Introduction into the German law system - Public law

1. History of the constitution

In the Middle Ages there already existed basical rules in the German-speaking area which may be considered as a kind of constitutional law. The Goldene Bulle, a papal decree from 1356, regulated the procedure of the king´s election and the number of earls which were electors. After the end of the Thirty Year`s War in 1648 the central power of the state was considerably weakened. Impulses for new developments originated from the French Revolution, which caused demands for reforms and more human rights also in Germany. The Holy Empire of German Nation ended with the resignation of emperor Franz Josef in 1806. In 1815 the German Alliance was founded as an association of sovereign rulers. Monarchistically shaped constitutions were formulated in each of these countries. 1848 a bourgeois revolution tried to unite Germany and integrate human rights into the constitution. The congregation in Paul`s Church in Frankfurt created a democratic constitution – which never came into force. Prussian and Austrian military forces put an end to the attempt of the foundation of a democratic German national state.

In 1870/71 the German Empire was founded. It´s constitution steadied the strong central power of the state and mentioned the fundamental rights only as general objectives. After World War I the Revolution of 1918 – started by workers and German navy soldiers – caused the end of monarchy and the foundation of the Republic of Weimar. The constitution of Weimar did not mention the fundamental rights. The National Socialists used the weakness of the constitution of Weimar to come into power. After 1933 the existing legal structures were perverted into means of power for the Nazis. Fundamental rights did not exist. Special courts für political crimes and arrest without an order by a judge were common. An inglorious chapter of German law history are the special laws against jews, which officially limited or abolished the rights of Germans of jewish belief. The later decisions for the mass murder of jews and politically different minded persons in concentration camps originated on the political level; no attempt of a legal legitimation was made any more. After World War II, in the year 1949, the Basic Law (Grundgesetz) was created as the German Constitution with the agreement of the Allies. This constitution is still in force presently and guarantees fundamental rights. It distinguishes between human rights and the more special civil rights. It includes a separation of powers into legislative, executive and judicative powers of the state. Mistakes of the Weimar era – e.g. the massive competences of the President or the relatively simple possibilities of changing the constitution or ousting of the government from power – were obviated. One of the changes of the constitution being made since 1949 was the invention of the compulsory military service and the founding of the Bundeswehr as a federal military force in 1956. Since 1990 the Grundgesetz is relevant for the area of the former German Democratic Republic, too.

2. Public law today

In the field of public law the sections of constitutional law and administrative law have to be distinguished. The Basic Law (Grundgesetz) guarantees basic rights like human dignity, free development of one´s personality, equality, religious liberty, free proclamation of one´s opinion and the protection of the family. Also free assembly, freedom of movement, the secrecy of letters and telecommunications, the free choice of job, the inviolability of the home, the freedom of property are fundamental rights guaranteed by the constitution. Whilst fundamental rights as human dignity, equality, religious liberty or the inviolability of the home are defined as rights of all humans, certain rights pertain only to German citizens – e.g. the freedom of assembly, the freedom of association, the freedom of movement in Germany and the free choice of job. Fundamental rights can only be limited by a law. Their limitation requires the fulfilment of certain conditions and underlies restrictions.

The Grundgesetz also regulates the complete organisation of the state, the configuration of the bodies of government (like Bundestag and Bundesrat – parliament and federal council), the procedure of legislation and the division of competences between the Federation and the German states (Länder). The states have constitutions on their own which have to be in accordance with the Basic Law.

The administrative work of the authorities is regulated by the Administrative Procedure Act (Verwaltungsverfahrensgesetz, VwVfG). An important basis of this code is the Principle of Investigation. It obliges the authorities to examine the relevant facts of a case officially from their own impulse. They are therefore not bound to believe only the explanations of involved parties. Important rights of the parties are the right to be heard (if an intervention into their rights takes place), the right of inspection of files, and the right of the keeping of their personal secrets by the authorities. The law also defines time and conditions of the coming-into-force of a formal administrative action. Such actions – i.e. formal doings or decisions of the authority in an individual case being addressed to an individual citizen – have to be concrete in content and may be supplemented with additional rules – e.g. conditions, time limits, provisions of withdrawal. If an administrative action is enacted in written form, the authority has to give reasons for it.

A lot of areas of public law are regulated by special laws and regulations of the states. Often federal regulations are completed or substanciated by state´s laws, e.g. the federal law about the protection of nature is substanciated by laws about the same topic in every state. By this method the states can put through regulations which are more special and fit well into local conditions. Typical fields of state (Länder-) regulations are also the laws about duties and organisation of the police, about building and construction and the preservation of historical buildings.

Another important branch of public law is social law or social insurance law. The details of the statutory insurances for health, pensions, accidents and nursing care as well as, e.g., the suppositions of the payment of unemployment benefit are regulated in 12 books of federal social law. For legal actions in matters of social insurance or unemployment benefit special courts for social law are competent. Tax law is another branch of public law; it is regulated by a number of specialized law books, e.g. the Income Tax Code (Einkommenssteuergesetz, EStG), the Value Added Tax Code (Umsatzsteuergesetz, UStG), the Statutory Order of Taxes (Abgabenordnung, AO). For legal actions in tax matters the financial courts are competent.

3. Procedural law

If an individual wants to protect himself against administrative actions of the state – or wants to force the authorities to take action – the Administrative Courts Act (Verwaltungsgerichtsordnung, VwGO) from 1960 is relevant. This code of law includes rules about the organisation of the administrative courts, defines the stages of appeal and the different kinds of possible legal actions. A supposition for the taking of legal action is a proceeding of formal protest. The citizen has to protest formally against the administrative action - e.g. a tax assessment or the formal refusal of a building permission. The protest has to be addressed to the authority from which the decision has originated. If the protest is justifiable in the opinion of the authority, it may change its original decision and implement a revised administrative action. If the protest is seen as not justifiable, the authority superior to the original authority issues a formal refusal of the protest. Now the addressee may take legal action at the court for administrative affairs.

If the addressee of an administrative action wants it to be declared inoperative he has to use the legal Action for Annulment (Anfechtungsklage). If, on the other hand, someone wants the authority to act, he has to take the Action of Liability (Verpflichtungsklage). This action is also possible if an authority does not react to a formal protest. The authority can be sentenced to act by the administrative court. In many cases authorities have a certain margin of estimation. The court must not interfere in this estimation, but it may sentence the authority to enact a decision in its margin of estimation "as in duty bound".

Another important kind of legal action is the Action for Statement (Feststellungsklage). Its aim is to achieve the court´s statement about a certain issue. The Action for the Examination of Laws (Normenkontrollklage) is used for direct charges against a law. If a citizen aspires only a simple acting or inactivity of the authority, which is not a formal administrative action, he has to use the General Achievement Action (Allgemeine Leistungsklage).

For the legal action of the Constitutional Complaint (Verfassungsbeschwerde) the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) is competent. The major supposition of the Constitutional Complaint is that all other admissable ways of legal action have been exhausted so far. The Constitutional Complaint may be used against every acting of the authorities possibly violating the constitution – e.g. court sentences, actions or inactivity of authorities. It can be used against laws under the condition that they intervene directly and without further activity of authorities into the fundamental rights of the appellant.

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