: banned parties, 286– 93, 449; campaign broadcasting restrictions, 292; as constitutional organs, 270–73; fi nancial status of, 226; mixed memberproportional system and, 242–43, 247; Organstreit proceeding by, 15; party privilege, 286; political contributions, 269–84. See also Elections and voting; Minority party rights; specific political parties Political Parties Act of 1967, 278–81, 283 Political question doctrine, 161, 196, 197– 98 Political representation. See Democracy Political satire, 465– 67, 529–30

Politicizing justice, 39 Polity: Basic Law and, 48–55; conception of human person and, 361–73 Polygraph use in criminal proceedings, 363, 419 Pornography regulation, 523–29 Practical concordance (praktische Kondordanz), 67– 68 Pragmatism, 55 Prayer in public schools, 566–72, 577 Preconstitutional laws, 34–35 Pregnancy. See Abortion cases Pregnancy and Family Assistance Act, 386, 387, 392 Prenuptial agreements, 612 President, federal: refusal to promulgate unconstitutional statute, 154; right to dissolve parliament, 154, 156; role in foreign affairs, 189 Press. See Freedom of speech and press Preuss, Hugo, 6 Preventive detention, 324–25, 371–72 Price Control Act, 175–76 Prison cases. See Imprisonment Privacy. See Invasion of privacy Privatization: of aviation and railways, 122, 627; of government monopolies, 626–27 Professors. See Higher education Prognosis doctrine, 185 Propaganda, confi scation of, 233–37, 459 Property rights, 630–59; Article 14, 630–31, 633, 634–35, 637, 639; deficiency of protection in Eu ropean fundamental rights, 340, 349; expropriation or regulation of property, Parliament’s authority, 638–50; garden plot leases, right to terminate, 639; groundwater, property owner’s right to dispose of, 640–45; intellectual property, 650–59; Joint Declaration on the Settlement of Open Property Issues, 688, 689; Land Reform (Bodenreform) controversy, 688– 97; Monument Protection and Care Act, 645–50; rent control, 639–40; restitution after reunification, 698–702; reunification, 687–88; satellite dish, landlord’s objection to installation of, 458; social obligation of property, 637–38; tenant’s right of occupancy, 635–41; Unity

index 865 Treaty, 703–7; vineyards, restrictions on cultivation, 639 Proportionality, principle of, 34, 67, 344, 361, 372, 405, 412, 417, 418, 419; consumer protection legislation and, 671; equality and, 425–27, 435; freedom of speech and, 460, 461; information, right to, 459; occupational restrictions and, 671–72, 678; privacy rights and, 484; property rights and, 639; segregated schools for disabled children and, 439; telecommunications privacy and, 510 Proportional representation, 54, 71, 77 Protection of the Constitution Act, 509 Prussia, 79 Prussian City Charter Act of 1809, 105 Prussian Constitution of 1850, 71, 105 Public Assembly Act, 493 Publication of decisions, 26 Public employees, 123; “disloyal” persons banned from, 434; gender equality issues, 432; strike, right to, 665; teachers as, 586–87 Public figures and invasion of privacy, 405–8, 484 Public forum doctrine, 501 Public function doctrine, 280, 664 Public funds, distribution among states, 96 Public health regulations, 673–75 Public-law controversies, jurisdiction over, 3 Public person in semipublic settings, 479–84 Public relations measures of government during 1976 federal election campaign, 234–37 Public schools: authority of individual Länder, 576; Brandenburg School Act, 588–89; Catholic-Protestant Land agreement, 588; church-state relations and neutrality, 571–75; compulsory crucifi x display, 68, 577–85; compulsory observational stage (Förderstufe), 619; ethics instruction, 576, 589– 90; history of, 575–76; interdenominational schools, 572–76; Muslim headscarf ban, 68, 72, 73, 585–87; religious instruction, 125–28, 539, 576, 588; religious practices and symbols in, 566– 90; school prayer, 566– 72, 577; sex education, 618–20; special education

system for disabled children, 435–39; Stuttgart Higher School Authority, Muslim woman teacher not permitted to wear headscarf, 586; teachers engaging in disloyal speech, 449 Public trust in FCC, 39–40 Punitive damages sought against German company by U.S. plaintiff, 405 Quint, Peter, 485 Quorum, 19 Radio stations, privately owned, 514–16 Railways, 122, 627, 671 Rapporteur’s role, 27, 28, 75 Rau, Johannes, 111, 284 Rau Commission, 284 Rawls, John, 101 Realist school of jurisprudence, 55 Records, copyright issues, 655 Recusal, 26 Red Army Faction 1977 abduction, 394 Red- Green Coalition, 205 Referrals from lower courts, constitutional, 30 Regulatory takings, 645 Rehabilitation/resocialization of prisoners. See Imprisonment Rehnquist, William, 79, 468 Reichstag fi re (1933), 285 Reimann, Mathias, 524 Religion and religious freedom, 538– 600; absolute ban on laws regulating free exercise of religion, 543–44; blood transfusions refused on religious grounds, 544; church autonomy, 595– 600; clergy in public office, 597; conscientious objectors, 114, 115, 476, 550–53; coordination theory, 596; corporate status of religious bodies, 561– 62; cults and sects, 554–55; defi nition of religion, 544; free exercise of religion, 539–53; loyalty to constitutional order, 562; minority religions, 553– 66; neutrality in church-state relations, 571–72, 595; oath refusal, 545–50; parish division to establish new parish, 597– 99; public schools, religious practices and symbols in, 126–28, 566– 90; registration of

866 index Religion and religious freedom (continued) religious associations or societies, 561; reservation clause absent in Article 4, 543, 545; right to associate, 72; ritual slaughter, 556– 64; school prayer, 566– 72, 577; self-determinism rights of church, 597– 99; status of religious minorities, 564– 66; taxation and religious societies, 590– 95; undisturbed practice of religion, 540–44. See also specific religious bodies Religious instruction in public schools, 125–28, 539, 576, 588 Rent control, 639–40 Reorga nization of company, three-fourths conversion rule, 640 Republican (Republikaner) Party, police action against intruders at meeting of, 501 Reputational interests and offensive speech, 460–79. See also Freedom of speech and press Reserved powers, 125, 129 Res judicata, 320–21 Ress, Georg, 217 Restitution after reunification, 688, 689– 93, 698– 702 Restraint of Trade Act of 1957, 627 Retail trade as occupation, 671–72 Reunification: abortion issues after, 385–86; disbarment of East German attorneys who collaborated with Stasi, 707–10; East German criminal court judges, license revocation, 710–11; legacy of East German communism, 704–7; occupational and associational rights after, 704, 707–11; population decline in new states after, 252; property rights after, 316–17, 354, 687–88; reconceptualization of armed forces’ use, 202; state structure after, 80; Unification Treaty (1990), 309 Revenue apportionment and distribution, 95–104 Review. See Judicial review Rheinland-Palatinate’s Monument Protection and Care Act, 645–50 Right to assemble and demonstrate, 499–502 Right to die, 398 Right to information. See Freedom of information

Right to informational self-determination, 356–57, 408–19 Right to life, 373– 99; abortion cases, 60, 75, 114–15, 373– 94; chemical weapons, storage of U.S. weapons on German soil, 398– 99; environmental pollution, 398; kidnapping case, 394– 96; terrorism and aviation security, 396– 98. See also Abortion cases Right to marry, 604– 6 Right to personality, 165, 399–419, 484– 92; divorce and privacy rights, 412–13; freedom of action (Handlungsfreiheit), 400–405; freedom of expression vs., 461, 465, 478, 479, 480, 485; informational self-determination, 356–57, 408–19; intimate lifestyle choices, 605; intimate sphere of privacy, 405–8, 484; occupational rights and, 667, 670; surveillance technology, 415–16; terrorism and balancing of privacy rights vs. security, 413–18; transsexuals, 413 Right to physical integrity, 418–19 Röben, Volker, 217–18 Römer (Frankfurt) art forum, 454 Rottmann, Joachim, 235–36 Rule of law state (Rechtsstaat), 48, 622 Rule of three, 20 Rules of Procedure (fcc), 25–26 Rupp, Hans G., 33 Rupp-von Brünneck, Wiltraut, 75, 380, 398, 522, 535 Saarland, licensing of privately owned radio stations, 514–16 Saarland Territory, 193 Same-sex marriage, 605, 606–11 Satellite dish, landlord’s objection to installation of, 458 Satire. See Political satire Saxony federal election (2005), 248 Schäuble, Wolfgang, 122 Schaumburg-Lippe Constitution, 6 Scheffler, Erna, 24 Scheuner, Ulrich, 88 Schily, Otto, 294 Schleswig-Holstein elections: Danish Minority Party in, 254–55; districts in,

index 867 250–52; 5 percent minimum threshold rule, 254–59, 262; foreign resident aliens’ right to vote in municipal elections, 266–68; 7 percent minimum threshold rule, 254 Schleswig-Holstein Higher Administrative Court, 500 Schleyer, Hanns-Martin, 394 Schlink, Bernhard, 67 Schmidt, Helmut, 154, 597 Schoolbooks, copyright issues, 651–54 School prayer, 566– 72, 577 Schools. See Confessional schools; Higher education; Public schools Schröder, Gerhard, 111, 119, 154–56, 161, 194, 207–8, 229, 262, 293, 294 Schumacher, Kurt, 191 Scientology, 477, 555–56 Search and seizure cases, 503– 7, 509 Second National Energy Act of 2005, 627 Second Property Law Amendment Act of 1994, 698 Second Senate, 18–20; constitutional complaints handled by, 32, 32t Security: balancing of privacy rights vs., 413–18; freedom of information vs., 458–59; minority party’s right to receive government information and, 227 Seidl, Otto, 581 Self-determination. See Autonomy Self-restraint, judicial. See Judicial restraint Senates. See First Senate; Second Senate Sentencing in drug cases, 400 Separation of powers, 5, 77– 78, 152–215; delegation of legislative power, 175–89; executive-legislative relations, 153– 64; foreign and military affairs, 189–214; judicial vs. legislative authority, 164–75 September 11, 2001 terrorist attacks, 207 Serbia and Montenegro, 203, 205 Sermon on the Mount, 546–50 Ser vice of process, 405 7 percent minimum threshold rule, 254 Sex-based discrimination. See Gender discrimination Sex education, 618–20 Sex offenders, imprisonment of, 370, 371–72 Sexuality presented in broader context of human life, 524

Sexual Offenses Protection Act of 1998, 371 Sexual orientation. See Same-sex marriage; Transsexuals Shevardnadze, Eduard, 694 Shop Closing Act, 137, 677–78 Simma, Bruno, 309 Simon, Helmut, 64, 75, 380, 398, 535 Single Eu ropean Act of 1986, 327, 331 Sit-down demonstrations, 500–501 Smend, Rudolf, 38, 57 Smoking bans, 674– 75 Social assistance programs, 427 Social Democratic Party of Germany (spd), 9, 22, 24, 163, 218; on basic rights as “God-given,” 357; campaign speech denouncing csu, 462– 64; coalition with Christian Democrats under Merkel, 120; coalition with fdp, 234; in Parliamentary Council (1948–1949), 270; pds alliance with disaffected left from, 262; private broadcasting, opposition to, 517 Socialist Reich Party (srp), 16, 286–89 Socialist Unity Party, 255, 256 Social Security Act, 185 Social state (Solzialstaat), 49–50, 368, 600, 622–24, 628, 639, 659, 664 Social theory, 62, 362 Societal representation, in business governing structures, 513–16 “Soldiers are murderers,” 468–76 Solidarity Pact, 104 “Solidarity Supplemental Tax” or “Soli” (Solidaritätszuschlag), 104 Söllner, Alfred, 581 Somalia, 202, 204 Sommer, Bertold, 392 Soraya, Princess, 165– 68 Sources of interpretation, 70–75 Southwestern states, 81–87 Sovereign debt crisis, 350–51 Sovereignty: administrative, 149; constitutional review and, 4; constitutional sovereignty, 323, 325, 351; dual sovereignty theory of federalism, 138, 311; national sovereignty, 302, 311, 332–34; vs. openness, 351; popu lar sovereignty, 52, 54, 76, 153, 264, 270, 290, 339; state sovereignty, 352; transfer to eu, 325–26, 332

868 index Soviet Land Reform, 688– 97 Soviet Union: expropriations and restitution, 689– 94; missiles deployment and, 198–200 spd. See Social Democratic Party of Germany Special education system for disabled children, 435–39 Speech. See Freedom of speech and press Der Spiegel disclosure of state and military secrets by, 503– 7, 509 Spies, Stasi collaborators, 707 Springer newspaper company, 455, 457 srp. See Socialist Reich Party Standing, 9 Starck, Christian, 38, 73 Stare decisis, 37, 62, 72 State High Court (Weimar Republic), 5 State orga nization, 53–55 States: administration by federal commission, 145; federal territory divided into, 80; legislative powers of, 125–28; press rights and duties, 508; reorga nization of, 80–81; representation in Bundesrat, 54. See also Federal-state relationship State Treaty on Monetary, Economic, and Social Union (1990), 686 Statutory construction, 34 Steinberger, Helmut, 228, 442 Steiner, Udo, 658 Stem cells, restrictions on use, 676 Stolpe, Manfred, 477 Strauss, Franz Josef, 465– 67, 503, 525, 529 Street theater as political satire, 525–29 Strict scrutiny, 67 Strikes by employees, 664, 665 Stuttgart Higher School Authority, Muslim woman teacher not permitted to wear headscarf, 586 Subsidiarity, principle of, 123, 339, 344, 345 Substantive rights theories, 61– 62 Suff rage. See Elections and voting Suicide, 398 Supremacy of Basic Law, 46–48 Supreme Court, U.S.: abortion cases, 374, 384, 394; biological father and paternity rights, 613; certiorari power, 35; economy policy and, 659; judicial appointments to,

compared to Federal Constitutional Court, 24; judicial review, 10, 34; jurisdiction, 3; parody, 468; political views and freedom of speech, 453; reliance on cases of, 73 Suspect classifications, 433–35 Switzerland, fcc reliance on cases from, 75 Taliban, 207 Tape recorders, copyright violations against manufacturers of, 654–55 Taxation: amendment of Basic Law on, 96; church construction tax, 594– 95; church tax, 590– 95; equalization of tax revenue, 94, 97– 99, 105; Flick payoffs of politicians and public officials for exemption, 163; income to maintain children at minimum subsistence level, 601; joint tax fi ling of married couples, 602–4; legislation, 164; nonreusable food and beverage containers, 675; political contributions as tax deductions, 271–73, 278–84; political parties, status of, 226; “Solidarity Supplemental Tax” or “Soli” (Solidaritätszuschlag), 104; television user fees as, 513 Teachers. See Public schools Telecommunications Act, 418, 627 Telecommunications privacy, 414–16, 510 Teleological reasoning, 63 Television: “Cable Penny Case,” 518; courtroom ban of live broadcasts, 508; federally operated stations, 90– 94, 510–13; fees for users, considered as tax, 513 Temporary injunctions, 10, 11t, 13–14 Tenant’s right of occupancy, 635–41 Tenure of fcc justices, 22–24, 39 Territorial orga nization, 80– 90 Terrorism: aviation security vs. right to life, 396– 98; balancing of liberty rights vs. security, 413–18 teu (Treaty on Eu ropean Union). See Maastricht Treaty Thalidomide, nullifying settlement agreements for children deformed by, 640 Th ird-party-effect doctrine (Drittwirkung), 432 Th irteenth Law to Amend the Federal Election Act, 249

index 869 Thomas Aquinas, 549 Th ree Direct Constituencies Clause (Grundmandatsklausel), 259– 63 Thuringia, 87 Tobacco warning labels, 498, 674 Torture, 372 Trade unions. See Employment and labor Transparency in party funding, 269 Transsexuals, 413, 421–25, 606 Travel restrictions, 434. See also Freedom of action (Handlungsfreiheit) Treason, 504–7 Treaties: church-state, 595; commitment to, 69, 125–28; “doctrine of execution” (Vollzugslehre), 310; power to make, 190–205, 309–11. See also specific treaties Treaty on Eu ropean Union (teu). See Maastricht Treaty Trial courts, 3; ban of live television broadcasts from, 508 Truth for Germany: The Question of Guilt for the Second World War (book), 497 Tucholsky, Kurt, 468– 69 Turkey, nato assistance for (2003), 208, 209 Ultra vires review, 339, 349–50 Unconstitutionality: of banned political parties, 11t, 16; of constitutional amendments, 58–59; legal provision unconstitutional and void, 37; legal provision unconstitutional but not void, 36 Unenumerated power, 125 Unification Treaty (1990), 309, 686, 688, 689, 693, 694, 702. See also Reunification Unions. See Employment and labor United Nations: Charter, 204, 308; embargoes, 202, 203; no-fly zone over Bosnia and Herzegovina, 202; Serbia and Montenegro intervention, 205; Somalia humanitarian mission, 202 United States: abortion cases, 374, 384, 394; common-law precedent, 55; constitutionalism, 47; death penalty cases and foreign nationals’ consular rights, 318; federalism, 79; flag desecration, 529; inverse condemnation, 645; neutrality doctrine in church-state relations, 572; pornography, 523; public forum doctrine, 501; regulatory

takings, 645; religious freedom, 538; storing chemical weapons in Germany, 398; television industry, 513; war powers, 214. See also Constitution, U.S.; Supreme Court, U.S. Unity Treaty, 110, 385, 703–7 Universal Military Ser vice Act of 1956, 550 Universities. See Higher education University Framework Act of 1976, 685 University of Freiburg medical school, admission to, 684 Unwanted children, 169–71 Unwritten principles as source, 70 “Uprising of the Decent” (Aufstand der Anständingen), 294 Value-oriented theory, 62 Values, basic rights and, 57–58 Verden Regional Court, 363 Veto power of Bundesrat, 118–19 Vienna Convention on Diplomatic Relations, 314 Vineyards, restrictions on cultivation, 639 Voided statutes, 36–37 Volkswagen and super majority voting requirement, 628–30 von Ihering, Rudolf, 56 von Schlabrendorff, Fabian, 548 von Weizsäcker, Richard, 237 Vote of no confidence, 154– 62 Voting. See Elections and voting Votum, 27, 28, 75 War on terror, 207 War powers, 214 “Warsaw Genuflection,” 304 Water fees, 139 Water Resources Act, 641 Water usage, 640–45 Weapons and explosives, 124 Weiler, Hans, 685 Weimar Constitution of 1919: academic and research protection, 519; Basic Law and, 71, 96; church autonomy, 599; contested elections, 254; equality principle, 419; freedom of information not covered, 458; free speech, 441, 449; international law

870 index and, 312; judicial review, 4; local government autonomy, 105, 130; parliamentary and judicial institutions, 1, 53; political parties, 270; religious freedom, 538, 539, 546, 561, 562, 595; separation of powers, 154 Weimar Republic: constitutional state (Rechtsstaat), 48; elections (March 1933), 285; judicial review, 6; religion in, 540; state orga nization, 53 West German Rectors’ Conference, 531 West Germany. See Federal Republic of Germany Wieland, Joachim, 31 Wine industry, 639, 673– 74 Wintrich, Josef, 58 Wiretaps, 174, 414 Wismar Technical College, 536 Women: as fcc justices, 24; gender discrimination, 427–33; maternity leave,

431, 704; working hours of, 430. See also Abortion cases Works Constitution Act of 1972, 660, 665 Works Council Act, 665 World War II: Allies’ supervision of German property, 687; churches’ emergence after, 596; doubt expressed over German guilt for starting, 497 Written text as source, 70– 71 Württemberg-Baden, 81–87 Württemberg-Hohenzollern, 81–87 Youth: cults and sects, 554; imprisonment and resocialization, 369– 70; pornography and, 523–25 Yugoslavia, 202 al-Zarqawi, Abu Musab, 509 Zeidler, Wolfgang, 65– 66, 373 Zero-sum game, 68

Permissions ∂ When acknowledging the permissions we have been granted to reprint previously published materials, we list the original sources according to the “case numbers” assigned in the text. As we remarked in our “Note on Translation” in our Acknowledgments, we have extensively revised and adapted most of the translations reproduced here. These editorial changes reflect our goal of producing the most literal and accurate translations of the Court’s decisions while also achieving uniformity and literary grace across all of the book’s translations.

permissions from the german federal constitutional court The German Federal Constitutional Court retains the copyright to these English language translations. The translations prepared by the Court are intended for information purposes only; the official German originals are the sole authoritative versions. The translations were prepared with the utmost care. Nevertheless, no representation as to the accuracy and completeness of the translations is made by the German Federal Constitutional Court. 3.5 Immigration Act Case, available at: www.bundesverfassungsgericht.de/en/decisions/fs20021218_2bvf000102en.html 4.1 Parliamentary Dissolution II Case, available at: www.bundesverfassungsgericht.de/en/decisions/es20050825_2bve000405en .html 4.12 awacs II Case, available at: www.bundesverfassungsgericht.de/en/decisions/es20080507_2bve000103en .html 6.3 Görgülü Case, available at: www.bundesverfassungsgericht.de/entscheidungen/rs20041014_2bvr148104en .html 6.6 Lisbon Treaty Case, available at: www.bundesverfassungsgericht.de/en/decisions/es20090630_2bve000208en .html 7.5 Abortion II Case, available at: www.bundesverfassungsgericht.de/en/decisions/fs19930528_2bvf000290en .html 8.8 Princess Caroline of Monaco II Case, available at: www.bundesverfassungsgericht.de/en/decisions/rs19991215_1bvr065396en.html

872 Per missions

9.11 Civil Partnership Case, available at: www.bundesverfassungsgericht.de/en/decisions/fs20020717_1bvf000101en.html

permissions from the german federal constitutional court and the nomos verlagsgesellschaft The German Federal Constitutional Court and the Nomos Verlagsgesellschaft retain the copyright to these English language translations. These translations are intended for information purposes only; the official German originals are the sole authoritative versions. The translations were prepared with the utmost care. Nevertheless, no representation as to the accuracy and completeness of the translations is made by the German Federal Constitutional Court or the Nomos Verlagsgesellschaft. 6.2 Philippine Embassy Case, from 1.I Decisions of the Bundesverfassungsgericht— Federal Constitutional Court—Federal Republic of Germany 358–89 (1992) 6.4 Solange II Case, from 1.II Decisions of the Bundesverfassungsgericht—Federal Constitutional Court—Federal Republic of Germany 613–33 (1992) 8.4 csu- npd Case, from 2.I Decisions of the Bundesverfassungsgericht—Federal Constitutional Court—Federal Republic of Germany 220–43 (1998) 8.9 Holocaust Denial Case, from 2.II Decisions of the Bundesverfassungsgericht— Federal Constitutional Court—Federal Republic of Germany 620–30 (1998). 9.2 Oath Refusal Case, from 4 Decisions of the Bundesverfassungsgericht—Federal Constitutional Court—Federal Republic of Germany 70–83 (2007) 9.3 Ritual Slaughter Case, from 4 Decisions of the Bundesverfassungsgericht—Federal Constitutional Court—Federal Republic of Germany 340–54 (2007) 9.4 Jehovah’s Witnesses Case, from 4 Decisions of the Bundesverfassungsgericht— Federal Constitutional Court—Federal Republic of Germany 316–34 (2007) 10.13 Land Reform I Case, from 3 Decisions of the Bundesverfassungsgericht—Federal Constitutional Court—Federal Republic of Germany 26–53 (2005) 10.14 Key Date Case, from 3 Decisions of the Bundesverfassungsgericht—Federal Constitutional Court—Federal Republic of Germany 87–109 (2005) 10.15 East German Disbarment Case, from 3 Decisions of the Bundesverfassungsgericht—Federal Constitutional Court—Federal Republic of Germany 399–413 (2005)

permissions from other sources 3.1

Southwest State Case, from Walter F. Murphy and Joseph Tanenhaus, Comparative Constitutional Law (New York: St. Martin’s Press, 1977). (Translated by Mrs. Renate Chestnut.)

Per missions 873

First Broadcasting Case, from Walter F. Murphy and Joseph Tanenhaus, Comparative Constitutional Law (New York: St. Martin’s Press, 1977). (Translated by Mrs. Renate Chestnut and Mr. Jonathan Young.) 3.7 Atomic Weapons Referendum I Case, from Walter F. Murphy and Joseph Tanenhaus, Comparative Constitutional Law (New York: St. Martin’s Press, 1977). (Translated by Mrs. Renate Chestnut.) 3.8 Concordat Case, from Walter F. Murphy and Joseph Tanenhaus, Comparative Constitutional Law (New York: St. Martin’s Press, 1977). (Translated by Mrs. Renate Chestnut and Mr. Jonathan Young.) 4.2 Princess Soraya Case, from Rudolf B. Schlesinger et al., Comparative Law (5th ed.). Reprinted with permission of the Foundation Press, copyright 1988 by the Foundation Press. 4.9 Commercial Treaty Case, from 19 International Law Reports 461 (1952) (London: Butterworth, 1957). Reprinted with permission of the editor. 5.5 Maastricht Treaty Case, from 33 International Legal Materials 395–444 (1994). Copyright by the American Society of International Law. (Translated by Gerhard Wegen and Christopher Kuner.) 5.11 Party Finance I Case, from Walter F. Murphy and Joseph Tanenhaus, Comparative Constitutional Law (New York: St. Martin’s Press, 1977). (Translated by Mrs. Renate Chestnut and Mr. Jonathan Young.) 5.12 Party Finance II Case, from Theodore L. Becker, Comparative Judicial Politics (Chicago: Rand McNally, 1970). (Translated by Donald P. Kommers.) 5.14 Socialist Reich Party Case, from Walter F. Murphy and Joseph Tanenhaus, Comparative Constitutional Law (New York: St. Martin’s Press, 1977). (Translated by Mrs. Renate Chestnut.) 7.2 Mephisto Case, from Walter F. Murphy and Joseph Tanenhaus, Comparative Constitutional Law (New York: St. Martin’s Press, 1977). (Translated by Mrs. Renate Chestnut.) 7.4 Abortion I Case, from 9 John Marshall Journal of Practice and Procedure 605 (Spring 1976). (Translated by Robert E. Jonas and John D. Gorby.) Copyright by the John Marshall Law School. Reprinted with permission of the John Marshall Law School. 7.9 Census Act Case, from 5 Human Rights Law Journal 67 (1984). (Translated by Professor Eibe Riedel.) Reprinted with permission of the editor. 8.1 Lüth Case. The version here is an adaptation of two different translations. The fi rst is from Walter F. Murphy and Joseph Tanenhaus, Comparative Constitutional Law (New York: St. Martin’s Press, 1977). (Translated by Mrs. Renate Chestnut.) The other is from Herbert J. Liebesny, Foreign Legal Systems: A Comparative Analysis (George Washington University, National Law Center, Government Contracts Program, 1981). 8.7 Lebach Case, from B. S. Markesinis and Hannes Unberath, The German Law of Torts 4th ed. (Oxford: Hart Publishing, 2002). Reprinted with permission of Oxford University Press and the authors.

3.2

874 Per missions

9.10 Joint Income Tax Case, from Walter F. Murphy and Joseph Tanenhaus, Comparative Constitutional Law (New York: St. Martin’s Press, 1977). (Translated by Mrs. Renate Chestnut.) 10.1 Investment Aid I Case, from Walter F. Murphy and Joseph Tanenhaus, Comparative Constitutional Law (New York: St. Martin’s Press, 1977). (Translated by Mr. Fritz Kratochwil.) 10.2 Volkswagen Denationalization Case, from Walter F. Murphy and Joseph Tanenhaus, Comparative Constitutional Law (New York: St. Martin’s Press, 1977). (Translated by Mrs. Renate Chestnut.)