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 GermanyCases. 2. Judicial review GermanyCases.
I. Miller, Russell A., 1969 II. Ginsburg, Ruth Bader. III. Title.
KK4446.7.K66 2012
342.43dc23
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 govern-
ment 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 Juris-
prudence 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 con-
cerned an Idaho statute that directed: As between persons equally entitled to admin-
ister a decedents estate, males must be preferred to females. The Idaho Supreme
Court had upheld the law against an equal protection challenge, reasoning that na-
ture 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 in-
compatible with the constitutions equality norm, the German court rejected alleged
differences in lifestyles and administrative convenience as justifications for the dis-
criminatory classifications. The second decision, announced in 1963, involved prefer-
ences for sons over daughters in agrarian inheritance law. In that instance, the Ger-
man 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 Con-
stitutional Courts 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 dif-
ferences and imperfect understanding of the social, historical, political, and institu-
tional background from which foreign opinions emerge. But awareness of our limita-
tions 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 aris-
ing out of Germanys reunification. For the fi rst time, Germanys equality jurispru-
dence, featured in Chapter 7, is treated independently. Of par ticu lar note, the authors
discuss the Basic Laws 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 Germanys free speech and
religious liberty jurisprudence. Finally, in sections of several chapters, the third edition
explores the Federal Constitutional Courts attempts to balance competing liberty and
security interests in the post9/11 world. Cases presented on this trying and vitally im-
portant topic contrast, sometimes strikingly, with current U.S. jurisprudence.
Brought right up to the moment by Professors Kommers and Miller, The Constitu-
tional 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 Laws provision for the creation of a con-
stitutional 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 Germanys fi rst governing coalition enacted the Federal Constitu-
tional Court Act (Bundesverfassungsgerichtsgesetz; hereafter referred to as the
fcca), authorizing the tribunals 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 Ger-
many. Fewer still anticipated the Courts evolution into one of the worlds most pow-
erful 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 books fi rst edition coincided with comparative constitu-
tional laws emergence as a subject of serious scholarly inquiry. It was also a time
when constitutional courts created in the postWorld War II period were beginning
to seriously engage one anothers jurisprudence as an aid to the interpretation of
their respective constitutions. Already by 1980 Germanys 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 Germanys borders. But at the time few of the Courts
decisions were accessible in English. The fi rst edition sought to fi ll this gap. One of its
purposes was to bring the Constitutional Courts 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 worlds most advanced constitutional democra-
cies. Yet, with their differing perspectives on liberty and democracyborn of dis-
tinct social, legal, and cultural historiesthe 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 develop-
ing field of comparative constitutional law. Owing to the books enthusiastic recep-
tion 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 Germanys 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 interna-
tional 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 transla-
tions 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 con-
tinued 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, up-
dated 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, de-
scribe the range and character of constitutional review in Germany, and feature lead-
ing judgments of the Federal Constitutional Court in selected areas of its jurispru-
dence. 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 Courts 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 con-
stitutional cases and issues arising out of Germanys response to international terror-
ism since the 11 September 2001 terrorist attacks in the United States. Chapter 7 con-
tains 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 lib-
erty 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 respec-
tively on the constitutional law relevant to Germanys reunification and on the in-
creasingly prominent interplay in the Constitutional Courts jurisprudence between
the Basic Law, European law, and international law. German unity generated numer-
ous constitutional controversies related to electoral law, property rights, land reform,
pension law, disbarment proceedings, and the occupational rights of persons dis-
missed 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 Courts discrete reunification juris-
prudence 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
chapterChapter 6 in this editionon 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 interna-
tional organizations (Article 24) and incorporate into domestic law the general rules
of international law (Article 25). Several of the cases featured here reveal the Courts
struggle to respect the domestic constitutional order created by the Basic Law as well
as the Basic Laws commitment to internationalism. Needless to say, these interests
sometimes seem irreconcilable, perhaps most significantly when the Court has con-
sidered the force that decisions of supranational and international tribunals will have
in the German legal order. Of capital importance are the Courts Maastricht Treaty
and Lisbon Treaty cases. In both judgments, the Constitutional Court raised ques-
tions about the amending treaties compatibility with the essential and unamendable
features of Germanys 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 use-
ful in this edition to provide brief biographical sketches of all the presidents and vice
presidents who have been selected to preside over the Courts First and Second Sen-
ates, 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 personali-
ties of the Courts presiding justices and the change in the pattern of their recruit-
ment 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 presi-
dent 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 Courts
decisions are now presented in the various chapters and are, in any case, easily avail-
able 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 Bundestags 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 ad-
vanced seminars on German and comparative constitutional law. The response of
our studentsmainly doctoral candidates in political science, third-year law stu-
dents, and foreign law graduates pursuing ll.m. degrees in international human
rights lawhas been enthusiastic, reinforcing our determination to go forward with
this edition. Their critical engagement with the cases and issues featured in the vol-
ume helped us greatly to rethink certain aspects of its organization and analysis.
We have benefited tremendously from the help and advice of several legal schol-
ars, 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 Danel-
ski, Erhard Denninger, Edward Eberle, Mary Ann Glendon, H. Patrick Glenn, Ran
Hirschl, Vicki Jackson, Alexandra Kemmerer, Pierre Legrand, Ralf Michaels, Chris-
toph Mllers, 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, In-
grid Wuerth, and Peer Zumbansen.
For their significant assistance we would also like to thank these former and sit-
ting justices of the Federal Constitutional Court: Susanne Baer, Ernst Benda, Brun-
Otto Bryde, Udo Di Fabio, Dieter Grimm, Renate Jaeger, Paul Kirchhof, Jutta Lim-
bach, Gertrude Lbbe-Wolff, Rudolf Mellinghoff, Lerke Osterloh, Andreas Paulus,
Helga Seibert, and Helmut Steinberger. We are also grateful to the Constitutional
Courts administrative directors Karl-Georg Zierlein (197398) and Elke-Luise
Barnstedt (19992010). They graciously coordinated our visits to the Court, helping
us secure access to the Courts justices, its library, its archives, statistical informa-
tion, and otherwise inaccessible decisional materials. Matching their generosity were
Volker Roth-Plettenberg (the Courts head librarian since 1992) and the Courts chief
of protocol Margret Bckel. We also received valuable assistance from so many of the
Courts 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 men-
tion the helpful, patient, and inspiring clerks with whom we have had extensive con-
tact, especially Felix Hanschmann, Karen Kaiser, Stefan Magen, Nele Matz-Lck,
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 Ste-
fan 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. Brad-
ley 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 Heidelbergs Max Planck In-
stitute of Comparative and International Public Law. We would like to thank the In-
stitutes current and former directorsRudolf Bernhardt, Armin von Bogdandy,
Karl Doehring, Jochen Abr. Frowein, and Rdiger Wolfrumfor their generosity in
providing us, at different times, with fi nancial support, office space, and ready access
to the Institutes splendid library and unsurpassed bibliographical resources. It is not
an exaggeration to say that this effort would not have been possible without the ca-
maraderie, 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 Institutes remarkable research staff and
frequent guests, including Jrgen 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 Hester-
meyer, Mahulena Hofmann, Cristina Hoss, Daniel Klein, Steven Less, Emmanuelle
Mantlik, Nele Matz-Lck, Mariela Morales-Antoniazzi, Werner Morvay, Georg
Nolte, Karin Oellers-Frahm, Stefan Oeter, Dagmar Richter, Anja Seibert-Fohr, Silja
Vneky, 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 Academys gracious and capable director. Russell Miller
was awarded a Fulbright Senior Research Fellowship in 200910. The fellowship per-
mitted him to work on this and other comparative law projects while in residence at
Heidelbergs 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 insti-
tutions. 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 Millers 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 Insti-
tute, the latter of which is directed by his cherished colleague Mark Drumbl. Donald
Kommers is grateful to Deans David Link and Patricia OHara for all their kindness
during this books preparation. He also wishes to thank Roger Jacobs and Edward
Edmunds, Notre Dames 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 pro-
viding him with the logistical support needed for the completion of this project.
For student assistance we are grateful to Ariel Brio, Brian Burchett, Frank Co-
lucci, Melissa Brown, Michael Chambliss, Colin Littlefield, Peggy Fiebig, Jonas Cal-
lis, 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 edi-
tion we were assisted by Jeremy Rabideau, a Notre Dame doctoral candidate in po-
litical science. Jeremy competently and professionally dispatched a broad range of
indispensable assignments, including the writing of summaries for scores of the Con-
stitutional Courts decisions and of the developing research from English and Ger-
man 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 Dukes
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, de-
sign, 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 translationsthe Rubaiyat, for
exampleare those that depart most widely from the originalsthat is, if the trans-
lator 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 col-
legial in nature. They are institutional products often pounded out on the anvil of
negotiation and compromise. Personalized dissenting opinions on the Federal Con-
stitutional Court were not allowed until 1971 and since then, as now, they are rela-
tively rare. Less than 1 percent of the Courts published decisions have featured dis-
senting 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 transla-
tors 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 Courts juris-
prudence than Hedwig Weiland, the Constitutional Courts staff translator. She has
masterfully supervised the translation of scores of the Courts most important deci-
sions, 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 pro-
duce 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 Courts 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. Weilands
supervision to expedite and enrich our work. Th is collaboration has required us to cor-
respond frequently with her. She has consistently been a gracious and insightful inter-
locutor. 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 lead-
ing sentences (Leitstze) or propositions of law advanced in the judgment. The cap-
tion following the Leitstze 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 Courts jurisdiction
over the case and, fi nally, the Courts 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 Consti-
tutional Court. Cases are cited by number, date, and jurisdictional category. An ex-
ample is the East German Disbarment Case (1995; no. 10.15) in which East German
lawyers fi led constitutional complaints contesting their disbarment following reuni-
fication. 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 Sen-
ate in the year 1994. (The case was combined with the similar complaints of two
other lawyers.) The unnamed lawyer challenging the constitutionality of his disbar-
ment 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., Abor-
tion 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 loca-
tion 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
Courts 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 Courts
existing decisions and to the secondary literature, including the Courts rehearsal of
the views advanced in academic treatises and commentaries on the Basic Law. With
rare exceptions we have omitted string citations to the Courts decisions and refer-
ences to the secondary literature. We have translated the terms Beschwerdefhrer
and Antragsteller variously as complainant, plaintiff, and petitioner. Complain-
ant 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 constitu-
tional 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 Brgerliches Gesetzbuch (Civil Code)

bgb1 Bundesgesetzblatt (Federal Law Gazette [statutes at large])
bgh Bundesgerichtshof (Federal Court of Justice)
BGHSt Entscheidungen des Bundesgerichtshof in Strafsachen (Decisions of
the Federal Court of Justice in Criminal Matters)
bghz Entscheidungen des Bundesgerichtshof in Zivilsachen (Decisions of
the Federal Court of Justice in Civil Matters)
brd Bundesrepublik Deustschland (Federal Republic of Germany)
BVerfG Bundesverfassungsgericht (Federal Constitutional Court)
BVerfGE Entscheidungen des Bundesverfassungsgerichts (Decisions of the
Federal Constitutional Court)
BVerfGG Bundesverfassungsgerichtsgesetz (Federal Constitutional Court Act
[FCCA])
BVerfGK Kammerentscheidungen des Bundesverfassungsgerichts (Chamber
Decisions of the Federal Constitutional Court)
cdu Christlich-Demokratische Union (Christian Democratic Union)
csu Christlich-Soziale Union (Christian Social Union)
DIN Deutsches Institute fr Normung (German Institute for
Standardization)
DSU Deutsche Soziale Union (German Social Union)
dkp Deutsche Kommunistische Partei (German Communist Party)
dm Deutsche Mark (German Mark)
DRiG Deutsches Richtergesetz (German Judiciary Act [GJA])
ealg Entschdigungs- und Ausgleichsleistungsgesetz (Compensation and
Equalization Payments Act)
ecthr European Court of Human Rights
EEC European Economic Community
EFSF European Financial Stability Facility
eu European Union
EuGRZ Europische Grundrechte-Zeitschrift (European Journal of Basic
Rights)
fap Freiheitliche Deutsche Arbeiterpartei (Free German Workers Party)
fdp Freie Demokratische Partei (Free Democratic Party)
 xxvi Abbr eviations
gg Grundgesetz (Basic Law)
GO-BVerfG Geschftsordung des Bundesverfassungsgerichts (Rules of Proce-
dure of the Federal Constitutional Court)
jsc Judicial Selection Committee
kpd Kommunistische Partei Deutschlands (Communist Party of
Germany)
kug Kunsturheber-rechtsgesetz (Art Copyright Act)
nato North Atlantic Treaty Organization
nl National List
npd Nationaldemokratische Partei Deutschlands (National Democratic
Party)
pds Partei des Demokratischen Sozialismus (Party of Democratic
Socialism)
RGSt Entscheidungen des Reichsgerichts in Strafsachen (Decisions of the
[Reich] Imperial Court of Justice in Criminal Matters)
rgz Entscheidungen des Reichsgerichts in Zivilsachen (Decisions of the
[Reich] Imperial Court of Justice in Civil Matters)
sed Sozialistische Einheitspartei Deutschlands (Socialist Unity Part of
Germany)
spd Sozialdemokratische Partei Deutschlands (Social Democratic Party)
srp Sozialistische Reichspartei (Socialist Reich Party)
StGB Strafgesetzbuch (German Penal Code)
UN United Nations
weu Western European Union
 Part I
German Constitutionalism

Germanys Basic Law (Grundgesetz) is one of the worlds most celebrated constitu-
tions. Adopted as a temporary charter to govern the western part of a divided nation
in 1949, it became the constitution of all Germany with the countrys unification in
1990. On 23 May 2009 Germans celebrated the Basic Laws sixtieth anniversary. Hav-
ing outlasted all of Germanys previous constitutions, it has taken on the character
of a charter ordained in perpetuity. One of its most significant innovations was the
creation of the Federal Constitutional Court (Bundesverfassungsgericht). With its
sweeping powers of judicial review this tribunal has developed into an institution of
major policy-making importance in the Federal Republic of Germany. Today it is
commonly acknowledged to be, along with the Supreme Court of the United States,
one of the worlds most influential constitutional courts. Judicial review is a relatively
new departure in German constitutional history. Postwar German leaders believed
that their traditional parliamentary and judicial institutions, such as those created
under the Weimar Constitution, were insufficient to safeguard the new liberal demo-
cratic order. So they created a national constitutional tribunal to serve as a guardian
of political democracy, to enforce a consistent reading of the constitution on all
branches and levels of government, and to protect the basic liberties of the German
people. The framers of the Basic Law had given up on the old positivist idea that law
and moralityand justiceare separate domains. Constitutional morality would
now govern both law and politics.
The two chapters of Part I furnish the backdrop to this books treatment of German
constitutional law and policy. It seems useful at the outset to introduce our readers to
the powers and organization of the Federal Constitutional Court and to set forth a
systematic account of the Basic Law and the principles governing its interpretation.
Accordingly, Chapter 1 describes the Federal Constitutional Courts origin, struc-
ture, powers, and decisional procedures, along with a discussion of judicial review
and its impact on German law and politics. It also includes an account of important
organizational and staff changes that have taken place over the course of the Courts
more than sixty years of operation.
Chapter 2 focuses on the main features of the Basic Law and the principles on
which they are grounded. It summarizes the nature of the German polity, emphasiz-
ing in particular its federal, democratic, and social character. In addition, it introduces
readers to the modes, processes, and sources of constitutional interpretation, along
with the theories of constitutionalism that inform the Courts visionsometimes
competing visionsof the Basic Law as a whole. Unlike previous German constitu-
tions, the Basic Law creates a judicially enforceable binding order of values. It also
 2 Ger man Constitutionalism
creates what the Basic Law describes as the free democratic order in which indi-
vidual liberties, majority rule, responsible and competitive party government, sepa-
ration of powers, the constitutional state principle, and the observance by citizens of
certain principles of political obligation play a central role. The Constitutional
Courts function in Germanys juridical democracy is to defi ne, protect, and recon-
cile these various and often confl icting constitutional values. In performing this task,
as the cases featured in Parts II and III show, the Court has been a crucial player in
German constitutional politics.
 1
The Federal Constitutional Court

The jurisdiction of the U.S. Supreme Court extends to cases and controversies aris-
ing 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, Germanys
Federal Constitutional Court (Bundesverfassungsgericht), as guardian of the consti-
tutional 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 in-
grained Continental belief that judicial review is a political act, following the as-
sumption that constitutional lawlike international lawis 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 Germanys Constitution,
known as the Basic Law (Grundgesetz), to assign the function of constitutional judi-
cial review to a single court was the traditional structure of the German judiciary and
the unfamiliarity of its judges with constitutional adjudication. The German judi-
ciary includes separate hierarchies of administrative, labor, fiscal, and social courts,
while civil and criminal jurisdiction is vested in another, much larger, system of ordi-
nary 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 (Bundesar-
beitsgericht), and the Federal Social Court (Bundessozialgericht). Like the appellate
courts generally, these tribunals are staffed by a host of judges (more than one hun-
dred 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 de-
clare laws unconstitutional, unworkable in Germany.
Judicial attitudes toward constitutional review also militated against a decentral-
ized 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 train-
ing,5 and success is denoted by promotion within the ranks of the judicial bureau-
cracy. In contrast, most American judges are appointed at a later stage of their ca-
reers, 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 conserva-
tive 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 con-
centrated in a single and independent tribunal.7

origin

German legal scholars have traditionally distinguished between constitutional review

(Verfassungsgerichtsbarkeit) and judicial review (richterliches Prfungsrecht). Judi-
cial 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 Germanys 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 Impe-
rial Constitution of 1871. During this period (18151918) when German constitutional
thought pivoted on the concepts of state and sovereignty,8 constitutional review pro-
vided 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
handa device for protecting individual rightsis associated with Germanys re-
publican 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 obliga-
tions. Constitutional review commenced when these tribunals enforcedto the ex-
tent that their rulings could be enforcedthe 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 Germanys monarchical constitutions, the
forum for the resolution of such disputes was usually the parliamentary chamber in
which the states were corporately represented. Under Germanys republican consti-
tutions, on the other hand, the forum was usually a specialized constitutional tribu-
nal, the most notable of which, prior to the creation of the Federal Constitutional
Court, was the Weimar Republics 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 periodi-
cally to decide constitutional disputes. Its jurisdiction included 1) the trial of im-
peachments 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 states 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 Courts membership varied accord-
ing 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 Constitu-
tional Court, highlight three salient features of constitutional review in German his-
tory. First, as just noted, an institution independent of the regular judiciary exercises
such review. Second, it takes cases on original jurisdiction, deciding them in re-
sponse to a simple complaint or petition, unfettered by the technicalities of an ordi-
nary lawsuit. Finally, it settles constitutional disputes between and within govern-
ments. 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 states will once it is translated into law, whereas the latter con-
cerns those organs of government constitutionally obligated to form the states will.14
These organsthe constitutionally prescribed units of the political systemand
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 judges only duty under the tra-
ditional 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 Impe-
rial 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 fundamen-
tal 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 (18711918).17
The Weimar Republic provided a climate more sympathetic to judicial review. In-
spired by the Frankfurt Constitution of 1849, the Weimar Constitution of 1919 estab-
lished 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 predictedand warnedthe Weimar Constitutions 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 re-
publican revolution of 1918 with its jurisdictionand nameintact), 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 actionsor inactions that failed to safeguard
property rightson 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 (Lnder) 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 juris-
diction) 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 constitu-
tional 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 govern-
ment, in the American view at least, implied the judicial power to assess the constitu-
tionality of laws and other official acts. Judicial review was certainly implicit in the
American understanding of an independent judiciary. The military governors, how-
ever, 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 consti-
tutional democracy,27 Germans relied mainly on their own tradition of constitu-
tional review.
The groundwork for the Basic Law was prepared in a resplendent nineteenth-
century castle on an island in the Chiemseea vast Bavarian lakeduring August
1948. On the initiative of Bavarias state governor, Minister-President Hans Ehard,
the Lnder 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 Herrenchiem-
see proposals, which included provisions for a national constitutional tribunal,29 fol-
lowed 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 Republics
State High Court. Nawiasky was a strong advocate of judicial review during the Wei-
mar 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 Constitu-
tional 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 eras 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 con-
stitutional rights. Aware of the potential power of the proposed court, the conferees
recommended a plan of judicial recruitment that would broaden the courts 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 courts presiding justice (presi-
dent), 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 courts structure continued
in the constitutional assembly, officially known as the Parliamentary Council (Parla-
mentarischer Rat).34 It all boiled down to a dispute over the nature of the new tribu-
nal. Should it be like Weimars State High Court and serve mainly as an organ for
resolving confl icts between branches and levels of government (i.e., a court of consti-
tutional 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 tribu-
nal 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 re-
garded as the political role of a constitutional court and the more objective law-
interpreting role of the regular judiciary. Some delegates preferred two separate
courtsone 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 juris-
diction over all constitutional disputes, including the authority to review the consti-
tutionality of laws.
The fi nal version of the Basic Law extended the newly created Federal Constitu-
tional Courts 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 Courts jurisdiction could be invoked only by federal and state gov-
ernments (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 stand-
ing 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 pro-
tect 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 con-
servative judiciary. Impatient to get on with the work of producing a constitution, the
framers stopped there, leaving other details of the Constitutional Courts organiza-
tion 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 perspec-
tives of the cdu-led federal government, the spd opposition, and the states (repre-
sented 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 Courts
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 Courts 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 Laws provisions relating to the Courts organization, powers, and
procedures, important features of which are discussed below. Representing numer-
ous political compromises, the fcca 1) lays down the qualifications and tenure of the
 10 chapter one
Courts 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 ple-
num (both senates sitting together), and 7) establishes the conditions for the removal
or retirement of the Courts 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 Courts 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 (Bundesprsi-
dent), 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 com-
plaints brought by ordinary citizens, concrete judicial review, requests for temporary
 The Feder al Constitutional Court 11
table 1. Federal Constitutional Court Cases, 19512011

Proceeding Docketed Decided

Constitutional Complaints 188,187 166,608*

Concrete Judicial Review 3,511 1,261**
Requests for Temporary 2,370 1,847
Injunction
Disputes between Federal Organs 180 97
Abstract Judicial Review 172 109
Federal-State Confl icts 45 27
Unconstitutional Parties 8 5
Other Proceedings 545 291
Totals 195,018 170,245

* Constitutional complaints decided by the senates: 4,034. The re-

mainder 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 OrganisationStatistik fr das Geschft sjahr
2011Eingnge nach Verfahrensarten, available at www.bundes-
verfassungsgericht.de/organisation/gb2011/A-I-4.html; Decided:
Bundesverfassungsgericht, Aufgaben, Verfahren und
OrganisationStatistik fr das Geschft sjahr 2011Erledigungen
nach Verfahrensarten, available at www.bundesverfassungsgericht
.de/organisation/gb2011/A-I-5.html.

injunctions, disputes between high organs of the national government, abstract judi-
cial review, federal-state confl icts, and challenges to the constitutionality of political
partiesimportance here being measured by the number of cases fi led in each cate-
gory. As Table 1 shows, constitutional complaints make up about 96 percent of the
Courts caseload. As we shall see, however, some of the Courts most politically im-
portant work arises in other jurisdictional areas.

Constitutional Complaints. A constitutional complaint may be brought by individu-

als 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. Consti-
tutional 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 ac-
cept 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 be-
stowed by legislation, and German citizens took advantage of this statutory right
inincreasing 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 impor-
tant prerogative. From the beginning, these complaints have constituted the Courts
major source of business. In response, and with the Courts 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 municipali-
ties with the right to fi le a constitutional complaint if a law violates their right to self-
government 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 permit-
ted to fi le constitutional complaints, although the Court has ruled that foreign corpo-
rations 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, in-
cluding 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 thresh-
old requirements, a complaint must be offensichtlich begrndet or clearly justified
(obviously stating a legally justifiable claim) if it is to be accepted and decided on its
merits by one of the Courts 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, com-
plaints are prepared with the aid of a lawyer,46 even though no legal assistance is re-
quired 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 com-
plaints result in some of the Courts 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 or-
dinary 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 con-
stitutional question to the Federal Constitutional Court before the case can be de-
cided. 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 constitu-
tional 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 convic-
tion 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 Courts fi rst sixty years its docket has been dom-
inated by constitutional complaints and concrete judicial review proceedings. In
recent years, however, applications for temporary injunctions (Einstweilige Anord-
nungen) have overtaken concrete judicial review proceedings as the Courts second
largest docket item. Alone among the jurisdictional provisions discussed here, ap-
plications for temporary injunctions have their basis in a statutory provision (Arti-
cle 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 sub-
stantive constitutional question but, rather, invest the Court with the procedural
authority to stay actions or measures if its ability to render a substantive ruling
isthreatened. Thus, temporary injunction proceedings serve to protect the power
ofthe Court and the publics 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 Courts 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 out-
come 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 for-
eign policy questions.52 Th is dynamic also highlights the fact that applications for
temporary injunctions are not limited to constitutional complainants but are avail-
able in all disputes subject to the Courts jurisdiction, including those disputes featur-
ing 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 tempo-
rary 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 substan-
tive 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 substan-
tive 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
Courts repeated insistence to the contrary, its decision on an application for a tem-
porary injunction very frequently is indicative of the outcome in the underlying
substantive constitutional matter.

Disputes between High Federal Organs. Confl icts known as Organstreit proceed-
ings involve constitutional disputes between the highest organs or branches of the
Federal Republic. The Courts function here is to supervise the operation and inter-
nal 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 Courts Organstreit juris-
diction.57 Early on, the Courts 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, how-
ever, to administrative agencies, governmental corporations, churches, or other cor-
porate bodies with quasi-public status.60

Abstract Judicial Review. Whereas the U.S. Supreme Court requires a real contro-
versy 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 laws 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 proceed-
ings. The question of the laws 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
individuals 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. In-
deed, once the federal government, a Land government, or one-fourth of the Bunde-
stags members place a statute or legal norm before the Court on abstract review,
the case cannot be withdrawn without the Courts permission, a condition that rein-
forces 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 Lands administration of federal law or
the federal governments 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 Lnder,
 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 as-
signed by the Basic Law. For its part, the Constitutional Court is obligated by law
todeclare 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 de-
cide a point of law relevant to the interpretation of the [applicable] provision of
the Basic Law. 64

Prohibiting Political Parties. The Federal Constitutional Courts function as guard-

ian 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
ofGermany 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 cabi-
net) to initiate an Article 21 action against a party. A Land government may apply to
have a party declared unconstitutional if that partys organization is confi ned to the
applicants 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 re-
jected 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 Hamburgs petition to ban the Na-
tional 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 democ-
racy, 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 gov-
ernment, seeking a ban of the far-right National Democratic Party of Germany (Na-
tionaldemokratische 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 pow-
ers, and even its relationship to the other federal courts, remained an unsettled issue.
The Basic Law itself was ambivalent on the matter of the Courts 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 con-
stitutional organs (Bundesrat, Bundestag, federal president, and federal government)
created by the constitution. On the other hand, the Basic Law authorized Parliament
to regulate the Courts 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 Courts fi rst president, Hermann Hpker-Aschoff. As a
consequence, the justices boldly set out, in their fi rst year of operation, to defend the
Courts 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 origi-
nally 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 Courts full control over its internal adminis-
tration, including the power to appoint its own officials and law clerks. The memoran-
dum 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 Repub-
lic 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 gov-
ernment, 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 Demo-
cratic 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 Hpker-Aschoff, the stately and highly respected presi-
dent or chief justice69 of the Federal Constitutional Court.
 18 chapter one
In 1953 the Bundestag severed the Courts ties to the Ministry of Justice, and by
1960, with the gradual growth of the Courts prestige and influence, all of the de-
mands articulated in the Leibholz memorandum had been met.70 In Germanys of-
ficial ranking order, the Courts 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 Courts hard-won constitutional status
was best symbolized by a 1968 amendment to the Basic Law providing that the func-
tion 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 un-
less such an amendment is required, in the opinion of the Federal Constitutional
Court, to maintain the Courts 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 per-
sonnel.73 Justices are elected to either the First or Second Senate, with the Courts
president presiding over one senate and the Courts 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 admin-
istrative 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 divi-
sion of jurisdiction showed that the senates were intended to fulfi ll very different
functions. The Second Senate was designed to function much like Weimars State
High Court; it would decide political disputes between branches and levels of govern-
ment, settle contested elections, rule on the constitutionality of political parties,74
preside over impeachment proceedings, and decide abstract questions of constitu-
tional law. The First Senate was vested with the authority to review the constitutional-
ity of laws and to resolve constitutional doubts arising out of ordinary litigation. More
concerned with the nonpolitical side of the Courts docket and the objective pro-
cess 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 re-
view cases. As a consequence, the Bundestag amended the fcca in 1956 to distribute
the caseload more evenly between the senates. Much of the First Senates 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 plenumthe two
senates sitting togetherwas authorized by law to reallocate jurisdiction in a man-
ner 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 Courts total mem-
bership 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, al-
though 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 un-
availability of one or more of its justicesa quorum consists of six justicesa 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 Courts president and vice presi-
dent) are excluded from serving in this substitute capacity.79 Second, upon the dis-
qualification of a justice from participating in a particular caseeven if such disquali-
fication does not destroy the respective senates quoruma 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 Courts justices periodically convene as the ple-
num to address administrative matters relevant to the Court as a whole. The plenum,
for example, issues rules on the Courts 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 ple-
num in these circumstances is a matter to be decided by the senate that was origi-
nally responsible for the case, that is, the senate that wants to disregard the other
senates 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 plenums intervention.85 But the sen-
ates jealously guard against such meddling. In the Unwanted Child Case (1997;
no.4.3), for instance, the First Senate refused to heed the Second Senates call for the
 20 chapter one
plenum by arguing that resort to the plenum is necessary only if an intentional de-
parture from a decisive facet of the other senates reasoning in a similar case is impli-
cated. The First Senate explained that a senates legal opinion is decisive if retract-
ing 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 Senates 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 Courts decision-making process and

ease the burden of an increasing number of cases, the internal structure of the two sen-
ates 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 con-
stitutional complaints.88 Th is was made necessary by the fact that, except under dis-
tinct 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 Courts
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 in-
admissible or to offer no prospect of success for other reasons.91 Under current proce-
dure, if one of the three justices votes to accept a complaintthat is, if he or she thinks
it has some chance of successit is forwarded to the full senate for ordinary consider-
ation 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 Courts 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 three-
justice chambers are now empowered to rule on the merits of a constitutional com-
plaint 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
(Zulssigkeit), 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 un-
published, and they are cata logued in the Courts 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 Courts 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 periodi-
cals 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 Courts 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 Courts overwhelming caseload, the
fcca authorizes the Court to fi ne petitioners who abuse the constitutional com-
plaint 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 im-
pose 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 per-
cent 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 con-
trol the Courts docket, it is not without problems. It has been the subject of several
constitutional challenges, the complainant having argued in each case that a cham-
bers dismissal of his or her complaint constituted a denial of the right to the juris-
diction 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 complain-
ants on the basis of its original statutory authority to establish internal committees.
In one instance, seemingly piqued by the audacity of the complainant who chal-
lenged its decision-making procedures, the Second Senate slapped a nominal fi ne on
the complainant for abusing the constitutional complaint procedure.101 These deci-
sions, 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 re-
jecting 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 differ-
ent standards may exist from one chamber to the next, undermining the uniformity of
the Courts 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
theCourt, 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 involv-
ing 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, per-
sons 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 simulta-
neously hold office in the legislative or executive branch of the federal or a state gov-
ernment. 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 insti-
tution of higher education and that the justices judicial functions must take prece-
dence 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 Courtjustices
not required to be chosen from the federal courtswere limited to renewable eight-
year 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 Courts 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
Courtfederal judges and other membersmust 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 jus-
tices could not be expected to speak their minds if their tenure depended on the con-
tinuing pleasure of the Bundestag or Bundesrat. The justices themselves favored life-
time 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 in-
dependence and the need for a greater measure of judicial openness on the Constitu-
tional Court.109
 The Feder al Constitutional Court 23
Machinery of Judicial Selection. The Basic Law provides that half the Courts mem-
bers be elected by the Bundestag and half by the Bundesrat. The participation of the
Bundestag in the selection of the Courts 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 Courts staffi ng.110 Similarly, the Bundesrats partici-
pation in the judicial selection process was meant to ensure that the Lnder would
have an equally significant voice on the Court.111 Several of the Basic Laws 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 (Wahlmnnerausschuss). Party representation on the Judi-
cial Selection Committee is proportionate to each partys strength in the Bundestag;
eight votesa two-thirds supermajorityare 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 stipu-
lates 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 Courts president and vice
president (the Bundestag was authorized to elect the fi rst president and the Bundes-
rat 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
Bundestags 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 justices term, the chair of the Judi-
cial Selection Committeethe oldest member of the committeeor 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 Ju-
dicial 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 Com-
mittee, which consists of senior party officials and the top legal experts of each par-
liamentary party, conducts its proceedings behind closed doors and after extensive
consultation with the Bundesrat.117 Although the parliamentary parties may not le-
gally 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 Constitu-
tional Court. Germanys two main parties, the Social Democrats and the Christian
Democrats, are in a position to veto each others judicial nominees. The Free Demo-
cratic 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 neces-
sity 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 com-
mission consisting of the state justice ministers prepares a short list of potentially
electable nominees. The justice ministers on the commission, like certain state gov-
ernors (minister-presidents) and members of the Bundestags Judicial Selection
Committee, often are themselves leading candidates for seats on the Constitutional
Court. Informal agreements emerge from the commissions proceedings, specifying
which states shall choose prospective justices and in what order. Th roughout this
process the commission coordinates its work with the Bundestags Judicial Selection
Committee. It is important to avoid duplicate judicial selections, and the two cham-
bers 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 com-
bines 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 conse-
quence of the supermajority required for election, nonetheless has consistently pro-
duced a Constitutional Court that is reflective of Germanys most prominent politi-
cal parties, regional divisions, and confessions.120 In one respect, however, the Court
has been less than representative of German society. The presidency of Jutta Lim-
bach (19942002), 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 Schef-
fler, who participated in the Parliamentary Council, was appointed as one of the Courts
fi rst justices. In the subsequent sixty-one years, during which more than one hun-
dred jurists have donned the Courts red robes and caps, only thirteen other women
have found their way to Karlsruhe. In 2011 only five of the Courts sixteen justices
were women.
 The Feder al Constitutional Court 25

pro cess

Internal Administration. The Federal Constitutional Court achieved a major vic-

tory when it won the authority early on to administer its own internal affairs. Admin-
istrative autonomy had two notable consequences for the Courts institutional devel-
opment. 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 archi-
tects and engineers of its own choosing. Second, the administrative authority of the
Courts president was substantially enlarged. While only primus inter pares in the ju-
dicial conference room, he or she is primus on all other matters of internal adminis-
tration, a situation that once aggravated relations between the president and several
associate justices.
In 1975, after years of discord between the Courts president and individual jus-
tices over their respective duties and powers, the Courts plenum enacted a set of
standing rules of procedure governing the Courts internal operations that has been
revised several times since.121 The rules charge the plenum, over which the Courts
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 ad-
ministration is the responsibility of the Constitutional Courts 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 Courts Rules of

Procedure (Geschftsordnung des Bundesverfassungsgerichts) set forth each senates
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
acase if they are related to one of the parties or have a personal interest in its out-
come.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 justices absence. A decision denying or upholding
a voluntary recusal or a challenge to a justices refusal to withdraw from a case must
be supported in writing and included among the Courts 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 senates 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 incapa-
ble 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 Courts deliberations are secret, and the justices render their
decisions on the basis of the official record. The rules require that each senate deci-
sion 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 argu-
ment 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 Courts 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 lawfor example, most abstract and concrete judicial review cases
must be published in the Federal Law Gazette,129 along with all parliamentary resolu-
tions 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 jurisdic-
tion. 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 ac-
cording 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 senates presiding justice, each justice serves as the rap-
porteur (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, Germanys partici-
pation in supranational organizations like the European Union (eu) and interna-
tional 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, oc-
casionally justices serve as rapporteurs in cases outside their specialties.
The rapporteurs 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 Courts 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 Courts 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 yearfor 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 rappor-
teur, 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 manda-
tory 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 un-
constitutionally. The generous time allotted to oral proceedingsa full day, or more
in exceptional casesand the Courts readiness to hear the full gamut of argumen-
tation 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 Courts oral ar-
guments cannot be taped or broadcast. The Court has upheld this rule over constitu-
tional 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 Courts public proceedings when the justices take
the bench in their resplendent red robes and caps, up to the moments just after the
 28 chapter one
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 Septem-
ber, 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 rec-
ommended solution. The rapporteurs 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 rapporteurs expertise and
judgment.134
Still, the rapporteur has to win the consent of his or her colleagues. It is the rap-
porteurs 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 minorityand even the most influential justices
occasionally fi nd themselves in this positionhe or she does not necessarily lose all
influence over the case; the rapporteur still has the task of writing the Courts opin-
ion. If the rapporteur combines political sagacity with a deft literary hand, it is possi-
ble 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 hap-
pens.135 If the rapporteur understands the requisites of judicial statesmanship,
heor 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 opinionsthat is, opinions that reduce discord on the
bench and preserve the Courts moral authority in the public mindis likely to be a
function of the presiding justices capacity for leadership. The presiding justices 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 particu-
larly 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 con-
sensus on the Court, much as in German society generally. Thus, despite the intro-
duction of signed dissenting opinions in 1970, the Court continues to unanimously
decide more than 90 percent of its reported cases. Although the fcca requires
thedisclosure 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 Courts 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 de-
parture from the Courts prized institutional unanimity, might provide formal insight
into the Courts 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 mini-
mize published dissents. Since 1971, when they were fi rst allowed, through the end
of2011, there have been only 146 published dissents.137 Dissenting justiceseven if
they have circulated written dissents inside the Courtusually choose not to pub-
lish 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 Courts 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 jurispru-
dential differences with the majority. . . . Such dissenting opinions can endanger the
Courts majority opinion.138 Despite such concerns, there are signs that the Courts
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 re-
unification (thirteen published dissents in 1994 and 1995), the Court seemed to re-
turn 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 Courts 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
Merkels 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 Courts 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 indi-
viduals 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 Courts General Registers
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 Registers view on whether a judicial
decision is at all necessary or appropriate.140 Of course, if the General Registers 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 Registers clarification, the petitioner writes back demanding to be
heard, his or her submission is lodged with one of the senates.141 Th is process high-
lights the fundamental aim of the General Registers review, which is to give the
petitioner an informed characterization of the submission while underscoring the
petitioners ultimate responsibility for the complaint. In 2011 the General Registers
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 Regis-
ter 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 Registers Office often is busy wrapping up communications received in
a preceding year and, concomitantly, often is not able to resolve all the communica-
tions 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 Registers explanatory letters, which have the practical func-
tion 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 non-
specific communications received by the Court, particularly by the less-sophisticated
recipients of the letters and in the Courts statistics. These problems aside, the work
of the General Register is remarkable in the following respect: through the General
Registers 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
Courts 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 more-
or-less objective and frequently undisclosed criteria to influence the summary dispo-
sition of cases and, thus, the resolution of matters that formally lay within the full
senates competence.143 The increased number of legal assistants each justice is able
 The Feder al Constitutional Court 31
table 2. Federal Constitutional Courts Caseload

Jurisdictional Category 19512001 2009 2010 2011

Constitutional Complaints 126,962 6,308 6,251 6,036

Concrete Judicial Review 3,147 47 19 35
Requests for Temporary 1,157 148 132 103
Injunction
Disputes between Federal 130 2 3 9
Organs
Abstract Judicial Review 141 2 0 7
Federal State Confl icts 35 0 1 0
Election Disputes 144 1 16 17
Other Proceedings 451 0 0 1
Totals 136,647 6,508 6,422 6,208

Source: Bundesverfassungsgericht, Aufgaben, Verfahren und

OrganisationStatistik fr das Geschft sjahr 2011Eingnge nach
Verfahrensarten, available at www.bundesverfassungsgericht.de
/organisation/gb2011/A-I-4.html.

to employ (now four) works in combination with the General Registers review and
the chamber system to help manage the Courts docket. As Joachim Wieland re-
marked after his ser vice as a legal assistant at the Constitutional Court, the prepara-
tion of the decision concerning the admittance of a constitutional complaint forms,
asa rule, one of the more central tasks of the legal assistants.144 These summary pro-
cesses were viewed as adequately responding to the Courts crushing workload, such
that lawmakers were persuaded at the end of the 1990s, with the Courts blessing, to
forgo granting the Court discretionary case selection authority (freies Annahmever-
fahren) of the kind enjoyed by the U.S. Supreme Court.
The number of concrete review references has not added much to the Courts
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 con-
stitutional 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.
 32 chapter one
table 3. Sources of Constitutional Complaints, 2011

Lodged With

Filed Against First Senate Second Senate Total

Ordinary Courts
Civil 1,654 771 2,425
Criminal 59 1,412 1,471
Administrative Courts 439 352 791
Social Courts 516 1 517
Finance Courts 105 74 179
Labor Courts 102 0 102
Laws and Regulations 61 32 93
Parliamentary Omissions 12 5 17
European, Federal, State, and 86 109 195
Local Administrative Actions

Sources: First SenateBundesverfassungsgericht, Aufgaben, Verfahren und

OrganisationStatistik fr das Geschft sjahr 2011Erster Senat
Verfassungsbeschwerden, available at www.bundesverfassungsgericht.de
/organisation/gb2011/B -II-2.html; Second SenateBundesverfassungsgericht,
Aufgaben, Verfahren und OrganisationStatistik fr das Geschft sjahr
2011Zweiter SenatVerfassungsbeschwerden, 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
casessixteen in 2011the constitutional complaint procedure is now deeply
rooted in Germanys legal culture. The right of any citizen to take a complaint to
Karlsruhe is an important factor in the Courts high rating in public opinion polls
and, perhaps, the chief reason for the development of a rising constitutional con-
sciousness among Germans generally.
Most of the Courts political jurisprudence falls into other jurisdictional categories,
particularly conflicts between branches of government, disputed elections, and federal-
state 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
 The Feder al Constitutional Court 33
controlled by opposing political parties. The apparent manipulation of the judicial pro-
cess 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 justicehave not gained much parliamentary sup-
port for the constitutional amendment that would be necessary to abolish abstract re-
view. 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 ac-
tions raise major disputes over its interpretation. This observation clears the way for the
following consideration of the Courts role in interpreting the Basic Law and its con-
comitant 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 commen-
tators have sought to mark the boundary between legislation and constitutional ad-
judication and to comprehend the fi ne line that the Federal Constitutional Court has
drawn between law and politics.149 The following discussion summarizes the strate-
gies 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 con-
stitutional 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 broad-
ranging, 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
Courts ruling is its moral authority, the conscience of the parties concerned, and in
the last resort, the peoples 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 Courts precious moral authority is supported by two pillars. First, the Court
carefully observes the governing procedure described in the earlier sections of
thischapter. Second, the Court follows a number of guidelines analogous to certain
 34 chapter one
maxims of judicial self-restraint advanced by Justice Brandeis in Ashwander v. Tennes-
see 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 Courts refusal to decide moot questions.
We have seen that concrete judicial review references must arise within the frame-
work of actual litigation. The justiciability of a constitutional complaint likewise de-
pends on certain attributes of concreteness and particularity. Even cases coming be-
fore 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 consti-
tutional 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 states 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 alleg-
edly unconstitutional behavior, preferring as a matter of strategy to allow the chal-
lenged 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 Courts
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 fol-
lows 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 legisla-
ture. Nor will statutes be overturned simply because the legislature may have inac-
curately 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 (Verhlt-
nismigkeit), the constitutional state principle (Rechtsstaat), or some related princi-
ple 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. An-
other is that only statutes passed since the ratification of the Basic Law qualify as sub-
jects 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 regula-
tions, 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 preconstitu-
tional 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 Courts 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 partys withdrawal of a constitutional complaint re-
moves the matter from the Courts jurisdiction. In the German Spelling Reform Case
(1998) the Court noted that the general importance of a case might elevate the objec-
tive role of the constitutional complaint, making it more important to the broader
interpretation and development of constitutional law than to the complainants sub-
jective, individual interest in the protection of his or her constitutional rights. Brush-
ing 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 mech-
anisms of judicial restraint mentioned in the previous section, the Courts decision-
making 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 ad-
ministrative 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 federations predominant lawmaking role in nearly every major area of public
policy. The large majority of these rulings admittedly involved minor legal provi-
sions, but a fair number featured important public policies in fields such as educa-
tion, 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 de-
clared 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, 19512011

Filed Against Federal State Total

First Senate 284 88 372

Second Senate 173 95 268
640

Invalidated legal provisions include federal or state laws/regula-

tions declared void, incompatible and void, or only incompatible and
not voided.
Source: Bundesverfassungsgericht, Vom Bundesverfas-
sungsgericht in der Zeit von 1951 bis 31.12.2011 als verfassungs-
widrig beanstandete Normen (nichtig, unvereinbar und nichtig,
nur unvereinbarohne Nichtigerklrung), 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 inter-
pret 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 uncon-
stitutional 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
togive 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 abor-
tion statute, the Court effectively rewrote the law, which Parliament subsequently
felt obliged to pass.
These rulings, like all of the Courts decisions, including those that declare a statute
or other legal provision compatible with the Basic Law, have the force of law, and as
aconsequence 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 Ger-
man 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 condi-
tionslaid 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 Courts rulings are exclu-
sively declaratory. The fcca includes a provision that actually bars direct enforce-
ment.169 Its decisions are enforceable through ordinary legislation and judicial
 38 chapter one
proceedings. The Courts jurisdiction is also compulsory. It lacks a storehouse of
passive virtues by which it might for prudential reasons avoid a ruling on a consti-
tutional issue.170 Moreover, the Courts declaratory authority is sweeping, for it is at
liberty to range beyond the immediate issue before it and review the constitutional-
ity of any part of a statute challenged in an abstract or concrete judicial review pro-
ceeding. To link judicial power of this character with direct executive implemen-
tation would pose an enormous threat to representative democracy in Germany.
The Courts 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 fol-
low its mandates.
But the Court is faced with a dilemma. If it is to perform its steering and integra-
tive 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 rul-
ing 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 be-
tween high constitutional organs (i.e., separation of powers, or Organstreit, proceed-
ings) 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
towithdraw the case. Largely because of this tactic, through 2011 the Court has re-
solved 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 epicen-
ter of Germanys constitutional democracy. The Basic Law is now virtually identical
with its interpretation by the Federal Constitutional Court, remarked Professor
Rudolf Smend on the Courts tenth anniversary.172 By the 1990s Smends 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 post-
war institution building in the Federal Republic. Professor Christian Starck, one of
the Basic Laws 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 Germanys 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 de-
rived from the constitutional charter itself. Second, a democratic legislature chooses
the members of the Court just as it controls the Courts 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 experi-
mentation 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 Courts independence and a
continuing membership profi le not too unlike that of Parliament itself. Finally, the
Bundestag permitted the introduction of dissenting opinions in 1971a 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
periodicalssome authored by former justicesand legal monographs have criti-
cized 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 Fi-
nance 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 scru-
tinize constitutional cases for hints on how to shape public policy. If this tendency
does prevail, the Courts 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, identi-
fied mainly but not exclusively with neo-Marxist critics, that manifests far less sym-
pathy for the Courts 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 powerwith prominent exceptions
duly noted in the following chaptersto invalidate reforms regarded as progressive
and liberalizing by large segments of German society.177
Still, the Courts 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 consti-
tutional claims originating in the new eastern states. The absence of any major politi-
cal effort to curtail the Courts powers despite its location at the center of many po-
litical storms is perhaps another manifestation of its general support throughout
Germany. Even proposals by respected academic figures to abolish the Courts con-
troversial abstract judicial review jurisdiction,179 which the Court could well do with-
out in light of the political manipulation that often accompanies the invocation of
this procedure, have fallen on deaf ears.
The Federal Constitutional Courts durability is traceable to more than general
public support. The Court owes much to Germanys 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 orga-
nized around a deepening interest in the Courts work. According to Professor Peter
Hberle, among the most learned of Germanys 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 stimu-
lated in part by the use of the Courts 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 na-
tion 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 (18061918). During
theWeimar Republic, Karlsruhe continued as the capital of the Republic of Baden
(191833). After the Hitler regimes 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 worlds most important constitutional tribunals. Symbolic
of the Courts prominence, it was not an exaggeration for Gerhard Casper to sug-
gest in his keynote address at the state ceremony commemorating the Courts fi ft i-
eth 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 parliamen-
tary council (Parlamentarischer Rat) instead of a constitutional convention (ver-
fassunggebende 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 Germanys reunification. On that faraway dayor
so it seemed at the timethe 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 Octo-
ber 1990, following a remarkable series of events, German unity took place by acces-
sion under a now-superseded version of Article 23that is, within the framework of
the Basic Law itself. The decision to retain the Basic Law as an all-German constitu-
tion 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 (Bundesverfassungsgeri-
cht), 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 prin-
ciples 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
toincorporate East Germanythe German Democratic Republicinto the existing
West German Constitution. Accordingly, the Basic Law was amended to reflect cer-
tain structural and representational changes resulting from West Germanys absorp-
tion of East Germany and its eighteen million citizens.3 To allow the new German
states (Lnder) 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 Laws applicationto
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 permit-
ting 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
Germanys 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 Ger-
manys 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 rele-
vant. Article 1 (3) declares that the fundamental rights listed in the Basic Law, includ-
ing 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 (verfassungsmige Ordnung) and
binds the executive and the judiciary to law and justice. In binding executive and
judicial authority to law (Gesetz), the Basic Laws founders had recreated a formal
Rechtsstaata 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 trans-
lated as law, right, or justice), one that appeared to include unwritten norms of consti-
tutional 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 Laws 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
Lnder, their participation . . . in the [national] legislative process, or the basic prin-
ciples 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 Laws 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 rem-
edy is not specified by law. Article 80 (1) of the Basic Lawyet another pillar of the
Rechtsstaathelps 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. Germanys 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 empha-
sized, 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 Ger-
man 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 Constitu-
tion 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 Germanys 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 Laws 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 sig-
nificant influence on the constitutional assembly of 1949; each fi nds many of its cen-
tral 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], pri-
vacy [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 (Ar-
ticle 15). Finally, the Christian tradition added communal guarantees explicitly favor-
ing 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 Courts 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 Germanys con-
stitutional 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 lon-
ger understand their constitution as the simple expression of an existential order of
power. They commonly agree that the Basic Law is fundamentally a normative con-
stitution embracing values, rights, and duties. That the Basic Law is a value-oriented
documentindeed, one that establishes a hierarchical value orderis a familiar re-
frain in German constitutional case law.

State and Morality. The Federal Republics 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 equiva-
lent 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 actualiz-
ing 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 rec-
ognizing, believing in, and willing that which is common to the whole.12 Some fea-
tures 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
Kriegers 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 Laws list of fundamental rights protects the ideological plural-
ism 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 un-
amendable 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 Laws core values. Finally, there are the unwritten or supra-
positive 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 Germanys constitutional order.
The judicial enforcement of constitutional values is a practice that departs mea-
surably from the traditional judicial role in Germany. Germanys 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 pro-
found, 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 empha-
sis 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. Ab-
stract 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 nev-
ertheless continues to manifest elements of that tradition.
Perhaps the following remarks will help to clarify this point. The American Con-
stitution 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 circum-
stance, shows little distress in constitutional ambiguity, and refuses to insist on the
application of constitutional morality in all particulars. The Supreme Court has de-
veloped a battery of techniques to avoid constitutional decisions in certain cases and
even to permitunder the aegis of the political question doctrine, the case or con-
troversy requirement, and other devices for avoiding decisioncontraconstitutional
developments within the polity. The American legal mind is comfortable with the
uncertainty that often prevails when, for prudential reasons, the Supreme Court de-
clines 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 toler-
ance 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 normativ-
ity 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 viewa
predominantly American perspectivethat general propositions do not decide con-
crete cases. Questions of constitutionality that do arise in the course of enacting legis-
lation must be confronted, not avoided; there is, thus, a tendency to have the consti-
tutional 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 writ-
ten 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 legisla-
tive, executive, and judicial organs. The Basic Law thus creates a representative de-
mocracy 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
clausedeclares that state and local governments must conform to the principles of
republican, democratic, and social government based on the rule of law.22 Accord-
ingly, 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 ad-
ministered 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 increas-
ingly associated with legal positivism. Written law was supreme law because it reflected
the popular will, which was the ultimate basis of the Rechtsstaats traditional legiti-
macy. 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 jus-
tice (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 legisla-
tion or other official acts must be assessed. Ernst-Wolfgang Bckenfrde, a former
justice of the Federal Constitutional Court, puts it this way:
The logic of thinking about values and justice demands that the constitution con-
ceived 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 political-
ethical 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 Bckenfrde suggests, may trump liberty
when they confl ict. Under the U.S. Constitution, on the other hand, liberty would
often trump valuesfor 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 Laws order of valuesas distin-
guished from guaranteed individual rightsinforming 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 govern-
ment 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. Addition-
ally, 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 com-
mitment, however, does not mean that every social benefit conferred by law is man-
dated 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
 50 chapter two
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 Sozi-
alstaat as an important ingredient of Germanys constitutional tradition.29
If there was any doubt about this important ingredient of German constitutional-
ism, 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 Germanys constitutional identity, a distinc-
tiveness 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 estab-
lishing the subsistence minimum, the level of public support necessary to be con-
sistent with the principle of human dignity.30
Nevertheless, a lively academic debate over the relationship between the Sozial-
staat and the Rechtsstaat continues to engage German constitutional theorists. For-
mally conceived, the Rechtsstaat emphasizes the crucial importance of individual
liberty, the right to choose ones trade, and the right to acquire and dispose of ones
property. At what point do the demands and arrangements of the Sozialstaat begin to
undermine the Rechtsstaats 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 viewone shared today by many former East
Germansthat the Sozialstaat constitutionally requires major redistributive socio-
economic and tax policies.31 The Federal Constitutional Courts 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 principleand requirementis 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 ac-
complished by a federal law and confi rmed by referenda in the affected areas. Article
29 sets out these terms for territorial reorganization. Accordingly, Lnder may be re-
defi 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
 The Basic Law and Its Inter pr etation 51
units or Lnder and their participation in the national legislative process. Federalism
is part of Germanys ancestral heritage and arguably one of the roots of German
democracy.
Prior to 1849, and unlike Britain, France, and Spainall 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 Con-
stitution of 1871, designed to overcome the particularism and fragmentation of the
North German Federation in the wake of an emerging capitalist economy, consoli-
dated twenty-five states and city-states under Prussian leadership. The Weimar Con-
stitution, fi nally, after continuing territorial adjustments, established Germanys fi rst
democratic republic consisting of seventeen states. Given this history of federated
governmentsand the priority the Allies gave to reestablishing local and state gov-
ernments in the immediate aftermath of the warWest Germanys constitution mak-
ers 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 Germanys
new federal union remains a matter of some dispute among constitutional scholars.

Democratic State (Demokratieprinzip). The Basic Law defi nes Germanys political
system as democratic in no fewer than eight of its provisions. Beyond these provi-
sions, 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 consti-
tutional 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 or-
ganization. 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 Lwenstein by the
 52 chapter two
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 para-
mount 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 prin-
ciple 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 them-
selves democratically and to account publicly for the sources of their funds. By char-
acterizing Germanys 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 peoples 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-
 The Basic Law and Its Inter pr etation 53
resentative theory of democracy. Members of parliament, Article 38 declares, shall be
representatives of the whole people, not bound by orders or instructions, and respon-
sible only to their conscience. Here a natural-law principleconscienceintrudes
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 instru-
ment 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
Hitlers rise to power. The Basic Laws major structural changes were designed to stabi-
lize German democracy. As in the Weimar Republic, authority remains divided among
executive, legislative, and judicial institutions, but their relationshipor better, the
constitutions system of checks and balanceshas changed. Executive authority is still
shared by a federal president (Bundesprsident), 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 Parlia-
ment, who determines the general guidelines of public policy. In addition, the chan-
cellors position is far more secure than it was during the Weimar Republic. The pop-
u 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
Parliaments initiative and Parliament fails simultaneously to elect his or her succes-
sor by the required majority vote, the chancellor remains in office as the head of a
minority government. Article 68 provides the only path toward Parliaments disso-
lution. It authorizes the president to dissolve Parliament, but this power too is cir-
cumscribed. It requires that if the chancellor initiates a vote of no confidence and
loses by a majority vote of Parliaments members, only then may the chancellor re-
quest 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 engi-
neered 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
 54 chapter two
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 Bun-
destag is the main policy-making organ of the national government. The Bundesrat
is the organ through which Land governments participate in the national legisla-
tive process. Constitutionally, the Bundestag must consult the Bundesrat on all the
policies it enacts, but the latters consent is required on proposed constitutional
amendments, policies affecting the local administration of federal law, and other
matters of special interest to the Lnder, including laws on apportionment of ex-
penditures 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 Lnder do not have equal represen-
tation in the Bundesrat. Each states representation, ranging from three to six mem-
bers, depends on its population. Second, each Lands slate of votes in the Bundesrat
must be cast as a block, a procedure that arguably gives the Lnder 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, ex-
cept 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 succes-
sor to Weimars 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 Lnder, 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 constitutions 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
Germanys 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 propor-
tional representation, organize these institutions in the public interest; a strong chan-
cellor, unremovable save by a constructive vote of no confidence,35 stabilizes the gov-
ernment; 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 Courts approach to constitutional interpretation needs

to be understood within the context of Germanys civilian legal culture, one inviting
brief comparison with the American common-law tradition. The following descrip-
tion 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 envi-
sion law as a legislatively created, self-contained, rational, deductive system of rules
and norms. Positing a sharp separation between law and moralsbetween the is
and the oughtBegriffsjurisprudenz seeks to create a science of law marked by its
own internal standards of validity. It strives to separate law from the domains of poli-
tics, 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 ju-
diciarys 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 Holmess famous aphorism,
The life of the law has not been logic, it has been experience.38 Like Holmes, Ameri-
cans generally have understood law as a pragmatic enterprise. Correspondingly, they
understand the concept of judicial decision making as an inductive process of reason-
ing open to extralegal influences and responsive to social change. Common-law judg-
ing, 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 nineteenth-
century 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 Germanys 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, Anschtz, Laband,
Puchta, Radbruch, and Kelsen.42 Similarly, if American constitutional jurispru-
dence locates its indigenous roots in the realism of Madison, Hamilton, and Wilson,43
 56 chapter two
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 cen-
tury the free law school of judicial interpretation and the Interessenjurisprudenz of
Philipp Heck and Rudolf von Ihering assailed the prevailing school of legal positiv-
ism.47 Then too, during the Weimar Republicagainst the backdrop of the continu-
ing revolt against legal positivismneo-Hegelian, neo-Kantian, and phenomeno-
logical 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 positiv-
ism.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 value-
oriented natural-law moralists and fundamental rights objectivists of our own
time.50

Structural Unity of the Basic Law. In its fi rst major decisionthe Southwest State
Case (1951; no. 3.1)the Federal Constitutional Court underscored the internal co-
herence 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
 The Basic Law and Its Inter pr etation 57
render it compatible with the fundamental principles of the constitution and the in-
tentions of its authors.52 Justice Gerhard Leibholz, commenting on Southwest State,
elaborated: The Court holds that each constitutional clause is in a defi nite relation-
ship with all other clauses, and that together they form an entity. It considers cer-
tain 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 logical-
teleological entity, a concept traceable to Rudolf Smends 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 Smends 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 ab-
sence of competing interests or values. What it does imply is the need for reconciling
these interests or values. The German states constitutional design is multifaceted; as
noted earlier, the Basic Law defi nes the political system as federal, social, and demo-
cratic, just as Germanys 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 Laws principle of human dignity. The interpretive problem
is to keep each of these visions of the statefederal, democratic, social, liberal, and
party-directedalive and in some kind of creative balance, so that a judicial empha-
sis 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 de-
rives 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 develop-
ing person within society, must be seen as fundamental to all areas of law.57 Accord-
ingly, 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 constitutionfor example, freedom of speech, press, religion, association,
 58 chapter two
and the right to property or the right to choose ones profession or occupationhas
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 be-
coming 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 inviola-
bility, 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 unar-
ticulated 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 supraposi-
tivist 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 in-
terpreting the Basic Laws 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 Courts 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 constitu-
tionalized 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
 The Basic Law and Its Inter pr etation 59
the substance of constitutional amendments that impair or diminish the immutable
principles of the Basic Law.65 These essential elements include the principles of de-
mocracy, federalism, constitutional state, the social state, and the participation of the
Lnder in Germanys 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 pro-
claimed 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 amend-
ments 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
Germanys inalienable constitutional identity, which it associates with the demo-
cratic or majoritarian parliamentary character of the governmental system created by
the Basic Law.68 Although the senate found the act ratifying the Lisbon Treaty com-
patible with the Basic Law, it held unconstitutional the accompanying statute reduc-
ing 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 senates
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 institu-
tions. 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 Germa-
nys constituent power to govern its own affairs. In the Courts interpretation of Arti-
cle 79 (3), the countrys national constitutional identityparticularly in the form of
the federal, democratic, social, and constitutional statecannot be altered by any
treaty or constitutional amendment that compromises the principle of national self-
determination or the essence of Germanys 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. Ac-
tually, 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 norma-
tive theories rooted in various conceptions of the polity as a whole. We consider each
in the order indicated.
 60 chapter two
Dual Character of Rights. The Federal Constitutional Court has described guaran-
teed rights as both negative and positive as well as subjective and objective. A nega-
tive right is a subjective right to liberty. It protects individuals against the state, vin-
dicating 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 realiza-
tion 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 ones occupation. Yet, as we have seen in our discussion of ob-
jective values, personal freedom and autonomy are limited by the requirements of
human dignitya 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 contin-
ues, 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 states help to enjoy a
basic right effectively, such as, for example, the right to the development of ones per-
sonality. 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 constitutional-
ist 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 Lth Case (1958; no. 8.1)a free speech
decisionthe Constitutional Court remarked that the Basic Laws 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 objec-
tive values. The Court also spoke once again of the negative and positive character of
rights. Lth acknowledges that basic rights are indeed fundamentally negative rights
against the state, suggesting that constitutional rights apply directly to public law.
But Lth goes on to say that the constitutions objective values reinforce the effec-
 The Basic Law and Its Inter pr etation 61
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 constitu-
tional rights into private lawtheir 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
partythat is, one involved in a private legal disputemay effectively invoke a consti-
tutional 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 Lth arose out of a lawsuit in which a popu lar fi lm director, Veit
Harlan, won a civil damage award from Erik Lth, a public information official who
publicly advocated a boycott of one of the directors fi lms. Harlan, a favorite of Nazi
leaders, had produced notoriously anti-Semitic fi lms during the Th ird Reich. Exon-
erated after World War II, Harlan reemerged as a major fi lm director. Lth, an active
member of an organization of Christians and Jews, was outraged and sought to con-
vince theater owners not to show Harlans fi lms while enjoining the public not to
see them. A court found for Harlan under a provision of the Civil Code (Brgerliches
Gesetzbuch) obligating a person to compensate another for intentionally causing
him or her harm contrary to good morals. In overturning the judgment, the Con-
stitutional 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 Lth, the Court
held that the ordinary court, by focusing exclusively on the directors 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 Laws free speech provisions. Private legal arrangements, declared the Court,
must be interpreted in the light of the special significance of free speech in a demo-
cratic 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 doc-
trine. 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 consti-
tutional 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 Courts search for a coherent the-
ory of basic rights (Grundsrechtstheorie) has also evolved out of the concept of an
 62 chapter two
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 constitu-
tional theorists have advanced five normative theories of basic rights: liberal, institu-
tional, democratic, value-oriented, and social.76 Each fi nds some support in the liter-
ature 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 in-
dividual against the state. Institutional theory focuses on guaranteed rights associ-
ated with organizations or communities such as religious groups, the media, univer-
sities (research and teaching), and marriage and the family. Democratic theory is
concerned with certain political functions incident to the rights of speech and asso-
ciation 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 person-
hood. 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 domi-
nant. 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 ex-
pend considerable energy debating whether or not there is an objectively correct
interpretation of the Basic Laws fundamental rights provisions. For its part, the
Constitutional Court seems content to decide human rights disputes on a case-by-
case 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 theo-
ries 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 Germanys 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 bal-
ancing, and natural law. The one technique that is not formally followed in German
constitutional analysis is that of stare decisiswhich is unknown in the judiciaries
of code-law countriesalthough 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
 The Basic Law and Its Inter pr etation 63
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, teleo-
logical, 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 require-
ments of the law. In other instances, they tend to be interpreted in terms of their plain
meaning. Systematicor structuralreasoning, by contrast, searches for the mean-
ing of par tic u lar words and phrases by examining the constitution as a whole. Th is
mode of reasoning stems from the Constitutional Courts view of the Basic Law as
a unified structure of values and relationships. Rather than focusing on the mean-
ing of isolated words and phrasesa clause-bound approach to constitutional
interpretationsystematic reasoning centers on their location within the text and
the normative structure of the Basic Law as a whole. Teleological interpretation, on
the other handa favored form of judicial reasoning in Germanyrepresents 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 constitu-
tional order. Historical analysis, fi nally, seeks to shed light on the language and pur-
pose of the constitutional text by reference to the Basic Laws draft ing history. History
by itself, however, seldom dictates the meaning of the constitution.82 At best, it per-
forms 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 Con-
stitutional Court uses whatever approach or combination of approaches seems suit-
able in a given situation, except that arguments grounded in text, structure, or teleol-
ogy generally prevail over those based on history.83
Constitutional justices often portray these conventional canons of interpretation
as ways of discovering the objective willto be distinguished from the subjective
intentionsof the Basic Laws 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 constitutions draft ing history is one source but, as just noted,
history is mainly a supplementary aid to interpretation. In truth, the teleological ap-
proach 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 phi-
losophy of the justices flow into the interpretation of the constitution.84 Justices and
 64 chapter two
scholars do not always so readily acknowledge the creative character of constitu-
tional 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 con-
struction, 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 meth-
ods 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 interpre-
tation that often characterizes the Courts work.86

Competing Judicial Visions. The tension between objectivity and creativity that
commentators have noticed in the Constitutional Courts work product reflects a
larger confl ict between competing visions of the judicial function. Two general ap-
proaches to judicial decision making emerge from the materials in this book. The
fi rst approach, which distinguishes sharply between the functions of judge and legis-
lator, 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 consti-
tution; 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 (Normgebun-
denheitstheorie).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 signifi-
cance.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
yearshe served prior to the adoption of the twelve-year nonrenewable term of
officealso drew a bright line between politics and the political law of the con-
stitution.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 Leibholzs 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
 The Basic Law and Its Inter pr etation 65
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, ap-
pointed to the First Senate in 1975 and the author of a leading treatise on constitu-
tional 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 pres-
ent, in the light of constitutional language drafted within a given historical context.
In the view of Justice Ernst-Wolfgang Bckenfrde, a former member of the Second
Senate, constitutional interpretation requires a delicate balancing of competing val-
ues as well as competing theories of the polity expressed in such concepts as the lib-
eral 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 differ-
ence 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 Grimms 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 illu-
sion 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 con-
stitutional 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 real-
ity. 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 states-
manship with the Courts capacity to achieve consensus. President Wolfgang Zeidler,
 66 chapter two
the presiding justice of the Second Senate from 1983 to 1987, during which time he
served as the Courts vice president, even ventured to observe that objectivity in con-
stitutional interpretation manifests itself most clearly when the justices of a given
senate, who collectively represent diverse career backgrounds, ideologies, and politi-
cal attachments, manage to surmount their differences and reach unanimous agree-
ment.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 de-
mocracies, 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 Fed-
eral Constitutional Court, an early and dramatic example of which is the famous
Lth 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 prin-
ciple of optimality or optimization. As Robert Alexy, Germanys leading theorist of
constitutional balancing, writes, it is one aspect of what is required by [the] more
comprehensive principle of proportionality (Verhltnismssigkeit).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 Laws
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 Courts justices, who have been liberated from the civil-
law orientation of the judiciary, charged as it is with the narrow project of interpret-
ing 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 Courts deci-
sions bear the imprint of the common-law and civil-law traditions. Yet, the context-
sensitive 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-
 The Basic Law and Its Inter pr etation 67
stitutional rights] than the judges who administer it.108 Bernhard Schlink, perhaps
the leading critic of Germanys 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 pro-
portionality reasoning as indispensable in a constitutional state. Accordingly, propor-
tionality 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
Courts effort to optimize competing constitutional rights, the German approach is
not unlike the methodology often employed by the U.S. Supreme Court in fundamen-
tal 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 non-
textual philosophical or policy arguments to determine the validity of a state pur-
pose allegedly impairing a constitutional right. Second, the means used to achieve a
valid purpose must have the least restrictive effect (Erforderlichkeit) on a constitu-
tional right. Th is test is applied flexibly and must meet the general standard of ratio-
nality. 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 states objective (Zumut-
barkeit).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 princi-
ple of practical concordance (praktische Konkordanz). Once again, it requires the
 68 chapter two
optimization of competing rights. In short, one constitutional value may not be real-
ized at the expense of a competing constitutional value. In the German view, consti-
tutional 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 ones personality. Both values must be preserved in creative unity.
Professor Hesse wrote, The principle of the constitutions unity requires the optimi-
zation 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 sat-
isfy the principle of proportionality; that is, they may not go any further than neces-
sary 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 class-
rooms attended by objecting students but to permit its display in classrooms where
such students are not present. The Muslim Headscarf Case (2003), by contrast, in-
volved 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 equiva-
lents to these rules in Germany. As often noted in Chapter 1, the Court may not de-
cline 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 Courts practice of upholding legislation when
it can plausibly be interpreted to conform with the constitution (verfassungskon-
forme Auslegung) even when faced with an equally plausible argument against its
 The Basic Law and Its Inter pr etation 69
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 executives discretion-
ary authority in military affairs. On the domestic front, fi nally, the Court has taken an
equally broad view of the governments discretionary authority to regulate aspects of
the economy when necessary under the terms of Article 72 (2). The Courts reluc-
tance to invalidate laws passed under this provision is not unlike the Supreme Courts
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 Commu-
nity laws. In a case known as Solange I (1974) the Court famously ruled that Eu ro-
pean 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 (sol-
ange) 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 protec-
tion 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 noncognizablefor the fi rst timean administrative court reference
questioning the constitutionality of regulations on the marketing of bananas as a vi-
olation of occupational and property rights.120 The Second Senate declared: As long
as the European Communities generally ensure the effective protection of funda-
mental 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 en-
sured 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 lawthe treatiesare still subject to
constitutional review to assess whether they infringe or erode Germanys constitu-
tional identity as specified by Article 79 (3).122
 70 chapter two

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 interpreta-
tion. Principles and theories such as the Basic Laws unity, its objective value dimen-
sion, its constitutionalization of private law, and the positivity and negativity of rights
have served to confer substantial interpretive authority on the Federal Constitu-
tional Court. These principles and theories have been judicially created, but not out
of whole cloth. In the Courts view, as noted earlier in this chapter, they reflect the
normative realities underlying the Basic Law, realities rooted in the dialectic be-
tween the liberal, socialist, and Christian natural-law traditions that shaped the orig-
inal document, particularly the provision that subjects the legislature to the consti-
tutional 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 (berpositive Rechtsgrundstze) that bind legis-
lators 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 wel-
fare 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 per-
son as a spiritual-moral being (vom Menschen als einem geistig-sittlichen Wesen)
whose intrinsic dignity depends on his [or her] status as an independent [personal-
ity].125 But the independence affi rmed here is far from the autonomous individual-
ism 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 persons dependence on and commitment to the community, without infringing
upon a persons individual value.126 These words have been a constant refrain in the
Courts jurisprudence. Similar lines of thought can be discerned in its view of the pol-
ity, one that rejects the self-regarding individualism of bourgeois liberalism as well as
the collectivism of Marxism. Much of the Courts case law treated in the following
chapters identifies a polity that reminds Americans of Lincolns 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 dignityand human
flourishingcannot 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 Lnder legislatures in 1949 along with fi ft y-nine
amendatory acts ratified between 1951 and 2011. The words and phrases of the con-
stitution mean what they say and the Court takes them seriously. It rarely interprets
 The Basic Law and Its Inter pr etation 71
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 attenua-
tion would raise serious constitutional issues. These practices include, under Germa-
nys 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 repre-
sentation itself is constitutionally required,127 its abolition after sixty years of unbro-
ken observanceexcept for the fi rst postreunification all-German electioncould
easily be contested on constitutional grounds, especially in the light of the Courts
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 prin-
ciple of federal comity (Bundestreue), an innovative doctrine the Court has inferred
from the Basic Laws 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 re-
quired to keep the Bundesrat informed of its dealings.129 Even when acting under
one of the European Unions exclusive powers the federal government, according
toArticle 23 (4), shall take the position of the Bundesrat into account. Given the
Courts 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 con-
cept, 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 Laws 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 in-
corporation 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 Con-
stitution of 1850, and the Weimar Constitution of 1919.130
 72 chapter two
While admissible as sources of interpretation, these older documents pale in com-
parison to the significance of the Basic Laws 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 back-
ground 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 councils specialized committees, together with the arguments,
decisions, and voting records of its Main Committee and plenary sessions.132 The
Bah Religious Community Case (1991) is a prominent example of the supportive
role the Basic Laws legislative history plays in the interpretation of par ticu lar provi-
sions. 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 Laws 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 parliamen-
tary investigative committee established under Article 44 of the Basic Law could re-
quire the executive to surrender all the relevant records in the case.134 In the equally
prominent Parliamentary Dissolution I Case, (1983) the Courts majority concluded
that there was nothing in the Parliamentary Councils 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 major-
ity.135 The dissenting opinion disputed the majoritys view and relied on lengthy
quotations from the Councils 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 constitutions meaning.

Judicial Precedent. In Germanys codified legal system, judicial decisions do not

qualify as official sources of law. But constitutional law is different. First, while judi-
cial rulings apply only to the parties before them, the Federal Constitutional Courts
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 interna-
tional 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 Ga-
zette,138 a practice that underscores the Courts character as a negative legislator. Al-
though 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 pre-
cedents 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
 The Basic Law and Its Inter pr etation 73
of the Basic Law. The German understanding of the constitutional state principlea
central pillar of the Basic Lawrequires a coherent body of judicial doctrine in the
interest of legal certainty, predictability, and the necessity of creating a stable consti-
tutional 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 Laws interpretation than do judicial precedents. The Court relies heav-
ily 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 fr Deutsches Recht, Ju-
ristenzeitung, and Zeitschrift fr auslndisches ffentliches Recht und Vlkerrecht. These
and other German law journals are edited not by amateursthat is, law studentsas
in the United States, but by leading practitioners, judges, and professors of law.
(Student-authored notes in these journals would be unheard of in Germanys 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, Gnter Drig,
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 Courts 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 Bckenfrde.142 (Bckenfrde, 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 prac-
tice of documentation in leading constitutional commentaries. For example, in
theoft-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 prece-
dents are employed to justify the basic orientation of the commentators.143 By con-
trast, 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 Laws main features, as
the materials in Chapter 6 highlight, is Germanys commitment to peace and inter-
nationalism. Th is commitment is expressed in constitutional provisions that bind
 74 chapter two
Germany to participation in the development of the European Union (Article 23),
permit the transfer of sovereign power to international institutions (Article 24), em-
phasize the primacy of international law (Article 25), and criminalize any prepara-
tion 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 Ger-
manys constitutional order and thus binding on all branches and levels of govern-
ment. 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 Courts 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 constitu-
tional 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 Euro-
pean Court of Human Rights as an interpretive aid in defi ning the reach of constitu-
tional 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 dero-
gation of basic rights protection under the Basic Law.147 As with its decision in the
Grgl Case (2004; no. 6.3), the Constitutional Court also continues to remind ordi-
nary courts of their obligation to follow, when and where applicable, the decisions of
the Human Rights Court.
In addition, the Constitutional Courts 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 Lth Case (1958; no. 8.1), for example,
Germanys seminal free speech decision, the Constitutional Courts First Senate
quoted Justice Cardozos celebrated line that speech is the matrix, the indispensable
condition of nearly every other form of freedom, but without citing Palko v. Con-
necticut, the source of the quote. In yet another free speech decisionthe well-
known and controversial Spiegel Case (1966; no. 8.10) four justices cited foreign con-
stitutional 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
 The Basic Law and Its Inter pr etation 75
examples of doctrines or practices that should be avoided or to support positions al-
ready arrived at through the standard methods of textual, systematic, teleological, or
historical analysis.
Other examples of the Constitutional Courts 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 compara-
ble constitutions,150 or, alternatively, to cite foreign practices or constitutional judi-
cial 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 Unions
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 constitu-
tional case law. In their dissent from the Courts restrictive abortion decision of 1975,
Justices Wiltraut Rupp-von Brnneck and Helmut Simon referred to Roe v. Wade;
Justice Martin Hirsch cited Vance v. Terrayas, an American citizenship case, in dis-
senting from the Courts decision in the Denaturalization II Case (1980) (upholding
the denial of citizenship to an expatriate); and Justice Ernst-Wolfgang Bckenfrde
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 compa-
rable 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 interpre-
tation under the Basic Law. Rather, he or she will cite an idea or ruling from another
national courts 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

Germanys Basic Law. It continued with an account of the states political organiza-
tion along with a discussion of the various principles of the constitutional order, an
 76 chapter two
order that joins the Sozialstaat to the Rechtsstaat while enthroning federalism and a
party democracy empowered to defend itself against its internal and external ene-
mies. Other features of the Basic Laws moral framework include its elevation of human
dignity into the constitutions master value, its corresponding limits on popular sov-
ereignty, 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 Germa-
nys 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 constitutions 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 Laws framers. Taken together, these fea-
tures and theories underscore the absolute supremacy of the Basic Law over ordi-
nary law. Finally, as subsequent chapters show, Germanys new constitutionalism has
converted the principle of constitutional supremacy into one of judicial interpretive
supremacy.
 Part II
Constitutional Structures and Relationships

The cases featured and discussed in Part II highlight the relationships and tensions
among levels and branches of government. The structural provisions of the Basic Law
include the framers most significant innovations, among them the general scheme of
separated and divided powers, the constructive vote of no confidence, the limits on
presidential authority, the creation of the Federal Constitutional Court (Bundesver-
fassungsgericht), and the ban on unconstitutional political parties. Later on, in the
form of a general election law, German political leaders also introduced a new elec-
toral system combining elements of majoritarian and proportional representation.
Its combination of single-member constituencies and party-list voting is sometimes
referred to as personalized proportional representation. Th is careful attention to
institutional structures and relationships is not surprising. After the Th ird Reich,
Germans were primarily interested in creating a constitution they hoped would
bring about stability, democracy, and limited government.
The Basic Laws framers sought to achieve stability by strengthening the position
of the chancellor (Bundeskanzler), by doing away with plebiscitary institutions such
as national referenda and the direct election of the federal president (Bundesprsi-
dent), and by establishing mechanisms designed to avoid the excessive fragmenta-
tion of the electorate and to keep splinter parties out of Parliament (Bundestag).
They endeavored to bring about a more deliberative and accountable democracy
through representative institutions; general, free, and equal elections; and a chancel-
lor responsible to Parliament. But they also hoped to create a viable federal democ-
racy. In doing so, they borrowed from their own past in authorizing the Federal
Council of States (Bundesrat), in which state (Land) governments would be corpo-
rately represented, to participate in the national lawmaking process. Finally, they
hoped to create a constitutional democracy by installing an entrenched bill of rights,
limiting the power to amend the Basic Law (Grundgesetz), and establishing a su-
preme constitutional tribunal whose decisions would have the force of law.
Federalism and separation of powers are among the controlling features of Ger-
man constitutionalism. Both features are deeply anchored in Germanys constitu-
tional tradition. What is new about their reincarnation in the Basic Law is their link-
age, in Article 20, to the ideas of democracy and justice as well as to the more traditional
constitutional state principle (Rechtsstaat). The adoption of federalism as a mainstay
of the new polity reflected postwar Germanys determination to avoid the extremes of
particularism and authoritarianism. Too little power at the center would inhibit, as it
did throughout much of German history, the full flowering of parliamentary democ-
racy. But too much power at the center would retard the growth of constitutionalism.
 78 Constitutional Structur es and R elationships
Separation of powers in turn was expected to moderate the exercise of power at all
levels of government and thus prevent the emergence of political absolutism. Fused
with democracy and bound by justice, the principles of federalism and separation of
powers were calculated to lock liberty and the constitutional state principle in a fi rm
mutual embrace.
The subjects of federalism and separation of powers respectively, are taken up, in
Chapters 3 and 4. Among the topics taken up in Chapter 3 are the organization of the
federal territory and admission of new states, the division of power between the Ln-
der and the federation (Bund), the doctrine of federal comity, Germanys distinctive
brand of administrative federalism, the special role of the Bundesrat in the national
legislative process, and Germanys unique system of interstate revenue transfers.
Chapter 4 features leading cases relating to confl icts among executive, legislative,
and judicial authorities, delegation of legislative power, and executive-legislative ten-
sions in foreign and military affairs, including disputes involving the deployment of
Germanys armed forces in Kosovo and Afghanistan. Chapter 5 moves on to the
topics of voting, political parties, and the electoral process. The cases featured deal
mainly with the scope of individual voting rights, the rights of parliamentary repre-
sentatives, the ban on unconstitutional political parties, election campaign spend-
ing, and the corporate rights of political parties within Land and federal legislatures.
Inasmuch as this chapter deals with the rights of voters and political parties, it consti-
tutes a transition that links the structural concerns of Part II with the materials on
civil liberties in Part III.
Finally, Part II of this edition includes a new Chapter 6, which highlights the in-
tersection between supranational and international law, on the one hand, and do-
mestic constitutional law, on the other hand. Owing to the work of the supranational
European Court of Justice and international European Court of Human Rights,
transnational constitutional rulings are beginning to affect, qualify, and operate
intandem with domestic constitutional norms, practices, and policies across Europe.
The cases we have chosen for presentation and analysis involve the provisions of
treaties, rules of customary international law, or the judgments of international courts.
The focus in Chapter 6 is on the Federal Constitutional Courts struggle to balance
the force these normative regimes are to have in German law with its role as the pro-
tector of the domestic order created by the Basic Law.
 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 repre-
sented 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 integrationas well as the political unity that accompanied itwas
achieved under the dominance of Prussia, a German state known, variously, for its
militaristic and authoritarian tradition, its efficient bureaucracy, and its innovative-
ness (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 Courts New Deal and civil rightsera jurisprudence, which led to
expansive federal and centralizing authority, to the pro-state jurisprudence of Chief
Justice William Rehnquists New Federalism in the 1990s.
In 2006 many of the Basic Laws federalism provisions were significantly over-
hauled 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 Lnder, 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
to115) known as the fi nancial constitution (Finanzverfassung), a confounding and
complicated web of rules and formulae governing the distribution of taxes and reve-
nue between levels of government. A third reform proposal would aim at redrawing
the boundaries of the Lnder. Its purpose is mainly to promote regulatory efficiency
and create economies of scale through the merger of Lnder, such as Brandenburg
and Berlin. Up to now, attempts at merging the two Lnder outside a broader reform
 80 chapter thr ee
of the constitution have failed. At this writing, too, reforms in the fi nancial constitu-
tion 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 Courts established ju-
risprudence with respect to territorial organization and then proceed to discuss as-
pects of German federalism that were unaffected by the reforms of 2006. Then, fol-
lowing 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 rati-
fied in 2006 and 2009.

territorial or ga ni zation

Federalism in Perpetuity. The principle of federalism (alongside democracy, the con-

stitutional state principle, the social state principle, and human dignity) is perma-
nently 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 Lnder. Ger-
many now comprises sixteen constituent states. Prior to reunification West Germany
included the states of Baden-Wrttemberg, Bavaria, Bremen, Hamburg, Hesse,
Lower Saxony, North RhineWestphalia, Rhineland-Palatinate, Saarland, and
Schleswig-Holstein. West Berlin, although functioning in many respects as the elev-
enth West German state, de jure remained a protectorate of the three Western allies.
Five new Lnder were created out of the former East German territory and were an-
nexed by the Federal Republic in 1990: Brandenburg, Mecklenburg-Vorpommern,
Saxony, Saxony-Anhalt, and Thuringia. Alongside these new Lnder, 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 Republics constituent states. Several proposals have been advanced over the
years to consolidate some of the existing states into larger and more integrated politi-
cal 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 Lnder,
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 (Lnderfusion) 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
 Feder alism 81
integration and reorganization may establish the groundwork for another referen-
dum that would fi nally merge the two states.
At the heart of the pressure to reorganize the Lnder 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 ma-
jority 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 reorgani-
zation 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 Wrttemberg, Baden, and Hohenzollern into the three southwestern states
of Baden, Wrttemberg-Baden and Wrttemberg-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 authoriz-
ing the southwestern states to reorganize themselves by mutual agreement.6 The
most likely possibilities were the restoration of the former states of Wrttemberg,
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 pro-
posed 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) re-
quired 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 Wrttemberg-
Hohenzollern and Baden legislatures, a measure designed to avoid new state
elections in April 1951 because the territorial reorganization of the states seemed
 82 chapter thr ee
imminent, making new legislative sessions for the parliaments in the old states
unnecessary. The second specified the procedures by which the proposed fed-
erally sponsored referendum would be conducted. The proposal to merge the
three states into the single state to be called Baden-Wrttemberg 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 in-
voked the Courts abstract judicial review jurisdiction as well as its federal-state
confl ict jurisdiction, the small and cohesive 150-year-old state of Baden chal-
lenged 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 bal-
lots in Baden; federalism because the federal government is powerless to tam-
per with the legislature of an independent state. The result was the Courts 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 individ-
ual 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 Con-
stitutional 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 consti-
tutional 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 interpreta-
tion 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 constitu-
tional 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 con-
trol 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-
 Feder alism 83
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 consti-
tution, 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 Laws fundamental principles (Articles 20,
18, 30). As members of the federation, Lnder 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
states constitutional order falls within the states jurisdiction. In par ticu lar, it is ex-
clusively incumbent upon the state to determine the rules that govern the formation
of the states constitutional organs and their functions. The states 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 re-
trench the states of Baden, Wrttemberg-Baden, and Wrttemberg-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 elimina-
tion of these states; thus [this act] does not constitute a curtailment of [the legisla-
tures] 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 dis-
pose of its legislative authority. And the federation cannot by virtue of a states con-
sent obtain legislative authority that the Basic Law does not grant. Therefore, the fact
that Wrttemberg-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 legis-
lation 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 mat-
ter for the states. . . .
6. In view of these legal restraints, practicality, political necessity or similar con-
siderations cannot confer unfettered discretion on the Parliament to enact any regu-
lations that seem reasonable and proper under the guise of reorganizing states. . . .
 84 chapter thr ee
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 deci-
sion, bind[s] all constitutional organs of the federation . . . in such a way that legisla-
tive 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 populations 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 providesas follows from Articles
29and 118for 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 ex-
isting states. Th is reorganization may even be effected against the will of the popula-
tion 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 states populationonly 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 regula-
tions pursuant to Article 118 (2). The provision that protects a states existence is an
outgrowth of the Basic Laws principle of federalism. . . . Th is determination imped-
ing interference with a states 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 Parliamen-
tary 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 opposi-
tion of one states population must not frustrate this [reorganization]. . . .
 Feder alism 85
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 fed-
eration, is not autonomous and independent but is part of a federal order that re-
stricts 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 peoples right to self-
determination 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 Laws 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 reorga-
nized will ultimately decide.

Southwest State: Germanys Marbury v. Madison. Because of Southwest States sig-
nificance in German constitutional law the case has been compared with the U.S.
Supreme Courts Marbury v. Madison (1803).8 Marbury made it clear that the Su-
preme 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 Constitu-
tional Court. The foundational character of Southwest State is rooted, instead, in the
general principles of constitutional interpretation stated therein and in the clarity
and forthrightnesswith 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 ex-
tent 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
ofinterpretation. 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
 86 chapter thr ee
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 federal-
ism, said the Court, are among these overarching principles. The Court also acknowl-
edged 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 constitutions 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 south-
western states over the objection of Baden and without resorting to the national refer-
endum required by Article 29. (With respect to the Lnder of Berlin and Brandenburg,
a 1994 amendment to the Basic LawArticle 118aprovides a similar exception to the
policy of Article 29 pursuant to which the two Lnder may be combined into a single
state by agreement between the two states and with the participation of their elector-
ates.) The Constitutional Court, however, sustained the procedural aspects of the ref-
erendum 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 reorgani-
zation 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 Courts instructions, the new state of Baden-
Wrttemberg, 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 reac-
tion 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 Wrttemberg 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 benefi-
cial 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-Wrttemberg among the former
citizens of Baden. Eighty-two percent of the participants voted in favor of the states
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
 Feder alism 87
affect state boundaries. Reunification also did not generate noteworthy territorial
reorganization. The boundaries of the new Lnder admitted to the Federal Republic
from the former East Germany were settled in nonbinding referenda in 1990, a pro-
cess that produced few changes in the territorial lines of these states. The most sig-
nificant 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 Hesses
attempt to compel the federation to change the boundaries of the Lnder 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 uncer-
tainty surrounding possible federal reorganization. In the Courts 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 Bunds 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 Reorganiza-
tion, 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 fur-
ther consolidate the Lnder, could radically alter the Courts view of the federations
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, Baden-
Wrttemberg, and Thuringia. But the Court rejected the claim that the federal min-
ister of the interiors decision to refuse to proceed with a referendum on the applica-
tion 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 regions
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
 88 chapter thr ee
the unitary state (Einheitsstaat) does it contain? What elements of a confederation
(Staatenbund)? Both forms of territorial organization have figured prominently
inGerman 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 governmentsboth equal and coordinatecombine 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 cen-
tralism.18 Others, such as Ulrich Scheuner, accentuated the Basic Laws federalist
underpinnings.19 Still others emphasized the solidarity contained in the idea of a
strong federal union. Theodore Maunzs 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 impor-
tance 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 three-
tier 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 two-
tier 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 Lnder, carries out, within
the sphere of operation prescribed by the Basic Law, all those governmental func-
tions 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 Lnder in the German federal system is determined by their rela-
tionship to the federation and the Basic Law. Th is relationship, which necessarily
must be clarified before pursuing a discussion of the Basic Laws division of legisla-
tive and administrative authority between the federation and the Lnder, 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 Lnder must conform to the republican,
democratic, social state, and constitutional state principles, . . . Th is provision, al-
though labeled the homogeneity clause, is not a prescription for uniformity in gov-
ernmental organization. Article 28 (1) has been generally understood to require
 Feder alism 89
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 indispens-
able to the operation of a federal state. It also incorporates the principle of subsidiar-
ity. 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 institu-
tional 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 Hesses re-
fusal to hold a referendum, as demanded by a grassroots initiative, on the Land
governments decision to expand Frankfurts international airport. Hesses state gov-
ernment and constitutional court rejected the proposed referendum on state consti-
tutional grounds and refused to consider related issues of federal law deemed to
confl ict with the airport expansion proposal, including the threat to the constitu-
tional right of personality (Article 2 (1)) allegedly posed by the further destruction
of the environment. The applicants (invoking the Federal Constitutional Courts
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 set-
tled by the Federal Constitutional Court in accordance with federal constitutional
principles.
In a significant victory for the Lnder, the Court ruled that Hesses exclusive reli-
ance on state law in refusing to proceed with the referendum did not violate a funda-
mental 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 Lnder are states vested with their own sovereign
powerseven though limited as to subject matterderived 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 Lnder are free to construct their constitutional or-
ders. 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 in-
stance of territorial reorganization. The Court said that this limit on the use of refer-
enda 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 Lands 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
 90 chapter thr ee
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 integ-
rity of Land constitutional law.26 Since Startbahn West the Court has gone a step
further, recognizing a Land constitutional courts authority to review the application
of federal law for conformity with state constitutional norms (recalling again that the
Lnder bear much of the responsibility for administering federal law), even when
the relevant Land constitutional law is identical to federal constitutional protec-
tionsthat 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 ap-
proach to the federal-state relationship in an effort to weigh and balance the vital in-
terests of both state and national governments. Th is concern for balance and practi-
cality induced the Court to proclaim the principle of federal comity or pro-federal
behavior (Bundestreue), which obligates the federation and Lnder to consider each
others 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 federal-
ism, said the Court, is essentially a relationship of trust between the federation and
Lnder. 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 Adenauers
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 Lnder that were under the control
of the center-left Social Democratic Party. Finally, and notwithstanding oppo-
sition from both Social Democratic and Christian Democratic states, Adenauer
established a second television station by decree. Several Lnder immediately
challenged the validity of the decree, invoking the Constitutional Courts juris-
 Feder alism 91
diction over federal-state confl icts. The Lnder 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 Ln-
der on the basis of a principle that favors the jurisdiction of the states. . . . The fed-
eration 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
federations 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 Lnder. . . . Exceptions occur only when special provisions of the Basic Law
provide that the federation has authority. Th is fundamental decision of the consti-
tution, 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 federa-
tion 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 lack-
ing 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 indispens-
able 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 broadcast-
ing on the basis of a nexus with the subject matter [Sachzusammenhang]. Regulating
 92 chapter thr ee
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 can-
not 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 governments authority in
the fields of civil law and court procedure that any regulation of the latter nec-
essarily 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 telecom-
munication 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 distrib-
uting frequencies to be used now or in the future, did not duly consider the compa-
nies 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 Lnder 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 con-
stitutional 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 co-
mity, 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 con-
sideration for the interests of the federation and other states. . . . The constitutional
principle of comity can further imply states duty to observe international treaties
 Feder alism 93
concluded by the federation. . . . Finally, under certain circumstances, loyalty to
the union can obligate a Land to use its supervisory authority over local govern-
ments 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 Lnder can be
developed from this principleobligations 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 Lnder 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 inter-
ested and participating, the principle of comity prohibits the federation from trying
to divide and conquer, that is, from attempting to divide the Lnder, to seek an
agreement with only some of them and then force the others to join. In negotiations
that concern all Lnder, the principle of comity also prohibits the federal govern-
ment 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 exclud-
ing 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 repre-
sentatives, the Lnder, in January 1960, agreed to form a commission consisting of
two Christian Democratic and two Social Democratic members of state govern-
ments. 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, participatednot in
his role as a member of the commission, but as a member of his partyin 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 Rhineland-
Palatinate informed the state governments led by Social Democratic minister-
presidents 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 ne-
glected to do so violated the principle of comity.
The federal governments behavior toward the Lnder in the days leading up to the
creation of the federal television broadcasting company also was incompatible with
 94 chapter thr ee
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 part-
nership and a second television network on 22 July 1960. The minister-presidents, in-
cluding those of the Christian Democratic Union and the Christian Social Union,
did not fully accept the federal governments proposal, but made counterproposals
by a letter of 22 July 1960thus fully informing the federal government of the result
of these discussions. Nevertheless, the federal government insisted that the Lnder
approve the corporate contract on 25 July 1960 even though the states had played no
role in draft ing the contract. The federal governments letter, dated 23 July 1960, was
mailed in Bonn on 24 July 1960 at 5:00 p.m. and reached the addressee, the Minister-
President 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 pro-
ceeding 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 con-
stitutional organs of member states of the Federal Republic of Germany could expect
the federal government to disregard their counterproposals with a fait accompli. . . .

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 Laws 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 Republics constitutional jurisprudence. In several subsequent cases
the Court seized on the principle of comity to vindicate the fi nancial interests of vari-
ous Lnder, 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 Lnder 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 consti-
tutional 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 per-
mitting local referenda within its borders.35 The Court said that Hesses failure to ban
the referenda (aimed at discrediting the federations pursuit of a defense policy that
involved the procurement of nuclear weapons) violated the principle of federal comity.
 Feder alism 95
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 subjec-
tively of the constitutionality of their mutual dealings.37
After First Broadcasting the Court was less inclined to decide federal-state con-
fl 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 de-
cision from 1976 in which the Court declared: The principle of comity is of an acces-
sory 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 Lnder. 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 pro-
vide 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
 96 chapter thr ee
federal framework legislation to assist the Lnder 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 Lnder 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 Lnder) and horizontal (Land to Land) lines.42 Th is sys-
tem was meant to advance Germanys postwar commitment to equivalent living
conditions among the Lnder. 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 cen-
tralizing impulses represented by these extremes continues to bedev il the Basic
Laws fi nancial constitution. The tension is between autonomy and solidarity (Span-
nungsfeld von Autonomie und Soldaritt), and it seems to flow from the Basic Laws
defi nition of the Federal Republic as a social federal state. With its grant of auton-
omy to the Lnder, federalism competes with the centralizing tendencies of the
Basic Laws social state principle.44 Accordingly, the Basic Laws 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 bud-
getary 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 Lnder, and specifies the costs that the federation and Lnder
shall bear in meeting their obligations under domestic and European law. In addi-
tion, Articles 109 through 115 lay down the guidelines of budget management by the
federation and the Lnder, including such matters as deficit spending, limits on bor-
rowing, 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 Lnder 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 Lnder. We focus atten-
tion here on fiscal and budgetary reform and reserve for later a discussion of the
 Feder alism 97
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 Lnder and the corresponding powers of the Bundesrat. Significant
among these reforms was an amendment making it unnecessary to secure the Bundes-
rats consent to federal laws providing money grants that are to be partially funded
and administered by the Lnder. Another important change was the new Article 104b
permitting federal grants-in-aid to the Lnder and municipalities for investments nec-
essary to maintain overall economic equilibrium, to equalize economic capabilities
among the Lnder, 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 grants-
in-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, multi-
stage 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 Ln-
der, the largest portion of these proceeds (derived mainly from income, corporation,
and turnover [value-added] taxes), is shared equally between the two levels of gov-
ernment.47 The motor vehicle tax was another large source of revenue. Under the
original version of Article 106, these tax receipts accrued to the Lnder. The fiscal-
federalism reform amendments of 2009, however, transferred the motor vehicle tax
to the federation but the Lnder were given a share of these proceeds under a federal
law subject to the Bundesrats consent. The turnover tax, another large source of
revenue, now is awarded in ratios determined by a federal law that also requires the
Bundesrats 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 Lnder and municipalities. For example, the states share of
the turnover tax is distributed on a per capita basis. But federal law enacted with the
Bundesrats consent may require the redistribution of as much as one-quarter of the
states share of the turnover tax to Lnder with per capita revenues below the average
of all states combined. Article 107 (2) prescribes still a third stage of horizontal distri-
bution aimed at ensur[ing] a reasonable equalization of the disparate fi nancial ca-
pacities of the Lnder. Th is requirement is controversial because it calls for direct
state-to-state transfers of revenue from fi nancially stronger to fi nancially weaker Ln-
der, 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 capac-
ity).48 Article 107 (2) completes the Basic Laws 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 Lnder to assist them in meeting their general
 98 chapter thr ee
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 Lnder govern-
ments, 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
Laws budgeting provisions by the fiscal-federalism reforms of 2009. Article 109, for
example, specifies the fiscal duties of the federation and the Lnder 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 borrow-
ing 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 Lnder.
The Federal Constitutional Court was called upon to resolve disputes arising out
of the Basic Laws 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 Equal-
ization Act Case, the Court sustained a horizontal, state-to-state equalization mea-
sure that required two fi nancially stronger Lnder to subsidize several fi nancially
weaker Lnder up to specified amounts. The fi nancially stronger Lnder argued
that the dictated amounts violated the central principle of fi scal federalism articu-
lated by Article 109 of the Basic Law, which declares that the federation and the
Lnder are autonomous and independent of each other with regard to their respec-
tive budgets. In sustaining the statute, the First Senate conceded that there are
constitutional limits to the federations power to enforce horizontal fi nancial ad-
justments. 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 Lnder have duties as well as rights.
Where the fi nancially stronger Lnder are concerned, one of these duties is to assist,
within limits, the fi nancially weaker Lnder. 49 In the Finance Equalization I Case
(1986) the Second Senate invalidated an equalization statute for its failure to en-
sure, in accordance with an earlier version of Article 107 (2), reasonable fi nancial
equalization between financially stronger and financially weaker Lnder; whereupon,
in a classic example of an admonitory decision (Appellentscheidung), the Court in-
structed the Bundestag to change the basis for allocating tax revenues among the
Lnder 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 mainte-
nance and improvement of harbor facilities that also benefited other states. The
Court rejected this claim but found that Bremen had been the victim of constitu-
tional discrimination because the city had received no transfer payments for several
 Feder alism 99
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 federa-
tions vertical payments to Bremen and Saarland had been too low in view of the seri-
ous budgetary problems of both Lnder. Accordingly, the federation and other Lnder
would be required to assist both Lnder with appropriate measures.51
Following the Courts 1992 decision, the federal laws implementing the fi nancial
equalization regime were reformed, in part to incorporate the new, fi nancially weaker
Lnder 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 Lnder to allow them to achieve 92 percent
of the average of per capita tax revenue of all Lnder 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 Lnder achieved 95 percent of the average of
per capita tax revenue of all Lnder 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 Lnder to 99.5 percent of per cap-
ita tax revenue of all Lnder combined.
The Lnder saddled with the obligation to pay in this horizontal fi nancial equal-
ization 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 Lnder to chafe at the new fed-
eral masters demand that they transfer revenues to the fi nancially weaker Lnder.
Only six years removed from the Courts previous ruling and the attending, sig-
nificant reform of the relevant law, the fi nancially stronger Lnder again brought
challenges to Germanys 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 Laws 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 Courts 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
Germanys commitment to equivalent living conditions in the various Lnder.
On the one hand, the top fi ve tax-generating Lnder (Hesse, Baden-
Wrttemberg, Hamburg, Bavaria, and North RhineWestphalia) were rele-
gated 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
 100 chapter thr ee
(out of sixteen) in preequalization fi nancial capacity, was catapulted into fi rst
place by fi nancial equalization. Bavaria, Baden-Wrttemberg, 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.]

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 statu-
tory appropriation and distribution of revenue; 2) the Standards Regime con-
sisting 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 equal-
ization targets that are designed to be periodically reviewed. Because the con-
stitutional 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 Re-
gime that is based on a timetable that excludes or at least limits a purely interest-
orientated understanding of the amounts of money to be affected by fi nancial equal-
ization. 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 Parliaments 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 equaliza-
tion 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 cer-
tain durability of the rules it establishes. It extends its application to an indetermi-
nate 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
 Feder alism 101
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 Parliaments 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
Lnder, circumstances that come into focus on the basis of annually changing reve-
nue 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 Rawlss A Theory of
Justice (1975)] cannot be drawn over the decisions taken by members of the Parlia-
ment, the fact that the Standards Regime exists before the Parliament begins to con-
sider legislation for a new Financial Equalization Regime should guarantee an insti-
tutional 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. Regu-
lating the equalization of fi nancial burdens must not be left to the free play of politi-
cal forces. The Basic Law does not subject its carefully coordinated fi nancial consti-
tution 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 ne-
ment 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 mea-
sured 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 Bundesratdischarges 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 ac-
cordance 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 ar-
ticulated 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
 102 chapter thr ee
be determined with a view toward necessary expenditures, fi nancial rational-
ity, 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 Lnder with below-average tax revenues. It is the horizontal,
state-to-state revenue transfers from fi nancially stronger to fi nancially weaker
Lnder, undertaken in the third stage of fiscal allocation, that has proven most
controversial. Addressing these state-to-state revenue transfers, the Courts
rule for the third stage of fi nancial equalization called into question the hori-
zontal, state-to-state transfer provisions of the 1993 Financial Equalization Act
that had produced the dramatic reversal of fiscal fortunes of several of the
Lnder.]
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
Lnder. The Financial Equalization Regime must strike a balance between the auton-
omy, independent responsibility, and preservation of the individuality of the Lnder,
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 federa-
tion [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, character-
ized solely by the concept of the fi nancial equality of the Lnder, 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 Lnder. . . .
The balance between the autonomous statehood of the Lnder 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] Lnder to meet their obligations or
lead to a leveling out of the fi nances of the Lnder. . . . Moreover, the requirement to
equalize the disparate fi nancial capacities of the Lnder only to a reasonable extent
and without establishing parity prohibits any reversal of the order of fi nancial capaci-
ties among the Lnder 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 Lnderboth those obliged to contribute to as well
as those entitled to benefit from equalization. Solidarity among the states of a federa-
tion reduces differences; it does not eliminate them.
[The Court then addressed the fourth and fi nal stage of constitutionally im-
posed fi nancial equalization. The Court explained that the federations supple-
mentary grants to fi nancially weaker Lnder, awarded pursuant to Article 107
(2) [3] of the Basic Law, may not merely continue the horizontal fi nancial equal-
 Feder alism 103
ization with federal funds. The federal supplementary grants, the Court said,
are available to Lnder that experience persistent, below average fi nancial ca-
pacity or have special burdens.
Having outlined the more abstract guidelines required of the Standards Re-
gime, 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 Lnder. 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 Lnder in two stages to 95 percent of the average fi nancial capac-
ity of the Lnder, 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 Lnder.

Repercussions of Finance Equalization III. The Second Senates 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 nan-
cial constitutions vertical and horizontal equalization scheme would be imple-
mented, had been enacted before 1 January 2003. The new Standards Regime was
enacted in September 2001 and was followed by the required comprehensive over-
haul 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 rev-
enues. 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). Sec-
ond, 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 pol-
icy. Th is, of course, represents a challenge to Germanys commitment to equivalent
living conditions.
The important role played by reunification in the debate that led to Finance Equal-
ization 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 Soli-
darity Pact. The long-standing tension between fi nancially stronger and fi nancially
 104 chapter thr ee
weaker Lnder was exacerbated in the 1990s by the integration of the new, very poor
Lnder that had constituted the former East Germany. From 1996, the new Lnder
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 reve-
nue 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 distri-
bution 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 Lnder,
especially the unique needs of the new Lnder.
The regrettable but dawning reality that the renewal and economic integration of
the new Lnder 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. Show-
ing 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 (Solidarittszuschlag). 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 con-
stitutionality 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 Germanys constitutional structure. The

German states, Arthur Gunlicks has written, are responsible for executing as mat-
ters 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 some-
times referred to as administrative federalism, pursuant to which the federation
carries the greatest responsibility for legislation, but the Lnder are generally respon-
sible for [its] administration. . . .54 Administrative federalism will be discussed in
 Feder alism 105
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
ofthe 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 Lnder that retain
constitutional responsibility for their localities.55
Local government has a long history in Germany. Baron von Stein laid its founda-
tion 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 Preusss 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 Lnder.
Later, when the Lnder 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 con-
tinues 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 distribu-
tion of tax revenues.58
More fundamentally, in the Hoheneggelsen Case that follows the Court considered
the core function doctrine for discerning a municipalitys constitutionally protec-
ted sphere of authority. Article 93 (1) [4b] of the Basic Law authorizes local govern-
ments 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
 106 chapter thr ee

3.4 Hoheneggelsen Case (1982)

59 BVerfGE 216
[In 1974 the spd-controlled legislature of Lower Saxony passed a law consoli-
dating several communities into one united municipality. The communities in
which two-thirds of the population lived wanted to call the new municipality
Shlde, while the others preferred Hoheneggelsen. The Land parliament
designated the new municipality Shlde, in keeping with the practice of nam-
ing a new entity after the largest city in the group of consolidated municipali-
ties. After the cdu defeated the spd in Lower Saxonys 1976 election, the Land
parliament passed a new law renaming Shlde Hoheneggelsen. The legisla-
tors explained that the choice of Shlde 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 Ho-
heneggelsen. The city of Shlde fi led a constitutional complaint on the ground
that the new statute interfered with its right of local self-government in viola-
tion of Article 28 (2). The Court agreed with Shlde.]

Judgment of the Second Senate. . . .
A. The constitutional complaint concerns the issue of whether and under what con-
ditions 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 vio-
lates the complainants 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 self-
government if and insofar as these restrictions leave the core functions of this right in-
tact. In determining what constitutes these core functions, one may take historicaldevel-
opments 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 govern-
ment sovereignty is the right to use the name it has chosen. The localitys name
conveys its legal identity and manifests its individuality. Th is right conse-
quently falls within the essence of Article 28 (2) [1]. Nevertheless, communities
have not been immune to state-imposed name changes. Accordingly, most mu-
nicipal codes provide that either the Land parliament or the minister of the in-
terior can change a municipalitys name under certain conditions. The histori-
cal 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.]
 Feder alism 107
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 mu-
nicipality 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 Lnder
now contain this obligation, insofar as they do not already make a name change de-
pendent upon an express petition of the municipality in question.
A municipalitys 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 complainants redesigna-
tion: The original naming was an erroneous decision because the district of Hoheneg-
gelsen 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 mu-
nicipalitys 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 parlia-
ment 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 commu-
nities, the Land parliament cannot, as a rule, maintain the former names of the com-
munities being consolidated but must fi nd a common name. For this reason the leg-
islature has relatively broad discretion when restructuring an areaespecially if the
communities in question disagree about the name of the newly consolidated munici-
pality. 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 municipalitys will. These are lack-
ing 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 parliaments aim of taking
 108 chapter thr ee
the central location and meaning of the district of Hoheneggelsen into account.
Further, it wanted to change prospectively the complainants past investment behav-
ior, which it considered wrong. Th is aim cannot justify the violation of the complain-
ants 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 municipalitys investments only a few years earlier
by incorporating the locality of Shlde into the regional planning program.
Further, the corrective laws professed aim is based on a misunderstanding of the
meaning and scope of the right to local self-government. Th is right vests local gov-
ernment 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 in-
terests when deciding upon plans and investments. The legislature also cannot jus-
tify 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 states redesignation of the complain-
ant 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 dis-
tinguish between local and nonlocal affairs. At the same time, the Courts historical
approach to determining the essence of local government could also be used to pro-
tect newly acquired local functions.61 German commentators are unable to agree on
a complete list of functions protected by the Kernbereich theorysome reject the
theory of core functions altogetherbut 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.
 Feder alism 109
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 governmentsthus render-
ing them immune to federal regulation] results in line-drawing of the most arbi-
trary 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 imple-
menting 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
Courts decision reaffirmed the principle of local self-government, holding, as it had
inHoheneggelsen, 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 deter-
minable 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 au-
thority, 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 weigh-
ing 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 Laws 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.
 110 chapter thr ee

bundesrat, reform gridlock,

and modern federalism

The Bundesrat is the mainstay of German federalism. It was designed to safeguard

the interests of the Lnder.67 To accommodate the interests of the new eastern Ln-
der, 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 mem-
bers, but now Lnder 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 states two U.S. senators, however, these delegations to the Bundesrat
represent the Lnder in their corporate capacities and not the people directly. Th is
means that each states delegation is drawn from the respective Land government,
and the membership of a states 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 states 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 ef-
fect of a negative vote, since only positive votes are counted. All coalition govern-
ments 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 Brandenburgs unified voting in the Bundesrat. The inci-
dent provided the Constitutional Court with an opportunity to rule on the constitu-
tionality 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
 Feder alism 111
by Federal Chancellor Gerhard Schrder. 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 Bundesrats consent,
Schrders government had to count on Brandenburg to cast its block of four
votes in favor of the bill. But Brandenburgs government at the time consisted of
a coalition between the state branch of Schrders spd and the state branch of
his federal opposition, the cdu. When Brandenburgs minister-presidenta
Social Democrat aligned with Schrderwas called upon to deliver the Lands
votes in the Bundesrat, he cast all four in favor of the bill, thereby ensuring the
Bundesrats consent even though a cdu member of Brandenburgs delegation
loudly cast his vote individually as no. The chambers acceptance of Branden-
burgs block of votes as a yesdespite this voiced objectionelicited cries of
foul play from the conservative parties. Federal President Johannes Rau, after
considering the protests, signed the law. Six of the Lnder that abstained or
voted against the bill turned to the Federal Constitutional Court in an abstract
review proceeding, arguing that the events surrounding Brandenburgs Immi-
gration Act vote in the Bundesrat did not satisfy the Basic Laws consent re-
quirement under Article 78. The Second Senate upheld the challenge over the
vigorous dissents of Justices Osterloh and Lebbe-Wolff.]

Judgment of the Second Senate. . . .
C. The application seeking review of the constitutionality of the statute is well-
founded. The Act to Control and Restrict Immigration and to Regulate the Resi-
dence 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 Lnder, 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 Bran-
denburgs block of votes in favor of the Immigration Act. The president of the Bundes-
rat declared that the body had given its consent to the Immigration Act after the
other Lnder 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 Lnder. Article
50 of the Basic Law describes the function of this federal constitutional body in sim-
ple terms: The Lnder shall participate through the Bundesrat in the legislation and
 112 chapter thr ee
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 Lnder 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 states votes will be cast uni-
formly and respects the practice of the block vote [pursuant to which all of a Lands
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 Laws conception of the Bundesrat that a member of a
Lands delegation to the Bundesrat can, at any time, contradict the votes cast by the
holder of the Lands block vote. In these circumstances the preconditions for accept-
ing 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 Lands votes occurs with the voluntary an-
nouncement of the votes of a Land. Where several votes are cast by a Lands Bundes-
rat 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 an-
swered yes for Brandenburg, followed immediately by Bundesrat Delegate Schn-
bohms contradictory response no. The Brandenburg Minister-President Dr. Stolpe,
and Minister Prof. Dr. SchelterBundesrat delegates also presentdid not respond
when the Land was called on. From the unambiguous declarations of Bundesrat Del-
egates Ziel and Schnbohm, 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 Branden-
burgs 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 vot-
ing 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 it-
self 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 Schnbohm [the delegate who had cast the contradictory no vote].
 Feder alism 113
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 presi-
dents duty as an unbiased session chair, on whom it is incumbent to clearly deter-
mine 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 Bundes-
rat has a prerogative for assessing and correcting any ambiguities. The right to in-
quire, 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 Schnbohm 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 Schnbohm
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 cast-
ing the Lands votes. Some of the contributions to the plenary debate, as well as the
careful legal preparation by the parties involved, demonstrate that a uniform politi-
cal decision had not been reached by Brandenburgs delegation prior to the Bundes-
rat session, nor was it expected to be achieved in the course of the session. Instead,
the delegations 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 Lbbe-Wolff did not dispute that the Lnder
themselves do not hold the seats in the Bundesrat, but agreed with the majority
that the Lnder are represented in the Bundesrat by the individual delegates.
The dissenters also agreed with the majoritys 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 Lbbe-Wolff de-
parted from the majority, however, in their conclusion that Brandenburgs 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 officers efforts to obtain
a vote from Brandenburgs delegation. The dissenters then argued that, even if
Brandenburgs split vote were to be characterized as invalid, the Land still had
 114 chapter thr ee
the right to correct its voting afterwards. The dissenters also concluded that
the Bundesrat presidents method for facilitating the correction and clarifica-
tion of Brandenburgs vote should not be regarded, in the majoritys unneces-
sarily formalistic terms, as an evident irregularity in the Bundesrats 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 Germanys popularly
elected parliamentary body. By contrast, the Bundesrat, while not legally a parlia-
mentary 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 Lnder. A suspensive veto can be
overridden by an equivalent vote in the Bundestag. Still, if the legislation affects the
interests of the Lnder, the Bundesrats consent is required. Actions constitutionally
requiring the Bundesrats consent include proposed constitutional amendments, all
laws affecting state tax revenues, and all laws and directives impinging on the adminis-
tration of federal law by the Lnder. An expansive interpretation of Lnder competence
under the last category would have the de facto result of expanding the Bundesrats
legislative prerogatives.
The practical effect of an expansion of the Bundesrats consent power is a serious
matter because it can create frictioneven deadlockbetween the two legislative
chambers. The attempted immigration reform of 2002 demonstrates the critical im-
portance of the Bundesrats expanded power. If different political parties are ascen-
dant in the two chambers, then the majority in the Bundesrat, capitalizing on the
latters expanded consent authority, can all too easily block the parliamentary major-
itys 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 Chancel-
lor Merkels 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 oc-
curred 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 Bundesrats 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 Bundesrats 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
 Feder alism 115
When the Bundesrat objected to an abortion bill passed by the Bundestag, the latter
in turn voted to override the objection, holding that the Bundesrats consent was un-
necessary. The dispute resolved itself into a disagreement over the nature of the
statute. Was it a substantive change in public policy, for which the Bundesrats con-
sent would not be required, or was it a matter of administrative federalism, that is,
affecting the administration of federal law, in which case the Bundesrats 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 admin-
istrative procedures. The Court rejected this claim on the authority of the rule set
forth in the Bundesrat Case, holding that the Lnder 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 claima process administered in different ways in the
various Lnderapplicants 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
Lnder to implement the legislation on behalf of the federation.72 The Court held
that since the statute expanded the administrative responsibility of the Lndera
responsibility transferred to the states with the Bundesrats consentthe Bundes-
rats 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 Lnder a much greater respon-
sibility 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 ex-
tending or prolonging the administrative procedures of Land agencies came to re-
quire the consent of the Bundesrat even though the law as originally enacted had al-
ready received its required consent.74 Even if a subject matter is clearly within the
federations exclusive legislative authority, and even if the law in question is silent with
respect to local administrative procedures, the Bundesrats consent nevertheless may
be necessary if the law substantially affects those procedures or effectively requires
the Lnder 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 origi-
nally required the consent of the Bundesrat also is subject to an absolute veto
 116 chapter thr ee
by the Bundesrat, even if the amendment itself does not affect a matter requir-
ing the Bundesrats consent. In 1972 the Bundestag passed the Pension Reform
Act. Because the act regulated the procedures of Land administration, it re-
quired and received the Bundesrats 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 Bundesrats
consent. Rhineland-Palatinate and Bavaria invoked the Constitutional Courts
abstract judicial review jurisdiction and petitioned the Court to vindicate the
Bundesrats veto right, thereby assuring the Bundesrat a position of co-
responsibility with the Bundestag in Germanys 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 Bundesrats 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 Lnder, as pro-
vided by the Basic Law, demands protective measures against the danger that ordi-
nary legislation may produce distortions of the system that are not within the pur-
view of the Basic Law. The provisions in the Basic Law requiring consent of the
Bundesratincluding Article 84 (1)serve this purpose in the interest of the Lnder.
Consequently, this article requires that a law containing provisions that regulate
Land administrative processes receive the consent of the Bundesratas the federal
body through which the Lnder participate in promulgating federal law. By approv-
ing 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 Lnder. If, in a
later amending act, no new penetration into the sphere reserved to the Lnder oc-
curs 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. . . .
 Feder alism 117
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 Bundesrats consent applies to the
entire statute that every subsequent amendment of that law also requires the Bundes-
rats 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 indepen-
dently 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 Bundesrats consent by vir-
tue 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 Bundesrats 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 Bundes-
rat consentas 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 Bundesrats consent? Follow-
ing the Bundesrats argument, subsequent amendments to this law that affect only the
substantive provisions would require the Bundesrats consent. But it would be absurd
to decide these two cases differently. . . .
2. Nonetheless, there are a number of cases in which the Bundesrats consent is
necessary for the amendment of a law that originally required the Bundesrats con-
sent. Th is is apparent when the amending law contains new provisions that, in their
own right, require the Bundesrats consent. The same is true when the amendment
affects those provisions of the original statute that triggered the need for the Bundes-
rats consent. Also included is the case in which a statute amends another statute re-
quiring consent and containing substantive norms as well as provisions respecting the
states administration. To be sure, the amending statute may be confi ned to substan-
tive 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 Bundesrats consent was not required.]
 118 chapter thr ee
Justices von Schlabrendorff, Geiger, and Rinck, dissenting. . . .
Everyone agrees that the Basic Law contains no express provision requiring the
Bundesrats consent for the amendment of every statute that itself requires such con-
sent. 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 provi-
sion of the Basic Lawespecially 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 Bundesrats consent were to be required
for every law that amends a statute that originally required the Bundesrats 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 can-
not preclude the possibilityindeed it is quite likelythat the Bundesrat would not
have agreed to this new compromise. . . .
4. In addition, our position is consistent with this Courts 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 comprehen-
sible to assume that regulations implementing such a law . . . required the Bundes-
rats 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 chambers
veto. In practice, however, through bargaining in the legal committees in each house
and judicial interpretation, the scope of the Bundesrats 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 provi-
sions 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 in-
structed as to how the federal legislation is to be administered, the legislation re-
quires Bundesrat approval in both its substantive and procedural aspects.76
By jealously guarding and in some instances broadly interpreting the Bundesrats
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 federations power, the Bundesrat, through skillful maneuver-
ing, 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 Bundesrats power also extended deeply into the realm of European and
foreign policy.
Conradt noted the criticism of the expansion of the Bundesrats power and the
role that phenomenon has played in rousing calls for reform.
The enlargement of Bundesrat power . . . has prompted some students of constitu-
tional politics to propose that the powers of the Lnder 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 chambers veto power. Th is is one topic that a new consti-
tutional 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 Schrders spd/Green federal govern-
ment 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 ef-
ficacy and propriety of Schrders 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, Schrders
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 fed-
eration 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 au-
thority.79 Th is mutual antagonism, and the often opaque interdependence between
 120 chapter thr ee
the competence of the federation and the states, has come to be known as political
interconnectedness (Politikverflechtung). Both sides along the partisan and federal-
ist 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 Bundesrats
surrender of its veto power over some areas of federal legislation in exchange for ob-
taining greater authority over some fields that had come to be dominated by the fed-
eration. As the discussion in the section below will make clear, it was hardly surpris-
ing that the commissions efforts ultimately foundered on the allocation of authority
between the federation and the Lnder 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 lev-
els 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 distri-
bution 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 policy-
making process in the German federal system, a process that often had been ob-
structed by the Bundesrat.

division of legislative power

The Basic Law divides legislative power between the federation and the Lnder. It
reserves the bulk of such power to the Lnder, but over the years much of this law-
making 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 Lnder, with only a limited number of administrative com-
petences allocated to the federation. Th is system of administrative federalism, as it
often is called, encourages flexibility in adjusting national policy to local condi-
tions.81 The system is complex, as dozens of articles in the Basic Law define the inter-
locking 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 piv-
otal 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
Germanys scheme of divided powers and administrative federalism was origi-
nally set forth in sections of the Basic Law dealing respectively with federal legisla-
tion (Articles 70 to 75) and the execution of federal law (Articles 83 to 91). According
 Feder alism 121
to the latter provisions, the Lnder are charged with implementing federal law sub-
ject 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 pre-
liminary competence of the Lnder, but the federation was empowered under Article
75 to provide the overarching framework for carry ing out state and local laws re-
lated to these matters. Article 74, fi nally, extended the concurrent legislative author-
ity of the federation and Lnder to nearly all other fields of public policy, including
civil and criminal law. The Lnder 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 federations concurrent and framework authority could be exer-
cised 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 dis-
charge of public functions remained with the Lnder. Th is fact, however, would
change with Germanys political and constitutional development.
In the ensuing decades, social and political change transformed the face of the
Federal Republic. The Basic Laws division of legislative power between federation
and Lnder 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 Lnder. These new concurrent powers included the making
of regulations on organ transplants, state liability, hospitalization costs, waste dis-
posal, 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 federations catalogue of framework legisla-
tive powers under Article 75 was further extended to include general principles gov-
erning higher education, an area of lawmaking the federation would assertively
enter to assist the Lnder in meeting the ever-increasing demands of maintaining
Germanys 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 ex-
tended the concurrent legislative power of the federation to the salaries and pensions
 122 chapter thr ee
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 Lnder. 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 Laws complex scheme for the division of legis-
lative power between the federation and Lnder 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 govern-
ments 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 Bundesrats consent.84 On the other hand, commentators faulted
the schemes complexity and lack of clarity for the drift in policy making, the lack of
political accountability, and Germanys dwindling effectiveness in the European
Union. Essentially, as Interior Minister Wolfgang Schuble explained, the reforms
fi nally adopted in 2006 were about assigning government tasks more clearly and
slightly reducing the states participation in federal lawmaking or reducing the num-
ber 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 Lnder. The federation still possesses only those legislative powers as-
signed to it by the Basic Law while the remaining unenumerated legislative authority
resides in the Lnder. But the federations legislative competence, exercised by the Bun-
destag,86 now includes only two broad categories, namely, exclusive and concurrent
legislative authority. The federations exclusive legislative competence was expanded by
the reforms of 2006 and 2009, now reaching subjects formerly within its list of concur-
rent powers. The new subjects of the federations exclusive jurisdiction include regula-
tion of weapons and explosives, production and use of nuclear energy for peaceful pur-
poses, disposal of radioactive material, defense by federal police against international
terrorism in cases where certain conditions are met (legislation in this area requires the
Bundesrats 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 im-
migration, 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 Lnder 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 federations concurrent legislative powersthose
shared with the Lnderwere expanded to include thirty-three general subject areas.
Apart from the broad domains of civil and criminal law, these jurisdictional areas
 Feder alism 123
included the equally broad fields of labor law, corporate law, public welfare, agricul-
tural 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 Arti-
cles 74a and 75. With the repeal Article 74a, the status and duties of civil servants
(Beamten) of the Lnder, local governments, and other public corporations (includ-
ing judges) were transferred to the newly expanded list of concurrent legislative pow-
ers. The repeal of Article 75 eliminated the federations authority to enact frame-
work lawsthat 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 Lnder.
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 Lnder. For
example, laws enacted pursuant to the federations old framework jurisdiction, laws
now within its concurrent authority, continued in force as framework laws. But under
the 2006 amendments to Article 72 the Lnder 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 Lnder responsibilities over air transport adminis-
tration (subject to the Bundesrats consent). Additional provisions added to the Basic
Law in 2009 called for cooperation and cost-sharing between the federation and Ln-
der 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 gather-
ing intelligence and to adopt rules for exchanges between their respective information-
gathering 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 challengedin the Bundestag by one-fourth of its members
when it interferes with a legislative competence of the federation or of the Lnder.

The Jurisprudence of Federalism Reform. Before proceeding to the Atomic Weap-

ons Referendum I Case, it should be noted that the demise of the federations frame-
work legislative competence was largely a consequence of decisions of the Federal
Constitutional Court from 2004 and 2005. In the reformed scheme the jurispruden-
tial focus remains on the boundary between the federations 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
oftelecommunication over which the federation has exclusive legislative authority.
The federations concurrent legislative powers also have been narrowly construed.
 124 chapter thr ee
Thus, the Basic Laws 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 federations concurrent legislative powers. But in
2006, as noted earlier, this authority was transferred to the federations list of exclusive
legislative powers. The Courts narrow interpretation of the federations 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 governments 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 federations exclusive power over military affairs. Th is case, brought in the
form of an abstract judicial review proceeding, challenged the validity of refer-
enda in Hamburg and Bremen. The Court sustained the challenge.]

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 referen-
dum 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 de-
fense. 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 ex-
ecutive] 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 federations exclusive authority to
determine or technically regulate a matter of defensefor example, arming the fed-
eral military. But that is not the decisive point. What is decisive is the clearly recog-
nizable 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
 Feder alism 125
chosen a par ticu lar policy with the Bundestags 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 referendato force the competent constitutional organs
of the federation to change a decisionrepresents an attempted infringement upon
the exclusive jurisdiction of the federation. States infringe on the exclusive, autono-
mous authority of federal organs not only when they try to regulate a matter them-
selves, 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 exer-
cise of state authority just as they do in elections and plebiscites. The general cata log
of competences in the Basic Law (Articles 7375) does not contain any provision re-
lating to the authority of the federation or states to enact electoral laws. Neverthe-
less, 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 plebi-
scite on a subject belonging exclusively to the legislative competence of the federa-
tion or a Land referendum on a matter of exclusive federal jurisdiction.

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 reservedand unenumeratedpowers once included
cultural matters, education, hospitals, and various social ser vices. The 2006 federal-
ism 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 governments treaty-
making 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 Hitlers regime concluded a concordat (treaty) with the Holy See. The
concordat recognized the right of the Catholic Church to freedom of religion
 126 chapter thr ee
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 Prot-
estant Land, provided for nondenominational schools for all children. The
federal government, at the urging of the Holy See, contested the validity of the
states new policy, relying on the Constitutional Courts 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 con-
cordat 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 Lnder have managed to reserve to themselves.]

Judgment of the Second Senate. . . .
E. II. We need not here examine the extent of the states obligation toward the federa-
tion to honor treaties internationally binding upon the Federal Republic of Ger-
many. In no case could the states obligation toward the federation to honor the con-
cordats 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 Lnder. . . .
These choices reflect no such obligation. In contrast to the Weimar Constitution,
these provisions establish the Lnder as the exclusive custodians of cultural leader-
ship. In the area of denominational organization of the school system, only the provi-
sions of Articles 7 and 141 limit this exclusive authority. Th is allocation is an impor-
tant element of the federal structure of the Federal Republic of Germany.
1. We must proceed from the view that the Lnder 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 Lnder in this area because the
Parliament cannot pass a law in an area where the Lnder have exclusive legislative
authority.
We must, therefore, consider as an important principle of federal constitutional
law that the Lnder 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 Lnder constitutionally to the educational provisions of the concor-
dat would flatly contradict their authority to make educational law freely within the
limits of the constitution.
 Feder alism 127
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 constitution-
ally binding the Lnder 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 Lnder 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 Lnder 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
Lnder could alter the Reichs existing legal regime. Thus, the Basic Law also expressly
recognized the changes the Lnder made to the Reichs existing legal regime during
this period (Article 125 (2)).
In the governmental structure of the Lnder the issue of education had par ticu lar
importance and was the subject of lively dispute; the Lnder often deviated from the
educational provisions of the concordat. . . .
In the light of this background, the constitutions 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 inten-
tion to constitutionally obligate the Lnder to fulfi ll the educational provisions of the
concordat. In view of the diversified legal situation in education among the states and
the Basic Laws choices in this area (Articles 7 and 141), the constitution could not have
been silent on educational matters if it wished to oblige the Lnder to observe the edu-
cational 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 contradic-
tory 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 Laws division of authority between the
federation and the Lnder was not a matter of apportioning the power of a totalitar-
ian state. . . . The events from 1945 to 1949 meant more than a change in the form of
government. . . . Rather, a fundamental reconstruction gave German public author-
ity an entirely new structure and form in the federation and Lnder, 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 Lnder and the reorganization of the entire German state
confronted the framers of the Basic Law with two faits accomplis. On the one hand,
 128 chapter thr ee
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 Lnder, if only because of their political influence. The par-
liaments of two-thirds of the Lnder 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 Lnder 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 Lnder are obli-
gated vis--vis the federation to observe the concordats educational provisions is
irreconcilable with the basic decisions of the constitutional structure, including the
decision to confer upon the Lnder 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 Lnder 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 feder-
alism contains the seeds of perpetual constitutional conflict. The Bundesrats 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 Germanys 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 Lnder.
Even when governed by different political parties, the federation and Lnder have pre-
ferred 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 Bundesver-
fassungsgericht have been sought and given over a wide range of federal issues and have
affected in detail the relations between the Bund and Lnder.95
 Feder alism 129
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 educa-
tion and vocational training. Th is seems to be a consequence of two factors: Germa-
nys 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 empow-
ered to explore federalism reform in 2003,97 prior to the creation of the more politi-
cally amenable cdu-spd grand coalition government formed after the 2005 elec-
tion, 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 federations exercise of its framework
competence over general principles respecting higher education pursuant to Ar-
ticle 75 (1) [1a].98 The federations framework legislative competence was eliminated
by the 2006 federalism reform thanks in no small part to this legacy. But the federa-
tions 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 Courts tendency not to read any im-
plied powers into Article 74. The Engineer Case for example, involved the defi nition
of the scope of the federations concurrent legislative authority in the context of
policy affecting the training and certification of engineers where the relevant con-
current 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 Lnder. Indeed, as already suggested, the vast scope of enumerated federal leg-
islative competences has prompted the Court to guard with special vigilance the
little authority that remains with the Lnder 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. Constitutions 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 govern-
ment, 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 re-
quirements lodged constitutional complaints against the statute, claiming a viola-
tion of the right to the free development of ones personality. The Constitutional
 130 chapter thr ee
Court sustained the complaints after ruling that the federal law exceeded the
federal governments authority under Article 74.]

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, re-
flects the concern originally raised against the legislative competence of the federa-
tion when the matter was being considered in the Bundesrat. By confi ning the regu-
lation 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 Impe-
rial 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 Lnder. Article 70 (1) makes
this clear by providing that the Lnder 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 pre-
vents unqualified persons from offering engineering ser vices nor does it guarantee
that business partners who claim to be engineers do, in fact, have certain creden-
tials. . . . 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 sub-
stance 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 au-
thority would obtain here only if a subject within the express jurisdiction of the
 Feder alism 131
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 federations 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 regu-
lated, which, according to its nature, would normally not fall within federal
jurisdiction but which only the federation can effectively regulate. The argu-
mentation 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 fed-
eration, can regulate certain fields because they constitute, by their very nature, a
most individual matter removed a priori from the legislative authority of the federa-
tion. 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. Unifor-
mity 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.

Assessing Whether Concurrent Legislation Is Essential. In addition to the Consti-
tutional Courts strict construction of the legislative powers granted the federation
by the Basic Law, Article 72 (2) imposed a separate limitation on the federations ex-
ercise 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 Ar-
ticle 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) [2833]) the Lnder
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 federations authority to enact essential con-
current legislation, the 2006 federalism reform took cognizance of the Constitu-
tional Courts Geriatric Nursing Act Case which expressed a decidedly pro-state
skepticism of the federations assertion that the challenged law was essential.
Certainly, the Courts strict interpretation of the term essential in Geriatric Nurs-
ing 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 leg-
islation was essential under Article 72 (2).103 Considering the aforementioned sen-
sitivity 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 geriat-
ric 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 Courts 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 Lnder independent spheres of competence for par ticu lar and differentiated reg-
ulation.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 cer-
tificate to perform these ser vices. These and other provisions of the law were
 Feder alism 133
intended to regulate the field and to standardize the ser vices throughout Ger-
many, especially in anticipation of the expected dramatic increase in demand
for these ser vices necessitated by Germanys aging population. Before the en-
actment of the law there were significant differences in the laws regulating the
field at the Land level. Pursuant to the Courts abstract judicial review jurisdic-
tion, 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 federa-
tions 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 regu-
late the profession of geriatric nurse under its concurrent legislative authority,
but not the profession of geriatric assistant. The Court then held that the chal-
lenged regulation of geriatric nurses was essential.]

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 Lnder, special
importance attaches to Article 72 of the Basic Law because it allocates legislative
competences. The provision fits into the general rules governing concurrent legisla-
tion: the Lnder are, in principle, competent to legislate and remain so if the federa-
tion 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 Lnder. 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 deter-
mined by the entity whose competence it is supposed to limit. For the purpose of re-
stricting the scope of federal legislation to the matters specified in Article 73 et seq. of
 134 chapter thr ee
the Basic Law, the Federal Constitutional Court has long stressed that that limita-
tion 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 po-
sition 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 Lnder 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 review-
able 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 deter-
mining 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 Arti-
cle 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 amend-
ment] 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 provisions nonjusticiability. The amendment, instead, contains the cri-
teria 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 Lnder 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 Lnder 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 ca-
pacity 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 es-
sential (both as to purpose and scope) to achieving either of two objectives: the
 Feder alism 135
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 geri-
atric 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 concur-
rent 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 Lnder are equally capable of fulfi lling constitutional objectives, pri-
macy belongs, in principle, to the Lnder (Article 30 and Article 70 of the Basic Law).
Article 72 (2) of the Basic Law takes this into accounttogether with the require-
ment that federal regulation be essentialand thereby directs the federation toward
the least possible interference with the Lnders authority to legislate. Federal regula-
tion 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 pre-
rogative 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 le-
gally 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 safe-
guard the legally protected national interests mentioned in Article 72 (2) of the Basic
Law. But not every theoretical possibility of action by the Lnder 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 al-
ways exists, the concurrent legislative competence of the federation would be pur-
poseless. The provision does not seek to delimit the federations legislation from that
of the Lnder. The purpose of the federal constitutional system is to open up for the
Lnder 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 unconstitu-
tionality to be reached, however, the statute must be based on a defective assessment
 136 chapter thr ee
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 predic-
tive judgements are based on an ascertainment of facts that, for their part, are ame-
nable to examination and evaluation. . . . What is verifiable here, just as with the as-
sessment 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 par-
ticu 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 com-
plex 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 Courts 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 method-
ologically 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 dis-
closed 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.

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 federations 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 occupa-
tional freedom secured by Article 12 of the Basic Law.105 The Court concluded that
 Feder alism 137
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 permit-
ted 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 prohibi-
tion 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 Courts analysis. As part of the 1994 amend-
ments 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 discre-
tion to empower the Lnder to create a superseding legal regime. The business hours
established by the 1996 version of the Shop Closing Act, the Court explained, consti-
tuted 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 feder-
alism matters, the Court was also unanimous in concluding that the Sunday and holi-
day closing requirement in the 1996 version of the Act did not constitute an unconsti-
tutional infringement of occupational freedom and equality.108 The Court was evenly
divided on the same question as regards the Shop Closing Acts 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 Germanys shopping hours has, in
any event, been resolved in favor of the Lnder by one of the reforms of 2006: Article
74 [(1) [11]], which gives the federation concurrent powers over certain economic ac-
tivities, 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 estab-
lishments, and an inconvenience to German shoppers. By November 2006 some Ln-
der [(e.g., Berlin)] had already acted to liberalize dramatically store opening hours.110
 138 chapter thr ee

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 Lnder 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 Lnder, as well as between separate Lnder,
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 de-
gree or another by the 2006 federalism reform.
Arthur Gunlicks has argued that cooperation better characterizes German feder-
alism 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 fed-
eral] fi nancing and administrative responsibilities that emerged during and after the
New Deal [during American President Franklin Roosevelts administration],113 es-
pecially in response to the growth of the modern welfare state.114 [B]y the 1970s, on
the heels of American President Lyndon Johnsons Great Society program, there
were few [American] government programs that did not involve the federal govern-
ment in some combination with the states and/or local governments.115 The Ger-
man era of cooperative federalism, fueled by underlying and powerful tendencies
towards unitarianism and centralization,116 has resulted in such a thoroughgoing
entanglement of the Lnder and the federation in matters of policy making, fi nancial
affairs, and administration that some constitutional law scholars question whether
todays 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 (Rah-
mengesetze) 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 ad-
opted in 1969 and 1971, the cooperative responsibility of the federation and Lnder
via framework legislation was extended to include the legal status of persons in the
public ser vice of the Lnder and general principles governing higher education.
State legislation continued to dominate these fields but within preestablished federal
 Feder alism 139
guidelines. As with the federations 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 pre-
sume 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 Lnder any further than the language of the
framework law makes absolutely necessary. Even the extent to which the language of
the federations framework legislation controlled the details of a regulated matter
proved to be a difficult issue requiring careful judicial consideration. In the North
RhineWestphalia 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 tic-
u lar conditions of the state concerned; that the federal framework provisions need
not be restricted to fundamental principles yet must not exceed their declared pur-
pose of forming a boundary for discretionary regulation by the Lnder 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 federations framework
authority.120
In the Junior Professor Case the Second Senate ruled, in a 53 decision, that the
Fift h Act for the Amendment of the Higher Education Framework Law was incom-
patible 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 engag-
ing 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 federations framework legislative competence. In so doing, it
seems likely that it precipitated the demise of framework legislation in the 2006 fed-
eralism reform.121

3.11 Junior Professor Case (2004)

111 BVerfGE 226
[The 2002 law sought a comprehensive reform of the qualifications and pay-
ment of academics and researchers. In pushing for the reform, the newly elected
spd-Green coalition government argued that Germanys once-vaunted post-
secondary 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 com-
petitive compensation scheme across all academic positions. The three Lnder
 140 chapter thr ee
governed at the time by the cdu or csu brought an abstract judicial review ac-
tion to challenge the federal legislation as an intrusion on the states compe-
tence over education policy. The Court agreed.]

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 accept-
able 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 Lnder scope only for secondary enactments. The Lnder are
required to adopt a staff structure thatwith some minor exceptionsprecludes
any alternatives. The Parliament fails to appreciate that the competence to enact frame-
work legislation does not allow it the same political scope of action as the other legisla-
tive 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 Lnder 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 Lnder
are given the scope to defi ne the actual conditions of employment for academic uni-
versity 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 pro-
ceedings on the constitutionality of the statute, it is essentially left up to the Lnder
themselves to decide on the introduction of internal appointments, the rules govern-
ing 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 opera-
tional rules covering all the essential elements; they predetermine the central con-
cept 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 Lnder
should retain substantial legislative scope in respect of higher education. . . .
b. The institution of the junior professorship is prescribed, according to the legisla-
tive 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 Lnder are, thus,
 Feder alism 141
not allowed to organize this central area of higher education independently. The Ln-
der are forced down the mandatory path of the new means of access to the professor-
ship. Since so little room remains at the very heart of the reform projectthe introduc-
tion of the junior professorshipfor 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 ne-
cessity for uniform federal legislation, as required by Article 72 (2) of the Basic Law.
a. The federations 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 pre-
cisely as a result of differing laws in the Lnder. That would be the case, for example, if
living conditions were to follow unacceptably divergent trends as between the Lnder
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 federa-
tion nor evident. The provisions in question also are not necessary for the mainte-
nance of legal unity. No fragmentation in the law of higher education and higher edu-
cation 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 Lnder, 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.

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 Germanys 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 leg-
islation would have guaranteed that studies leading to a fi rst degree, and that con-
secutive 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
 142 chapter thr ee
the international preeminence they once enjoyed. The Court found that the federal
tuition regulation was within the federations competence to broadly regulate gen-
eral 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 legisla-
tion was not essential for either the establishment of equivalent living conditions or
for the maintenance of legal or economic unity (Article 72 (2)). The federations
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 in-
adequately supported the federations arguments that enrollments would decline
and students would flood no-tuition or low-tuition universities if tuition schemes
were instituted by the Lnder. Costs, the Court noted, are only one of a complex mix
of interests and values that inform a students selection of a university. The Court
went so far as to suggest that students might prefer the improved quality in program-
ming and ser vices a university could provide as a result of securing additional fund-
ing from tuition schemes. On the one hand, conservative-led governments in Ba-
varia, 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 de-
cried tuition fees as contrary to Germanys commitment to social justice.
With the elimination of Article 75 in the 2006 federalism reform, at least one sub-
ject previously covered by the federations framework legislative competence was
added to the federations exclusive legislative competence under Article 73 (protec-
tion 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 91b1969 amendments to the Basic Lawdefi 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 Lnder 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 Germanys 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 fed-
eral 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-
 Feder alism 143
dard for essential federal legislation under Article 72 (2) from the necessity re-
quirement 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 Ar-
ticle 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 grants126 by clearly enumerating those circum-
stances 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 re-
cast as a new Article 104b, which aims to resolve the criticism that the federations
grants-in-aid served as a Trojan horse through which the federation extended its in-
fluence in matters reserved to the Lnder. 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 federations influence by limiting the reach of federal grants-
in-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 federations legislative priority with the states right
to execute federal law as matters of their own concern (i.e., in their own right) un-
less 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 predomi-
nate in the field of public administration because they establish and operate nearly all
of the countrys administrative agencies. As a consequence, the Lnder are primarily
responsible for putting into force most rules and regulations pertaining to the train-
ing and employment of civil servants. Incongruously, federal law controls the gen-
eral legal status of civil servants, including their classification, educational qualifi-
cations, and salaries.131 Demonstrating the breadth of the 2006 federalism reform,
 144 chapter thr ee
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 Lnder, local
governments, and other public corporations were transferred to Article 74, which
provides for the federations concurrent legislative competence. Salaries and benefits
for public employees in the Lnder and local governments, however, are now the re-
sponsibility of the Lnder.
Th is was not the only change in Germanys administrative federalism wrought by
the 2006 federalism reform. One of the chief aims of the reform was to have the Ln-
der surrender some of the lawmaking competence they had acquired through the
expanded veto authority of the Bundesrat. In light of their responsibility for adminis-
tering law, this could be expected to have the ancillary effect of exposing the Lnder
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 (Arti-
cles 70 to 74). The solution was to amend Article 84, which maintains the states pri-
ority in establishing administrative agencies and procedures. But the new Article 84
goes further, providing the right of a Land government to enact deviating legisla-
tion if federal law touches upon the administration of the law. Article 84 protects the
states interest in administration against the federations 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 federal-
state relations in administrative matters. But the federation and the Lnder do not
participate in this administrative symbiosis in every instance. While limited in num-
ber, exclusive federal administrative structures exist in those areas of the federations
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, autono-
mous 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 compe-
tence 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 federations 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 Bundesrats
consent, even to issue directives to Land agencies. Kalkar II is a landmark case in-
 Feder alism 145
volving a clash between federal and Land administrative orders; the case draws at-
tention to the Basic Laws distinction between two forms of Land administration.
Under Article 84 the Lnder 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 Bundesrats consent.
Here the line between federal legislation and Land administration is clear. Article 85,
however, provides for a unique administrative mechanism referred to as Lnder
administration by federal commission, pursuant to which the Lnder are empow-
ered to administer federal law as agents of the federal government. They act as the
federations agents when, with respect to a given subject matter, the Basic Law so de-
clares or when the regulated matter is subject to more immediate federal control.
Inthis 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 federations authority under Article 85 (3). The
Court resolved the dispute in favor of the federal minister but admonished the fed-
eration 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 federations concurrent authority over the production of nu-
clear energy the Parliament enacted the Federal Nuclear Energy Act, which,
among other things, regulates licensing procedures for the construction of fast-
breeder reactors. (Article 87c declares that nuclear energy laws may be admin-
istered by the Lnder for the federation with the Bundesrats 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 Unions fast-breeder reactor in Chernobyl in 1986, North Rhine
Westphalias minister in charge of technology ordered a reassessment of the
plans for the reactors 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.]

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
 146 chapter thr ee
authority of the Lnder to execute federal laws as agents of the federation. As a proce-
dural order, the federal directive is permissible under Article 85.
3. . . . Objectively . . . the federal order complies with the conditions of and restric-
tions on federal competence under Article 85 (3). The order did not violate the prin-
ciple of comity.
I. Article 83 empowers the Lnder to enforce federal laws unless otherwise speci-
fied in the Basic Law. In principle, the Lnder administer federal laws as matters of
their own concern (Articles 83 and 84). The Lnder 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 Lnder 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
Lnder 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 federations administra-
tive power (Article 86). The debates in the Parliamentary Council also proceeded on
the assumption that Land and federal governments would serve as equals in admin-
istrative matters and that Land and federal agencies would be kept separate.
Admittedly, the autonomy of the Lnder in administrative matters is substantially
restricted. Where the Lnder execute federal laws in their own right the federal govern-
ment 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 ensur-
ing the lawfulness and appropriateness of administration, for which purpose the fed-
eral government may require the Lnder to submit documents for inspection and
dispatch representatives to the Land administrative agency. Most important, the direc-
tives 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 Lnder is limited by the origi-
nal distribution of competences to each level of government. The Lnder retain ex-
clusive 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 Lnder, 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 vi-
sion of the common good may prevail. The power of the Lnder 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 re-
porting committee of the Parliamentary Council, Land administrative agencies were
 Feder alism 147
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 direc-
tives 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 co-
mity. Certain conditions and restrictions for the execution of competences can be
derived from this. In the German federal state the entire constitutional relation-
ship between the federation and its member states is guided by the unwritten con-
stitutional principle of comity; that is, the federal government and the Lnder
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 Lnder rea-
sonably consider the overall interests of the federation and the concerns of the
Lnder. The federal government does not violate its duty solely by executing a con-
stitutionally 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 peti-
tioning Land cannot proceed with its submission that the federal directive was in-
compatible 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 ex-
ecution 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 ministers attention to legal opinions about the protection of prop-
erty 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-
 148 chapter thr ee
tem of the reactor by raising the possibility of another expert report, thereby deviat-
ing 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 preven-
tion (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 re-
quired 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 reason-
ably required to understand the content of the order.

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 Sen-
ate again acknowledged the federations administrative will in cases where Land ad-
ministration is authorized by the federation (Article 85). In Kalkar II the Court held
that [t]he Lnder retain exclusive authority in the administration of their functions
as against third parties. . . .136 In Biblis-A the Court narrowed the scope of this state-
based administrative competence.
Following decades of controversy, including Hesses persistent refusal to adminis-
tratively 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 governments efforts coincided, however, with in-
creased 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 per-
mits prepared by the state and ordered Hesse to grant permits certifying the ade-
quacy of safety modifications to Biblis-A only after federal supervisory approval.
Meanwhile, as part of the new federal governments broader efforts to shape energy
policy, representatives of the federal government and the energy supply industry (in-
cluding 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, includ-
ing the following passage: Before the end of August 2000, the federal ministry will
determine measures about the acceleration of the permit procedure vis--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 implicat-
ing 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 plants operator and
the Federal Ministry of the Environment at which the terms of operational certifica-
 Feder alism 149
tion for Biblis-A were concluded. Hesse challenged the federal governments actions
as an encroachment on its administrative sovereignty and brought the matter to
the Constitutional Court.
The Constitutional Court dismissed Hesses petition on its merits. Speaking fi rst
to the question of state administrative competence, the Court reconfi rmed that,
within the scope of Lnder administration by federal commission (Article 85), Land
governments possess the inalienable and exclusive right to execute all administra-
tive 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 admin-
istrative sovereignty of the Land would be violated in such circumstances only if
the federal government were to engage in legally binding activities vis--vis third
parties or issue statements that approximate a legally binding decision. Th is was not
the case with respect to the federal governments dealings with the operator of
Biblis-A.
Second, the Court addressed the question of comity, especially in respect to the
federal governments exclusion of Hesse from the atomic consensus negotiations.
The Court ruled that Hesses administrative competence in the case was limited to the
nuclear power plant, which the Court viewed as wholly distinct from the federal gov-
ernments pursuit of its broader energy policy by way of the atomic consensus. The
Court found that comity had not been jeopardized by the federal governments failure
to notify and actively pursue Hesses 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 states interests in its administrative competences were adequately pro-
tected. Hesse had been notified of the federal governments engagement with the
matter through the federal exercise of its power to direct substantive administrative
policy and through media coverage of the federal governments efforts regarding en-
ergy policy. The Land also enjoys the effective procedural protections elaborated in
Kalkar II, which must be observed before the federal government can issue an adminis-
trative instruction under Article 85 of the Basic Law. There is no protected Land inter-
est, however, if the federal government activities involve only the informal measures
that inform the federal governments 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 governments
interactions with the external operator of the Biblis-A plant, with their real, if ostensi-
bly informal and incidental effects, interfered with Hesses administrative compe-
tence in violation of Articles 30 and 85 of the Basic Law. At the very least, the dis-
senting justices argued, the federal government should have been found to have
 150 chapter thr ee
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 exam-
ple, 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 Ger-
many. Ostensibly, this was to permit safety inspections of the entire network of nu-
clear 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 consti-
tutional life.

conclusion

The issues and materials discussed in this chapter underscore the fluidity in the con-
stitutional politics of German federalism. The Basic Laws complex system of federal-
state relations, including its detailed provisions on the administration of federal law
by the Lnder and the apportionment of tax revenue between levels of government,
also reveals the extent to which government process is subject to constitutional con-
straints. 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 per-
petuate its vision of the political order created by the Basic Law. Although fi rmly up-
holding the principle of federal supremacy in those areas of public policy expressly
committed to the federal government, this vision also includes a critical and autono-
mous role for the individual Lnder. 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
Lnder 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-
 Feder alism 151
fi ned role for the Lnder in Germanys 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 Laws 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 (Staatsge-
walt) . . . 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 ar-
rangements in the United States. In their view, political power was implicitly dis-
persed by the Basic Laws 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 federations
preeminence in the field of legislation and the federal states (Lnders) preeminence in
the field of public administration. As a result, executive-legislative conflicts often re-
solve 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 Germanys parliamen-
tary system. Executive authority is divided between the federal president (Bundes-
prsident) 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
institutionsfederal government (chancellor and cabinet), president, Bundestag,
Bundesrat, and Federal Constitutional Courtare the Federal Republics 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 pro-
ceeding. 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.
 Separ ation of Powers 153
Parliament elects the chancellor (Article 63), but the chancellor is responsible for set-
ting the general policy guidelines of the federal government (Article 65). In addi-
tion, the constructive vote of no confidence (Article 67) reinforces the chancellors
independence as a political leader. Indeed, Konrad Adenauers strong leadership
during the Federal Republics 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 nec-
essary to control and discipline the chancellor. The unamendable principle of sepa-
rated powers (Gewaltenteilung) combines with the equally entrenched principles of
popular sovereignty (Volkssouvernitt) and executive responsibility (Verant-
wortlichkeit 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 [Germanys] party democracy.7 The increasing impor-
tance of political parties in the creation and election of a par ticu lar government or
governing coalition has prompted constitutional theorists to highlight the impor-
tance 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 Con-
stitutional Court ranks the principles of multiparty democracy (Mehrparteien-
prinzip), equality of parties (Chancengleichheit der Parteien), and the right of op-
position (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 responsi-
ble to the legislature. Federal ministers, however, owe their primary allegiance to the
chancellor. He or she effectively appointsand dismissesthem (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 execu-
tive 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 capac-
ity as parliamentary state secretaries, serve as officials within the federal ministries.9

Lawmaking. The large majority of legislative proposals in Germany are bills pro-
posed by the federal government. The government must submit such bills to the
 154 chapter four
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 gen-
erally the product of a broad consensus reached by these three institutions.10 Consti-
tutional confl icts among these institutions, as exemplified by the Bundesrat Case
(1975; no. 3.6), seldom arise. After the Bundestag passes legislation, either the chan-
cellor 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 presidents obstinacy with the Court.11

Vote of No Confidence and the Power of Dissolution. The Basic Laws scheme of
separated powers involves a system of checks and balances rare among parliamen-
tary 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 systems separation of powers. To
that end, the chancellor holds a more secure position in the Federal Republics gov-
erning system. The Basic Law provides for a vote of confidence in only two situa-
tions. 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 re-
move the chancellor under this provision only when a majority of its members simul-
taneously 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 confi-
dence 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 dis-
solve is the presidents alone, and he or she may decline the chancellors 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 re-
placed 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 Schrder (on 13 November 2001) won their votes of confidence for
the purpose of validating certain policies. But on three occasionsWilly Brandt
(on 22 September 1972), Helmut Kohl (on 17 December 1982), and Gerhard Schrder
 Separ ation of Powers 155
(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
Schrder 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 parliamen-
tary vote in each case essentially was an orchestrated expression of the governing
majoritys 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 Schrders 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 en-
dowing 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 parlia-
mentary 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 Kohls false no-confidence vote
satisfied the formal requirements of Article 68 and, additionally, was justified by
Kohls rational belief that he was confronted with a situation of instability (eine
Lage der Instabilitt), 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 presidents decision to dissolve the Par-
liament and order new elections. In the course of its opinion, the Court made clear
that each of the decision makers along the waychancellor, Bundestag, and presi-
dentis duty-bound to consider the Basic Laws sharp limits on the power of disso-
lution. Each is required, independently and conscientiously, to decide whether the
political divisions in the Bundestag seriously impair the ruling coalitions 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 tic-
u lar, should grant the chancellor a certain political leeway (Spielraum) in determin-
ing whether he or she is faced with a situation of instability that would justify dis-
solution 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 Schrder 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
Schrder complained that his ability to govern had been handicapped by the coalitions
 156 chapter four
slim majority in the Parliament, by division within his party and the governing coali-
tion, by the oppositions control of the Bundesrat (where it was successfully blocking
much of the governments legislation), and by intense special interest opposition to
and not-insignificant public outrage over the governments comprehensive reform
program known as Agenda 2010. The chancellor contended that drastic measures
were required to confront Germanys 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 gov-
ernment empowered with a clear mandate from Germanys voters.
In televised remarks on 21 July 2005, President Horst Khler accepted Chancellor
Schrders litany as adequately establishing the existence of a situation of insta-
bility. Our future, the president declared, and the future of our children stands in
the balance.
Two members of the Bundestag disagreed and challenged the presidents 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 chancellors 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 governments power
exclusively in the Bundestag, where a slim majority is sufficient to govern effectively.
Th is had been repeatedly proven in Schrders case, the complainants explained, by
his governments 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 demo-
cratic effect of sharpening policy and broadening the consent needed for the enact-
ment 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 politi-
cal 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 71 majority the Court
here upheld Chancellor Schrders false no-confidence vote and the presidents
subsequent dissolution order. On the other hand, the majoritys characterization
 Separ ation of Powers 157
of the law governing the question could only muster the support of five justices.
Justice Lbbe-Wolff wrote separately to depart from the majoritys reasoning.
Justice Jentsch, the lone dissenter from the Courts holding, also wrote
separately.]

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 Septem-
ber 2005, did not violate the Basic Law. The decree did not harm or threaten the com-
plainants 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 Bunde-
stag 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 effec-
tively his or her mandate, the chancellor requires the continuous support of a major-
ity in the Bundestag. Relying upon a free mandate, however, each member of parlia-
ment 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 governments actions and formulates
alternatives. The majority from which the chancellor was elected typically will sup-
port its government and its chancellor in these open policy debates. Neverthe-
less, the parliamentary majority regularly will express criticism of the governments
political course within the parliamentary faction or the party. Thus, the parliamen-
tary decision-making process has two distinct components. First, it consists of the
relationship between the government and a parliamentary majority. Second, it ben-
efits from the parliamentary minoritys opposition to the government. To a consider-
able 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 governments majority. It also does not preclude the possibility
that members of parliament belonging to the governments 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 collaborationbased
on trustwith the majoritys 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
 158 chapter four
their conscience, an effective consensus emerges. That consensus should be compat-
ible with the federal governments program.
In principle, the chancellor and his or her government require a dependable par-
liamentary majority. In this context dependable means that the chancellor is enti-
tled 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 chancellors relationship with
parliamentary groups. Doubts about whether the chancellor and his or her govern-
ment still have a dependable parliamentary majority need not be fully and unambig-
uously resolved in order for concerns to exist.
2. If the chancellor is no longer able to secure the votes of the majority of the mem-
bers 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 resolv-
ing 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 par-
liamentarians 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 pro-
vision. It is sufficient that the chancellor legitimately believes that the federal gov-
ernments ability to act in concert with a dependable parliamentary majority is
impaired.
[The Court considered the historical roots of the Basic Laws preference for par-
liamentary 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 Laws 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 be-
tween 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 dissolu-
tion of the parliament if he or she faces policy setbacks and no longer enjoys the sup-
port of a majority in the Bundestag. The chancellors ability to act also is lost if he or
she is forced to avoid setbacks in the Bundestag by moving away from substantial ele-
ments of a desired political program and is, instead, required to pursue different poli-
cies. The chancellor must act under the control and with the cooperation of the
 Separ ation of Powers 159
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 inde-
pendent policy-making constitutional organ that can be answerable to the Bundestag
and through the Bundestag, to the citizensonly 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 governments 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 governments loss of a
dependable parliamentary majority, is incontestable.]
. . . Constitutional difficulties in the Courts review of an Article 68 dissolution
process arise when the chancellor concludesbefore actually suffering policy set-
backs in the Bundestagthat there is no assurance that his or her policies will be
supported by a parliamentary majority. It is even more difficult to evaluate the chan-
cellors conclusion if the paralyzing political effects of such a situation will only be-
come apparent in the future.
Such a concealed minority situation arises when, on the one hand, an organized
parliamentary majoritythe nominal majority required to elect a chancellordeclares
its support for the chancellor and publically offers its political support, while, on the
other hand, support for the chancellors 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 confi-
dence are not capable of being presented and ascertained in court proceedings. Po-
litical disputes that have not been (legitimately) resolved in the open political pro-
cess do not have to be disclosed to other constitutional organs, such as the Court.
The chancellors 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 infor-
mation, 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 Laws assignment of constitutional oversight
in this context to three successive constitutional organsthe chancellor, the
 160 chapter four
Bundestag, and the federal presidenteach 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 chan-
cellor 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 Parliaments dissolution. Indeed,
thechancellor 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 parliamen-
tarians right to represent constituents without being bound by instructions takes
precedence. . . .
Finally, as the third constitutional organ, the president orders the dissolution ac-
cording to a political assessment. In the present case, prior to announcing his deci-
sion, 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 presidents word as a neutral authority still car-
ries 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 con-
fidential conversations that enable him or her to form a picture of whether the gov-
ernments 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 Con-
stitutional Courts 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
 Separ ation of Powers 161
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 Schrders case. Relying on Schrders speech to
the Bundestag in support of the confidence vote, the Court cited his explana-
tion that his Agenda 2010 reform package had created conflicts between
Schrders Social Democrats and his governments coalition partner, the Green
Party. The Court noted that there were also calls for Schrders resignation
from within his own party. The Court also brushed aside two of the complain-
ants arguments. First, the Court dismissed the fact that leading Social Demo-
crats had commented on the partys continuing confidence in Schrder, con-
cluding that these remarks referred to Schrders character and not his policies.
Second, the Court found Schrders recent legislative successes to be unim-
portant because none of the legislation cited implicated the contentious Agenda
2010 policies.
Justice Lbbe-Wolff concurred in the result (upholding the presidents dis-
solution order). But she wrote separately to argue that the presidential and
judicial review of Article 68 no-confidence votes was both improper and inef-
fectual, 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 Courts hold-
ing and reasoning in the case. First, he asserted a formalist critique, arguing
that Chancellor Schrder 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 Laws clear disapproval of
such measures.]

Impact of the Dissolution Cases. The Parliamentary Dissolution cases were extremely
controversial. As former federal president Karl Carstens acknowledgedit was
Carstens who dissolved the Parliament following Helmut Kohls false no-confidence
votemost German constitutional scholars questioned the constitutionality of the
dissolution order.15 Th is view had not changed by the time the Federal Constitu-
tional Court considered Chancellor Schrders no-confidence maneuver in 2005.
Among the German constitutional law luminaries surveyed by the Frankfurter Allge-
meine Zeitung in the weeks prior to Schrders no-confidence vote (including a num-
ber 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
 162 chapter four
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, pro-
viding the defi nitive understanding of the relevant constitutional law. The Courts
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 Courts ruling. Th is signals that the framers were conscious of the po-
litical 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 Republics highest organs occur infrequently; the Parliamentary Dissolution
cases are exceptional. Some commentators have seen separation of powers more
directly implicated in the Courts exercise of judicial review. The Courts invalida-
tion of major social policies, together with the instructions and warnings it fre-
quently 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 judi-
cial 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 Courts expansive role in his keynote address at the formal state celebration
on the Federal Constitutional Courts 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 Naturaliza-
tion 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-
 Separ ation of Powers 163
tial persons in Flicks 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 disclo-
sure of the missing records.
In investigating the activities of the federal government, the Court declared that a
parliamentary committees 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 parliamen-
tary 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 committees
request. Where the government is accountable to Parliament, said the Court, doc-
umentary disclosure is an integral part of parliamentary control. The Court empha-
sized that Parliaments right to documentary evidence of the kind sought here is an
essential aspect of the principle of separated powers. Nevertheless, the Court unani-
mously noted that, if circumstances require, the legitimate concerns of the executive
for confidentiality can be satisfied by the committees examination of the relevant
records in closed session.
The Court again endorsed the authority of the Parliament over the federal govern-
ment, in the context of parliamentary investigations, in the Minority Rights in Investi-
gative 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 committees
fi ndings. While the case ostensibly pitted a parliamentary minority against a parlia-
mentary majority, and thus avoided explicit separation of powers issues, the Courts
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 oppo-
sition in Parliament rather than the opposition of Parliament now serves as the most
effective check on the executive.
A more direct example of the Courts willingness to uphold Parliaments preroga-
tives over the federal government was at stake in the Surveillance of Members of
Parliament Case (2009).28 The Constitutional Courts Second Senate reiterated Par-
liaments 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
 164 chapter four
constitutional organs. The federal government must submit all tax and appropriation
bills simultaneously to the Bundesrat and the Bundestag (Article 110 (3)), where leg-
islative 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 compel-
ling necessity (Article 112). By the same token, any law that exceeds the budgetary
limit proposed by the executive requires the federal governments 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 in-
stitutions established by law.
In the Budget Control Case (1977)29 the Constitutional Court clarified the mean-
ing of some of these provisions. After affi rming the paramount and exclusive
authority of the legislature to establish budgetary policy, the Second Senate em-
phasized 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 others 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 pur-
pose of securing its consent to an expenditure in excess of that which has been au-
thorized. 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 al-
ternative after a judicious assessment of the situation.30 The duty to communicate
in these special situations also extends to the relationship between the federal fi-
nance minister and the federal government. According to the Court, the govern-
ment 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 de-
cisions 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 sum-
marize 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
 Separ ation of Powers 165
sovereign legislature; law is a closed system of logically arranged and internally co-
herent 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 legislatures
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 devel-
opment of the law and the judicial roleand the separation to be maintained be-
tween those powers. The Princess Soraya Case provided the Court with an opportu-
nity 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 inter-
view with Princess Soraya in which intimate details of her private life were re-
vealed. The German Civil Code (Brgerliches 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 pro-
vided 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 ones personality. The affi r-
mation 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 con-
stitution. The Constitutional Court disagreed.]

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
 166 chapter four
implies the rejection of a narrow reliance upon formally enacted laws. The formula-
tion 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 ag-
gregate of the written laws. Under certain circumstances justice can exist beyond the
positive norms enacted by the statejustice, which has its source in the constitu-
tional 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 exista condition that
may be desirable in the interest of legal certainty but is unattainable in practice. The
judges 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 voli-
tional 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 writ-
ten law fails, the judges 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 judges 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 fed-
eral courts sitting en banc [i.e., when all the senates of the federal high court in ques-
tion 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 main-
tained. 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 signifi-
cance. First, the judges 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 judges decision in an individual case. The interpreta-
tion 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
 Separ ation of Powers 167
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 writ-
ten and a change in societys substantive notions of justice. If the judge is not to be der-
elict 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 argu-
ments. 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
Germanyand for the sole reason that the act had only caused nonphysical
damages. Opponents characterized the rule as a legislative failure because it lim-
ited the recovery of money damages for injury to intangible interests to a few enu-
merated special casescases, moreover, selected with a certain lack of underlying
concept. Criticism became even sharper after the courts, under the influence of
the constitutions 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 vio-
lation 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 de-
manded 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 alterna-
tive, they found support from the writings of influential legal scholars. For this rea-
son 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
 168 chapter four
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 Courts 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 con-
stitutionally mandated under the circumstances. It is true that the federal govern-
ment twice has tried to bring about a legislative solution to the problem of protecting
an individuals 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 ques-
tion 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 uncon-
stitutional. . . . The court has left the enumerative principle expressed in 253 intact,
and has merely added one situation to the legislatures own enumeration of situa-
tions 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 exhib-
ited 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 rules pur-
pose is to guarantee effective protection of the individuals 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, in-
cluding the Federal Court of Justice, had exceeded the narrowly construed judicial
 Separ ation of Powers 169
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 courts
alleged overreaching led to the violation rather than the actualization of the core con-
stitutional 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 vasec-
tomy procedure that led to an unplanned pregnancy. The second case involved
the birth of a physically and mentally disabled child, the couples 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 in-
herited 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 com-
plaints against the awards in the Federal Constitutional Court. First, the defen-
dants 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 defen-
dants 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 62 decision, found neither a violation of separation of powers nor
basic rights in the decisions of the ordinary courts.]

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 Con-
stitutional 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
 170 chapter four
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 develop-
ing the law. In view of the increased pace of change in social conditions and the
legislators limited scope for reaction, and of the open wording of numerous stat-
utes, 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 statutes meaning and purpose as deter-
mined 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 condi-
tions 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 legisla-
tures 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 necessi-
tate new legal answers is likewise the responsibility of the ordinary courts. In princi-
ple, 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 Courts 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 lia-
bility for child maintenance and in respect of compensation for pain and suffering
connected with a pregnancy and birth that arose against the womans will.
With regard to contractual liability, the challenged decisions are based both on
the conventional understanding of pecuniary damage, according to which, in prin-
ciple, 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 off-
setting method. The Federal Court of Justice measures contractual liability against
the purpose of the contractprevention of procreation and birth of a matrimonial
child, including for economic reasonsand 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
 Separ ation of Powers 171
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
practitioners liability, which has developed over many years, that, in cases of the
present type, the civil law has sought appropriate solutions to reproductive medi-
cines 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 inso-
far 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 inter-
ference with physical integrity and, therefore, as a personal injury, it acts within the
framework of conventional principles of civil law.

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 ensur-
ing 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 judiciarys 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 constitutions 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, lim-
iting 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 Courts
majority concluded that awarding damages for unwanted children did not rise to this
standard because the Federal Court of Justices jurisprudence focused on the costs of
 172 chapter four
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 53 on whether its characterization of the human dignity of
the unwanted children contradicted the Second Senates abortion jurisprudence.
Had the majority concluded that the First Senates reasoning departed from that of
the Second Senate, then the matter would have to be presented to the Courts plenum
(both senates sitting together as a panel of sixteen justices). Th is part of the First
Senates judgment, and the Second Senates objection to the First Senates conclusion
that there was no need to engage the plenum (the Second Senates 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 tread-
ing on the legislatures near-exclusive competence over lawmaking. Having estab-
lished that the Basic Laws scheme of separation of powers permitted the judiciary to
participate in the progressive development of the law, the Court also needed to deter-
mine whether the legislature is obliged to bring allegedly flawed legislation into har-
mony 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 Dsseldorf-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 adminis-
trative remedies. The Court also rejected the complaints against the statute be-
cause the complainants had failed to fi le their complaints within one year of the
statutes enactment, as required by the Federal Constitutional Court Act. Nev-
ertheless, 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 legisla-
ture failed to adequately consider the requirements of Article 2 (2) of the Basic
Law, which guarantees the rights to life and the inviolability of ones person. On
this substantive question, however, the Court did not agree with the
complainants.]

Judgment of the First Senate. . . .
B. II. . . . Until now, we have admitted complaints of this type (i.e., complaints against
the legislatures failure to consider constitutional requirements) only exceptionally
 Separ ation of Powers 173
and only when the complainant could invoke an explicit commitment in the Basic
Law that essentially defi nes the content and extent of the legislatures duty. Th is re-
quirement is not fulfi lled here. . . . After the fi ling date for challenging the implemen-
tation of specific legislation has expired, a constitutional complaint arising out of an
omission of the legislature may be considered only under the special aspect elabo-
rated 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 in-
tegrity protected by Article 2 (2). Our accepted jurisprudence does not merely pro-
tect the individual rights of citizens against governmental intrusion. Rather, govern-
mental 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 consti-
tutional when originally enacted. In the Kalkar I Case the Court declared: If the legis-
lature 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 cir-
cumstances. The duty to remedy this defect may be considered primarily in areas relat-
ing 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 techni-
cal state of the art makes unavoidable. . . . In a legal order oriented toward the indi-
vidual, 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 constitu-
tional 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 re-
sponsible for the form and manner in which they fulfi ll the governments duty under
 174 chapter four
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 decid-
ing how the state is to implement its affi rmative duty to act and protect the constitu-
tions objective values through active legislative measures is a highly complex issue.
The states duty to act is acknowledged here in order to ensure the citizens enjoy-
ment 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 suit-
ability 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 parlia-
mentary 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 leg-
islature 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 un-
constitutional 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 reason-
able 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.

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 secu-
rity of the Federation or of a Land. The amendment (Article 10 (2)) further stipu-
lated 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 amendments validity was questioned.33 The Court an-
swered these criticisms as follows:
Nor does substitution of recourse to the law by some other judicial control as pro-
vided 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 legisla-
tive 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. Legis-
lative authority may be delegated, but the principle of legality of administration
(Gesetzmigkeit der Verwaltung) puts sharp limits on such delegations. Article
80(1), the Basic Laws 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 offi-
cials to carry out the will of the lawmaker.35 The Basic Law thus imposes a high stan-
dard 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 eco-
nomic 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 ad-
ministrative orders, these citizens also raised a facial challenge to the constitu-
tionality 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 author-
ity according to content, subject matter, purpose, and scope. Confronted with an
issue of constitutional magnitude, the courts involved set aside judicial proceed-
ings and submitted the question to the Constitutional Court pursuant to its con-
crete judicial review jurisdiction. In holding 2 of the Price Act constitutional,
the Court reaffirmed the constitutional principles embodied in Article 80.]

 176 chapter four
Judgment of the Second Senate. . . .
C. VI. 2. The basic tenets of the constitutional state principle require that an empow-
ering statute adequately limit and defi ne executive authorization to issue burden-
some administrative orders according to content, subject matter, purpose, and
scope . . . so that official action will be comprehensible and to a certain extent pre-
dictable 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 regu-
late the agencys 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 deter-
mine in detail the limits of the individuals 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 im-
plement the law and act within legislative guidelines but will substitute its own deci-
sions 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 encroach-
ments upon the legal sphere of the individual, as guaranteed today by Article 19 (4) of
the Basic Law. The judiciarys mandate to ensure a citizens legal protection against
encroachment on his or her rights by the state can be carried out only if the courts
can review the norms implementation by the executive agency. For this reason as
well the statute must adequately defi ne the authorization for encroachment.

Limits of Administrative Lawmaking. Persons harmed by any governmental au-
thority 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 an-
other 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 individuals or legal
entitys 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
 Separ ation of Powers 177
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 exam-
ple, in the Mlheim-Krlich Case (1979) the Court found the peaceful use of nuclear
energy constitutional in the face of an objection that nuclear power threatens consti-
tutional 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 RhineWestphalia re-
ferred the Atomic Energy Act to the Court for a decision on the validity of its provi-
sions 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 con-
structs 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 reactors li-
cense revoked because the plant failed to follow certain administrative proce-
dures under 7 (2). A local administrative court denied his claim and rejected
the argument that these procedural omissionsresulting in the permit to
build the plantcompromised 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 RhineWestphalia Adminis-
trative 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 Con-
stitutional Court pursuant to its concrete judicial review jurisdiction. The
Constitutional Court found no constitutional infi rmity.]

Judgment of the Second Senate. . . .
B. II. Section 7 (1) and (2) of the Atomic Energy Act are compatible with the
BasicLaw.
 178 chapter four
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 Parlia-
ments authority. The Basic Law relegates far-reaching decisions, particularly those
of a political nature, to other supreme constitutional organs. Examples include the
chancellors power to determine general policy guidelines (Article 65 (1)) and the
presidents authority to dissolve the Bundestag (Article 68) and declare a state of leg-
islative 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 demo-
cratic legitimacy merely because parliamentary delegates are the only officials elected
by direct popu lar vote. Legislative, executive, and judicial organs derive their institu-
tional 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--vis other branches of govern-
ment. We hold this to be a principle of interpretation transcending all concrete allo-
cations 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 va-
lidity, 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 demo-
cratic component. Today our established jurisprudence makes clear that the legisla-
ture is obligated . . . to make all crucial decisions in fundamental normative areas,
especially in those cases where basic rights become subject to governmental regula-
tion. . . . 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 re-
quirement of a specific enactment mandates and has not left this for the administra-
tion to determine. The constitutional requirement of a specific enactment (Gesetz-
esvorbehalt) means that only the legislature may enact statutory restraints upon
fundamental rights contained in the constitution where the language of the constitu-
tion 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
 Separ ation of Powers 179
sense that a specific enactment is constitutionally required. Th is is so because of
[the decisions] 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 legisla-
ture 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 lawthe Atomic Energy Act. This decision includes fast-
breeder 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 re-
sponsibility 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 consequencesfor 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 reactors
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 pur-
pose 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
 180 chapter four
that of the political branches when assessing the situation because legal criteria for
such decisions do not exist.
Where reasonable doubts are possiblewhether or not the dangers feared by the
court that earlier ruled on the case will materializeall organs of the state, and
thus the legislature as well, have the constitutional duty to make every effort to rec-
ognize possible dangers in time and to counter them by constitutional means. If, in
the future, some probability of these dangers existsin the judgment of the . . . re-
sponsible political organsthe 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 permis-
sible. 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 ticu-
lar 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 le-
gally 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 andshould litigation arisethe 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 ma-
terials may be brought into the stream of commerce. Th is criterion has the disadvan-
tage 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 ex-
isting scientific knowledge, which requires the legislature to make even stronger ef-
forts to keep regulations abreast of scientific and technological developments.
It is within the legislatures discretion to use either undefi ned legal terms or pre-
cise 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
 Separ ation of Powers 181
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 cur-
rently 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
beconsidered 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 instal-
lation, it permits licensing even if the probability of future damage cannot be
precluded with absolute certainty. The law leaves it to the executive to deter-
mine . . . 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--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 instal-
lation, 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 prin-
ciple 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 multi-
tude of circumstances, many of which are constantly evolving. . . . In the interest of
flexible protection of life and property the executive must assess and constantly ad-
just safety measuresa 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.

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] im-
poses 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.
 182 chapter four
A 1971 amendment of the Basic Law expanded the federations concurrent legis-
lative authority to include the protection of animals (Article 74 (20)).40 Pursuant
to that authority the Bundestag enacted the Animal Protection Act (Tierschutzge-
setz) with the purpose of regulating industrial animal husbandry through statutes
or regulations. A 1986 amendment to the Animal Protection Act elevated the legis-
lative schemes 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, agri-
culture, 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 mak-
ers. 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 Conventions 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 stan-
dards 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 regu-
lations legal basis. But, in the long process leading to the promulgation of the regu-
lation, 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 RhineWestphalia alleged that the Regulation for Keeping
Chickens was incompatible with the Basic Law chiefly because it had run afoul
of the constitutions terms for the delegation of legislative competence. The
 Separ ation of Powers 183
Second Senate agreed and focused, inter alia, on the citation requirement
Zitievgebot of Article 80 (1) [3].]

Judgment of the Second Senate. . . .
D. The Regulation on Keeping Chickensinsofar as it is still amenable to review
under constitutional law following the fi ndings in section C of this decisionis un-
constitutional 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 author-
ity, 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 re-
quirement 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, legisla-
tion 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 de-
signed 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 provi-
sions. 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 dele-
gated legislative power; rather, the legislative authority invoked must result specifi-
cally 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 au-
thority 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.
 184 chapter four
3. The citation requirement, above all, requires the individual provision of the stat-
ute, 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 Recommen-
dation 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 else-
where may also serve to implement legal acts of the European Community.

 Separ ation of Powers 185
Dynamic Interpretation and Legislative Facts. The Kalkar I Case, discussed ear-
lier, 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 Courts 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 sug-
gested, 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 (Progno-
sespielraum) 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 situ-
ation to ensure that the regulation does not threaten vested rights under the Basic
Law.
The Courts approach in Kalkar I is one way of reconciling tensions between judi-
cial review and majority rule. While recognizing the political character of legislative
fact fi nding and the primacy of the legislatures competence in given subject areas,
Kalkar I holds out the strong possibility of judicial intervention if, in the Courts in-
dependent judgment, newly accumulated facts should seriously challenge the origi-
nal prognosis. The degree of judicial scrutiny in such cases depends on the particu-
larity 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 ac-
curately predict the result of its action. Still, in this situation, in which regulation
threatens constitutional interests, the constitutional state principle requires con-
tinuing parliamentary vigilance.
The seeds of the prognosis doctrine took root in some early equal protection
cases. For example, in the Widowers 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 familys support, a limitation that did not
apply to a widow. Years later, however, married women constituted a significant por-
tion of the labor force, just as they had obtained greater equality under law within
the marital relationship. By 1975, when the widowers provision was once again chal-
lenged, 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 Mlheim-Krlich
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 federal-
ism dispute. Yet the principles of federalism and separation of powers are intertwined
in German constitutional law,47 as Kalkar I and Mlheim-Krlich demonstrate. These
cases chiefly address the separation of powers concerns posed by the federations
 186 chapter four
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 plants construction
and activation.48 Which governmental institutions are best situated to strike the
balance between the required expertise, flexibility, and political accountability in is-
suing 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 specify-
ing 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 sepa-
ration 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 regulations 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.
 Separ ation of Powers 187
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 autho-
rize 42 (1) of the Judicial Training Regulation. Having lost on these claims
in the administrative courts, the complainant brought a constitutional com-
plaint 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 con-
form to fundamental federal constitutional principles and values, including
separation of powers. The Constitutional Court found no constitutional
violation.]

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 constitu-
tional 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 possi-
bilities; 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 con-
stitutional principle.
a. The separation of powers is a fundamental constitutional principle for the orga-
nization and function of the state. The Basic Law provides for a distribution of politi-
cal 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, how-
ever, 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 con-
trol, 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 constitu-
tion. Nor may one branch deprive another of the authority needed to fulfi ll its consti-
tutional tasks. The core functions of the different governmental branches cannot be
altered. Th is precludes one of the powers from relinquishing tasks whichaccording
to the constitutionare typically within its purview.
 188 chapter four
The following considerations apply to the relationship between the legislature and
the executive. In a free democratic and constitutional system, Parliament has the con-
stitutional task of enacting laws. Only Parliament possesses the democratic legiti-
macy to make fundamental political decisions. To be sure, the Basic Law approvesas
illustrated by Article 80of 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 deter-
mining 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 regula-
tion. 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 leg-
islative 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 Courts authority to decide this case, which falls within the
procedural provisions of Article 100 (1). But it is within this Courts 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 princi-
ple 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 con-
tent. 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 empha-
sizes 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 Novem-
ber 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 en-
tity 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
 Separ ation of Powers 189
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 legislatures concept for this statute. Charging fees for
special administrative ser vices has long been a part of government activity. The princi-
ples 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--vis the regulating executive. The fee stated
in the regulation is clearly within the general limitations discussed above.

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 provi-
sions on foreign and military affairs than does the U.S. Constitution. Two funda-
mental points must be noted about the Basic Laws allocation of power in these
fields. First, Germanys 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 per-
mits the Lnder, with the federal governments consent, to conclude treaties with
foreign states in policy areas over which the Lnder have exclusive jurisdiction. As
the Court noted in the Concordat Case (1957; no. 3.8), the federal governments treaty-
making 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 af-
fairs. 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 Constitu-
tional 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 Courts deep involvement in monitor-
ing 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
 190 chapter four
these roles are largely ceremonial. Effective power resides in the hands of the chan-
cellor. According to Article 63 of the Basic Law, he or she determines general policy
guidelines, although in Germanys 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 im-
portance to the cabinet for debate and decision, but any decision taken in this field
falls within the scope of the chancellors 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. Germanys top executive officialsthe chancellor and cabinet
ministersusually 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 exten-
sive 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 matterdomestic or foreignat 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 worlds 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 legisla-
tion shall require the consent or participation, in the form of a federal law, of the bod-
ies 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 parliamen-
tary 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 im-
portance is the question of the judiciarys supervisory competence in these matters.
The Petersberg Case (1952) and the Commercial Treaty Case were the first to impugn
the executives 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
 Separ ation of Powers 191
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 peti-
tioned the Constitutional Court, claiming that the agreement was a treaty within the
meaning of Article 59 (2) and thus invalid without Parliaments 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 inde-
pendent organ of governance on German territory. Moreover, declared the Court,
the Basic Law is the constitution of a sovereign state and points toward Germanys
equal standing in the community of nations. Unlike a treaty as envisioned by Arti-
cle 59 (2), the Court reasoned, the Petersberg Agreement was the product of negotia-
tions between unequal parties because Germany was clearly in a position subordi-
nate to the occupying owers.51
As the text of Article 59 (2) makes clear, Parliament plays a crucial role in the treaty-
making process, but that role is confi ned to two kinds of treaties: those that regulate
Germanys 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 regu-
lates the nations 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 con-
ditions for the issuance of import and export licenses. The spd, led by Kurt
Schumacher, objected to the governments failure to seek the consent of the
Bundestag. The main constitutional issue before the Court was whether a com-
mercial treaty, altering the basic trade and fi nancial relations between the Fed-
eral Republic and another state, is a political treaty within the meaning of
Article 59 (2). The Court concluded that it was not.]

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
 192 chapter four
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 exis-
tence 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 di-
rected at asserting, securing, or expanding one states position of strength vis--vis
other states. They include treaties relating to alliances and guarantees; agreements
on political cooperation; nonaggression pacts; treaties on peace, neutrality, disarma-
ment, and arbitration; and similar international agreements.
The history of Article 59 (2) permits an interpretation that does justice to con-
stantly 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 di-
rected 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 signifi-
cance for the Federal Republicfor example, it may have an important bearing on
the internal political, economic, or social circumstances of the countrythat 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 com-
mercial treaties as political treaties. Th is theory, however, does not in its generality cor-
respond 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 conclu-
sion of a commercial treaty may possibly have more influence on a states 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 treatys provisions, fi nd-
ing that they were short-term measures for liberalizing trade and were not de-
signed to fi x West Germanys political position relative to other states. The
 Separ ation of Powers 193
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 particu-
larly 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. For-
eign 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 ex-
pressly constituted competences of government. The Bundestag may not assume
these functions unless expressly permitted to do so. The legislatures 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 in-
stances in which Parliament participates in the treaty-making process, Article 59
(2) has not given the Bundestag a right to intervene in the governments zone of re-
sponsibility. Its role remains limited to the general constitutional powers of supervi-
sion. Rather than governing and administering in this field, the Bundestag controls
the government. Should it disapprove of the latters policies, it is empowered to ex-
press 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 Laws list of enumerated powers conferred on the federation is not control-
ling. 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 neces-
sary 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 neces-
sary 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 au-
thority precluded any internal legislation on the trade and foreign exchange pro-
visions of the treaty. In the conclusion of its opinion the Court underscored the
federal governments primacy in the field of foreign relations.]

 194 chapter four
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 Schrder govern-
ments assent to natos new Strategic Concept committed Germany to such a radi-
cally 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 Govern-
ment at the April 1999 celebration of the alliances fi ft ieth anniversary, the pds
parliamentarians were particularly concerned with the new Strategic Concepts
abandonment of natos regional defense orientation and its embrace of a proac-
tive, out-of-area role in crisis response situations for nato. Their concerns were
underscored by the fact that natos bombing campaign against Serbia and Monte-
negro 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, natos use of force had been un-
dertaken 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
Germanys 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 Senates character-
ization of the new Strategic Concept as a consensus paper and a further devel-
opment and concretization of the nato Treaty, as opposed to an amendment of
the existing nato Treaty, which would have required parliamentary consent. Ar-
ticle 59 (2) [1] of the Basic Law, the Court explained, is not accessible to an ex-
pansive interpretation. Thus, the Court upheld the Schrder governments en-
dorsement 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 Sep-
tember 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 Fed-
eral 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 integra-
tion 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 perform-
ing its task in a directly responsible manner. If only for reasons of the adequate dis-
tribution of functions, the role of the Parliament (as legislative body) and of the ju-
diciary in this field are restricted. Certainly, the authority concerning foreign affairs
that is entrusted to the federal government in this respect is not beyond parliamen-
tary 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 governments capability
of acting in the field of foreign and security policy in an unjustified manner; more-
over, 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 in-
termediate 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
obligationshere the nato Treatyrequires 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 participa-
tion 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 com-
pel the federal government to refrain from, embark upon, or break off treaty negotia-
tions 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 con-
sent 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 for-
eign 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 regu-
lates the political relationships of the Federal Republic of Germany or affects ob-
jects 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 balanc-
ing of state power that the Basic Law wishes to see guaranteed must not be under-
mined 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 executives responsibility. The democracy constituted by the Basic Law is a de-
mocracy under the constitutional state principle, and this means, in relation to the mu-
tual 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 Weap-
ons Deployment demonstrate, all questions arising under the Basic Laweven highly
politicized matters of foreign affairsare amenable to judicial resolution if properly
initiated under one of the various procedures authorized for the adjudication of con-
stitutional issues. The Federal Constitutional Court cannot avoid a decision by tak-
ing 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 federations political judgment so
long as that judgment remains within the boundaries of legitimate discretion. Occa-
sionally, 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 situationwhere judicial activism
and restraint combined in an interesting mixinvolved 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 cap-
stone of Chancellor Willy Brandts eastern policy (Ostpolitik). Under the treaty,
West Germany and East Germany agreed to respect each others right to self-
determination, to refrain from the threat or use of force, to improve trade rela-
tions, 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 Laws precept of reunificationthe constitutional commitment
 Separ ation of Powers 197
to pursuing national unity. In response, the Court sustained the constitutionality of
the treaty, declaring that flexibility and discretion were essential in meeting constitu-
tional 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 na-
ture 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 Courts 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 or-
gans, 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 execu-
tive discretion.
The Rudolf Hess Case (1980) is an equally prominent example of this mix of judi-
cial activism and restraint.63 Hesss son fi led a constitutional complaint in 1980 charg-
ing 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 in-
carcerated, alone, since 1967. (Hess had been sentenced to life imprisonment in 1945
by the Nremberg War Crimes Tribunal.) The complaint charged that the federal
governments reluctance to undertake negotiations with the Allied governments for
the purpose of liberating Hess from his isolated imprisonment violated several provi-
sions 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 gov-
erned solely by the will of the federation, the Court continued, but rather are de-
pendent on many circumstances over which it has little control. In order to facilitate
the realization of the federations 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 Kidnap-
ping 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
 198 chapter four
resort to other actions in dealing with terrorists is a matter wholly within the discre-
tion of the politically responsible organs of government.66 In mapping the boundar-
ies of the deference it would show to the federations political organs, the Arms De-
ployment 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
natos member states. On 22 November 1983 the Bundestag passed a resolution
supporting the federal governments 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 sepa-
ration of powers argument. Article 2 (2) provides that the right to life and per-
sonal inviolability may be encroached upon only pursuant to a law. The Parlia-
ments failure to support deployment in the form of a statute, they argued, violated
this provision. The Court ruled that the complaints were inadmissible.]

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 terri-
tory 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 reac-
tions 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, there-
fore, endangers the Federal Republics 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 opera-
tions 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 states duty to pro-
tect life pursuant to Article 2 (2) [1] of the Basic Law. The constitutions decision to
provide for national defense does not authorize the impending destruction of the
Federal Republics entire populationor significant portions of it. It is true that the
competent government authorities have the basic responsibility to decide how to ful-
fi 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 deploy-
ment of new weapons is also an inappropriate defensive measure because it neither
 Separ ation of Powers 199
averts a Soviet attack with ss-20 missiles nor permits a fi rst strike aimed at disarma-
ment. 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 deploy-
ing 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 alter-
native means of defense (e.g., sea-based missiles); 4) American control of the
weapons violates German sovereignty; and 5) deployment violates the Federal
Republics 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 pro-
tected 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 Ger-
man 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 interven-
tion 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 scien-
tific 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 de-
gree 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
 200 chapter four
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) com-
plainants 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 interna-
tional law, the constitutional authority of these organs for foreign and defense pol-
icy 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 in-
clude 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--vis foreign states. In the light of the fact
that the dangerous situation the complainants presume to exist depends signifi-
cantly 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 cre-
ation 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 manage-
able standards to judge whether one may correctly say, based on empirical knowl-
edge, 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.

Military Affairs Power. The framers of the Basic Law insisted on a peace constitu-
tion. 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 Laws commitment to peace can
be found in Article 1 (2), which provides that the German people . . . acknowledge
 Separ ation of Powers 201
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 inter-
national 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 in-
terpreted as a hint that German rearmament was inevitable.72 But the Constitu-
tional Court did not get the chance to choose between the interpretive possibilities
of the original Basic Law. Chancellor Konrad Adenauers 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 Germanys
security profi le.73
The peace-oriented provisions of the Basic Law soon were overshadowed by con-
stitutional amendments pushed through by Adenauers supermajority government
in 1954. These amendments, particularly implicating Article 79 (1) of the Basic Law,
paved the way to West Germanys nato membership and remilitarization.74 Yet the
constitutional reform that facilitated Germanys rearmament did just as much to en-
trench Germanys postwar reticence about the use of force. Article 87a of the Basic
Law, for example, provided that the newly formed federal armed forces were empow-
ered to defend Germany and otherwise could be deployed only to the extent ex-
pressly permitted by this Basic Law.75 Thus, even as Germany rearmed and integrated
into the Western security framework, constitutional lawand the Constitutional
Court as the Basic Laws authoritative interpreterwould dictate and define the func-
tion 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
Laws 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
 202 chapter four
the product of several forces. First, it was an attempt to facilitate the greater geopo-
litical role Germany desired for itself, and would be expected to carry following re-
unification. 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 ob-
structionist pacifism they had long advocated while in opposition. In short, through-
out the 1990s Germany was seeking a more normal role for itself in the postCold
War world. As Georg Nolte explained: [T]he deeper issue was the self-conception of
a newly reunified Germanythat 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 po-
litical 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 Germanys 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 Kohls government
decided to deploy military forces in connection with the international communitys
response to the spiraling violence and political disintegration in Yugoslavia. The
confl ict developed into one of the most important chapters in postwar German con-
stitutional 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 be-
tween 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 governments decision
to order the participation of German military units in the following military opera-
tions: natos 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 consider-
ation 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 de-
fenders, 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 53
vote the Second Senate denied the injunction pending a full review of the constitu-
tional issues presented.82 A few weeks later, the senate unanimously rejected a sepa-
rate application, fi led by the spd, seeking a preliminary injunction against the opera-
tion in Somalia.83 These two cases, along with the action against Germanys
participation in the un embargo against Serbia and Montenegro, were consolidated
for a decision on the merits in awacs I.
In upholding the executives actions in all three instances, the Court gave sur-
prisingly 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 Bundestags approval of these treaties under Arti-
cle 59 (2) was accompanied by the implied constitutional authority to fulfi ll the
terms of these agreements, including, if necessary, the deployment of German mili-
tary forces.84
In a complex and divided opinion exceeding one hundred pages, the Second Sen-
ate handed down several rulings. First, the senate sustained the validity of the un
 204 chapter four
Somalia action, although three justices dissented from the majoritys view that the
Bundestags 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 44 over whether these treaties covered military actions beyond
the purview of nato and the weu. An even split on the Court allowed the chal-
lenged governmental action to stand. The dissenting justices (Limbach, Bcken-
frde, 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 ap-
proval under Article 59 (2) of the Basic Law; anything less than this, said the dissent-
ers, would violate the rights of Parliament. The prevailing justices (Kirchhof, Grass-
hof, 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 govern-
ment by articulating constitutional principles that greatly limit the executives au-
thority to commit Germany to the use of force. Decades after the Adenauer govern-
ment 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 Laws assignment of the militarys budget to the
Parliament.91 The Court further explained that the rule existed as an echo of Parlia-
ments constitutional prerogative over treaty making in the fi rst instance, a preroga-
tive 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 Laws scheme of sepa-
ration of powers.93
With its holding in awacs I the Court vindicated Parliaments 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
 Separ ation of Powers 205
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 executives authority over military affairs.95 As noted earlier, the
Court turned aside constitutional challenges to the federal governments accession
to natos new, out-of-territory, and nondefensive strategic concept.96 The military
implications for Germanys 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 con-
cerned 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 implica-
tions, the Court was untroubled by the fact that the federal government had commit-
ted Germany to natos new strategic concept without consulting the Parliament.
The Courts 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
Germanys fi rst active role in a peacemaking operation [during ongoing hostili-
ties] since the Second World War.97 The un Security Council did not approve
natos 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 natos member states asserted humanitarian intervention
as an emerging exception to the otherwise exclusive jus ad bellum of the un Char-
ter. 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 funda-
mental Green commitment to antiwar principles, deft ly heaved it overboard, and
gave his official endorsement to Germanys participation in the nato effort
[against Serbia].99 Only the far-left pds remained to assert the Parliaments inter-
ests in a constitutional, separation of powers challenge to Germanys Kosovo
deployment.

4.11 Kosovo Case (1999)

100 BVerfGE 266
[The Bundestag embraced the humanitarian justification for the Kosovo de-
ployment and authorized the participation of German armed forces in the cam-
paign to an escalating degree in four successive resolutions. Representatives of
the pds, the same party that challenged the federal governments adoption of the
 206 chapter four
1999 nato Strategic Concept, sought a temporary injunction against Germanys
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
Germanys obligations under a system of mutual collective security. In the ab-
sence 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 appli-
cation with a brief but meaningful reference to the constitutional standards that
would be implicated if the case were to be considered on its merits.]

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 se-
curity. Th is also includes the power to take part with its own armed forces in opera-
tions that are provided for within the framework of such systems and take place ac-
cording 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 pre-
vention 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 with-
out authorization from the United Nations Security Council. The federal govern-
ment had expressly pointed out that it nevertheless considered a nato military de-
ployment 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 mod-
ified 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 im-
plementation 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 Schrder under-
took a comprehensive overhaul of Germanys defense structure with the stated pur-
 Separ ation of Powers 207
poses of improving the armed forces ability to secure and defend German territory
and contribute to operations around the world. Germany tested its new prepared-
ness by contributing significantly to natos ceasefi re monitoring mission in Mace-
donia in the late summer of 2001.
Chancellor Schrder 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 Schrder informed the Bundestag of his desire
to see Germanys defense and security policy change to permit it to more fully con-
tribute to the newly conceived global war on terror in a manner and degree equal to
Germanys postCold War role as an important European and transatlantic part-
ner, but also as a strong democracy and strong economy in the heart of Europe.101
Th is new role, Schrder 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 En-
during Freedom, led by the United States and endorsed by the un and nato, which
aimed at ousting Afghanistans Taliban government as a consequence of its long-
standing support of Islamic terrorists, particularly Al-Qaeda. In mid-November
2001, Schrder coupled his request for a Bundestag resolution authorizing the de-
ployment 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. Schrder won a very slender majority in the Bundestag on both matters
and Germany contributed a small number of special operations soldiers during hos-
tilities in Afghanistan, eventually increasing the size of its deployment as part of na-
tos International Security Assistance Force, which has provided security during the
rebuilding and democratization efforts in postTaliban Afghanistan. The Constitu-
tional Court approved the Parliaments general and open-ended authorization of
force deployments in support of natos ongoing Afghanistan operation.103 That de-
ployment 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 Germanys 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 Schrder categorically ob-
jected to German participation in Americas imminent war. I say, we are ready for
solidarity, Schrder declared, but under my leadership this country is not avail-
able 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
 208 chapter four
playing around with war and military interventionI can only warn against this.
Th at is not to be undertaken with us.105 Some credited Schrders staunch opposi-
tion 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 Germanys 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 Germanys foreign aff airs. As Chancellor
Schrder put it: [T]his Germany, our Germany, is a self-confident country.106
In spite of his strident opposition to President George W. Bushs invasion of
Iraq, Schrder nonetheless planned to send German awacs planes to Turkey,
which requested nato support in anticipation of a fl ailing, aggressive gesture from
Saddam Husseins threatened regime. As part of the nato-approved response to
Turkeys appeal for assistance, the Schrder government authorized the deploy-
ment 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 partici-
pation in nato action. The fdp argued that Germanys 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, al-
though 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 fdps motion for a temporary injunction in 2003. In declin-
ing 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 Bundestags right of approval in
the deployment of the German armed forces and it consciously left open, for a deci-
sion 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 fdps challenge to
the 2003 deployment to Turkey.
 Separ ation of Powers 209

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 Parlia-
ments approval for the awacs deployment over Turkey in 2003. The govern-
ment 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 surveil-
lance. 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 ex-
tent of the Courts ruling in awacs I. In tone and substance, the Court strenu-
ously disagreed with the governments positions. In a decision upholding the
constitutional challenge, the Court further clarified the parameters of the sepa-
ration 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 ap-
proval 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 natos Opera-
tion 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 Bunde-
stag as the body representing the people. Th is is provided expressly for the determi-
nation 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 democ-
racy 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
 210 chapter four
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 governmentin the
case of imminent dangerprovisionally 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 ap-
proval 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 opera-
tions 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 re-
quirement 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 senates deci-
sions, 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, Germanys treaty-
based commitments (within the terms of Article 59 (2) of the Basic Law). Sec-
ond, the Court emphasized the holding that the federal government has the
authority to shape the development of policy within the framework of Germa-
nys 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 Parliaments assumption of responsibility in
the field of foreign security policy. When military force is exercised, the executives
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,
 Separ ation of Powers 211
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 com-
mences 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 executives 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 com-
petence, 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 parlia-
mentary approval must be interpreted by the Federal Constitutional Court in favor
of Parliament. In par ticu lar, when the requirement of parliamentary approval ap-
plies, it may not be made substantially dependent on the political and military evalu-
ations 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 as-
sessment 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 de-
ployment of armed forces under the Basic Law is their involvement in armed opera-
tions; 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 interpreta-
tion 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 Bun-
destag 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 ap-
proval 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
 212 chapter four
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, there-
fore, 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 sol-
diers 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 deploy-
ment 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 govern-
ment 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 deci-
sions 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 evi-
dence of imminent involvement in armed operations. . . .

 Separ ation of Powers 213
AWACS II and Judicial Review. In awacs II the Court fi rmly reiterated that Parlia-
ment 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, not-
ing that the language chosen in awacs I was deliberately broader than the federal
government might have liked. Thus, parliamentary approval is necessary for deploy-
ments 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 cir-
cumstances in which no combat was under way, as might be understood if the con-
trolling 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 Ger-
man 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 legislatures right to make the essential deci-
sion regarding the use of force. The case also acknowledged that, after a deploy-
ment decision is reached by the Parliament, the command and operational leader-
ship 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 ques-
tion 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 Parliaments right of ap-
proval in part by sounding a cautious tone as regards the political dynamics of an alli-
ance system. Perhaps as a subtle signal of unease over Americas 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 federations
popu lar branch.
Finally, the Court clearly signaled its intent to monitor and enforce Parliaments
priority on the question of military deployments. The question as to whether there
 214 chapter four
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 governments 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
governments 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, how-
ever, 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--vis the executive in deployment decisions. By contrast, U.S. presidents have as-
serted that the constitutions 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 ques-
tion 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
states capacity to act through the formal activities of its [major] organs. Thus, sepa-
ration of powers reveals the details of the political structure, confers specified re-
sponsibilities, and has a rationalizing effect. Similarly, the separation of powers
specifies and coordinates the more active elements of political leadership and deci-
sion 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 legisla-
tive, 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 powersrooted as it is in Lockean and Hobbesian concepts of society and
human naturethe three departments are independent and coordinate with one
another.
The Basic Laws 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 fric-
tion incident to the distribution of governmental power among [the] three depart-
ments found implicit by Justice Louis Brandeis in the American doctrine of separa-
tion 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 fun-
damental 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 (Bundes-
verfassungsgericht) and most commentators have tended to define German democ-
racy 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 Parlia-
ment, but the complicated electoral system established by law has received consider-
able scrutiny to ensure its conformity with a number of constitutional provisions. Po-
litical parties are given constitutional status in Germanys 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. Germanys history also led the framers of the Basic Law
to seek to protect their new democracy from the enemies of political liberalism by pro-
viding a number of constitutional mechanisms to ensure democratic longevity and
stability. As this summary of the most fundamental facets of German democracy re-
veals, consideration of German political representation and democracy engages a com-
plex 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 (24), 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 demo-
cratic state. Paragraph 2 of the same article reinforces this provision by declaring
that all state authority emanates from the people. The next sentence, however, em-
phasizes the representative character of the political system.4 The authority emanating
 Po liti cal R epr e sen ta tion and Democr acy 217
from the people shall be exercised by . . . means of elections and voting and by spe-
cific legislative, executive, and judicial organs.5 The Basic Law establishes the Parlia-
ment (Bundestag) as the chief representative organ charged with transforming the
political will of the sovereign people into the governments and legislatures. 6 As
Michael Brenner explained:
In a representative democracy, some special body must effectuate the principle of
peoples sovereignty. Th is special body, representing the peoples will in the Federal
Republic of Germany, is the German Bundestag with its parliamentary representa-
tion. 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 peoples sovereignty. . . .
The Bundestag, as the central and also the only directly democratically legiti-
mated representative body, ensures that state power is actually based on the peoples
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 resi-
dence in the spectacularly redesigned Reichstag building in Berlin. Th is had the ef-
fect of directly acknowledging Germanys troubled history with parliamentary de-
mocracy.8 Nonetheless, one of the Reichstag buildings 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, con-
trols Parliament as well as every other branch of government. The Basic Law, how-
ever, only addresses the functions and character of the Bundestag in general terms,
leaving many of the relevant details to this chambers discretion.9
As noted in Chapter 4, Germany shares with Britain and other parliamentary sys-
tems 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 par-
tisan 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 in-
terest 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 Rben argues that Article 44 of
the Basic Law is one of the most litigated institutional provisions of the constitution
 218 chapter five
because of the political significance and sensationalism of parliamentary investigations
of the government. The obvious interest of the parliamentary majority will . . . be,
Rben 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 re-
spect 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 committees mandate,12 by limiting
the executives privilege to withhold evidence from investigative committees or mem-
bers or Parliament,13 and by balancing an individuals right to privacy against the im-
portant constitutional interest in an investigative committees 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, di-
rectly linking the minoritys 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) Germanys longest-serving chancellor and the man
many Germans regarded as the father of reunification. A criminal investigation re-
vealed, and Kohl ultimately admitted, that he had accepted secret, undeclared dona-
tions totaling several million Deutsche Marks (dm) for his party between 1993 and
1998. Th is was a violation of Germanys 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 to-
ward 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 one-
fourth qualified minority rule of Article 44 (1) to convene a majority inquiry (En-
qute) committee to investigate the party fi nancing allegations against the former
Kohl government and the cdu. The committees 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 inves-
tigate allegations of spd corruption. Not surprisingly, the committees spd majority
refused to honor the requests for spd-related evidence, arguing that the minority
was seeking to disrupt, undermine, and delay the committees work.

5.1 Minority Rights in Investigative Committees Case (2002)

105 BVerfGE 197
[The cdu minority turned to the Federal Constitutional Court, alleging viola-
tions of Articles 22 (1), 38 (1), and 44 (1) of the Basic Law. The Court made the
 Po liti cal R epr e sen ta tion and Democr acy 219
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 applications ad-
missibility. 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 parlia-
mentarians) was especially empowered by Article 44 (1) of the Basic Law to
make use of the Bundestags investigative apparatus and that this authority was
accompanied by a right to seek the protection of this authority before the Fed-
eral 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 cduthe parliamentary minorityon the sub-
stance 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 justifica-
tion, it rejected motions by the applicants to hear evidence and did not implement
motions to hear evidence that had already been passed.
I. The committees 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 evi-
dence taken in the committee. The minority establishing the committee has a right
to have its motions to hear evidence considered by the committees majority; this
also applies to the minority that potentially could have called for the establishment
of the investigative committee. The minoritys motions to hear evidence must be
granted unless the right of motion is being exercised inappropriately or improperly.
The committee, that is, the committees majority, must give understandable reasons
for the rejection of a motion to hear evidence raised by the committees 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. Neverthe-
less, control over the proceedings lies in the hands of the committees 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
 220 chapter five
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 in-
vestigation 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 com-
mittee and it has made this a duty for the majority if one-quarter of the parliamentar-
ians 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 one-
quarter of its members. The tension between majority and qualified minority that the
constitution accepts at the time the committee is established continues in the inves-
tigative proceedings. Irrespective of what rights of participation already flow from
ones 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 en-
shrined 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 es-
tablish 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 (Enqute). 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
 Po liti cal R epr e sen ta tion and Democr acy 221
to an investigation of a matter of public concern, considered necessary by the major-
ity 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 in-
vestigative 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 differ-
ent reasons for opposing a politically unwelcome inquiry but later wishing to cooper-
ate 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 commit-
tee andafter the failure of such effortsto 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 committees
agenda of clarification; this also applies to the formal rejection of a motion to hear evi-
dence. 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 committees majority may re-
ject motions to hear evidence of the qualified minority if it comprehensibly demon-
strates 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 in-
vestigations 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 in-
vestigatory 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 auton-
omy, in par ticu lar in interpreting the investigations terms of reference, has been uti-
lized 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 mo-
tions to hear evidence or if an interpretation of the investigative mandate is not un-
derstandable 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 con-
trol over the order of presentation of evidence and over the suitability of dates fi xed
lies in the hands of the committees majority in each case. It must decide on the imple-
mentation of orders to hear evidence and ensure that the investigations terms of refer-
ence can be fulfi lled. Yet, the majoritys procedural control is restricted by the right of
the qualified minority to reasonable participation. If, in the view of the majority, not all
 222 chapter five
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 Consti-
tutional Court has been asked to vindicate the participatory rights of minority par-
ties, particularly parliamentary parties opposing the dominant coalition.17 In
Schleswig-Holstein Investigative Committee, unlike Minority Rights, the Federal Con-
stitutional Court served in its special capacity as the constitutional court for the state
(Land) Schleswig-Holstein18 and, thus, was charged with interpreting the parliamen-
tary 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 majoritys authority to manipulate an
investigative committee constituted by a parliamentary minority. The Courts opin-
ion 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 commit-
tee, the Federal Constitutional Court has considered a number of other issues in-
volving 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 Parliaments
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 nu-
clear missiles in Germany, the Federal Republics participation in military alliances,
the multiparty political consensus that had been achieved in many areas of domestic
policyincluding the agreement to push forward with the development of nuclear
energyand 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
 Po liti cal R epr e sen ta tion and Democr acy 223
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 secu-
rity. As a consequence, the Green Party was denied a seat on a special committee re-
sponsible 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 jurisdic-
tion 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 Bundestags 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 committees 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 Bundestags 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 per-
taining 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 over-
whelmingly compelling reasons for proceeding in this manner. In the follow-
ing excerpt, the Court underscored the parliamentary need for committee mem-
bers who personally enjoy the confidence of the majority.]
 224 chapter five
C. II. 3. a. The importance of secrecy in meetings concerning the budget of the in-
telligence ser vices requires a high measure of precaution. It is not the Constitutional
Courts 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 respon-
dents [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 repre-
sentative Khbacher, in hearings before this Court, noted that on the basis of the in-
formation 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 Bundestags 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 ap-
proaches 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 [co-
alition] parties and two from the opposition. The majority has not, therefore, abused
the right of the minority. . . .
[Justices Mahrenholz and Bckenfrde dissented. The following extract is
from Justice Bckenfrdes opinion.]
I am unable to agree with the Courts decision. The exclusion of the Green Party
from participation in the budgetary deliberations concerning the secret ser vice vio-
lates 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 rep-
resentative of all the people (Article 38 (1) [2]); jointly they make up the representa-
tion of the people and they are empowered by the people, in their capacity as an ac-
tive 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 Parliaments negotiations and decisions. Each has a
 Po liti cal R epr e sen ta tion and Democr acy 225
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. Repre-
sentatives 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 repre-
sentatives in negotiations conducted by the peoples representatives; this is the basis
of majority rule among the representatives of the people, ensuring that all legisla-
tive decisions will be truly representative in nature and reflect the totality of the
peoples will. It is precisely this general participation in the formation of the politi-
cal will of Parliamenta process emanating from general intellectual and political
discussion and argumentationthat legitimates the inherent right of a parliamen-
tary 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, partic-
ularly 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 estab-
lished by 4 (6) of the 1984 and 1985 budget laws are subject to this principle. Parlia-
ment may not surrender its right to deliberate by transferring certain aspects of bud-
getary planning to a small committee operating in secret. . . .
4. The principle of complete participation of allincluding individuals and par-
liamentary partiesis 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 Courts 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 deci-
sion. 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 partici-
pating in parliamentary deliberation merely on the basis of unsubstantiated
conjecture.
The situation here clearly illustrates the arbitrariness of the Bundestags action.
The Bundestag has never charged the representative or the parliamentary party re-
questing participation in its committee deliberations with failing to maintain se-
crecy in similar cases; nor did the Bundestag declare with certainty that the repre-
sentatives from the Green Party would not maintain secrecy in the deliberations at
hand. According to the oral arguments, neither the representative nor the parlia-
mentary party was specifically asked if they were ready to maintain secrecy con-
cerning the budgetary matters in question and the agreements already made in
 226 chapter five
connection with these matters. The majoritys 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 infor-
mation to which she had accessan utterance contradicted within the Green
Partyapparently 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 recog-
nition 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. Ulti-
mately, 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 Bckenfrde. These opin-
ions 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 Bckenfrde wrote
a separate opinion in the case saying he would have gone further to protect small par-
ties like the Green Party. In his view, legislation that bolsters the oligarchical and
careerist elements of the established parties erodes Parliaments 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 , prag-
matic 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 ris-
ing 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 Schrders Social Democrats. Most prominently, the Green Partys par-
liamentary leader Joschka Fischer gained widespread respect as vice chancellor
and foreign minister in the Schrder government. Four years later, the Green
Partys dramatic showing, with nearly 9 percent of the national vote, salvaged the
governments reelection hopes. The Green Partys transition to a mainstream
force in German politics was cemented by its historic victory in Baden-
Wrttembergs 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.
 Po liti cal R epr e sen ta tion and Democr acy 227
In Surveillance of Members of Parliament (2009), another case involving the
rights of the Green Party while in opposition in the Bundestag, the Court contin-
ued its tradition of protecting the interests of parliamentariansespecially those
aligned with minority partiesas a feature of the Basic Laws commitment to de-
mocracy. 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 partys
assimilation and success. After the demise of the historic spd/Green federal gov-
ernment, the Green Party assumed the role of parliamentary opposition to Chan-
cellor Angela Merkels 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 parlia-
mentarians presented the government with formal questions (referred to as kleinen
Anfragen) seeking information about the nature of the surveillance, the informa-
tion 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 revealand jeopardizethe practices, strategies, methods,
and current intelligence of Germanys security ser vices. The Green Party com-
plained 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 governments refusal to pro-
vide answers to the kleinen Anfragen. In Green Party Exclusion the Court con-
fi rmed that parliamentariansespecially those from minority Fraktionenhave
the right to demand and receive information from the government. The Court re-
iterated that principle in Surveillance of Members of Parliament while recognizing
that Parliaments 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 prac-
tices, strategies, methods, and gathered information of Germanys intelligence
community. 23

Independents and Independence in the Bundestag. In the Wppesahl Case (1989)

the Court was asked to rule on the rights of an independent representative in the Bun-
destag.24 The Second Senate recognized the constitutional significance of parties in
the Basic Laws parliamentary and democratic scheme and acknowledged some mea-
sure 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
 228 chapter five
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 Germanys democracy, commentators have explained the practical
consequence of these principles in the following terms: [a]s a matter of fact [parlia-
mentarians] mostly adhere to their partys line, but legally they are not obliged to do
so.26 Nonetheless, in Wppesahl the Court ruled that the effective fulfi llment of
these principles requires the parliamentary parties to grant independents access to
the Bundestags 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 im-
mensely 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 perma-
nent committees, including, inter alia, the Committees on Election Scrutiny (Ar-
ticle 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 consid-
eration of bills between the Bundestag and the Federal Council of States (Bundes-
rat; Article 77 (2)).28 The Bundestags Rules of Procedure govern the membership
and the conduct of these committees. Under Rule 12 the parliamentary parties ap-
point 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 Wppesahl, every member of
the Bundestag is entitled to serve on at least one committee, and if he or she is an
independent, the Bundestags president is authorized to make the committee as-
signment. 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 majoritys prerogative to manipu-
late the rules for calculating committee membership. The case highlighted the ten-
sion between the competing principles of democracy present in each of the preced-
ing 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 Bundestags minority parties and independent members, the following case
once again prioritized the principle of representation.
 Po liti cal R epr e sen ta tion and Democr acy 229

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 Schrders gov-
ernment to remain in office for a second term. Among the newly elected Bun-
destags 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 op-
position parties. In light of this result the Bundestag majority sought to imple-
ment a novel accounting scheme in order to ensure that the composition of
committees would reflect its thin majority in the Bundestags plenum. In the
Mediation Committee this corrective procedure would have added one seat to
the majoritys representation on the committee at the expense of one of the op-
positions seats. In an Organstreit proceeding the opposition objected to this
allocation of the Mediation Committees seats, asserting violations of the par-
liamentary minoritys constitutional rights (Articles 38 (2), 40 (1), 21 (1), 20 (2),
and 77 (2)). The Court gave only marginal priority to the principles of represen-
tation and majority rule on which the government relied in defending its pro-
posed 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 reit-
erated 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 equal-
ity 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 peo-
ple 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 mem-
bers 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 parliamen-
tary 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
 230 chapter five
requirement of equality. The Court then noted that departures from these fun-
damental principles are permitted only if there are special grounds. The consti-
tutional 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 provi-
sion, 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 Frak-
tionen requires, since only whole seats can be distributed, the use of counting pro-
cedures that can lead to discrepancies in the allocation result. The Federal Consti-
tutional 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 pro-
cedure reflects the political majority supporting the federal government in the
Bundestag. Before this case, it was not necessary to consider whether the constitu-
tion 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 commit-
tee and thereby avoid stalemates between the governing majority and the opposi-
tion 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 governments
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 be-
cause, 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 Medi-
ation 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.
 Po liti cal R epr e sen ta tion and Democr acy 231
[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 Com-
mittee. 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 par-
ties in the Parliament, and representatives of the Bundesrat (Federal Council
of States). The Court noted that the Mediation Committees independence
and significant role in the legislative process distinguished it from the Bun-
destag committees over which the parliamentary majority exercised greater
discretion.]
It follows from all the foregoing that the Members of the Bundestag on the Media-
tion 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 pro-
cedural decisions on which it would not have had an influence satisfying the require-
ment 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 restric-
tion. It must, in the event of confl ict, be reconciled with the principle of the forma-
tion of a stable parliamentary majority. The status of deputies and Fraktionen, which
conforms to the requirement of equality, permits differentiation where special rea-
sons 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; exceptionsunless provided for by the
constitution itselfmay 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
 232 chapter five
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 politi-
cal 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 Brning government onward, the Basic Law sought
to avoid such crippling discord between Parliament and government as far as pos-
sible. Evidence of that can be seen primarily in the limitation of the Bundestag to a
constructive vote of no confidence (Article 67 (1) of theBasic 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 manda-
tory 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 nego-
tiation 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 re-
gard, 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 Bun-
destag seats and from the rules on the voting procedure in the committee.
[In limiting the importance of the Bundestags majority in the Mediation Com-
mittee, the Court noted that the Bundesrats contribution to the composition
of the Mediation Committee also did not seek to replicate that bodys majority.
The emphasis of the Mediation Committees 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 Committees 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 chancellors Bundestag majority (see Article 121
of the Basic Law), the allocation of seats according to the proportional strengths of
 Po liti cal R epr e sen ta tion and Democr acy 233
the Fraktionen, required by 12 of the Rules of Procedure of the Bundestag, is pre-
served as far as possible.
[The Court concluded that the majoritys 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 majoritys proposal significantly departed from the Spiegelbildlichkeit prin-
ciple: The present allocation of seats . . . no longer reproduces the actual propor-
tions 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 Par-
liament 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 Parlia-
ment 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 Bundes-
tag Fraktions seats on the Mediation Committee and its share of the total votes
cast.
[Justices Osterloh and Gerhardt joined a dissenting opinion. Justice Lbbe-Wolff
wrote a separate dissenting opinion. The dissenters shared separation of powers
concerns over the propriety of the Courts 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 Bundestags autono-
mous discretion in matters of its internal rules and submitted the Bundestag to a
too far-reaching internal control via the Federal Constitutional Court.]

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 Informa-
tion Office and the publications divisions of several federal ministries distrib-
uted millions of leaflets, pamphlets, and brochures disclosing the records of
 234 chapter five
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 gov-
ernment. In addition, funds allocated to the publication departments of vari-
ous 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 car-
ried 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 valid-
ity of these expenditures in an Organstreit proceeding before the Federal
Constitutional Court. The following extract focuses on the Courts 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 un-
constitutional. 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.]

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 Repub-
lic 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 (12)). . . .
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 coer-
cion 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 legitimationthat is, the
election of parliamentary representativesmust be ensured. Th rough the act of vot-
ing 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
 Po liti cal R epr e sen ta tion and Democr acy 235
effect on the formation of the will and opinion of the votersconduct 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 ad-
ditional 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 op-
posing political parties with public funds. They are particularly forbidden from influ-
encing 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 po-
litical decisions be reached by majority rule (citing Articles 42 (2), 63 (24), 67 (1), 52
(3), and 54 (6)).
. . . Only if the majority emerges in the free and open process of forming the popu-
lar will and public opiniona process that requires constant renewal and in which
all citizens of voting age share equallydoes the decision of the majority . . . consti-
tute 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, particu-
larly 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 en-
trusted 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 poten-
tial 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 inequali-
ties of citizens and their political groups in the process of forming popu lar political
opinion and the peoples 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 de-
mocracy and the constitutional principle of equal opportunity for political parties. . . .
 236 chapter five
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. Fur-
thermore, 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 function-
aries or members of parliament. According to Justice Rottmann, the conse-
quence of these two attributes of the party state is that the federal govern-
ment functions as the executive committee of the ruling coalition of parties.
3) While the government has an obligation to the entire state, Rottmann ar-
gued, it actually seeks to implement its party platform. In so doing, the ma-
jority party or coalition uses its platform as one of several concepts of the
common good that the people have already approved through national elec-
tions. Thus, the will of the people authorizes the ruling coalition to imple-
ment and defend its platform against the contrary efforts of the minority
parties.
The second prong of the dissent focused on the federal governments 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 gov-
ernment remains neutral during a campaign is a novel idea. Rottmann viewed
the practice of using government resources to achieve reelection as an essen-
tial and characteristic part of political life as it has developed under the Basic
Law.]
i. . . . The Federal Constitutional Court cannot simply change past practice with-
out 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 con-
tradicts this. In truth, in the almost thirty-year history of the Federal Republic, po-
 Po liti cal R epr e sen ta tion and Democr acy 237
litically active persons have not gleaned these constitutional restrictions on the fed-
eral 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 govern-
ment, no Bundestag, no political party could be familiar with these limitations,
which are supposedly required by the constitution.

Parliamentary Ossification. The Federal Republics parliamentary system has been
subject to criticism on and off the bench. Recall Justice Bckenfrdes 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 Sen-
ate had reinforced in the Legislative Pay Case (1975).31 In 1992, Federal President
Richard von Weizscker mounted a slashing attack on Germanys established par-
ties, faulting them for their ossification and lack of creativity.32 Another leading pub-
lic 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 (Brgerinitia-
tiven). As interpreted by the Federal Constitutional Court, however, the principle of
representative, or indirect, democracy embodied in Article 20 (2) would seem to ex-
clude any institutional reform at the national level that would interfere with Parlia-
ments 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 interpreta-
tion of the term voting in this provision would permit some forms of direct de-
mocracy.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 de-
vices 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.
 238 chapter five

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 constitutions 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 parlia-
mentary representatives. Consistent with the core principle of democracy,
citizen-voters participate in the exercise of state authority through their parlia-
mentary deputies (Article 20 (2)). It was argued that, to the extent that this au-
thority 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 pol-
icy 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 Germanys 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 Laws fundamental democratic commitment.]

 Po liti cal R epr e sen ta tion and Democr acy 239
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 ema-
nates from the people through the voting process. The Bundestag then exercises that
power as a legislative body, choosing the federal chancellor and controlling the gov-
ernment. 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 legis-
lation 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 pur-
poses of European integration and its progress. In doing so, it also defi ned the sub-
stance of the right guaranteed by Article 38. Where Article 23 applies, Article 38 for-
bids 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 in-
violable by Article 79 (3) in conjunction with Article 20 (1) and (2).
The complainants 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 pow-
ers to the European Union and the communities within it, the Federal Constitu-
tional 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 func-
tions 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 na-
tional parliaments. . . .
 240 chapter five
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 trans-
ferring functions and powers of the Bundestag in such a way as to violate the demo-
cratic 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 al-
lowed by the constitution, for the purpose of creating a unified Europe), then demo-
cratic 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 Laws new Article 23. The Court found that the Bundestag has
not been frozen out of the eus process of making policy. It held that since the
eu is an organization of states rather than a federal state, the Bundestag re-
tained sufficient control over its functions and powers to satisfy the constitu-
tional commitment to the principle of democracy. In the end, the Court sug-
gested 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 Ger-
many from becoming a member of a community of states organized on a suprana-
tional 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 Euro-
pean 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
 Po liti cal R epr e sen ta tion and Democr acy 241
gained through the national parliaments. Th is will form the basis of democratic sup-
port 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 indi-
vidual 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 le-
gally 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 de-
pends 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 po-
litical 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 decision-
making 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 be-
come 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
Parliaments 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 democ-
racy 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 exten-
sion of the European Communitys 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 substan-
tial 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 Ger-
man 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
 242 chapter five
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.

Rules Governing Elections. Germanys original electoral laws sought to achieve po-
litical stability and fair representation. To this end, German lawmakers adopted a
mixed system of political representation. They also sought to prevent the rise of splin-
ter parties by requiring a political party to meet, as a condition for entering the legisla-
ture, 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 col-
lecting the signatures of a certain percentage of eligible voters. The Federal Constitu-
tional 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 mem-
bers 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 com-
mittee 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, regu-
late the process of selecting candidates, and establish rules for casting ballots, chal-
lenging 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 Parliaments discretion. Germans often have debated whether to
modify their system in imitation of the BritishAmerican 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 represen-
tation.41 The popu lar reaction to any manipulation of the electoral process for parti-
san 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
 Po liti cal R epr e sen ta tion and Democr acy 243
But constitutional suspicions have continued to shadow the mixed member-
proportional 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 states 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 re-
ceive 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 con-
stituency 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 expan-
sion of the total number of Bundestag deputies (above the preordained 598 seats) to ac-
commodate 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 partys
representation in the Bundestag reflective of its actual strength at the ballot box.
The Federal Constitutional Court had repeatedly upheld the complicated elec-
toral 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 Over-
hang 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 cdus 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.]

 244 chapter five
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 Bunde-
stagas 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 systembears the fundamental characteristics of an elec-
tion by proportional representation. Overhang mandates differentiatein varying
degrees depending on the number of overhang mandatesthe success value of the
votes as understood under the rules of proportional representation. Such a differen-
tiation, 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 deci-
sions that the differentiation in the proportional representation of the parties result-
ing 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 un-
avoidable 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 re-
main 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. . . .
 Po liti cal R epr e sen ta tion and Democr acy 245
2. Nor, as such, does the combination of proportional representation with ele-
ments 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 repre-
sentative as well as on the proportional strengths of the political parties in Parlia-
ment. 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 behav-
ior 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 victo-
rious candidates regardless of a respective partys proportional success) just as much
as those who cast their vote uniformly for the winning direct candidate in a constitu-
ency 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 require-
ment 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 pro-
cess 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 deter-
mine 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 conclu-
sions 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 representationnamely, that the political will of the elec-
torate for the choice of certain parties should be reflected as realistically as possible
 246 chapter five
in the Bundestagmay 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, pro-
vides 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 de-
viation from other principles, including that half the Bundestag should be com-
posed 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 num-
ber of seats is constitutionally acceptable;. . . . Nor is it foreseeable that the number of
parliamentary seats will further increase substantially in future elections in accor-
dance 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 asa factor which the legislature can influencethe unequal division into
constituencies in conjunction with the distribution of the latter among the Lnder,
voting according to Land lists, and the allocation of two votes that are to be cast inde-
pendently of one another (one for a constituency candidate and one for a list).
b. Provisions of electoral law by which constitutionally permitted aims are pur-
sued are not constitutionally objectionable simply because they also favor the forma-
tion of overhang mandates. Thus, the distribution of the seats in the Bundestag ac-
cording 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 un-
equal distribution among the Lnder, 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 legis-
lative intent.

[The four opposing justices sought to distinguish the present circumstances

from the Courts earlier decisions upholding the overhang mandates. Specifi-
 Po liti cal R epr e sen ta tion and Democr acy 247
cally, the opposing justices argued that changes in the electorate following re-
unification greatly increased the likelihood of overhang mandates. For this
reason, the Courts 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 Germanys election system, de-
spite 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 suf-
frage be satisfied. The constitutional solution in a purely proportional system,
the four opposing justices reasoned, would be to reduce a partys total number
of constituency mandates to conform with the partys allotment of seats based
on its proportional strength.]

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 deci-
sion in Overhang Mandates II, the four prevailing justices concluded that the Courts
review of the election system should be restrained by the legislatures discretion over
the matter. In light of this deference, the four prevailing justices could not see fit to
discredit the Bundestags decision to emphasize the constituency votes in the over-
hang mandates context. Unlike the four opposing justices who found a constitu-
tional priority for the proportional element of Germanys elections, the four prevail-
ing 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 vot-
ing system was more advantageous from the viewpoint of representative
democracy. 47
Overhang Mandates II is a fragile and equivocal constitutional endorsement of
Germanys mixed member-proportional system, a system that permits a differen-
tiation 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 con-
cern. 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 par-
liamentary majority. Th is was the largest number of overhang mandates in the
Federal Republics history. The total number of Bundestag mandates was expanded
 248 chapter five
from its statutorily anticipated 598 seats to 622 seats to accommodate the twenty-
four overhang mandates. In this constellation 312 seats were necessary for a parlia-
mentary majority and, counting the twenty-four overhang mandates, the coalition
held 332 seats.48

The Flawed 2005 Federal Election. The Courts acceptance of the electoral inequali-
ties 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 unconstitu-
tional.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 second-
ballot 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 elec-
tion systems accounting for the parties proportional strength, the allocation of each
partys seats to the respective Lnder, 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 elec-
toral 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 es-
pecially 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 bal-
lots because a strong proportional per for mance would cause it to lose one overhang
mandate.
The counterintuitive and incongruent possibilities associated with inverse elec-
toral 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 vio-
lated if the intended positive effect of ones 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 Laws assignment of the details of election matters to
the Bundestag. But the Court simply could not agree that the provisions of the Fed-
eral 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
 Po liti cal R epr e sen ta tion and Democr acy 249
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 consti-
tutional 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 unconstitu-
tional election scheme.
The Second Senate noted another constitutional infi rmity in the 2005 federal elec-
tion 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 sub-
ject 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 re-
count in the disputed 2000 U.S. presidential election, the Court concluded that com-
puter 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 elec-
tronic votes were recorded and preserved in a parallel, manual system that is main-
tained and made available for the voters inspection. With the same modesty it dis-
played 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 allocat-
ing seats in the Bundestag. Validating the Parliaments discretion to give the first-ballot
constituency votes an equal role in shaping the Bundestag (and with overhang man-
dates, 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 be-
cause a debate over broader election reform already under way in the Bundestag prom-
ised 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 num-
ber 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 states
 250 chapter five
share of the total population and 2) that the population of a constituency may not devi-
ate 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 Germa-
nys electoral districts must be relatively equal in population. In this respect, the one-
person, one-vote principle is as embedded in the Constitutional Courts 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 Constitu-
tional 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 elec-
tions and districting was thoroughly considered in Electoral District II.

5.7 Electoral District II Case (1963)

16 BVerfGE 130

[Relying on the Courts 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 elec-
toral 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.]

Judgment of the Second Senate. . . .
B. I. 3. c. The principle of equal suff rage means that everyone should be able to exer-
cise his or her right to vote in as formally an equal way as possible. . . . In a pure ma-
jority 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 cre-
ated 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 constitution-
ally permissible minimum.
 Po liti cal R epr e sen ta tion and Democr acy 251
. . . 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 equal-
ity 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 devia-
tion from the average population of the constituencies to 33.3 percent. . . .
4. The fact that during the last parliamentary election the districts no longer com-
pletely satisfied the required equality of the right to vote does not mean that the divi-
sion 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-Wrttemberg, 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 parlia-
mentary 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 reor-
ganize the districts by reducing to a permissible level the deviations in their popula-
tion from the national average and by adjusting constituency lines to each states
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 af-
fected by internal migration owing to economic developments. . . .
The difficulty in determining the exact point when original constitutional district-
ing becomes unconstitutional stems from changes and trends that are at once contin-
uous 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 Actalthough 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 fac-
tors: the relatively small size of the districts in Schleswig-Holstein, and the relative
 252 chapter five
majority of fi rst votes for only one party in all districtsevents 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 constitutional-
ity, 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.

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 (Bev-
lkerungsanteil) as the relevant standard. But this might lead to unequal voting
strength in scenarios in which, on the one hand, some districts consist of popula-
tions 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
Lnder 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 dis-
missed the election challenge, concluding that the Federal Election Acts failure to
require that constituencies consist of relatively equal populations of voters was
notyeta violation of the principle of equal suff rage. But the Court credited the
complainants concerns by admonishing future districting commissions to pay
close attention to this phenomenon when revising and reallocating the Bundestags
constituencies.52

The Meaning of Direct Election. Several early constitutional cases challenged fea-
tures 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
Laws guarantee of direct elections. These decisions draw on the Supplemental Candi-
dates Case (1953), in which the Court held that an electoral law would violate the
 Po liti cal R epr e sen ta tion and Democr acy 253
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 nec-
essary 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 val-
idly 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 partys second-
ballot 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 Germanys 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 clari-
fied the principle of direct representation in relation to the constituency votes.59 The
Court invalidated the Bundestags 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 replace-
ment deputy from the second-ballot list of the deceaseds party. The Court found
this process acceptable for the replacement of all deputies except those representing
overhang mandates. The Court reiterated that Germanys elections are fundamen-
tally characterized by the second-ballot proportional votes. Even constituency rep-
resentatives draw their mandates from the second-ballot votes, the Court explained,
because a partys success on the second ballot determines the number of constitu-
ency seats to which it is entitled. Thus, in spite of the view that there is a direct po-
litical relationship between a constituency representative and his or her constitu-
ents, the Court found the principle of direct elections satisfied primarily via the
second-ballot proportional votes. For this reason, the Court concluded, the princi-
ple 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 constitu-
ency representatives holding overhang mandates because the overhang mandates
are awarded to a party above and beyond their success in the second-ballot propor-
tional vote. Unmoored as they are from this fundamental source of legitimacy in the
German electoral system, overhang mandates represent the rare instance of a di-
rect, 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
 254 chapter five
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 Par-
liament has been a major feature of the electoral system since 1949. Some of the fram-
ers 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-Holsteins imposition of a 7 percent rule, a hurdle that,
in the Courts 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 representa-
tives 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 thresh-
old violated the Basic Laws 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 elec-
tions 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 Parliaments 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 pro-
duce legislation, cannot meet this test. The 5 percent clause was vindicated as a rea-
sonable 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 Schleswig-
Holsteins application of the rule to the states 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
 Po liti cal R epr e sen ta tion and Democr acy 255
5 percent minimum threshold rule. Schleswig-Holsteins Danish Minority Party, un-
impeded 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
Schrders flagging national prospects by throwing those two seats behind the states
spd/Green coalition, creating an impossibly thin one-vote majority over the opposi-
tion, and thereby stemming the chancellors 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 in-
roads into the new eastern states after reunification and broaden its base by merg-
ing with eastern Germanys 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
5percent minimum threshold of electoral success in National Unity Election. The
pds was the surviving remnant of East Germanys Socialist Unity Party (sed).66
Widely shunned by Germanys mainstream political elites in the fi rst decade after
reunification, the pds nonetheless enjoyed not insignificant support in the new
eastern Lnder. 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 pro-
portional representation and there was no significant threshold requirement
for entry into the legislature. Th is contrasted with West Germanys two-ballot
system that featured the 5 percent minimum threshold requirement. East Ger-
man leaders objected to the 5 percent rule because the political reform groups
that had played so critical a role in East Germanys 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
 256 chapter five
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 Bavarias csu would carry its sister party, the east-
ern German Social Union (dsu) into the Bundestag, whereas the old Commu-
nist Party from the eastknown as the Socialist Unity Part of Germany and
now repackaged as the pdswas 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.]

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 dif-
ferent weights to different votes.
Parties are charged with the primary responsibility of organizing citizens into po-
litical groups for electoral purposes. In the field of elections and voting, formal equal-
ity 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 as-
sociated with the concept of a free democracy. The principle of equal opportunity
governs the election proper as well as the campaign. Democracy cannot functionas
a matter of principleif 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.
Parliaments 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
representationone that this Court has repeatedly emphasizedis 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 sys-
tem may result in splintering the electorate, making it difficult or impossible to form
a stable parliamentary majority. Accordingly, the legislature may treat votes differen-
tially in a system of proportional representation if such treatment is required to en-
sure Parliaments ability to act and make decisions.
 Po liti cal R epr e sen ta tion and Democr acy 257
In principle, the legislature is empowered to ensure the proper functioning of Parlia-
ment 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 an-
other time; the circumstances of the state must be taken into account. One thing is
certain: a deviation from the customary 5 percent ruleeven if only a temporary
deviationmay 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 applica-
tion. 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 applica-
tion 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 politi-
cal parties and electoral organizations have had such a short time to adapt their strat-
egies to a much larger electoral area, and because some of the newer parties and orga-
nizations 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 terri-
tory. 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 terri-
tories 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 ter-
ritories. Prior to the national parliamentary election, the parties have had only lim-
ited 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
 258 chapter five
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 second-
ballot 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 Ger-
man parties would have to receive only 6 percent of second-ballot votes in their for-
mer 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 uni-
fied German election. The legislature has weakened the effect of the 5 percent mini-
mum 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 Fed-
eral 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 ben-
efit all parties in the same way.
[The Court then considered whether combined lists were constitutionally per-
missible and found that they were not. After noting that the actual possibilities
for combining lists were extremely limited for most parties, the Court con-
cluded that combined lists violate the principle of equal opportunity by giving
 Po liti cal R epr e sen ta tion and Democr acy 259
more weight to the votes of some parties than others. Similarly, while individ-
ual voters may vote for one party on a joint list, both parties may wind up repre-
sented 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 Fed-
eral 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 thresh-
old, 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 constitu-
ency 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. Pur-
suant 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 pdss 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 post-
reunification political landscape, the long-dormant Grundmandatsklausel
threatened to play an increasingly central role in shaping the partisan profi le of
 260 chapter five
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
Bundestags 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 Grund-
mandatsklausel. Th is compromised the guarantee of equal suff rage. The Court
rejected the challenge, in part out of respect for Parliaments discretion over the
electoral system.]

Judgment of the Second Senate. . . .
The Grundmandatsklausel serves the purpose, rendered legitimate by the constitu-
tion, of reconciling partly opposing objectives, namely, to create a parliament capa-
ble 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 crite-
ria and ensures that the extent of the differentiation remains within the limits of the
legislatures intent.
a. With the 5 percent minimum threshold clause the legislature ensures both Par-
liaments 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
equalfranchise and serves the purpose of the election, which is to enable the par-
liamentary representation of those political trends within the nation that are signifi-
cant following the popu lar vote.
b. In laying down a criterion that allows inferences to be drawn as to the integrat-
ing 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
 Po liti cal R epr e sen ta tion and Democr acy 261
can be measured by its results in terms of votes in the electoral territory as a
wholeor even in parts of it. Rather, as it did by enacting the Grundmandatsklausel,
the legislature also can derive a partys 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 elec-
tion 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 partys 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 im-
peratives. 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 op-
portunities 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 Grund-
mandatsklausel 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 Parliaments ability
to function. According to experience to date, a small party winning three constituen-
cies 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 Par-
liament, 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 nu-
merical 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 elec-
tion 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 ques-
tion by the objection that the Grundmandatsklausel is framed too broadly and there-
fore 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.
 262 chapter five
The legislature is entitled to infer the validity of the Grundmandatsklausel from suc-
cess in constituencies irrespective of regional proximity.
e. No constitutional requirements arise with respect to the number of direct con-
stituency 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, na-
tionwide, a restrictive effect higher than a 5 percent minimum threshold. It is other-
wise left to the legislatures 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 Fed-
eral Republic now must be evaluated from the perspective of its increasing impor-
tance. In the run-up to the 2005 federal election, the pds allied itself with the disaf-
fected left from then Chancellor Schrders increasingly centrist Social Democrats to
form the Left Party. The newly formed party polled better than the Green Party, re-
ceiving 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 Germanys ad-
ministration of elections to the European Parliament.67 The National Unity Election
Case, reflecting the unique circumstances of Germanys fi rst postreunification elec-
tion, was the rare exception to that tradition.
Recently, however, the Courts 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 rules application to that states local
and regional elections. The Court found that the 5 percent minimum threshold se-
verely infringed upon the constitutional interests of equality (Article 3 (1)) and the
integrity of political parties (Article 21). Th is severe infringement, the Court con-
cluded, was not offset by the rules 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 po-
litical 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 effec-
tive functioning of local representative bodies.68
 Po liti cal R epr e sen ta tion and Democr acy 263
In the European Parliament II Case (2011) the Court invalidated the rules applica-
tion to elections to the Eu ropean Parliament. In an earlier case, European Parlia-
ment 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 suprana-
tional organ as they were for the Bundestag. Chief among those aims, the Court ex-
plained, is the rules 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 Parliaments 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 strik-
ing the 5 percent minimum threshold as applied to Germanys administration of
elections to the European Parliament, a bare 53 majority of the Second Senate em-
phasized the rules 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 coalitionscreating big
tent party blocsin the European Parliament eliminated any risk that the body
might be unable to act through a majority without the benefit of a 5 percent mini-
mum threshold. Second, the majority noted that the European Parliament had man-
aged to effectively fulfi ll its mandate among the organs of the European Union de-
spite the fact that it had long been the host to scores of minor, marginal, and splinter
parties. At the time of the Courts decision, the senate noted, nearly 160 parties from
the eus 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 thresh-
old will soon disappear from Germanys 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 Germanys Bundestag elec-
tions. The Court seems convinced that, whatever its cost in democratic terms, the
5 percent minimum threshold is still necessary to ensure Parliaments stability and
efficacy.

Contested Elections. Article 41 (1) of the Basic Law empowers the Bundestag to ex-
amine the validity of elections and to decide whether a representative has lost his
parliamentary seat. Complaints against the decisions of the Bundestag under this
 264 chapter five
paragraph may be lodged with the Federal Constitutional Court under Article 41
(2).71 Section 48 of the Federal Constitutional Court Act (Bundesverfassungsgerich-
tsgesetz; 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 sig-
natures of at least one hundred eligible voters.72 Th rough 2011 the Federal Constitu-
tional Court had received 218 such cases and disposed of 203 (with rulings from the
Courts senates or chambers in 171 of these cases), sustaining the Bundestags fi rst-
instance decision in almost all of them. Not surprisingly, Article 41 cases are clus-
tered 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 tradition-
ally has construed its authority in election review matters. First, the Court has shown
great deference to this par ticu lar aspect of the Bundestags constitutional compe-
tence 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 Bun-
destag, 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 in-
quiries election challenges that assert subjective rights, focusing instead on the ob-
jective 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 exacer-
bated in the context of settling disputes over inherently political undertakings such
as elections to the most representative of Germanys legislative institutions. Th is
logic is also recognized by the U.S. Constitution, which, in Article I, Section 5, estab-
lishes 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 tribunals members were parliamentari-
ans 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 Parliaments decisions in these matters.
The extent to which this important link in the chain of popular and political legiti-
mation has been judicialized was demonstrated by the Federal Constitutional Courts
 Po liti cal R epr e sen ta tion and Democr acy 265
decision in the Hessen Election Review Case (2001).75 The narrow margin of victory en-
joyed 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
cdus party financing scandal was later revealed, the Hessen Election Review Court
sua sponte took the election under review. The Hessen Election Review Court was cre-
ated by Article 78 of the state constitution and 17 of the accompanying Election Re-
view 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 states high-
ranking 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 Courts
proceedings in the Federal Constitutional Court. Specifically, the cdu-led Hessen gov-
ernment 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 Re-
view 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 Bund-
estag electoral decision reviewed by the Federal Constitutional Court. More than
16percent of Mayens 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 voters constitu-
tional complaint against the Bundestags 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 absen-
tee balloting, it nevertheless has the duty to ensure that the right to vote is safe-
guarded. 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
 266 chapter five
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 circum-
stances, 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. Sec-
tions 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 surren-
der 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 Courts 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 mu-
nicipal elections if these residents were citizens of countries that extended mu-
nicipal 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 Constitu-
tional 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 governments 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 de-
fi nes the people as the German people. The concept of the people within a com-
munity 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
 Po liti cal R epr e sen ta tion and Democr acy 267
sovereignty (evidenced by its location and connection with other norms); it also de-
fi nes the people who exercise state authority through elections, voting, specific legis-
lative organs, executive power, and the judiciary: it is the body politic of the Federal
Republic of Germany. Article 20 (13) 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 ob-
ject 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. Citizen-
ship is both the legal precondition for the equal status of individuals and the founda-
tion for equal rights and duties; exercise of legal rights and duties legitimates demo-
cratic 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 cabi-
net 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 super-
seding the Basic Law. Notably, the preamble and Article 146 both declare the Ger-
man people to be subject to and the object of the state established as the Federal Re-
public 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 ni-
tion of the subject of German state authority as all German citizens. The draf-
ters of the Basic Law expressly addressed this issue, even while modifying the prin-
ciple 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 pos-
sessed 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 legisla-
tor 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 inher-
ent concept of freedom demand complete congruence between those who hold demo-
cratic rights and those who are subject to state control. Th is is the correct starting
 268 chapter five
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 Lnder 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 poli-
tic 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 Lnder, districts, and municipalities, pointing out that the concept ap-
plies 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 Laws 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 territo-
rial 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 ap-
plied to municipalities and districts through Article 28 of the Basic Law.

The Courts 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 (citi-
zenship inherited from ones parents, or law of blood) meant that Germanys large and
growing population of resident foreigners were unable to attain citizenship and, thereby,
were excluded from the countrys 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
Republics postwar economic boom) and that their children and grandchildren knew
no home other than Germany. Th is discomforting gap was surely part of what moti-
vated Schleswig-Holstein to extend the vote to the states 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 im-
migration law was enacted in 2005. The new immigration regime opened new paths
 Po liti cal R epr e sen ta tion and Democr acy 269
to German citizenship and, in light of the Courts reasoning in Foreign Voters I, to full
participation in Germanys 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 Hamburgs constitution granting the right to vote in regional elec-
tions 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
Hamburgs 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 citi-
zens 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 nul-
lifying the Schleswig-Holstein and Hamburg decisions.

party state and political spending

In formally recognizing political parties, Article 21 of the Basic Law represents some-
thing 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 politi-
cal 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 cre-
atively 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 orga-
nization [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 Laws framers as-
sumed that political parties would draw their fi nancial support exclusively from pri-
vate 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 articles disclosure provision.)
 270 chapter five
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 tra-
dition 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
constitutions formal recognition of political parties as agencies engaged in the pro-
cess of will formation and in their statusone the Constitutional Court has con-
ferred by interpretationas 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 gov-
ernments, and make policies. In the modern nation-state, with millions of voters, po-
litical parties are, as the Constitutional Court has recognized, a rational and demo-
cratic 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
Courts jurisprudence in the field of political parties and representation can be under-
stood 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 par-
ties 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 Depres-
sion and Hitlers struggle for power, Weimar-era democracy degenerated into a re-
gime of warring factions, rendering effective parliamentary government all but im-
possible. 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
Laws framers, themselves party representativesChristian Democrats and Social
Democrats made up the large majority of the delegates to the 19481949 Parliamen-
tary Councilset 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 sys-
tem.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 Consti-
tutional Court underscored the critical role of parties in the new polity. In the Socialist
 Po liti cal R epr e sen ta tion and Democr acy 271
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 Schleswig-
Holstein 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 Con-
stitutional 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 ac-
tive in this par tic u lar realm and fight for the rights that flow from this special func-
tion in our constitutional life, they are entitled to invoke their own rights as consti-
tutional 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 par-
ties as well as their prescribed institutional role in the political system. Accord-
ingly, 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 par-
ties 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 tax-
deductible 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 re-
quired. The Social Democratic government of Hesse, joined later by Hamburg
and North RhineWestphalia, challenged the constitutionality of these deduc-
tions in an abstract judicial review proceeding, claiming that they discrimi-
nated in favor of political parties backed by wealthy individuals and large cor-
porations. The Federal Constitutional Court agreed.]

Judgment of the Second Senate. . . .
B. II. . . . By declaring donations to political parties deductible, the Parliament re-
nounces that part of the income or corporate tax that would otherwise accrue. . . .
 272 chapter five
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 pro-
hibited 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 politi-
cal 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 treat-
ment 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 peoples 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 partys 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 corpo-
rate 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 ex-
ceed the standard deduction.
 Po liti cal R epr e sen ta tion and Democr acy 273
General experience shows that in contrast to donations made for charitable, reli-
gious, 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 partys plat-
form 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 pro-
grams 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 re-
sources is able to influence elections more effectively than a party with less fund-
ing. Under the system of progressive taxation, where tax-deductible contributions
are based on the percentage of ones income, wealthier donors sacrifice far less than
donors in lower tax categories. A tax law that allows persons to influence the politi-
cal 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 contribu-
tions to political parties unless such parties had elected at least one representative to
the federal or a Land parliament (All- German Peoples 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 ef-
fective competition among them and of diminishing their reliance on special interest
groups.91 Funding would be appropriate because parties were now regarded as con-
stitutional 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 partys 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 immediatelyand eagerlyto the Courts suggestion
by passing the Party Finance Act of 1959. Supported by all the parties in the Parlia-
ment, 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
 274 chapter five
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
acts coverage violated the principle of electoral opportunity. In the All- German Block
Party Case (1961)93 the Court rejected that partys application for a temporary injunc-
tion to bar the disbursement of such funds, reiterating once again that public fi nanc-
ing 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 nanc-
ing 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 sub-
sidies to the political parties. The funds were apportioned among the four par-
ties represented in the Bundestag (cdu, csu, spd, and fdp) based on the total
number of each partys 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 judi-
cial 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 partiesthe far-right National
Democratic Party, the All-German Party, and the Bavarian Partypetitioned
the Federal Constitutional Court within the framework of an Organstreit pro-
ceeding. The Court accepted the petitions and, to a significant degree, credited
the challenges raised.]

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 par-
ticipate 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
 Po liti cal R epr e sen ta tion and Democr acy 275
Courts 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). . . . Nonethe-
less, it is constitutional to use public funds to reimburse political parties when they
are engaged in forming the peoples 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 peoples 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 peoples will and
forming the will of the state. . . .
Whereas Article 21 (1) deals with forming the peoples will, Article 20 (2) concerns
the formation of the states will. The expression of the peoples will coincides with
forming the states will only if the people exercise state authority through elections
and voting (Article 20 (2)). . . .
Forming the peoples will and forming the states 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 states organs are created only through the
process of forming the peoples political will. . . . Th is means that state organs are in
principle prohibited from becoming active in forming the peoples 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 obli-
gated 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 ca-
pabilities 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 individ-
uals 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 states will. . . . In a modern mass democ-
racy, political parties decisively influence nominations to the highest governmental
positions. . . . They influence the formation of the states will by working marginally in
 276 chapter five
the states 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 states 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 politi-
cal 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 opin-
ion and forming the will of the state. No special reason can be advanced to constitu-
tionally legitimate such influence. Therefore, the fi nancing of political parties pro-
vided 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 partys political
activity cannot be justified by the fact that Article 21 recognizes parties as constitu-
tional 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 peoples 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 states 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 permissi-
ble to grant parties annual subsidies for all their political activity. . . .
III. Additionally, state funds may not be allocated to parties for purposes of po-
litical 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 ap-
propriate election campaign can be constitutionally justified if the principles of open
participation in elections and the equal opportunity of political parties are to be ob-
served. In this respect we affi rm the [Party Finance I Case]. . . .
In a democratic system, parliamentary elections constitute a crucial act in form-
ing the peoples 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 partys program and on its influence in forming the states 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
 Po liti cal R epr e sen ta tion and Democr acy 277
and that they take part in forming the peoples 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 neces-
sary 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 dur-
ing 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 appropri-
ated for the parties.]
4. a. The decision that legislatures can use federal funds to reimburse political par-
ties 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 opportu-
nity requires that the legislature consider all parties that have participated in the
campaign when distributing funds. It is inconsistent with the principle of equal op-
portunity for [the legislature] to provide state funds only to parties already repre-
sented 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 cam-
paign costs will encourage the establishment of new political parties. Th is would en-
courage a development that the 5 percent minimum threshold rule, which bars par-
ties 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 partys 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 partys campaign costs contingent upon its obtaining a certain
minimum percentage of votes. Th is percentage must, however, be considerably lower
than 5 percent.

Competing Views of the Party State. The result in Party Finance II was a compro-
mise 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 mod-
ern 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
 278 chapter five
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. There-
fore, the Parteienstaat by defi nition excludes the Verbndestaat, a system in which
interest groups monopolize the political process and undermine genuine majority
rule. The state must liberate partiesand itselffrom the domination of such inter-
ests, and one way of achieving this goal, the Constitutional Court suggested, is by fi-
nancing 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 de-
mocracy 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 thestate. 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 ca-
pacity as electoral organizations, shape the peoples will. In this sense, they carry out
a crucial public function worthy of the states 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 re-
lated 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 imper-
missible. 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, partic-
ularly with respect to the constitutional command that parties must publicly ac-
count 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 be-
half of corporate interests in par tic u lar had become a way of life in West Ger-
many.97 Having been denied a fertile source of party funding under Party Finance
 Po liti cal R epr e sen ta tion and Democr acy 279
II, the major parties represented in the Bundestagnow dominated by the cdu/
csu-spd grand coalitioncollaborated in the passage of the Political Parties Act
of 1967.98
The Political Parties Act consisted of sections on the status and functions of politi-
cal 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 ac-
cepted 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 form-
ing 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 Acts public funding section, including pro-
visions 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 Courts ruling in Party Finance II. These sums were to be distributed to the par-
ties 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 cor-
porate 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 ap-
propriate election campaign, the public funding of political parties increased expo-
nentially 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 addi-
tion, 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 institutionsFriedrich Ebert Foundation (spd),
Friedrich Naumann Foundation (fdp), Konrad Adenauer Foundation (cdu), and
Hans Seidel Foundation (csu)were charged with fostering the political educa-
tion of their members and the general public.100 These subsidies rose from dm
9million 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 non-
parliamentary 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 (19681988). Few areas of public policy have experi-
enced as much interplay between the Federal Constitutional Court and Parliament
as the campaign fi nance provisions of the Political Parties Act. Every subsequent
 280 chapter five
change in the Actin 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 associa-
tions, or independent candidates allegedly disadvantaged by the change. Overall,
the Constitutional Court sustained Parliaments general approach to campaign fi-
nance regulation. In the important Political Foundations Case (1986) the Court
even endorsed the appropriation of subsidies to the four party-oriented founda-
tions. By the 1980s these institutions had blossomed into prominent national orga-
nizations with large staff s and overseas branches and were well known for their
educational and civic contributions, including their sponsorship of student re-
search 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 Fi-
nance 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 vir-
tually micromanaging the party funding, taxing, and disclosure policies of both
federal and Land governments, all in the interest of fair and equal electoral compe-
tition. In Party Finance III (1968), for example, the Second Senate nullified a provi-
sion of the Political Parties Act that limited funding eligibility only to parties se-
curing 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 equal-
ity 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 per-
cent 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 reaf-
fi 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 par-
ties as constitutional organs for electoral purposestheir public functionand
parties as voluntary associations of private citizens.105 The parties had been hag-
gling 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 nanzierungthat is, going around the law by funneling donations to
dummy charitable organizations and securing tax exemptions for illegal contribu-
tions.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-
 Po liti cal R epr e sen ta tion and Democr acy 281
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 pe-
tition fi led by the Green Party. A 1983 change in the Political Parties Act defi ned par-
ties 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 respec-
tively. Party Finance V sustained each of these provisions except for the tax-deductible
donation of 5 percent of a persons 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 partici-
pating 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 disclo-
sure of contributions in excess of dm 40,000 and allowed generous tax deduc-
tions to individuals and married couples for donations up to dm 60,000 and
120,000 respectively. In addition, Parliament established for each party a so-
called 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 reim-
bursement for necessary campaign costs. In 1988 this sum was around dm 300
million. The Green Party was the spoiler, this time precipitating major judi-
cially mandated changes in constitutional policy on party fi nancing. In its
sixty-four-page judgment, the Second Senate set limits on the overall amount
 282 chapter five
of direct subsidies that could be allocated to the parties and reversed its
decisions from 1966 to 1986. These rulings permitted funding only in reim-
bursement for direct election expenses. Unable to distinguish precisely be-
tween 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 pri-
vate donations. The following passages include only the headnotes (Leitstze)
to the case.]

1. The principle of political party autonomy laid down in the Basic Law necessi-
tates 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 exist-
ing 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 voterssuccess being measured
here by the sum of its membership fees together with the total amount of volun-
tary contributionsis 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 in-
compatible with Articles 21 (1) and 3 (1) of the Basic Law because it violates the peti-
tioners right to equal opportunity in political campaigns.
4. The constitutional limit of a permissible tax benefit for contributions and dona-
tions 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 preferen-
tial tax treatment of corporate donations is subject to serious constitutional objec-
 Po liti cal R epr e sen ta tion and Democr acy 283
tion in view of the right of citizens to equal participation in the formation of the
peoples political will.
6. Elevating the so-called disclosure limit (Publizittsgrenze) in 25 [(2)] of the
Political Parties Act to dm 40,000 violates Article 21 (1) [4].

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 re-
spective 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 bu-
reaucracies at the states expense and thus widening the distance between them-
selves and their voters. Accordingly, in Party Finance VI, the Court sought to im-
pose 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 par-
ties themselves. Funding beyond this amount would, in the Courts view, lead to
direct dependence on the state and thus violate the principle of party auton-
omy.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 tax-
deductible 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 partys independent annual income (measur ing the relative upper limit on state
 284 chapter five
funding), regularized payments to the parties on an annual basis, and placed a cap
(the absolute upper limit)starting with dm 230 million for 1994on 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 de-
tailed 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 mem-
bership 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 dis-
missed 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 Admin-
istrative 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 intensi-
fied 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 loop-
holes that allowed the former chancellor to circumvent the law. Months later, how-
ever, public interest in party fi nance reform had waned, just as the Bundestag had
ignored most of the Rau Commissions recommendations.117 Subsequent amend-
ments to the Parties Actachieved between 1997 and 2004left 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 re-
ceives 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
 Po liti cal R epr e sen ta tion and Democr acy 285

militant democracy

The fire that terrorists (supposedly) set to the German parliament building (Reichstag)
during the night of 2728 February 1933 was so symbolically potent as to offer (or was
orchestrated as) a pretext for Hitlers 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 Hitlers 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 Hitlers
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 sup-
port 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, Hit-
ler and the Nazis fairly became the largest party in Parliament. Joseph Goebbels ridi-
culed 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 pro-
vide security against Hitlers state terrorism. First, they articulated an enforceable
cata logue of fundamental rights in the Basic Laws fi rst nineteen articles, beginning
with a simple but profound declaration in Article 1: Human dignity shall be invio-
lable. 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 anti-
Nazi feature. Beyond the liberal protections it secures, the Basic Law contains a num-
ber 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 provisionsmeant to preserve and protect democracy as
an institution even at the expense of individual liberty interestshas 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 constitu-
tional 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)).
 286 chapter five
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 Hitlers 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 para-
graph 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 exis-
tence 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 antidemo-
cratic in its general philosophy? When may a party reasonably be characterized as
antidemocratic or anticonstitutional? When it advocates systemic changes in the exist-
ing 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 right-
wing German Imperial Party (Deutsche Reichspartei). Its publications, cam-
paign appeals, and leadership convinced many people of its neo-Nazi orienta-
tion. 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 hear-
ing before the First Senate, which has original jurisdiction in party ban pro-
ceedings, the Court granted the application and banned the srp.]

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
 Po liti cal R epr e sen ta tion and Democr acy 287
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 recog-
nizes parties as agentseven if not the sole onesforming the political will of the
people.
The Basic Laws attempt to regulate political parties encounters two problems.
The fi rst relates to the principle of democracy, which permits any political orienta-
tion to manifest itself in political parties, includingto be consistent
antidemocratic orientations. The second relates to a special tension on the parlia-
mentary 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 develop-
ment, freedom of political opinion and freedom of associationincluding political
associationare 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 par-
ties 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 for-
mal 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 trouble-
some 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 fur-
nish important indicators for interpreting Article 21. . . . Because of the special im-
portance 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 val-
ues 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 sub-
ject to certain restrictions]. Conceptually, parties are also associations within the
 288 chapter five
meaning of Article 9 (2). Hence, Article 9 (2) would prohibit them under the condi-
tions 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 partys constitutionality from the con-
sideration that a party may be eliminated from the political process only if it rejects
the supreme principles of a free democracy. If a partys 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 Na-
tional 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 re-
proach the srp for having tried to enlist former National Socialists, but rather for
collecting the particularly hard-core individuals who have remained true to them-
selves. The srp recruited these persons not in order to gain positive forces for de-
mocracy, 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 srps 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 ab-
solute obedience to party leaders or to demand such a promise. . . .
[The Court then examined the srps bylaws and practices and found that au-
thority 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
 Po liti cal R epr e sen ta tion and Democr acy 289
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 Hitlers headquarters
in East Prussia. Political persecutees refers to members of the Resistance and op-
position parties whom the Nazis persecuted while in power.]
3. According to the bylaws, a member can be expelled only in an orderly proceed-
ing of the Honorary Council. Numerous documents among the confiscated material
prove, however, that the srp disregarded this provision, and not a single piece of evi-
dence was found to show that the srp implemented the expulsion proceedings in
accordance with the bylaws. . . . Th is practice corresponds exactly with the proce-
dure 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 orga-
nized 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 Fhrer 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 srps clear imitation of the
National Socialist Partys 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 srps pro-
gram 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 partys contempt for the officials and institutions of
the Federal Republic and their acceptance of the idea of an authoritarian Fh-
rer 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.

 290 chapter five
Communist Party Case. The Socialist Reich Party Case gave the Court its fi rst op-
portunity 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 Courts decision to declare the srp unconstitutional
surely comforted the Allied powers. It occasioned few protests in Germany; the hor-
rors 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 Germanys commitment
to political democracy. Seen in this light, the ban on the srp appeared to be a mani-
festation of judicial enlightenment.
In Socialist Reich Party the Court was required to make a fi rst pass at the inter-
pretive lacunae of Article 21 (2). Above all, the Court defi ned the free democratic
basic order. Peter Niesen explained the Courts 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 fol-
lowing necessary conditions: Respect for human rights as laid down in the Basic
Lawespecially every persons right to life and free developmentrespect for pop-
u 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 opera-
tion of an opposition. 135
Although benefiting from the jurisprudential clarity provided by the Courts rul-
ing in the Socialist Reich Party Case, the Communist Party Case (1956) presented a
much more difficult application of Article 21 (2).136 Chancellor Adenauers govern-
ment 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 Courts justices that the Adenauer
governments action against the kpd was unnecessary or, at least, premature. But in
the face of rising SovietAmerican tensionstensions exacerbated by the division
and rearming of Germanythe 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 Ger-
many unconstitutional. The opinion consumed 308 pages in the official reports, the
longest by far of all the Courts 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 MarxismLeninism and the history
of German communism, including a survey of the kpds 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 defi-
nition of the free democratic basic order outlined in Socialist Reich Party. Its signifi-
cant contribution to the jurisprudence consisted of the clarification of an inten-
sity threshold to warrant constitutional intervention against political activity
 Po liti cal R epr e sen ta tion and Democr acy 291
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 sta-
tus.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 partys program, its official declarations, state-
ments of its leaders, and its educational materials. Peter Niesen summarized the
Courts ruling in these terms:
The [Court] ruled that no actual danger to the existence of the democratic constitu-
tional 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 Courts 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 Germanys 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 prin-
ciple 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 histori-
cal experience, that the state could no longer afford to maintain an attitude of neu-
trality toward political parties. In this sense the Basic Law has created a militant
democracy, a constitutional value decision that is binding on the Federal Constitu-
tional Court.142
As in Socialist Reich Party the Court concluded the Communist Party decision by or-
dering the Partys 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 conse-
quence 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 Courts 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 RhineWestphalia. In litigation growing out of the Lands re-
fusal to put the league on the ballot, the Court held that the ban on the Communist
 292 chapter five
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 Republics general intolerance of political extrem-
ism, whether from the right or the left.144 But these cases were not essential to secur-
ing 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 srps 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 kpds 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 Partys popu lar support had almost vanished.
Some credit for West Germanys political stability and security should be directed
toward the countrys 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 ex-
acerbated 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 Ger-
manys democracy. Tony Judt explained that [t]he prospects for political stability
and social reform in postWorld War Two Europe all depended, in the fi rst place, on
the recovery of the continents economy.154 Exactly mirroring the concerns puta-
tively addressed by the Constitutional Courts seminal party ban cases, the Allied
authorities feared that nostalgia for the better days of Nazism, together with a reac-
tion against denazification programmes, food shortages and endemic minor crime,
could yet turn to neo-Nazi or even Soviet advantage.155 The answer to these con-
cerns, 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 as-
similated the general reluctance toward militant democracys illiberal spirit. In vari-
ous 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 cam-
paign ads because of their extreme revolutionary rhetoric, which called for the de-
struction of the existing political order. Administrative courts sustained the actions of
the broadcasters. The affected partiesthe Marxist-Leninist German Communist
 Po liti cal R epr e sen ta tion and Democr acy 293
Party, the Communist Federation of West Germany, and the German Communist
Partybrought 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 organiza-
tions 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 organizations 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 Ar-
ticle 21 (2) if the consequences of a ban could be implemented before those proceed-
ings 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 oppor-
tunity they were owed as parties participating in Germanys political life. The prin-
ciple of equality of opportunity, the Court said, demands that every political party
receive fundamentally the same opportunity during the election campaign and dur-
ing 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 mili-
tant democracys general neglect. The German polity has remained persistently vigi-
lant toward the National Democratic Party of Germany (npd). The states most re-
cent moves against the npd, however, ended up raising more questions about the
invasive activities of Germanys domestic security agencies than it did about the
npds deeply troublesome so-called neo-Nazi politics.
Beginning in the 1960s the rise of the extreme right-wing npd began to stir con-
cern in Germany. The npd, however, was not immediately declared unconstitu-
tional. Nevertheless, in the 1970s the Interior Ministry published a report that de-
scribed 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 Ministrys disclosure as a violation of the
party privilege secured by Article 21 (1). A unanimous Court ruled that state agen-
cies 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 Ger-
many, led the center-left government of spd Chancellor Gerhard Schrder to orga-
nize 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
 294 chapter five
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 npds political platform. In Novem-
ber 2000, more than 200,000 people joined the Uprising of the Decent (Aufstand
der Anstndingen) in the streets of Berlin to remember the victims of Nazi crimes
and to show opposition to Germanys neo-Nazi movements.158 Second, the govern-
ments strident opposition to the npd could also be credited, in part, to personal bi-
ography. Several members of the government, including Chancellor Gerhard
Schrder (spd), Interior Minister Otto Schily (spd), and Foreign Minister Joschka
Fischer (Green Party), had been involved in Germanys 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 governments npd party ban policy,
and npd lawyer Horst Mahler. Back when both were young left ists, Schily repre-
sented 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 con-
verted 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. Sch-
ily 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 Mahlers
motion to enjoin the Berlin prosecuting attorney to return computer equipment
and the data it contained, which had been seized from Mahlers office.162 The Berlin
local authorities were investigating Mahler for a violation of Germanys hate-speech
law, on the basis of Mahlers incendiary anti-Semitic publications. Mahlers 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 npds case in the party ban proceedings, imperiled the partys
ability to defend itself and receive a fair hearing. There was certainly the risk that the
partys 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 under-
mined the attempt to ban the party. In January 2002, just days before the planned hear-
ings 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
 Po liti cal R epr e sen ta tion and Democr acy 295
admissibility phase of the case, and upon which it would be expected to rely in its sub-
stantive 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 partys 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 re-
vealed that 15 percent of the npds 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 npds 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 for-
ward. 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 unfet-
tered 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, requir-
ing a two-thirds majority for disadvantageous decisions against the respon-
dent, applied to the procedural question whether the case should go forward in
light of the revelation of the presence of state agents among the npds leadership.
In reaching this conclusion the Court explained that a disadvantageous deci-
sion 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 Courts 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). Echo-
ing its decision in the Radical Groups Case (1978), the Court explained that even
those parties suspected of antidemocratic tendencies enjoyed this special stand-
ing, at least until the resolution of the party ban proceedings. Having imposed
 296 chapter five
the two-thirds majority rule, a minority of the Court was empowered to con-
clude that the role of state agents in the leadership of the npd presented an ir-
reparable obstacle to the fairness required in party ban proceedings.]

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 pres-
ent 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 constitu-
tional 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 con-
tacts are pursued directly in connection with the fi ling of applications initiating
proceedings to ban the party. Furthermore, to what extent do procedural require-
ments 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 pro-
nouncing 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 constitu-
tional requirements of the decision-making process. If, in the course of the proceed-
ings, there are serious violations either of objective constitutional law or of the sub-
jective 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 con-
tinuation 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 respondents rights.
Acceptance of a procedural bar with the consequence of immediate discontinua-
tion of the proceedings can admittedly be considered only as the ultima ratio of pos-
sible 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
 Po liti cal R epr e sen ta tion and Democr acy 297
constitutional violation must cause nonremediable damage, in terms of the constitu-
tional 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 imme-
diately before and during the conduct of party ban proceedings before the Federal
Constitutional Court is, as a rule, incompatible with the requirements of proceed-
ings 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 three-
justice 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 partys will formation and
activities.]
cc. The senate did not have to decide in the present case whether intelligence ser-
vice cooperation with members of a political partys 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 par-
ties, (partly) ensured by the guarantee of freedom from state interference and self-
determination, 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 states right to punish, and thus pri-
marily 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 Fed-
eral Constitutional Court, the opportunitypossibly for the last timeto present,
in answer to the arguments of the applicants declaring that a ban on the party is
 298 chapter five
necessary in order to avert danger, the image of a loyal institution under constitu-
tional law, whose further participation in the process of forming public opinion and
governmental intention is necessary and legitimate in precisely the interest of a con-
stitutional 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 self-
determination, 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 partys 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 or-
gans. 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 Courts banning of a political party, which is the sharpest
weaponand, moreover, a double-edged onea democratic, constitutional state
has against an orga nized enemy, needs a maximum of legal certainty, transpar-
ency, predictability, and reliability of procedure. Th is also applies to the factual
material to be assessed. Only unequivocal and open attributions concerning per-
sons, 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 con-
stitutionally justifiable decision on the unconstitutionality or constitutionality of
the party as a result of proceedings orga nized in accordance with the constitu-
tional 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 states 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-
 Po liti cal R epr e sen ta tion and Democr acy 299
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
governments application for a ban was received at the Federal Constitutional Court
on 30 January 2001 violates the requirements of constitutional law. Significant reli-
ance in the grounds of the application on statements made by members of the chal-
lenged political party who are or were confidential agents of governmental authori-
ties 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 espe-
cially true when the states interest in continuing the proceedings is considered
alongside the established, serious breaches of the elements of the constitutional
state principle.

The majority of the Court dissented from the position taken by the prevailing three-
justice 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. Sec-
ond, the dissenters saw a strong presumption, based on the constitutional duty to pro-
vide a judicial remedy (Justizgewhrungspfl 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 dis-
senters argued that, under traditional standards of procedural fairness, a partys po-
litical 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
respondents decision-making process . . . [but] there was not the slightest indica-
tion of any substantial governmental influence on the respondents 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 func-
tion of striking a balance between, on the one hand, the npds guaranteed freedom and,
on the other hand, the publics interest in having legitimate party ban proceedings run
their course. The dissenters argued that, in such a balancing, the publics interest was
weightier. Th is position was supported by a characterization of the party ban as more
 300 chapter five
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 be-
lieved that evidence of the npds threat as a konkrete Gefahr to human life and dig-
nity could be drawn from its public activities, independent of the evidence poten-
tially 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 partys constitutionality. The npds links to the suspects in a string
of murders that had targeted foreigners justified the scrutiny. But evidence in the
case of neglector worse, complicityby 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, refer-
ences 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 Ger-
manys political discourse. That suggests that the broadest interpretation of the pre-
vailing justices opinion in NPD Party Ban Dismissal has not carried the day. By call-
ing 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 Germanys 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 member-
proportional 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 require-
ments 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-
 Po liti cal R epr e sen ta tion and Democr acy 301
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 Courts decisions in the fields of political repre-
sentation 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 Laws (Grundgesetz) provisions establish a fundamental com-

mitment to an open state and the accommodation of international law (Vlker-
rechtsfreundlichkeit).1 Th is was meant to create a cosmopolitan constitutional order
linking Germanys interests with the interests of the international community and
integrating Germany into international law.2 The Basic Laws 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 com-
pulsory 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 peace-
ful relations between nations or in preparation for a war of aggression (Article 26);
and it raises the possibility that the Federal Republics political relations and policy
making might be regulated by international treaties (Article 59 (2)). The preambles
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 Laws 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 sover-
eigntism 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 Laws call for openness as an invitation to disregard or
dissolve the sovereign German state and its constitutional order. Openness to inter-
national 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 Ger-
many have in the international community? Shortly after Germanys unconditional
surrender to end World War II, the victorious Allies abandoned the collaboration
 Jur isprudence of the Open State 303
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 Repub-
lic 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 Germanys borders.
The German question went without a defi nitive answer for four decades. Th rough-
out 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 Germanys relationship to East Germany and the defeated German Reich?
And, in light of the Basic Laws openness, to what extent should the Federal Consti-
tutional Court accept international laws 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 Germanys 1949 constitution com-
mitted the Federal Republic to the view that it had not achieved the formal, final con-
stitution of a German state so long as West Germany and East Germany remained di-
vided. Other provisions of the Basic Law made additional claims to West Germanys
provisional character. In seeming contradiction to these provisions, which underscore
the Basic Laws 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 (dis-
cussed below). Until the early part of the 1970s relations between the Federal Repub-
lic of Germany and the German Democratic Republic were severely strained. The
main front between the Cold Wars 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 po-
litical uprising. And, to stem a nearly debilitating exodus to the West, on 13 Febru-
ary 1961 East Germany took the extraordinary step of completely closing its border
with West Germany and isolating West Berlin behind the highly secured border in-
stallations that came to be known as the Berlin Wall. Traffic and trade, telecommuni-
cations 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 Repub-
lic within the eastern bloc of socialist states.
 304 chapter six
In one of the fi rst dramatic moves of his promised Ostpolitik (the normaliza-
tion 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 pro-
visions, the inviolability of the internal border between the two countries; the re-
jection of the use of force; good neighborly relations based on human rights and
the United Nations Charter; the mutual recognition of one anothers 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
Brandts 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 Laws 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
treatys 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 East-
West Basic Treaty (the Treaty Act). The challenge asserted that the treaty vio-
lated provisions of the Basic Law that committed the Federal Republic to pur-
sue 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 govern-
ment (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 Parliaments 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 interna-
tional law consequences of the treaty, preferring instead its interpretation of the
Basic Laws resolution of issues like West German statehood and sovereignty.]

 Jur isprudence of the Open State 305
Judgment of the Second Senate . . .
B. III. . . . 2. . . . First, it follows from the principle of reunification that no constitu-
tional 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 re-
unification domestically and vigorously present it externally. These organs must re-
frain from anything that might prevent reunification. Clearly, the federal govern-
ment 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 governments
chosen policy. Political responsibility for the goal of reunification lies with the policy-
making 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 politi-
cal discretion derives from the fact that the Federal Republic of Germany, as a consti-
tutional 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 Re-
public 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 exer-
cise judicial self-restraint and remain silent, differs fundamentally from the situa-
tion 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 Ger-
man nation may be spoken of only parenthetically today. But there is no reason
toobject 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 expressionthe Ger-
man nationcome 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 exis-
tence of Germany as a whole. The only constitutionally acceptable policy is that
the Basic Treaty constitutes a further legal developmentnamely an interna-
tional law approach that parallels the constitutional law foundationfor the Fed-
eral Governments efforts to achieve reunification. The federal government under-
stands 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
 306 chapter six
for the Federal Republic of Germany an exclusive claim of representation for Ger-
many 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 Laws mandates. No official declaration within the Federal Republic of Ger-
many 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 con-
text. It is one part of a more comprehensive policy, more precisely, the federal gov-
ernments Ostpolitik, which is oriented toward dtente. The Treaties of Moscow
and Warsaw are notable milestones in that agenda. Those Treaties were a pre-
condition for the conclusion of the Basic Treaty and the federal government under-
stood 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 rela-
tionship between the Federal Republic of Germany and German Democratic Re-
public are to be reshaped. . . .
2. The Treaty is embedded in more comprehensive and more specific legal rela-
tionships that also have to be taken into account in any legal assessment. For exam-
ple, the United Nations Charter . . . colors the provision in the Basic Treaty that
says . . . that by this Treaty, bilateral and multilateral treaties and agreements for-
merly concluded by the Contracting Parties are not affected. Th is means in par tic-
u lar the Western Treaties concluded by the Federal Republicespecially . . . the
German Treatypursuant to which the Federal Republic and the three allied pow-
ers 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 Peoples 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 Germanys recognition of the German Democratic Republic
in international law. The Federal Republic of Germany has never formally pro-
nounced such recognition. To the contrary it has explicitly rejected it. . . . The en-
gagement 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 inter-
national law apply and possess validity, as they do for any other international treaty.
 Jur isprudence of the Open State 307
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 poli-
tic 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 per-
manent 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 Contract-
ing 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 con-
tent 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 disorga-
nization of the overarching state. Even in a federal state, regulations among its con-
stituent 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 governments letter to the government of the Ger-
man Democratic Republic treating the subject of German unity is significant. It
states that the Basic Treaty does not confl ict with the Federal Republics 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 Laws principle of reuni-
fication, 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 Laws principle of reunification. . . .
2. In Article 3 (2) of the Basic Treaty the Contracting Parties confi rm the inviola-
bility 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 inter-
est, 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 con-
stituent members (e.g. the Lnder of the Federal Republic of Germany) from each
 308 chapter six
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 com-
patible with the Basic Law, the decisive aspect is the Basic Treatys 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 Lnder of the Federal Republic of
Germany. Th is qualification of the border takes account of the Basic Laws under-
standing 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. . . .

Constitutional Limits to Openness. The East-West Basic Treaty signaled West
Germanys 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 treatys acknowledg ment of
East German statehood. For example, the Court accepted that the German Demo-
cratic 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 Laws 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 Laws
principle of reunification imposed significant constitutional limits on international
laws 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 Germanys 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 Germanys recogni-
tion 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 Germanys priority in representing
the dormant all-German state, a status it enjoyed owing to its democratic legitimacy
and the Basic Laws extension of citizenship rights to all Germans, in both East and
West Germany.
Despite ruling that the Basic Treatyand, more properly, the parliamentary act
consenting to the Basic Treatywas constitutional, the Second Senate had given the
more decisive victory to the treatys challengers. If acceptance of East German state-
hood had been a centerpiece of Brandts Ostpolitik, then the Courts decision dealt
him a disappointing blow. In any event, that is how fuming East European govern-
ments viewed the Courts opinion. The decisions disregard for international law
also was criticized by West German commentators who understood the Basic Treaty
 Jur isprudence of the Open State 309
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 decisions con-
troversial 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 pro-
ceeded 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 Laws 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 Ger-
man 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 inter-
national law.7 By this point, of course, the constitutional (if not the existential) con-
cern that animated the Courts 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 Republics
constitutionally secured identity. To the contrary, international law ultimately facili-
tated the expansionperhaps even the completionof the community the Basic
Law intended to bring about.

The Basic Law and Treaties. Not every treaty requires parliamentary consent. Trea-
ties 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 Lnder 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 Fed-
eration. Second, Parliament must consent when a treaty relates to subjects of fed-
eral legislation. As for the former instance involving political relations, the Court
requires consent only for treaties that, in their object and purpose, touch upon Ger-
manys existence, territorial integrity, independence, or standing in the interna-
tional 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 politi-
cal 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
 310 chapter six
the constitutional state principle would require a statute for a domestic exercise of
authority.10 The Basic Laws 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 gener-
ated 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 interna-
tional 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 rules domestic force and its endorse-
ment in domestic law. According to the doctrine of execution, what the endorse-
ment 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 Grgl Case (2004;
no. 603) the Constitutional Court defi nitively committed Germany to dualism with
respect to its treaty obligations.13 Grgl is featured below because of the rule it an-
nounced 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 Laws openness to interna-
tional 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 acts 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 na-
ture 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 Grgl elevates and makes ex-
plicit the sovereigntist undercurrent evident in East-West Basic Treaty.15 It also un-
derscores the difficult position in which the Court fi nds itself as it strives to realize
the Basic Laws confl icting principles in these international law cases. On the one
hand, the Court clearly is charged by the Basic Law with ensuring Germanys inte-
gration 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 Grgl 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 Ger-
manys far-reaching supranational integration into Europe.16 Grgl triggered con-
siderable public outcry and drew fi re from the European Court of Human Rights.
Part of the backlash was rooted in postwar Germanys persistent discomfort with any
form of national chauvinism. The United States might flaunt its sovereignty and con-
stitutional exceptionalism, but not Germany. Matthias Hartwig shared the view of
many of the critics of the Courts Grgl decision. Nevertheless, he recognized that
the Basic Laws commitment to openness left the Court in an awkward, even institu-
tionally confl icted position. The Constitutional Court, Hartwig explained, is not the
organ best suited to facilitating Germanys cosmopolitanism and the attending trivi-
alization 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 any-
more.17 Under those circumstances it might be natural that the Court has favored
Germanys 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 conventionstreatiesare mentioned fi rst, the second
source identified by the World Courts 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 di-
rectly create rights and duties for the inhabitants of the federal territory. Customary
international law, which derives universally applicable norms from state practice un-
dertaken 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 regimes 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 Laws dualist orientation
 312 chapter six
with respect to treaties, Article 25 seems to tilt toward monism, providing for cus-
tomary international laws seamless integration into Germanys domestic legal order.
Second, customary international law enjoys priority over ordinary (nonconstitu-
tional) law in Germany. Th ird, the considerable openness to customary international
law achieved by these features is tempered by the Basic Laws explicit grant of con-
crete 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 Wei-
mar 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 (Versumnisurteil). The landlord
then obtained an order seizing and transferring Philippine Government as-
sets, including funds deposited in a Deutsche Bank account denoted Em-
bassy of the Philippines that had been opened in 1956. Authority over the ac-
count resided with the ambassador, or the charg daffaires, and the embassy
official responsible for fi nancial matters. The Philippine Government depos-
ited into the account the funds required for its activities in the Federal Repub-
lic of Germany, and the seizure order prevented it from meeting new or ongo-
ing obligations. Asserting a rule of customary international law, the Republic
of the Philippines challenged the courts seizure order claiming that the em-
bassys 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 cus-
tomary international law barred the seizure of assets in the Philippine Gov-
ernments bank account.]

 Jur isprudence of the Open State 313
Judgment of the Second Senate. . . .
[The Court began its analysis by remarking that the rule of customary interna-
tional law asserted by the Philippine Governmentsovereign immunity from
forum-state judicial action over assetsseemed 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 nec-
essary 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 prac-
tice 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 Bel-
gium, 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 atten-
tion 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 states 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 exe-
cution 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 at-
tempts 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 aca-
demic 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 mea-
sures relate to actions of the foreign state that can be characterized as iure gestionis
 314 chapter six
and involve assets that do not serve the foreign states 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-states enforcement of judg-
ments 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 offi-
cial functions of the diplomatic representation of a foreign state within the forum-
state. Despite their partial codification in the Vienna Convention on Diplomatic Re-
lations, 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 execu-
tion 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, at-
tachment or execution: the missions premises, its furnishings and other property
thereon, and the missions means of transport. . . .
4. a. . . . It need not be examined here whether the receiving state is bound by cus-
tomary 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
states embassy. If, however, the receiving state permits this and the sending state
makes use of the possibility within the framework of the receiving states legal sys-
tem, then the sending states immunity extends to its funds and other rights associ-
ated with the account. Th is status cannot be changed simply because the sending
states legal relationship to the bank is treated as a nonsovereign act by the receiving
states 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
 Jur isprudence of the Open State 315
its diplomatic functions or the maintenance of the operations of its diplomatic mis-
sion 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 states
legal system. It is largely dependent on the receiving states legal system. Should the
receiving states 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 embassys expenses and costs through a general current account maintained by
the sending state with a bank in the receiving state belongs directly to the mainte-
nance of the sending states 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 states claims connected with such an account enjoy the immunity, applica-
ble 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 inter-
national 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 interna-
tional law between states. But it does not establish or change subjective rights or du-
ties 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 individuals subjective right to have judgments executed
against foreign states within the national territory of the Federal Republic of Ger-
many to the extent that customary international law permits it. It also does not estab-
lish a subjective duty on the part of foreign states regarding the execution of judg-
ments 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 iden-
tified 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 proceed-
ings or the nature of an enforcement measure may be admissible or inadmissible. The
Federal Constitutional Courts 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.

 316 chapter six
Assessing Germanys 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 Courts
clear reiteration of the constitutional command that the customary international
law rule once its existence has been confi rmed by the Courtis 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 juris-
diction over the dispute, despite the fact that the ordinary provisions of the Ger-
man Civil Code (Brgerliches 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 regimes 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 in-
strument 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 Courts Article 25 jurisprudence do not establish monisim
with respect to custom, then it implements an exceedingly accommodating vari-
ant of dualism.19
The Federal Constitutional Court strongly reaffi rmed the German legal systems
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 politi-
cal decision, taken during reunification, not to return to the original owners the
property that had been expropriated following the war by the Soviet occupying au-
thority. 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 de-
scribed 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 inhabit-
ants 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 constitutions 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 ex-
isted 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
 Jur isprudence of the Open State 317
prominent role the Basic Law assigns to custom. Accepting customs 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 complain-
ants relief on the basis of an asserted customary rule of international law, the
Court nevertheless articulated a sweeping commitment to the open state. For ex-
ample, the Court considered on the merits the complainants argument nonresti-
tutions (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 con-
stitutional order. Sometimes characterized as Germanys 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 Laws
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 Courts silence in response to the suggestion that the
open state might be a part of the unamendable core of Germanys constitutional
identity raises the possibility that it would agree with this view if required to de-
cide 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 re-
quires 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 third-
party 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 Laws commitment to an open state an affi rmative duty on the part of German
lawmakers to provide remedies for the German states 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
 318 chapter six
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 in-
ternational law violation in the respective domestic death penalty cases.27 In the Su-
preme Courts rigidly conceived dualist paradigm, the impact of the international
law violations identified in the cases was limited to Americas 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 Courts framework for Germanys constitu-
tional openness to international law is nothing short of extraordinary. It sees in the
Basic Laws commitment to the open state a German obligation to prosecute, in
certain circumstances, other states violations of international law. The limiting
clausein certain circumstancessurely 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 Spains Baltasar Gar-
zn.28 It is astonishing that the Court would even articulate this possibility. In doing
so, the Court reversed the function of the Basic Laws commitment to the open state.
Up to this point the open state created an inward flow, opening up the German do-
mestic legal order to international influence. But this suggests an outward flow, with
the domestic constitutional mandate of the open state potentially (and only in cer-
tain circumstances) serving as the justification for German disregard of other states
sovereign prerogatives. Finally, as a component of the frameworks 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 con-
troversial, 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 cus-
tom, however the Basic Law provides for their incorporation into the German do-
mestic 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 interna-
tional 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 constitu-
tional law.30

Constitutional Openness and International Tribunals. As mentioned earlier in

this chapter, in the Grgl Case the Court exercised some restraint with respect
to the domestic legal significance of treaties. As withcustomary international law,
treaties enjoy only a supervised binding effect in Germany. In Grgl the Fed-
eral Constitutional Court also had to decide whether a decision by an interna-
tional 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 Laws
confl icting commitment to cosmopolitanism and sovereigntism.

6.3 Grgl Case (2004)

111 BVerfGE 307
[While legally residing in Germany the Turkish citizen Kazim Grgl fa-
thered a son with a German woman in 1999. Grgls 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 Wit-
tenberg issued a judgment giving Grgl the right to have contact with his
son. Th is judgment was quashed by the Higher Regional Court (Oberlandes-
gericht) of Naumburg an der Saale, which ruled that denying Grgl visita-
tion rights served the childs welfare. Grgls 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 block-
ing the order denying him visitation rights was rejected by the Higher Regional
Court. In 2001 Grgl 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
Grgls favor, fi nding Germany in violation of its obligations under Article 8.
Accordingly, the District Court of Wittenberg granted Grgl 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
Courts judgment violated Article 6 of the Basic Law and the constitutional
state principle, Grgl fi led his second constitutional complaint with the Fed-
eral Constitutional Court in 2004. The Constitutional Court sustained Grgls
complaint. But in doing so it sent confl icting signals regarding the force the
European Courts judgments have in Germany.]

 320 chapter six
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 complainants case, it did not pay sufficient
attention to the European Courts 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, im-
poses 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 obliga-
tions 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 ac-
count 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 courts 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 Courts judgments are binding on the parties to the pro-
ceedings 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 exam-
ine their domestic legal systems and, if it appears that an amendment may be neces-
sary, 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
 Jur isprudence of the Open State 321
Convention only provides that the state party involved is bound by the fi nal judg-
ment 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 dis-
pute, 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 Conven-
tion if it fails to terminate or repeats the conduct that has been declared to be a vio-
lation. . . . Nevertheless, it should be recognized that the effect of the decision re-
lates 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 Germanys
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 instru-
ment for the protection and enforcement of par ticu lar human rights. The states par-
ties 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 ef-
fective 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 Courts 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 Euro-
pean Court and the enforcement of such a decision in disregard of higher-ranking
 322 chapter six
law, might violate fundamental rights in conjunction with the constitutional state
principle.
. . . If, in concrete application proceedings involving the Federal Republic of Ger-
many, the European Court establishes that there has been a violation of the Conven-
tion, and if this is a continuing violation, then the European Courts 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 understand-
ably 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 vi-
olation of the Convention results from the implementation of a specific administra-
tive 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 domes-
tic courts to conform their judgments with the judgment of the European Court es-
tablishing 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 authori-
ties, including courts, might take account of the European Courts decisions.
First, as a result of the treaty consent requirement of Article 59 (2), the Conven-
tion enjoys the status of federal legislation. Domestic authorities would have to
be aware of the European Courts 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. Sec-
ond, the Court acknowledged its efforts to harmonize the Basic Laws funda-
mental rights and the Conventions international human rights regime. Har-
monization, said the Court, aims for a joint European development of
fundamental rights (gemeineuropische Grundrechtsentwicklung). In pur-
suit of that goal, the Court concluded that some constitutional challenges
asserting violations of German fundamental rights also might constitute de-
partures from the harmonized European rights system, which must be under-
stood in light of the European Courts decisions. The Constitutional Court
then ruled that, under certain circumstances, German courts have a duty to
take account of the European Courts decisions.]
 Jur isprudence of the Open State 323
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 Euro-
pean Courts 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 com-
plainant are, in principle, protected by Article 6 of the Basic Law. . . . The Higher Re-
gional 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
Republics obligations under international law.
Here it is of central importance that the Federal Republic of Germanys 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 com-
plainant 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 Conventions guarantees
and the European Courts case law when interpreting fundamental rights and consti-
tutional guarantees.

In Grgl the Constitutional Court identified a range of possible impacts the Euro-
pean Courts 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 obliga-
tion, 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 Euro-
pean Court judgment would be the controlling rule of decision in any proper, domes-
tic rehearing of the case that originally gave rise to the human rights complaint. But
out of concern for the integrity of Germanys 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 Constitu-
tional Courts dualist approach to the incorporation of treaty commitments because
it narrowed the force of the Convention (and its interpretation by the European
Court) to Germanys external, inter se duty to the states party to the Convention. In
 324 chapter six
fi nding that the European Courts 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 Euro-
pean Courts judgments relates only to the parties to the dispute. Distinguishing
these decisions from the precedential force the fcca gives to its decisions, the Con-
stitutional 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 Courts judg-
ments stirred discontent. For some constitutional law scholars and proponents of
European integration, the Constitutional Courts conclusion that the ordinary
courts only need to take account of the European Courts judgments was a grave
disappointment.31 Grgls 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 Grgl, clearly signaling its intent to meaningfully
police this aspect of Germanys constitutional openness to international law. The
Court has not shied away from enforcing this duty (Bercksichtigungspfl icht) in the
years since.33
Some see the Constitutional Courts cautious attitude toward the European Court
of Human Rightsinsisting that its decisions be considered without making them
directly enforceable by German courtsas having created the possibility (or neces-
sity) 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 Germanys preven-
tive detention policy.
Pursuant to German criminal law, preventive detention (Sicherungsverwahrung)
permits executive branch authorities to commit especially dangerous criminals to ex-
tended terms of detention upon the completion of their prison sentences. In 2004 the
Federal Constitutional Court sustained the retroactive imposition of preventive deten-
tion.35 The European Court, however, saw at least two violations of the European Con-
vention 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 imple-
mented preventive detention, the European Court thought the policy amounted to
nothing more than an a extrajudicial extension of the inmates criminal punishment
and, thus, a violation of Article 5 (1) [a] of the European Convention.38
When faced with the inmates request for immediate release from preventive deten-
tion on the basis of the European Courts judgment, the Constitutional Court demurred.
Because Grgl 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 detainees 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 ordi-
nary courts began to produce divergent results in challenges to preventive detention,
 Jur isprudence of the Open State 325
with some striving to take account of the European Courts 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 preven-
tive detention regime to be unconstitutional.41 The substantive basic rights facets of
the Second Senates decision are discussed alongside our consideration of other lib-
erty protections in Chapter 7. Regarding the Constitutional Courts open state juris-
prudence, it is only necessary to note that, for the most part, the Court reaffi rmed the
precarious balance it sought to establish in Grgl. The Constitutional Court was at
pains to emphasize that the German constitutional order retained its priority over Eu-
ropean human rights law, even as the Court acknowledged a pan-European harmoni-
zation of basic rights guarantees. In the German constitutional context, the Court
explained that harmonizationnot to mention the substantive force of European
human rights lawwould 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 interna-
tional law. Th is approach is another example of the Constitutional Courts perhaps
valiant attempt to square the Basic Laws twin commitments to international inte-
gration and an enduring German constitutional sovereignty. In each of the spheres
in which constitutional law encounters international lawconstituting the state,
the domestic effect of substantive international norms (whether treaty or custom),
and the domestic effect given to judgments of international tribunalsthe result of
the Constitutional Courts 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 Laws framers imagined a
form of international integration that would go far beyond traditional international
law. The Basic Laws preamble envisions Germany as an equal partner in a united Eu-
rope. 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 differentand more
completeopenness, necessitating even greater vigilance from the Court in its ef-
fort to preserve the sovereignty secured by the Basic Law. In resolving the distinct
 326 chapter six
problems raised by the tension between the supranational and the domestic exercise
of authority, the Court has guided Germanys deep integration into European gover-
nance while, at the same time, repeatedly insisting on constitutional limits to that
process.42

Solange I. Two factors featured prominently in the Constitutional Courts Solange I

Case (1974),43 in which it imposed constitutional limits on Germanys integration
into the European system. First, the Court expressed concern about the European
projects untested novelty and institutional immaturity, both of which were mani-
fested 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 Com-
munity possesses an independent system of law flowing from an autonomous
legal source . . . [that is] a sui generis community in the process of progressive in-
tegration. 45 On this basis it might not be surprising that the Constitutional Court
was particularly concerned with Eu ropes early-stage development and its promi-
nent lack of a democratically legitimate parliament directly elected by general
suff rage.
Second, the Courts 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 re-
spects 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 Courts Second Senate concluded that Germanys 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 consti-
tution, to enforce the newly articulated restrictions on European integration. The
responsibility undertaken by the Constitutional Court in Solange I opened an ami-
cable rivalrysome prefer to call it a cooperative relationshipbetween the Con-
stitutional Court and the European Court of Justice.49 In the litigation leading to the
Constitutional Courts 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 ef-
fect, whether a rule of Community law is compatible with the Basic Law.50 The inter-
action between these two respected European courts, sometimes rather tense, is a
central feature of the Constitutional Courts European jurisprudence.
Europe took a dynamic turn in the years following the Constitutional Courts So-
lange 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 com-
petences. The European judicial infrastructure was expanded and refi ned. The time
was ripe for the Constitutional Court to reassess Europes democratic integrity and
respect for fundamental rights, the bases for the Courts earlier reservations about
the extent of Germanys European integration.

6.4 Solange II Case (1986)

73 BVerfGE 339
[The complainant was in the business of importing mushrooms from non-
European 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 Fed-
eral Administrative Court enforced the European regulation against the com-
plainant and dismissed the complainants request to have the constitutionality of
the European Courts 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 Justices interpretation of the European regulation.
 328 chapter six
Recalling the promise of Solange I, the complainant believed that such a
confl ictbetween fundamental rights guaranteed by the Basic Law and sec-
ondary Community lawnecessitated the Constitutional Courts review. The
Federal Administrative Court, the complainant asserted, violated constitu-
tional rights to a proper judicial process by relying on the European Courts
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.]

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 courta sovereign judicial organ established by
the Community Treatiesand, thus, a lawful court within the meaning of
Article 100 (1). The European Courts 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 Republics
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 Ar-
ticle 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 ques-
tion of international laws 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 institutionsand the law established by those insti-
tutionsto be accorded priority over the Federal Republics national law. Th is is
constitutional if the prioritization of the international law is achieved by the appropri-
ate 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-
 Jur isprudence of the Open State 329
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 iden-
tity of the prevailing constitutional order of the Federal Republic. Th is identity con-
sists of the Basic Laws 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 constitutions
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 prin-
ciples underlying the Basic Laws fundamental rights guarantees. Subject to some
conditions, Article 24 (1) of the Basic Law permits these legal principles to be guar-
anteed according to their context. If sovereign power is transferred to an interna-
tional 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 Com-
munity law and institutionsincluding the standard of fundamental rights under
Community law and generally binding within the European Communitiesdid 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 im-
posed 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 con-
clusions 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, estab-
lished by general suff rage, and possessing legislative authority that would make the
Communitys 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 Justices 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 integra-
tion, 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 Commu-
nity law lacked a cata logue of fundamental rights . . . adequately comparable with the
 330 chapter six
cata logue of fundamental rights contained in the Basic law, . . . . The Constitutional
Courts 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, sub-
stance, 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 ex-
ercise 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 Commu-
nity 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 deci-
sions 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 Euro-
pean 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 Jus-
tice. 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 Courts attitude toward the Communitys funda-
mental 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 protec-
tion of fundamental rights, in the meantime, has achieved practical significance in
the European Courts application of Community law.
f. In view of these developments it must be held that, so long as [solange] the Eu-
ropean 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 second-
ary 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 Ger-
many. 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 funda-
mental 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 funda-
mental rights, . . .
III. Th is judgment has been reached unanimously.

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 Courts retreat from its frontline patrols along the border between Eu ropes
supranational authority and Germanys constitutional identity. While the Court
clearly did not surrender its right to monitor the Basic Laws openness to suprana-
tional powerjurisdiction it secured for itself in Solange Iit was satisfied that it
would not have to exercise its review so long as (solange) Europes enhanced de-
mocracy 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 Courts 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 Courts Solange II
decision, the European Parliament played no affi rmative role in enacting secondary
Community law. The Commission of the European Community proposed legisla-
tion 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 Parlia-
ment 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 legisla-
tion, could not dispel the view that other, less popularly accountable institutions
dominated the European legislative process. Th is democratic deficit, notwith-
standing the Constitutional Courts 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 Communitys 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 free-
dom 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
 332 chapter six
point to a codified cata logue of European Community fundamental rights.54 In-
stead, as the basis for its optimism in Solange II, the Court relied on the emerging ju-
risprudence 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 Commu-
nitys core economic freedoms could not be conceptualized apart from other classi-
cal liberties.55 But this could not have been the reassurance the Constitutional Court
was looking for in Solange I. First, despite the European Courts long-standing insis-
tence that fundamental rights derive from the Communitys 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 pro-
tections. 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 rights limitations laid down in accordance with the public interest . . . limits
justified by the overall objectives pursued by the Community.56
What explains the Courts mollifying stance in Solange II? Above all, it is neces-
sary to remember that the Courts 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 Germanys foundational com-
mitment 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 Republics founders and fi rst generation of political
leaderson both ends of the ideological spectrum.59 But that official dogma, per-
haps less strong today than in earlier eras, elides the fact that many well-meaning
Germans have been less enthusiastic about the European projects erosion of Ger-
man national sovereignty. Solange I was a startling reminder of the existence of this
persistent, although usually muted, skepticism. Indeed, the whole of the Constitu-
tional Courts European jurisprudence must be seen as thrusts and parries in this
heated, ongoing debate. Th is division already was apparent in Solange I. The sover-
eigntists ascendance in that case was achieved by a 53 votethe barest of majori-
ties on the Courtand 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 Senates membership.

From Community to Union. The German debate over national sovereignty and Eu-
ropean integrationpositions largely advanced through arguments over how to in-
terpret the Basic Laws openness to the transfer of sovereign power to Europewas
fanned by Europes 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-
 Jur isprudence of the Open State 333
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 institutionsParliament,
Commission, and Councilthe 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 num-
ber 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 elec-
tions. 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 exten-
sive intergovernmental cooperation, involving a breathtaking range of subjects tradi-
tionally understood to be at the core of a states sovereign power.
The Bundestag and Bundesrat ratified Germanys 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 federations transfer of sovereign
power to the European Union, and enhances the Bundestags right to participate in
the national decision-making process concerned with European matters. Beyond
this, Article 23 also requires the federation to consider the Bundesrats opinion on
European policy when the vital interests of the Lnder 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 estab-
lished by the Basic Law, must conform to paragraphs 2 and 3 of Article 79, respec-
tively requiring a formal amendment to the Basic Law (and concomitant Bundestag
approval) and barring any infringement of its unalterable principles. Th is constitu-
tional 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 Con-
stitutional Court has interpreted this doctrine, it limits Germanys 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 ropes 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 doc-
trine 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
 334 chapter six
Article 24 (1) had been the main constitutional driver of Germanys European in-
tegration. The newly minted, more detailed Article 23 would now shoulder that re-
sponsibility. But a new paragraph (1a) was added to Article 24 in 1992. Th is new pro-
vision authorized the Lnder to transfer, with the federal governments 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 Germanys Federal Bank to transfer its duties and functions to a Euro-
pean Central Bank (Article 88).
The Maastricht Treaty did not settle the fundamental political and jurisprudential
debate over the proper extent of Germanys integration into Europe, despite the ex-
panded and more detailed commitment to constitutional openness achieved by Ar-
ticle 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 de-
prive 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 pub-
lic 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 Germanys 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
policiesnot to mention the Unions alleged capacity to determine its own compe-
tence in certain fields (what is known as competence-competence [Kompetenz-
Kompetenz])virtually transformed the Eu ropean Union into a supranational
federal state capable of eroding Germanys constitutional order. On the matter of
democracy, they argued that the transfer of decision-making powers to Union
bureaucratscompounded by the Eu ropean Parliaments limited authorityran
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 Lnder in the German governmental system.
In the Maastricht Treaty Case, the battle between sovereigntism and
cosmopolitanismcast in the distinct mold of the European Unionagain was joined
before the Constitutional Court.67
 Jur isprudence of the Open State 335

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 Treatys 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, sepa-
ration of powers, federalism, and national sovereignty. In the landmark por-
tions 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 Eu-
rope is a Staatenverbund and not a Staatsverband or Bundesstaat.]

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 resolu-
tion they passed at Edinburgh on 1112 December 1992, the heads of state who are
united in the European Council resolvedin the context of the Maastricht
Treatyof 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 re-
sponsibilities 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
 336 chapter six
Treaty is one that will lead toward further integration. But, in fact, the actual inten-
tion 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 ef-
fects within Germanys sovereign sphere only when a German decree governing ap-
plication 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 commit-
ment to the Maastricht Treatya 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 Unions 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
Unionadopted for the purpose of its implementationthe Bundestag contributes
to the process of forming the federal governments 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 governments 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 par-
ties into contact with the federal governments European policy, and therefore be-
comes 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 Euro-
pean 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 pro-
posals made by the Commission, so that the parliaments may examine such
proposals.
 Jur isprudence of the Open State 337
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 regula-
tions 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 Communitys powers. The Eu ropean Coun-
cil, which met in Edinburgh on 1112 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 require-
ment 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 individ-
ual 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 al-
ready 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 pri-
mary 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 subsid-
iarity principle determines whether and how the Community may act. If the Com-
munity 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 Euro-
pean Court to scrutinize, the national identities of the member states are to be pre-
served and their powers to be retained. How far the subsidiarity principle will coun-
teract 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 Communitys real legislative body. It is
there that the federal government has to assert its influence in favor of a strict treat-
ment 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 Germanys internal political in-
tentions established by Article 23 (3) of the Basic Law, to have an effect on the Coun-
cils practices and to exercise an influence on them within the terms of the subsidiarity
 338 chapter six
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 con-
ceptual 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.

Maastrichts Meaning. In its result, the Courts 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 Germanys 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 Senates rappor-
teur for the case, held strong sovereigntist views.68 Largely attributable to his influ-
ence, despite the general holding of the case, Maastricht was a significantly qualified
victory for European integration. For example, even the Courts adherence to the
relatively pro-European Solange II doctrinewhich it used to justify the dismissal of
the rights-based complaintshad a sharp sovereigntist edge. In Solange II the Court
ruled that it could review secondary European law to ensure its conformity with the
Basic Laws fundamental rights regime. In Maastricht the Court saw no reason to re-
visit this rule despite the fact that the new treaty, at last, formally referred to Europes
commitment to protecting fundamental rights.69 Furthermore, the right of review
which the Court agreed to leave dormant in Solange IIwas 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 Germanys 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 Germanys
representative democracy via general, direct, free, equal and secret elections. Rely-
ing on the democratic state principle, the Court established two new lines of doc-
trine 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.
 Jur isprudence of the Open State 339
Th is was necessary, the Court explained, because European democracy remained in-
adequate and could not satisfy the Basic Laws guarantee of popular sovereignty. De-
scribing this part of the Courts 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 Europes 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 be-
cause Europe possesses only those competences conferred on it through the demo-
cratically legitimated treaty ratification processes that take place in the member states.
To acquire power for itselfmost troublingly through what the Federal Constitutional
Court regarded as the European Courts judicial activismwould circumvent this es-
sential democratic feature of the European integration process.71 Significantly, unlike
the right of review for fundamental rights protection that the Court reaffirmed but si-
multaneously 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 doctrinesthe Courts new ultra vires reviewadvanced the sov-
ereigntist view that Europe should remain a Staatenverbund over which the member
states would remain the masters of the treaties (Herren der Vertrge).72
The fi nal sovereigntist aspect of the Maastricht Treaty Case was its heavy emphasis
on the principle of subsidiarity. Craig and de Brca called subsidiarity the panacea,
to which those suspicious of deeper European integration fastened their hopes of
checking the Maastricht Treatys federalist leanings.73 Europes faithful practice of
subsidiarity, the Constitutional Court explained, also protects against European
centralizationwith its attending harm to Germanys democratic state principleby
imposing modesty on European policy making. According to the principle of subsid-
iarity, 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 actionas a matter of scope and effectis
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, how-
ever, the treaty only required respect for subsidiarity when Europe exercises its ex-
clusive competences. The political expectations for subsidiarity far exceed this lim-
ited de jure role for the principle.

After Maastricht. For all its sovereigntist hand-wringing, the Constitutional Courts
fundamental decision in Maastricht, permitting Germanys participation in the en-
hanced 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, centralizingand seemingly irreversiblemomentum. Perhaps as a con-
cession to this, and with the forces favoring European integration again ascendant in
 340 chapter six
the German debate, the Constitutional Courts subsequent European jurisprudence
was more accommodating of European integration.
In the Euro Case (1998),75 for example, the Court rejected challenges to Germanys
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 Germanys 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
euros implementing measures were framed, despite its earlier suggestion that civil
societys involvement in policy makingcontingent upon predictable and compre-
hensible processeswas as important a part of the democratic state principle as
general, direct, free, equal and secret [parliamentary] elections. But these pre-
legal requirements for democracy, the Court concluded, cannot be grounded in Ar-
ticle 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 practi-
cally foreclosed its long-dormant right to review secondary European legislation for
its fundamental rights integrity. Th is had been the centerpiece of the Courts Euro-
pean jurisprudence, established in Solange II and reaffi rmed in Maastricht. In a case
reminiscent of Solange IIdealing with importers who alleged that European regu-
lations had infringed their right to propertythe Court now held that such chal-
lenges to European law, asserting its incongruence with the Basic Laws 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 struc-
tural, revealing the European Courts 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 implement-
ing legislationthe European Arrest Warrant Acton 21 July 2004. The European
Arrest Warrant (eaw), valid throughout the European Union, sought to simplify ex-
tradition procedures for suspected criminals within the European Union. It was de-
signed 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
 Jur isprudence of the Open State 341
sent from one national judicial authority to another, thus bypassing ordinary extra-
dition review by the extraditing states 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 Darka-
zanli, a German and Syrian national, fi led a constitutional complaint to challenge his
extradition to Spain for criminal prosecution. Spanish authorities had accused Dark-
azanli, the owner of an import-export business, of participating in Al-Qaedarelated
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 Darka-
zanli and requested his extradition to Spain for prosecution. Relying on the Euro-
pean Arrest Warrant Act, on the basis of the Spanish legal proceedings, Hamburgs
Higher Regional Court issued an arrest warrant and granted the request for extradi-
tion. 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 com-
plaint was both inadmissible and unfounded on the ground that legislation giving
force to a European Union framework decision, like the secondary European Com-
munity legislation at stake in Solange II, was prima facie unreviewable.
In a rare, fractured decision, a majority of the Constitutional Courts Second Sen-
ate ruled the complaint admissible and then credited Darkazanlis 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 sta-
tus of law arising out of the third pillar of the European Union.78 The Courts previ-
ous European jurisprudence involved legislation or court decisions giving effect to
fi rst pillar norms, that is, secondary law enacted under the authority of the Euro-
pean 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 re-
fers to the long-standing Communities (European Coal and Steel Community, Eu-
ropean Atomic Energy Community, and most prominently the European Economic
Community). The Maastricht Treaty refashioned these three as the European Com-
munity, encompassing the common market and Europes deep integration on eco-
nomic, commercial, and monetary policy. The second and third pillars, newly estab-
lished 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 pil-
lar was devoted to police and judicial cooperation in criminal matters. Combining
judicial cooperation and criminal matters, the European Arrest Warrant was prop-
erly a subject of the European Unions third pillar.
The European Arrest Warrants basis in the European Unions third pillar was cen-
tral to the majoritys conclusion that the Bundestag had violated the Basic Law in enact-
ing 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
 342 chapter six
Court of Justice, the majority found that a framework decisions distinct, quasi-
legislative 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 intergovernmen-
tal commitments to harmonize domestic policy and law in a manner that fully em-
braces local discretion.
The formalist distinction drawn by the Courtbetween fi rst pillar legislation and
third pillar framework decisionshad two consequences. First, the discretion ac-
corded member states in concretizing framework decisions is meant, in part, to per-
mit them to implement the respective European policy without running afoul of do-
mestic 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 Courts 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 Courts
majority, the European Arrest Warrant Act did not provide proper recourse to Ger-
man judicial process to contest discrete extradition scenarios.81 The Courts 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 majoritys insistence on the distinction between Eu ropean Commu-
nity 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 Courts ma-
jority seemed resigned to giving integration under the commercial and economic
orientation of the Eu ropean Community greater respect because that much-
advanced (albeit, constitutionally limited) project had achieved the unique, sui ge-
neris 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 intergovern-
mental cooperation, did not aspire to something so comprehensive. One risk raised
by this model, said the Courts 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 Ger-
mans, have extensive participation), but to the standards set by each independent
member state. Eu ropean integration on this track, the Courts majority concluded,
would have to proceed under the Bundestags strict and continuing scrutiny. And,
in turn, the Constitutional Court would monitor closely the Bundestags exercise of
that scrutiny.83
 Jur isprudence of the Open State 343
A Eu ropean Constitution and the Lisbon Treaty Case. In the European Arrest
Warrant Case the Courts majority resorted once again to the limits on Eu ropean
integration that, in its jurisprudence on the constitutions openness to Eu rope, it
attributes to the Basic Laws democratic state principle. Eu ropes authority and
development, the argument goes, must be kept squarely within the terms of the
treaties. Anything else would avoid the Bundestags right to ratify (or reject) each
successive step in Eu ropes deepening integration and thereby undercut the Basic
Laws fundamental decision that all sovereign power derives from the demo-
cratically legitimized will of the people. The democratic state principle, the Court
has said, constitutes a part of Germanys unamendable constitutional identity
that must be protected against the Basic Laws 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 ever-
closer 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 es-
tablishment of the European Union, prompted Federal Constitutional Court justice
Dieter Grimm to famously pose this question: Does Europe need a constitution?85
The Constitutional Courts caution toward unfettered European integration gave
Grimms reticence exceptional gravity. In a widely discussed speech delivered at
Humboldt University in Berlin in May 2000, German foreign minister Joschka Fischer
answered Justice Grimms 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 parlia-
mentarization 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 Jrgen Habermas influen-
tially argued that, more than a concrete constitution, Europe needed a formal consti-
tutional process as the way to nurture the constitutional prerequisite of a shared Euro-
pean 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 Valry Giscard dEstaings constitutional draft ing convention; the triumphal
endorsement of the constitutional treaty by European heads of states and govern-
ments in Rome in 2004; and the treatys 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
 344 chapter six
Treaty that was signed on 13 December 2007. The Lisbon Treaty, although aban-
doning constitutional pretensions, implemented most of the reform to the sub-
stance of Eu ropean law and to the Eu ropean Unions 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 ro-
pean Convention on Human Rights. Nearly thirty-five years after the Federal
Constitutional Court expressed its concern about Eu ropes inadequate rights pro-
tections 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 ropes competences. In fact, to be actionable, they re-
quire a Eu ropean Union element. In light of these limits, the Lisbon Treatys incor-
poration 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 Lis-
bon Treaty rationalized and streamlined governance for a Eu ropean Union now
consisting of twenty-seven member states. The treaty created a permanent Presi-
dent 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 com-
petences, and some of its existing intergovernmental competences (under the sec-
ond 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 along-
side 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 inte-
grate 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 propor-
tionality grounds by offering a reasoned opinion to the Eu ropean institutions.
The national parliaments also were given the authority to bring subsidiarity ac-
tions 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 Unions new capaci-
ties 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 Eu-
ropean policy making. Predictably, these acts were challenged before the Federal
Constitutional Court pursuant to its Organstreit and constitutional complaint
jurisdiction.89
 Jur isprudence of the Open State 345

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 Extend-
ing and Strengthening the Rights of the Bundestag and the Bundesrat in Euro-
pean Union Matters infringed, inter alia, the democratic state principle (Arti-
cle 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 Bunde-
stag and the Bundesrat to lodge a reasoned opinion with the European Parlia-
ment, Commission, and Council concerning Europes compliance with the prin-
ciple of subsidiarity (subsidiarity objection); bring an action before the European
Court of Justice challenging a European acts compliance with the principle of
subsidiarity (subsidiarity action); and make known their opposition to Euro-
pean Union draft legislation. The Constitutional Court ruled the challenges
unfounded with respect to the ratification of the Lisbon Treaty and the amend-
ments to the Basic Law. But a majority of the Court thought the act empower-
ing the Bundestag and the Bundesrat had not given those organs a sufficient
role in European policy-making and treaty-amending procedures. Thus, Ger-
manys 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.]

Judgment of the Second Senate. . . .
C. I. Insofar as they are admissible, the constitutional complaints are partially well-
founded. 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 deci-
sion, 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 constitu-
tional 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 Germanys
contribution to a peaceful international order. Therefore, not only the general prin-
ciple of an open state, but also the more specific principle of openness toward Euro-
pean law, applies. . . .
 346 chapter six
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, long-
term association of states that remain sovereign; a treaty-based association that exer-
cises 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 organsin 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 constitu-
tionally significant tension with both the principle of conferred powers and the indi-
vidual member states constitutional responsibility for integration will result. If legis-
lative or administrative competences are transferred in an unspecified manner or
with a view to further dynamic development, or if the European institutions are per-
mitted to redefi ne their authority expansively, fi ll lacunae with respect to, or factu-
ally extend competences, then the risk of transgressing the predetermined integra-
tion 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 integra-
tion 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 inter-
preted, 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 pro-
visions 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 agreementand
the accompanying national lawsmust do two things. First, it must ensure that Eu-
ropean integration respects the principle of conferred powers, thereby depriving the
European Union of the Kompetenz-Kompetenz. Second, it must protect against vio-
lations of the member states constitutional identity, which is not open to integration.
For borderline cases, in the legislation accompanying the ratification of an amending
 Jur isprudence of the Open State 347
treaty, the German legislature must ensure that the Bundestags and Bundesrats re-
sponsibility 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 fed-
eral government in the oral hearing. Th is identity review would help preserve the
inviolable core of the Basic Laws 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 Constitu-
tional Court examines whether European legislation or acts keep within the bound-
aries 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 con-
junction with Article 79 (3), is respected. The exercise of this review power, which is
rooted in constitutional law, follows the principle of the Basic Laws openness to-
ward European Law. Therefore, it does not contradict the principle of sincere coop-
eration imposed by the European treaties. Absent this domestic judicial review there
is no other way to safeguard, against progressive integration, the fundamental politi-
cal 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 Courts exclusive
jurisdiction is necessary to preserve the viability of the Communitys legal order
while taking into account the legal concept expressed in Article 100 (1) of the Basic
Law and the Basic Laws openness to European law. It need not be decided here in
which specific types of proceedings the Federal Constitutional Courts 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 Lnder
(Article 93 (1) [3] of the Basic Law); and constitutional complaints (Article 93 (1)
[4a] of the Basic Law). Also conceivable, however, is the legislatures 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 procedurein
 348 chapter six
the relevant individual caseswould 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 condi-
tions. 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 orientationspolitical deci-
sions 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 exer-
cise of those sovereign powers. Increased integration may be unconstitutional if the
level of democratic legitimation is not commensurate with the extent and the impor-
tance of supranational power. So long as [solange], and insofar as, the principle of
conferred powers is respected in an association of sovereign stateswith clear ele-
ments of executive and governmental cooperationthe 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 abandon-
ment of national sovereignty, then a free decision of the people in Germany
beyond the present applicability of the Basic Lawwould be necessary. The demo-
cratic 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.

 Jur isprudence of the Open State 349
LisbonThe Open States Nadir? The Constitutional Courts holding in Lisbon was
modest. Germanys ratification of the Lisbon Treaty, with its sweeping centralizing
reform, had not been called into question. The Court only found fault with the ac-
companying 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 Ex-
tending and Strengthening the Rights of the Bundestag and the Bundesrat in Euro-
pean Union Matters. These organs were now required to give their approval in ad-
vance (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 anticli-
mactic conclusion. The Court discussed extensively the theory of democracy that is to
be realized by the Basic Laws democratic state principle, whether it serves to legiti-
mize domestic or supranational governance. Regarding the political question on
Europes 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
Courts insistence upon the outer limits of the sovereign power the European Union
might exercise, at least in the absence of dramatic constitutional change within Ger-
many. The civil society, or demos, essential to democracy, said the Court, still is cen-
tered on the nation-state, framed by a common language, culture, and history.
To protect Germanys constitutional identity, in Lisbon the Court also granted it-
self a new form of review over European sovereign actsincluding the decisions of
the European Court of Justice. Identity review, to which the Court already had al-
luded 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 en-
sures the primacy of European Union law only by virtue and in the context of the do-
mestic 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 Mar-
ket 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 his-
tory 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
 350 chapter six
close on the heels of Lisbon, Honeywell was the Courts chance to add some bite to its
many years of barking over the gradual drift of sovereign powersthrough the door
created by the Basic Laws opennessto 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 com-
plainant urged the Federal Constitutional Court to fi nd that the German labor
courts reliance on the European Courts alleged ultra vires judgment had violated its
contract and judicial process rights under the Basic Law. The complainant asserted
several reasons why the European Courts 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 recog-
nizing a directly enforceable fundamental principle of Community law, the judg-
ment must be seen as an inappropriate attempt by the judiciary to progressively de-
velop the law. Th ird, the European Courts 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 ofand not coun-
ter tothe Basic Laws fundamental commitment to an open state and Europa-
rechtsfreundlichkeit.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 over-
stepped 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 Courts ultra vires review. Th ird, the
European Court of Justice must be given an opportunity to assess the European in-
stitutions compliance with its treaty-based competences before the Federal Consti-
tutional 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 Lisbons decidedly sover-
eigntist tone. Th is, however, should not be interpreted as a dramatic shift in the Courts
posture toward Europe. In its rulings concerned with Germanys participation in the
European Unions 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 acquiescenceaccepting ever-more Europe
but without surrendering Germanys constitutional identity. For example, in its deci-
sion in the Greek Rescue Package Case (2011) the Court sustained the German law im-
plementing Germanys 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 Laws democratic state principle
 Jur isprudence of the Open State 351
(rooted in Article 38 (1) of the Basic Law and part of Germanys unamendable consti-
tutional identity) because it gave European institutions, and not the democratically
elected Bundestag, authority over Germanys massive budgetary commitments to the
initiatives (at their maximum, the contributions would be Germanys largest budget
item). Putting the worlds markets at easeand giving the global economy a momen-
tary reprieve from the persistent fear of a chaotic Greek defaultthe Court rejected
the complaints, thereby allowing Germanys 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 states functions and the people the state serves must have the au-
thority 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 Euro-
pean level on the basis of German credit guarantees. The Court concluded, however,
that the delegation of budgetary authority to the efsf was constitutional only be-
cause it complied with a number of democratic safeguards. Above all, it did not em-
power European institutions to make decisions about Germans tax burden and it
did not permit European institutions to automatically avail themselves of the Ger-
man credit guarantees. Instead, said the Court, the regime affi rmed the Bundestags
status as the master of such budgetary matters by requiring its continuous and re-
peated approval of decisions related to the externalization of its competence over the
budget. Second, and more fundamentally, the Court declared that the rescue initia-
tives conformed with Germanys treaty and constitutional commitments to a Euro-
pean 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 Mon-
etary Union.
These cases are representative of the Courts 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 Courts 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 Ger-
man constitutional sovereignty and identity in the European project, the Court has
not rushed to take up that role. Its detailed European doctrine seems more instruc-
tive than actionable. Instead, with each dramatic development in Europes integration,
 352 chapter six
the Court has given priority to the Basic Laws 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 Wagners four-part
Ring Cycle. One episode from Siegfrieds youth fi nds him pressed into arbitrating the
tensions between two brothers (the eponymous Nibelung and his brother Schil-
bung) 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 Euro-
pean 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 po-
litical objectives of the Federal Republic of Germany.97 In the light of the twentieth
centurys horrors and the twenty-fi rst centurys economic globalization, it is plain
that the Basic Laws commitment to an open state has moral as well as practical value.
The Court has enforced the aim of openness with determination, sometimes chart-
ing a course in waters previously unknown to constitutionalism.
But the clear lesson of the Courts jurisprudence is that there are limits to the states
openness. In some rare cases, those limits have been defi ned by the Federal Repub-
lics strategic interests, as framed in partisan or ideological terms. More frequently,
however, the Court has narrowed the prescribed openness out of respect for the sov-
ereign state, consisting of an unamendable core identity that is established by the
Basic Law. It may not easily fit with the constitutions 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 Laws nexus with
international law and European law will remain the heroic, if often messy, work of the
Constitutional Court.
 Part III
Basic Rights and Liberties

When the framers devoted the fi rst nineteen articles of the Basic Law (Grundgesetz)
to guaranteed rights and liberties, they consciously set out to underscore the pri-
macy of individual freedom on the scale of Germanys constitutional values. Articles
1 and 2 proclaim respectively the inviolability of human dignity and the rights to life,
physical integrity, and the free development of the human personality. On top of
these generaland most fundamentalrights of liberty the Basic Law guarantees
equality before the law (Article 3), religious liberty (Article 4), freedom of expression
(Article 5), parental rights (Article 6), educational rights (Article 7), freedom of as-
sembly (Article 8) and association (Article 9), privacy of posts and telecommunica-
tion (Article 10), freedom of movement (Article 11), occupational rights (Article 12),
the right to conscientious objection (Article 12a), inviolability of the home (Article
13), and the right to property (Article 14). Articles 15, 16, 16a, and 17 deal respectively
with the socialization of the means of production, with citizenship and extradition,
and with the rights of asylum and petition. Article 18 provides for the forfeiture of
certain basic rights if it is determined that they have been used to threaten Germa-
nys political democracy. Article 19 emphasizes the value of all guaranteed rights by
declaring that in no case may the state encroach upon the essence of a basic right.
These rights, however, have been proclaimed with an important German twist:
they are to be exercised responsibly and used to foster human dignity within the
framework of ordered liberty. The Basic Law reflects a conscious ordering of indi-
vidual freedom and the public interest. It resounds with the language of human free-
dom, but a freedom restrained by certain political values, community norms, and
ethical principles. Its image of the human person is one rooted in and defi ned by a
certain kind of human community. Yet from the perspective of German constitu-
tionalism, the person is a transcendent being far more important than any collectiv-
ity. Thus, there is a sense in which the Basic Law is both contractarian and communi-
tarian in its foundation: contractarian in that the constitution carves out an area of
human freedom that neither government, private groups, nor individuals may touch;
communitarian in the sense that every German citizen is under the obligation to
abide, at least in his or her overt behavior, by the values and principles of the moral
and political order. The Federal Constitutional Court (Bundesverfassungsgericht)
must both safeguard the values of the constitutional order and defend the rights of
individuals against governmental intrusion.
The cases in Part III have been selected for their importance in defi ning the mean-
ing of human dignity and personhood under the Basic Law. Both are among the
master values of the constitution. The scope of these values, along with the rights to
 354 Basic R ights and Liberties
personal autonomy and physical integrity, are illustrated, explained, celebrated, and
circumscribed in cases related to imprisonment, abortion, data-mining procedures,
and related concerns. Chapter 7 also includes a separate section on equality with a
heavy focus on gender discrimination and other forbidden legislative classifications.
In constitutional challenges to statutes, regulations, judicial decisions, or other state
practices, litigants often invoke the general value of equality in tandem with several
other rights provisions that figure more prominently in the Courts judgments. The
cases we have featured in this section were decided mainly on the basis of Article 3,
paragraphs 2 and 3, provisions that secure equal rights to men and women and list
other personal traits that may not be used to favor or disfavor persons or groups.
Chapter 8 takes up freedom of expression, with an emphasis on controversies aris-
ing out of judicial decisions favoring the victims of defamatory, offensive, false, or
insulting utterances that allegedly tarnish their reputations or diminish their privacy
or sense of personal honor. Here freedom of speech and of the press are usually
viewed and measured against the often competing values of dignity and personhood,
reemphasizing lines of thought running through many of the cases in Chapter 7 as
well as recalling themes sounded in the speech-related cases on political parties in
Chapter 5. A major portion of this chapter also features leading cases on the regula-
tion of radio and television stations and the critical role of the Federal Constitutional
Court in balancing the rights of broadcasters, both public and private, with the infor-
mational rights of the general public. The chapter concludes with materials on artis-
tic and academic freedom. Chapter 9 includes sections on the free exercise of reli-
gion, minority religions, and religious practices or symbols in public schools. It also
features cases on the church tax, church autonomy, and the status of religious socie-
ties under public law. A fi nal section deals with the rights of conscience in marriage
and family affairs and features cases on parental rights and responsibilities and the
changing nature of marriage and family, including the noteworthy Civil Partnership
Case of 2002 (no. 9.11).
Chapter 10, fi nally, takes up property and occupational rights, a subject far more
prominent in German than in contemporary American constitutional law because
the Basic Law confers on all Germans the right to freely choose their occupation and
place of work. Th is chapter embraces sections on the nature of the economic system,
the rights of property, and occupational and associational rights. It also includes a
special section on the property and occupational rights cases adjudicated in the
aftermath of Germanys reunification. The constitutional cases featured in this chap-
ter, like many of the cases on voting rights and political parties (Chapter 5) are impor-
tant because they implicate the principle of equality and illustrate the Constitutional
Courts approach to its interpretation. We believe that these reunification cases are
representative of, and portray the Courts struggle with, general constitutional issues
implicated by reunification.
 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 invio-
lable. 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 high-
est value of the Basic Law, informing the substance and spirit of the entire docu-
ment.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 classifica-
tions. 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) pro-
vides: 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 con-
stitutional 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), how-
ever, actually require the state to advance human dignity and gender equality, respec-
tively. Article 3 (3), only slightly less proactive, permits the state to promote the inter-
ests of the disabled.
 356 CHAPTER seven

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 con-
tested the fi ne in a constitutional complaint proceeding, contending that
thecompulsory 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 domi-
nates 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 recog-
nition 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 actionhowever value neutralthat tends to
inhibit the free development of ones personality because of the psychological pres-
sure 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], be-
cause such information is necessary for government planning.
[One] can regard a statistical questionnaire as demeaning and as a threat to ones
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 pri-
vate 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 individuals dig-
nity 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 lan-
guage 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 Councils main party groups (cdu, spd, and fdp) were united in
the proposition that human dignity, like other fundamental rights of personhood, is
 358 CHAPTER seven
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 reli-
gious 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 manipula-
tion, although non-Kantians such as Christian natural-law theorists would surely
share this view. Moreover, as the Mephisto Case shows, human dignity in the Courts
understanding may limit the exercise of artistic freedom that interferes with a dead
persons general right to respect. What is also clear from Mephisto and other deci-
sions 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 Me-
phisto, a satirical novel based on the career of his brother-in-law, Gustaf Grnd-
gens, 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 Grndgens personified the traitor par excel-
lence, the macabre embodiment of corruption and cynicism . . . who prosti-
tutes 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, Grnd-
genss adopted son secured from the Hamburg Higher Regional Court (Ober-
landesgericht) 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 pub-
lisher 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 bal-
ance the right to freedom of art against the human dignity clause of Article 1,
the constitutional provision raised in the deceased actors defense by his ad-
opted 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 rela-
tionships 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 in-
dividual right to freedom.
 Human Dignity, Personal Liberty, and Equality 359
1. . . . The essential characteristic of artistic activity is free creative shaping in which
the artists 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 man-
ner 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 de-
velop 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 reserva-
tion. 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 senates inter-
pretation 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 Laws 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 na-
tional 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 re-
ality, but also exists in the social world, an artists 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 Grndgens, the courts properly referred to Article 1 (1). It would be incon-
sistent 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
 360 CHAPTER seven
in this right to respect even if only after his death. Accordingly, the obligation im-
posed 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 ones 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 lib-
erty in Article 5 (3) [1], just as much as this guarantee is influenced by the value con-
ception of Article 1 (1). The individuals social right to respect and esteem is not supe-
rior to artistic freedom, but neither can art simply ignore the individuals claim to
proper respect.
Only after carefully weighing all the facts of individual cases can one decide
whether an artistic presentations 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, ap-
pears 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 ab-
straction 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 Grndgenss right to respect extends to the social
sphere. In this regard the Federal Court of Justice correctly considered that the need
for protectionand accordingly the obligation to protectdiminishes as the mem-
ory of the deceased person fades. . . . On the other hand, the courts also assumed that
Klaus Manns 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 Constitu-
tional 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 im-
plicated 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.]
 Human Dignity, Personal Liberty, and Equality 361
Finally, the complainant cannot challenge the conclusion of the courts . . . by ar-
guing that the ban on publication is disproportionate to the encroachment on the
late Gustaf Grndgenss right to respect. It is true that the Federal Constitutional
Court has repeatedly emphasized that the principle of proportionality has constitu-
tional rank and must therefore be considered whenever state authority encroaches on
the citizens sphere of liberty. But the instant case does not involve such an encroach-
ment. The courts simply had to decide a claim based on private law made by one citi-
zen 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 mod-
eled on the authors 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 novels por-
trayal 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 criti-
cal 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 mann-
Riem) objected to this standard, holding that its application could lead to unaccept-
able restrictions on artistic freedom.9

Images of Person and Polity. The Constitutional Courts dignitarian jurisprudence

contains numerous declarations about the nature of the human person and the pol-
ity. Indeed, this jurisprudence would be unintelligible without reference to the con-
cepts 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 politi-
cally significant sources of ethical theory in postwar GermanyChristian natural
 362 CHAPTER seven
law, Kantianism, and social democratic thoughtpresent 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 Courts 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 pro-
duce an integrated conception of the human person as an individual possessing spiri-
tual autonomy, whichin a properly governed societyis 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 commu-
nity (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 relation-
ship between individual and community in the sense of a persons dependence on and
commitment to the community, without infringing upon a persons 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 Lin-
colns 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 blan-
ket 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 Courts jurisprudence and the political theory of the Basic Law itself. The Courts
vigilant defense of personal freedom interlocks with the Basic Laws 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 in-
dividual, but also the promotion of goods such as communal relationships, family,
participation, communication, and civility.17 The Basic Law was framed not for indi-
viduals 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 personsparticularly those recently
deceasedremain in communion with the living, and the living owe them continu-
ing honor and respect.
 Human Dignity, Personal Liberty, and Equality 363
Th is highly personal conception of human dignity was the focal point of a consti-
tutional 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 Ameri-
can 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 Courts exten-
sive and confounding death penalty jurisprudence. In Life Imprisonment the Consti-
tutional Court considered an extensive literature as well as expert testimony on the
effects of life imprisonment on the prisoners 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 crimi-
nal activity. The defendant was charged under this statute. The Verden Regional
Court (Landgericht), before which defendant was to be tried, regarded the pen-
alty as incompatible with the dignity clause of Article 1, whereupon, pursuant
to the Courts 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 soci-
ety, and that the punishment thus confl icted with the legislatures obligation to
respect the human dignity to which every human being, even a criminal, is en-
titled. The ordinary court maintained that mandatory life imprisonment, offer-
ing 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 persons basic rights. Of all valid punishments in the cata logue of [criminal]
 364 CHAPTER seven
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 caseimplicates 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 lim-
ited by an act of Parliament. But Parliaments freedom to introduce legislation is
limited by the constitution in a number of ways. In exercising its powers the legis-
lature 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 ques-
tioned. 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 in-
human 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 maxi-
mum 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 imprison-
ment presents no constitutional problem. Only very recently did the First Senate of
the Federal Court of Justice with jurisdiction over criminal casesprobably
spurred on by the Verden Regional Courts referral of this question to the Constitu-
tional Courtventure to say: Life imprisonment for murder is compatible with
the constitution and conforms to the general legal outlook and to our existing juris-
prudence; 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 com-
patible 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 im-
prisonment 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.]
 Human Dignity, Personal Liberty, and Equality 365
Th is determination, however, does not clearly decide the constitutional issue be-
fore 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 impor-
tant in assessing the constitutionality of life imprisonment. New insights can influ-
ence 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 pro-
tection of human dignity. The free human person and his or her dignity are the high-
est 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 free-
dom within the meaning of the Basic Law is not that of an isolated and self-
regarding individual but rather that of a person related to and bound by the com-
munity. 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 communitys 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) de-
termines the nature of punishment and the relationship between guilt and atone-
ment. 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 ob-
ject 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) con-
sidered in tandem with the principle of the state based on social justice requires the
state to guarantee that minimal existenceespecially in the execution of criminal
penaltiesnecessary for a life worthy of a human being. If human dignity is under-
stood in this way, then it would be intolerable for the state forcefully to deprive [per-
sons 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 can-
not 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
 366 CHAPTER seven
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 imprison-
ment, 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 incar-
ceration 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 appropri-
ate 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 it-
self to the principle of social justice. The [prisoners] 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 van-
tage 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 con-
crete 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 pris-
oners 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 accept-
able as a matter of human dignity. . . .
A new trend was evident in the Justice Ministrys 1974 draft of the fi fteenth amend-
ment to the Penal Code. The draft provides that offenders sentenced to life imprison-
ment should have their records reviewed, with their consent, after they have served a
certain length of timethe 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, how-
ever, that incarceration for life is not always necessary to protect the common good.
 Human Dignity, Personal Liberty, and Equality 367
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 proba-
bility, 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 free-
dom is an extraordinary physical and psychological burden that could result in sub-
stantial detriment to the prisoners 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 the-
ory, which tries to bring all the purposes of punishmentthat is, rehabilitation,
retribution, atonement, and prevention of crimeinto a balanced relationship,
the Court rejected the district courts 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 disproportion-
ate 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 mur-
derer sentenced to life usually does have a chance to be released after serving a cer-
tain 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 responsibil-
ity, 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 threat-
ened 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 pun-
ishment within which the applicable court may ascertain the extent of punishment in
a concrete case in accordance with those considerations pertaining to the imposition
 368 CHAPTER seven
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 manda-
tory 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 sys-
tem of punishment may lead to unsatisfactory results in individual cases. The pre-
scription 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 consti-
tutional principle of proportionality. But as oral argument before this Court has
shown, when 211 of the Penal Codeparticularly the wanton cruelty and to con-
ceal another crime provisionsis 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 man-
datory. Narrower interpretations permitting proportionate sentences are permissi-
ble. Expert testimony and the aforementioned brief support this approach. It is ulti-
mately 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 constitu-
tionality of the decision is thus affi rmed.

Life Imprisonment and Its Aftermath. Life Imprisonment was not the first case to ad-
dress 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 con-
stitutional rights of prisoners and that such legislation would have to specify the pur-
pose 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 reha-
bilitate 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 so-
cial 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
offenders release from prison. Under the revised statute, courts may release an of-
fender 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 offenders guilt does not necessitate that
he continue to serve his sentence. In determining whether to release a person sen-
tenced 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
 Human Dignity, Personal Liberty, and Equality 369
lead a normal life outside prison.22 In the Penal Detention Case of 2006, the Court re-
affi rmed the importance of these considerations while also making clear that a pris-
oners 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 sen-
tence 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 re-
quired 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 ap-
proved the prisoners 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 of-
fender, notwithstanding the gravity and barbarity of the crime.25 Indeed, the Sec-
ond 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 per-
sonality, age, and prison record of the offender.

Youth Imprisonment and Resocialization. The Court again considered prison condi-
tions in the Youth Imprisonment Case (2006). German administrative regulations
governing youth imprisonment had subjected youthful offenders to disciplinary pro-
cedures and surveillance analogous to those imposed on adult prisoners. Young pris-
oners had been restricted in the exercise of rights over and above their denial of lib-
erty as such. In an enterprising opinion marked by boldness and sophistication, the
Second Senate ruled that youthful offendershere juveniles between the ages of four-
teen 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 administra-
tive, 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
 370 CHAPTER seven
As in Prison Correspondenceand in Life Imprisonment and War Criminalthe
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 biologi-
cal, 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 per-
sonalities 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 impor-
tance of counseling, leisure, physical activity, and continuing education to avoid ir-
reparable damage to the young offenders personality and to allow him or her to reen-
ter 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 con-
junction 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 differ-
entiating 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 Courts insistence
that the legislature base the implementation of youth prison reform on a careful analy-
sis 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 so-
cial and psychiatric studies of juvenile offenders as well as the research and recom-
mendations of legal scholars in the fields of criminology and penal reform. Consider-
ing 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 legislatures discre-
tion must be based on reliable evidence and exercised with due regard for constitu-
tional 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 Sec-
ond 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
 Human Dignity, Personal Liberty, and Equality 371
work claimed that he was being treated as an inmate in a slave labor camp in viola-
tion 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 prin-
ciple 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 (Lnder) had passed laws extending the confi nement of prisoners
sex offenders in particularwho 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 Laws 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 im-
permissibly retroactive. But the opinion also included strong reminders of the consti-
tutional 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 senates 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 incar-
ceration 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 re-
garded them as incompatible with the Basic Law for keeping sex offenders in preven-
tive detention without a comprehensive evaluation (Gesamtwrdigung) of their
condition. In addition, said the senate, an offenders refusal of treatment or therapy is
an insufficient reason for denying that person the liberty to which he or she is other-
wise 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 (Ab-
standsgebot) 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 be-
tween the Constitutional Court and the Human Rights Court on the issue of preventive
 372 CHAPTER seven
detention is addressed more fully in Chapter 6), the senate declared that any infringe-
ment 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 con-
tinuation of the proceeding against him would violate his fundamental right to
human dignity. Lower courts ruled against him. On appeal, Berlins 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 con-
cluded: 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. Germanys 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 dig-
nity.) 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 casesand those reprinted belowis 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 interpreters 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
 Human Dignity, Personal Liberty, and Equality 373
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 juris-
prudence often functions to limit or circumscribe specified liberty rights in the con-
stitution. 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 in-
mates to abandon their Christian beliefs in exchange for tobacco and other gifts. The
inmates 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 re-
nounce 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 Laws order of values, espe-
cially 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 free-
dom 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 im-
plicit in this concept of dignityor freedom. According to Tobacco Atheist, dignitar-
ian jurisprudence has evolved out of the Basic Laws general order of values, an
order of values that, in Zeidlers 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 Zeidlers view, the ritual incantation of these broadand
indeterminatestandards 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 in-
tegrity. Any articulation of an unborn childs 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 ones personality. In Abortion I
 374 CHAPTER seven
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. Sup-
ported 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 physi-
cian with the consent of the pregnant woman during the fi rst twelve weeks of preg-
nancy. 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 fetuss 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-Wrttemberg,
whereupon the Court reinstated the old law pending a full hearing on the Reform
Acts constitutionality.44 Apart from its permissible exceptions, the old law imposed
criminal penalties on any person performing an abortion, or assisting in its per for-
mance, 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 Democratsand five state governments (Baden-Wrttemberg, Ba-
varia, 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-to-
life clauses.]

Judgment of the First Senate. . . .
I. Section 218a of the Penal Code in the Version of the Fift h Law to Reform the Crim-
inal 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 preg-
nancy from punishment in cases where no reasons exist whichwithin the meaning
of the [present] decisional groundshave 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.
 Human Dignity, Personal Liberty, and Equality 375
Before reaching the merits of the case the Court noted: The statutory regula-
tion 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 grav-
ity 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 constitu-
tional 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
mothers 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 mea-
sures. 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 re-
gime 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 develop-
mental existence of a human individual begins, according to established biological-
physiological fi ndings, on the fourteenth day after conception (implantation, indi-
viduation). 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 Arti-
cle 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 his-
tory of the right-to-life clause and found that the framers of the Basic Law in-
tended it to cover unborn life. But the Court said that the history of the clause
 376 CHAPTER seven
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 individuals 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 womans 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 accessi-
ble to and in need of state regulation. It is true that the right of a woman freely to de-
velop 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
womans responsible decision against parenthood and its attendant duties. But this
right is not given without limitationthe 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 un-
born life and concede to the pregnant woman the freedom of terminating the preg-
nancy 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 constitutions value system.
 Human Dignity, Personal Liberty, and Equality 377
When using Article 1 (1) as a guidepost, the decision must come down in favor of the
preeminence of protecting the fetuss life over the right of self-determination of
the pregnant woman. Pregnancy, birth, and child-rearing may impair the womans
right of self-determination and the right to many personal developmental potentiali-
ties. 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 childs life priority. In principle, this preemi-
nence 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 womans
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 disap-
proval 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 states 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 im-
plemented in detail. The Constitutional Court generally may not review these deci-
sions. The legislatures 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 states 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 criminal-
ization 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 un-
doubtedly legitimate; it is the law in force in most civilized statesunder variously for-
mulated conditionsand is particularly in keeping with the German legal tradition.
 378 CHAPTER seven
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 lifewhether classifiable as measures of private, public,
or, more particularly, of social or criminal lawin fact guarantee protection com-
mensurate 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 womans physical and mental condition are im-
mediately apparent and require no further exposition. They often mean a consider-
able 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 as-
sistance 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 unborns 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 sanc-
tions. Respect for the unborn life confl icts with the womans 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 re-
sult 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). Spe-
cial reasons for termination of a pregnancy include those based on eugenic, ethical
(criminological), and social considerations. Also included are reasons based on ur-
gent necessity that are contained in the federal governments 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 states 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 ne-
cessity (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 of-
fense 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 thatviewed from the standpoint
of what the state may reasonably expect of the parties involvedcongruence 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 ex-
pect the state to offer counseling and assistance so as to remind the pregnant woman of
her fundamental duty to respect the unborns right to life, to encourage her to go
through with the pregnancy, and to support herparticularly in cases of social need
with practical assistance.
In all other cases the termination of pregnancy remains a wrong deserving of pun-
ishment; 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 (disappro-
bation 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 sociopo-
litical problem, the Constitutional Court found that the Abortion Reform Act
fell short of constitutional standards in several particulars. First, it failed to ex-
press disapproval of abortion. The Court found that the regulatory scheme as a
whole, undergirded by abortion funding through state medical insurance pro-
grams, conveyed the impression that abortion, like childbirth, is a normal pro-
cedure associated with pregnancy. The law must make clear, said the Court,
that abortion is an act of killing. Second, the statute failed to distinguish be-
tween valid and invalid abortions, thus ignoring the normative content of the
constitutional command to protect life. Th ird, the counseling procedures were
 380 CHAPTER seven
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 counsel-
ing. Additionally, the Court noted that counseling boards were required only
to convey information, not to dissuade women from procuring abortions. Fi-
nally, the statute was flawed because the physician who was required to inform
the pregnant woman of available social assistance could also perform the abor-
tion. In the light of these statutory deficiencies, the Federal Constitutional
Court suspended operation of the time-phase counseling rule pending adop-
tion 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 rea-
sonable 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 Brnneck 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 encom-
passes its preliminary state before birth. The discussions in the Parliament and be-
fore the Federal Constitutional Court did not involve the whether, but only the how
of this protection. The decision in this matter is the legislatures 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 freedom-
oriented character of the constitutional norms and, in a measure fraught with conse-
quences, transfers decisional authority to the Federal Constitutional Court. In judg-
ing 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 prop-
erly 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 Parliamentconsistent
with the reforms in other Western civilized stateshas given sociopolitical measures
priority over largely ineffective penal sanctions. Nowhere does the constitution pre-
scribe a statutory disapproval of morally reprehensible conduct without regard to
the protective effect such disapproval may actually have.
 Human Dignity, Personal Liberty, and Equality 381
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 encroach-
ments 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 classi-
cal control by constitutional courts. The fundamental norms at the heart of our con-
stitution guarantee the citizen defensive rights vis--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 en-
croaches 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--vis the state but also contain
objective value decisions, which the state must continually implement through af-
fi 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 be-
tween 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, rec-
ognizable content; in their interpretation and application, case law has developed
practical [and] generally recognized criteria for the control of governmental
encroachmentsfor example, the principle of proportionality. On the other hand,
how affi rmative legislative measures should effectuate a constitutional value deci-
sion is ordinarily a most complex question. Value decisions, which of necessity are
phrased in general terms, may perhaps be characterized as constitutional mandates
 382 CHAPTER seven
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 vehi-
cle for transferring to the Federal Constitutional Court specifically legislative func-
tions 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 opin-
ions 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 surrepti-
tiously 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 en-
listed for other legal interests of high ranksuch 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 abor-
tions 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 ap-
pears 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 majoritys
 Human Dignity, Personal Liberty, and Equality 383
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 develop-
ment. In the dissents view, this growing maternal relationship justifies pro-
scriptions 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, in-
cluding 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 states duty to protect unborn life. In
ascertaining the authoritative factors and arguments for a sound decision, the pro-
ceeding 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 to-
ward 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 ef-
fectuation 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 unre-
futed view, was largely ineffective, inadequate, and even harmful. Its attempt to rem-
edy 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 pun-
ishment and condemnation.

 384 CHAPTER seven
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 states 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 Courts analysis
in Abortion I, the constitutional case law under Article 6with its emphasis on fi lial
commitment within the marital relationshipthrows some light on the decision.45
Relevant too is the social state principle. When the social state principle is consid-
ered 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 in-
cludes substantive values pertaining to the nature of life, personhood, and family.
The dissenting opinion in Abortion I is a strong argument against judicial inter-
vention 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 de-
termines 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 recrim-
inalization of abortion during the fi rst trimester of pregnancy exceeded the bounds
of judicial power, since in their view the implementation of the Basic Laws objective
values was fundamentally a legislative task.
It is important to note that neither the majority opinion nor the dissenting opin-
ions 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 com-
pleted 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 Courts 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
 Human Dignity, Personal Liberty, and Equality 385
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 Courts imposition of an indications solution to the abortion problem trou-
bled many Germans on both sides of the controversy. Anti-abortion advocates ob-
jected to the high number of abortions being performed for reasons of social hard-
ship; 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 prac-
tices of the state or region charged with administering the law. One of the most sting-
ing 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 insur-
ance. 50 On the other hand, persons favoring abortion in early pregnancy claimed
that the indications solution was excessively burdensome, interfered with a womans
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 Con-
stitutional Courts guidelines. Pressures for changing the law would persist, and Ger-
man unification would hasten the change.

Abortion and Reunification. As will be discussed at length in Chapter 10, the Unifi-
cation Treaty inserted a new Article 143 into the Basic Law. In part, Article 143 was a
transitional provision that allowed the five new eastern Lnder to deviate from exist-
ing 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 Laws 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 per-
formed 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 Decem-
ber 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 propos-
als 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,
 386 CHAPTER seven
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 fol-
lowing 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 unrea-
sonable burden for the woman. But at the same time it reflected the belief that the
states duty to protect developing life could be better served, in general, by improv-
ing the social environment for women and families with children, and in the indi-
vidual case of unwanted pregnancy, by comprehensive information and counseling,
than by threatening punishment and establishing cumbersome procedures for ob-
taining a permission to abort (support instead of punishment). Consequently, the
new legislation contained a voluminous package of general social measures on edu-
cation, birth control, and state assistance in matters of family planning and preg-
nancy. 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 womans rights and opportunities in education, workplace,
career, and housing. Special emphasis was put on day care. 53
The new statute departed from the Constitutional Courts earlier ruling in one cru-
cial 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 Bun-
destag, the new change in the Penal Code declared that the interruption of preg-
nancy in some circumstances was not illegal (nicht rechtswidrig).54 Specifically,
no criminal penalty would attach to an abortion if performed by a licensed physi-
cian after compulsory counseling and a three-day waiting period. If, after such
counselingit would have to be certified in writing and before the twelft h week
of pregnancythe 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 Con-
stitutional 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
Senateto be elected a few years later as president of the Federal Republicwas 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 un-
likely that the result of Abortion II would have been significantly different had the
cases been decided by the First Senate.
 Human Dignity, Personal Liberty, and Equality 387

7.5 Abortion II Case (1993)

88 BVerfGE 203
[On 2 July 1992 the Federal Council of States (Bundesrat) approved the Preg-
nancy 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 Bundestagall from
the former West Germanypetitioned the Constitutional Court to enjoin the
laws enforcement in an abstract judicial review proceeding. Bavarias state gov-
ernment, claiming that several provisions of the statute were unconstitutional,
fi led a separate petition. In a preliminary hearing, after a full day of oral argu-
ment 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 reaf-
fi rmed the essential core of Abortion I while simultaneously adopting a consti-
tutional 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 re-
ports. The extracts below are drawn from the cases headnotes and key passages
from the full opinion. The headnotes, drafted by the senate itself, summarize
the main rulings of the judgment.]

Headnotes
1. Germanys 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 ob-
ject 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 unborns 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
lawprohibiting 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 re-
quired 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
 388 CHAPTER seven
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 persons 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 (Arti-
cle 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 pro-
tected 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 set-
ting legal and factual standards whose objectivein consideration of confl icting
legal interestsis to provide for appropriate and effective protection (minimum
protection). For this purpose, it is necessary to create a regulatory scheme that com-
bines 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 womans con-
stitutional rights permitand in certain cases might requirerecognition of excep-
tional 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 re-
quire such a degree of sacrifice of individual needs by a woman that it would be un-
reasonable 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 states duty to protect the unborn also includes protecting the unborn from
dangers emanating from the influence of the womans immediate or general social
milieu or both her and her familys present and foreseeable living circumstances and,
as such, interfering with the womans willingness to carry out the pregnancy.
10. In addition, the states duty of care includes maintaining and raising the pub-
lics consciousness of the unborns 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 in-
dications 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 states 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.
 Human Dignity, Personal Liberty, and Equality 389
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 il-
legal). 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 estab-
lished. By contrast, it is not unconstitutional to grant social welfare benefits for abor-
tions 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 abor-
tion is also constitutional.
17. The administrative power of the Lnder remains unqualified where a federal
law merely prescribes an obligation to be met by the Lnder and not the specific reg-
ulations that can be implemented and enforced by the governmental administrative
authorities of the Lnder.
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 states protection. The constitution not only sup-
ports 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 re-
spect 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,
notto 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 obli-
gations, 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 im-
poses a legal duty on the mother to carry the child to term. The fundamental prohibi-
tion on abortion and the fundamental duty to carry the child to term are inseparable
elements of the constitutionally required protection.
 390 CHAPTER seven
Moreover, the state must also protect unborn life against invasion by third parties,
not the least of whom are people within the pregnant womans 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 realiza-
tion. 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 publics consciousness of
the unborn childs 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 states duty to protect the unborn is to be determined by
weighing its importance and need for protection against other confl icting legal val-
ues. The legal values affected by the right to life of the unborn include the womans
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 legisla-
ture has the responsibility of determining the nature and scope of the required pro-
tection. 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 consti-
tutional 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 childs 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 can-
not 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 womans legal rights to self-determination. Her rights can produce a situation
in which it is permissible in exceptional casesand is even required in somenot to
impose a legal duty to carry the child to term.
 Human Dignity, Personal Liberty, and Equality 391
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 legisla-
ture must recognize that the confl icting legal values cannot be quantitatively bal-
anced. From the perspective of unborn life, the legislatures 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 un-
reasonable burden as the basis for identifying such exceptions [citing Abortion I]. . . .
The unreasonable burden standard is justified because in the light of the unique rela-
tionship between mother and child, prohibiting abortion does not end with the im-
position of a duty to refrain from violating altogether the rights of another. There are
further duties that affect the womans entire existence: the duty to carry and bear the
child and to care for it many years after its birth. Given these pregnancy-related re-
sponsibilities 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 dis-
tress; in these circumstances, such urgent interests worthy of legal protection arise
that the legal order cannot require the woman to value an unborn beings right to life
above all else, regardless of broader moral or religious concerns.
An unreasonable burden cannot arise from the circumstances of a normal preg-
nancy. 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 addi-
tion 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 womans 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 suf-
ficient to deter abortions in this limited set of circumstances. . . .
 392 CHAPTER seven
3. The states 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 states duty to protect marriage, family, and moth-
ers 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 abor-
tion 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 Cul-
tural Rights, obliges the state, and particularly the legislature, to fi nd a way to bal-
ance [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 preg-
nancy not illegal were nullified. Nonindicated abortions must remain ille-
gal even though unpunished. In addition, the Court directed the legislature
to adopt mea sures in all spheres of law to support a womans decision in favor
of life over abortion. Sections of the law governing Germanys 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 rstby Ernst Gottfried Mahren-
holz, the Second Senates vice president and presiding justice, with whom Ber-
told Sommer joineddissented from the majoritys 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 be-
tween the rights of life and personality under the Basic Law. Justice Ernst-
 Human Dignity, Personal Liberty, and Equality 393
Wolfgang Bckenfrde, 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 Courts ban on pay-
ing for illegal abortions out of the states 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.]

Impact of Abortion II. In rejecting the 1992 abortion statute, the Court tossed the ball
back into Parliaments court. Until Parliament acted to craft a new statute within the
guidelines of Abortion II, the Courts rulings would prevail in all of Germany. It
would take Parliament another two years to agree on amendments to the 1992 stat-
ute. The legislative debate centered on three issues: the nature and extent of obliga-
tory counseling, abortion fi nancing, and the criminal liability of persons within a
pregnant womans social circle who might encourage her to procure an abortion. A
compromise bill that commanded the support of a substantial parliamentary major-
ity 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
Germanys legal order a nonindicated abortion, although not punishable if procured
after compulsory counseling within the fi rst trimester of pregnancy, would be per-
missible 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 Courts 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 mis-
use 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 abor-
tions through the national health system. Although some cdu members felt that the
compromise bill fell short of the Constitutional Courts directives, there seemed to be
little desire on Parliaments 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 special-
ists, prohibiting physicians from earning annually more than one-fourth of their in-
come 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
 394 CHAPTER seven
as an infringement of a physicians occupational rights under Article 12 (1). In a 53
decision, the senate also voided the income quota and physician refusal provisions as
beyond the competence of the Lnder,59 effectively holding that their legislative
competence in these matters had been preempted by the comprehensive federal stat-
ute passed in the aftermath of Abortion II. As for the limited number of licensed phy-
sicians permitted to perform abortions, six of the eight justices felt that a regulation
of this nature was within the Lands legislative competence, but nevertheless over-
turned the measure in question because Bavaria had not enacted transitional regula-
tions authenticating the credentials of other physicians whose training and experi-
ence 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 Abor-
tion I (1975). In both cases, decided respectively in 1992 and 1993, the two courts reaf-
fi 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 Courts
recognition of the states profound interest in potential life and its approval of legis-
lative 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 re-
mains 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 (respec-
tively featured and discussed below) would demonstrate. And, as noted in the com-
mentary following these cases, the right to life would also be implicated in an emerg-
ing 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 ab-
ducted Dr. Hanns-Martin Schleyer, president of the German Federation of In-
dustries, 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, Schleyers son, an attorney, petitioned
the Constitutional Court for a temporary injunction on behalf of his father. The
 Human Dignity, Personal Liberty, and Equality 395
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 provi-
sion 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 equiv-
alent to an intentional act against his fathers life and limb. The petitioner also
advanced an equal protection argument based on Article 3 because, in a previ-
ous abduction case involving an important public official, the government had
released certain prisoners to save the officials life.]

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 com-
mits the state to the protection of each human life. Th is obligation is comprehen-
sive. 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 particu-
larly seriously.
II. State authorities are basically free to decide how they should meet their obliga-
tion 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 petitioners standpoint. But contrary to his opinion, no such
case is before the Court.
The peculiarity of affording protection from life-threatening extortion by terror-
ists 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 consti-
tution 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 authori-
ties 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 states 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
 396 CHAPTER seven
competent state authorities to take any specific action. The government has the re-
sponsibility to decide which steps should be taken to fulfi ll the states obligation to
protect life.

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 interestor for any utilitarian purposeif the principle of
dignity absolutizes the right to life with the consequence that the state is categori-
cally 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 jurispru-
dential 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 Germanys 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 vari-
ous 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 authoriza-
tion 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 Lnder may ask for federal assistance in re-
sponse 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 inter-
pretation 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 courts 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 self-
determination and thus to make them mere objects of the states rescue operation
for the protection of others.64 Innocent passengers, said the Court, are human be-
ings and not simply parts of the aircraft. The senate reiterated its long-standing posi-
tion 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, [stat-
ing 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 con-
nected to human dignity as a paramount principle of the constitution and the high-
est 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
persons 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 hi-
jacked 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 downand there is no constitutional state duty to shoot
it downsimply 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 au-
thorization. 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 kid-
napped 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 sug-
gested 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 decisions
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 Ar-
ticle 2 (2), suggesting that the states absolute duty to protect dignity should be in-
voked 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 states duty to protect it to such heights in the original abortion cases.67 But
 398 CHAPTER seven
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 Brnneck and Helmut
Simon in Abortion I, to encourage restraint on the Courts part when reviewing legis-
lation on morally divisive issues such as stem cell research, in vitro fertilization, sur-
rogate motherhood, and forms of genetic engineering. To what extent these practices
comport with the principle of human dignity has been vigorously debated in the lit-
erature 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 con-
stitutional 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 ad-
minister 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 stat-
ute under the Basic Laws dignity and right-to-life clauses. There is a strong consen-
sus 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 patients right to self-
determination 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 adjudi-
cating claims under the right-to-life clause of Article 2. As in Schleyer Kidnapping, cau-
tion seems warranted in the face of constitutional complaints against governmental
decisions of commission or omission that contribute to environmental pollution, haz-
ardous 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 Courts caution. Several German citizens fi led consti-
tutional complaints against the federal governments 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 gov-
ernment 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
 Human Dignity, Personal Liberty, and Equality 399
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 weap-
ons 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 states duty to protect life but went on to
say this duty can be enforced only in exceptional circumstances, a decision that ad-
heres 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 Laws
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), Mlheim-
Krlich (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 Constitu-
tional 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 eas-
ily 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 per-
sonality 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 per-
sonality 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 constitu-
tional 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 Courts decisions interpreting the personal-
ity clause is the Hashish Drug Case (1994). Several ordinary courts had questioned
 400 CHAPTER seven
the constitutionality of prison sentences imposed on the possession, use, or sale of
narcotic drugsso-called soft drugssuch 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 Lbeck 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 ad-
vised Parliament, over the partial dissents of two justices, to decriminalize the pos-
session and use of small amounts of these soft drugs. The senate dismissed the ex-
treme claims of the Lbeck court, rejecting any comparison between the consumption
of alcohol and the use of narcotics. The majority appeared willing to defer to Parlia-
ments 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 laws 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 childs illegitimacy. Section 1598 of the Civil Code (Brgerli-
ches Gesetzbuch), however, provides that the child is barred from fi ling such an ac-
tion 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 pro-
vision 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 ones own birth. As in other cases where the Court declines to nul-
lify 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 Pater-
nity 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, how-
ever, 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 free-
dom 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).
 Human Dignity, Personal Liberty, and Equality 401

7.7 Elfes Case (1957)

6 BVerfGE 32
[The complainant, an active member of the cdu, was elected to the North
RhineWestphalia parliament in 1947. He was also a leading spokesman of a
radical right-wing organization vehemently opposed to the Federal Republics
policies toward military defense and German reunification. He had partici-
pated 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 pass-
port to travel abroad. Claiming that the state had violated his freedom of move-
ment under Article 11, he fi led a constitutional complaint against judicial deci-
sions sustaining the denial of his passport application.]

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 pass-
port 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 funda-
mental 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 ex-
press 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 Federa-
tion 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 free-
dom 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)]. . . .
 402 CHAPTER seven
2. In its ruling of 20 July 1954 [Investment Aid I Case], the Federal Constitutional
Court did not decide whether the free development of ones 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 spiritual-
moral 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 de-
velopment 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 ac-
tion 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
Laws image of man. Yet nothing other is suggested than that Article 1 is a fundamen-
tal 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 persons 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 citizens devel-
opment 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 ones
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 mans 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
 Human Dignity, Personal Liberty, and Equality 403
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 pro-
visions of the constitution. The general legal order would include, as the Court
put it, restrictions by every legal provision formally and substantively compat-
ible with the Basic Law. Th is remark appeared to seriously limit the range of a
persons 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 con-
stitutional restrictions than under the Weimar Constitution of 1919. . . . The legisla-
ture 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 Constitutions 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 deci-
sions of the Basic Law, in par ticu lar the constitutional and social state principles.
Above all, laws must not violate a persons dignity, which represents the highest value
of the Basic Law; nor may they restrict a persons 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 citizens sphere of private development;
that is, that ultimately inviolable area of human freedom insulated against any intru-
sion 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
passportin 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 re-
quirements 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 Re-
public of Germany. Objections might be raised to the extent that the provision allows
 404 CHAPTER seven
the apprehension of a threat to other vital interests to suffice for the denial of a pass-
port. 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 agencys original refusal to support its denial of a passport with
reasons, but sustained its decision because the agency in a subsequent adminis-
trative 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
courts decision, the Constitutional Court declared that its role was not to re-
view the facts de novo but rather to determine whether the facts were sufficient
to justify the conclusion that the complainant would threaten other vital inter-
ests of the Federal Republic.]

Outer (and Limited) Sphere of Personality. PostElfes freedom-of-action cases
touching on recreational or economic interests include the Falconry License, Eques-
trian, 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 hawkers 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 intru-
sion 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 read-
ing. 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 personal-
ity clause. The First Senate adhered to the prevailing view that freedom of action ex-
tends to every kind of human activity compatible with the reservation clause of Ar-
ticle 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 re-
striction 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
 Human Dignity, Personal Liberty, and Equality 405
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 at-
tributed 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 chal-
lenged 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-of-
action claim in an adjudicatory context. An American pharmaceutical firm sought to
serve a complaint against a German company located in Berlin to collect punitive dam-
ages imposed by an American court on its subsidiary in the United States, a subsidiary
incorporated under American law. After German authorities had approved the ser-
vice 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 companys 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 princi-
ples 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 con-
stitutionally 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 spherean almost sacred space in the Courts viewinsulates public fig-
ures 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 Ep-
pler 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, il-
lustrates the protection the Court has afforded to personality in various contexts.
 406 CHAPTER seven

7.8 Eppler Case (1980)

54 BVerfGE 148
[During the 1976 state election campaign, the cdu of Baden-Wrttemberg dis-
tributed 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 Ep-
pler, chairman of Baden-Wrttembergs 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-Wrttembergs Higher
Regional Court to deny the injunction. Eppler invoked several constitutional
provisions in his defense, including his basic rights to human dignity, personal-
ity, equality, and freedom of belief. The Court rested its opinion mainly on Ar-
ticle 2 (1) of the Basic Law.]

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 courts 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 at-
tached 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 ex-
tracts below are confi ned to the Courts 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 personal-
ity secured by Article 2 (1) in conjunction with Article 1 (1). Th is undefi ned right to
 Human Dignity, Personal Liberty, and Equality 407
freedom complements those express freedoms, such as freedom of conscience and
speech, that also protect the essential elements of personality. Its purpose is to
safeguardconsistent with the highest constitutional principle, namely, human dig-
nity (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 personal-
ity, the Federal Constitutional Court as well as the Federal Court of Justice have re-
frained 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 as-
pects 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 ones own person [citing the Lebach Case], to ones 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 mani-
festations 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 afore-
mentioned manifestations of the right to personality under Article 2 (1). The com-
plainants 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 dishonor-
able to demand that the economy be tested to its breaking point. Nor does this de-
mand contain a call to unconstitutional action, so that the speaker could be slander-
ously 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 some-
ones 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 indi-
viduals 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 per-
sonality underlying the concept of self-determination. The individual should have the
freedom to decide for himselfwithout any limitation of his private spherehow 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 persons
 408 CHAPTER seven
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 part-
ner 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 persons 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 complain-
ants right to personality if it is not to be robbed of its very essence (i.e., of the abso-
lutely personal and inalienable core right deserving of protection).

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 acts constitutional
validity.88 Eight months later, on 15 December 1983, the First Senate sustained most
of the statutes major provisions but required Parliament to amend the statute in cer-
tain 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 Courts evolv-
ing personality jurisprudence. In the personalist universe envisioned by the Consti-
tutional 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 numer-
ous occasions, he or she is a spiritual-moral being. The state therefore cannot inven-
tory the individual with respect to every aspect of the individuals 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 compre-
hensive data on the Federal Republics demographic and social structure. In
addition to a total population count and the collection of basic personal infor-
mation (name, address, sex, marital status, religious affi liation, etc.), the act re-
quired citizens to fi ll out detailed questionnaires relating to their sources of
 Human Dignity, Personal Liberty, and Equality 409
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, environmen-
tal protection, and redrawing election districts. Th is case represents one of
those rare instances in which an individual may lodge a constitutional com-
plaint directly against a statute. The need to exhaust ones 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 tem-
porarily enjoined the execution of the census on the ground that the transmis-
sion of data to certain agencies threatened to violate the rights of privacy and
personality. The following extract is drawn from the Courts 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 develop-
ment of ones 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 dig-
nity of the individual, who functions as a member of a free society in free self-
determination. The general personality right, as laid down in Article 2 (1) in tandem
with Article 1 (1), serves to protect these valuesalong with other, more specific
guarantees of freedomand gains in importance if one bears in mind modern devel-
opments 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 lim-
its facts about his personal life shall be disclosed.
The individuals decisional authority needs special protection in view of the pres-
ent and prospective conditions of automatic data processing. It is particularly endan-
gered 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 dis-
tance. Furthermore, such information can be joined to other data collections
particularly when constructing integrated information systemsto produce a par-
tial or virtually complete personality profi le, with the person concerned having
insufficient means of controlling either its veracity or its use. The possibilities of ac-
quiring information and exerting influence have increased to a degree hitherto un-
known and may affect the individuals behavior because of the psychological pres-
sure that public awareness may place upon the individual.
 410 CHAPTER seven
Even under present conditions of data-processing technology, the concept of self-
determination 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 individuals right to plan and make decisions freely and without
pressure or influence from others is crucially inhibited if he cannot predict with suf-
ficient 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 self-
determination 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 infor-
mation 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 citi-
zens 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, be-
cause 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 de-
velopment 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 self-
determination 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 offi-
cial data-gathering processes so that the citizen may clearly know what information
is being collected and why. Such legal authorizations must adhere to the constitu-
tional 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 proportion-
ality. Th is principle, raised to the level of a constitutional norm, follows from the na-
ture 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
 Human Dignity, Personal Liberty, and Equality 411
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 casea full seventy-one pages in the official
reportsthe Constitutional Court sustained most of the 1983 Census Acts
provisions. The Court underscored the legitimacy of a general census for pur-
poses 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 individu-
als. 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 infor-
mation and because some of the data were not necessary to achieve the pur-
poses of local authorities.]

Self-Determination and an Expanding Right of Personality. In one of its earliest de-
cisions, 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 Con-
stitutional Court president Ernst Benda has noted, mans 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 pri-
vate life, or by the helplessness of the individual to understand . . . the political pro-
cess that greatly affects everybodys 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 techni-
cal 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 pos-
sibly understand or digest? What does freedom from the states interference mean
when the individual, for his personal well-being, depends more than ever before on
the states activities?91
In the light of such remarks, it should come as no surprise that President Benda pre-
sided 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 Consti-
tutional Court has long held that certain privacy interests are protected by the per-
sonality 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. Not-
ing 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 experts inspection of his divorce
fi le. But here too, said the Court, disclosure would have been wholly out of propor-
tion 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 fathers identity.
Would, as in this case, a court order to release this information to the child violate
the mothers right to her personality (Article 2 [1]) as informed by the principle of
human dignity? And does the mothers right to privacy trump the right of her daugh-
ter 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 mothers complaint
but reversed the lower courts broad interpretation of the rights of nonmarital chil-
dren 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
 Human Dignity, Personal Liberty, and Equality 413
Similarly, in the Paternity Disclosure II Case (2007), the First Senate ruled that the
legislature is primarily responsible for laying down procedures for determining
thepaternity 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 childs biological father. Invoking the right to informational self-
determination rooted in the personality and dignity clauses of the Basic Law, the
senate upheld an ordinary courts refusal to legally recognize the secretly obtained
genetic information. But the senate also recognized the fathers rights in this regard
and accordingly instructed Parliament, by a specified date, to enact adequate proce-
dures that would allow fathers to gain access to such genetic material.95
Increasingly, in related cases, the Constitutional Court began to erect a near-
absolute 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 sen-
ate, 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 individuals
right to gender self-identification. Rejecting the view that the moral law was im-
plicated 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 provi-
sion of the Transsexuals Act that recognized an approved gender change only if the
person involved was unmarried. The law was challenged by a postoperative trans-
sexual 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 still-
nascent threat of international terrorism was beginning to rear its head. Germanys
response to the emerging threat implicated rights of privacy and personality under
 414 CHAPTER seven
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 interfer-
ences with private communications, even without the permission of the persons af-
fected, if such activities served to protect the free democratic basic order of the Fed-
eral Republic or a Land.101 More important for present purposes was a mid-1990s
lawthe G10 Act, as it was calledthat expanded the power of the Federal Intel-
ligence Ser vice (Bundesnachrichtendienst) to conduct telecommunications surveil-
lance in seeming tension with the core protection of Article 10.102
The G10 Act permitted the monitoring of individuals if there were grounds to sus-
pect 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 terror-
ism, 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 Repub-
lics homeland emanating from the Warsaw Pact. The G10 Act, by contrast, broad-
ened the surveillance to include international wireless traffic. It also lifted the previ-
ous 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 telecom-
munications surveillance, argued that their wholly legitimate work would greatly in-
crease 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 sur-
veillance is promptly purged, and that any surveillance beyond Germanys borders
conform to international law. With these requirements in mind, the Court embraced
all but one of the laws expanded list of threats as relevant to the Federal Republics
 Human Dignity, Personal Liberty, and Equality 415
security. The objective of timely recognizing and counteracting the threats speci-
fied 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 inter-
ests 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 secu-
rity threat. Apart from this particular ruling, the Court concluded that, while poten-
tially 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 Courts en-
dorsement 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 judg-
ments, the Federal Constitutional Court would begin to heed former president Ben-
das warning that developments in data-mining procedures and computer technol-
ogy 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 Statesand the subsequent attacks in Madrid and Londonand 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 dis-
cern the emergence of a strong human rights perspective in the famous Acoustical
Surveillance Case of 2004.107 Already in 1998, Article 13 (protecting the homes invio-
lability) 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 suspects home to be acoustically monitored but only pursu-
ant 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 disproportion-
ately difficult or unproductive. As with Telecommunications Surveillance, which up-
held 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
 416 CHAPTER seven
criminal law enforcement.110 In urging legislators to take steps to ensure that acousti-
cal 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 crimi-
nal activity is absolutely prohibited. Finally, as in other cases, the senate had reiter-
ated the view that the right to ones personal information protects not only the con-
tent 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 governments
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 lo-
cation 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 observa-
tional methods. First, any round-the-clock use of these methods must not lead to the
construction of a detailed profi le of the suspects personality. If it does, the informa-
tion 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 ad-
vances in surveillance technology and, if necessary, to pass laws that would prevent
security agencies from using them to interfere with the right of informational self-
determination.114 The Aviation Security Act Case, as noted earlier, declared that shoot-
ing 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
 Human Dignity, Personal Liberty, and Equality 417
the constitutionality of advanced monitoring technologies. In this case, the First
Senate invalidated a North RhineWestphalia 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 infor-
mational 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 abso-
lute and may be regulated in the public interest, particularly when the danger of ter-
rorism is real. But any balance between liberty and security, said the senate, must re-
spect 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 land-
mark ruling in defense of the right to the confidentiality and integrity of information-
technological 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 RhineWestphalia statute had empowered intelligence officials to covertly
infi ltrate computer systems and the Internet for the purpose of protecting the consti-
tutional order under the terms of Article 10 (2). The decision extends the Basic Laws
protection to personal computers in par ticu lar. Todays 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 enor-
mous rise in the importance of personal computers for the development of the human
personality.120 The right to informational self-determination, said the Court, pro-
tects 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 Sen-
ate noted, The fundamental right to the integrity and confidentiality of information
technology systems is to be applied . . . if the empowerment to encroach covers sys-
tems that, alone or in their technical networking, contains personal data of the per-
son concerned to such a degree that access to the system facilitates insight into sig-
nificant 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 gath-
ered 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 consti-
tutional complaints by no fewer than thirty-five thousand German citizens (includ-
ing 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
 418 CHAPTER seven
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 legisla-
tive measures designed to place strict controls on the use of such information. The
laws challenged in the Data Stockpiling Case were amendments to the Telecommuni-
cations 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 Pro-
cedure expanded both the justifications for the states 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 Parliaments implementing laws, concluding that they did not adequately pro-
tect 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 subjects political associations, personal preferences, incli-
nations, and weaknesses.123 An encroachment on liberty interests of such impor-
tance, said the Court, would be compatible with Article 10 (1) of the Basic Law only
if stockpiling were conducted by private actors for the states use in investigating
criminal acts or preventing security threats, both of which must involve consider-
able 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 re-
straints 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 disfigure-
ment, sterilization, impairment of any bodily function, or any injury to a persons
health.127 The Spinal Tap Case (1963) demonstrates that the clause also imposes se-
vere 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 physi-
cal 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 per-
sons 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 persons 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 Widows 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 Mlheim-Krlich Case
(1979) shows, the Constitutional Court became increasingly sensitive to such argu-
ments 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 constitu-
tional 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 Goethes 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 Laws main clauses on equality. It guarantees to all per-
sons 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, parent-
age, 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
 420 CHAPTER seven
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 (Arti-
cle 33 (1)).138 Taken together, these provisions underscore the breadth and complex-
ity of the fundamental role that equality plays in Germanys 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
Courts jurisprudence.139
Typical also is the frequency with which the principle of equality is invoked in
tandem with the Basic Laws 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 individuals 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 Constitu-
tional 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 spe-
cific 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 Germanys most prominent equality cases have involved com-
plaints of inequality between the federal states in the context of fi nancial equaliza-
tion. 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 Lnder 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 in-
terpreting 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 dif-
ferentiate 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 protec-
tion 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
 Human Dignity, Personal Liberty, and Equality 421
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 demo-
cratic process, this rationality approach has the advantage of restraining the judi-
ciarys 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 Courts minimal level of scrutiny
over legislative classifications. By relying on far more than minimalisma low
level of rationality reviewthe 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 slid-
ing 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 classificationsthose based on sex, parentage, race, language, homeland, faith,
and now disabilityrequire a far higher degree of judicial scrutiny than other clas-
sifications. 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 stan-
dards of heightened judicial review. The specificity of the Basic Laws equality clauses
and their linkage with other constitutional provisions guaranteeing equality in spec-
ified 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 outand reaffi rmedits 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 sex-
change operation (Transsexual I Case [1978]). But the Court made clear that Par-
liament is authorized to regulate matters pertaining to transsexualism. Accord-
ingly, in 1981 Parliament enacted the Transsexuals Act (Transsexuellengesetz),
 422 CHAPTER seven
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 require-
ment 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 constitution-
ality 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 Laws general principle of
equality.]

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 differ-
ent treatment and the classifying characteristic, these limits range from a ban on
laws that are merely arbitrary to a strict observance of proportionality require-
ments. 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 classi-
fications based solely on behavior depends on the extent to which the persons af-
fected are in a position to change, by their behavior, the trait or identity that is af-
fected. 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 con-
sidered, then the legislature would violate the Basic Law only when the classification
 Human Dignity, Personal Liberty, and Equality 423
lacks a genuine factual basis. The Federal Constitutional Court meticulously exam-
ines 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 rea-
sons for treating groups of persons differently may justify unequal treatment under
the law. These considerations apply equally to the legislatures assessment of the
factual basis justifying differential treatmentsuch an analysis being a legislative
prerogativeand 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 legislatures capacity to reach a
proper factual assessment at the time of its decision [factual assessment in this in-
stance 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 arbi-
trariness is involved, a violation of Article 3 (1) can be established only when the clas-
sification lacks a credible factual basis. By contrast, if the Constitutional Court ex-
amines measures that affect groups of people differently or impacts negatively on
fundamental rights, then the disparity can be justified only by a convincing demon-
stration 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
ofthe facts to a rather strict examination of a classifications 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 re-
quired for changing ones 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 ones 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 con-
sider 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
 424 CHAPTER seven
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 irre-
versible 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 them-
selves in public. Since the Federal Constitutional Courts decision of 16 March 1982
[Transsexual Youth Case (1982)], they have had the right to demand a legal determina-
tion 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 particu-
larly 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 irre-
versible 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 relation-
ship 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 detrimen-
tal treatment of younger transsexuals. At this point, it does not matter if the legislature,
 Human Dignity, Personal Liberty, and Equality 425
in exercising its prerogative of assessing the actual situation at the time of the acts
promulgation, feared that by permitting younger people to change their fi rst names
they might prematurely commit themselves to a fi xed transsexual inclination. Fur-
thermore, there is no need to determine whether the available facts at the time justi-
fied the twenty-five age limit as an appropriate measure for preventing younger trans-
sexuals 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 peo-
ple from hastily changing their sexual roles and to save them from the consequences
of a possibly erroneous prognosis. . . .

In the years following Transsexual II, the Constitutional Court handed down several
additional cases vindicating the equality rights and liberty interests of transsexual per-
sons. In the Transsexual III Case (2005), the Court ruled that the Transsexual Law rec-
ognizing 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 regula-
tion 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 couples request to enter into the civil partnership. The essence of the com-
plaint 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 tan-
dem 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 regu-
lation, although no difference of such nature and such weight between the two groups
exists that could justify the dissimilar treatment (emphasis added).149 The Courts
 426 CHAPTER seven
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 im-
portant role in any examination of the relationship between classification and pur-
pose. 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 neces-
sary? 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 prin-
ciples, considerations, and rights. In Transsexual II, for example, the Court under-
scored the critical importance of certain personal characteristics (personenbezon-
gene Merkmale), considered the relevance of a persons age to the right of personality
secured by Article 2 (1), and sought to balance the states purposes against the per-
sonal 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 clas-
sifications 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 stron-
ger 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 obstetri-
cians from practicing their profession after the age of seventy.150 Here the Court
found substantial differences between midwives and doctors that justified the differ-
ence. These included the long training and experience of doctors relative to mid-
wives, together with the high degree of supervision and accountability within the
medical profession. In addition, the age limit on midwifery was justified by the sig-
nificance of the states objective. The protection of mothers and children are so im-
portant 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 profes-
sion.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 reason-
able 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 pol-
icy was expressed in the Asylum Seekers Benefits Act of 1993 (Asylbewerberleis-
tungsgesetz), under which applicants for asylum were required to use up income re-
ceived 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 deci-
sions 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 dam-
ages 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 dif-
ferently 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 in-
compatible 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 prin-
ciple. 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 Courts 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 pro-
mote 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 be-
tween 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 inconsis-
tent 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 in-
junction 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 dif-
ferences between men and women are substantial enough to warrant their dissimilar
 428 CHAPTER seven
treatment.157 An important milestone along the way was the Housework Day Case
(1979), which invalidated a North RhineWestphalia 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 dis-
favoring males. Until then, labor courts in particular had accepted the view that Arti-
cle 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 re-
quired 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 re-
sponse to a growing feminist movement in Germany.159 The shift manifested itself in
the Fair Employment Act of 1980, an antidiscrimination law banning gender prefer-
ences in hiring, promotion, and dismissal; requiring equal pay for equal work; and
exhorting employers to advertise job openings in gender-neutral language.160 Even-
tually, the Constitutional Court would play a crucial and increasingly important role
in dismantling Germanys 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 blue-
collar 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. ]

Judgment of the First Senate. . . .
C. The constitutional complaint is justified. . . . The prohibition of nocturnal employ-
ment 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 charac-
teristics 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 for-
bidden 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 opportu-
nity [Gleichberechtiungsgebot] that extends to the real social world [die gesellschaft li-
che 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 fu-
ture. Its aim is the equalization of living conditions. Thus, women must have the
same earning opportunities as men. . . . Traditional role conceptions that lead to in-
creased 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 un-
equally 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 im-
posed 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 er-
forderlich] 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 as-
sumption 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 noc-
turnal 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 suf-
ficiently gender-specific characteristic. For the woman to mind the house and the chil-
dren 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
 430 CHAPTER seven
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 em-
ployment. 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 occupa-
tional freedom in order to keep them from leaving their houses at night. . . . Further-
more, 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 treat-
ing 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 Courts 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 gen-
der roles in society.162 Th ree things appear to have influenced the decision in Noctur-
nal 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 reunifica-
tion, 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 Ger-
many on behalf of affi rmative action.165
Another interesting feature of Nocturnal Employment was its discussion of the re-
lationship 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 Arti-
cle 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 bur-
dened 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 sur-
name 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, declar-
ing 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 Bri-
gade 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 Senates 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 Mater-
nity Leave Case (2003), fi nally, the Court held that women working for small compa-
nies 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 as-
sessments 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 Courts holistic approach to constitutional interpretation. Citing the
influence of Article 3, the First Senate also held that the system of assessments sup-
porting maternity leave violated womens 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 Parlia-
ments view that the social state principle already obliged government to adopt anti-
discrimination measures designed to ensure formal gender equality. Far more uncer-
tain, 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
 432 CHAPTER seven
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 Courts decision in the Pen-
sion 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 opportu-
nity 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 machinistshe was the only female
among forty applicantsbecause she was inexperienced and as a woman deemed
physically incapable of doing the job. In reviewing the labor courts rejection of her
complaint under the 1980 Anti-Discrimination Act, the First Senate ruled that dis-
crimination 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
womens 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 consti-
tutional values on private legal relationships. The lower court in this instance failed
to attach sufficient weight to constitutional values in the interpretation of employ-
ment law.175 It could not have been entirely coincidental that soon after the deci-
sion 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 Courts effort to fashion an affi rmative ac-
tion 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 rma-
tive action programs.
As remarked earlier, European Community law, together with a decision of the Eu-
ropean Court of Justice invalidating a French law prohibiting nocturnal employment
 Human Dignity, Personal Liberty, and Equality 433
by women, significantly informed the Federal Constitutional Courts interpretive
struggle to part with Germanys patriarchal traditions. Ironically, the European Court
of Justice invalidated one of Germanys first efforts enacted pursuant to the new affir-
mative action clause of Article 3 (2). In Kalanke v. Freie Hansestadt Bremen (1995) the
European Court found Bremens absolute preference for women in civil ser vice hiring
decisions to violate the antidiscrimination provision of the European Communitys
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 gender-
based 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 Justices reaction to Germanys gender-
based quotas seems to have run its course with its judgment in Badeck v. Hessischer Min-
isterprsident (2000).181 The European Court of Justice held that gender-based quotas
complied with the affi rmative action provision of the Equal Treatment Directive be-
cause the provisions include[d] some kind of saving clause, [and] the legislative inten-
tion [of the European Parliament and Council] had not been to restrict the introduc-
tion of affirmative action measures by member states. The view seemed to prevail that a
broad interpretation of [the Equal Treatment Directives 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 man-
dated by Article 3 (2) of Germanys Basic Law.184
Th is judicial interplay exemplifies the constitutional dialoguedescribed more
fully in Chapter 6that 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 mea-
sures. The activism of the European Court of Justice on the issue of gender-based af-
fi rmative action has permitted the Federal Constitutional Court to avoid becoming
entangled in this persistently contentious debate, for no constitutional case in Ger-
many has addressed a gender affi rmative action measure.186 Germanys 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 Germanys absolute pro-
hibition on womens 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 antidis-
crimination 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
 434 CHAPTER seven
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
reinforceand are reinforced byother basic rights such as religious liberty (Arti-
cle 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 prin-
ciples 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 de-
signed to remove actual inequal ity, the protection for the disabled being an excep-
tion 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 texts be-
cause of (wegen) language the Constitutional Court adopted a causation standard
for determining the legitimacy of a legislative differentiation. As David Currie ex-
plained, 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 le-
gitimate or neutral legislation not specifically grounded in one of the forbidden catego-
ries 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 inter-
pretive approach. Early on, Parliament had enacted restrictions on the right to travel
by residents living in Soviet-controlled East Germany, a policy challenged for disfa-
voring 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
Courts Article 3 (3) jurisprudence. Although the case dealt with a sex-based classifi-
cation 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 substan-
tially higher and more penetrating than the mere reasonableness standard prevalent
in the Courts 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 re-
quires a close and substantial relationship between ends and means in the applica-
tion 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 in-
clude disabilities among the classifications against which Article 3 (3) prohibits dis-
crimination. 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 Schwerbeschdigte (severely dam-
aged) 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 re-
marked a greater willingness in German society to accept affi rmative action mea-
sures for the disabled than for women.196
Much of the advocacy on behalf of the disabled has focused on Germanys tradi-
tion of providing segregated education for the disabled in Sonderschulen (special
schools). Once a point of pride because of the specialized attention and training dis-
abled 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 re-
marked: 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 employ-
ment.197 These critics have argued that families with a disabled child could expect
 436 CHAPTER seven
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 Germanys
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 disabilityleft the legislature with considerable discretion in meeting
the needs of disabled citizens. And contrary to their fondest hopes, the Federal Con-
stitutional 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 spe-
cial 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, in-
cluding difficulty speaking. She attended an integrated school where she stud-
ied 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 students 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 spe-
cial 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 injunc-
tion. The student and her parents fi led a constitutional complaint with the Fed-
eral Constitutional Court alleging, inter alia, a violation of the disability provi-
sion 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 courts failure to grant a
temporary injunction, which resulted in the referral orders 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 amend-
ments legislative history. However, the amendments 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 amendments legislative history does not clarify fully the concept disfa-
vored. 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 iden-
tified by sentences 1 and 2 set narrower limits on the states power to discriminate,
which is already constrained by the general principle of equality. Accordingly, dis-
ability 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 ones life, at least when compared with the nondisabled.
Th is fact cannot be remedied by a mere change in peoples attitude. The amend-
ments 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 pre-
vented or overcome. Th is explains why Article 3 (3) [2] also does not prohibit favor-
ing 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, al-
though 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
 438 CHAPTER seven
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 evalu-
ation, 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 students
right to the development of his or her personality (Article 2 (1)), the parents
right to direct their childs care and upbringing (Article 6 (2)), and the prohibi-
tion on discriminating against the disabled under Article 3 (3) [2]. The Court
explained that the disability provision, as an enhancement of the general equal-
ity provision of Article 3 (1), subjects a states decision to refuse a disabled
childs 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 students request for inte-
grated education, the Court urged the consideration of several factors: the kind
and intensity of the disability, the resources of the school, and the students
level of educational achievement. The states 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 students request for inte-
grated education.
In procedural matters, Article 3 (3) [2] requires that decisions relating to the stu-
dents 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 inter-
ests protected by Article 3 (3) [2]. The kind and extent of the disability must be identi-
fied along with the reasons why the school authorities decided to assign the stu-
dent 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 states justification for assignment to a spe-
cial 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 students
request for integrated education. The complainants case, the Court ruled, was
an instance where the refusal to accommodate the disabled students request for
integrated education was constitutionally justifiable. The Court explained that,
even if the higher administrative court had not correctly interpreted the con-
tent and meaning of Article 3 (3) [2] when rejecting the complainants applica-
tion for a temporary injunction, the higher administrative court had nonethe-
less 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 complainants 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 com-
plaint 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 Lnder 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 compel-
ling case for disadvantaging the handicapped. In fact, as the senate noted, the dis-
ability amendment permits preferential treatment when necessary to increase the
similarities in the circumstances of the disabled and nondisabled. In some cir-
cumstances, 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 reason-
ing provides the basis for emancipating the disabled from burdens they would other-
wise experience.

conclusion

Th is chapter has underscored the importance of the Basic Laws 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 be-
fore the law, are inextricably intertwined. Rarely is one of these rights or values in-
voked 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
 440 CHAPTER seven
three values are defi ned by their subjective and objective sides. Subjectively, they se-
cure 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 indi-
vidual whose rights to liberty and equality are deepened and tempered by the in-
alienable 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). Ex-
cept 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 prohibi-
tion on the state alone, as with the First Amendment to the U.S. Constitution. Arti-
cle 5 simply guarantees freedom of speech to every person, suggesting that its pro-
visions may also be invoked against nonstate actors. The text, however, provides no
clear answer. Second, Article 5in contrast to the free speech clauses of the First
Amendmentis distinguished by its specificity. It protects no fewer than seven
rights of speech, defi nes what is to be protected against censorship, and acknowl-
edges 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
everyones 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 be-
tween 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 in-
form 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, constitu-
tional principles, rules and standards, institutional and procedural devices.1 Accord-
ingly, 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 Courts 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 in-
terests.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 vari-
ous interests and values are to be weighed and assessed.

a jurisprudence of balancing

The Lth Case, like Southwest State (1951; no. 3.1), is one of the main linchpins of Ger-
man 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 Lth Case (1958)

7 BVerfGE 198
[Veit Harlan was a popu lar fi lm director under the Nazi regime and the pro-
ducer of the notoriously anti-Semitic fi lm Jud Sss. In 1950, several years after
he was acquitted of having committed Nazi crimes, he directed a new movie
entitled Immortal Lover. Erich Lth, Hamburgs director of information and an
active member of a group seeking to heal the wound between Christians and
Jews, was outraged by Harlans postwar reappearance as a fi lm director. Speak-
ing before an audience of motion picture producers and distributors, Lth
 Fr eedom of Speech, Pr ess, and Art 443
urged his listeners and the German public to boycott Immortal Lover. Harlans
reemergence, in Lths view, would damage the nations reputation in the eyes
of the world and warrant the moral condemnation he thought the fi lms show-
ing would bring down on Germanys motion picture industry. A fi lm distribu-
tor secured a temporary order against Lth from the Hamburg Regional Court
(Landgericht), enjoining him from continuing his call for a boycott. The court
regarded Lths conduct as actionable within the meaning of 826 of the Civil
Code (Brgerliches Gesetzbuch) (Whoever causes damage to another person
intentionally and in a manner offensive to good morals is obligated to compen-
sate the other person for the damage). After the Higher Regional Court re-
jected his appeal, Lth fi led a constitutional complaint asserting a violation of
his basic right to free speech under Article 5 (1). The Constitutional Court up-
held Lths 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 in-
fluence others to adhere to his opinion regarding Harlans reappearance as a fi lm
director. . . . Seen objectively, this limits the complainants freedom of expression.
The regional court granted the injunction as a matter of private law on the assump-
tion that the complainants statements were tortious under 826 of the Civil Code. . . .
The decision infringes the complainants basic right under Article 5 (1) only if the ap-
plicable rules of private law would be so affected by a basic right as to negate the
courts 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 Courts 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 individ-
ual against interferences by public authority. They are defensive rights of the indi-
vidual 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
 444 chapter eight
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 pro-
vision 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 indi-
viduals concerning rights and duties emanating from provisions of private law
provisions influenced by the basic rightsremains 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 orderin the
broad sensethat is, rules that in the interest of the general welfare apply to private
legal relationships, whether the parties so choose or not. These provisions, comple-
menting 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 Sit-
ten) 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 pro-
visions, modify accordingly the interpretation of private law. Th is follows from Article
 Fr eedom of Speech, Pr ess, and Art 445
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 cor-
rectly 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 re-
spect 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 it-
self, 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 liv-
ing 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 liberal-
democratic 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
 446 chapter eight
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 expres-
sions 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 pro-
tected 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 ef-
fect is free. When, however, an expression of opinion encroaches upon the right of
another persona right protected by law and deserving of priority over freedom of
opinionit is not protected merely because it takes the form of an opinion. A bal-
ancing 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 inter-
ests of other persons are implicated must be ascertained on the basis of the circum-
stances 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 rela-
tions between individuals and the state.]
 Fr eedom of Speech, Pr ess, and Art 447
4. . . . The complainant fears that any restriction upon freedom of speech might
excessively limit a citizens 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 frame-
work of a private dispute but for the purpose of influencing public opinion. Thus, his
or her opinion may possibly have an impact upon anothers private rights even though
this is not his or her intention. Here the relationship between ends and means is im-
portant. The protection of speech is entitled to less protection when exercised to de-
fend a private interestparticularly when the individual pursues a selfish goal within
the economic sectorthan 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 bal-
ancing of the factors can violate a persons basic right and provide the basis for a con-
stitutional 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 complainants 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 complainants 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 Harlans 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 ad-
vocacy 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 Lths interests against those of Har-
lan and the fi lm companies. It held that the regional court had given insufficient
 448 chapter eight
attention to the motives of the complainant and the historical context of his
remarks. The Courts concerns are captured in the following extracts.]
2. b. . . . The complainants statements must be seen within the context of his gen-
eral political and cultural efforts. He was motivated by the fear that Harlans reap-
pearance mightespecially in foreign countriesbe interpreted to mean that noth-
ing 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 peo-
ple have abandoned this attitude of mind and condemned it not for reasons of politi-
cal 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 Harlans 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 Harlans 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 protec-
tion; after all, the basic rights 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 con-
sider [the significance of this right] when it comes into confl ict with the private inter-
ests of others. The ordinary courts decision is thus based on an incorrect application
of the standards applying to basic rights and violates the basic right of the complain-
ant under Article 5 (1) of the Basic Law. It must, therefore, be quashed.

The Seminal Character of Lth. Lth 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
 Fr eedom of Speech, Pr ess, and Art 449
warrants a careful summary of its rulings. First, the decision emphasizes the indi-
vidual and social dimensions of speech: individual persons value speech because
their intellectual and spiritual natures require dialogue and discussion; society cher-
ishes 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, Lth solidifies the canonical status of the
Basic Law as a hierarchy of objective values.6 Fift h, and most surprisingly, the objec-
tive values of the constitution affect all areas of law, including private law (the so-
called Drittwirkungliterally, third-party or radiating effectof basic rights).
These objective values are said to have an indirect or horizontal effect on private-law
disputes between individuals. In the Courts 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 (non-
speech) 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 courts fatal
error in Lth was its failure to engage properly in this balancing process. Its exclu-
sive focus on Harlans private interest as a motion picture producer was unaccept-
able in view of the overriding public interest in the dispute generated by Lths plea
for a boycott.9
The Basic Law provides several exceptions to the general rule against the imposi-
tion of a content-based abridgment of individual expression; Article 21 (2), which
prohibits political parties opposed to the free democratic order, is the most famil-
iar.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 con-
stitutional order or the concept of international understanding. In addition, Article
5 (3) bars teachers from engaging in disloyal speech, and Article 139 explicitly ex-
empts these forms of speech from the constitutions 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
 450 chapter eight
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 Laws 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 Schmid-
Spiegel Case. Unlike the civil suit for damages brought against Hamburgs press sec-
retary for his political and moral criticism of Harlan, the complainant in Schmid-
Spiegel 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 Laws speech and press clauses. The case is important for what it adds, beyond
Lth, 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 high-
ranking 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 commu-
nist sympathies in an article entitled Arrested on the Volga, even though it
had reliable information to the contrary. Judge Schmid, writing in a daily news-
paper, struck back with a strong verbal assault on Der Spiegel, accusing the
magazine of lying about him and comparing its political reporting to pornogra-
phy. Der Spiegels editor and publisher secured a criminal libel judgment against
Schmid in the Gttingen Regional Court, and its decision was affi rmed on ap-
peal. 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 re-
viewed only when courts, in applying statutory provisions for the protection of per-
sonal 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 Gttingen Regional Court and the Celle Higher Regional Court
 Fr eedom of Speech, Pr ess, and Art 451
(Oberlandesgericht) violate the complainants right under Article 5 (1) because they
fail to recognize the constitutional importance of the process of forming public opin-
ion; as a consequence, the influence of the basic right to freedom of expression was
inadequately considered in the interpretation and application of the statutory provi-
sions on defamation.
1. In its judgment of 15 January 1958 [the Lth 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 person-
ality 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 mu-
tual 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 pri-
vate prosecutorsthat is, the individuals harmed by defamatory statements.
Section 193 of the Penal Code, however, provides: Critical comment on scien-
tific, artistic, or commercial production, as well as expressions made in the exer-
cise or defense of rights, or in order to protect justifiable interests . . . are pun-
ishable 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 pur-
pose 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 Spiegels 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
 452 chapter eight
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 inter-
ests 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 Spiegels
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 complainants political
past and raising the issue of his suitability for a high judicial post, took sides in a dis-
pute 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 presss mission to inform citizens
about public affairs. But there is a similar public interest in safeguarding the com-
plainants 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 express-
ing his own opinion. . . .
[The Court went on to emphasize the importance of a free press in forming
public opinion. It acknowledged Der Spiegels 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 publics trust in state
administration and the judiciary.]
Press freedomunder the protection of which the Volga article as such stoodis
accompanied by duties that must be taken all the more seriously the higher the funda-
mental 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, ac-
cording 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 there-
fore 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
complainants 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 complainants 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 complainants life, remaining
diligently silent about anything that could attenuate the suspicion of communist
 Fr eedom of Speech, Pr ess, and Art 453
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 ap-
pearance of the whole truth. . . .
How the complainant replies, together with the manner of the statement pre-
sented for public debate, is decisively to be determined by the nature of Der Spiegels
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 repu-
tation. 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 [in-
volved 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 complainants 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 Lth, the importance of
balancing rights and values. Just as Lth required courts of ordinary jurisdiction to
balance the right to freedom of speech against the value of personal honor, Schmid-
Spiegel 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 recog-
nizes, 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
 454 chapter eight
(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 criti-
cism by employing equally abusive language if such speech is necessary to offset the
rancor and misrepresentation of the initial attackers original onslaught.13

Rmerberg Speech Case. The Rmerberg Speech Case (1980) is one of several decisions
in which the Court reasserted its view that a sharp attack deserves a stinging re-
buke.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 Frankfurts Rmerthe centuries-old city hallthe 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 re-
buked the professors with equal gusto, accusing them of hate-fi lled tirades that
united left-wing theoreticians and right-wing demagogues . . . in hypocritical agree-
ment. 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 journalis-
tic comments as evaluative statements or expressions of opinion protected by Ar-
ticle 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 al-
ways reckless or untruthful speech. The Blinkfer Case, another leading case in
German free speech jurisprudence, illustrates one mode of speech that is not pro-
tected under the Basic Law.

8.3 Blinkfer Case (1969)

25 BVerfGE 256
[Like Lth, this case involved a boycott. Blinkfer was a small-circulation, pro-
communist weekly newspaper that advertised East German radio and television
 Fr eedom of Speech, Pr ess, and Art 455
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 Blinkfer and threatening to withdraw its own products from
noncompliant dealers. The publisher and editor of Blinkfer sued Springer suc-
cessfully 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, will-
fully 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 Springers right
to blacklist the newspaper was covered by the free speech provisions of Article 5.
Blinkfer 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 free-
dom of the press. In its judgment, the Federal Court of Justice misunderstood the
scope of the defendants right to free expression of opinion; in reviewing the com-
plainants 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 re-
quest that dealers cease distributing newspapers with East German radio and televi-
sion 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 constitu-
tional right.
As an organized and at least partial attempt to prevent the sale of Blinkfer, the
defendants 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 per-
sons so directed of their ability to decide freely. Calls for a boycott based on the ex-
pression of a certain opinion and serving as a means in the intellectual struggle to
influence public opinion on an issue of fundamental public concernthat is, where
the struggle is not based on a private dispute but on concern for political, economic,
social, or cultural interestsfall within the protection of Article 5 (1) [1]. The call for
 456 chapter eight
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 contro-
versy. 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 constitution-
ally 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 abil-
ity to draw their conclusions freely and in the absence of economic pressure. The lat-
ter 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 prerequi-
site 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 pres-
sure entails severe disadvantages for those affected by it, and is aimed at prevent-
ing the constitutionally guaranteed dissemination of opinions and news, it violates
equality of opportunity in the process of forming political opinion. It also contra-
dicts 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 constitu-
tional right guaranteed by Article 5 (1) [1] of the Basic Law. If, for example, the defen-
dant 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 it-
self to a call for a reader boycott of the newspapers and magazines in question, then
its conduct would have been constitutionally unobjectionable. The defendant, iden-
tifying public interests with its own, would have addressed those most concerned
about the issue under discussion. But because the subjects of the boycott were eco-
nom ical ly and legally dependent on the defendant, the circular sent to newspaper
and magazine dealers was an inappropriate means of generating an intellectual dis-
cussion of the admissibility and feasibility of publishing the programs of East Ger-
man radio and television stations. . . .
In this respect the facts are essentially different from the so-called Lth deci-
sion. Lths call for a boycott was simply an appeal to the moral and political re-
sponsibility of his audience; it was incapable of directly and effectively restricting
the human and artistic freedom of movie director Harlan, for Lth had no means
of coercion at his disposal that could lend emphasis to his request. All he could do
 Fr eedom of Speech, Pr ess, and Art 457
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 defendants 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 con-
trol of the market. . . .
2. . . . The complainant, on the other hand, depended for his livelihood on this dis-
tribution 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 con-
stitutional rights. The ordinary courts 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 Blinkfer. 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 Lth, the motives and purposes of
the speaker.18 Second, the Court sees its task as one of balancing competing inter-
ests.19 In the circumstances of Blinkfer, the right to operate ones business free of
economic coercion outweighed the freedom to advocate a boycott. In this respect
Blinkfer differs from Lth. Lth 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 Blinkfer rather than to influence
public opinion. The Court did not lightly dismiss Springers free speech claim. The
company may well have won, absent economic coercion. In short, given the con-
text of the case, Blinkfers right to disseminate information on East German radio
and television programs trumped Springers right to freedom of speech. In so hold-
ing, the Court reemphasized the principal teaching of Lthnamely, that consti-
tutional 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, Blinkfer could proceed directly against Springer for violation of Blink-
fers basic right of free reporting; at least, under the Courts indirect theory,
Blinkfer 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, Blinkfer 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 pri-
vate individuals.21
 458 chapter eight
Another thread running through Blinkfer is solicitude for the recipient of infor-
mation. 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 three-
justice chamber of the First Senate ruled that this right did not permit a tenant to
erect a television dish on the roof of his apartments building over the landlords ob-
jection. The landlord had already installed a cable television connection for all his
tenants, and thus, said the chamber, the landlords interest in keeping unsightly re-
ceiving equipment off his roof outweighed the tenants 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 Blinkfer, 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 Germanys state security. (Millions of such publications had been seized or
monitored over the years under a federal surveillance statute authorizing these ac-
tions.) The Leipzig Daily Newspaper Case arose from a constitutional complaint
against customs officials seizure of copies of the Leipzig Tageszeitung. The West Ger-
man subscriber in this litigation successfully challenged the court order permitting
the newspapers 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 de-
clare, 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. Lneburgs 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 Arti-
cle 5 (1) on the applicable legal provisions, for which reason the lower courts decision
was quashed and the case remanded.26
Demokrat Newspaper reaffi rmed the critical importance of informational freedom
as a constitutional rightand 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 sei-
zure 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
 Fr eedom of Speech, Pr ess, and Art 459
of their content. Subscriber or not, said the Court, the recipient was entitled to re-
ceive 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 pub-
lic policy.28 The constitutional principle of proportionality, said the Court, re-
quires that checks be so handled as to take the recipients 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 in-
form 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 sus-
tained the Film Importation Act of 1961 over the minoritys objection that it con-
fl icted with the right to freedom of information and thus constituted de facto censor-
ship.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. Nev-
ertheless, the safeguards against prior censorship are substantial. As a matter of con-
stitutional 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
 460 chapter eight
that it means much more than that,36 for the Basic Laws 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 in-
forming 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 one-
self 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 com-
mercial 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 consti-
tute 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, un-
derscoring 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 con-
stitutional 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 Su-
preme 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 communi-
cation limited by law, the Supreme Court employs an extremely high standard of re-
view, 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 compel-
ling 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 pro-
portionality 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 sug-
gested that balancing of this nature leads to an unprincipled process of ad hoc deci-
sion making incompatible with the need for moral clarity as well as doctrinal consis-
tency and coherence if rights are to be taken seriously.43 As the following cases show,
 Fr eedom of Speech, Pr ess, and Art 461
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 Lth and csu- npd.
During this period the Courts analytical approach to balancing confl icting values
changed significantly. In Lth the Court itself independently examined the par ticu-
lar 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 unwill-
ing 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 personby this time deceasedon
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 Lths emphasis on the primacy
of free speech.
The Deutschland Magazine Case (1976)45 expressed the First Senates dissatisfac-
tion with the existing standard of constitutional review. It shifted away from the ap-
proach 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 Lth and Mephisto, the First Senate laid down a new stan-
dard of review:
There are no rigid and invariable limits on the Courts intervention. We retain a de-
gree 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 Constitu-
tional 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 assess-
ing the significance of a basic right. . . . The more a civil courts decision encroaches
upon the sphere of protected rights, the more searching must be the Constitutional
Courts scrutiny to determine whether the infringement is constitutionally valid;
and where the infringement is extremely burdensome the Court may even substi-
tute its judgment for that of the civil courts.46
A labor union publication had described Deutschland Magazine, a conservative news-
paper, as a right radical hate sheet. The magazines 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 sus-
tained the ban on the original statement but overturned the prohibition of words
having the same meaning. The First Senate, citing Lth, noted that any judicial rul-
ing 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 Courts jurisprudence toward greater scru-
tiny 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
Bavarias majority party, the Christian Social Union (csu), as the npd of
Eu rope. (The reference was to West Germanys 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 ordi-
nary courts, the judgment was challenged by the spd candidate in a constitu-
tional 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 interfer-
ences 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
 Fr eedom of Speech, Pr ess, and Art 463
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 lim-
its 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 speakers 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 cam-
paign, 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 allega-
tions 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 hold-
ing an opinion within the framework of intellectual disputation. The value, truthful-
ness, 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 opin-
ion 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 utterancesas frequently
happensare combined with elements of reported facts or allegations of fact, espe-
cially 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,
 464 chapter eight
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 asser-
tion; 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 audi-
ence 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 over-
statement. 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 opin-
ion 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 activitiesin 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 re-
manded 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 deroga-
tory speech may be tolerated in political circumstances such as those in the Schmid-
Spiegel Case, which involved the reputation of the judiciary, a fabricated press inter-
view 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
 Fr eedom of Speech, Pr ess, and Art 465
The Picture Postcard Case (1984) is yet another example of the Courts 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 dispar-
age 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. Re-
versing, 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 con-
siderable public interest. In the light of an existing public controversy surrounding
the alleged criminal behavior of some private security guards, the portrayal contrib-
uted, 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 re-
jected any analogy between Picture Postcard and Schmid-Spiegel. The commercial in-
terest 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 Germanys 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 Strausss unmis-
takable 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 constitu-
tional complaint against the decision of the Hamburg Higher Regional Court
affi rming a monetary damage award. The Constitutional Court turned away
the magazines claims.]

Judgment of the First Senate. . . .
C. The constitutional complaint is unjustified and dismissed. . . .
 466 chapter eight
I. 1. Even in cases claiming a violation of the freedom of artistic expression, it is not
the Federal Constitutional Courts task to review the decisions of the ordinary courts
to determine whether they are correct in the interpretation of ordinary law. Need-
less to say, the Court has always based the limits of judicial intervention on the de-
gree of intensity with which an ordinary court affects the sphere of the person con-
victed. 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 funda-
mental right in question, but it also reviews the interpretation of ordinary law in de-
tail to insure the compatibility of the contested decision with the fundamental right.
Therefore, what needs to be established is not only whether the complainants
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 rightbut 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 complainants drawings are regarded as art within the meaning of the fun-
damental right guaranteed by Article 5 (3) [1] of the Basic Law. Despite the impossi-
bility 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 Ar-
ticle 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 dif-
ferentiate between higher and lower or good and bad art; that would amount
to a constitutionally inadmissible regulation of artistic content. The disputed carica-
tures 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 mutu-
ally 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
courts 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 defama-
tory 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 appro-
priate 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
 Fr eedom of Speech, Pr ess, and Art 467
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 deter-
mine 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 strin-
gent 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 individualswho, like Strauss, are public figuresare 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 com-
plainant 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 pres-
ently still belongs to the protected core of ones intimate sphere, was meant to de-
value 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.

Liberty versus Dignity. Political Satire presents a splendid opportunity to underscore
one of the major differences between German and American perspectives on freedom
 468 chapter eight
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 con-
ceding 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 coun-
tervailing social values if political discourse through the medium of satire is to sur-
vive in America.
If the U.S. Constitution can be characterized as a charter of liberty, Germanys
Basic Law can surely be identified as one of dignity. In short, as the cases and materi-
als in the previous chapter illustrate as well, dignity and liberty are their respective
architectonic values. Former justice Dieter Grimm has observed that human dig-
nity is the unalterable foundation of Germanys 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 indi-
vidual. Indeed, the overlap between liberty and dignity in the two bodies of jurispru-
dence 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 ju-
risprudence 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 Germanys 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 lexi-
cally 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, Germanys 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 Ger-
man 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 resi-
dence 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
 Fr eedom of Speech, Pr ess, and Art 469
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
Tucholskys 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, mark-
ing 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 Courts decisions, ruled that the slogan was a pro-
tected 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. Germanys
foreign and defense ministers and other members of parliament expressed their in-
dignation on the floor of the Bundestag. Letters to the nations newspapers thun-
dered with outrage. Some prominent constitutional scholars added their own voices
of disapproval. A former director of the well-known Max Planck Institute of Com-
parative Public Law and Public International Law deplored the unlimited individ-
ual freedom he believed Tucholsky I had sanctioned in Germanys value-ordered so-
ciety. Echoing parliamentary criticism, he argued that the murderers slogan poisons
the international atmosphere and undermines the international communitys efforts
to maintain peace and order in the world.57 Many Germans, particularly social and
political conservatives, found it hard to reconcile the chambers opinion with Ger-
manys 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 three-
justice 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 juris-
prudence the Constitutional Court had manifested a clear tendency to prefer free-
dom 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 courts judgment
because of its failure to properly weigh the constitutional values at stake in the con-
troversy. As the following excerpt from Tucholsky II reveals, this was not to be the
end of the matter.
 470 chapter eight

8.6 Tucholsky II (Soldiers Are Murderers) Case (1995)

93 BverfGE 266
[The full senate revisited the soldiers are murderers controversy in four re-
lated cases consolidated for decision in Tucholsky II. In each case the complain-
ant 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) pro-
vided 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 provi-
sions 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 exam-
ined in the chamber decision.]

Judgment of the First Senate. . . .
C. Insofar as they are admissible, the constitutional complaints are justified. The de-
cisions challenged have not taken adequate account of the complainants fundamen-
tal 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 im-
ages. 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 fundamen-
tal right of Article 5 (1) protects. The right exists irrespective of whether the state-
ment 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 defama-
tion 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. . . .
 Fr eedom of Speech, Pr ess, and Art 471
2. Convicting complainants for statements of this kind constitutes an encroach-
ment 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 un-
reservedly. 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
Courts jurisprudence repeatedly notes, the question is whether the constitu-
tional 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 Codes 193, which excludes punishment for a state-
ment 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 ac-
count. The outcome of this balancing process cannot be anticipated generally or ab-
stractly 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 anothers 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 con-
stitute formal defamation or vilification, freedom of opinion regularly takes second
place to the protection of honor. Because of its effect in suppressing freedom of opin-
ion, however, the Federal Constitutional Court has defi ned the concept of vilifica-
tion narrowly in line with the interpretation of the ordinary courts. Accordingly, ex-
aggerated or even downright rude criticism does not in itself make a statement an
 472 chapter eight
exercise in vilification. Instead, the statement must exceed the boundary of discus-
sion by thrusting the defamatory statement into the foreground. In short, the state-
ment 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 ob-
server. 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 deter-
mined 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 dis-
puted 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 ap-
plies 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 mur-
derer is a severe attack on the soldiers 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 de-
grading the person concerned in the view of the surrounding world. Th is is particu-
larly the case where the accusation relates not to an individual soldiers conduct but to
the whole of his or her professional activity.
The courts have not, however, adequately ascertained whether the statements sub-
jected to punishment actually had this meaning. They ought to have considered al-
ternative 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 pun-
ished 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 lis-
tening 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. . . .
 Fr eedom of Speech, Pr ess, and Art 473
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 con-
demned because they are associated generally with killing people, in some circum-
stances 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 indi-
viduals. 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 di-
minish 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 dis-
paraging 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, par-
ticularly 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 provi-
sions 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 con-
sidered 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 opin-
ion especially applies. . . .
 474 chapter eight
As the Federal Court of Justice has ruled, collective defamation can only be ap-
plied to an identifiable group. . . . The defamatory statements must therefore be asso-
ciated 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 iden-
tifiable group. Some groups, such as all Catholics and Protestants, all trade-
union 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 con-
stitutionally prevented from seeing the active soldiers of the Bundeswehr as an ade-
quately 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, how-
ever, 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 ut-
tered against the soldiers, taking their context into account, discussion of the legiti-
mate 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 asso-
ciations 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
Laws free speech values. In short, the complainants were expressing an opin-
ion 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 func-
tions without a minimum measure of societal acceptance. They can therefore
be protected from verbal attacks that potentially undermine their social accep-
tance. Still, said the senate, the Penal Code must not shield public institutions
 Fr eedom of Speech, Pr ess, and Art 475
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 mur-
derers, 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 de-
famatory statements and how they would be understood by the average observer
hearing the statements at a given time and place. . . .
[For Justice Haas, the Courts main error was in second-guessing the judgment
of the ordinary courts. In her view, the Court should have deferred to the judg-
ment 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 com-
plainants 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 con-
cluded 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 Germanys armed ser vices, thus undermin-
ing their honor and worthiness. She acknowledged the tension between free-
dom 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 pre-
scribed 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 con-
temptuously 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 constitu-
tion 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.

 476 chapter eight
Related Freedom of Expression Cases. In the Darmstadt Signals Case (1993) a three-
justice chamber of the First Senate ruled that a soldier could not be punished or de-
moted 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 seek-
ing to suppress the communication of a political message. As the Dissident Officers
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 sup-
pressing 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-Spiegels
Gegenschlag theory of speech. The officers speech, critical of an organization of con-
scientious objectors and certain pacifist groups, was reported in the press. The sol-
dier sought to put the record straight by writing a letter to the editor challenging the
accuracy of the officers account. In overturning his court-martial for breaching mili-
tary discipline the Constitutional Court ruled that once the officers 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 ones 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 re-
quired 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 consti-
tution 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 governments interest in maintaining the fidelity of its employees.
The Prison Privacy Case (1976) raises the issue of order and discipline in still an-
other 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 defendants constitutional complaint presented
the Court with an opportunity to reaffi rm the value of privacy guaranteed by the right
to develop ones personality freely, reinforced in this case by the constitutional protec-
tion 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 intem-
perate, on a pending trial in a private communication to his or her spouse.64
 Fr eedom of Speech, Pr ess, and Art 477
Scientology, Stasi Stolpe, and Sexual Abuse Cases. In three important cases the Con-
stitutional 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 repu-
tation. 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 mem-
bership 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 me-
morial in Saarbrcken.) Claiming that he was not a member of Scientology, the artist
sued for defamation and lost in the ordinary courts. The Constitutional Courts First
Senate, however, pronounced these judgments unconstitutional because the com-
plainant 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 po-
tential 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 state-
ments about an individuals group associations. Accordingly, the ordinary courts de-
cisions 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, Brandenburgs spd minister-president, had spent
twenty years in the employ of East Germanys Ministry of State Security where he
had been registered as an unofficial collaborator. Stolpe sued for defamation, claim-
ing 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 Stolpes 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 defendants statement had been made in the po-
litical battle of opinions on a question of public importance and since the complain-
ant himself had participated in the debate about his role in East Germany, the Fed-
eral Court of Justice ruled in favor of the defendants free speech claim. The
Constitutional Court held that the ruling against Stolpe had not adequately consid-
ered these alternative interpretations, permitting the public to accept the most dam-
aging interpretation of Stolpes complicity and, thus, undermining his social stand-
ing 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
 478 chapter eight
abuse, she lost her job, succumbed to an addiction, and experienced severe psycho-
logical 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 daughters state-
ments 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 Courts order. Drawing heavily on its judgment in the Lth Case, and
distinguishing its judgment in Lebach, the Constitutional Court nullified the judicial
order. The Court found that the ordinary courts decision constituted a violation of
the complainants rights under Article 5 (1) and Article 2 (1). The right to use ones own
name, said the Court, is not only a free speech guarantee but also a right of personal-
ity, 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 mem-
ber 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 nurs-
ing 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 homes residents?
After the publication of the queries, the manager of the nursing home won a defa-
mation 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 signifi-
cance 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
 Fr eedom of Speech, Pr ess, and Art 479
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, there-
fore, 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 per-
sonal honor. Th is text provides little basis for elevating speech into an absolute value
capable of trumping other personal interests protected by the constitution. More-
over, 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 ef-
fect 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 Ar-
ticle 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 Holo-
caust Denial cases do not open new doctrinal frontiers in Germanys free speech ju-
risprudence, 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 ones 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 pub-
lishing truthful images of a public persons activities in semipublic settings. Holo-
caust Denial, fi nally, is a subset of the larger problem of separating truth from false-
hood 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 se-
verely wounded. After his arrest and conviction as an accessory, he was sentenced
 480 chapter eight
to six years imprisonment. The crime and trial of the complainant attracted
considerable public attention. Some years later, several months before the com-
plainant 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 defen-
dants photograph, to identify him by name, and to make reference to his ho-
mosexual tendencies. The complainant sought an injunction prohibiting the
television company from broadcasting the documentary. Citing the broadcast-
ing freedom provision of Article 5, the Regional Court of Mainz dismissed the
case. After weighing the interests of the complainant in the light of constitu-
tional 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 Consti-
tutional Court validated his claims.]

Judgment of the First Senate. . . .
B. II. In the present case the Higher Regional Court held correctly that several fun-
damental rights affect the application of private law and that they pull in opposite
directions. The right to ones personality guaranteed by Article 2 (1) in conjunction
with Article 1 (1) of the Basic Law confl icts with the freedom of broadcasters to pro-
vide 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 ori-
gin, 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 ones personality and human dignity secure for
everyone an autonomous sphere in which to shape ones private life by developing
and protecting ones individuality. Th is includes the right to remain alone, to be one-
self within this sphere, and to exclude the intrusion of or the inspection by others. It
also encompasses the right to ones 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 ones 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 rela-
tions 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 commu-
nal life, the exclusive right to be master of ones private sphere may become subject to
restrictions unless the inviolable, innermost sphere of life is involved. Any such so-
cial involvement, if sufficiently strong, may justify measures taken by public authori-
 Fr eedom of Speech, Pr ess, and Art 481
ties in the interest of the public as a whole; for example, publishing pictures of a sus-
pect in order to facilitate a criminal investigation. Neither the states 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 de-
velop 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 essen-
tial 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 deter-
mine 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 constitutions 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 re-
sulting 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 constitution-
ally 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 persons 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 pre-
sentation 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 pro-
vided 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 in-
formation 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, in-
nermost personal sphere of the accused but also a strict regard for the principle of
 482 chapter eight
proportionality. The invasion of the personal sphere is limited to the need to ade-
quately satisfy the publics interest in receiving information, while the harm infl icted
upon the accused must be proportional to the seriousness of the offense or to its im-
portance otherwise for the public. Consequently, it is not always permissible to dis-
close 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 crimi-
nal. Instead, when the publics interest in receiving current information about the
crime has been satisfied, the criminals right to be left alone fundamentally in-
creases in importance, thus limiting the extent to which the media and the public
may convert the individual sphere of the criminals 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 criminals per-
sonal 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
publics 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 criminals personal sphere can no longer
be justified. Television broadcasts in par ticu lar, with their correspondingly large au-
dience, would subject the criminal to renewed social sanctions. . . .
5. a. We cannot generally and precisely state when the legitimate reporting of cur-
rent 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 informa-
tion that is already available.
b. What needs to be considered with regard to a more precise determination of
any temporal limitation is the criminals 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 resocializa-
tion 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. Accord-
ingly, 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
 Fr eedom of Speech, Pr ess, and Art 483
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 sen-
tences will be oriented mainly toward the prisoners 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 self-
perception 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 sen-
tences. 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 communitys 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, resocial-
ization 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 justi-
fied by the publics interest in receiving information about current events may not be
rebroadcast if it endangers the social rehabilitation of the criminal. The criminals
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 publics
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.

Lebach represents a model case of balancing in German constitutional law. Two val-
ues of equal weight are involved here, namely the protection of privacy and the free-
dom 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
 484 chapter eight
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 recentand
truthfulpublic 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 nor-
malize 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 ones 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 circum-
stances and it includes such matters as personal sexuality, illness, or physical condi-
tion.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 activ-
ity 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 Con-
stitutional Court tended to view with equal gravity serious invasions of the constitu-
tional values of human dignity (Article 1) and personality (Article 2). Lebach fore-
shadowed this tendency. Even though the complainant had projected himself into
public view, creating a newsworthy event by his criminal activity, his interest in pri-
vacy 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
 Fr eedom of Speech, Pr ess, and Art 485
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 Bll 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 Bll, an acclaimed Catholic novelist and winner of the 1972 Nobel
Prize for Literature, sued a popular television personality for associating him with po-
litical terrorism in Germany. He had quoted Bll 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, Bll was awarded dam-
ages by Colognes Higher Regional Court. On appeal, the Federal Court of Justice
quashed the damage award, suggesting that the commentators remarks were a rea-
sonable interpretation of the authors public criticism of the Federal Republic and,
thus, protected by the Basic Laws free speech provisions of Article 5 (1). The Consti-
tutional Court rejected this view of the matter, holding that the television critic mis-
quoted Bll, distorting his message and violating his personal honor and personality
rights. The Court ruled that the protection of personal honor includes the speakers
right to his own words and the [correlative] right to determine how he will present
himself to another person or to the public.79
Bll seemed actually to enhance the importance of personality under the Basic
Law. Bll differed from Mephisto, Deutschland Magazine, Lth, and other cases be-
cause, 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 Bll con-
sists in the Constitutional Courts declaration that the Federal Court of Justices re-
jection of the damage award constituted a serious threat to Blls right of personality
within the meaning of Articles 1 and 2 of the Basic Law.
When Lth 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 Courts prevail-
ing 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 accord-
ingly. Second, if true statements of fact invade the intimate personal sphere of an indi-
vidual, the right to personal honor trumps freedom of speech. But if such truths impli-
cate the social sphere the Court once again resorts to balancing. Finally, if the
expression of an opinionas opposed to factconstitutes a serious aff ront to the
dignity of a person, the value of personal honor triumphs over speech. But if the dam-
age to reputation is slight, then again the outcome of the case will depend on careful
judicial balancing.81
 486 chapter eight

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
princes daughter, she served as president of certain humanitarian and cultural
foundations named after members of the ruling family but performed no offi-
cial 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 com-
pany of her bodyguard, all accompanied by captions such as She loves shop-
ping by herself and I dont think I could be a mans ideal wife.
Seeking to protect her privacy, Princess Caroline sued to enjoin the publisher
from any further publication or redistribution of these photographs. Hamburgs
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 con-
cluded 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 Carolines constitutional complaint before
the Federal Constitutional Court. The complaint alleged that each of the ordi-
nary courts decisions violated the general right to personality under Article 2 (1)
in conjunction with Article 1 (1) of the Basic Law.]

Judgment of the First Senate. . . .
The judgments of the ordinary courts infringe the complainants basic rights under Ar-
ticle 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 complainants 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 con-
texts 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 por-
trayed 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 ones 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 re-
spect. 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 ones own image as well as privacy. . . .
[The First Senate distinguished here between the right to control ones 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 individuals
personality would be seriously impaired if the individual could only evade pub-
lic 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 technol-
ogy and its capacity to invade the sphere of spatial privacy without the knowl-
edge 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 observa-
tion 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
 488 chapter eight
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 relation-
ship 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 (Kunsthe-
bergesetz) [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 pub-
lication 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 inci-
dent (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 communitys 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 communitys 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 in-
terpretation 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 constitu-
tional values, in this instance the general right of personality as colored by Arti-
cle 6s 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 stan-
dards 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. Enter-
tainment also plays a role in the formation of opinion. It can sometimes even stimu-
late 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 enter-
tainment or mix it with entertainment (infotainment). Consequently, many read-
ers obtain information they consider to be important or interesting from the presss
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 impor-
tant 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, inter-
est 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 ex-
plains 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
Justices 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 publics interest, particu-
larly 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 mod-
els, 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 con-
temporary history were to be limited to their official functions, insufficient account
 490 chapter eight
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 nec-
essary 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 his-
tory. 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, consis-
tent 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 pub-
lic attentionand 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 persons 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 Jus-
tice cannot be criticized under constitutional law with respect to pictures of the com-
plainant 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 con-
cerned 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 Justices 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 belong-
ing 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 ques-
tion 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 remit-
ted to that court.

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 Zrs/
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 courts dismissal of these actions, refer-
ring to the Courts 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 Courts decision in Princess Caroline II interfered
with the applicants 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 Con-
stitutional 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 photosparticularly those taken with the ap-
plicants childrenand accompanying commentaries relate exclusively to details of
the applicants 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
 492 chapter eight
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 ecthrs decision, Princess Caroline and two magazines
fi led competing constitutional complaints based, respectively, on the rights of pri-
vacy 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 prin-
cess and her husband to let a holiday villa belonging to them. The pictures showed
the couple in various holiday settingsone in attendance at a society ball and an-
other at a ski resort in Switzerlandin 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 free-
dom of the press and the right to privacy embodied in the Basic Laws 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 func-
tion.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 balanc-
ing 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 contem-
porary history, and thus contribute to the formation of public opinion in the light of
the Basic Law and the ecthrs 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 relaxationeven in a pub-
lic placefurther 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 pub-
lishers 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 Caro-
line cases is another example of the dialogue between these important tribunals
that we discuss more fully in Chapter 6.
 Fr eedom of Speech, Pr ess, and Art 493

8.9 Holocaust Denial Case (1994)

90 BVerfGE 241
[In 1991 a regional association of the far-right npd issued invitations to a meet-
ing intended to discuss Germanys future in the shadow of political black-
mail. 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 hap-
pened. 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 vio-
lations. 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 states 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 Constitu-
tional Court, which found no constitutional violation.]

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 meet-
ing on grounds that it violates the right to free assembly. The subject of the com-
plaint, however, is certain utterances that the complainant, who organized the meet-
ing, 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 individuals subjective relationship to the content of his or
her utterance. Comment and appraisal are elements of opinion. To this extent, dem-
onstrating the truth or untruth of opinions is impossible. Opinions enjoy the protec-
tion 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
 494 chapter eight
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) pro-
tects 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 guar-
antee 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 ex-
pression 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 protect-
ing youth and personal honor. We must nevertheless consider the significance of
free expression in interpreting and applying laws that limit it. Th is usually re-
quires 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 individ-
ual 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 nor-
mally 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 demon-
strably untrue, freedom of expression usually gives way to the protection of personal-
ity. 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
 Fr eedom of Speech, Pr ess, and Art 495
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 over-
seeing the meeting and affi rmed by the administrative courts: namely, that utter-
ances of this kind would be made during the meeting. On the contrary, the com-
plainant 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 in-
numerable eyewitness accounts, documents, fi ndings of courts in numerous crimi-
nal 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 impor-
tant difference between denying the Th ird Reichs persecution of the Jews and deny-
ing 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 responsi-
bility for historical events are always complex evaluations not reducible to represen-
tations of fact, while denial of the very existence of an event will normally be a repre-
sentation 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 deci-
sions 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 gov-
ernment 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 constitu-
tionality 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
 496 chapter eight
expression. Section 130 of the Penal Code is a general law within the meaning of Ar-
ticle 5 (2) serving to protect humanity, ultimately founded on Article 1 (1). . . .
1. The administrative authorities and courts based their decisions on the ordi-
nary 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 re-
garded 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 rela-
tionship vis--vis their fellow citizens; what happened then is also present in this re-
lationship 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 guar-
antees 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--vis each individual the personal worth of Jewish persons. For the person con-
cerned, this is continuing discrimination against the group to which he or she be-
longs and, as part of the group, against him or her.
In the light of this Courts 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 Justices 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 todays Jews. In this way, there is also a distinction between deny-
ing the persecution of the Jews and denying German war guilt. . . .
2. Balancing defamation, on the one hand, against limits on freedom of expres-
sion, on the other, does not reveal any constitutional errors in this case. It is the grav-
ity 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 protec-
tion. 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 as-
sertions 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 fac-
tual content has been proven false. Hence, interfering with it is not particularly seri-
ous. 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.
 Fr eedom of Speech, Pr ess, and Art 497
It does not matter if one sees Germanys 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 of-
fensive utterance rests on demonstrably untrue representations of fact.
Th is balance, then, does not result in a stretch of the requirements of truth appli-
cable 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
Courts limits on free communication and control over the media, refers to represen-
tations 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.

Historical Fabrication Case. In its Holocaust Denial decision the Court distinguished
its reasoning from circumstances surrounding the expression of doubt over Germanys
guilt for starting World War II. This arose in the Historical Fabrication Case (1994). Cru-
cial to the Courts judgment in Holocaust Denial was the distinction between matters of
demonstrable fact and matters of interpretation combined with the permissible limi-
tations on free expression that flow from the Basic Laws 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 opinionhowever falsewithin the mean-
ing of Article 5 (1) and thus constituted protected speech. The Courts 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
 498 chapter eight
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 signifi-
cant 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 en-
joys 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 manu-
facturers 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 products sur-
face. 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 argu-
ment holding that Article 5 (1) may be invoked in commercial speech cases only
where there is some educational purpose behind the advertisement. The Court ac-
cepted the complaint, however, under Article 12 (1) as an infringement upon occupa-
tional 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 dispropor-
tionate 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 Companys claim that its activity contributed to environmen-
tal protection and human health. Bayer successfully sued to enjoin the repetition of
statements accusing the company of putting profits ahead of human rights and demo-
cratic freedoms. In its examination of these and related assertions, the Constitu-
tional 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 Senates re-
view of judicial decisions involving defamatory or malicious speech. These principles
merit repetition. First, the senate once again underscored the difference between
 Fr eedom of Speech, Pr ess, and Art 499
value judgments and factual assertions, and even while acknowledging the difficulty
of identifying false assertions in mixed statements of fact and value, found that free-
dom of opinion does not extend to untrue factual assertions. Second, the senate reit-
erated its view that a violation of constitutional law that requires this Courts correc-
tion exists only when a court decision reveals mistakes of interpretation based on a
fundamentally incorrect view of a basic rights 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 Fi-
nally, 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 balanc-
ing, 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 Free-
dom of the Press and Broadcasting, following a brief addendum on the right to as-
sembly 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 oil-
covered 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 vio-
lation 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 Constitu-
tional 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 nega-
tive 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 Holo-

caust 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
 500 chapter eight
Constitutional Court declared that freedom of assembly is among the indispens-
able functional elements of a democratic society.97 Brokdorf Demonstration is to
freedom of assembly what the Lth Case is to freedom of speech. The former af-
fi rmed that demonstrations involve diverse forms of common action [and] nonver-
bal 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 au-
thorizes local officials to regulate them in the interest of public safety and secu-
rity.98 In this instance, officials granted permits but confi ned the demonstration to
a relatively restricted area some distance away from the power station. Administra-
tive courts of appeal reinstated the orders after regional administrative courts
overturned them, whereupon individual demonstrators fi led constitutional com-
plaints against the decisions of the Lower Saxony and Schleswig-Holstein Higher
Administrative Courts. They challenged the validity of the notification require-
ments under federal law as well as conditions that local officials had attached to the
requested permits.
The Constitutional Courts First Senate sustained the federal statute but invali-
dated the decisions of the Higher Administrative Courts. While underscoring the
significance of the individual and collective right to demonstrate in a liberal democ-
racy, 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 vio-
lence, said the senate, may not be used as an excuse to hold down the size of a demon-
stration 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 Dem-
onstration involved individuals and groups convicted of staging sit-down demonstra-
tions 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
 Fr eedom of Speech, Pr ess, and Art 501
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 reviewthose involving pas-
sive resistancemay 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 di-
vided four to four, resulting (under the Courts internal rules of decision) in sustain-
ing 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 block-
ing 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 participat-
ing 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 Repub-
lican. A regional administrative court sustained the police action because the in-
truders 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 partici-
pants who approve of the assemblys 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 as-
sembly.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
Airportone of the worlds busiest air-hubsis an enterprise organized under pri-
vate law in which public authority has a controlling influence. The case arose in re-
sponse to a constitutional complaint against an ordinary court judgment upholding
the airports ban on the distribution of leaflets that expressed opposition to the
 502 chapter eight
deportation of foreigners. The leaflet denounced the airport for cooperating with pri-
vate airlines in deportation proceedings. In ruling that the ordinary courts judg-
ment violated the complainants right to assemblyalong with the right to freedom
of speechunder 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 Frankfurts 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 inter-
est 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 provi-
sions 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 ones 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 objec-
tive elements. Its subjectivity protects journalists and publishers against governmen-
tal 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 charac-
ter 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 Germanys political democracy, namely, to ensure the expres-
sion of diverse opinionsabout 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 Courts 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 dis-
seminate 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 Ar-
ticle 5 (1) was designed to ensure the free formation of individual and public opinion,
 Fr eedom of Speech, Pr ess, and Art 503
a duty that received the Courts 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 in-
forming 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 infor-
mation take second place to non-journalistic commercial ends, remarked the Court,
are by their intention not directed primarily at making a contribution to the forma-
tion of opinion.107
The Spiegel Case is as defi ning an opinion in Germanys free press jurisprudence
as Lth 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 Consti-
tutional 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 maga-
zine 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
Justices decision to dismiss the case for lack of evidence. The unprecedented pub-
lication of both sets of views in this case laid the basis for the Courts eventual
adoption of personalized dissenting opinions.109 The justices were, however, unan-
imous 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 magazines 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 Spiegels cover story on a nato exercise
designed to underscore West Germanys military weakness and to attack De-
fense Minister Franz Josef Strausss attempt to equip the German army with
tactical atomic weapons. The story included a detailed account of natos ma-
neuvers, 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 informa-
tion 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,
 504 chapter eight
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 govern-
ment confl icted with Article 5. As it turned out, there was no proof that classi-
fied 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 piec-
ing 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 essen-
tial 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 citizens 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 democ-
racy, 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 deci-
sions, 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 posi-
tion 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
 Fr eedom of Speech, Pr ess, and Art 505
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 prin-
ciple 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 ad-
dition, 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 individu-
als, 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 in-
terests are at least as worthy of protection as those of the press. The privileged posi-
tion 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 deci-
sion of 15 January 1958, addressed itself to the relationship between freedom of opin-
ion 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 con-
cept 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 pre-
sumption of permissibility, even if they infringe on other peoples 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 lawsconfl 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 exis-
tence of the Federal Republic and would also perish if the nation were destroyed. The
 506 chapter eight
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 comple-
mentary, in that both are meant to preserve the Federal Republicas this is properly
to be understood. It is with an eye to this goal that courts are to resolve confl icts be-
tween 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 surround-
ing 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, how-
ever, 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 inves-
tigation 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 governments basic defense policy, the strength
of the countrys armed forces, the general effectiveness or ineffectiveness of the mea-
sures 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 impermissi-
ble 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. Ac-
cording to this theory, treason takes place when, through the systematic gathering
and compilation of facts either commonly known or available from generally acces-
sible 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.
 Fr eedom of Speech, Pr ess, and Art 507
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 presss
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 de-
fense 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 con-
struction, 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 mili-
tary 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 nd-
ings of the Defense Ministry. . . . Similarly, the Federal Court of Justices decree of 31
October 1963 assumes the validity of these fi ndings in the absence of any corroborat-
ing 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 bal-
ancing test set forth in Lth.110 On this issue the Constitutional Court was unani-
mous. Yet, curiously, in Spiegel the Court did not employ a balancing analysis. The
majoritythe four justices who found no constitutional violation in the original
proceedings against Der Spiegelrested on a point of law: They conceded that a news-
paper 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-and-
seizure proceedings on the mosaic theory. As a consequence, the Courts 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 errormost notably the
Federal Court of Justicefor their failure to engage in the balancing analysis required
by Lth. 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 Lth case a decade ago. Critics of the
Federal Constitutional Court have repeatedly called attention to the well-nigh com-
plete absence of guidelines for the balancing-of-interests process that Lth re-
quires 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 Lth 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 ob-
jective 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 pub-
lic role in the life of a liberal democracy.112 Its primary purposes are to collect infor-
mation, distribute the news, and contribute to the development of public opinion. In-
deed, it is the governments 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), how-
ever, 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 consti-
tutionally more important than the rights of the broadcasting industry.113
Each of the German Lnder, including the five states of the old German Demo-
cratic 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 Courts holdings, includ-
ing those that protect editorial secrecy and the right of journalists not to disclose,
even in criminal proceedings, their sources of information.115 Hamburgs 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 de-
fi 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 care-
fully 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. Al-
though 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 di-
vided opinion a search and seizure order for Der Spiegels premises. Since then, the
Constitutional Court has been more careful in distinguishing between conduct that
threatens democracy and criticism of Germanys constitutional democracy. In the
Junge Freiheit Case (2005), for example, the First Senate found that North Rhine
Westphalias Office for the Protection of the Constitution encroached upon free-
dom 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 Lands 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 ar-
ticles 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 presss 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 re-
vealing 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 publish-
ers 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 publishers constitutional complaint against the
search-and-seizure order, holding that it interfered with the principles of journalis-
tic integrity and editorial trust. The Court was especially emphatic in underscor-
ing the importance of protecting journalistic sources. Pointing out that there are
more suitable legal mechanisms available to the police for exposing the release of
 510 chapter eight
state secrets, the senate noted that search-and-seizure orders against press estab-
lishments are unconstitutional when their purpose is the exposure of a journalists
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 re-
porters and suspects accused respectively of massive credit fraud and terrorist activ-
ity. 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 telecom-
munications protected by Article 10 (1). While recognizing the gravity of such court-
ordered 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 medias interest in research-
ing 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 Courts case law on the press and broadcasting. The free-
dom of the media is a constituent part of the free democratic basic order. Accord-
ingly, 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 institu-
tional right. For purposes of regulating rights of communication, however, the Court
has distinguished between broadcasting and the print media. When the Basic Laws
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 federal-
Land 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 na-
tional television station. Chancellor Adenauers decree to set up a national televi-
sion station violated the reserved powers of the Lnder. 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 citizens 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 institu-
tional autonomy of the pressfrom the procurement of information to the dis-
semination 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. Not-
withstanding the specific status of the broadcasting system, broadcasting, like the
press, is one of the indispensable means of modern mass communications that influ-
ence 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 opin-
ion. Its role in forming public opinion is by no means limited to news programs, po-
litical 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 broadcastings
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 rela-
tively 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 precau-
tions to realize and maintain the broadcasting freedom afforded by Article 5. The
principle according to which the existing broadcasting facilities were structured pro-
vides 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 entitys governing boards
 512 chapter eight
are actually composed of representatives from all significant political, philosophical,
and social groups, and they have the power to supervise those in charge of program-
ming and to ensure compliance with statutory provisions requiring that an appropriate
proportion of interested persons be involved in programming. Under present techni-
cal 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 corpo-
rations. 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 free-
dom of reporting remains unimpaired. . . .
Article 5 of the Basic Law requires that this modern instrument of opinion forma-
tion 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 pro-
grams 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 own-
ers 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 com-
pany 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. Schaef-
fers 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 Courts determination to extend the same free-
dom 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 ex-
pense, 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, reli-
gious 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
Courts 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 corpo-
ration 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 cor-
porations 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 success-
fully challenged in the Second Broadcasting Case (1971).127 The Federal Constitutional
Court held that the broadcasting corporations were public institutions, not commer-
cial enterprises, and thus beyond the taxing power of federal and Land govern-
ments.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 net-
works, 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 so-
cially 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
 514 chapter eight

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 Saarlands administrative court referred the case to the Fed-
eral 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 boards duties nor identified the groups from
which other board members were to be recruited. In this concrete judicial re-
view case, the Constitutional Court was asked to review the validity of these
provisions. The case presented the Court with another opportunity to rein-
force 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 regula-
tion 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 com-
municate 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 in-
formed. 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
 Fr eedom of Speech, Pr ess, and Art 515
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 free-
dom: First, the free formation of individual and public opinion requires that broad-
casting be free of governmental domination and influence. To this extent, broadcast-
ing liberty, like the classic rights of freedom, has a defensive significance. But that is
not sufficient to guarantee broadcasting freedom. For mere freedom from govern-
mental 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 con-
sequence, comprehensive information will be offered to the public. In order to reach
this goal the legislature must enact substantive, organizational, and procedural pro-
visions 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 legislatures failure to spec-
ify the conditions that would ensure that broadcasting freedom would be main-
tained and confl icting values or interests properly balanced. Neither adminis-
trative officials nor the broadcasters themselves can be entrusted with the task
of guaranteeing the freedom of broadcasting. The policies governing the broad-
cast 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 regu-
lation will still be necessary. Up to now the jurisprudence of the Federal Constitu-
tional 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 simi-
lar 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 com-
prehensive information and can form opinions, one cannot assume that the same
holds true for private broadcastingat 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
 516 chapter eight
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 ed-
ited. . . . We must confront the danger that private broadcasters might exclude opin-
ions 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 statu-
tory 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 program-
ming. . . . To the extent that the legislature has decided to create a structure of inter-
nal pluralism within the broadcasting industry, . . . it must objectively determine, on
the basis of the existing constellation of social forces, which groups are to be repre-
sented 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 corre-
sponds 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 revoca-
tion of broadcasting licenses. . . .

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 pri-
vate 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 stations governing structure. In the senates view, detailed leg-
islation in each of these areas is constitutionally necessary to ensure that broadcast-
ing 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 argu-
ment that broadcast freedom under the Basic Law could berealized 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 senates earlier view that
Article 5 (1) bars any interest group from having a monopoly over radio and televi-
sion. 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 Germanys dual broadcasting system included national and re-
gional public television stations, numerous public radio stations, and a multitude of
commercial radio and television stations (broadcast, cable, and satellite), all enter-
prises falling within the Lnders 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
 Fr eedom of Speech, Pr ess, and Art 517
both public ser vice and commercial stations. Finally, after Germanys 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 regula-
tions, it guarantees the existence and development of public ser vice broadcasting;
enables commercial broadcasters to expand their programs and transmission facili-
ties; 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 capaci-
ties; 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 trea-
ties 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 Courts 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 Courts attention in the years
following the Third Broadcasting Case, largely in response to the decision of Land gov-
ernments 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 be-
tween 1986 and 2007. They were largely triggered by Land legislation designed to ac-
commodate or limit the emergence of commercial broadcasting in Germanys social
market economy. In the Fourth Broadcasting Case (1986) the Court upheld Lower
Saxonys decision to experiment with private broadcasting and to allow commercial
stations to adjust their structures and programs to market forces so long as the over-
all effect of both public and private broadcasting was one of multiplicity and bal-
ance.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 ex-
pression.135 But the Court also noted, as it did repeatedly before and after Fourth Broad-
casting, that market forces alone are insufficient to provide for the balanced program-
ming required by Article 5 (1). The Courts Fifth Broadcasting Case (1987) was equally
historic. It struck Baden-Wrttembergs State Media Act for prohibiting public sta-
tions 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
 518 chapter eight
stimulate and vitalize the total range of opinion offered in the country, thereby en-
hancing 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 advertis-
ing. The Sixth Broadcasting Case (1991) approved cooperative financing arrangements
between private and public television stations,137 although in the Seventh Broadcast-
ing Case (1992), Hesses 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 pub-
lic 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 com-
mercially owned cable television on the ground that the cable penny was designed
unconstitutionally to serve the commercial interests of private broadcasters. Al-
though the First Senate sustained the validity of the cable penny as a legitimate ef-
fort 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 politi-
cal decision made by the heads of state governments and ratified by Lnder parlia-
ments,139 thus imposing the threat of state influence over public broadcast program-
ming. 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, reaf-
firmed the Constitutional Courts insistence upon a nonpolitical and information-
oriented 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 broad-
casting fee for violating the principle of broadcast freedom under Article 5 (1). Legisla-
tors had reduced a broadcast fee increase recommended by an expert commission be-
cause it was thought that the stations were capable of cutting back on their expenditures
in a tight economy. In stiffly rebuking the Lnder, 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 em-
phasized 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 infor-
mational 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
 Fr eedom of Speech, Pr ess, and Art 519

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 intellec-
tuals,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 declara-
tion: 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 tradi-
tional view of the German university as an autonomous institution of public life or-
ganized 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 Constitu-
tional Courts conception of the human person when seen in tandem with the
principle of dignity. It will be recalled that Mephisto arose out of a constitu-
tional 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 fa-
mous Faustian actor once popu lar with the Nazi elite. The actors adopted son
sought the ban on the novels publication because it allegedly dishonored the
good name and memory of the deceased actor. The extract below focuses on
the claimrejected by the Courtthat the ban on the publication of the novel
violated the Basic Laws guarantee of artistic freedom.]

 520 chapter eight
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 artists 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 deci-
sions based on the inherent laws of art and that are determined by aesthetic consider-
ations. 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 meth-
ods, 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 narrow-
ing 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 Laws 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 ei-
ther 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
 Fr eedom of Speech, Pr ess, and Art 521
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
ofthe 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 artists 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 pro-
tective effects arising from the personality sphere of the late actor Grndgens. 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 Ar-
ticle 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 Grndgens and against the pub-
lisher. 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 majoritys 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 Brnneck, dissenting separately, rejected the ma-
joritys deferential approach. They argued that the senate should have exam-
ined the facts for itself to ensure a result consistent with the constitutions 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 constitutions value decisions. If the obligatory balancing of interests disre-
gards 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 one-
sidedly considered only tensions in the social sphere and, in so doing, ignored the
novels aesthetic aspect. Th is one-sided consideration affected the weighing of
 522 chapter eight
interest: . . . They compared the appearance and behavior of the fictitious Hendrik
Hfgen with the personality of Gustaf Grndgens solely from the viewpoint of read-
ers who see the novel as reality. . . .
Th is approach may be appropriate for a documentary or biography. . . . But a nov-
els artistic intent is not a realistic, truth-oriented description of historical events but
rather a substantial, descriptive presentation of material based on the writers imagi-
nation. 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 un-
lawfully 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 Grndgenss 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 ig-
nored the fact that general interest in persons like Gustaf Grndgens, 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 diminish-
ing the danger of an identification of Gustaf Grndgens with the novels character
Hendrik Hfgen. . . .
[Justice Rupp-von Brnneck joined Justice Steins 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 Brnnecks dissent focused on the
ordinary courts failure to consider Klaus Manns 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 Brn-
neck maintained that Manns use of Grndgens as a vehicle through which to
address the larger political issue was questionable. She argued, however, that
the existing emergency in Germany justified Manns actions.]

That even the dead are entitled to honor and respect was reaffi rmed in the Posthu-
mous Libel Case (1993). A German writer authored a scathing review of the work of
the deceased author Heinrich Bll in which he made derogatory remarks about
Blls character and personality, remarks later classified as defamatory by an ordi-
nary court. The complainant alleged that his review constituted art within the
meaning of Article 5 (3) and was thus insulated against legal action. The Constitu-
tional Court disagreed. A three-justice chamber of the First Senate held that liter-
ary reviews are not in themselves works of art and thus fall outside the protection of
Article 5 (3).146
 Fr eedom of Speech, Pr ess, and Art 523
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 pro-
vision of the Basic Law as a subcategory of free speech, for art, science, and scholar-
ship are not subject to the reservation clauses of Article 5 (2). Only teaching is a lim-
ited 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 ex-
panded 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 by-
passed the thorny ground of pornography, avoiding the dilemmas of American juris-
prudence 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 compli-
cated because Article 5 (1) extends the right of free expression to writing and pic-
tures. The Federal Constitutional Court, however, has never defi ned the legislatures
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 por-
nography. 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 protect-
ing 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 childrens exposure to pornography, entailed the prohibition of the distri-
bution of pornography through the mails or in general movie theaters, since effec-
tive 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
 524 chapter eight
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 ob-
scene. The German statute is meant to protect children from writings that are im-
moral, 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 de-
veloped a concept of pornography that views it in the light of the Basic Laws 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 sexu-
ality 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
courtwill 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 con-
cernsitself not with the viewers prurient interest butultimatelywith human
dignity.151
The regulation of pornography, thenwhether done under the limited provisions
of the criminal law or the somewhat broader provisions of the youth protection
statuteis, like so much else in German constitutional law, centered on the protec-
tion 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 Courts ban on the pornographic novel Josefine Mut-
zenbacher: 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 in-
adequately considered the books artistic merit. Article 5 (3) protects artistic expres-
sion. 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
 Fr eedom of Speech, Pr ess, and Art 525
complainants 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 regula-
tion. 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 concor-
dance. There is even some suggestion in the case that these courts failed to suffi-
ciently consider whether in banning the Mutzenbacher novel the government had in-
terfered 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 motorcadejoined 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 car-
ried black uniformed members of a private security police force and members
of a peoples 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 can-
didate for federal chancellor (Bundeskanzler), was seated in the vehicle along-
side 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 Brechts 1947
poem Der anachronistische Zug oder Freiheit und Democracy (The Anach-
ronistic Parade or Freedom and Democracy) in which these same symbols
were used to portray the decadence of certain representative establishment
figures responsible for Germanys downfall. The Allgu 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 Bavarias Higher Regional
Court. The defendants lodged constitutional complaints against both decisions,
 526 chapter eight
alleging a violation of artistic freedom under Article 5 (3) of the Basic Law. The
Constitutional Court agreed.]

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 Shelleys poem The Masque of Anar-
chy: Written on the Occasion of the Massacre in Manchester, composed in 181920.
Shelley wrote the poem in reaction to the bloody suppression of the workers rebel-
lion 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 Storm-
trooper, 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 sipa 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
Oer 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 yesters shock disturbs it still
Drives Robbery in full girth
In Junkers 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 politi-
cal 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 partici-
pants 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
complainants 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 conven-
tional view that its intervention is necessary when the courts of ordinary juris-
diction 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 readi-
ness not only to review mistakes with respect to an ordinary courts 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 con-
trols 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 presenta-
tion and dissemination of a work of art to the general public. . . .
2. a. . . . The fact that art theoreticians cannot agree on objective criteria for mea-
suring 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
Courts 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 ac-
tivity the free creative expression through which the artist conveys impressions,
 528 chapter eight
experiences, and events through a specific language of shapes. All artistic endeavors
are a symphony of conscious and unconscious events that cannot be separated ratio-
nally. 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 value-
oriented 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 Brechts 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 orga-
nizers do not change this fact. Even when an artist becomes involved in contempo-
rary 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 personalityhere in the form of defamationhas
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 over-
riding 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 in-
dispensable element of this interpretation is that the work of art be viewed in its en-
tirety. 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
 Fr eedom of Speech, Pr ess, and Art 529
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 prepa-
rations (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 courts 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 pos-
sibility that the courts would have decided differently had they observed the consti-
tutional 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 dis-
cussed 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 of-
fense 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 portray-
als 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 dig-
nity, in which case the ordinary courts are to balance the competing interests of dig-
nity 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
 530 chapter eight
Federal Republic. The book distributors 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 Fed-
eral 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 cere-
mony for the swearing in of soldiers and the state was the target of attack only be-
cause of its responsibility for instituting military ser vice and conferring special le-
gitimation on this process by the use of the states 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 maga-
zine Plrrer 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 descriptioninto its exact oppo-
siteby 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 be-
tween expectation and reality.165 Thus, the Court concluded that punishment for
disparaging the anthem is incompatible with artistic freedom.
 Fr eedom of Speech, Pr ess, and Art 531

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 Gttin-
gen 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 orga-
nized. No fewer than 398 professors from Lower Saxony claimed in a constitu-
tional 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 inclu-
sion of insufficiently qualified persons in the governing councils of the univer-
sity threatened the facultys preeminent decision-making authority in the areas
of science, research, and teaching. The Court ruled, 62, 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 scholars self-
realization 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 pro-
vide 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
 532 chapter eight
only the state can provide, scholarly research and teaching in broad areas of scholar-
ship, 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 or-
ganizational kind, necessary to adequately safeguard his or her constitutionally pro-
tected 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 todays 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 struc-
ture 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 nineteenth-
century university statutes as well as in various national and state constitu-
tions. States reserved the right to oversee the appointment of university profes-
sors, 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 consider-
able leeway in shaping university policy. Th is discretion, however, is driven and lim-
ited by the right to freedom secured by Article 5 (3) and the value judgment con-
tained 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 capa-
city 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 mobiliz-
ing 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 consti-
tutionally 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 neverthe-
less 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 ad-
ministrative conditions that make teaching and research possible and carry corre-
sponding 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 univer-
sity. . . . In view of the current structure of the university they hold a key position in
academic life. . . .
The state is obliged to keep the professoriates special position in mind when it
shapes the orga nization of academic administration. Th is task requires due atten-
tion to the value decision contained in Article 5 (3) in tandem with the general-
equality clause, which in turn forbids . . . treating those groups equally that are es-
sentially unequal. . . . The legislature is thus required to confer on the professoriate
that degree of authority and responsibility necessary to fulfi ll their scholarly mis-
sion 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 vari-
ous groups in the decision-making councils of the group university must neverthe-
less 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 univer-
sity 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
 534 chapter eight
governing boards. In view of the aforementioned constitutional considerations, we
see no justification for this limitation of the legislatures 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 partici-
pation 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, appro-
priate 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 decid-
ing such issues.
Nevertheless, the unrestricted participation of nonresearch and nonteaching ad-
ministrative 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 re-
tain 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 codetermina-
tion 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 partic-
ularly 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 mak-
ing such decisions. As a rule, nonresearch personnel do not possess such qualifica-
tions. 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 codeter-
mination, particularly because decisions affecting research also may have an even-
tual 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. . . .
 Fr eedom of Speech, Pr ess, and Art 535
[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 profes-
sors 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 Brnneck, dissenting. . . .
Both the result and the fi ndings of the decision rest largely on consistent constitu-
tional arguments. We specifically share the view that Article 5 (3) embraces a nega-
tive 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 di-
rectly 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 par-
ticipation 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 ma-
jority 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 aforemen-
tioned 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 Germanys
modern constitutions, beginning with the Frankfurt Constitution of 1849, this free-
dom, in the arts and sciences, embraced above all the freedom of teachers to teach
(Lehrfreiheit). The University Reform Case underscores the autonomy that professors
 536 chapter eight
continue to enjoy in their teaching and research as well as their critical importance in
the composition of a universitys 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 en-
hanced 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 philo-
sophical faculties.166 Six years later, in the Wismar Technical College Case, the same
senate (now staffed with five new justices) also sustained, unanimously, a deans di-
rective requiring a professor of surveying to teach a basic course in projective geom-
etry 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 insti-
tutions, 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 fac-
ulty. 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 responsibili-
ties, 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 colleges decision was appropriate
because the prescribed geometry course was relevanteven foundationalto 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 re-
quire allegiance to the existing constitutional order, the uncommon protection
accorded political speech is fully consistent with the Basic Laws commitment to
representative democracy and universal suff rage. The general rights to speech and
press, however, cannot be interpreted in isolation from other constitutional provi-
sions. Article 5 (1) is bound by the reservation clauses in Article 5 (2), but in addition,
the principle of the constitutions unity and its incorporation of a hierarchical order
of values, the highest of which is human dignity, compels a contextualthat is,
 Fr eedom of Speech, Pr ess, and Art 537
systematicapproach to constitutional interpretation. The structures and values
prescribed in the Basic Law are numerous and complex, and they result in the deli-
cate balancing that typifies many of the cases featured in this chapter. And yet, when
viewed comparatively, the German Courts record in defense of freedom of speech,
particularly in recent years, easily rivals that of the worlds advanced constitutional
democracies.
 9
Religion, Conscience, and Family Rights

The multiplicity of the Basic Laws (Grundgesetz) provisions on church-state rela-

tions contrasts sharply with the simple command of the U.S. Constitution that bars
Congress from making any law respecting an establishment of religion or prohibit-
ing the free exercise thereof. Among the provisions is Article 140, which incorpo-
rates 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 propos-
als 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 philo-
sophical 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, reli-
gious 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). Reli-
gious 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 Weimars 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 ones 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
 R eligion, Conscience, and Fa mily R ights 539
be no state church, these articles accord the established churches an important role
in the nations public life, investing them with various institutional guarantees, in-
cluding 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 con-
stitutional right of parents, rooted in Article 7 (2), to determine whether children
shall receive religious instruction in state schools. The Weimar Constitutions no
state church injunction (Article 137 (1)) is the Basic Laws 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, Germa-
nys system may be described as cooperative, anticipating a limited partnership be-
tween 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 reli-
gions has been achieved in state policy is the subject of this chapters discussion on
minority religions.
Th is chapter also includes selected materials on marriage and the family. The fam-
ily relations and school provisions of the Basic Law were designed to protect the in-
stitution 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 Laws 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 impor-
tant 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. Lessings 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
 540 chapter nine
into the nineteenth century. These waters fi nally receded with the ending of Bis-
marcks Kulturkampf against the Catholic Church. Still, during most of the nine-
teenth century, and indeed until the Weimar Constitution of 1919, ties between
church and state were close and religious discrimination was widespread. Lutheran-
ism was effectively the official religion in most of the German states. Although
Roman Catholics made up one-third of Germanys 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 prin-
ciple 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 free-
dom of faith (Freiheit des Glaubens) in German history has not always implied the
freedom to express a corporate creed or, at the individual level, ones inner convic-
tions. In addition, German constitutionalism historically distinguished between
the dominant churches (e.g., Catholic, Evangelical, and Reformed) and minor reli-
gious 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 Consti-
tution and the Weimar Constitution, Article 4 and other nondiscriminatory provi-
sions 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 publi-
cized 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 Dsseldorf Regional Court (Landgericht) prohibiting any further public-
ity of the drive from the pulpit. The youth association lodged a constitutional
complaint against the order, alleging a violation of Article 4 (2), which guaran-
tees the undisturbed practice of religion. The Court affi rmed the constitu-
tional complaint.]

Judgment of the First Senate. . . .
III. The constitutional complaint is justified. The challenged decision violates the as-
sociations 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 (Brgerliches 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 religionembraces 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 reli-
gion 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 associa-
tion. 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 de-
nomination, this concept must be expansively interpreted vis--vis its historical con-
tent. In support of this view, religious freedom can no longer be restricted by an ex-
press 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 per-
form the rituals associated with religious beliefs more narrowly than freedom of be-
lief 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 collec-
tions, 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 par-
ticular creed, but also to associations only partially devoted to fostering the religious
 542 chapter nine
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 or-
ganizationally incorporated into the Catholic Church but it is institutionally con-
nected with it. Priests are represented on its board of directors, and diocesan bishops
place their stamp of approval on the articles of association. The complainants 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 con-
sider the self-image of the religious or ideological community. Indeed, the state,
which strives to remain neutral in religious matters, must interpret basic constitu-
tional 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 pluralis-
tic 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 con-
sider 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 encompass-
ing 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 Testa-
ment, 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 col-
lection 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 ones 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 car-
ing 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.
 R eligion, Conscience, and Fa mily R ights 543
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 dona-
tions 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 charita-
ble collections. A free, competitive economy does not provide traders with a subjec-
tive right under the constitution to a constant volume of business, nor does it safe-
guard future yields.
e. Because the complainants 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 activi-
ties 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 trades-
person and a religious association is much different from competition between
solely commercial entities. The religious association bases its activity on the con-
stitutional 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 con-
stellation, 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
 544 chapter nine
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 communi-
ties. Interestingly, the Federal Constitutional Court (Bundesverfassungsgericht) did
not hesitate to defi ne the meaning of a religious activity. Although accepting the as-
sociations claim in Rag Collection that it was engaged in a fundamentally religious
exercise, the Court nevertheless seemed to have independently confi rmed the reli-
gious content of the associations activity.
Article 4 (1) embraces freedom of faith, conscience, and a philosophy of life. Arti-
cle 4 (2), however, guarantees only the undisturbed practice of religion. The Courts
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 inter-
ests of the individual and society. If, in the context of a par ticular case, the individu-
als 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 Transfu-
sion Case (1971) is an illustration of this balancing process. In this case, a husband
honored his wifes refusal, on religious grounds, to have a blood transfusion necessi-
tated by the birth of their fourth child. He placed the decision entirely in his wifes
hands; she was conscious and mentally competent until her death. He was later con-
victed of a misdemeanor for failing to provide her with the assistance needed to un-
dergo the transfusion. The Constitutional Courts decision on the husbands consti-
tutional complaint challenging his conviction as a violation of Article 4 is important
for the Courts 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 ones belief.12 Second, the
Court explained that freedom of belief is not unlimited. Like all basic rights, its exer-
cise must conform to the Basic Laws conception of the human person, namely, a re-
sponsible 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 ex-
pression, 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 other-
wise 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 offenders
human dignity. In applying these principles to a marriage involving two autono-
mous 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 in-
stance would not be justified.

Tobacco Atheist and Courtroom Crucifix Cases. As just noted, the absence of a reser-
vation 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 Laws general order of values can-
not 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 mis-
use of this freedom. It follows from the Basic Laws 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 some-
one 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 instru-
ment 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 Courts free exercise jurisprudence. Over the objection of a Jew-
ish litigant appearing before them, the judges of Dsseldorf 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 sym-
bolically embodied therein or compel any specific behavior in accordance thereof.16
In the context of this case, howevertwo crucifi xes were in view, one of them on the
bench itselfthe senate found that the presence of the crucifi x was offensively ob-
trusive 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 free-
dom of belief and conscience. The question posed by the case was whether a witness in
 546 chapter nine
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 Laws Article 140, persons may [not] be com-
pelled . . . 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 Dsseldorf Regional Court. Citing the Sermon on the Mount (Matthew
5:3337), he refused on religious grounds to take any oath. The Dsseldorf
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.
Dsseldorf s Higher Regional Court (Oberlandesgericht) dismissed the pas-
tors 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 Gods 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 ac-
cording 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 complain-
ant was justified in refusing to take the oath. . . .
II. The fundamental right of religious freedom under Article 4 (1) protects the
complainants convictions. His conviction does not coincide with this interpretation
of the constitution and statute. The complainant continues to view todays 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 faithnot 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 encom-
passes not only the (internal) freedom to believe or not to believe but also the indi-
viduals right to align his or her behavior with precepts of faith and to act in accor-
dance 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 unreservedlyrestricted
neither by the general legal system nor by an undefi ned provision mandating a balanc-
ing 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 fun-
damental value system. In particular, the close relationship between religious free-
dom 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 tic-
u 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 per-
sonal 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 5:3337) and is es-
poused by a school of newer theologyGollwitzer, 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 complainants refusal to take the oath goes beyond the internal area of be-
lief fundamentally shut off from state intervention and conflicts with the duty the gov-
ernmental 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 witnesss 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. . . . Nonethe-
less, the complainants overriding fundamental right to refuse to take an oath ac-
cording 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 Wei-
mar Constitution in conjunction with Article 140 of the Basic Law. The relation in
 548 chapter nine
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 jus-
tify the reverse conclusion drawn from Article 136 (4) of the Weimar Constitution in
the Higher Regional Courts 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 rightinsulated 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 Constitu-
tion 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 en-
force vis--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 admin-
istration 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 deci-
sion not to be sworn in based on someones 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 witnesss 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 witnesss 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 wit-
ness 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 complainants 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 reli-
ance 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 Councilhe, 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 complainants 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 Ser-
mon on the Mount. Consequently, the assumption seems reasonable that the com-
plainants 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 individuals belief if it remains
within the limits of the order that preserves the state. Nor does this case involve ei-
ther 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 prin-
ciples. 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.
 550 chapter nine
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 individuals right to freedom and the states right to exist. The Ameri-
cans recognized this problem very early. As a result, the Supreme Court in Washing-
ton sought and found a balancing formula. The Court says: An individuals 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 persons right not to be compelled against [ones] conscience
to render military ser vice involving the use of arms. The Basic Law ranks virtually
alone among advanced constitutional democracies in extending constitutional pro-
tection 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 Republics life. It emerged
from its slumber when the Allies decided to rearm West Germany, and when in re-
sponse 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 sec-
tion on national defense (Article 115al), they also added Article 12a (2) [2] to the
section on basic rights. The amendment constitutionalized the principle of compul-
sory 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 pro-
vision, the First Senate ruled that it applies only to military ser vice involving the use
of weapons. In addition, a persons refusal to bear arms must be rooted in conscien-
tious 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
 R eligion, Conscience, and Fa mily R ights 551
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 reli-
gious, philosophical, ethical, or even emotional considerations. Courts may not,
therefore, consider the logic of a conscientious objectors claim. Yet reason alone is
insufficient to support such a claim; it must truly be the result of an interior commit-
ment, 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 conscien-
tiously 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), to-
gether with the corresponding provision of Article 12a (2), to military ser vice involv-
ing the use of arms in time of peace as well as war. In practice this has resulted in ex-
empting conscientious objectors from military ser vice of any kind, including ser vice
without weapons. Such an objector would nonetheless be liable for alternative ser-
vice 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 ser-
vice), the Constitutional Court sustained, over the religious objection of a Jeho-
vahs Witness, a statutory requirement of alternative civilian ser vice. 26 In subse-
quent cases, also involving Jehovahs 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 ser-
vice 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 per-
sons to choose civilian over military ser vice without submitting themselves to scru-
tiny 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 thou-
sand.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
 552 chapter nine
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 (Arti-
cle 12a). The defense of the country, therefore, is a constitutional duty. The Court ex-
plained 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 mili-
tary 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 notifica-
tion statute fails to meet this criterion because it contains no adequate test of con-
science. Rather, said the Court, it opens the door to an abuse of the appeal to con-
science 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 dis-
pensed 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 dura-
tion of civilian ser vice shall not exceed that of military ser vice. It was now the spds
turn to contest the constitutionality of the statute in an abstract review proceeding
before the Constitutional Court.36
Over the strong dissents of Justices Bckenfrde 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 sen-
ate 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
 R eligion, Conscience, and Fa mily R ights 553
duty in the event of a crisis, warranted the extended period of civilian ser vice for con-
scientious objectors. So long as the time for civilian ser vice does not exceed twenty-
four 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 resi-
dent who, in 1989, refused to serve in the East German Peoples Army but volun-
teered 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 (erklrter, 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 re-
gional court seriously doubted the constitutionality of compulsory military ser vice in
the aftermath of the Cold War because now, in its view, Germanys military needs
could be met by an all-volunteer army. The Second Senate unanimously rejected the
regional courts 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 oc-
curred 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 consti-
tutional 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 governments 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 governments 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 diffi-
culty 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 respond-
ing more swift ly and effectively to internal and external military threats.40

minority religions

Germanys religious profi le has changed substantially in recent decades, especially

since national unification. In the late 1950s 95 percent of all Germans identified with
 554 chapter nine
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 Republics five
new federal states (Lnder), encompassing the former Socialist East German Demo-
cratic Republic, 65 percent of the population reported no religious affi liation. Twenty-
seven 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 Christi-
anity. In 2006 4.3 million Muslims from forty-one countries, mainly Turkish resi-
dents, lived in Germany, one reason for the frequency of constitutional cases involv-
ing 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 Courts Osho Case (2002).
The Bundestag had issued a report charging the Osho Movement, a meditative as-
sociation started by the Indian mystic Rajneesh Chandra Mohan, with psycho-
logically 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 Ar-
ticle 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, dis-
criminatory, 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 prac-
tice of religion. The senate did, however, approve the groups 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-
 R eligion, Conscience, and Fa mily R ights 555
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 au-
thorities in disputes such as these, the Court considers that the [German] Govern-
ments statements as delimited by the Federal Constitutional Court . . . did not entail
overstepping the bounds of what a democratic state may regard as the public inter-
est.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 Ger-
man scene in recent years, one claiming to be a religious body, is the Church of Scien-
tology. Founded by L. Ron Hubbard, an American science fiction writer, the church
has been anything but welcome in Germany. With the Bundestags 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 af-
fl 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 transcen-
dent 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. Sci-
entology 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 Lnder, which have jurisdiction over religious associations, have
refused to register the Church of Scientology as a religious or ideological associa-
tion within the meaning of the Basic Laws Article 140 in conjunction with Article
137 (3) of the Weimar Constitution.
The Federal Constitutional Court has not yet adjudicated any of Scientologys re-
ligious 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 Sci-
entology.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
 556 chapter nine
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 businesswomana mem-
ber of Scientologywho sold its products at retail to cease forthwith from employ-
ing any of Scientologys methods or techniques to influence her customers. The com-
pany 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 com-
panys 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 de-
structive, pseudo-religious organization.47 The Federal Administrative Court re-
garded 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 in-
fringement on the right to religious liberty. The Federal Administrative Court re-
served the question whether the Church of Scientology was itself a religious organiza-
tion. Instead, it focused on the applicants 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 vindi-
cated the applicants negative freedom against a state infringement of a guaranteed
freedom. Th is emphasis on the personal beliefs of the individual serves as an over-
ture 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
[Germanys 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 consump-
tion of the meat of animals not ritually slaughtered (i.e., not stunned). Admin-
 R eligion, Conscience, and Fa mily R ights 557
istrative authorities denied the exception to a Sunnite Muslim butcher, a non-
German 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 butchers customers
and the butcher himself believed they were religiously bound to consume the
flesh of ritually slaughtered animals. The butcher fi led a constitutional com-
plaint against Hesses administrative denial of the exemption as well as several
judicial decisions sustaining the denial, including the fi nal decision of the Fed-
eral Administrative Court. He argued that up to now Jewish butchers had rou-
tinely 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 Courts decision af-
fi rming the butchers 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 pro-
tections 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 chal-
lenged decisions in this case do not stand up to review by the Federal Constitutional
Court.
I. 1. The Federal Constitutional Courts 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 pro-
tection 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 Mus-
lim 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
 558 chapter nine
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 re-
garded 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 en-
hancing the protection of the complainants 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 slaughter-
ing 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 Ani-
mal 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 humankinds 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 regula-
tion, which also takes the feelings of broad sections of the population into consider-
ation, and especially with a view to ritual slaughtering.
aa. The regulation is suitable and necessary for achieving the purpose of the regu-
lation (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 suffer-
ing, 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 ex-
ceptional 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 appli-
cants 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 or-
ders about suitable premises, equipment and other devices. Thus, the regulation in-
tends to prevent, wherever possible, domestic or other private slaughtering that
often does not ensure due ritual slaughtering and that, therefore, can result in par-
ticularly offensive suffering for the animals concerned; instead, it intends to promote
slaughtering in approved slaughterhouses.
 R eligion, Conscience, and Fa mily R ights 559
Apart from this, the prerequisite for the grant of an exceptional permission pursu-
ant 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. Rit-
ual 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 ani-
mals 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 re-
gard to himself, give up their businesses to gain their livelihood in a different man-
ner, 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 suit-
able for consumption in accordance with the rules of the butchers faith and that of
his or her customers. The decision to convert the butchers 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 re-
orientation, 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 in-
security about whether the meat really complies with the commandments of Islam.
 560 chapter nine
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 inter-
est 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 protec-
tion is, above all, enshrined in the Animal Protection Act. . . .
3. Yet, an exemption from the mandatory stunning of warm-blooded animals be-
fore 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 reli-
gious 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 prac-
tices 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 one-
sided 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 com-
plainant is an adherent, just as Islam in general, does not mandatorily ban the con-
sumption of the meat of animals that were not ritually slaughtered. Th is interpreta-
tion 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 in-
effective 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 Ani-
mal 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 funda-
mental 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 manda-
tory ritual slaughtering, the point of reference of such an examination is not necessar-
ily 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 reli-
gious 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 complainants fundamental right under Article 2 (1) in conjunction with Articles
 R eligion, Conscience, and Fa mily R ights 561
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 funda-
mental 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 objec-
tion proceedings and in the proceedings before the administrative courts are based
on this circumstance. It cannot be ruled out that the complainants 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 slaugh-
tered 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 Wei-
mar Constitution, incorporated into the Basic Law under Article 140, create a two-
tiered structure of church-state relations. The first tier applies to religious bodies enti-
tled 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 reli-
gion (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 Bah 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 Lands denial of a registered legal status to a reli-
gious 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
 562 chapter nine
the Weimar Republic automatically retained this status under the Basic Law, a status
enjoyed mainly by the traditional, mainline churches, Catholics and Lutherans in par-
ticular. 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 states 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 re-
cent decades, several smaller religious groups have been granted corporate status
under public law after satisfying the tests of durability, number of adherents, inten-
sity, and loyalty.51 They include the Old Catholic Church, Salvation Army, Evan-
gelical Methodist Church, Unitarians, Orthodox Judaism, Seventh-Day Adven-
tists, the Mormon Church, the New Apostolic Church, and the Federation of
Evangelical Free Church Societies (Baptists). It is important to note that applica-
tions for public or private corporate law status must be approved initially by the
Lnder since religious activity, like cultural matters generally, lies within their ju-
risdiction. 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 Jehovahs Witnesses.52 The following decision fi nally resolved
their confl ict with the state.

9.4 Jehovahs Witnesses Case (2000)

102 BVerfGE 370
[The Jehovahs 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 Watch-
tower Bible Tract Society and applied to Berlins Land legislature for corpo-
rate 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-states
 R eligion, Conscience, and Fa mily R ights 563
administrative courts, the denial was upheld by the Federal Administrative
Court even though the Witnesses had no difficulty establishing their perma-
nence in accord with the standard measures of intensity and numbers of adher-
ents. 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 coop-
erative relationship between church and state that implied, above all, loyalty to
the state and even an affi rmation of active participation in the democratic pro-
cess, including a willingness to serve in the armed forces or to perform alter-
nate ser vice of some kind. The Witnesses, the Federal Administrative Court
concluded, would not and could not satisfy these requirements. In response,
the Jehovahs 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.]

Judgment of the Second Senate. . . .
C. The constitutional complaint is well-founded. The contested decision of the Fed-
eral Administrative Court violates the complainants [Jehovahs Witnesses of Ger-
many] 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 au-
thoritative basis for assessing the possibility of its continued existence which, ac-
cording 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 coinci-
dental, 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 self-
administration and independence of religious associations. Religious associations
with public-law status possess the same fundamental rights as do religious associa-
tions 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 reli-
gious associations. With corporate status, they are granted certain sovereign powers
 564 chapter nine
(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 ac-
cordance 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 as-
signed 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 funda-
mental constitutional principles set forth in Article 79 (3) of the Basic Law, the fun-
damental rights of third parties under the states 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 prin-
ciples laid down in Articles 1 (1) and . . . 20 of the Basic Law. In addition to the princi-
ple of human dignity anchored in Article 1 (1) . . . and the core content of rights in-
cluded 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 constitu-
tional 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 ac-
count 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 asso-
ciated 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-
 R eligion, Conscience, and Fa mily R ights 565
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 princi-
ples of the religious and ideological neutrality of the state and the parity of reli-
gions 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 pref-
erential 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 under-
mine the Basic Laws 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 activ-
ity 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 states point of view, is formal freedom. The holders of the funda-
mental 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 activi-
ties 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 con-
cept 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 at-
titude, 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 con-
nection 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 con-
stitutional 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 or-
ganizations . . . 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 above-
mentioned protected interests would first result from a combination of many individ-
ual circumstances. On the other hand, merely one or two shortcomings do not jeopar-
dize the required guarantees. Here, the courts are entrusted with the responsibility of
 566 chapter nine
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 reli-
gious body.
VI. . . . 2. The religious prohibition of participation in state elections does not jus-
tify 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 im-
plementation 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 peoples representa-
tives as a basic act of democratic legitimization.
The Basic Law also assumes that citizens will participate in the democratic pro-
cess. For good reasons, however, it does not require this responsibility as a legal obli-
gation. A citizens 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 in-
deed by sanctions. The essence of democracy is to be found in intellectual inter-
change and debate. . . . Accordingly, the reluctance of Jehovahs 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 in-
tended 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 Wit-
nesses 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 simi-
lar 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 con-
text requires not the suppression of a devotional exercise reflecting those values,
but rather tolerance in the face of such expression, particularly when it is per-
formed 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 val-
ues set forth in Articles 4 (1) and 7 (1), it is a tension that seems inescapable under
these provisions.54
 R eligion, Conscience, and Fa mily R ights 567
In its church-state jurisprudence generally, the Second Senatethe chamber re-
sponsible for most questions arising under the free exercise provisions of the Basic
Lawhas recognized both the negative and positive character of religious freedom.
Negative freedom includes the freedom of unbelief as well as the freedom not to dis-
close ones religious beliefs. Positive freedom includes the right to express ones 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 liber-
ties. 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 persons 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 in-
struction, when a students 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 sec-
ond 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 pupils parents ob-
jected. 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 parents nor a pupils objection may
serve as a basis for prohibiting school prayer.]

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 pupils parents object to the prayer.
 568 chapter nine
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 Ar-
ticle 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 prece-
dence over the rights of other educational institutions but is subject to the limita-
tions of Article 7 of the Basic Law. Th is parental right also includes the right to edu-
cate ones 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 states 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 fun-
damentally independent of parental aims. The states 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 interdenomina-
tional 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 deci-
sions of 17 December 1975, concerning Badens interdenominational schools as well
as the Bavarian interdenominational schools. . . . Pursuant to those decisions, the in-
corporation of Christian references is not absolutely forbidden when establishing
public schools, even though a minority of parents may not desire religious instruc-
tion 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 de-
mand 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. Christianitys 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
 R eligion, Conscience, and Fa mily R ights 569
in school is not fundamentally and constitutionally objectionable. However, the per-
formance 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 pre-
cepts, 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 reli-
gion 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 ac-
tivity 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 in-
struction in Christian interdenominational schools. The constitutional permissibil-
ity 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
namedespecially when school prayer takes place upon the teachers instigation
during class time. To be sure, the states 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 in-
struction as a religious exercise and as a school event, then certainly it is encourag-
ing 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 interde-
nominational 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.
 570 chapter nine
Article 4 grants not only freedom of belief but also the external freedom publicly
to acknowledge ones 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 univer-
sal 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 rma-
tive 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 Mnster
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 re-
jection of the prayer through his or her nonparticipation. . . .
3. The objection of a pupil holding other beliefs or of the pupils parents or
guardians could lead to the prohibition of school prayer only if the school did not
guarantee the dissenting pupils right to decide freely and without compulsion
whether to participate in the prayer. As a rule, however, a pupil can fi nd an accept-
able 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 pupilsespecially if
only one pupil professes other beliefs. His or her behavior is visibly different from
 R eligion, Conscience, and Fa mily R ights 571
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 pupils own choosing, but rather one car-
ried on by the pupils parents, on the one hand, and the parents of the other school-
children or teachers, on the other hand.
4. Nonetheless, one cannot assume that abstaining from school prayer will gener-
ally or even in a substantial number of cases force a dissenting pupil into an unbear-
able 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 discrimina-
tion 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 legisla-
tive 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 Weimars Article 137 (1)). Yet the constitution permits religious
instruction in the public schools (Article 7 (3)), recognizes the churches as corpo-
rate bodies under public law (Article 140, incorporating Weimars Article 137 (5)),
and authorizes such bodies to tax their members (Article 140, incorporating Wei-
mars 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 identi-
fied these models of neutrality as nonintervention, nonidentification, equality,
and cooperation. Nonintervention requires the states disentanglement from reli-
gious organizations in the interest of preserving their autonomy; nonidentification
requires the state to refrain from taking sides in religious confl icts and from en-
dorsing 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 vari-
ous fields of activity.
Each of these defi nitions of neutrality is capable of gravitating to the pole of sepa-
ration or cooperation. Despite considerable advocacy of the notion of a more separa-
tionist model of neutrality in Germany, the predominant view among German con-
stitutional 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
 572 chapter nine
the American doctrine of neutrality, but, as Durham remarked, if exaggerated into
absolute non-concern, [it] might have the effect of inadvertently favoring anti-
religious outlooks and thereby becoming an unacceptable type of passive interven-
tion. 59 By the same token, nonidentification construed as wide-ranging state in-
difference 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-Wrttemberg amended Article 15 (1) of its constitution to es-
tablish 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 reli-
gious freedom under Article 4 (1) of the Basic Law. They objected to their chil-
dren being educated according to any religious or ideological precepts. Com-
plainants 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.]

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 pa-
rental claim to the education and upbringing of their child. The state, which super-
vises the entire school system under Article 7 (1) of the Basic Law, exercises its educa-
tional 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 mat-
ters. Article 7 . . . establishes the principles for the denominational organization of
schools. Accordingly, persons charged with raising children have the right to deter-
mine 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, denomina-
tional, or ideological school (Article 7 (5)). Article 7 does not provide for more far-
reaching parental influence on the denominational organization of the state school.
 R eligion, Conscience, and Fa mily R ights 573
To this extent this constitutional norm differs substantially from the so-called school
compromise of the Weimar Constitution. In that document Article 146 (2) deter-
mined 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 par-
ents be respected as much as possible.
b. The history of Article 7 illustrates that the states were intended to be largely in-
dependent with respect to the ideological and denominational character of state
schools. Th is is primarily a manifestation of the principle of federalism. During pre-
liminary deliberations on Article 7, the framers of the Basic Law rejected proposals
suggesting more extensive parental rights, concerning religion in the form of a con-
stitutional 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
ifno 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 reli-
gious or ideological character. Nor do complainants claim this right, as they specifi-
cally state. To this extent the Basic Law refers the parents to private schools. Basi-
cally, 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 en-
croaches 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 chil-
dren to an education that does not correspond to their own ideas of religion and ide-
ology. The ideological education of their children demanded by complainants is an
inseparable part of the parent-child relationship, which the Basic Law specifically pro-
tects 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 entitledat
least until the child reaches the age of religious majoritya school education based on
 574 chapter nine
a different denomination can severely strain the entire parent-child relationship.
Because of the inseparable connection between the educators 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 educators fundamental right to reli-
gious 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 childs 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 reli-
gious 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 po-
litical 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 involvedan 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 ex-
isting ideological tensions and confl icts, but would disadvantage parents who de-
sire 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 com-
plainants 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 compul-
sory 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 indi-
vidual 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 ideologi-
cal and religious coercion as far as possible in choosing a par tic u lar form of school.
 R eligion, Conscience, and Fa mily R ights 575
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 safe-
guarding of state independence in matters of school orga nization. Further, one
must keep in mind that individual states may pass differing regulations due to dif-
ferences 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 incorporat-
ing 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 childrens decisions con-
cerning 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 reli-
gious ideas and values. The legislature may not limit a schools educational goals to
those belonging to a Christian denomination, except in religion classes, which
noone can be forced to attend. Affi rming Christianity within the context of secu-
lar disciplines refers primarily to the recognition of Christianity as a formative
cultural and educational factor that has developed in Western civilization. It
doesnot refer to the truth of the belief. With respect to non- Christians, this affi r-
mation obtains legitimacy as a progression of historical fact. . . . Confronting non-
Christians 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 ideologyat least not if
the issue focuses on striving to develop the autonomous personality in the ideo-
logical 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 ob-
jective discussion of all ideological and religious views, even if based on a par tic u-
lar ideological orientation, does not create an unreasonable confl ict of faith and
conscience for parents and children under constitutional law. Parents have suffi-
cient freedom to educate their children religiously and ideologically and to com-
municate to their off spring why they have affi rmed or rejected commitments of
faith and conscience.

Religion and the Schools. During most of the nineteenth and early twentieth centu-
ries, confessional schools, usually Catholic or Protestant, predominated in Germany,
 576 chapter nine
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 Lnder. Today, elementary and secondary
schools are of three kindsconfessional, interdenominational (Gemeinschaft-
schulen), 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 de-
nominations. In several Lnder, 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 reli-
gion 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 Lands reserved right to establish
the school system of its choice, even if this system contravenes the terms of an in-
ternational 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 in-
struction shall form part of the regular curriculum in state schools, although
teachers may not be obliged against their will to give religious instruction. Chil-
dren 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 nonreli-
gious 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 pre-
scribes 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 indi-
vidual 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 contro-
versial is whether minority religious sects shall also be entitled to religion classes in
state-supported schools. Recently, for example, North RhineWestphalia, 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 teach-
ers demand the exclusive right to instruct students in the Koran.
 R eligion, Conscience, and Fa mily R ights 577
As the School Prayer Case demonstrates, religious practices that take place in the
public schools, over and beyond formal religious instruction, may lead to contro-
versy. 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 Ger-
many, 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 re-
spect and tolerance for representatives of other Weltanschauungen, to be orga-
nized on a Christian basis, and are to teach reverence for God in the spirit of Chris-
tian brotherhood. 65
As the following case shows, however, the compulsory display of the crucifi xor
crossin 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 exer-
cise. 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 ad-
dressed 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 ele-
mentary 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 childrens 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 courts rejection of their motion was sustained by Ba-
varias Higher Administrative Court. The parents constitutional complaint
against the courts order and the ordinances requiring the display of the crucifi x
found a sympathetic response in the Federal Constitutional Court.]

Judgment of the First Senate. . . .
 578 chapter nine
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 constitu-
tional 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 conces-
sion to the parents. In these circumstances, said the Court, the Bavarian ad-
ministrative 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 com-
plainants under Article 4 (1) in tandem with Article 6 (2) of the Basic Law. . . . These
decisions are based on 13 (1) [3] of Bavarias 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 states
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 free-
dom to live and act according to ones 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 mani-
festations, 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 person-
alities within an ideological and religious context. The state is thus committed to
 R eligion, Conscience, and Fa mily R ights 579
protect the individual from attacks or obstructions by adherents of different beliefs
or competing religious groups. Article 4 (1), however, grants neither to the indi-
vidual nor to religious communities the right to have their faith commitments sup-
ported 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 reli-
gion. A state in which members of various or even confl icting religious and ideo-
logical 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 cer-
tain faiths. The numerical strength or social importance of a religious community
has no relevance. Rather, the state is obligated to treat various religious and ideo-
logical communities with an even hand. And when the state supports or works to-
gether 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 con-
victions. 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 class-
rooms 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 sup-
port of the tenets of the Christian faith by the state would undermine freedom of re-
ligion, a matter already determined by the Federal Constitutional Court in its ruling
on the constitutionality of so-called bi-confessional public elementary schools (cit-
ing the Interdenominational School Case). In affi rming the Christian character of
these schools, the Court ruled that the state may legitimately recognize Christiani-
tys 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 justi-
fied 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 Christs sacrifice just as it represents Christs victory over Satan and death
 580 chapter nine
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 dwellers Christian faith. On the other hand, because of the significance Christi-
anity attributes to the cross, non-Christians and atheists perceive it to be the sym-
bolic 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 self-
understanding 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 transmit-
ting 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 pupils personality and to influence his or her social be-
havior. In this context, the display of the cross in classrooms takes on critical signifi-
cance. Its presence constitutes a deeply moving appeal; it underscores the faith com-
mitment 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 com-
mitted to religious and ideological neutrality, is in a position completely to divest it-
self 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 al-
ways 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 compul-
sory public school instruction, cannot possibly satisfy all educational goals or needs.
Problems will always arise and it will be particularly difficult to implement the nega-
tive 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 man-
dates, 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-
 R eligion, Conscience, and Fa mily R ights 581
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. Christianitys influence on culture and education may be af-
fi 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 per-
suasions. 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 au-
tonomous 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 con-
stitutional 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 West-
ern world in multiple ways but which is not commonly shared by all members of soci-
ety. . . . 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 commit-
ments within the framework of public institutions. Inasmuch as schools heed the
constitution, leaving room for religious instruction, school prayer, and other reli-
gious 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 Sllner, 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 govern-
ment. In contrast to the Weimar Constitution, which assigned legislative authority
 582 chapter nine
in educational matters to the Reich, the Basic Law confers no legislative or adminis-
trative 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 mea-
sure 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 Chris-
tian 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 Chris-
tian church. . . .
4. The state has a constitutional mandate to remain neutral in religious and ide-
ological matters. But the principle of neutrality must not be construed as indiffer-
ence toward such matters. The church-state articles of the Weimar Constitution,
which have been incorporated into Article 140 of the Basic Law, envision neutral-
ity in the sense of cooperation between the state, churches, and religious commu-
nities. These articles may even require the state to support churches and religious
communities. . . .
II. Contrary to the view of the senates 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 senates majority entirely overlooks. To-
gether 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 partici-
pation 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 posi-
tive 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 No-
vember 1991 [citing Classroom Crucifix I], which rejected the complainants request
for a temporary injunction, we formulated the constitutional issueeven more
 R eligion, Conscience, and Fa mily R ights 583
pointedly than in the present rulingas 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 majoritys 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 compul-
sory 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 ne-
gate the positive right to manifest ones religious freedom in the event that the two
confl ict. The principle of religious liberty implies no right to have religious expres-
sion 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 crosss symbolic character, non-Christian pupils and their par-
ents 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 be-
have 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 reli-
gious 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 circum-
stances, the presence of the cross in schoolrooms is nothing unusual; it has nothing
to do with anything that could remotely be regarded as missionary.

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 Germanys Christian cul-
ture. Many constitutional lawyers, including a former president of the Constitu-
tional Court, chastised the justices for their infi rm reasoning. The decision produced
the strongest denunciation in Bavaria. Holding crucifi xes aloft, demonstrators in
 584 chapter nine
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 Germanys judicial establish-
ment. 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 en-
danger the Federal Republics constitutional democracy.70 Justice Dieter Grimm,
one of the five justices in the majority, was prompted to answer the Courts critics in
the Frankfurter Allgemeine Zeitung, Germanys newspaper of record. Grimms promi-
nently displayed letter was published under a caption that read Why a Judicial Rul-
ing 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 es-
tablishes a Constitutional Court to protect that document, political and social con-
fl 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 Courts decision, but that is in the nature of the judicial resolution of con-
fl icts; and, at times, the majority will be the disappointed party. Th is is what consti-
tutionalism 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 Courts own reflections about its role as the fi nal arbiter of the consti-
tution; 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 ones 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 Republics generally stable history
of postwar constitutional governance and are likely to shake the foundations of so-
cial peace.
Those who insist on disobeying the Courts 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 politi-
cians 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 af-
fairs of state. Th is is meanwhile the issue of the Federal Constitutional Courts
Classroom Crucifi x II ruling.71

Justice Grimms views were shared by numerous spokespersons in the spd and
by most left- of-center political parties and groups. The spds legal experts and the
justice ministers of several German Lnder warned against excessive criticism of
the Court out of fear that such criticism would undermine its integrity as an insti-
tution.72 A lead editorial in the Frankfurter Allgemeine Zeitung by Friedrich Karl
Fromme, one of Germanys most respected constitutional commentators, ex-
pressed the views of many of the Courts responsible critics. First, he noted that
the Courts 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 Courts 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 (Leitstze) that accompanied the release of the decision. The
headnotes seemed to suggest that the Court was mandating the removal of all cru-
cifi 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 re-
versal 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 reli-
gious grounds. Nevertheless, the debate continued as Bavarian state officials were
preparing corrective legislation in defiance of the Courts ruling.75 Bavaria re-
solved the issue by following the Constitutional Courts 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 im-
posed 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
 586 chapter nine
Case stemmed from the Stuttgart Higher School Authoritys rejection of a devout
Muslim womans application to teach in BadenWrttembergs elementary and sec-
ondary 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 per-
sonal aptitude to teach in state schools. All German teachers, like university profes-
sors, 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 separa-
tion, 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 vio-
lated 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 non-
adherence 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 heads-
carf, 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 up-
holding the school boards ruling on the ground that the neutrality principle re-
quired her to refrain from any profession of her religious beliefs at work. The com-
plainants 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 comprehen-
sive, open and respectful neutrality. School was not a refuge in which one could
close ones eyes to social plurality and reality. On the contrary, the schools duty to
provide education meant preparing adolescents for what they would encounter in
society.77
In accepting the teachers 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 guaran-
teed by Article 4 (1) and (2). The senate held, however, that the Lands denial of her
application was constitutionally unacceptable because it lacked a statutory basis. In
short, the Lnder could not constitutionally prohibit a qualified teacher from wearing
a religious symbol in the classroom in the absence of a clear and unambiguous parlia-
mentary policy determination. As the Court has ruled in other contexts, fundamen-
tal 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 sen-
ate noted that Article 4 (1) and (2) protects equally the positive and negative manifes-
 R eligion, Conscience, and Fa mily R ights 587
tations of religious faith, but here the teachers positive right to express her faith in
the school setting had to be reconciled with the states 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 du-
ties 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 re-
stricted 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 peoples will as expressed in law. The civil servants duty to be neutral, they
remarked, follows from the constitution itself and does not need to be further sup-
ported by a Land statute.78 When carry ing out his or her official duties, the dissent-
ers noted, the teacher must respect the fundamental rights of the pupils and their
parents, for the teacher is not merely on the states 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 Courts previous case law. First, the Court provides the Lnder
with a green light to ban headscarves in primary and secondary schools. At this
writing, four Lnder have done so, even while conceding that there is no confi rmed
empirical foundation for the assumption that teachers who wear the head scarf af-
fect the religious orientation of their students.80 Second, the Court takes judicial
notice of Germanys 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 pro-
vocative, is the Second Senates passing reference to Article 9 of the Eu ropean Con-
vention on Human Rights, which permits limitations on the freedom to manifest
ones 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 free-
dom of faith imposed by a legislature charged with managing the relationship be-
tween the state and religion in the educational system is also in harmony with the
Eu ropean Convention.81
 588 chapter nine
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 reli-
gious instruction. Article 7 (3) makes good on this promise by declaring that reli-
gious 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 contro-
versies 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 Catholic-
Protestant Land agreement that students would receive religious instruction in the
religion to which they belonged. Under the agreement it was up to the religious com-
munities 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 admin-
istrative court decisions sustaining the schools 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 doc-
trines, 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 pu-
pils 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 reli-
gious 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 pas-
sage of the Brandenburg School Act (Gesetz ber die Schulen in Land Brandenburg)
of 12 April 1996. Owing to the very small number of practicing Christians in the former
 R eligion, Conscience, and Fa mily R ights 589
East Germany, Brandenburg, one of unified Germanys new eastern states, elimi-
nated 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 reli-
gious instruction as well; third, interested teachers would be given time off for ad-
vanced 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 Laws Article 141 exempted any Land from adopting religious in-
struction 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 Ber-
lin 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, Berlins 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 Berlins large Muslim
population and the relatively low level of residents affi liated with the two main Chris-
tian denominations, particularly in East Berlin, the senate passed the measure as a
means of teaching common values to a religiously diverse student body. Parents re-
tained 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 (Arti-
cle 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 Senates Second Chamber
might have taken the easy way out by relying on Article 141. Instead, the three-justice
 590 chapter nine
chamber ruled that Berlins 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 (Ar-
ticle 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 Ln-
der.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 func-
tion 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 proportion-
ate to their total membership.93 These cash payments amount to several billion euros
per year and enable the churches not only to build new facilitiesfrom chapels to
advanced academies of continuing educationbut 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 individ-
ual.95 The constitutional validity of the tax, however, is unquestioned. The Constitu-
tional 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 contri-
bution 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 deter-
mines 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 ideo-
logical 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 mem-
bers. 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-Wrttembergs Church Tax Act permitted the spouse of a church mem-
ber to be taxed even though he or she might not be a church member. Two em-
ployees 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 ap-
pealed 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 Constitu-
tional Court pursuant to the latters concrete judicial review jurisdiction. The
two cases were consolidated in the following judgment in which the Court held
the tax to be unconstitutional.]

 592 chapter nine
Judgment of the First Senate. . . .
2. The Baden-Wrttembergs 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 inter-
preted 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 Con-
stitution 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 em-
ployee 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-Wrttembergs state ministry, this provision can be under-
stood 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 avoid-
ing 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 consid-
ered (i.e., religious convictions and beliefs). The marital community is not based
upon mutual recognition of religious articles of faith, values, and obligations. Conse-
quently, 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 relationseven if only fi nancial onesto 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,
 R eligion, Conscience, and Fa mily R ights 593
then one partners 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 spouses 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 con-
sequences 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 force-
fully 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 obliga-
tion 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 bur-
dened a nonmember spouse with the liability for his or her member spouses obliga-
tion 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 spouses church taxes. Liability in the sense of answering for someone elses
debt creates a direct relationship between the nonmember spouse and the other
spouses 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 spouses 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 mar-
ried persons obligation to support and maintain each other as per for mance in ex-
change 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 arithmeti-
cally one against the other. Apart from this, the husband is no longer solely respon-
sible 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 spouses personal needs ( 1360a (1) of the
 594 chapter nine
Civil Code). The cultivation of religious, spiritual, political, cultural, or athletic inter-
ests 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 husbands 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 husbands 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 husbands 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 cor-
poration; 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. . . .

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 impor-
tant 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 re-
quired 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 vio-
lated 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 com-
mercial establishments for church-building maintenance and new church construc-
tion violated the freedom of action of these businessesthat is, their economic
freedomwithin the meaning of Article 2 (1). The church construction tax, declared
the senate, is not part of the constitutional system because it violates the relation-
ship between church and state, and between the state and the individual, as regu-
lated by the Basic Law.103 No such tax may be imposed on legal persons, said the
 R eligion, Conscience, and Fa mily R ights 595
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
churchs 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 enti-
tled to levy a tax but regards church membership as simply an internal church af-
fair.104 In two church tax resignation cases, the First Senatefor what it regarded as
compelling administrative reasonshas 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 declara-
tion of resignation.105

Churches as Autonomous Institutions. As the materials in this chapter show, re-

ligion 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 nations
public life. Altar and throne were joined throughout most of German history be-
fore 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 autono-
mous within their respective spiritual and temporal spheres. Under the Weimar
Constitution, following considerable tension between throne and altar, not to
mention the Bismarck regimes 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 re-
spect to their internal affairs as well as certain institutional assurances. These in-
clude, 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 concor-
dats serving as common instruments through which they regulated their relation-
ship. 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
 596 chapter nine
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 ar-
ticles. The continuity represented by these articles was more than a mindless or reluc-
tant 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 con-
temporary 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 constitu-
tional scholars. Some hold fast to the theory of equal partnership; others maintain the
legal superiority of the state over religious communities. The constitutionally recog-
nized statusand autonomyof 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 plural-
istic 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 ordi-
nary 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 is-
sues, 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, repre-
sents persons as a whole in all major fields of endeavor and behavior. . . . The churchs
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 inde-
pendence,111 underscoring once again that the relationship is one not of rivalry but
of cooperation.
 R eligion, Conscience, and Fa mily R ights 597
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 Bunde-
stag 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
Courts Second Senate ruled that the Bremen courts decision was an unauthorized
interference with the internal affairs of a religious body.112 The senate also empha-
sized 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 man-
date, one that clearly includes rules and regulations pertaining to the activities
oftheir 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 recipro-
cal independence within a system of coordination, with the state providing the sec-
ular 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 adminis-
tration. 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 Churchs 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 be-
cause the decision was arbitrary, thus offending the principle of equality; and
Article 14 because the Churchs decision trampled upon the parishs property
rights. The Federal Constitutional Court rejected all three grounds of the
complaint.]

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.
 598 chapter nine
Public authority within the meaning of this provision does not include purely inter-
nal church measures.
1. There can be no state church under the system of church-state relations pre-
scribed by the Basic Law. Every religious community has the right to order and ad-
minister its affairs independently within the limits of generally applicable law. Nei-
ther 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 Consti-
tution). 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 indepen-
dent 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 neu-
trality 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 differ-
entiated 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 bod-
ies, 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 par-
ticu 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 au-
thority conferred by the state or affects the sphere of the state is to be decidedto
the extent that a union of church and state does not result therefromby 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 churchs 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 indepen-
dence 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 states sphere of competence are com-
patible 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 ecclesi-
astical assemblages, as provided for in 14 of the Hesse-Nassau Church Congrega-
tion Order of 25 March 1954, belong to this sphere because they are matters pertain-
 R eligion, Conscience, and Fa mily R ights 599
ing to the constitution and organization of the church. Whether the church tribunals
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 Agree-
ment of 18 February 1960 provides that decisions concerning the formation and al-
teration 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 influ-
ence. 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 volun-
tary agreement between church and state. Thus, the churchs 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 con-
stitutional complaint is inadmissible. Therefore the complainants motion for a tem-
porary 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 allhas 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 vin-
dicated the right of a religiously affi liated hospital to determine its internal employ-
ment 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 churchs
stand on abortion. (A companion case involved a Catholic youth center that dis-
missed 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 Con-
stitutional Courts Second Senate, while recognizing the universal applicability of
public laws designed to protect employees against unlawful dismissal, nevertheless
invalidated the Federal Labor Courts 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 churchs 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 de-
mands of their religious mission as they understand it. By laying down such duties
 600 chapter nine
of loyalty in a contract of employment, continued the Second Senate, the ecclesias-
tical 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 ac-
cording to a par ticu lar vision of Christian community ser vice shared by their mem-
bers.117 The Second Senate went on to emphasize that church autonomy is anything
but absolute:
The church employers right under Article 137 (3) to shape the employment relation-
ship 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 churchs 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 dif-
ferent 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 sig-
nificant nature of the churchs own law. That lawthat is, canon lawtreats abor-
tion 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 re-
jects this teaching, said the Court, would undermine its religious mission in the pro-
vision of hospital ser vices. In several related cases, the Court has advanced an equally
liberal interpretation of the churchs autonomy.119

marriage and family rights

Scope of Protection. Article 6 of the Basic Law extends special protection to mar-
riage 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 pri-
marily incumbent upon them. The state shall watch over them in the per for-
mance 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 soci-
ety as are enjoyed by those born within marriage.
Like Germanys generous system of social insurance, the provisions of Article 6 evoke
the social state principle (Sozialstaatprinzip) anchored in Article 20 (1). Unsurpris-
 R eligion, Conscience, and Fa mily R ights 601
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 moth-
ers 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 institu-
tional guarantees, and obligates the state to preserve and protect them.120 For inter-
pretive direction, the Constitutional Court has generally looked to the structural
principles governing the institutions of marriage and family at the time of the Basic
Laws 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 chil-
dren. 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 unconven-
tional family structures such as one-parent families, unmarried couples, and same-
sex 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 promul-
gated 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 ex-
emption 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 ei-
ther 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 familys right to special protec-
tion 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 pay-
ments at the same level as couples without children. Article 3 (1) combined with Ar-
ticle 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 prin-
ciple 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 impor-
tantly, 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
 602 chapter nine
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 Fed-
eral Finance Court, seriously doubting that the regulation met the require-
ments 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.]

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 treat-
ment by the law; only those actual inequalities that have distinguishing legal signifi-
cance should be treated differently, and the legislature is primarily responsible for
deciding such matters. The legislatures discretion, however, is limited not only by
the prohibition against arbitrariness under concretizations of the general princi-
ple of equality (in par tic u lar Article 3 (2) and (3)) but also by other norms, princi-
ples, 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 insti-
tution 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
 R eligion, Conscience, and Fa mily R ights 603
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 mar-
riage 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 mar-
riage and the family, the legal effect being to constitutionally guarantee only the es-
sential core of the [institutions] of marriage and the family. The task of constitutional
interpretation is to develop the various meanings of a constitutional norm, particu-
larly those of a fundamental right. Accordingly, in performing this task, interpreters
are to give preference to the interpretation that most strongly develops the legal ef-
fectiveness 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 Parlia-
mentary Council and its Main Committee. The Court also acknowledged the
influence of the marriage and family rights provisions of the Universal Declara-
tion of Human Rights.]
3. The function of Article 6 (1) as a value-setting fundamental norm imposes
legal limits on the legislatures 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 pro-
tection; 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 states 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 pro-
tect 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 couples income violates the principle of individual taxa-
tion, and does so to the disadvantage of married people, thus constituting a disrup-
tive interference with marriage. . . .
 604 chapter nine
Joint assessment serves the purpose of bringing the wife back to her homethe
so-called didactic effectby imposing a heavier tax burden to keep wives from work-
ing. . . . 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 free-
dom 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 couples freedom of decision
in private matters also includes the decision concerning whether the wife should de-
vote herself exclusively to the household, assist her husband with his job, or earn her
own income. The goal of the joint tax return requirementto bring the working
wife back to the homeadvances a par ticu lar conception of the best way to ar-
range 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 corre-
sponds 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 pro-
tection 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 wifes gainful economic activity as destructive to
marriage is inconsistent not only with that principle but also with the text of Arti-
cle 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. . . .

The Fundamental Right to Marry. In the years following Joint Income Tax the Con-
stitutional Court repeatedly affi rmed the fundamental character of the right to
marry and closely monitored legislation impinging upon or interfering with this
 R eligion, Conscience, and Fa mily R ights 605
right.125 The Spanish Marriage Case (1971) represented one of the strongest affirma-
tions 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 fiances divorce was not rec-
ognized in Spain. In response to the couples constitutional complaint the First Sen-
ate 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 for-
eigners 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 de-
clared: According to the structural principles guaranteed by Article 6 (1), which fall
outside the legislatures discretion, the preordained institution of marriage is the
union of one man and one woman within an all-embracing and, in principle, indis-
soluble community of life.127 The lifelong character of marriage, remarked the sen-
ate, has been expressly recognized by the Civil Code as the core principle (Leit-
prinzip) 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 re-
garded these relationships as intimate lifestyle choices shielded by the personality
clause of Article 2 (1) as well as by the Basic Laws general freedom of action (allgeme-
ine 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
 606 chapter nine
vis--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 insti-
tution, 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 psycho-
logical 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 grow-
ing demands of gay and lesbian persons, was doubtless one of the reasons the Bun-
destag passed the Civil Partnership Act of 2001, legalizing same-sex unions and offer-
ing them advantages similar to those of marriage. The statute was immediately
challenged in the Federal Constitutional Court as a repudiation of the states respon-
sibility 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 privileg-
ing opposite-sex marriage may be metaphysical or psychological rather than biologi-
cal. In the following case, the Court sustained the legalization of same-sex partner-
ships 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 Re-
public in the year 2000 to live in a legally binding relationship. The Partner-
ships Act stopped short of according same-sex unions all the rights and privi-
leges 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-
 R eligion, Conscience, and Fa mily R ights 607
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 Part-
nerships 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 states 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 Courts wide-ranging opinion engage the argu-
ments rooted in Article 6 (1) in which the Court rejected the constitutional
challenge to the Civil Partnerships Act. Two justices dissented.]

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 struc-
ture 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 ones 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 mar-
riage remains open to every person who has the capacity to marry. However, mar-
riage 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 institu-
tion 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 in-
stitution 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
 608 chapter nine
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 pro-
tection 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 along-
side 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 dis-
solves 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 vio-
late 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 mar-
riage therefore needs a legal provision that structures and restricts the form of part-
nership that enjoys the protection of the constitution. Here, the legislature has con-
siderable 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 ad-
versely affects marriage and, on the other hand, to promote marriage by suitable mea-
sures. The legislature did not violate these principles in the Civil Partnerships Act. . . .
 R eligion, Conscience, and Fa mily R ights 609
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 same-
sex 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 legisla-
ture 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 introduc-
ing the new institution of the registered civil partnership, the legislature did not vio-
late 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 spe-
cial element resides in the fact that marriage alone, like the family, enjoys constitu-
tional protection as an institution. No other way of life, however, merits this protec-
tion. Marriage cannot be abolished nor can its essential structural principles be
altered without an amendment to the constitution. A constitutional duty of promo-
tion 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 fundamen-
tal 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 Parliamen-
tary Council debates, Article 6 (1) had undergone a large number of amend-
ments, 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 agree-
ment 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 rela-
tionship of marriage to other forms of human cohabitation changes. The same ap-
plies if the legislature does not restructure marriage by statute but provides for
 610 chapter nine
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 protec-
tive 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 in-
stitution in competition with marriage, with the same function as marriage and,
for example, with the same rights . . . so that the two institutions were interchange-
able. 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 differ-
ence, 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.
Itdoes not prohibit the legislature from offering legal forms for a permanent co-
habitation 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 part-
nership. Th is is also acknowledged by the senate majority, which regards the hetero-
sexuality of the spouses as one of the constitutive characteristics of marriage, the re-
sult 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 du-
ties of marriage, the legislature in doing this disregards an essential structure laid
down by Article 6 (1).
 R eligion, Conscience, and Fa mily R ights 611
. . . 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 legisla-
ture 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 constitu-
tional objections to introducing a legal form of registered civil partnership for same-
sex 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 homo-
sexual relationship existing or being intended between these two persons. But the
introduction of the legal form of the registered civil partnership was not constitu-
tionally 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 mar-
riage. . . . Article 6 (1) places marriage under the special protection of the state. . . .
Contrary to the opinion of the senate majority, the constitutionally required promo-
tion 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 essen-
tial structural principles of marriage include the fact that the partners are of different
sexes.

Changing Nature of Marriage and Family. In the Spanish Marriage Case (1971) the
Constitutional Court underscored the legislatures wide discretion in regulating
marital and family relationships.135 Indeed, in the late 1970s the West German parlia-
ment substantially amended its family law code, particularly in the domain of di-
vorce 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 consti-
tutionality of which several family courts questioned. Although indissolubility re-
mained 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
laws conclusive presumption that a marriage has failed when the spouses have been
separated for three years.138
More controversial was the new family codes 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
 612 chapter nine
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 44 over the validity of
this provision, leaving the matter temporarily unresolved. Several months later, how-
ever, 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 ap-
plication of one spouse, without considering the extraordinary hardship that the di-
vorce 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 respon-
sibilities, 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. Ar-
ticle 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 af-
fi 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 ex-
pressly laid down in Article 6 except for Article 6 (5), which grants nonmarital chil-
dren 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 deci-
sion 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 husbands alimony payments in case of di-
vorce. When the couple did divorce several years later the mother, who had custody
of the child and whose income was substantially less than the fathers, was placed at a
serious economic disadvantage that compromised the constitutional values associ-
ated with motherhood and the care of children. The First Senate overturned a judi-
cial 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 provi-
sions 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 childs best interests, a provision the Constitutional Court
had invalidated as an interference with parental rights.144 In response, the Family
 R eligion, Conscience, and Fa mily R ights 613
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. Ab-
sent 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 sepa-
rated from their unwed partners sued for joint custody of their biological children.
In the Joint Parental Responsibility Case of 29 January 2003a concrete judicial
review proceedingthe Constitutional Courts First Senate held 1626a (2) gener-
ally compatible with the Basic Law.146 Awarding parental custody as a matter of prin-
ciple 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 childs best interest
is not foolproof, said the senate, the statute is nevertheless constitutional because
after the childs 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 fathers
request for joint custody without examining whether it would be in the childs best
interest violated the right to respect for family life secured by Article 8 in conjunc-
tion 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
Grgl Case of 2004, featured and discussed in Chapter 6, involving a Turkish citi-
zen 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 childs 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 mothers 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 mothers consent, is regarded as the legal father of the child
under 1592 of the Civil Code, thus trumping rights or privileges associated with bio-
logical fatherhood. In the following case, biological fathers challenged these provi-
sions 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.
 614 chapter nine

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 con-
tact 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 rela-
tionship 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 pater-
nity of his child, a birth that had been planned by both parents. The father
was present at the childs birth and cared for it in the months after its birth.
But later, when the couple broke up, another man acknowledged the pater-
nity of the child with the mothers consent. In upholding lower court rulings,
Colognes Higher Regional Court rejected the applications of both fathers
for contact with their biological children. In the second case, the Higher Re-
gional Court ruled that the natural fathers petition for a judicial determina-
tion of his paternity was inadmissible under 1600.d.1 of the Civil Code in
the presence of another mans 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 appli-
cable 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 parent-
hood, the second with the condition required for a parents right of contact
with his child.]

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 childs welfare.
I. [Parenthood]
1. The natural father of a child who is not the legal father is also protected by Arti-
cle 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
 R eligion, Conscience, and Fa mily R ights 615
gives him no right in every case to be granted the position of father with higher prior-
ity 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 relation-
ship 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 fundamen-
tally prepared and called upon to assume responsibility for the childs care and
upbringing. The legislature is therefore required to base the legal responsibility of
parents on the childs 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 conclu-
sion 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 paren-
tal right is connected to the duty to care for and bring up the child and this is the ele-
ment 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 du-
ties. . . . 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 in-
terest 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
fathers 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. . . .
 616 chapter nine
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 possibil-
ity 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 con-
trary 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 es-
tablishing 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 pater-
nity 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 realand legally recognizedparents of a
child are the man and woman, regardless of marital status, who bear and accept
responsibility for the childs 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 recog-
nized 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 as-
signed 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 to-
gether with the mother and the child and is merely a paying father, there is no suf-
ficient 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 wel-
fare of the child, did not violate Article 6 (1) of the Basic Law.
 R eligion, Conscience, and Fa mily R ights 617
1. The natural father who is not the legal father of a child also forms a family to-
gether 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 pro-
tects 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 vio-
lation 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 childs 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 respon-
sible 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 ex-
istence between the biological father and his child continues under the Basic Laws
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 responsibil-
ity 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
fathers 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 rela-
tionship. 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
 618 chapter nine
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.

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 sys-
tem 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 de-
cide 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 constitu-
tional complaints by parents challenging the guidelines as an infringement of paren-
tal 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 atmo-
sphere 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 constitu-
tional significance to parental rights in education. Neither the parental right nor the
states 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 dignitar-
ian 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 miscon-
ceived 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
 R eligion, Conscience, and Fa mily R ights 619
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 indoctri-
nate 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 gen-
erally 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 in-
structional 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 Ar-
ticle 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 mid-
1950s, the state of Hesse set up, on an experimental basis, the so-called comprehen-
sive school (Gesamtschule). Under the traditional system of education in Germany,
students are channeled into one of three major secondary schools (Gymnasium, Real-
schule, or Hauptschule) after they have completed four years of common elemen-
tary education. Hesse established two additional years of common schooling de-
signed as a compulsory observational stage (Frderstufe) 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 univer-
sity education in Germany. Several parents fi led constitutional complaints against
the new system because the Frderstufe 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
Frderstufes 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 au-
thority 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 stat-
ute and the history that led to its enactment, the senate concluded that the state had
not unconstitutionally invaded the rights of parents. The states interest prevailed
over any exclusive right on the parents part to dictate the school or curriculum of
 620 chapter nine
their children at this formative stage (the fi ft h and sixth grades) of educational de-
velopment. But the states interest is controlling only so long as parents are not de-
prived 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
Frderstufe.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 states 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 de-
clares that nonmarital children shall have the same opportunities for physical and
mental development as marital children. The religion clauses of the Basic Law in-
clude 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 Laws religion clauses. It incorporates into the Basic Law five articles of the Wei-
mar 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 neu-
tral 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 be-
stow 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 nations public life, one mani-
fested 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 as-
sociated with marriage and parenthood, represents a delicate balance between com-
peting 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 constitu-
tion. 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 al-
lowed to negate entirely, under the interpretive principle of concordance, a compet-
ing 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 (so-
ziale 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 flow-
ing 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 re-
gime 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 bour-
geois liberalism, protects the individual from the state; the second, rooted in the
needs of modern industrial society as informed by Germanys rich tradition of social-
ist 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 nation-
alization of property are two exceptions to this general opacity. In any case, most of
the individual rights expressly secured in the Basic Laws fi rst nineteen articles, in-
cluding the right to property and the guarantee of occupational freedom, are primar-
ily regarded as defensive (Abwehr) protections against the states intrusion on indi-
viduals 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 appear-
ing 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 provi-
sions of the Basic Law, including the social obligation attached to the right of prop-
erty, occasioned little debate in the Parliamentary Council.7 A variety of reasons ac-
count for the constitutions 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 won-
der, 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 re-
peatedly called attention to the fundamental status of the social state principle and
has often reminded the federation and the federal states (Lnder) of their constitu-
tional 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 . . . en-
suring to each person in need of assistance the material prerequisites that are indis-
pensable for his or her physical existence and for a minimum of participation in so-
cial, 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 ex-
tends 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 so-
cial 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 legis-
lature 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 eco-
nomic system the framers envisioned. All economic policies must be enacted within
the framework and in the light of the Basic Laws values. These leave ample room for
tension and interpretation.
 624 chapter ten
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 mainte-
nance of comprehensive social welfare programs, the implementation of redistribu-
tive tax policies, and the renationalization of recently privatized economic hold-
ings.16 These claims would seem to conflict with the Basic Laws 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 Courts 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 pre-
scribe a specific economic social order but it sets seemingly confl icting pa rame-
ters.18 For Justice Jaeger the Courts jurisprudence consists of continuity and
change as regards the economic system, while always aiming at preserving both
liberalism and social justice. One of the Courts earliest attempts at balancing these
principles and articulating a vision of Germanys economic constitution arose in
the context of the postwar reconstruction of Germanys 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 consti-
tutional 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 author-
ity for this legislation from Article 74 (1) [11] of the Basic Law. The content and his-
tory 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 invest-
ment purposes from one area of the economy to another. . . .
[A. The Basic Laws 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 entrepre-
neurial initiative. Article 2 (1) of the Basic Law is not violated. . . . If one views Ar-
ticle 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 compre-
hensive 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 cul-
tivate 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 produc-
tion 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 Laws neu-
trality 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
 626 chapter ten
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 sus-
tained by the will of the legislature that can be substituted or superseded by a differ-
ent decision. Consequently, it is constitutionally irrelevant whether the Investment
Aid Act fits with the existing economic and social order and whether the means em-
ployed 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 legisla-
ture 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 re-
view granted to the Constitutional Court. The yardstick of Article 3 (1) always re-
mains 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 con-
siderations. The charged debtors receive bonds for the amount of their contribu-
tions. 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 con-
tent 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 consen-
sus in Germany that government has a major responsibility for the direction and or-
ganization 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 Euro-
pean Unions 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 for-
mer telecommunication monopoly), Deutsche Post (the former state-run postal sys-
tem), 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 bal-
ance government budgets by shift ing public sector jobs to the market and by provid-
ing 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 invest-
ment strategies is seen as a necessary cultural shift away from dependence on Ger-
manys 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 Codeter-
mination Acts of 1951 and 1976, the Employment Promotion Act of 1985, the Telecom-
munications Act of 2004, and the Second National Energy Act of 2005.19 In Ger-
many, as in many other developed economies, the government bucked the seemingly
inexorable trend of recent decades toward liberalization and privatization by re-
sponding to the Great Recession of 20089 by implementing the largest economic
stimulus plan in the postwar era.20 And more than one-third of Germanys 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 Landes-
banken 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 creditwor-
thiness enjoyed by their sponsor governments. A relationship between govern-
ment and industry like that found in the German fi nancial sector implicates con-
stitutional 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 governments interest in property. 22 On the other hand, as al-
ready 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 legiti-
macy 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
 628 chapter ten
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 ll-
ment 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 eco-
nomic policy with great restraint and is unlikely to risk the political backlash that
would greet significant judicial intervention in this field. In the landmark Codetermi-
nation 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 Ac-
cording 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 Courts answer, sup-
ported in part by the Sozialstaat principle, was that, while the legislatures 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 indepen-
dent of guaranteed individual rights. In the Courts 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, Europes 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 governments stubborn entanglement with
industry in Germany. In 2007 the European Court of Justice took exception to a fi ft y-
year-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 Sax-
ony, the owner of 20 percent of the companys shares, a minority veto. The reform of
the law undertaken in response to the European Courts judgment essentially left
Lower Saxonys voting priority intact, setting up another round of challenges in the
European Union institutions. As another example, commentators have pointed to
the Constitutional Courts Volkswagen Denationalization Case, involving the partial
privatization of the automaker, as a leading illustration of the Basic Laws 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 num-
ber of shares any one person could buy, and allowed the fi rms 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 denationaliza-
tion. Before this concern can be examined, the Court must decide whether denation-
alization itself is constitutional. Th is ruling is imperative not only because of the
measures 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 federations
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 lib-
eral state different views will always exist as to what broad economic and social pol-
icy and what specific measures serve the public interest. The objectives of denational-
ization 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 mea-
sures 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 unconstitu-
tional. . . . 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 r-
mation 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 denational-
ization 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 dis-
cretion. . . . We must therefore reject the view that enterprises that could be social-
ized according to Article 15 cannot be denationalized after they have become public
property. Also, one cannot deduce a tendency toward socialization from Article 15,
 630 chapter ten
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 social-
ization. Such fundamental restrictions on the legislatures 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 prop-
erty. 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 Volk-
swagen stock is not constitutionally objectionable.
aa. As the oral proceedings have shown, competent agencies of the federation pro-
ceeded 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 esti-
mates. . . . The responsible federal agencies have adhered to the framework of consid-
erations 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
valueand thus also the sale pricecould have been set higher according to avail-
able 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 develop-
ment 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
laws 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 Laws economic provisions, Article 14
establishes a confl icted constitutional regime respecting property. The Articles fi rst
paragraph guarantees a fundamental liberty interest in property while granting Par-
liament 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.
 Economic Liberties and the Social State 631
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
givesan unequivocal, fundamental liberty interest in the protection of property
unlike anything provided by the U.S. Constitution30it 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 Laws property regime. Not surprisingly, resolving and giving force to Article
14s confl icting mandates has been the focus of the Federal Constitutional Courts
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. Parliaments
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, Parliaments authority to define the
content and limits of the right to property pursuant to Article 14 (1) [2] cannot be inter-
preted 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
articles fi rst paragraph. In the Hamburg Flood Control Case, for example, the Court
articulated the confl icting characteristics of the Basic Laws property regime. Prop-
erty, 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 Parlia-
ment. Property is personal and social. But the Court expressed the general signifi-
cance 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 propertys 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 Ham-
burg passed the Dikes and Embankments Act of 1964. The act converted all grass-
land classified as dikeland in the land register into public property. It termi-
nated 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 re-
jected their complaints.]

 632 chapter ten
Judgment of the First Senate. . . .
D. I. 1. Article 14 (1) [1] of the Basic Law guarantees property both as a legal institu-
tion and as a concrete right held by the individual owner. To hold property is an ele-
mentary constitutional right that must be seen as sharing a close nexus with the pro-
tection 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 eco-
nomic conditions. The legislatures task is to regulate property in the light of funda-
mental constitutional values. The institutional guarantee, however, prohibits any re-
vision 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 fun-
damental 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 prop-
erties under public control. The expropriation of the lands near the dike satis-
fied 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 ef-
fective system of dikes and embankments to avert another disastrous flood.
Thus, the Court proved unwilling to permissively interpret Parliaments au-
thority 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 lim-
its 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
standardand only this standardpermits an expropriation of property under Ar-
ticle 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
 Economic Liberties and the Social State 633
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 owners 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 compensa-
tion. The core guarantee under a permissible expropriation is the value of the prop-
erty 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 compensationalthough in this respect it offers greater protec-
tion than Article 153 of the Weimar Constitutionbut rather to secure existing prop-
erty in the hands of its owners. The view propounded under the Weimar Constitu-
tion, 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 accept-
able 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 judi-
cial 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 en-
gage in self-defi ning, responsible activity). The property right is not primarily a mate-
rial but rather a personal guarantee. The basic right protects the individual against
every unjustified infringement of the entire range of protected interests.

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
 634 chapter ten
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 (Brgerliches Gesetzbuch) in a way that would con-
strict 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 re-
striction 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 commenta-
tors have suggested that the objective character of Article 14 may require, for exam-
ple, environmental protection legislation to preserve the value of property, the pro-
ductive 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 rec-
ognized by private law, including movables and immovables, and particularly prop-
erty 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 en-
gage 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 coexten-
sive.34 The constitutional protection embraces traditional German public-law juris-
prudence 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 con-
stitution, 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 prop-
erty, claims against third parties, and social welfare benefits derived in some part
from an individuals direct contributions to the program that manages and distrib-
utes the benefits.37 Pension and unemployment payments are examples of the latter;
whereas general institutional or infrastructural public support for housing, educa-
tion, health, and welfare are not.38
The broad, public-law notion of property applied by the Court to the interpreta-
tion 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
 Economic Liberties and the Social State 635
expansion of the constitutional protection of ownership.39 The Tenants Right of Oc-
cupancy Case (1993) is frequently cited as an example of the Courts liberal approach
to defi ning the nature of Article 14s protection.

10.4 Tenants 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 ac-
cess between the tenants and the landlords apartments through the buildings
common stairwell. The tenant challenged his eviction without success in the
ordinary courts, which found the landlords justifications adequate under the
relevant provisions of private law. In a constitutional complaint the tenant ar-
gued 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 tenants
private-law right to occupy an apartment constituted a property interest pro-
tected by Article 14. The Court held that it does, but nonetheless found that the
ordinary courts judgments did not constitute a violation of the constitution-
ally protected right in this case.]

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 per-
sonal responsibility for fashioning his or her life. . . .
The home is the center-point of everyones 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 tenants right of occupancy, under these cir-
cumstances, serves functions typically associated with real or personal property. The
legislature acknowledged that apartments have this character when it established the
tenants 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.
 636 chapter ten
Th is legal authority fi nds its expression in the protected privileges that are as-
signed 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.

There are, however, limits to the Courts broad conception of property. As noted ear-
lier the Court has not extended Article 14 protection to general social welfare entitle-
ments 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 fu-
ture business opportunities and a businesss reputation as protected property. In
Glycol members of the German wine industry lodged constitutional complaints
against a federal ministrys publication of a list of German vintners and bottlers who
used diethylene glycol (glycol or deg) in the production of some of their wines. Gly-
col 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 glycol-
scandal.40 The First Senate found the complainants allegations of a violation of Ar-
ticle 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 complain-
ants 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 as-
sets. 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 owners fundamental power to dispose of the sub-
ject, 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 wines acquired and constitutionally pro-
tected status but are, instead, the unprotected result of future undertakings.43 Sec-
ond, 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 businesss reputation performs an
 Economic Liberties and the Social State 637
extremely important ser vice for the fi rm it cannot be counted as part of the businesss
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 contin-
gent 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 Courts prioritization

of the liberty interests associated with property and its expansive characterization of
the subject matter protected by Article 14 as indications of the Courts desire to
weaken the social elements of the Basic Laws protection of property. The Court
has never endorsed the laissez-faire approach to property rights that the U.S. Su-
preme 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 Germanys constituent doc-
ument amidst the ruins and devastation left behind by Germanys unconditional
defeat in World War II. The framers were painfully aware of the fact that the repub-
lic 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 citizens entanglement with public insti-
tutions and structures.
An earlier draft of Article 14 (2) considered by the Parliamentary Council ex-
pressed 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 es-
sential 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 prop-
erty, as already explained, cannot go so far as to infringe the essence of ownership.
The core of one of the Basic Laws 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
 638 chapter ten
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

Parliaments 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 con-
demnation 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 ex-
ample, 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 prop-
erty. But, in these cases the social-obligation norm requires that the legislature es-
tablish and the courts maintain an equitable balance between the owners individual
liberty interests and the well-being of the community. 51 Th is mandate has been ful-
fi 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 lim-
its 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 (Bundes-
gerichtshof) 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 Ad-
ministrative 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 expropria-
tion 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. Consider-
ations of equality undergird these approaches. Simply put, the state must provide
 Economic Liberties and the Social State 639
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 sacri-
fice or regulatory intensity; it considers them in tandem.56 The Courts essential posi-
tion, 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 im-
posed by the regulation, therefore, was not deemed compensable.
In regulating the content and limits of property under Article 14 (1) [2], the Parlia-
ment is required by the Federal Constitutional Court to give due weight to the fram-
ers fundamental value decision in favor of private property. As with other funda-
mental 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 constitu-
tion. These values embrace the principles of human dignity, personality, and equal-
ity, which are enshrined in the fi rst three articles of the Basic Law. Parliaments re-
sponsibility 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 propor-
tionality, 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 deter-
mine whether lawmakers have adequately considered and properly weighed these
competing values.
A number of seminal cases illustrate the manner in which the Court has adjudi-
cated 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 termi-
nate garden plot leases.58 Garden plots rented from landowners on the fringes of cit-
ies 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 Tenants 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 termina-
tion is not based on a well-founded interest of the landlord.59
In the Tenancy and Rent Control Case (1974) the Court invalidated several deci-
sions from the ordinary courts for the harsh manner in which the courts applied a
 640 chapter ten
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 lawmak-
ers to accord equal weight to the interests of tenants and owners in defi ning their re-
spective 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 de-
formed 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 Feldmhle Case (1962) the Court sustained the validity of a company reor-
ga nization statute permitting majority shareholders who owned more than three-
fourths of the capital stock of a joint-stock company to convert it into a new com-
pany over the objection of minority stockholders.62 Because the legislature was
acting in the general interest by fostering the creation of larger business enter-
prises, 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 juris-
prudence. 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 Codes
characterization of the right to property, which emphasizes the property owners in-
terests and fi nds its constitutional expression in Article 14 (1) [1] of the Basic Law.
According to this approach, the laws imposition on the property owners 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 prop-
erty, 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 accompa-
nies 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-lawas opposed to private-lawnotions of property in its
Article 14 analysis. As noted earlier in this chapter, the Court declared: The con-
cept of property as guaranteed by the constitution must be derived from the consti-
 Economic Liberties and the Social State 641
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 private-
law regulations.63

10.5 Groundwater Case (1981)

58 BVerfGE 300
[The case emerged out of the Federal Water Resources Act in its amended ver-
sion 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 ground-
water to procure a permit granted for limited periods and specified purposes
sanctioned by law. The plaintiff owned and operated a gravel pit near Mnster.
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 citys water
wells. Because these wells were threatened by the quarry operation, the city de-
nied the operator a permit to use the water beneath his property. After exhaust-
ing his administrative remedies the plaintiff sued North RhineWestphalia
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 con-
stitutional question to the Federal Constitutional Court. The Constitutional
Court concluded that the Water Resources Act was an appropriate exercise of
the Parliaments authority to defi ne the contents and limits of the constitu-
tions property right, especially in light of the social obligation of property
found in Article 14 (2).]

Judgment of the First Senate. . . .
[The Court began with a lengthy opening discussion of the legislatures
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 assump-
tion that groundwater is part of the owners 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
 642 chapter ten
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 encom-
passes 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 prop-
erty 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 normsa view sanctioned under the Weimar
Constitutioncontradicts the Basic Law. The concept of property as guaranteed by
the constitution must be derived from the constitution itself. Th is concept of prop-
erty in the constitutional sense cannot be derived from legal norms [ordinary stat-
utes] 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 [protec-
tion and transfer] of property; and second, to safeguard public interestsin which
every citizen has a stakemainly 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 con-
crete 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.
 Economic Liberties and the Social State 643
1. When defi ning the content and limits of property under Article 14 (1) the legis-
lature 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 sepa-
rates 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 pre-
sumed natural relationship between groundwater and the property on which it is lo-
cated. 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 modify-
ing 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 Arti-
cle 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 owners right to use groundwater is subject to
governmental approval. The property owners 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 notas a
ruledepend 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 pos-
sible 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 be-
cause 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 quarry-
ing gravel since 1936. The decision in this case, therefore, also hinges on whether the
 644 chapter ten
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 quar-
rying 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 regu-
lation 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 struc-
turing 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 suf-
ficient 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 perpetu-
ity 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 frame-
work of Article 14 (1) the legislature may restructure individual legal positions by is-
suing an appropriate and reasonable transitional rule whenever the public interest
merits precedence over some justified confidencesecured by the guarantee of
continuityin 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 unhin-
dered 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 pub-
lic 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 Con-
stitutional Court interpreted the terms of Article 14 (3) to distinguish an expropria-
tion 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 owners prop-
erty 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 thresh-
old 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 ordi-
nary 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 distinc-
tion 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 constitu-
tional 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 di-
rect expropriations.64
In Monument Protection the Constitutional Court found the regulation to be so bur-
densome 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 Parliaments efforts to define the
content and limits of property do not lead to a constitutional claim for compensation.
 646 chapter ten

10.6 Monument Protection Act Case (1999)

100 BVerfGE 226
[An industrial fi rm was denied the permit it needed to demolish a nineteenth-
century villa. The permit was required by Rhineland-Palatinates 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 be-
cause it could not use the building in a manner that was compatible with its in-
dustrial 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 main-
taining the building in compliance with the Monument Protection Act. The
appeals court to which the industrial fi rm turned for relief referred the ques-
tion of the Monument Protection Acts compatibility with Article 14 of the
Basic Law to the Federal Constitutional Court pursuant to the Courts con-
crete judicial review jurisdiction. The Court struck the Monument Protection
Act as an improper exercise of Parliaments authority to defi ne the content and
limits of the right to property and further ruled that the Parliaments overreach
could not be mitigated by the award of compensation under the acts 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 indi-
vidual. 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 peoplelegal ex-
propriationor through an executive agencys action, taken pursuant to legislatively
delegated authority to expropriate property rightsadministrative expropriation.
These conditions are not present here. Neither the challenged Act, which requires
a permit for the destruction of protected monuments, nor the administrative agen-
cys 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 desig-
nated 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 regimes impact on the property owner. And
 Economic Liberties and the Social State 647
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 propor-
tionality 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 im-
posed 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 rights-
holder 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 Parliaments authority to defi ne the content and limits of property is ap-
praised under various standards. To the degree that the personal freedom of the indi-
vidual in regard to property is assured, the legislature enjoys significant deference.
The legislatures discretion is even greater if the property has strong social signifi-
cance. In this regard the distinctive nature and function of the property is of deter-
minative 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
constitutions property protection (Article 14 (2) of the Basic Law). Should the legis-
lature 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 constitu-
tional legal interest. To be clear, excesses that result from the Parliaments 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 owners rights. The Court rec-
ognized that the protection of monuments is a legitimate state objective
grounded in the state constitution. Further, the Court accepted that the per-
mit requirement was an appropriate and necessary means for achieving this
 648 chapter ten
objective. Finally, the Court found that the application of the permit require-
ment generally did not lead to a disproportionate burdening of the property
owners interests. After these generally approving characterizations, and be-
fore 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 mak-
ing the most profitable use of their property. Article 14 (1) does not protect propertys
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, can-
not be realized. For example, if the property owner in possession of a protected his-
torical 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 [Privatntzigkeit
one of the essential, core privileges of the constitutions property protection] is al-
most completely eradicated. If the Acts preservation obligation is upheld, the Act
imposes on the property owner alone a burden to secure the publics interest in the
monument without leaving to the property owner the opportunity to enjoy the ben-
efit 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 gen-
eral 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 imposi-
tion of disproportional burdens on property owners and does not contain measures
that preclude such unacceptable limitations on the right of property. . . .
[In the decisions final section the Court explained that the laws saving clause
could not remedy the disproportionate character of the prohibition on destruc-
tion. 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 sub-
stance 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 owners 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 sat-
isfy 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 Sec-
tion 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 Courts holding with respect to the Monument Protection and Care Acts saving
clause merits some further comment. The Court emphasized that, by prohibiting
monetary payments as the exclusive or primary form of equalization for dispropor-
tionate 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 owners
fundamental liberty interests are respected. Th is will be enforced through the courts
use of proportionality analysis, which is central in reviewing regulations under Arti-
cle 14. When confronted with burdensome regulations, the courts may resort to the
standard of proportionality and emphasize mitigation measures that have been in-
corporated 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 owners 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 Courts regulation and expropriation jurisprudence reveals two
important trends. On the one hand, the Court has broadly interpreted the legislatures
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
 650 chapter ten
form a constitutional framework that reconciles the often confl icting demands of the
modern statecodified 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 Germanys famed social market
economy, the Court has woven Article 14s seemingly contradictory threads into a
property rights jurisprudence that is perfectly adapted to that tradition and the na-
ture 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. Copy-
right law is chiefly concerned with cultural undertakings while other rules, including
patent law and trademark law, are aimed at regulating industrial and commercial in-
terests. 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 Laws 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 societys cultural identity and its technological and
economic progress. Societys interest, for example, in medical advances surely is
served by motivating researchers with the promise that they will enjoy the commer-
cial fruits of their labor. Yet societys 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 inter-
sects with other basic rights including the free development of ones personality (Ar-
ticle 2), the freedom of expression, art, and research (Article 5), occupational free-
dom (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 inter-
est 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 intel-
lectual creations constitute property within the meaning of Article 14. But, as with
material property, the nature and extent of the protected property interest in copy-
righted material, patented objects, or a trademark is to be determined by the legisla-
ture in the public interest. Here, more than in cases dealing with material property,
the Court places a heavy accent on intellectual propertys social character. The School-
book Case, the Courts leading copyright opinion, is presented not only for what it has
to say about the Courts intellectual property jurisprudence but also because it brings
together many of the standards and principles governing the Constitutional Courts
construction of the content and limits clause of Article 14 more generally.
 Economic Liberties and the Social State 651

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 pho-
tographs to be published in a collection that assembles the works of a consid-
erable number of authors and is intended, by its nature, exclusively for religious,
school, or instructional use ( 46 of the Urheberrechtsgesetz [UhrG or Copy-
right 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 vio-
lated their property rights under Article 14. The Court found that the right of
access to copyrighted works properly served societys 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 inter-
ests in property under Article 14 (1).]

Judgment of the First Senate. . . .
B. The constitutional complaints are justified.
I. Copyright protects the authors 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 authors
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 authors utilization
rights must be assessed under Article 14.
The idea and purpose behind the constitutional guarantee of freedom of art [Ar-
ticle 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 circu-
lation 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
 652 chapter ten
of an intellectual creation. The issue is whether the statutory limitation on the eco-
nomic 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 clas-
sify the authors economic rights as property within the meaning of the Article 14
and to extend its protection to these rights. In our constitutional assessment, how-
ever, we must consider the inextricable link between personal-artistic creation and
its economic utilization, together with the special nature and character of the prop-
erty rights. . . .
II. . . . Section 46 of the Copyright Act is incompatible with the property guaran-
tee 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 ex-
cluded 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 au-
thors right, secured by private law, to have the property-like facets of creative activ-
ity 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 authors 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 utili-
zation 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
 Economic Liberties and the Social State 653
of varying degrees. The challenged provision of the act, which allows third parties to
use the authors 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 de-
pends, thereforeapart from whether it is in other respects consistent with the con-
stitutionon its justification in terms of the public interest.
III. 1. There are no objections against authorial rights with respect to the collec-
tions 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 par-
ticipate 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 edu-
cational collection. . . . The authors legitimate interests have been taken into ac-
count 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 al-
lows the incorporation of copyrighted material into the aforementioned collections
without any compensation.
The denial of all compensation for the reproduction and distribution of a copy-
righted work in such collections . . . impairs the authors 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 autho-
rial remuneration.
In accord with the property guarantee the author has the right to claim compensa-
tion 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
artists intellectual and personal creativity is at stake here. . . . Thus, not every consid-
eration of public interest justifies the denial of the right to remuneration; in par ticu-
lar the general publics 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.
 654 chapter ten
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, how-
ever, felt that a requirement of remuneration would force school and church
officials to use only materials in the public domain, prompting them to ex-
clude 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 grati-
tude 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 ones labor at the disposal of the public for purposes of education in the ab-
sence of remuneration. Complainants point out correctly that the use of instruments
in natural science classes is protected under patent laws. . . .
The authors 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 elseneither the editor, nor the publisher, nor the printerof 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 sin-
gle 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 authors right to control the reproduction of his or her work is per-
missible, 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 au-
thors a claim against manufacturers of tape recorders capable of being used to repro-
 Economic Liberties and the Social State 655
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 Re-
cord Case (1971), the Court upheld a change in the law that limited a recording copy-
right 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 Sev-
eral 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 with-
out 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 prin-
ciple 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 con-
cluded, 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 im-
plications of intellectual property in these cases, the Courts three-justice chambers
have developed the practice of turning away constitutional complaints involving in-
tellectual property issues. The chambers regularly conclude that intellectual prop-
erty complaints raise questions already settled by the Courts decisions or lack suffi-
cient prospects for success. The second of these justifications for resolving intellectual
property cases in the three-justice chambers is evidence of the Courts willingness to
defer to Parliaments 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 Insti-
tut fr Normung or din) is a private, not-for-profit entity that, according to its web-
site, develops norms and standards as a ser vice to industry, the state and society as a
whole. . . . dins 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
 656 chapter ten
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 pro-
tection. The ordinary courts acknowledged that dins 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 sub-
stance of 5 nor the ordinary courts interpretation of it in the din Standards Copy-
right Case merited the full senates 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 dins standards had been
converted into exempted official works through their adoption into law.75
The First Senates three-justice chambers also have shown deference to parlia-
mentary infringements on property interests in turning away recent complaints aris-
ing out of the trademark and patent areas. In 2004 a three-justice chamber found no
basis for the full senates review in the Cyber Squatting Case,76 which involved a
cyber squatters 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 do-
main) for an Internet domain name gives rise to property interests.77 But the cham-
ber concluded that trademark law permissibly limited that property interest by fore-
closing a cyber squatter from registering, as a domain name, a word or phrase that
qualifies as another persons protectable trademark. A three-justice chamber simi-
larly 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 estab-
lished by the Court in the Schoolbook Caseespecially creative propertys par ticu lar
social significanceto conclude that the issues raised by the case had been settled
by the Courts 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 defen-
dants favor in the initial proceedings, the plaintiff asserted a violation of the
property rights secured by Article 14 in a constitutional complaint brought be-
fore the Federal Constitutional Court. The complainants property interest de-
rived from 9 and 10 of the Patent Act, which provide that the patentee (or his or
 Economic Liberties and the Social State 657
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 holders monopoly, provided by 11 (2) of the Patent Act, constituted an
acceptable legislative limitation on the patent holders property interest. Section
11 (2) states that the effects of a patent shall not extend to acts done for experi-
mental purposes relating to the subject matter of the patented invention. Based
on the Courts well-established jurisprudence, the three-justice chamber found
that neither 11 (2) of the Patent Act nor the ordinary courts 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 neverthe-
less 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 prop-
erty 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 pat-
ents 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 owners
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 legislatures task to defi ne appropriate standards that ensure
that its use and adequate exploitation correspond to the nature and the social impor-
tance 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
 658 chapter ten
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 re-
sulting 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 constitu-
tional point of view there are, therefore, no objections to the legislature giving these
matters priority over the patentees 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 Jus-
tice 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 Jus-
tices justification of restrictions on the patent right by reference to the social obliga-
tions 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 paten-
tee risks hindering technical advancement, on the one hand, but that the excep-
tion must be motivated by discrete, socially significant aims, on the other hand.]
Th is Federal Court of Justices reasoning does not raise considerable constitu-
tional reservations. In this context, it must be assumed that patenteeslike
authorshave, as a matter of principle, a property interest that includes the pecuni-
ary benefits derived from their work so long as no public good takes priority over the
patentees 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 excep-
tion. 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

 Economic Liberties and the Social State 659
Considering the pace and complexity of technological development, and the ubiq-
uity and saturation of cultural and intellectual production in todays infotainment
society, the Courts deference to the popularly elected legislature on matters involv-
ing 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 Holmess dictum, in Lochner v. New York (1905), that a
constitution rooted in liberal democratic theory is not intended to embody a par tic-
ular 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 judg-
ment 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 ones occupation and
place of work, like the right to property, fosters an economy based on entrepreneur-
ship and ownership. But the protection of these economic rights also may be re-
garded 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 con-
sideration of the seminal occupational rights decision, the Pharmacy Case of 1958, and
its progeny. Its principles and standards of review continue to govern the Courts ap-
proach 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, al-
lowing 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 exam-
ples of major governmental interventions in the economy. But only the Codetermina-
tion Act resulted in a spirited constitutional controversy implicating several rights
guaranteed by the Basic Law, among them the rights to property, association, and oc-
cupational liberty.
 660 chapter ten

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 em-
ployees. At the time of its enactment the act covered no fewer than 476 compa-
nies 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 his-
tory 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 addi-
tion, the act provides (1) that the supervisory board chairman and vice chair-
man 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 se-
lected by the supervisory board in accordance with prescribed procedures (
3 and 33).
Nine business fi rms and twenty-nine employer associations fi led constitu-
tional complaints against each of these sections of the Codetermination Act for
violating the rights of property (Article 14), association (Article 9), occupa-
tional liberty (Article 12), and freedom of economic activity allegedly covered
by the Basic Laws general personality clause (Article 2). The act was also the
subject of a concrete judicial review reference by Hamburgs Regional Court.
The Constitutional Court heard all of these cases in a single consolidated pro-
ceeding marked by four days of oral argument. A battery of corporate and gov-
ernment lawyers armed with thick briefs drafted by distinguished law profes-
sors 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 Germanys corporate
culture.]

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 begin-
ning of industrialization. It was constitutionally recognizedafter initial statutory
elaborationsin 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
 Economic Liberties and the Social State 661
the Election of Works Council Members to the Supervisory Committee of 15 Febru-
ary 1922. Hitlers National Socialist regime repealed these statutes. In the course of
the reorganization after 1945, some of the German Lnder incorporated rules con-
cerning the codetermination and coparticipation rights of workers into their consti-
tutions. The Basic Law essentially limits itself to guaranteeing classical human and
civil rights; accordingly, it contains no express rules on the coparticipation of work-
ers. Th is matter is left to federal legislation. . . .
C. The constitutional complaints are unjustified. The provisions of the Codeter-
mination 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 share-
holders. 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 un-
constitutional. That issue was left to another day. But once again the Court ob-
served that in regulating the economy the legislature enjoys wide-ranging dis-
cretion. Employers had argued that the cumulative effects of codetermination
and related economic policies would eventually burden property and associa-
tion rights in a manner incompatible with the letter and spirit of the constitu-
tion. The Court, however, declined to anticipate the future. Nor would it
burden the legislature with the task of predicting the ultimate effects of code-
termination. The Court was satisfied that the legislature had performed its task
carefully after holding many hearings and considering Germanys previous ex-
perience with codetermination and giving due regard to the individual free-
dom of citizens. Th is was sufficient to override anticipated but unproven asser-
tions 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 pur-
suance 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 share-
holders as a whole retain their decisive influence in the enterprise. But this restric-
tion 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
 662 chapter ten
to membership of the supervisory board. On the other hand, these shareholdings
have far-reaching social relevance and serve a significant social function, espe-
cially since the use of this property always requires the cooperation of the employ-
ees whose fundamental rights are affected by such use. To the extent that the prop-
erty of companies responsible for the undertakings affected by the act is concerned,
one cannot assume [solely] on the basis of the legislatures 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 par-
tic u lar form of corporate orga nization and its internal decision-making pro-
cedures. 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 po-
litical means of safeguarding the market economy. It serves the public wel-
fare 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 un-
constitutionally add to the collective agreement system an additional layer of labor
and economic conditions. They do not impermissibly restrict the principle of inde-
pendence 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] inde-
pendence 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 insuffi-
cient to ensure the fundamental independence of employer associations, the legisla-
ture 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
 Economic Liberties and the Social State 663
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 under-
stood 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 ac-
tivity 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 Codetermi-
nation 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 profes-
sion 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 ones trade, occupation, or profession. To the extent that we also
must consider Article 2 (1) of the Basic Law, [the Acts provisions] also do not in-
fringe that fundamental right. Complainants have not shown that the challenged
provisions unduly constrain the development of entrepreneurial initiative, thus [ad-
versely] 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) guaran-
tees to all Germans the right to form corporations and other associations. Para-
graph 2, however, contributes to Germanys militant democracy by prohibiting as-
sociations whose aims or activities contravene the criminal laws, or that are
directed against the constitutional order or the concept of international under-
standing. 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 para-
graph is interesting because it reaches into private contractual relationships: Agree-
ments 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 personsthat is, a public-law corporationcreated
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
 664 chapter ten
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 reluc-
tant 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 Bre-
men 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 infringe-
ment of the individuals 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 unionsthat 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 companys
lockout of its employees following a strike and the companys 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 associa-
tional autonomy. In this case, however, the employer had refused to reinstate em-
ployees who were members of the companys works council. Members of such coun-
cils, 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 ex-
pressly 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 coun-
cil.87 The chairman of IG-Metalls works council distributed handbills to employees
on the factory grounds urging them to vote for union members (nearly all of whom be-
longed to the spd) running for election to the town council in a nearby Bavarian com-
munity. The employer then sought and eventually obtained a ruling from a Bavarian
 Economic Liberties and the Social State 665
labor court excluding the employee who distributed the bills from the works council.
The lower courts order was based on a provision of the Works Council Act that pro-
vides for such an exclusion if the employee engages in party politics on the factorys
premises. In response to the employees 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 employees 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
workers 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 Tele-
communications sought to replace them temporarily with civil servants (Beamten),
an action sustained by the Federal Labor Court (Bundesarbeitsgericht). The Consti-
tutional Court affi rmed the complaint fi led by the German Postal Union, the Consti-
tutional 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 con-
ditions, 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 neu-
tral 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 legis-
lature 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 statutes content and the legislative basis for its en-
actment. 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 codeter-
mination should unduly impinge on the right to property, association, or occupa-
tional liberty, Parliament would be constitutionally obliged to make the necessary
 666 chapter ten
corrections. Any legislative negligence in this regard is presumably subject to fur-
ther 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 ad-
judication under Article 12. The rights vindicated by this article accord with the
logic of the social market economy, just as they mark the Basic Laws victory over a
once hierarchically orga nized social structure. In the Federal Constitutional
Courts 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 voca-
tion 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 commu-
nity. The states 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
todeny 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 con-
stitutional 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.]

Judgment of the First Senate. . . .
Section 3 (1) of the Bavarian Apothecary Act of 16 June 1952, as amended on 10 Decem-
ber 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 citizens 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 occupationthat
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
 Economic Liberties and the Social State 667
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 rela-
tionship 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
persons 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 activi-
ties 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 signifi-
cance 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 prac-
tice. 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, al-
though viewed from different angles, are incorporated into the notion of vocational
activity.
Thus, an interpretation that would absolutely bar lawmakers from every interfer-
ence with vocational choice cannot be correct. . . . Rather, a legal regulation purport-
ing 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 admis-
sion standards. Article 74 (19), authorizing the federation to enact laws governing
admission to certain occupations, is evidence that the framers did not intend to sum-
marily 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 regula-
tions 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 voca-
tional 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
 668 chapter ten
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 interpreta-
tion 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 af-
fects 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 reason-
able 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 pro-
tect 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 legislatures authority to
regulate vocational activity.
Lawmakers have the most discretion when they regulate the practice of an occupa-
tion. 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 pre-
vent 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 unreason-
able 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 occupa-
tional 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 commu-
nity interests; in all such cases the restrictive measures selected must entail the least
possible interference. But the nature of a regulation prescribing conditions for ad-
mission 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 ones personal qualifications and over which one exercises
no control.
 Economic Liberties and the Social State 669
The regulation of individual (subjective) conditions [for admission to an occupa-
tion] is a legitimate exercise of legislative authority. Only those applicants possessing
the proper qualifications, determined in accordance with preestablished formal cri-
teria, 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 qualifica-
tions. 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 prac-
tice of an occupation].
The situation is different, however, when the state proceeds to control the objec-
tive conditions of admission. Here, the matter is simply out of the individuals 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
persons 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 di-
rect 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 pres-
ent. 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 vio-
lates the individuals right to choose an occupation, quite apart from any possible
confl ict with the principle of equality. Limits upon the objective conditions of ad-
mission are permissible on very narrowly defi ned terms. Generally speaking, [the
legislature] may impose them only when they are needed to address highly proba-
ble dangers to community interests of overriding importance. . . .
V. . . . Public health is doubtless an important community interest whose pro-
tection 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 profes-
sion at work to protect its [narrow] interests and the traditional concept of the
apothecary.
 670 chapter ten
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 sup-
ply 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 consti-
tutional law that any restriction imposed on a fundamental right must be accom-
plished by a specific legislative enactment (Gesetzesvorbehalt).89 As suggested ear-
lier, 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 lifes work. Choosing ones life work is an act of self-determination,
an act that by itself ranks among the Basic Laws highest values. Finally, and most
importantly for present purposes, Pharmacy sets forth for the fi rst time the grada-
tion theory (Stufentheorie) for assessing restrictions on occupational choice. Phar-
macy 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 ones trade or profession. But
as noted below, the practice of a vocation or occupation may be regulated in the pub-
lic 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 scru-
tinizes limitations on choice within an exacting three-pronged analytical frame-
work. 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 sub-
stantial 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 states end must be unavailable. Finally, the means used must not be dis-
proportionate to the accomplishment of the task. In addition, any regulation of oc-
cupational choice must satisfy what the Court describes as subjective and objec-
tive requirements. Under the standard of subjectivity, the state may regulate choice
only to the extent needed to ensure that individuals embarking upon a given occupa-
tion possess the requisite qualifications. Occupational licensing standards can be
imposed to certify the competence or education of an applicant. The standard of ob-
jectivity, 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 Techni-
cian Licensing Case (1992). The Court sustained legislation that requires sufficient
 Economic Liberties and the Social State 671
professional knowledge and expertise before a license can be issued to persons set-
ting themselves up as independent advisors or experts in their specific professional
field; in following Pharmacy, the Court denied the states 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 cer-
tain 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 fed-
eral railroad is indispensable for the national economy. Th is is true not only for pas-
senger 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 guaran-
teed 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 reuni-
fication, 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, ac-
cordingly, has upheld laws 1) imposing reasonable age limits on the practice of an
occupation, 2) permitting only licensed pharmacists to sell certain drugs, 3) prohibit-
ing 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 attorneys license if he or she en-
gages in a second occupation that is incompatible with that of an independent law-
yer.93 On the other hand, the Court invalidated a law restricting the number of doc-
tors 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 law-
yers 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 legisla-
tion 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 grada-
tion 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
 672 chapter ten
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 enter-
prises.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 Courts 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 in-
voked 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 candymakers 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
 Economic Liberties and the Social State 673
delegated power. Reasonable concern for the common good must justify the regula-
tion, 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 consis-
tent with the principle of proportionality, we must take into account the discretion
the legislature enjoyswithin the framework of its authorityin 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 pur-
chasing 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 un-
doubtedly 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 confu-
sion 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 con-
sumer. Nor do other considerations justify the competitive edge given here to pure
chocolate products. If a case involves possible confusion between milk and marga-
rine products, then the legislature may indeed adopt measures in the public interest
for maintaining a productive farm economy thus serving a purpose beyond the im-
mediate 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 protec-
tion 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 re-
cent examples of how the Federal Constitutional Court has dealt with such laws or
regulations when they impinge on occupational rights. Two prominent health regu-
lation decisions implicating such rights are the earlier-discussed Glycol Wine (2002)
and the Smoking Ban (2008) cases. In Glycol, besides the property interests litigated
 674 chapter ten
by the wine distributors,102 the two bottling fi rms also argued that the federal gov-
ernment 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 governments 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 com-
pany 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 Lnder.105 Given the Bundestags reluctance to pass a na-
tional nonsmokers protection statute, nearly every Land parliament proceeded to
enact its own smoking ban. The typical ban prohibited smoking in all public build-
ings and enclosed spaces, including bars, restaurants, cafes, and clubs. Some Lnder,
among them Berlin and Baden-Wrttemberg, exempted from the ban larger estab-
lishments able to provide separate rooms for smokers, an exception that worked a
severe hardship on small, single-room establishments. For smoking-friendly Ger-
mans, many of these smaller establishments were neighborhood havens of relaxation
and camaraderie. Surveys showed that the ban was causing owners of these estab-
lishments 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 Tbin-
gen fi led constitutional complaints against the bans, the exemption for larger estab-
lishments 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 nonsmok-
ers against the basic right of certain bar owners to the free exercise of their occupa-
tion under Article 12 (1), the Court invalidated the exemption for larger establish-
ments. 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 re-
main in effect until the end of 2009, by which time the Lnder were ordered to bring
them into conformity with the Courts recommendations. The First Senates major-
ity advised that these laws could either impose a general smoking ban on all estab-
lishments or provide an appropriate exemption for small as well as large establish-
ments. (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 Brydethe Courts fi rst justice to have been nominated by the center-left
 Economic Liberties and the Social State 675
Green Partyfelt that the right to occupational liberty would simply have to give
way before the overriding importance of the communitys interest in the preserva-
tion 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 other-
wise valid objective of protecting public health.107
A related case worthy of note involved a Hessen Land statute authorizing munici-
pal 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, de-
signed as it was to reduce waste by discouraging the use of nonreusable containers.
Hesses 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 occupa-
tional liberty. As in Glycol, the issue was whether occupational rights had been im-
paired in accordance with the Basic Law. According to Article 74 (1) [24], the federa-
tions concurrent power extends to the regulation of waste disposal. But under Article
105 (2a) the Lnder are empowered to impose taxes on consumption and expendi-
tures 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 sub-
stantive 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 consid-
ered 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 dis-
cussed in Chapters 7 and 9 respectively. In the fi rst case, Bavarian Abortion III, Ba-
varia had enacted regulations permitting abortions to be performed only by gyne-
cologists 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 53
vote struck down these regulations as an infringement of a physicians 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 Bavarias statute was beyond the competence of the Lnder.
Similarly, in the Ritual Slaughter Case (2002; no. 9.3), claims to religious liberty, per-
sonality 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
 676 chapter ten
citizens.110 With respect to noncitizens, however, the First Senate noted that Article
12 (1) is of subsidiary validity (subsidir geltend) when summoned in tandem with
a valid claim to a basic right enjoyed by all persons.111 The Court concluded that oc-
cupational freedom is a facet of certain basic rights enjoyed by all personsto 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 stat-
ute 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 medica-
tions. 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 treat-
ments to their patients as they deemed medically necessary. Hence, their occupa-
tional 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 specializ-
ing in more than one area of medicine, the Constitutional Court held that the one
specialty designation rule violated the doctors 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 physi-
cians. 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 re-
quired to organize justifiable medical treatment in an economical ly sensible man-
ner.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 previ-
ously 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 em-
ployed by the opposing fi rm, had not personally represented the opposing clients or
 Economic Liberties and the Social State 677
interests. In responding to the law fi rms constitutional complaint, the Court ruled
that in situations where lawyers themselves have not previously represented oppos-
ing 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 Con-
stitutional 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 RhineWestphalia.
The Court held that the rule interfered with the complainant lawyers per for mance
of his legal duties. To keep a lawyer from bar memberships open to similarly quali-
fied lawyers simply on the basis of the Land in which he was admitted to the bar vio-
lates his occupational rights under Article 12 (1) of the Basic Law.119 Each of these
cases reiterates Pharmacys teaching that only an important public purpose will jus-
tify any state interference with the practice of a profession or occupation.

Shop Closing Law Cases. Germanys 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 cur-
rent 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
8p.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 lo-
cation of a shop (e.g., in a train station) or the nature of its business (e.g., a phar-
macy). Complicating this picture are the many supplementary regulations promul-
gated by the Lnder 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 dur-
ing the baseline business hours but barred them from selling goods other than phar-
maceuticals and personal hygiene products on Saturdays and Sundays when other
shops were required to close. Other shops were permitted to remain open, with nor-
mal 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
 678 chapter ten
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 clo-
sure 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 complainants occu-
pational 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 sec-
tion 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 gen-
erally 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 Constitu-
tional Courts 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 impli-
cated, the Court applied its heightened standard of review. It concluded that the ad-
ministrative 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 teach-
ing and research programs monopolized by full professors. As one commentator
notes, the state provided higher education in the fi nest tradition of independent in-
quiry, and students educated in this manner provided the state with enlightened
ministers.124 Controversial political reforms of the 1960s transformed this elite sys-
tem into a mass system of higher education.125 The high postwar birthrate and re-
forms 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
 Economic Liberties and the Social State 679
course of studies at the Gymnasium, an advanced secondary school neither de-
signed 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 ad-
vanced training in a technical school. Th is tracking system tended to reinforce the
elitism of German universities.
When the numerus claususa 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 ad-
missions 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 Universi-
ties 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 oth-
erwise presumptively qualified for admission to university, challenged the reg-
ulations. 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 commen-
surate 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, aca-
demic 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 satisfac-
tory (befriedigend); a score of 4 indicates sufficient (ausreichend); a score of
5 indicates inadequate (mangelhaft); and a score of 6 indicates insufficient
(ungengend). 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 unsuccess-
fully applying for admission to medical school during the winter semester of
196970, 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 admis-
sion 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
universitys decision and subsequently brought an action in the administrative
courts to ascertain the legality of the policy that resulted in his inability to en-
roll 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
 680 chapter ten
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.]

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 re-
strictions, as established by our precedents and in the legal literature, is the guar-
anteed 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 Parliamen-
tary Councils Main Committee emphasized that the individual would enjoy the
freedom to choose among the various universities and to attend the lectures of out-
standing professors in order to receive a well-rounded education under all circum-
stances. . . . Indeed, an important aspect of the protective function of this freedom. . . .
is circumscribed when the capacity of all educational institutions is exhausted, mak-
ing the planned distribution of applicants unavoidable.
Overcrowded educational facilities highlight another important aspect of the
right to freely choose the place of ones 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 Courts Article 12 (1) jurisprudence has long
emphasized not only the inseparability of the choice and the later practice of an oc-
cupation, 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 im-
pose 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 occupationfor example, the
medical professioninvolves 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
 Economic Liberties and the Social State 681
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 aug-
ment the initial postulate of safeguarding liberty from state intervention. Th is devel-
opment is particularly important in the field of education. . . . The freedom to choose
an occupationapart from the special provisions of Article 33 relating to civil ser-
vice employmentis at present predominantly put into practice in the private sector
and is largely directed toward protecting the individuals chosen lifestyle; that is, its
purpose is to ensure freedom from any coercion or prohibition with respect to ones
choice or practice of a profession. By contrast, freedom of choice with respect to
ones place of education is geared, by its very nature, toward free access to institu-
tions; this right would be worthless without the actual ability to exercise it. Accord-
ingly, 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 con-
cept that a social, constitutional state takes on a guarantors obligation to imple-
ment 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 precondi-
tion for the exercise of basic rights, as in the field of training for academic profes-
sions. In a social and constitutional state one cannot leave it to the limited discre-
tion of governmental agencies to determine the circle of beneficiaries and to exclude
some citizens from these privileges, especially since this would result in the gov-
ernment 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 of-
fered. Th is conclusion flows from the fact that the state offers these ser vices. There-
fore, Article 12 (1) together with Article 3 (1) [the principle of equality] and the social
state principle guarantee any citizen meeting the individual admission require-
ments 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 exclu-
sively 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 admis-
sion restrictions on entering students would be permissible only if accomplished by a
 682 chapter ten
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 ex-
isting capacity is insufficient to afford an educational opportunity to everyone enti-
tled 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 servicesthat is, fi nancial
benefitsthe 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 ap-
plicants receives everything and the others nothingat 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 to-
gether with the states 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 rma-
tive or whether, under certain circumstances, an individual citizen can use this con-
stitutional 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 vio-
lation 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. Accord-
ing 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 in-
clude 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 de-
pendent upon individual demands, which often fluctuate and are influenced by man-
ifold circumstances. It would also lead to a misunderstanding of the concept of
freedomto 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 states mandate to achieve social jus-
tice as articulated by the principle of equality if the state gave only a privileged por-
tion of the population the benefit of limited public fi nancial resources while neglect-
ing 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 ones 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 se-
lection procedures; additionally, the numerus clausus would survive constitu-
tional 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 Courts so-called gra-
dation theory, the more the freedom of occupation is affected, the more the regula-
tory 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 equiva-
lent 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 ob-
serve the basic principle of proportionality and not wholly fail to consider objection-
able 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 begin-
ning 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 aforemen-
tioned order to impose admissions restrictions belong to the core of admission pro-
cedures 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 con-
sequently hindered from commencing their studies or possibly from choosing a
 684 chapter ten
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 re-
quirements 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 stu-
dents are obliged to make a selection which is reasonably acceptable to rejected ap-
plicants, always using the principle of fairness as a guideline. In par ticu lar the provi-
sion 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 au-
thorizes 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 ones life. Consequently, in a parliamentary de-
mocracy 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 com-
pletely 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 univer-
sity admissions. Following the Courts guidelines, the Central Admissions Office
worked out procedures for measur ing available space and formulated concrete stan-
dards 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 Uni-
versity of Freiburg.129 The novelty of the case consisted in the Courts decision to by-
pass the Central Admissions Office and order the direct admission of the complain-
ing 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 Munichs 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 nume-
rus clausus.132
Meanwhile, and partly in response to the Courts university admissions decisions,
the federation enacted the University Framework Act of 1976. Its detailed provisions
on university admission standards specified criteria for determining teaching capac-
ity, established admission quotas, and laid down general and special selection proce-
dures.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 Courts view there was still
too much emphasis on scholastic achievement scores. In 1982 the Court even nulli-
fied 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 stud-
ies.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 admis-
sions.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 re-
spects: (a) in overcoming the vestiges of absolute state discretion in educational mat-
ters 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 Germanys con-
stitutional 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 improb-
ably declared the new constitutions applicability to the entire German people (fr
das gesamte Deutsche Volk).
 686 chapter ten
The Road to Unity. Not surprisingly, then, the abrupt and almost unforeseeable uni-
fication 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, Eco-
nomic, 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 Republics social market economy. The State Treaty intro-
duced West Germanys currency (dm or Deutsche mark) into East Germany (Ger-
man Democratic Republic); incorporated East Germanys command economy into
West Germanys market economy; and transformed East Germanys obsolete and
inefficient system of industrial management into one of private ownership, competi-
tion, and the free movement of goods, capital, and ser vices. The immediate conver-
sion of a planned economy into a free enterprise economy caused considerable hard-
ship in East Germany, including factory closings, high rates of unemployment, and
the loss of social benefits not available in the Federal Republics social welfare
system.138
The Unification Treaty (31 August 1990) fi nally merged the two halves of Ger-
many, triggering structural and representational changes in the Basic Law.139 Never-
theless, to allow the new federal states in the former East Germany time to adjust to
the new legal orderparticularly laws relating to abortion, property rights, and
federal-state relationsthe Unification Treaty temporarily suspended the Basic
Laws 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 constitu-
tionality of the mix of treaty and legislative provisions that framed the new, unified
Berlin Republic. The most fundamental constitutional question raised by reunifica-
tion, however, had never been addressed by the Court. Article 146 of the Basic Law
seemed to clearly anticipate that reunification would cause West Germanys 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 Ger-
man constitutional scheme as five new Lnder. 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
 Economic Liberties and the Social State 687
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 recon-
struction like the one implicated by Germanys 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 constitutionor even the old Basic Law.141 Two decades later there
remains troubling evidence of a psychological divide between East and West Ger-
mansa wall in Germans mindsleading some commentators to wonder whether
the failure to achieve unification through a new all-German constitutional conven-
tion bears some of the blame.
The Constitutional Court was deeply involved in the adjudication of a large num-
ber 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 Germanys postwar con-
stitutional 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 pres-
ence in Germany. The Soviet Union, and to a lesser degree France, expropriated Ger-
man property and stripped industrial capital in their sectors as a crude form of repa-
rations for the inestimable costs the two countries had incurred during the war.144
More radically, the Soviet occupying authority instituted a massive land redistribu-
tion 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 wars 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 im-
migrants 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
 688 chapter ten
anathema in the socialist states 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 posi-
tions, the two states could not resolve what was diplomatically called the open prop-
erty 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 Declara-
tion on the Settlement of Open Property Issues. The Joint Declaration laid down the
general policy of restitution before compensation (Rckgabe vor Entschdigung).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 excep-
tion 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 in-
dustrial enterprises and agricultural holdings of 250 acres or more, the latter having
been distributed to poor farmers and organized into agricultural production coop-
eratives 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 nec-
essary 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 Re-
form, who would have to sit by empty-handed and watch as other victims of expro-
priation in the east would fi nally have their property restored to them, the Unifica-
tion 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 in-
sofar 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
 Economic Liberties and the Social State 689
a decade-long battle, waged in the pages of Germanys leading newspaper, the Frank-
furter Allgemeine Zeitung, and in the courts. On four separate occasions the Constitu-
tional 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 ex-
emption clause in the fi rst provision of the Joint Declaration, which had been
codified as Article 41 of the Unification Treaty and ultimately constitutional-
ized 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 com-
plicated by the fact that it was so readily susceptible to the combustible clich
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 gen-
erations. Behind the personal elements of the confl ict lay the clash between the
Federal Republics strict, liberal approach to property rights and East Germa-
nys 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.]

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 reverseddoes not violate the
fundamental rights asserted by the complainants. The challenged provision is ex-
pressly 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 Uni-
fication 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 Lawlike every constitutional
amendmentis to be reviewed according to the standard derived from Article 79 (3)
of the Basic Law. . . .
 690 chapter ten
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 fol-
lowing 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 ad-
dition, 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 com-
pensation, the amount of which is not prescribed, is expressly reserved to the legisla-
ture 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 ex-
propriations 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
 Economic Liberties and the Social State 691
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 responsi-
bility 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
Republics 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 Soviet-
occupied 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 expro-
priated 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 compen-
sation for earlier injustice. If these were expropriations in favor of the Soviet occupy-
ing 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 Constitu-
tional Court has examined arrangements for compensation of damage and loss suf-
fered 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 oc-
cupation. The Court has explained, however, that the Federal Republic is not answer-
able 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 Republics other burdens and the
fi nancial requirements for future tasks. To the extent that these principles are not
 692 chapter ten
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 con-
stitutional state principle. Compensation of this kind goes beyond the general, oblig-
atory equalization of burdens. The Unification Treatys provision that prefers restitu-
tion 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 per-
petrated 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 constitu-
tional right to property in this connection. Compensation does not result from indi-
vidual fundamental rights, but has its roots exclusively in the idea of the constitu-
tional 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 guaran-
teed 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 prop-
erty 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 resti-
tution. 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 exclu-
sion 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 accor-
dance 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,
 Economic Liberties and the Social State 693
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 Governments submission, which claimed that the
German Democratic Republic and the Soviet Union made the exclusion of restitu-
tion a preliminary condition at the talks about the Unification Treaty and at the Two-
Plus-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 Repub-
lic 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 inter-
ested 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 Governments decision made on its own re-
sponsibility and in accordance with its duty. Such a decision is not subject to consti-
tutional review. . . .

Land Reform I was an exercise in judicial pragmatism. As it often would do in the
charged context of reunification, the Court acted decisivelysome critics felt it had
acted sloppily148to buttress a major political decision of the reunification period.
But, as one of the most important property rights cases to arise out of the reunifica-
tion process, Land Reform I is remarkable for the fact that the Court reached its de-
cision without having to grapple with Article 14 of the Basic Law. The clear prohibi-
tion 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 sub-
ject to the Federal Republics 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 clausewhich per-
manently enshrines the constitutional protections of Articles 1 and 20. Of greatest
concern in this regard were the unamendable guarantees of equality and the consti-
tutional 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 imple-
menting a compensation scheme for the benefit of the former owners. The Court
 694 chapter ten
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 guaran-
tee of equal treatment secured by Article 1 (in conjunction with Article 3) and Arti-
cle 79 (3) of the Basic Law was superseded by the higher constitutional goal of re-
unification. In support of this conclusion the Court emphasized the Soviet Unions
apparent nonnegotiable stance against any return of properties expropriated during
its occupation of the eastern postwar sector, and the Court accepted the Federal
Governments argument that, on this basis, the exemption was necessary to achieve
reunification.150
The Courts embrace of the claim that the Soviet Union had insisted on the Land
Reform exemption as a condition for its indulgence of German reunification pro-
vided 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 com-
munist regimes 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 advo-
cates for complete restitution of expropriated eastern properties to argue, contrary to
the Courts fi ndings in Land Reform I, that the Soviets had not insisted on the exemp-
tion as a nonnegotiable element of the Unification Treaty. To the degree that the de-
cision in Land Reform I had been based on this factual mistake, the complainants ar-
gued, it was necessary for the Court to revisit the question.
In Land Reform II (1996) the Court conclusively upheld the constitutionality of
the Unification Treatys exemption of Soviet-era expropriations from the general
policy of restitution.151 Again the Court limited its review to alleged violations of Ar-
ticle 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 Treatys exemption compromise. In this pos-
ture, said the Court, its review was limited to investigating whether alleged infringe-
ments 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 protec-
tion 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 Courts reliance on
the political question doctrine in foreign affairs, the Court also refused to be drawn
into a de novo consideration of the federal governments negotiating strategy and ef-
fectiveness in the light of the new evidence of Soviet flexibility on the issue of restitu-
tion.152 Instead, the Court deferred to the federal governments 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
 Economic Liberties and the Social State 695
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 en-
acted 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 (Entschdigungs- und Ausgleichsleis-
tungsgesetz 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 Germanys 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 disap-
pointment 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
Courts 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 in-
tensely political and highly complex reunification statute against challenges that
the law violated the equality (Article 3), the social state (Article 20), and the con-
stitutional state (Article 20) principles. The Court held that Article 14 was inap-
plicable 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 Parliaments 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
 696 chapter ten
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 control-
ling opinion.154 The prevailing justices argued that any seeming arbitrariness in
calculating the amount of compensation was diminished by a number of consider-
ations. First, they noted that a range of other social injustices resulting from the
war and the emergence of the communist dictatorship in East Germanyloss of
freedom and degraded health conditions to name only twohad gone uncompen-
sated altogether. Second, they noted that disappointing compensation calculations
were justified by the governments 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 Republics 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 ex-
ception 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 Courts Second Senate. The preced-
ing Land Reform cases had been heard by the First Senate, which typically has juris-
diction 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 typi-
cally has jurisdiction over cases involving the intersection of constitutional and inter-
national 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 Courts plenumboth senates sit-
ting togetherbecause 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 ques-
tion 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 Ar-
ticle 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 state-
ment of the Basic Laws openness to customary international law before giving the
relevant international norms a restrictive interpretation. First, the Court con-
 Economic Liberties and the Social State 697
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 Germanys 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 dem-
onstrated, 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 over-
looked 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 pub-
lic ownership.160 Philip Plickert, writing for the Frankfurter Allgemeine Zeitung, con-
cluded 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 Laws 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 in-
terpreted 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 re-
lied on the social obligation of property, enunciated in Article 14 (2), to justify the
laws encroachment on property-holders interests. In these cases, however, proper-
tys social obligation had the added gravity of contributing to the historic peaceful
and stable unification of the two German states. Finally, the Court narrowly inter-
preted the expropriation provision of Article 14 (3). Th is was the interpretive ap-
proach the Court followed in the Key Date Case in which it had to consider another
significant exception to the general policy of restitution.
 698 chapter ten

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 restitu-
tion 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 Republics 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.]

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 sys-
tem, provided this legal system does not contradict German public order in this re-
spect (this is a reservation in favor of the Federal Republics public policy principles).
The rights acquired under the legal system of the German Democratic Republic (own-
ership 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 buyers legal posi-
tion. 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 ex-
propriation in the meaning of Article 14 (3) of the Basic Law. Expropriation is state
encroachment on an individuals property. It is directed toward the complete or par-
tial 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 provi-
sion in Section 4 (2) of the Property Act is concerned with legally correcting pur-
 Economic Liberties and the Social State 699
chase processes with the purpose of creating a balance between diverging private
interests. The provision challenged is related to the reorganization of ownership rela-
tions 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 leg-
islature 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 propertys social component. The pro-
vision 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 constituen-
cies. On one side were the former owners and their successors in title who had an in-
terest 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 buy-
ers 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 prop-
erty rights. Providing only compensation would have inadequately satisfied the for-
mer owners desire for restitution. Furthermore, from a fi nancial point of view, com-
pensation 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 ob-
taining 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.
 700 chapter ten
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 so-
cially 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 pub-
lic 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 leg-
islature 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 protec-
tion by reason of their law-abiding conduct when purchasing the property and be-
cause 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 exer-
cised 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. In-
stead, it represents an assessment of the degree to which opposed interests are wor-
thy of legal protection at different times. Such a solution, which differentiates factu-
ally 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 permit-
ted to apply without restriction, the principle of restitution might be further con-
strained. 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 sub-
stantially 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 Decem-
ber 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 ap-
propriate because the date when Erich Honecker retired from the office of the
 Economic Liberties and the Social State 701
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 Demo-
cratic 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 be-
cause 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 sub-
sequent amendment of the key date provision and the ensuing expansion of the ex-
clusion of restitution in cases of good-faith acquisition must be regarded as an ac-
ceptable 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 correct-
ing 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 rea-
sons argued in favor of departing from the restitution solution that affected the foun-
dations of the business operations of craftsmen and other small entrepreneurs. Fi-
nally, 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 per-
mitted to regard a restriction of the claim to retransfer as necessary and proportion-
ate 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
 702 chapter ten
into account aspects relating to the protection of public confidence. The revised pro-
vision, 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 ad-
ministrative 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 legisla-
tive 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 (resti-
tution of eastern properties purchased after 18 October 1989) would have been the re-
sult of statutes enacted by the all-German Parliament in 1992 and 1994, after unifica-
tion and clearly within the framework of the Federal Republics 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 all-
German Parliament after unification. Perhaps pragmatism accounts for the distinc-
tion. 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 Lnder.
Another, more charitable way of reading the Land Reform cases and Key Date is as
expressions of the Constitutional Courts understanding of the hardship suffered by
ordinary East Germans throughout the socialist states four-decade history and of
sympathy for the difficulty the Federal Republics new citizens faced in their tran-
sition to a market-oriented economy. As the preceding discussion has demonstrated,
the constituencies demanding restitution of long-lost eastern properties were de-
termined 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 sometimes-
arrogant approach to reunification, then the Courts 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 in-
volved, governmental bureaus and ministries, including the courts and the adminis-
tration of justice, were also brought under the jurisdiction of the Federal Government
or the new Lnder. Educational institutions, advanced research institutes, and scien-
tific academies would all be affected by the values and constitutional division of pow-
ers 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 Lnder, but they would soon be subject to revision or cancellation
in the face of the massive changeover to West German professional and political stan-
dards. 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 ones occupa-
tion and choose ones own place of work, guaranteed by Article 12, was one of these
rights. As the following discussion shows, former residents of East Germany vigor-
ously 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 Lnder. 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 nottheir government employment would come to an end, making them eli-
gible for unemployment compensation. Hundreds of affected employees fi led consti-
tutional complaints, asserting that the treaty provisions authorizing their dismissal
deprived them of their property interest in government employment and their free-
dom 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 Dissolu-
tion Case (1991).162
In confi ning its extended analysis to Article 12, the Constitutional Courts First
Senate held that the treatys dismissal provision was essentially compatible with the
Basic Law, but that East German public servants could not be discharged simply be-
cause the East German government had ceased to exist. The Unity Treaty converted
former East Germany public servants into employees of the Federal Republic of Ger-
many; 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 ones 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 inter-
est. In organizing the public ser vice, however, the state may determine the number of
its agencies and their location.
 704 chapter ten
Having made these points, and after examining the Unity Treatys 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 unifi-
cation, among which was the establishment of a modern and effective system of pub-
lic administration in the new Lnder. 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 par-
ents, disabled persons, and the elderly, pointing out that, because of the special vul-
nerability 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 so-
cial and political reconstruction involved the dismantling of East Germanys well-
known 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. (Arti-
cle 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 De-
cember 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 employ-
ees 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 aca-
demic 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 Ac-
cordingly, the Court demonstrated considerable empathy for those workers and pro-
fessionals faced with par ticu lar disabilities or pressing circumstances. In so doing,
the Constitutional Court sought to protect the occupational freedom of East Ger-
manys most vulnerable citizens, thus helping to build confidence among former East
Germans in the Basic Laws system of constitutional governance. And, as several
cases discussed below show, the Courts solicitude would extend to persons dis-
missed from their jobs for political reasons.

Judging the Past in Unified Germany. In the aftermath of reunification, the all-
German government adopted a set of procedures and policies to deal with the legacy
of East German communism. How the Federal Republic would judge East Germa-
nys past was a matter that invited comparisons with the postwar treatment of per-
sons 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 Germanys 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 be-
trayal. 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 impris-
oning 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 Re-
publics constitutional and legal order, East German citizensnow full-fledged citi-
zens of the Federal Republicwere 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 Republics 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 professorshad been
dismissed after vetting by screening boards.166 As Joachim Gauck, the East Ger-
man 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 For-
mer German Democratic Republic), was quoted as saying: If after more than 55
years of Nazi and communist dictatorship, citizens were going to trust [their] offi-
cials under the new democratic system, it was important that those officials be trust-
worthy.167 His clarion commitment to transparency and justice, not to mention his
personal integrity and courage, was one reason for Gaucks 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 Laws Article 33.168 What was required to demonstrate this
deficiency, declared the Court, were acts of a severely repressive or damaging na-
ture.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 ones occupation and place of work under Article 12 (1)
 706 chapter ten
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 Educators Case (1997) the First Senate declared that the
right aptitude includes the ability and the inner willingness to carry out ones 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 permit-
ted to consider the totality of a teachers 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 Agencys archives established that Fink had been awarded the Gold Merit
Medal of the National Peoples Army along with a payment of 750 marks for his ser-
vice. 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 Courts rejection of the complainants
claim that his dismissal infringed his right to his choice and place of work under Ar-
ticle 12 (1) (along with his fundamental rights to dignity (Article 1), personality (Ar-
ticle 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 fa-
miliar 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 neces-
sary means to achieve this goal.172 Even though the complainants 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 Rec-
tor and the great public attention that the case attracted.173
The case featured below was brought by East German lawyers who had been ex-
cluded 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
 Economic Liberties and the Social State 707
or the constitutional state principle, or had involved official or unofficial collaboration
with the Stasi. Any such person was considered unworthy (unwrdig) of member-
ship in the legal profession. In the East German Disbarment Case the Court narrowed
the statutes 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 le-
gality 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 com-
plainant 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 Re-
view 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 re-
view 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 errone-
ous 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.
 708 chapter ten
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 constitution-
ally 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 impor-
tance. But in applying the provision, the Federal Court of Justice blurs the distinc-
tion 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 col-
laborator . . . voluntarily and selectively collected information about legal colleagues
and fellow citizens, which he or she obtained, in particular, through invading the pri-
vate spheres of others and abusing their personal trust and passed on such informa-
tion 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 Justices view that the mere collection of information constitutes a breach
of human rights or the constitutional state principle is too broad since only in ex-
ceptional cases would spying by an unofficial collaborator not be covered. . . . Unof-
ficial 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 individ-
uals. 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 infor-
mation 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 unoffi-
cial collaborator would be sufficient according to the Federal Court of Justices ap-
plication 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 recruit-
ment 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 com-
pletely different circumstances in the German Democratic Republic. The additional
requirement that there be a violation of the principles of humanity and the constitu-
tional state principle can only be met if other circumstances are added. The unofficial
collaborator must have injured fundamental, protected interests by his or her culpa-
ble 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 distin-
guish between anonymous reports on the mood of the people and information relat-
ing 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 seri-
ous than psychological observations, conjecture, and conclusions. Generally speak-
ing, 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 persons 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 complain-
ant 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 Ger-
many. But there was no evidence to show that the lawyers 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 complainants
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 con-
duct on her part must be proven. Revocation of a certificate authorizing the practice
of law cannot be based simply on the unofficial collaborators participation in a re-
pressive 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 vi-
olates the principles of humanity. Reference to the uncontested oppression of the
 710 chapter ten
population by the Ministry for State Security does not replace evidence of individ-
ual guilt.
cc. The revocation notice, which is also based on the suspicion that the complain-
ants betrayed client confidences, also does not satisfy constitutional requirements.
The conclusion that the fi rst complainant was in part responsible for the encroach-
ments on the personal privacy [of the surveyed person] is not proved, but simply as-
sumed 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 prac-
ticing 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 gal-
lery in his home town. His reports, however, contained no incriminating infor-
mation, resulted in no intrusion into any persons 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 per-
sons 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 complain-
ant 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 conse-
quences or an intention to cause anyone harm, was nevertheless regarded as a viola-
tion 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 complainants disbarment was justified for his guilt in seri-
ously breaching the legally protected fiduciary relationship between lawyer and
client, thus violating, in the Courts view, the constitutional state principle.]

Judging the Judges. In circumstances similar to the Fink Case, some legal profession-
als 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 lawyers practice certifi-
cate 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 Courts 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 lawyers
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 pro-
fession.174 Here, however, the lawyer had been involved in cases of flagrant injus-
tice 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 be-
lieve 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 notarys li-
cense 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 Germanys criminal justice system was insufficient to show that one lacked
the aptitude to be a notary. Furthermore, the complainants record as a notary be-
tween 1990 and 1997 was beyond reproach. Accordingly, under the principle of pro-
portionality, the standard applied to the revocation of the complainants 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

Germanys 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 com-
mon 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 discre-
tion 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 Laws 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 states 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
 712 chapter ten
flourish. Finally, Germanys reunification inaugurated a discrete chapter in the juris-
prudence 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 sig-
nificant contribution to the integration of East Germans into the Basic Laws politi-
cal and legal system.
 appendix a
Federal Constitutional Court Justices
19512011

first senate: elected by bundestag
justice position

Seat 1
Hpker-Aschoff, Hermann (195154) President
Wintrich, Josef (195458) President
Mller, Gebhard (195971) President
Benda, Ernst (197183) President
Herzog, Roman (198387); Vice President
(by Bundesrat 1987 94) President
Haas, Evelyn (19942006) Justice
Schluckebier, Wilhelm (2006 ) Justice
Seat 2
Zweigert, Kurt (195152) Justice
Heck, Karl (195464) Justice
Bhmer, Werner (196583) Justice
Niedermaier, Franz (198386) Justice
Seidl, Otto (1986 95); (1995 98) Justice; Vice President
Papier, Hans-Jrgen (1998) Justice
(by Bundesrat 19982002) Vice President
(by Bundesrat 200210) President
Paulus, Andreas (2010 ) Justice
Seat 3
Heiland, Gerhard (195161) Justice
Haager, Karl (196279) Justice
Heuner, Hermann (197989) Justice
Khling, Jrgen (19892001) Justice
Bryde, Brun-Otto (200111) Justice
Baer, Susanne (2011 ) Justice
Seat 4
Scholtissek, Herbert (195167) Justice
Brox, Hans (196775) Justice
Katzenstein, Dietrich (197587) Justice
Sllner, Alfred (1987 95) Justice
Steiner, Udo (19952007) Justice
Kirchhof, Ferdinand (200710); (2010 ) Justice; Vice President
 714 Chronological Chart of the Justices

justice position

Seat 5 (seat abolished 1956)

Zweigert, Konrad (195156) Justice

first senate: elected by bundesrat

justice position

Seat 1
Stein, Erwin (195171) Justice
Faller, Hans (197183) Justice
Henschel, Johann Friedrich (1983 93); Justice; Vice President
(1994 95)
Hmig, Dieter (19952006) Justice
Eichberger, Michael (2006 ) Justice
Seat 2
Wessel, Franz (195158) Justice
Berger, Hugo (195967) Justice
Zeidler, Wolfgang () (196770) Justice
Simon, Helmut (197087) Justice
Dieterich, Thomas (1987 94) Justice
Jaeger, Renate (19942004) Justice
Gaier, Reinhard (2004 ) Justice
Seat 3
Scheffler, Erna (195163) Justice
Rupp-von Brnneck, Wiltraut (196377) Justice
Niemeyer, Gisela (197789) Justice
Seibert, Helga (1989 99) Justice
Hohmann-Dennhardt, Christine (19992011) Justice
Britz, Gabriele (2011 ) Justice
Seat 4
Rittersprach, Theodor (195175) Justice
Hesse, Konrad (197587) Justice
Grimm, Dieter (1987 99) Justice
Hoff mann-Riem, Wolfgang (19992008) Justice
Masing, Johannes (2008 ) Justice
Seat 5 (seat abolished 1956)
Ellinghaus, Wilhelm (195155) Justice
Kutscher, Hans (195556) Justice
Seat 6 (seat abolished 1963)
Drath, Martin (195163) Justice
 chronological chart of the justices 715
second senate: elected by bundestag

justice position

Seat 1
Rupp, Hans (195175) Justice
Zeidler, Wolfgang (197583); (198387) Vice President; President
Franen, Everhardt (1987 91) Justice
Sommer, Bertold (19912003) Justice
Gerhardt, Michael (2003 ) Justice
Seat 2
Hennecka, Anton (195168) Justice
Rinck, Hans-Justus (196886) Justice
Grahof, Karin (1986 98) Justice
Osterloh, Lerke (19982010) Justice
Hermanns, Monika (2010 ) Justice
Seat 3
Federer, Julius (195167) Justice
von Schlabrendorff, Fabian (196775) Justice
Niebler, Engelbert (197587) Justice
Kruis, Konrad (1987 98) Justice
Bro, Siegfried (19982010) Justice
Huber, Peter Michael (2010 ) Justice
Seat 4
Leibholz, Gerhard (195171) Justice
Hirsch, Martin (197181) Justice
Mahrenholz, Ernst Gottfried (198187) Justice; Vice President
(198794)
Limbach, Jutta (1994 94) (19942002) Vice President; President
Lbbe-Wolff, Gertrude (2002 ) Justice
Seat 5 (seat abolished 1956)
Roediger, Conrad Frederick (195156) Justice
 716 chronological chart of the justices
second senate: elected by bundesRAt

justice position

Seat 1
Katz, Rudolf (195161) Vice President
Wagner, Friedrich (196167) Vice President
Seuffert, Walter will helm (196775) Vice President
Steinberger, Helmut (197587) Justice
Kirchhof, Paul (1987 99) Justice
Di Fabio, Udo (19992011) Justice
Mller, Peter (2011 ) Justice
Seat 2
Geiger, Willi (195177) Justice
Trger, Ernst (197789) Justice
Winter, Klaus (19892001) Justice
Mellinghoff, Rudolf (200111) Justice
Kessal-Wulf, Sibylle (2011 ) Justice
Seat 3
Frhlich, Georg (195156) Justice
Kutscher, Hans (195670) Justice
Wand, Walter Rudi (197083) Justice
Klein, Hans Hugo (1983 95) Justice
Jentsch, Hans-Joachim (19962005) Justice
Landau, Herbert (2005 ) Justice
Seat 4
Leussner, Carl (195152) Justice
Schunck, Egon (195263) Justice
Geller, Gregor (196371) Justice
Rottmann, Joachim (197183) Justice
Bckenfrde, Ernst-Wolfgang (1983 95) Justice
Hassemer, Winfried (19962002) Justice
(by Bundestag 20028) Vice President
Vokuhle, Andreas (200810) Vice President
(by Bundestag 2010 ) President
Seat 5 (seat abolished 1956)
Wolff, Bernhard (195156) Justice
Seat 6 (seat abolished 1963)
Friesenhahn, Ernst (195463) Justice
 appendix b
Biographical Sketches
federal constitutional court presidents
and vice presidents (1951 2012)

presidents

hermann hpker-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 dis-
tinguished Prussian family in 1883, he spent most of his life in public ser vice, fi rst as a mem-
ber of the Prussian legislature and later as Prussias 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 mon-
etary 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 conven-
tion), 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 Demo-
cratic Party, he was elected to the fi rst Federal Parliament (Bundestag) (194953) 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 Hpker-Aschoff, he died in office after four years of ser vice (195458). He was
born in Bavaria in 1891. Devoutly Catholic, intensely intellectual, and a man of high culture
and refi nement, he was one of Germanys most respected jurists. He began his early career as
a judge and public prosecutor in Munich and then taught church law at the Bavarian Acad-
emy of Public Administration. For a brief time he joined the Bavarian Peoples 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 Munichs Higher Regional Court (Oberlandesge-
richt), becoming its president in 1953. During this time he was also a judge of Bavarias Consti-
tutional Court, which he helped to create and then to mold into one of West Germanys
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 mller , born in 1900, was elected president of the Federal Constitutional
Court in 1958 shortly after Wintrichs death. The son of a school teacher, he studied theology
before switching to law and economics at the Universities of Tbingen 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 Wrttemberg, where he remained as a judge, de-
spite 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 recon-
struction 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 Wrttemberg-Hohenzollern, a task that propelled him into
heading the Lands 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 be-
hind the reorga nization of three southwestern states into the single and politically strong
Christian Democratic Land of Baden-Wrttemberg, serving as its minister-president be-
tween 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 re-
turning 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 Berlins sen-
ate until his election to the Bundestag in 1957. By the mid-1960s he was chairman of the
Bundestags 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 minis-
ter of the interior within West Germanys Grand Coalition government. As president of the
Federal Constitutional Court and chief judge of the First Senate, he presided over many of
the Courts 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 ju-
diciary and from that point forward his life was largely interwoven with that of the Constitu-
tional 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-states chief administrative head in 1966. As a Social Democrat and protg of
Helmut Schmidt, he was elected one year later as a justice of the Constitutional Courts 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 Courts 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 Ba-
varia 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 con-
stitutional law and politics at the Free University of Berlin. In 1969 he accepted an appoint-
ment in Speyers 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-Wrttembergs minister of education and sports. Two years later
he became the Lands minister of the interior, all the while continuing his collaboration with
Theodor Maunzthe dean of German constitutional scholarsin coauthoring updated
editions of one of West Germanys 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/csus 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 Zeidlers term. He resigned
as the Courts 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 Courts 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 Berlins Justice Ministry from 1989 to 1994. Earlier she had specialized in fam-
ily and womens issues and served as an advisor to the Federal Ministry of Family Affairs. As
Berlins senator for justice during Germanys reunification, she played a central role in dis-
mantling East Berlins judicial system and vetting the qualifications of its judges and law-
yers. As the Courts 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 be-
tween law and politics. Having reached the retirement age of sixty-eight, she left the Courts
presidency in 2002 to take up the presidency of the Goethe Institute. In 2004 she was repeat-
edly hailed as a possible candidate to succeed Johannes Rau as president of the Federal
Republic.

hans-jrgen 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 Senates 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 RhineWestphalia (197787). 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 di-
rector of legal studies at the Public Administration Academy of Ostwestfalen-Lippe. From
1994 to 1998 he was also a member of the Federal Republics Commission on the Supplemen-
tary Pensions and Compensation Pensions Acts providing respectively for the suspension of
pensions for former members of East Germanys secret ser vice and compensation for the
victims of National Socialist injustice.

andreas vo 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 Munichs 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 Univer-
sity. In 1997, having fi nished his habilitation thesis at the University of Augsburg, he was ap-
pointed 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 Laws dean of aca-
demic 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 Constitu-
tional Court.

vice presidents

rudolf katz was the fi rst vice president and presiding judge of the Federal Constitu-
tional Courts Second Senate. Born on 30 September 1895 in Pomerania, he served as an of-
ficer 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 Hamburgs 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 ad-
visor 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 Volkszei-
tung (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 Hpker-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 uncompromisingagain like Hpker-Aschoffin his defense of the
Constitutional Court in West Germanys new political system and had no qualms about re-
sponding publicly to the Courts 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
Tbingen, 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 re-
leased 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-Pfalzs legislature in 1947. Along with Rudolf Katz, he was an spd
delegate to the Parliamentary Council, where he presided over one of its leading commit-
tees. Active in the legal profession, he served as the president of Rhineland-Pfalzs bar asso-
ciation for six years and later as president of the Lands Disciplinary Court for Attorneys. He
was a member of the Bundestag between 1949 and 1961 and presided over its Standing Com-
mittee on Patent and Commercial Law. He was also a member of the Bundestags Judicial
Selection Committee, the body charged with electing one-half of the members of the Fed-
eral 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 Ger-
many 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 chan-
cellory office. He was also a member of the Economic Council for the Allied zones of occupa-
tion. 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 Gttingen University under the aegis of
his renowned Doctorvater, Professor Gerhard Leibholz, who at the time was one of the Fed-
eral Constitutional Courts most distinguished sitting justices. He served as a special assis-
tant 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 Saxonys 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 sev-
eral landmark cases involving the rights of minority parties and the stationing of cruise mis-
siles 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 Con-
stitutional Courts 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 Hannovers 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 re-
cruited from the private practice of law.) In 1987 he received an appointment as an honorary
professor of law at the University of Gttingen. 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 Courts 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 Munichs Higher Regional Court while also serving as a member of Bavarias distin-
guished 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 senates 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 Sllner, from the senates famous
Classroom Crucifi x II Case. In 1998, after his departure from the Court, Bavaria and the Fed-
eral Republic conferred upon him its highest honors.

hans-jrgen papier (See entry under Presidents)

winfried hassemer , born in 1940 in Gau-Algesheim, was elected a justice of the Fed-
eral Constitutional Courts 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 pass-
ing 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 Hesses Public Data
Protection Office. Unsurprisingly, he was the Second Senates specialist on criminal law.
Several well-known data-protection cases, along with the famous AWACS II Temporary In-
junction 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 kuhle (See entry under Presidents)

ferdinand kirchhof was elected a justice of the Federal Constitutional Courts 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 Saarbrcken, Munich, Speyer, and Tbingen. In 1989 he was appointed dean
of Tbingen Universitys Faculty of Law. He was awarded the European Unions Jean-
Monnet Chair for European Fiscal Law in 1993 and between 1999 and 2001 was vice rector of
the University of Tbingen. In 2003 he was an elected member of the important Commis-
sion 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 Con-
stitutional Court, he was a judge of Baden-Wrttembergs 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: Bobbs-
Merrill, 1979), 73 90. See also Mauro Cappelletti, Judicial Review in Comparative Perspective
(Oxford: Clarendon Press, 1989), 13646.
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. Mller Juristischer Verlag,
1994), 3865. See also Nigel Foster & Satish Sule, German Legal System and Laws, 3d ed. (Ox-
ford: Oxford University Press, 2002), 6680.
4. See Bundesministerium der Justiz, Zahl der Richter, Staatsanwlte und Vertreter des
ffentlichen 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, Judi-
cial 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 (Befhigung 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 Unabhngigkeit,
Der ffentliche Dienst 58 (2005): 7883; Hans-Jrgen Papier, Die richterliche Unabhngig-
keit 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 Mller, Hit-
lers Justice, trans. Deborah Lucas Schneider (Cambridge: Harvard University Press, 1991).
See also Manfred Krohn, Die deutsche Justiz im Urteil der Nationalsozialisten 19201933
(Frankfurt am Main: Peter Lang GmbH, 1989), 22986.
8. See Rupert Emerson, State and Society in Modern Germany (New Haven: Yale Univer-
sity Press, 1928); Hans Fenske, Deutsche Verfassungsgeschichte-vom Norddeutschen Bund bis
heute (Berlin: Wissenschaft sverlag Volker Spiess, 1993), 944, 10418; Adolf Laufs, Ein Jah-
rhundert wird besichtigt-Rechtsentwicklung in Deutschland: 1900 bis 1999, Juristische
Schulung 40 (2000): 110.
9. The fi rst major scholarly study of constitutional and judicial review in Germany ap-
pears to be Gutachten der Juristenfakultten in Heidelberg, Jena, und Tbingen: 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 dis-
missed from his professorship at Gttingen University for defending Hanovers constitu-
tion. 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 Ger-
many. We learn among other things that the Court of the Imperial Chamber not only de-
prived the prince of Mecklenburg of his throne for constitutional violations but also on sev-
eral 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 Em-
pire 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 Ver-
lagsgesellschaft , 1987), 193 98; Die Grundrechte, eds. Karl August Bettermann, Hans Carl
Nipperdey & Ulrich Schermer (Berlin: Duncker and Humblot, 1967), 3:64558.
10. Modern German constitutionalism began with the establishment of the German Con-
federation of 1815, created by the Congress of Vienna nine years after Napoleons 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 citiesset the stage for a century
of constitution making in Germany at both state and national levels. It also marked the be-
ginning 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), 11126, 197214, 230
47, 34665.
11. Such confl icts are currently resolved by the Federal Constitutional Court under Arti-
cle 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 (Schlus-
sakte) 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 resolu-
tion; 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 constitu-
tions of 1849 (Article 126 [Frankfurt Constitution]), 1867 (Article 76 [North German Con-
federation]), 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, En-
gland: 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 Jus-
tice, 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 Hnisch, Der
Staatsgerichtshof als Gericht fr Anklagen gegen Reichsminister (Halle: Buchdruck Anhaltische
Rundschau, 1927), 3384.
13. Hideo Wada, Continental Systems of Judicial Review, Jahrbuch des ffentlichen
Rechts 31 (1982): 35. See Mauro Cappelletti & John C. Adams, Judicial Review of Legisla-
tion: European Antecedents and Adaptations, Harvard Law Review 79 (1966): 120724.
14. Franz W. Jerusalem, Die Staatsgerichtsbarkeit (Tbingen: J. C. B. Mohr [Paul Siebeck],
1930), 5051. See Mahendra P. Singh, German Administrative Law (Berlin: Springer Verlag,
1985), 812.
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 laws 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, Richterli-
ches Prfungsrecht: Eine verfassungsgeschichtliche Untersuchung (Berlin: Duncker and Hum-
blot, 1985); Harold von Konschegg, Ursprung und Wandlung des richterlichen Prfungsrechts
in Deutschland im 19. Jahrhundert (Borna-Leipzig: Grobetrieb fr Dissertationsdruck von
Robert Noske, 1936), 4265.
16. Robert von Mohl, Staatsrecht, Vlkerrecht und Politik (Tbingen: Buchhandlung
Laupp, 1860), 1:66 95.
17. The one recorded instance of judicial review during this period was greeted as a reck-
less act. In overturning a decision of the Hanseatic Court of Appeals (see Johann A. Seufferts
Archiv fr 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 jus-
tice. Otto von Gierke, German Constitutional Law in Its Relation to the American Consti-
tution, Harvard Law Review 23 (190910): 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 foreshad-
owed the legal realist movement in the United States. These scholars were skeptical of a juris-
prudence 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 soci-
ety 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 Al-
bert S. Fouilkes, On the German Free Law School (Freirechtsschule), Archiv fr Rechts-
und Sozialphilosophie 55 (1969): 367417; Frank Kantorowicz Carter, Gustav Radbruch
and Hermann Kantorowicz: Two Friends and a BookReflections 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 Freirechtein Versuch ber
Hermann Kantorwicz (Heidelberg: C. F. Mller Juristischer Verlag, 1984), 85151; Joachim
Schmidt, Das Prinzipielle in der FreirechtsbewegungStudien zum Frei-Recht, seiner Methode
und seiner Quelle (Bonn: H. Bouvier u. Co. Verlag, 1986), 79136; Klaus Adomeit, Gustav
Radbruch-zum 50. Todestag-geboren 21.11.1878 in Lbeck, gestorben 23.11.1949 in Heidel-
berg, Neue Juristische Wochenschrift 52 (1999): 346569; Laufs, supra note 8. For a discussion
ofthe 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): 399439. Kantorowiczs 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 An-
schtz, Weimars leading constitutional authority, maintained that courts had no power to
examine the constitutionality of laws. Under Article 70 of the Weimar Constitution, accord-
ing to Anschtz, only the president of the republic had the authority to review the constitu-
tionality of Reich legislation, and even he was limited to reviewing the constitutionality of
laws on procedural grounds. See Gerhard Anschtz, Die Verfassung des deutschen Reichs
(Berlin: Verlag von Georg Stilke, 1932), 367. Anschtz was joined in this view by other au-
thoritative commentators such as Walter Jellinek, Richard Thoma, Julius Hatschek, Fried-
reich 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, Edu-
ard Hubrich, Rudolf Stammer, and Heinrich Triepel. Jellinek, incidentally, reported that a
majority on the constitutional committee in the Weimar Constituent Assembly that consid-
ered 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 As-
sembly 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 signifi-
cance 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): 36183. 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 19141945 (Oxford: Oxford University
Press, 2004).
21. 5 Sammlung der Entscheidungen und Gutachten des Reichsfinanzhofs 23336 (1921); Deci-
sion 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 Erklrung des Richtervereins beim Reichsgericht zur Aufwertungsfrage, in
Huber, supra note 11, at 3:38384; Wolfgang Hoff mann-Riem, Two Hundred Years of Mar-
bury 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, 68788, and 696, available at www.
germanlawjournal .com/pdf/Vol05No06/PDF_Vol _05 _No_06_685-701 _EU_Hoff mann
-Riem.pdf.
23. 107 RGZ 37781, 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
Lnder (Berlin: Verlag von Franz Vahlen, 1926), 7879, 204. The willingness of judges to nul-
lify laws reflected the judiciarys distrust of, even opposition to, democracy. They often as-
serted 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 Impe-
rial Court of Justice from 1922 to 1929 and the regular judiciarys 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 19471949: 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 Con-
stitutional Court (Beverly Hills, Calif.: Sage Publications, 1976), 70; Bodo Pieroth,
Amerikanischer Verfassungsexport nach Deutschland, Neue Juristische Wochenschrift 42
(1989): 133337.
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), 1925. See also Edmund Spevack, Allied Control
and German Freedom (Mnster: Lit Verlag, 2001), 233: The establishment of the new Ger-
man Supreme Court [Bundesverfassungsgericht, or bvg] signified one of the most impor-
tant 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 Ger-
many. 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 Confer-
ence, see Heinz Laufer, Verfassungsgerichtsbarkeit und politischer Prozess (Tbingen: J. C. B.
Mohr [Paul Siebeck], 1968), 3538.
29. Bericht ber den Verfassungskonvent auf Herrenchiemsee vom 10. bis 23. August 1948 (Mu-
nich: Richard Plaum Verlag, n.d.), especially Articles 98 and 99.
30. For a description of constitutional review in Austria and Kelsens 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 McWhinneys Supreme Courts and Judicial Law Making: Constitu-
tional 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 Hter der Verfassung sein?, Die Justiz 6
(1930/1931): 576. The article, responding to Carl Schmitts strident and, at the time, in-
creasingly fashionable advocacy on behalf of a strong executive, urged that the judiciary
be charged withprotecting the constitution. See, e.g., Carl Schmitt, Der Hter der Verfassung
(Tbingen: 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 ap-
proach 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), 44146.
32. Bericht Herrenchiemsee, supra note 29, at Article 100.
33. A plan modeled on Weimars State High Court would have proposed a part-time tribu-
nal 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 Ger-
man Constituent Assembly). It convened in Bonn on 1 September 1948. Its sixty-five dele-
gates, elected by the state parliaments, consisted of twenty-seven Christian Democrats,
twenty-seven Social Democrats, five Free Democrats, and six additional delegates represent-
ing (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 treat-
ments in German see Michael F. Feldkamp, Der Parlamentarische Rat 19481949: Die Entste-
hung des Grundgesetzes (Gttingen: Vandenhoeck and Ruprecht, 1998), 4456; Volker Otto,
Das Staatsverstndnis des parlamentarischen RatesEin Beitrag zur Entstehungsgeschichte des
Grundgesetzes fr die Bundesrepublik Deutschland (Dsseldorf: Rheinisch-Bergische Druck-
erein-und Verlagsgesellschaft, 1971), 4156.
35. Parlamentarischer Rat, Verhandlungen des Hauptausschusses (Bonn, 1950) (mimeo-
graph; 194849), 275.
36. For a detailed discussion of this debate, see Kommers, supra note 26, at 7277. See also
Laufer, supra note 28, at 5259; and Hans Lietzmann, Das Bundesverfassungsgericht: Eine
soziowissenschaftliche Studie (Opladen: Leske and Budrich, 1988), 4649.
37. The confl ict is described in Kommers, supra note 26, at 7882; and Laufer, supra note
28, at 93139.
38. Gesetz ber das Bundesverfassungsgericht (Federal Constitutional Court Act
hereinafter cited as fcca) in the version of 11 August 1993, Bundesgesetzblatt (hereafter re-
ferred to as BGBl.) I:1473. Th is statute has been amended frequently since its original enact-
ment. 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 fccas genesis, see Will Geiger, Gesetz ber das Bundesverfassungsgericht (Berlin: Verlag
Franz Vahlen GmbH, 1951), iiixxv; and Laufer, supra note 28, at 97139. See also Wolfgang
Kralewski & Karl Heinz Neunreiter, Oppositionelles Verhalten im ersten deutschen Bundestag
19491953 (Cologne: Westdeutscher Verlag, 1963), 192204. These treatments of the politics
surrounding the establishment of the Federal Constitutional Court are based on the debates
and proceedings of the Bundestags Legal and Constitutional Affairs Committee. The proto-
cols are included in Ausschuss fr Rechtswesen und Verfassungsrecht, Die Verfassungsgericht
 Notes to Chapter One 731
des (23.) Ausschusses fr Rechtswesen und Verfassungsrecht ber das Gesetz ber das Bundesver-
fassungsgericht, 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): 33136. See also Walter Seuffert, Die Verfassungsbeschwerde in der Verfassungsgeri-
chtsbarkeit, in Das Bundesverfassungsgericht 19511971, ed. Das Bundesverfassungsgericht,
rev. ed. (Heidelberg: C. F. Mller Juristischer Verlag, 1971), 15969; Christoph Gusy, Die
Verfassungsbeschwerde, in Festschrift 50 Jahre Bundesverfassungsgericht, eds. Peter Badura &
Horst Dreier (Tbingen: J. C. B. Mohr [Paul Siebeck], 2001), 1:64171; Peter Hberle, Die
Verfassungsbeschwerde im System der bundesdeutschen Verfassungsgerichtsbarkeit, Jahr-
buch des ffentlichen Rechts der Gegenwart 45 (1997): 89135; Roland Fleury, Verfassungsproz-
essrecht, 6th ed. (Mnchen/Unterschleiheim: Luchterhand Verlag, 2004), 60106; Chris-
tian Hillgruber & Christoph Goos, Verfassungsprozessrecht, 2d ed. (Heidelberg: C. F. Mller
Juristischer Verlag, 2006), 31106; Michael Sachs, Verfassungsprozessrecht (Heidelberg: Ver-
lag fr Recht und Wirtschaft, 2004), 13456.
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. Rdiger
Zuck, Das Recht der Verfassungsbeschwerde (Munich: C. H. Becksche Verlagsbuchhandlung,
2006), 42.
47. Significantly, in recent years nearly 90 percent of successful complainants have been
represented by lawyers. Ibid.
48. FCCA, 8082.
49. See Franz-Wilhelm Dollinger, Elfter Abschnitt: Verfahren in den Fllen des 13 nr. 11
und 11a (Konkrete Normenkontrolle; - Registerzeichen: 1BvL . . . oder 2 BvL . . . ),in Bundes-
verfassungsgerichtsgesetz Mitarbeiterkommentar und Handbuch, eds. Dieter C. Umbach,
Thomas Clemens & Franz-Wilhelm Dollinger, 2d ed. (Heidelberg: C. F. Mller Juristischer
Verlag, 2005), 9951051. See also the Preliminary Judgment Case, in which the Court held in-
admissible 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 dis-
miss. 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): 32836; Fleury, supra note 41, at 4151; Hillgruber &
Goos, supra note 41, at 20732; Sachs, supra note 41, at 6480.
50. See Zuck, supra note 46, at 34748.
51. See Bundesverfassungsgericht, Aufgaben, Verfahren und OrganisationJahresstatistik
2011Durchschnittliche 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 Senates rejection of a temporary injunction application in an Organ-
streit challenge to Chancellor Schrders 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 constitu-
tional 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 Bundes-
verfassungsgericht und Grundgesetz, ed. Christian Starck (Tbingen: J. C. B. Mohr [Paul Sie-
beck], 1976), 1:22559; Jost Pietzcker, Organstreit, in Badura & Dreier, supra note 41, at
1:587614; Hillgruber & Goos, supra note 41, at 303 99; Sachs, supra note 41, at 6480.
55. With respect to the Bundestag, these entities would include the Committees on For-
eign Affairs and Defense (Article 45a), the Parliamentary Commissioner (Article 45b), the
Petitions Committee (Article 45c), and even individual deputies deprived of rights or enti-
tlements under Articles 46, 47, and 48.
56. See Abelein Case, 60 BVerfGE 374 (1982); Wppesahl Case, 80 BVerfGE 188 (1989).
57. See Party Finance V Case, 73 BVerfGE 40 (1986). For a general discussion of deci-
sions affecting the rights of parliamentary parties see Gerald Kretschmer, Fraktionen:
Parteien im Parlament, 2d ed. (Heidelberg: Decker/Mller, 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 Courts jurisdiction over constitutional controversies
involving the highest organs of the Federal Republic, see Dieter C. Umbach, Sechster Ab-
schnitt: Verfahren in den Fllen des 13 Nr. 5 (Organstreit: - Registerzeichen: 2BvE . . . ), in
Umbach, Clemens & Dollinger, supra note 49, at 80677. See also Julius Federer, Aufbau,
Zustndigkeit, und Verfahren des Bundesverfassungsgerichts, in Das Bundesverfassungsg-
ericht 19511971, supra note 41, at 6466.
61. Basic Law, Article 93.
62. FCCA, 31 (2).
63. Klaus Schlaich & Stefan Korioth, Das Bundesverfassungsgericht Stellung, Verfahren,
Entscheidungen, 7th ed. (Munich: C. H. Becksche Verlagsbuchhandlung, 2007), 7374. See
Wolfgang Roth, Die verfassungsgerichtliche berprfung verfassungskonformer Ausle-
gung im Wege der abstrakten Normenkontrolle, Neue Zeitschrift fr Verwaltungsrecht 17
(1998): 56367; Roland Fleury, supra note 41, at 2533; Hillgruber & Goos, supra note 41, at
181206; Sachs, supra note 41, at 4963.
64. FCCA, 69 and 67. See also Frank Schorkopf, Siebter Abschnitt: Verfahren in den
Fllen des 13 Nr. 7 (Bund-Lnder-Streit; - Registerzeichen: 2 BvG . . . ), in Umbach, Clem-
ens & Dollinger, supra note 49, at 883 97.
65. See Socialist Reich Party Case, 2 BVerfGE 1 (1952); Communist Party Case, 5 BVer-
fGE 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 Courts status, see Gerhard Leibholz, Der Status des
Bundesverfassungsgerichts, in Das Bundesverfassungsgericht l9511971, supra note 41, at 31
57. See also Kommers, supra note 26, at 8386; Udo Wengst, Staatsaufbau und Regier-
ungspraxis 19481953zur Geschichte der Verfassungsorgane der Bundesrepublik Deutschland
(Dsseldorf: Droste Verlag, 1984), 31625; Winfried Brohm, Die Funktion des BVerfG
Oligarchie in der Demokratie?, Neue Juristische Wochenschrift 54 (2001): 110; Hillgruber &
Goos, supra note 41, at 119.
68. Bericht des Berichterstatters an das Plenum des Bundesverfassungsgerichts zur
Status-Frage, [21 March 1952], Jahrbuch des ffentlichen Rechts 6 (1957): 12037. For other
views on the Courts status, see Denkschrift des Bundesverfassungsgerichts, [27 June 1952],
Jahrbuch des ffentlichen Rechts 6 (1957): 14448; and Richard Thoma, Rechtsgutachten
betreffend der Stellung des Bundesverfassungsgerichts, [15 March 1953], Jahrbuch des
ffentlichen Rechts 6 (1957): 161 94.
69. Denkschrift, supra note 68, at 148. For an assessment of Hpker-Aschoff s contribu-
tion to the early development of the Constitutional Court see Theo Ritterspach, Hermann
Hpker-Aschoff: Der erste Prsident des Bundesverfassungsgerichts 18831954, Jahrbuch
des ffentlichen Rechts 32 (1983): 5562.
70. See Leibholz, supra note 67, at 3157; Laufer, supra note 28, at 254334.
71. Deutsches Richtergesetz in the version of 8 September 1961, BGBl. I:1665. See also Wil-
helm K. Geck, Zum Status des Bundesverfassungsrichters: Besoldungs- und Versorgung-
srecht, in Festschrift fr Wolfgang Zeidler, eds. Walther Hirst, Roman Herzog & Dieter C.
Umbach (Berlin: Walter de Gruyter Verlag, 1987), 1:189218; Christian Starck, Das Bundes-
verfassungsgericht in der Verfassungsordnung und im politischen Prozess, in Badura &
Dreier, supra note 41, at 1:132.
72. Basic Law, Article 115h.
73. The Constitutional Courts orga nization, procedures, and jurisdiction are regulated
by the fcca. The Courts internal administration (i.e., budget, administrative duties of jus-
tices, 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 Courts Rules of Procedure. See Geschft 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 Courts orga-
nization and internal administration are treated at considerable length in Kommers, supra
note 26, at 69108. See Horst Scker, Das Bundesverfassungsgericht Status, Funktion, Recht-
sprechungsbeispiele (Munich: C. H. Becksche Verlagsbuchhandlung, 1975), 2324; Georg
Hermes, Senat und Kammern, in Badura & Dreier, supra note 41, at 1:72549.
74. Jurisdiction over cases involving the constitutionality of political parties was origi-
nally vested in the First Senate. With the backing of the Adenauer-led government this juris-
diction was transferred to the Second Senate in 1957. The transfer grew out of the govern-
ments impatience and dissatisfaction with the First Senates 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 1:32373.
76. See Amending Act of 21 July 1956, BGBl. I:662. Decisions of the plenum redistribut-
ing the Courts 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 12844. See also Uwe Wesel, Die Hter der Verfassung
Das Bundesverfassungsgericht, seine Geschichte, seinen Leistungen, seine Krisen (Frankfurt am
Main: Eichborn Verlag, 1996), 1622.
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 pro-
cedures 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 1:37495; and
Hans H. Zacker, Die Selektion der Verfassungsbeschwerdendie Siebft unktion der Vor-
prfung, des Erfordernisses der Rechtswegerschpfung und des Kriteriums der unmittel-
baren und gegenwrtigen Betroffenheit des Beschwerdefhrers, in Starck, supra note 54, at
1:396431. See also Christoph Grisch, Grundrechtsrge und Prfungsumfang bei der Ver-
fassungsbeschwerde, Neue Zeitschrift fr Verwaltungsrecht 26 (2007): 100712; Hillgruber &
Goos, supra note 41, at 71 98; Sachs, supra note 41, at 13847; Fleury, supra note 41, at 60 90;
Rdiger Zuck, Das Recht der Verfassungsbeschwerde, 3rd ed. (Munich: C.H. Becksche Ver-
lagsbuchhandlung, 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, Europische 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 Bundesverfassungs-
gericht,Aufgaben,VerfahrenundOrganisationJahresstatistik2011Missbrauchsgebhren,
available at www.bundesverfassungsgericht .de/organisation/gb2011/A-VIII-1 .html. The
Courts general reluctance to impose fi nes is doubtless a reflection of the democratic impor-
tance it places on its accessibility, but it also can be explained in more pragmatic terms: al-
ready overworked justices and clerks often simply opt to dismiss even genuinely question-
able 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 Grahof, 93a BVerfGG, in BundesverfassungsgerichtsgesetzKommentar, Band 2,
eds. Theodor Maunz, Bruno Schmidt-Bleibtreu & Klaus Winter (Munich: C. H: Beck Ver-
lag, 2007), 2: 23; Rdiger Zuck, Vor 93a BVerfGG, in Bundesverfassungsgerichtsgesetz
Kommentar, eds. Hans Lechner & Rdiger Zuck, 5th ed. (Munich: C. H. Becksche Verlags-
buchhandlung, 2006), 54649.
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 14748.
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 Kon-
rad Zweigert, a former justice of the Federal Constitutional Court. Konrad Zweigert, Emp-
fiehlt es sich, die Bekanntgabe der abweichenden Meinungen des berstimmten Richters [dissent-
ing opinion] in den deutschen Verfahrensordnungen zuzulassen? Gutachten fr den 47. Deutschen
Juristentag, pt. D, vol. I (Munich: C. H. Becksche 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 Verfas-
sungsrichter: Rechtsfindung am U.S. Supreme Court und am Bundesverfassungsgericht, eds. Ber-
nhard Grofeld & Herbert Roth (Mnster: Lit Verlag, 1995), 14150.
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 Verfas-
sungsrichter, in Grofeld & Roth, supra note 108, at 7188; Bettina Heveldop, Verfassungs-
rechtliche Anforderungen an das Besetzungsverfahren fr die Kammern des BVerfG,
Neue Juristische Wochenschrift 43 (1990): 2829; Sybille Koch, Die Wahl der Richter des
Bundesverfassungsgerichts, Zeitschrift fr Rechtspolitik 29 (1996): 4144.
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 par-
ties may submit lists of candidates for committee membership. Several parliamentary par-
ties 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 Judi-
cial Selection Committees 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, Vorwrts, noted on the occasion of the election of six new justices in No-
vember 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. Vorwrts, November 21, 1987, at 14. Never-
theless, the secrecy of the Judicial Selection Committees deliberations is occasionally the
 736 Notes to Chapter One
subject of severe criticism in the German press. See Der Spiegel 34 (1987): 3032; 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 appoint-
ment. Minister-President Hans Filbinger of Baden-Wrttemberg 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 Fallera former legal
assistant at the Constitutional Courtwas the Courts intervention on his behalf. A ma-
jority 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 le-
gitimacy of the Courts 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. Becksche Verlagsbuchhand-
lung, 1984), 3752. Regarding the Henschel Judicial Selection Case, see Rolf Lamprecht, Bis
zur VerachtungVerfassungsrichterwahlen am Rande der Legalitt, Neue Juristische Wochen-
schrift 48 (1995): 253133; and Friedrich Karl Fromme, Verfassungsrichterwahlen, Neue Ju-
ristische Wochenschrift 53 (2000): 297778.
119. The controversial failure of the spds nominations of Herta Dubler-Gmelin (1993)
and Professor Horst Drier (2008) for the Courts vice presidency was a dramatic departure
from the spirit of compromise. Blocked for nine months by conservatives in the Bundestag,
Dubler-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 nomi-
nee. By the same token, any interest group lobbying on behalf of a par tic u lar judicial nomi-
nee, accompanied by threats of retaliation against legislators who voted the wrong way, tra-
ditionally 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 nominees life and personality traditionally would have been regarded as an egre-
gious 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 con-
stitutional protection of human dignity. Those on the left, including the leadership of the
German chapter of Amnesty International, focused on Driers scholarly commentary sug-
gesting that balancing interests in dignity could conceivably justify torture in unique cases.
Driers 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 Germanys 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 Driers treatment as Rufmord (reputational murder). Faced with
the cdu/csus threatened veto in the Bundesrat, the spd withdrew Driers 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 2728; 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 Grofeld & Roth, supra note 108, at 12340.
123. FCCA, 1735.
124. FCCA, 18.
125. FCCA, 19.
126. Two cases produced moments of high tension on the Court: Justice Gerhard Leib-
holz 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-benchand admittedly indiscreetpublic comments on the merits of pending liti-
gation. For commentary on the Courts decisions recusing these justices, see Wolfgang Roth,
Richterliche Befangenheit, Die ffentliche Verwaltung 51 (1998): 91620; Karl-Hermann
Schtz, Die Ablehnung von Bundesverfassungsrichtern wegen Besorgnis der Befangenheit (Hei-
delberg: Univ. Diss., 1974), 5881; Claudia Gerdes, Die Ablehnung wegen Besorgnis der Befan-
genheit aufgrund von Meinungsuerungen des Richters (Frankfurt am Main: Peter Lang
Verlag, 1992), 10938; Joachim Riedel, Das Postulat der Unparteilichkeit des Richters
Gefangenheit und Parteilichkeitim deutschen Verfassungs- und Verfahrensrecht (Berlin:
Duncker and Humblot, 1980), 12034; Conrad Friedrich Rumpf, Richterliches Sozialman-
agement und BefangenheitZugleich eine Stellungnahme fr die Befangenheitsablehnung von
Amts wegen (Frankfurt am Main: Peter Lang Verlag, 1998), 5484. 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 Germanys 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 Germanys 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 pro-
ceedings, 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 Courts
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 dead-
lock. 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 Jour-
nal 2/3 (2001), available at www.germanlawjournal.com/article.php?id=49; Rdiger Zuck,
Mainstream-Denken contra MedienffentlichkeitZur Politik des n-tv-Entscheidung des
BVerfG, Neue Juristische Wochenschrift 54 (2001): 162324. The monumental importance of
the Court and its proceedings, and the desire to foster respect for the institution and its rul-
ings, are offered as justifications for these limits on media coverage. Schlaich & Korioth,
supra note 63, at 39.
134. Kommers, supra note 26, at 17981.
135. See, for example, Incest Case, 120 BVerfGE 224 (2008). Justice Hassemer, as rappor-
teur, wrote a dissenting opinion and Justice Gerhardt wrote the majority opinion.
136. Kommers, supra note 26, at 181 91.
137. Bundesverfassungsgericht, Aufgaben, Verfahren und OrganisationStatistik fr
das Geschftsjahr 2011 Gesamtbersichten seit 1951Entscheidungen mit oder ohne
Sondervotum in der amtlichen Sammlung (BVerfGE)Bnde 30127 (19712011), avail-
able at www.bundesverfassungsgericht.de/organisation/gb2011/A-I-7.html.
138. Schlaich & Korioth, supra note 63, at 3031 (authors translation).
139. Herzog Presidential Candidacy Case, 89 BVerfGE 359 (1994).
140. GOBVerfG, 59.
141. GOBVerfG, 60.
142. Bundesverfassungsgericht, Aufgaben, Verfahren und OrganisationStatistik fr
das Geschftsjahr 2011 Geschft 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, Kammerbeschlsse-Nichtannahmegewehren, in Hirst, Herzog &
Umbach, supra note 71, at 2:136465.
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), 11418.
148. See Milton C. Regan Jr., Community and Justice in Constitutional Theory, Wiscon-
sin Law Review (1985): 1074.
149. See, for example, Peter Hberle, Verfassungsgerichtsbarkeit zwischen Politik und
Rechtswissenschaft (Knigstein: Athenum Verlag, 1980); Christian Starck, Das Bundesver-
fassungsgericht im politischen Prozess der Bundesrepublik (Tbingen: 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 Brnneck, Verfassungsgerichts-
barkeit und gesetzgebende Gewalt: Wechselseitiges Verhltnis zwischen Verfassungsgericht
und Parlament, Archiv des ffentlichen Rechts 102 (1977): 126; Klaus Stern, Verfassungsgeri-
chtsbarkeit zwischen Recht und Politik (Opladen: Westdeutscher Verlag, 1980); Christine
Landfried, Bundesverfassungsgericht und Gesetzgeber (Baden-Baden: Nomos Verlagsgesell-
schaft, 1984); Hartmut Schiedermair, Das Bundesverfassungsgericht auf der Grenze zwischen
dem Recht und der Politik, in Der Staat des GrundgesetzesKontinuitt und Wandel
Festschrift fr Peter Badura zum siebzigsten Geburtstag, eds. Michael Brenner, Peter M. Huber
& Markus Mstl (Tbingen: J. C. B. Mohr [Paul Siebeck], 2004), 47789.
 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, 34548 (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 50315. 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 Courts work during his
tenure (195175) on the Second Senate. Another excellent article in English on the theme of
judicial self-restraint was written by Wiltraut Rupp-von Brnneck, a justice of the First Sen-
ate and the wife of Justice Rupp. See Wiltraut Rupp-von Brnneck, Admonitory Functions
of the Constitutional Court, American Journal of Comparative Law 22 (1972): 387403. 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 ur-
gently needed to avert serious detriment, to ward off imminent force, or for any other impor-
tant reasons concerning the commonweal. FCCA, 32 (1).
153. There are many Constitutional Court cases establishing this principle; many are enu-
merated in G. Leibholz & H. J. Rinck, Grundgesetz fr die Bundesrepublik Deutschland: Kom-
mentar an hand der Rechtsprechung des Bundesverfassungsgerichts, 6th ed. (Cologne: Verlag
Dr. Otto Schmidt kg, 1970), 7, and looseleaf supplement 36, Nov. 1999, pp. 8/214. See also
Dollinger, supra note 49, at 1017; Jrn Ldemann, Die verfassungskonforme Auslegung von
Gesetzen, Juristische Schulung 44 (2004): 2730.
154. 49 BVerfGE 89 (1978).
155. 50 BVerfGE 290 (1979).
156. A good discussion in English of these rules is Jrn Ipsen, Constitutional Review of
Laws, in Main Principles of the German Basic Law, ed. Christian Starck (Baden-Baden:
Nomos Verlagsgesellschaft, 1983), 11417.
157. Judicial Reference Case, 80 BVerfGE 54, 5859 (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 fr Ernst Benda, ed. Eckart Klein (Heidelberg: C. F.
Mller 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, 13136 [1960]).
159. Ipsen, supra note 156, at 155.
160. See German Spelling Reform Case, 98 BVerfGE 218, 24142 (1998). See also Hartmut
Bauer & Christoph Mllers, Die Rechtsschreibreform vor dem Bundesverfassungsgericht,
Juristenzeitung 54 (1999): 697702; Volkmar Wagner, Einzelfallentscheidung oder Paradig-
menwechsel? Zum Verhltnis zwischen objektiver und subjektiver Funktion der Verfas-
sungsbeschwerde nach dem Urteil des BVerfG zur Rechtschreibreform vom 14.7.1998,
Neue Juristische Wochenschrift 51 (1998): 263840; Matthias Cornils, Zur Rcknahme der
Verfassungsbeschwerdeverfassungsprozessuale Anmerkungen zum Rechtsschreibreform-
Urteil, Neue Juristische Wochenschrift 51 (1998): 362426; Hinnerk Wissmann, Wo kein
Klger, da kein Richterverfassungsprozessuale Anmerkung zum Urteil des BVerfG vom
14.7.1998, Die ffentliche Verwaltung 52 (1999): 15256; and Bernhard W. Wegener, Rechtsch-
reibreform 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 inter-
esting 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), 6475. 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. Grahof, Zehnter Abschnitt: Verfahren in den Fllen des 13 Nr. 6 und 6a
(Abstrakte Normenkontrolle; - Registerzeichen: 1BvF . . . oder 2 BvF . . . ), in Umbach, Cle-
mens & Dollinger, supra note 49, at 959.
164. For good treatments in English of these admonitory decisions, see Rupp-von Brn-
neck, 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): 50820.
165. An illustration is the Rendsburg Illegitimacy Case (25 BVerfGE 167, 18188 [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 Brnneck, supra note
151, at 388. The pending crisis was avoided, however, when the legislature proceeded forth-
with to carry out the Courts 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), 14161; Ewald Wiederlin, Die Gesetzeskraft der Entscheidungen des Bundesverfas-
sungsgerichts, in Brenner, Huber & Mstl, supra note 149, at 60538.
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 OrganisationStatistik fr
das Geschftsjahr 2011Eingnge nach Verfahrensarten, Bundesverfassungsgericht, Auf-
gaben, Verfahren und OrganisationStatistik fr das Geschftsjahr 2011Erledigungen
nach VerfahrensartenPlenar-/Senats-/Kammerentscheidungen, and Aufgaben, Ver-
fahren und OrganisationStatistik fr das Geschftsjahr 2011Erledigungen auf sonstige
Weise, z.B. mitentschiedene Verfahren, Antragsrcknahmen, etc., all available at www.
bundesverfassungsgericht.de.
172. Rudolf Smend, Festvortrag zur Feier des zehnjhrigen Bestehens des Bundesverfas-
sungsgerichts am 26. Januar 1962, in Das Bundesverfassungsgericht, ed. Das Bundesverfas-
sungsgericht (Heidelberg: C. F. Mller 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 Courts coordinate status along-
side the Bundestag, Bundesrat, federal president, and federal government. Conventional wis-
dom 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 parliamen-
tary democracy and the Bundesrat of federalism, the Federal Constitutional Court represents
the constitutional state principle (Rechtsstaat). The Courts 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 Courts twenty-fi ft h anniversary. See 25 Jahre Bundesverfassungsgericht 1951
76, ed. Das Bundesverfassungsgericht (Heidelberg: C. F. Mller Juristischer Verlag, 1976), 12.
For a lengthy treatment of this more restrictive view of the Constitutional Courts role, see
Peter Hberle, Die Verfassung des Pluralismus (Knigstein: Athenum Verlag GmbH, 1980).
174. Much of this literature is cited in Peter Hberle, Verfassungsgerichtsbarkeit als poli-
tische Kraft, in Hberle, supra note 149, at 5979. See also Richard Hssler, Der Konflikt
zwischen Bundesverfassungsgericht und Politischer Fhrung (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 Ger-
man Federal Constitutional Court on Politics and Policy Output, Government and Opposi-
tion 20 (1985): 52241; Friedhelm Hase & Matthias Ruete, Constitutional Court and Con-
stitutional Ideology in West Germany, International Journal of the Sociology of Law 10 (1982):
26776; and Barend van Niekerk, Social Engineering in the German Constitutional Court,
South African Law Journal 92 (1975): 298313.
176. For several case studies of this process at work, see Landfried, supra note 149, at 47
146; Rupp-von Brnneck, supra note 149, at 9.
177. See, for example, Uwe Wesel, Nach Karlsruhe gehen, Kursbuch 77 (1984): 12344;
Hase & Ruete, supra note 175; Ulrich Preuss, Political Concepts of Order for Mass Society,
in Observations on the Spiritual Situation of the Age, ed. Jrgen Habermas (Cambridge: mit
Press, 1984), 89121.
178. Landfried, supra note 149, at 152.
179. See, particularly, Rudolf Dolzer, Die staatstheoretische und staatsrechtliche Stellung des
Bundesverfassungsgerichts (Berlin: Duncker and Humblot, 1972), 11418. Christine Landfried
reported that, in her interviews with all of the Courts members, twelve of the justices fa-
vored retention of abstract judicial review. See Landfried, supra note 149, at 177.
180. See Hberle, Recht aus Rezensionen, in Hberle, supra note 149, at 153, in which
the author classifies and assesses the importance of this literature.
181. See ibid., at 2427. For an excellent example of a new generation of more critical and
strongly independent scholarship regarding the Court, see Matthias Jestaedt et al., Das entgren-
zte GerichtEine kritische Bilanz nach sechzig Jahren Bundesverfassungsgericht (Berlin:
Suhrkamp Verlag, 2011).
182. Gerhard Casper, The Karlsruhe RepublicKeynote Address at the State Cere-
mony Celebrating the 50th Anniversary of the Federal Constitutional Court, German Law
Journal 2/18 (Dec. 1, 2001): 34, available at www.germanlawjournal.com/article.php
?id=111.
 742 Notes to Chapter Two
chapter two
1. Basic Law, Article 146.
2. The gdrs voluntary accession to the Federal Republic under the Basic Lawa deci-
sion affi rmed in East Germanys fi rst free elections on 18 March 1990was also regarded as
evidence of the documents 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): 99117.
See also Gerd Rllecke, Schwierigkeiten mit der Rechtssicherheit nach der deutschen
Wiedervereinigung, Neue Juristische Wochenschrift 11 (1991): 657 62; and Johannes Was-
smuch, 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
Lnder, see Artur Wandtke, Auswirkungen des Einigungsvertrags auf die neuen Bundesln-
der, 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), 11523; and Eckart Klein, An der Schwelle zur Wiedervereinigung Deutschlands-
Anmerkungen zu Deutschlands Rechtslage im Jahre 1990, Neue Juristische Wochenschrift 43
(1990): 106573. 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 Constitu-
tional 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. Becksche Verlagsbuchhandlung, 1983), 18184; see also Christian Starck, Menschen-
wrde als Verfassungsgarantie im modernen Staat, Juristenzeitung 36 (1981): 45764. For a
critical assessment of the concept of human dignity, see Hans S. Stoecker, Menschenwrde
und kritische Jurisprudenz, Juristenzeitung 23 (1968): 685 91.
7. See Johannes Mattern, Principles of the Constitutional Jurisprudence of the German Na-
tional 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 Hof-
mann, Die Grundrechte 178919491989, Neue Juristische Wochenschrift 50 (1989): 317787.
9. Die Grundrechte im Entstehungszusammenhang der brgerlichen Gesellschaft, in Di-
eter Grimm, Die Zukunft der Verfassung (Frankfurt am Main: Suhrkamp Verlag, 1991), 8690.
For an overview of the most important theories of the state, see Hans Peter Bull, Staatszwecke
im Verfassungsstaat, Neue zeitschrift fr Verwaltungsrecht 9 (1989): 8016; and Edin Sarcevic,
Der RechtsstaatModernitt und Universalittsanspruch der klassischen Rechtsstaatstheorien:
Eine Bilanz der Rechtsstaatstheorien zwischen aufgeklrten Liberalismus und Nationalsozialismus
(Leipzig: Leipziger Universittsverlag, 1996), 1340. For specific references to Kant, see
Sarcevic, 10619.
10. Leonard Krieger, The German Idea of Freedom (Boston: Beacon Press, 1957), 121.
11. Georg W. Friedrich Hegel, Hegels 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 (Prince-
ton: 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 Sover-
eignty in Modern Germany (New Haven: Yale University Press, 1928), 159208. Many contem-
porary 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 Ernst-
Wolfgang Bckenfrde, Methoden der Verfassungsinterpretation, Juristische Wochenschrift
29 (1976): 2089 99.
17. William F. Harris II, Bonding Word and Polity: The Logic of American Constitution-
alism, American Political Science Review 76 (1982): 34.
18. Some American constitutional scholars have also seen the U.S. Constitution as em-
bodying a preferred way of life. See Sotirios A. Barber, On What the Constitution Means (Bal-
timore: 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), 1535.
20. Gerhard Leibholz, Constitutional Law and Constitutional Reality, in Festschrift fr
Karl Lwenstein (Tbingen: J. C. B. Mohr [Paul Siebeck], 1971), 308. See also Manfred Wie-
gant, Gerhard Leibholz (19101982): Eine deutscher Staatsrechtler des 20. Jahrhunderts,
Juristische Schulung 12 (2001): 115660.
21. Karl Heinrich Friauf, Techniques for the Interpretation of Constitutions in German
Law, in Proceedings of the Fifth International Symposium on Comparative Law (Ottawa: Uni-
versity of Ottawa Press, 1968), 9.
22. For a commentary on Article 28, see Ingo von Mnch & Philip Kunig, Grundgesetz-
Kommentar, 6th ed. (Munich: C. H. Becksche 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 Krger, Die Entstehung des Grundgesetzes, Neue Juristische Wochenschrift
21 (1989): 131824.
23. For a particularly clear historical overview of the development of the idea of the
Rechtsstaat, see Ernst-Wolfgang Bckenfrde, State, Society and Liberty (New York: Berg
Publishers, 1991), 4770. The brief recapitulation of the history of the idea of the Rechtsstaat
that follows draws heavily on Bckenfrdes analysis.
24. For a discussion of the use and meaning of these terms and the difficulty of interpreta-
tion they present, see Erhard Denninger, Judicial Review Revisited: The German Expe-
rience, Tulane Law Review 59 (1985): 101517.
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 protec-
tion 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 constitu-
tional 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), 5354.
26. Bckenfrde, supra note 23, at 67.
27. See Maunz & Zippelius, supra note 6, at 96 97.
28. See Ernst Forsthoff, Rechtsstaatlichkeit und Sozialstaatlichkeit (Darmstadt: Wissen-
schaft liche Buchgesellschaft, 1968).
29. See Ernst Benda, Der soziale Rechtsstaat, in Handbuch des Verfassungsrechts (Berlin:
Walter de Gruyter, 1984), 477544.
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), 2756; 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), 50912; Peter
Caldwell, Ernst Forsthoff and the Legacy of Radical Conservative State Theory in the Fed-
eral Republic of Germany, History of Political Thought 15 (1994): 63139. See also Hans Mi-
chael Heinig, The Political and the Basic Laws Sozialstaat PrinciplePerspectives from
Constitutional Law and Theory, German Law Journal 12 (2011): 1887, available at www.ger-
manlawjournal.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 re-
ported case in which this provision was raised as a defense. The Federal Court of Justice
(Bundesgerichtshof) rejected this defense raised by demonstrators prosecuted for obstruct-
ing the delivery of several right-wing newspapers. See 59 BGHZ 30 (1972).
33. See Konrad Hesse, Die verfassungsrechtliche Stellung der Parteien im modernen
Staat, Verffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 17 (1959): 1147;
Hans Justus Rinck, Der verfassungsrechtliche Status der politischen Parteien in der Bundes-
republik, in Die Moderne Demokratie und ihr Recht (2 vols.) (Tbingen: J. C. B. Mohr [Paul
Siebeck], 1966), 1:30530; and Gerhard Leibholz, Strukturprobleme der modernen Demokratie
(Heidelberg: C. F. Mller Juistischer Verlag, 1958).
34. See Gerhard Leibholz, Parteienstaat und reprsentative Demokratie: Eine Betrach-
tung z. Art. 21 und 38 des Bonner Grundgesetzes, Deutsches Verwaltungsblatt 66 (1951): 18.
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 Judi-
cial 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),
35889.
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), 5372.
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. Sauve-
Planne, 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 (Tbingen: J. C. B. Mohr [Paul Siebeck], 1919);
Gerhard Anschtz, Die Verfassung des deutschen Reichs (Berlin: Verlag Georg Stilke, 1932);
Franz W. Jerusalem, Die Staatsgerichtsbarkeit (Tbingen: J. C. B. Mohr [Paul Siebeck],
1930); George Friedrich Puchta, Kursus der Institutionen, ed. Paul K, 9th ed. (Leipzig: Briet-
kopf 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 86138, 18287. See also Wolfgang G. Fried-
mann, Legal Theory (New York: Columbia University Press, 1967), 15770.
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), 185205.
47. See Friedmann, supra note 44, at 33236. Interessenjurisprudenz, or jurisprudence of
interests, set forth and encouraged an interest-balancing approach to judicial decision mak-
ing. See also Phillipp Heck, Interessenjurisprudenz und Gesetzestreue, in Interessenjuris-
prudenz, eds. Gnter Ellscheid & Winfried Hassemer (Darmstadt: Wissenschaft liche Buch-
gesellschaft , 1974), 3235; and Begriffsjurisprudenz und Interessenjurisprudenz, Ellscheid
& Hassemer, 88108.
48. See Holmes, supra note 38, at 22966.
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 Hein-
rich Rommen, Natural Law in Decisions of the Federal Supreme Court and of the Constitu-
tional Courts in Germany, Natural Law Forum 4 (1959): 125. See also Ernst von Hippel,
The Role of Natural Law in the Legal Decisions of the German Federal Republic, Natural
Law Forum 4 (1959): 10618; and Gottfried Dietze, Natural Law in Modern Eu ropean Con-
stitutions, 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), 26976. 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 Sd-
weststaatsfrage, Archiv des ffentlichen Rechts 77 (1951/52): 45364.
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), 18889. 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. (Tbingen: J. C. B. Mohr [Paul Siebeck], 1982), 25053. For a criti-
cal assessment of the theory as applied by the Federal Constitutional Court, see Friedrich
Mller, Juristische Methodik, 3d ed. (Berlin: Duncker and Humblot, 1989), 21719.
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 Courts 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 Courts 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. Lth Case, 7 BVerfGE 198, 205 (1958). See also Annette Guckelberger, Die Drittwirkung
der Grundrechte, Juristische Schulung 12 (2003): 115157; and Christoph Mllers, Wandel
der Grundrechtsjudikatur: Eine Analyse der Rechtsprechung des Ersten Senats des BVerfG,
Neue Juristische Wochenschrift 28 (2005): 197379.
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 relation-
ships. Peter Quint, Free Speech and Private Law in German Constitutional Theory, Mary-
land 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 Skularization und
Utopie: Ernst Forsthoff zum 65. Geburtstag, eds. Karl Doehring & Wilhelm G. Greve (Stutt-
gart: Verlag W. Kohlhammer, 1967)and a substitute for hard reasoning and the difficult
task of legal justification. See also Erhard Denninger, Freiheitsordnung-Wertordnung-
Pfl ichtordnung, Juristenzeitung 30 (1975): 54547. It is said that the mere designation of one
basic right as ranking higher than another often foreordains without argument a given re-
sult. 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 Rss-
mann, Juristische Begrndungslehre (Munich: C. H. Becksche 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 93110.
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 Radbruchs 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 bergesetzliches Recht,
Sddeutsche Juristenzeitung 1 (1946): 107; and Gustav Radbruch, Der Mensch in Recht (Gt-
tingen: 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 7579.
65. The notion of an unconstitutional constitutional amendment fi rst surfaced in an obi-
ter 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 expres-
sion 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 (Knigstein:
Athenum Verlag, 1979), 148.
66. 3 BVerfGE 225, 234, (1953).
67. See Klass Case, 30 BVerfGE 225 (1970) (holding that a restriction of privacy in the in-
terest of national security does not infringe human dignity); Land Reform I Case, 84 BVer-
fGE 90 (1991) (holding that property expropriated between 1945 and 1949, prior to the adop-
tion 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 be-
fore 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, 34344 (2009).
69. Ibid., at 343, 347, 349, 36263.
70. 27 BVerfGE 360, 362 (1972).
71. 33 BVerfGE 303, 333 (1972). See also Peter Hberle, Das Bundesverfassungsgericht im
Leistungsstaat: Die Numerus-Clausus-Entscheidung vom 18.7.1972, Die fftentliche Verwal-
tung 21 (1972): 72940.
72. W. Cole Durham, General Assessment of the Basic Law: An American View, in Ger-
many and Its Basic Law, eds. Paul Kirchhof & Donald P. Kommers (Baden-Baden: Nomos
Verlagsgesellschaft, 1993), 45.
73. Lth 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 carry-
ing. 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 Lth, the Constitu-
tional Court demurred, holding that the judge below had misunderstood the scope and im-
pact 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 pro-
tected by the institution of marriage. Here a fi nancially well-off man had exploited a fi nan-
cially 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 mari-
tal 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 doc-
trine, see Alexy, supra note 59, at 35565.
76. See Ernst-Wolfgang Bckenfrde, Grundrechtstheorie und Grundrechtsinterpreta-
tion, Neue Juristische Wochenschrift 27 (1974): 1530.
77. Examples of prominent constitutional cases that rest, at least in part, on these respec-
tive 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 fr die Bundesrepublik Deutschland, 5th ed. (Darm-
stadt: Verlag Luchterhand, 1980), 10918. See also Gerd Roellecke, Prinzipien der Verfas-
sungsinterpretation in der Rechtsprechung des Bundesverfassungsgerichts, in Bundesver-
fassungsgericht und Grundgesetz (2 vols.), ed. Christian Starck (Tbingen: J. C. B. Mohr [Paul
Siebeck], 1976), 2:2249; and Bckenfrde, supra note 16, at 2089 99.
79. See, for example, Probleme der Verfassungsinterpretation: Dokumentation einer Kontro-
verse, eds. Ralph Drier & Friedreich Schwegmann (Baden-Baden: Nomos Verlagsgesell-
schaft, 1976).
80. Friauf, supra note 21, at 922. See the Constitutional Courts discussion of these tech-
niques in Reich Tax Levy Case (11 BVerfGE 126, 12932 [1960]). For an excellent comparison
of these approaches with American methods of judicial interpretation, see Winfried Brug-
ger, Legal Interpretation, School of Jurisprudence, and Anthropology: Some Remarks from
a German Point of View, American Journal of Comparative Law 42 (1994): 396402. See also
Kaufmann & Hassemer, supra note 36, at 46566.
81. Konrad Hesse, Grundzge des Verfassungsrechts fr die Bundesrepublik Deutschland,
16th ed. (Heidelberg: C. F. Mller Juistischer Verlag, 1988), 23.
82. Donald Kommers colleague, Sotirios Barber, fi nds this interesting in light of the ar-
gument of the New Right that original intent is the only way to restrain the exercise of judi-
cial 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 his-
torical arguments are frequently advanced in German constitutional opinions, and some de-
cisions 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, 3045 (1955); and Medi-
cal Practice Case, 33 BVerfGE 125, 15355 (1972). In the United States, by contrast, historical ar-
guments based on the will of the founders of the constitutionif this can be discoveredare of
decisive importance. For Germans the objective meaning of the text itself takes clear priority
over the subjective will of the framers. See Koch & Rssmann, supra note 59, at 2125.
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 resort-
ing to analytic philosophy. See Koch & Rssmann, supra note 59; and Alexy, supra note 59, at
5759.
 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 2124. 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
15362.
88. Ernst Friesenhahn, Wesen und Grenzen der Verfassungsgerischtsbarkeit, Zeitschrift
fr 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 dutyto 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, 6263 (1936).
90. Justice Kirchhof s observation reminds one of U.S. Supreme Court Chief Justice John
Robertss comment at his confi rmation hearing before the U.S. Senate Judiciary Commit-
tee. 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 constitu-
tional court, Justice Leibholz observed, have mostly a meaning which transcends the ac-
tual 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 method-
ology by Josef Esser, Vorverstndnis und Methodenwahl in der richterlichen Rechtsbildung des
Privatrechts, 3d ed. (Tbingen: J. C. B. Mohr [Paul Siebeck], 1974).
96. See Bckenfrde, supra note 76, at 153038.
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 lawthe Constitutional Courts
functionis 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 Con-
stitutional Court (Beverly Hills, Calif.: Sage Publications, 1976), 182 91. See also Peter Wit-
tig, Politische Rcksichten in der Rechtsprechung des Bundesverfassungsgerichts, Der
Staat 8 (1969): 13758.
102. Leibholz, supra note 53, at 27677.
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 Courts sixteen current members, seven were recruited
from the high federal courtsthree justices of each senate must be chosen from these
courtsand eight were professors of law. On the whole, they have far less political experi-
ence 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 parliamen-
tary or ministerial experience at the federal or Land level. Five of the Courts eight presidents
were national political leaders at the time of their selection, one of whom, Roman Herzog,
after his ser vice as the Courts president, was elected president of the Federal Republic. Only
one current member, Peter Mller (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 19992011 he was Saarlands governor (Premier-
minister). 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 experi-
ence. 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: Uni-
versity of Chicago Press, 1994), 181.
109. See Bernhard Schlink, German Constitutional Culture in Transition, Cardozo
Law Review (1993): 71415.
110. Eberhard Grabitz, Der Grundsatz der Verhltnismssigkeit in der Rechtsprechung
des Bundesverfassungsgesetzes, Archiv des ffentlichen Rechts 98 (1973): 568616; see also
Ingo von Mnch, Staatsrecht, 5th ed. (Stuttgart: Verlag W. Kohlhammer, 1993), 367 68.
111. Hesse, supra note 81, at 27.
112. 93 BVerfGE 1, 2223 (1955). See also Gregor Stricker, Das Kruzifi xurteil in der wis-
senschaft lichen Diskussion, Neue Juristische Wochenschrift 49 (1996): 44041; and Roland
Pofalla, Kopft uch jaKruzifi x nein? Zu den Widersprchen der Rechtsprechung des
BVerfG, Neue Juristische Wochenschrift 57 (2004): 121820.
113. See 108 BVerfGE 282 (2003) (citing Interdenominational School Case, 41 BVerfGE
29, 5051 [1975], and Classroom Crucifi x Case, 93 BVerfGE 1, 2223 [1995]). Dozens of arti-
cles 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 religisen zur fderalen Vielfalt, Neue Juristische Wochenschrift 56
(2003): 3297301; and Gerhard Czermak, Kopft uch, Neutralitt und Ideologie Das Kopf-
tuch Urteil des BVerfG im ideologischen Streit, Neue Zeitschrift fr Verwaltungsrecht 23
(2004): 94346.
114. See Alexander M. Bickel, The Least Dangerous Branch, 2d ed. (New Haven: Yale Uni-
versity 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 subsi-
dized housing).
117. 90 BVerfGE 286 (1994). See also Torsten Stein & Holger Krninger, Bundeswehre-
insatz im Rahmen von nato-, weu- bzw. lvn-MilitraktionenBVerfG vom 12.7.1994,
Juristische Ausbildung 5 (1995): 254 62; Gerd Rllecke, Bewaff nete Auslandseinstze
Aussenpolitik oder Innenpolitik? Ein verfassungsnderndes Urteil des Bundesverfas-
sungsgerichts, Der Staat 34 (1995): 41528; and Roland Pofalla, Die Bundeswehr im
AuslandEine Zwischenbilanz des Gesetzgebungsverfahrens, Zeitschrift fr Rechtspoli-
tik 7 (2004): 22125.
118. 37 BVerfGE 27 (1974). See Josef Isensee, Vorrang des Europarechts und deutsche
Verfassungsvorbehalte-offener Dissens, in VerfassungsstaatlichkeitFestschrift fr Klaus
Stern zum 65. Geburtstag (Munich: C. H. Becksche Verlagsbuchhandlung, 1997), 123968.
119. 73 BVerfGE 339 (1986). See also Udo Di Fabio, Richtlinienkonformitt als ranghch-
stes Normauslegungsprinzip?berlegungen zum Einfluss des indirekten Gemeinschafts-
rechts auf die nationale Rechtsordung, Neue Juristische Wochenschrift 43 (1990): 94750;
Karl Eckart Heinz, Grundrechtschutz und Gemeinschaft srechtzur Entscheidung des
BVerfG Solange II, Die ffentliche Verwaltung 40 (1987): 85158; Gnter Hirsch, Kompe-
tenzverteilung zwischen EuGH und nationaler Gerichtsbarkeit, Neue Zeitschrift fr Verwal-
tungsrecht 17 (1998): 90710; and Manfred Zuleeg, Die fderativen Grundstze der Eu-
ropischen Union, Neue Juristische Wochenschrift 53 (2000): 284651.
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): 54954; and Hans-Jrgen Papier, Die Entwicklung des Verfassungsrechts seit der
Einigung und seit Maastricht, Neue Juristishe Wochenschrift 50 (1997): 284148.
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 6667.
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): 17882.
125. 45 BVerfGE 187, 227 (1977).
126. Investment Aid I Case, 4 BVerfGE 7, 1516 (1954). Time and again over the years the
Court has invoked this passage in its decisional law. See, for example, Conscientious Objec-
tor 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 (Tbingen: J. C. B. Mohr [Paul Siebeck], 1992); Hermann-Wilfried
Bayer, Die Bundestreue (Tbingen: 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 Bcken-
frde, Wie Werden in Deutschland die Grundrechte im Verfassungsrecht interpretiert, Eu-
ropische Grundrechte 31 (2004): 598603. A former justice of the Federal Constitutional
Court, Bckenfrde 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 ber den Verfassungskonvent auf Herrenchiemsee vom 10. bis 23. August 1948
(Munich: Richard Pflaum Verlag, 1949). The Herrenchiemsee report has been cited in sev-
eral opinions. See, for example, Handicraft Trade Case, 32 BVerfGE 54, 69 (1971); Foreclo-
sure 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 Councils 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 Universitts-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 19481949 (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 ffentlichen Rechts 1 (1951):
1 926.
133. 83 BVerfGE 341, 355 (1991).
134. 67 BVerfGE 100, 13031 (1984).
135. 62 BVerfGE 1, 4447 (1983).
136. Ibid., at 86105.
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 publi-
cation of several casebooks in constitutional law. See, for example, Entscheidungen des Bundes-
verfassungsgerichts, ed. Jrgen 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 Courts
leading opinions arranged in chronological order (again without commentary) in a two-
volume paperback edition. See Entscheidungen des Bundesverfassungsgerichts: Studienauswahl,
eds. Dieter Grimm & Paul Kirchhof, 2d ed. (Tbingen: 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. Becksche
Verlagsbuchhandlung, 1996).
141. In recent decades, the original authors have been joined by Rupert Scholz, Peter
Lerche, Hans-Jrgen Papier, Albrecht Randelzhofer, and Eberhard Schmidt-Amann, all
 Notes to Chapter Two 753
distinguished professors of law. (Interestingly, Papier became president of the Federal Con-
stitutional Court in 1998. He, like Herzog, was proposed by the cdu/csu.) Another authori-
tative 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, 19992000). Its length of 8,183 pages is one measure of its scope and depth. Horst
Dreiers three-volume GG- Grundgesetz Kommentar rivals these in size (the second edition is
nearly six thousand pages long) and professional reputation amongst scholars and practitio-
ners. 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. (Tbingen: J. C. B. Mohr [Paul Siebeck], 2007).
142. In the well-known Jehovahs Witnesses Case, the Constitutional Court relied almost
exclusively on Bckenfrdes off-the-bench writings on the relationship between the state and
religious associations. See 102 BVerfGE 370 (2000). See Heinrich Wilms, Glaubensgemein-
schaften als Krperschaften des ffentlichen Rechts, Neue Juristische Wochenschrift 56 (2003):
108390; and Christian Hillgruber, Der Krperschaftsstatus von Religionsgemeinschaften
Objectives Grundverhltnis oder subjectives Grundrecht, Neue Zeitschrift fr Verwaltung-
srecht 20 (2001): 134755.
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 dis-
tinctive for this reason. See Gerhard Leibholz, Hans-Justus Rinck & Dieter Hesselberger,
Grundgesetz fr die Bundesrepublik Deutschland: Kommentar anhand der Rechtsprechung
des Bundesverfassungsgerichts (Munich: C. H. Becksche Verlagsbuchhandlung, 2011).
Interestingly, both Leibholz and Rinck, long deceased, were members of the Federal Con-
stitutional Court. Dieter Hesselberger, a judge of the Federal Court of Justiceand now
also deceased edited later editions of the book. Th is book is not an analytical commen-
tary on the American hornbook model. Like other commentaries, it proceeds article-by-
article 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: Foun-
dation Press, 2000); and John E. Nowak & Ronald D. Rotunda, Constitutional Law, 6th ed.
(St. Paul, Minn.: West Group, 2000), 1307428.
145. Basic Law, Article 100 (2).
146. It might be noted that the Court has occasionally expanded a basis right not recog-
nized 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 incor-
porating both an institutional guarantee and an objective value, may not impose unreason-
able barriers on the right of spouses living in nonEuropean 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 Laws
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 Germanys constitutional order.
147. Presumption of Innocence Case, 74 BVerfGE 358, 370 (1978).
148. See, respectively, Lth Case, 7 BVerfGE 198, 208 (1958) and Spiegel Case, 20 BVer-
fGE 162, 22021 (1966). Lth and Spiegel are featured and discussed at length in Chapter 8.
 754 Notes to Chapters TwoThr ee
149. See Jrg Manfried Mssler, Rechtsvergleichung und Verfassungsrechtsprechung,
Archiv des ffenlichen Rechts 99 (1974): 22842.
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, 41516 (1958). The
extradition cases are the Death Penalty Extradition Case, 18 BVerfGE 112, 11718 (1964) and
Saarland Extradition Case, 4 BVerfGE 299, 3012 (1955).
151. See, respectively, Abortion I Case, 39 BVerfGE 1, 7374 (1975); Denaturalization II
Case, 54 BVerfGE 53, 7576 (1980); and Party Finance V Case, 73 BVerfGE 40, 1034 (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 Ger-
many. See Axel Tschentscher, Dialektische RechtsvergleichungZur Methode der Kom-
paristik im ffentlichen Recht, Juristenzeitung 62 (2007): 80716. Peter Hberle, one of
Germanys 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, sys-
tematic, teleological, and historical). See Peter Hberle, Grundrechtsgeltung und Grun-
drechtsinterpretation im VerfassungsstaatZugleich zur Rechtsvergleichung als fnfter
Auslegungsmethode, Juristenzeitung 44 (1989): 91316.

chapter three
1. For treatments of this movement toward unity, see Egmont Zechlin, Die deutsche Ein-
heitsbewegung (Frankfurt-am-Main: Ullstein, 1967); Arnold Brecht, Federalism and Regional-
ism in Germany (New York: Oxford University Press, 1945); Peter Rassow, Deutsche Ge-
schichte (Stuttgart: J. B. Metzlersche Verlagsbuchhandlung, 1987), 403645; H. W. Koch, A
Constitutional History of Germany (London: Longman, 1984), 10563; Karl Peter Sommer-
mann, Art. 20, in Das Bonner Grundgesetz-Kommentar (3 vols.), eds. Christian Starck, Her-
mann von Mangoldt & Friedrich Klein, 5th ed. (Munich: Franz Vahlen Verlag, 2005), 2:1,
912, 2023; 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, 46.
2. For a succinct discussion of Germanys increasingly integrated economy, see Jochen
Abr. Frowein, Integration and the Federal Experience in Germany and Switzerland, in In-
tegration Through LawEuropean and the American Federal Experience, Vol. 1: Methods, Tools
and Institutions, Book 1: A Political, Legal and Economic Overview, eds. Mauro Cappelletti
etal. (Berlin: Walter de Gruyter, 1986), 57481.
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, popula-
tion, and economic structure. See Neugliederung des Bundesgebietes: Kurzfassung des Berichts
 Notes to Chapter Thr ee 755
der Sachverstndigenkommission fr die Neugliederung des Bundesgebietes (Bonn: Heymanns
Verlag, Kln, 1974); see also Rudolph Hebek, Das Problem der Neugliederung des Bundes-
gebietes, 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, 62425, 8 9; Almuth
Hennings, Der unerfllte VerfassungsauftragNeugliederung des Bundesgebiets im Spannungs-
feld politischer Interessengegenstze (Heidelberg: R. v. Deckers/G. Schenk Verlag, 1983), 104
7; Susanne Greulich, Lnderneugliederung und GrundgesetzEntwicklungsgeschichte und
Diskussion der Lnderneugliederungsoption nach dem Grundgesetz (Baden-Baden: Nomos
Verlagsgesellschaft, 1995), 100120; Reinhard Timmer, Neugliederung des Bundesgebiets
und die knft ige Entwicklung des fderativen Systems, in Festschrift fr Werner Ernst zum
70. Geburtstag, ed. Harry Westermann (Munich: C. H. Becksche Verlagsbuchhandlung,
1980), 46374.
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, 19491960 (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-Wrttemberg was formed out of the original states of Wrttemberg-Baden,
Wrttemberg-Hohenzollern, and Baden. For an excellent discussion of the formation of the
new southwestern state, see Theodor Eschenburg, The Formation of the State of Baden-
Wrttemberg, in The German Southwest (Berlin: Verlag W. Kohlhammer, 1990), 3757; Jrg
Menzel, Verfassungsrechtssprechung100 Entscheidungen des Bundesverfassungsgerichts in der
Retrospektive (Tbingen: J. C. B. Mohr [Paul Siebeck], 2000), 4347; Paul Feuchte, Poli-
tische Einheit als Ziel der Staatsgrndung und Auft rag der VerfassungDargestellt am
Beispiel Baden-WrttembergsTeil I, Verwaltungsbltter fr Baden-Wrttemberg 13 (1992):
8185; Paul Feuchte, Politische Einheit als Ziel der Staatsgrndung und Auft rag der
VerfassungDargestellt am Beispiel Baden-WrttembergsTeil II, Verwaltungsbltter fr
Baden-Wrttemberg 13 (1992): 12531; Paul Feuchte, Politische Einheit als Ziel der Staats-
grndung und Auft rag der VerfassungDargestellt am Beispiel Baden-Wrttembergs
Teil III, Verwaltungsbltter fr Baden-Wrttemberg 13 (1992): 287 91; Paul Feuchte, Poli-
tische Einheit als Ziel der Staatsgrndung und Auft rag der VerfassungDargestellt am
Beispiel Baden-WrttembergsTeil IV, Verwaltungsbltter fr Baden-Wrttemberg 13
(1992): 41316; Greulich, supra note 4, at 5973; Hennings, supra note 4, at 6582.
7. For an excellent discussion of this dispute, see Arthur T. von Mehren, Constitutional-
ism in GermanyThe First Decision of the New Constitutional Court, American Journal of
Comparative Law 1 (1952): 7185. See also Friedrich Klein, Bundesverfassungsgericht und
Sdweststaatsfrage, Archiv des ffentlichen Rechts 77 (1951/52): 45364; Wilhelm Drr, Die
Konstituante des Sdweststaats, Archiv des ffentlichen Rechts 77 (1951/52): 465 68; Ulrich
Scheuner, Die Rechtssprechung des Bundesverfassungsgerichts und das Verfassungsrecht
der Bundesrepublik, Deutsches Verwaltungsblatt 67 (1952): 64549.
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): 72331; Franz W. Jerusalem, Das Urteil des Bundesverfassungsgerichts
ber den Sdweststaat-Streit, Neue Juristische Wochenschrift 5 (1952): 4548. For an account
of the proceedings and arguments before the court in the Southwest State Case, see Der
Kampf um den Sdweststaat (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 17831835 (Berkeley: University of California Press, 1944), 256 65; Werner Frotscher
& Bodo Pieroth, Verfassungsgeschichte, 5th ed. (Munich: C. H. Becksche Verlagsbuchhand-
lung, 2005), 2025; Winfried Brugger, Kampf um die Verfassungsgerichtsbarkeit, Jurist-
ische Schulung 43 (2003): 32025.
11. Leibholz, supra note 8.
12. 13 BVerfGE 54 (1961). See Greulich, supra note 4, at 7980.
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
Sachverstndigenkommission fr 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 r-
mation 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 Drig & Roman Herzog,
32d ed. (Munich: C. H. Becksche Verlagsbuchhandlung, 1996), 4:13, 19, 19; Greulich, supra
note 4, at 120; Timmer, supra note 4, at 463500.
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. Mller Juist-
ischer Verlag, 1995).
19. Ulrich Scheuner, Struktur and Aufgabe des Bundesstaates in der Gegenwart, Die Of-
fentliche Venvaltung 15 (1962): 64148.
20. Theodore Maunz, Gunter Drig & Roman Herzog, Art. 20, in Grundgesetz: Kommen-
tar, eds. Theodor Maunz, Gunter Drig, & Roman Herzog 48th ed. (Munich: C. H. Becksche
Verlagsbuchhandlung, 2006), 3:1. For a discussion of these differing conceptions of the fed-
eral state, see Ekkehart Stein & Frank Gtz, Staatsrecht, 19th ed. (Tbingen: J. C. B. Mohr
[Paul Siebeck], 2004), 28788.
21. 13 BVerfGE 54 (1961).
22. Ibid., at 77. For a general treatment of West German federalism, see Heinz Laufer, Das
Fderative System der Bundesrepublik Deutschland (Munich: Bayerische Landeszentrale fr
politische Bildungsarbeit, 1981); and Arthur Gunlicks, The Lnder 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 Lwer, Art. 28, in Grundgesetz: Kommentar, eds. Ingo von Mnch &
Philip Kunig, 5th ed. (Munich: C. H. Becksche Verlagsbuchhandlung, 2001), 2:31420.
 Notes to Chapter Thr ee 757
24. 60 BVerfGE 175 (1982).
25. Ibid., at 2078.
26. Ibid., at 209.
27. State Constitutional Courts Case, 96 BVerfGE 345 (1997). See Johannes Dietlein,
Kontrollbefugnis der Landesverfassungsgerichte, Juristische Ausbildung 22 (2000): 1925;
Eckart Klein, Die LandesverfassungsbeschwerdeEin Instrument zur berprfung der
Anwendbarkeit von Bundesrecht?, Juristische Schulung 40 (2000): 20915; Karl Hain, An-
merkung, Juristen Zeitung 53 (1998): 62024; Klaus Lange, Kontrolle des bundesrechtlich
geregelten Verfahrens durch Landesverfassungsgerichte?, Neue Juristische Wochenschrift 51
(1998): 127882.
28. See Blairs discussion of the cases, supra note 5, at 15762.
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 federations 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 12228.
31. 1 BVerfGE 117 (1952).
32. See Housing Funding Case, 1 BVerfGE 299 (1952); Christmas Bonus Case, 3 BVerfGE
52 (1953); and North RhineWestphalia 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 Bundesverfas-
sungsgerichts, Neue juristische Wochenschrift 10 (1957): 694 97; Wilhelm Wengler, Zur bin-
denden Wirkung des Konkordatsurteils, Neue juristische Wochenschrift 10 (1957): 141725.
34. Blair, supra note 5, at 164.
35. 8 BVerfGE 122 (1958). For a discussion of the case, see Menzel, supra note 6, at 11317.
See also Ernst-Werner Fu, Die Nichtigkeitserklrung der Volksbefragungsgesetze von
Hamburg und Bremen, Archiv des ffentlichen Rechts 108 (1983): 383422; Theodor Maunz,
Grundgesetz und VolksbefragungsgesetzeZu den Volksbefragungsurteilen des
Bundesverfassungsgerichts, Die ffentliche Verwaltung 12 (1959): 15. For somewhat more
contemporary commentary on this issue, see Jrg Menzel, Das allgemeine politische
Mandat der Landesparlamente, Deutsches Verwaltungsblatt 114 (1999): 1385456; Alexis
von Komorowski, uerungsrecht der kommunalen Volksvertretungen und gemeindli-
che VerbandskompetenzZugleich ein Beitrag zur Dogmatik der gegliederten Demokra-
tie, Der Staat 37 (1998): 12246.
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. (Tbingen: J. C. B. Mohr [Paul Siebeck], 1966), 2:30530.
37. 8 BVerfGE 122, 140 (1958).
38. For documentation of this development, see Waldemar Schreckenberger, Intergov-
ernmental Relations, in Public Administration in the Federal Republic of Germany, eds. Klaus
Knig et al. (Netherlands: Kluwer-Venenter, 1983), 7880; Hans-Joachim Faller, Das
Prinzip der Bundestreue in der Rechtsprechung des Bundesverfassungsgerichts, in Fest-
schrift fr Theodor Maunz zum 80. Geburtstag, eds. Peter Lerche, Hans Zacher & Peter Badura
(Munich: C. H. Becksche Verlagsbuchhandlung, 1981), 5459; 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): 108788.
 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 reaf-
fi rmed the unwritten principle of a duty of reciprocal loyalty [requiring] the federal govern-
ment and the Lnder . . . 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 fr Verwaltungsrecht 8 (1989): 112025; Klaus
Lange, Probleme des Bund-Lnder-Verhltnisses im Atomrecht, Neue Zeitschrift fr Ver-
waltungsrecht 9 (1990): 92831.
41. Pofalla I Case, 103 BVerfGE 81, 88 (2001). See also Gorleben Case, 104 BVerfGE 238
(2001). For commentary on Gorleben, see Fritz Ossenbhl, Abschied von der Lndertreue?,
Neue Zeitschrift fr Verwaltungsrecht 22 (2003): 53. In general, see Hellmut Wagner, Atom-
kompromiss und Ausstiegsgesetz, Neue Zeitschrift fr Verwaltungsrecht, 20 (2001): 1089 97.
42. See the chapter entitled Financing the Federal System, Gunlicks, supra note 22, at
163211; Gisela Frber, 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), 11942; Manfred Timmerman, Budgetary and Financial
Planning, in Knig et al., supra note 38, at 189203. For a general discussion of cooperative
federalism, see Jost Pietzscher, Landesbericht Bundesrepublik Deutschland, in Zusam-
menarbeit der Gliedstaaten im Bundesstaat, ed. Christian Starck (Baden-Baden: Nomos Ver-
lagsgesellschaft , 1988), 1776.
43. Werner Heun, Vorbemerkung zu Art. 104a-115 GG, in Grundgesetz Kommentar, ed.
Horst Drier (Tbingen: J. C. B. Mohr [Paul Siebeck], 2000), 3:711, 714, 6; Franz Klein,
Bund und Lnder nach der Finanzverfassung des Grundgesetzes, in Handbuch des Verfas-
sungsrechts, eds. Ernst Benda, Werner Maihofer & Hans-Jochen Vogel (Berlin: Walter de
Gruyter, 1994), 11047.
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
Lnder revenues. Gunlicks, supra note 22, at 176.
48. Ibid., at 178.
49. 1 BVerfGE 117, 131 (1952).
50. 72 BVerfGE 330 (1986). See Reinhart Mugnug, Der horizontale Finanzausgleich auf
dem Prfstand des BundesverfassungsgerichtsBVerfGE, NJW 1986, 2629, Juristische Schul-
ung 26 (1986): 87279; Joachim Wieland, Die verfassungsrechtliche Rahmenordnung des Fi-
nanzausgleichs, Juristische Ausbildung 10 (1988): 41019.
51. 86 BVerfGE 148 (1992). See Hans-Wolfgang Arndt, Anmerkung, Juristen Zeitung
47 (1992): 971 74; Hans- Gnter Henneke, Beistands- und Kooperationspfl ichten im
Bundesstaat, Juristische Ausbildung 15 (1993): 12937; Peter Selmer, Das Bundesverfassungs-
gericht an der Schwelle des fi nanzwirtschaft lichen EinigungsprozessesBVerfGE 86, 148,
Juristische Schulung 35 (1995): 97884.
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 531.
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 in-
come 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 de-
signed 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 Govern-
ments 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, Verwal-
tungsarchiv 81 (1990): 1854; Walter Frenz, Der Schutz der kommunalen Organisation-
shoheit, Verwaltungsarchiv 86 (1995): 37897; Markus Kenntner, Zehn Jahre nach Rastede
Zum dogmatischen Konzeption der kommunalen Selbstverwaltung im Grundgesetz, Die
ffentliche Verwaltung 51 (1998): 70112; Franz-Ludwig Knemeyer, Staat, Kommunen, Ge-
meinden, Landkreise. Die Rastede-Entscheidung des Bundesverfassungsgerichts, Der Staat
29 (1990): 40614.
66. 79 BVerfGE 127, 145 (1988).
67. Article 50 of the Basic Law reads: The Lnder shall participate through the Bundesrat
in the legislation and administration of the federation and in matters concerning the Eu ro-
pean Union. See Roman Herzog, Aufgaben des Bundesrats, in Handbuch des Staatsrechts
III, eds. Josef Isensee & Paul Kirchhof (Heidelberg: C. F. Mller Juistischer Verlag, 2005),
96667.
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, Fed-
eralism 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 Gnter Schulz, Blick in die
ZeitKriegsdienstverweigerung, Monatsschrift fr deutsches Recht 33 (1979): 72123; H.
Mandelartz, Anmerkung, Juristische Arbeitsbltter 10 (1978): 52324.
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 Corpora-
tion Tax Administration Case, 1 BVerfGE 76 (1951) (requiring the Bundesrats 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, An-
merkung, Neue Juristische Wochenschrift 14 (1961): 35556; Hellmuth Gnther, Altes und
Neues im Recht der Kriegsdienstverweigerung, Deutsches Verwaltungsblatt 21 (1983): 1083
95; Hans-Theo Brecht, Kriegsdienstverweigerung und ZivildienstKommentar, 5th ed. (Mu-
nich: C. H. Becksche Verlagsbuchhandlung, 2004), 25.
76. David P. Conradt, The German Polity, 8th ed. (New York: Pearson/Longman, 2005),
199200. See also Uwe Thaysen, The Bundesrat, the Lander and the German Federation (Wash-
ington, D.C.: American Institute for Contemporary German Studies, 1994), 37.
77. See Konrad Reuter, Fderalismus: Grundlagen and Wirkungen in der Bundesrepublik
Deutschland, 4th ed. (Heidelberg: Decker and Muller, 1991).
78. Conradt, supra note 76, at 20002.
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 Ln-
der. 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 legis-
lature to such an extent that this rule has practically no real effect. Werner Heun, The Evo-
lution of Federalism, in Studies in German Constitutionalism, ed. Christian Starck (Baden-
Baden: Nomos Verlagsgesellschaft , 1995), 167, 17677. See Markus Kenntner, Justitiabler
Fderalismus (Berlin: Dunckner and Humblot, 2000), 11922; Jrn Ipsen, Staatsrecht I- Staat-
sorganisationsrecht (Munich: Luchterhand, 2005), 16467.
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 Knig et al.,
supra note 38, at 4964.
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 educa-
tion (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. Jrn Ipsen, Staatsrecht I Staatsorganisationsrecht (Munich: Luchterhand, 2005),
16870; Hartmut Maurer, Staatsrecht I (Munich: C. H. Becksche Verlagsbuchhandlung,
2003), 55355.
84. Gunlicks, supra note 3, at 119.
85. Wolfgang Schuble, 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 out-
line exceptional departures from the Bundestags exclusive authority to make law.
87. Under the new Article 87e, ratified in 1993, federal railways shall be operated as pri-
vate 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 re-
served for the treatment of cooperative federalism in a following subchapter.
89. Explosives Control Case, 13 BVerfGE 367, 37172 (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 mat-
ters within the concurrent legislative power, the Lnder 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 federations 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 leg-
islation 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 1933Decision of the West German
Federal Constitutional Court, Canadian Bar Review 35 (1957): 84248.
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 fr Ordnungswidrigkeiten, Archiv
des ffentlichen Rechts 89 (1964): 5687. Other representative cases include the Casino Tax
Case (28 BVerfGE 119 [1970]) (voiding a federal tax on casinos); Freight Traffic Case (38 BVer-
fGE 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, Gesetzgebungszustndig-
keit im Strafrecht, Zeitschrift fr Rechtspolitik 39 (2006): 1822.
96. Petra Minnerop & Frank Schorkopf, The German University Reform: Between Ad-
justment 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 Fed-
eral Order.
98. The resulting cases will be discussed in a subsequent subchapter treating cooperative
federalism, which includes consideration of the federations 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 Parliaments discretion was implied by the Courts 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 Bunde-
stag 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
Ossenbhl, Anmerkung, Die ffentliche Verwaltung 42 (1989): 98789; Fritz Ossenbhl,
 762 Notes to Chapter Thr ee
Staatshaftungsrecht, 5th ed. (Munich: C. H. Becksche Verlagsbuchhandlung, 1998), 45;
45255.
102. Gunlicks, supra note 3, at 121.
103. See Markus Rau, Subsidiarity and Judicial Review in German Federalism: The De-
cision 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, Richtungs-
weisende Entscheidung des Bundesverfassungsgerichts zur legislativen Kompetenzordnung
des Grundgesetzes, Neue Juristische Wochenschrift 56 (2003): 2830; Markus Kenntner, Der
Fderalismus ist (doch) justiziabel!Anmerkung zum Altenpflegegesetz-Urteil des Bundes-
verfassungsgerichts, Neue Zeitschrift fr Verwaltungsrecht 22 (2003): 82124. With respect to
the Courts new approach to federalism, see Gnther Schneider, Die Neuregelung der Al-
tenpflege durch das Altenpflegegesetz, Neue Juristische Wochenschrift 54 (2001): 322630.
105. 110 BVerfGE 141 (2004). Regarding this decision, see Christian Pestalozza, Hund
und Bund im Visier des Bundesverfassungsgerichts, Neue Juristische Wochenschrift 57
(2004): 184044. In general, see Thomas Kunze, KampfhundeVerfassungsrechtliche As-
pekte der Gefahrenabwehr, Neue Juristische Wochenschrift 54 (2001): 160813.
106. 111 BVerfGE 10 (2004). Regarding this decision, see Thomas Poschmann, Inanspruch-
nahme konkurrierender Kompetenzen des Bundes und Neuordnung der Bundesstaatlichen
Ordnung, Neue Zeitschrift fr Verwaltungsrecht 23 (2004): 131822; Hendrik Horstmann,
Neue Gesetzgebungskompetenzen bei Ladenschluss und Arbeitszeit, Neue Zeitschrift fr Ar-
beitsrecht 23 (2006): 124650; Katrin Fuchs, Ladenschlussund kein Ende?, Neue Zeitschrift
fr Verwaltungsrecht 24 (2005): 102629. For a general discussion regarding the Shop Closing
Act, see Achim Schundler, Der Ladenschluss auf dem Rckzug?Gesetz zur Verlngerung
der Ladenff nung an Samstagen, Neue Juristische Wochenschrift 56 (2003): 213134.
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, Constitu-
tional 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 12728.
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 inter-
relations 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 kologisches Rechtzum WasserpfennigBeschluss des Bundesverfassungsgeri-
chts, Neue Zeitschrift fr Verwaltungsrecht 15 (1996): 41721; Hans Georg Raber, Wassernut-
zungsentgelte und das Grundgesetz, Neue Zeitschrift fr Verwaltungsrecht 16 (1997): 21923.
 Notes to Chapter Thr ee 763
118. 4 BVerfGE 115 (1954). See generally Dieter Carl, Besoldungskrzung durch bundesge-
setzliche und/oder landesgesetzliche Manahmen, Neue Zeitschrift fr Verwaltungsrecht 8
(1989): 51015.
119. Blair, commenting on the North RhineWestphalia Salaries Case, supra note 5, at 82. In
Salaries the federal government had established a fi xed salary schedule for its own civil ser-
vants. Shortly thereafter, North RhineWestphalia passed a law providing its own employ-
ees 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 states salary schedule. North RhineWestphalia Salaries Case, 4 BVerfGE 115 (1954).
The Court upheld similar statutes enacted by two other states even though the push of fed-
eral 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. Widows Pension I Case, 25 BVerfGE 142, 152 (1969); and North RhineWestphalia
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 ffentliche
Verwaltung 58 (2005): 9028; Rainer Wernsmann, Reichweite der Zustimmungsbedrft ig-
keit von Gesetzen im Bundesrat, Neue Zeitschrift fr Verwaltungsrecht 24 (2005): 135257.
123. For a detailed discussion of this crisis, see Peter J. Katzenstein, Policy and Politics in
West Germany (Philadelphia: Temple University Press, 1987), 296324. See also, Hartmut
Maurer, Staatsrecht I (Munich: C. H. Becksche Verlagsbuchhandlung, 2005), 64749; Wer-
ner Hoppe, Planung, in Handbuch des Staatsrechts der Bundesrepublik Deutschland, eds.
Josef Isensee & Paul Kirchhof (Heidelberg: C. F. Mller Juristischer Verlag, 2006), 33133.
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 LawPrinciples
and Policies, 3d ed. (New York: Aspen Publishers, 2006), 275 (citing John C. Eastman, Re-
storing 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, 84118. See also Maurer, supra note 123, at 63049.
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.
Becksche Verlagsbuchhandlung, 1980), 2:83233.
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 consti-
tutionally guaranteed fundamental rights of persons shall bind the legislature, the execu-
tive, and the judiciary as directly enforceable law. Provisions subjecting the powers of gov-
ernment to principles of liberty and justice reflect the Basic Laws 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 Bundesver-
fassungsgerichts [Frankfurt am Main: Peter Lang Verlag, 1982], 11015); Bremen Civil Servant
Case, 9 BVerfGE 268, 280 (1959) (regarding the decision, see Sinemus, 11525; in general, see
Walter Leisner, Die quantitative GewaltenteilungFr ein neues Verstndnis der Tren-
nung der Gewalten, Die ffentliche Verwaltung 22 [1969]: 40511); and Fiscal Administra-
tion Case, 22 BVerfGE 106, 111 (1967) (regarding the decision, see Sinemus, 13435).
3. The Court has ruled that the Basic Laws 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 1037; in general, see Henning Zwirner, Die Rechtsprechung des Bundesver-
fassungsgerichts zur Parteienfinanzierung, Archiv des ffentlichen Rechts 118 [1993]: 81135);
and Judicial Qualification Case, 34 BVerfGE 52, 59 (1972) (regarding the decision, see Sinemus,
supra note 2, at 15154). For a general discussion of separation of powers, see H. J. Hahn, ber
die Gewaltenteilung in der Wertwelt des Grundgesetzes, Jahrbuch des ffentlichen Rechts 91
(1965): 1544; Klaus Stern, Staatsrecht der Bundesrepublik Deutschland (2 vols.) (Munich: C.
K. Becksche Verlagsbuchhandlung, 1980), 2:51346; Udo Di Fabio, Gewaltenteilung, in
Handbuch des Staatsrechts (2 vols.), eds. Josef Isensee & Paul Kirchhof, 3d ed. (Heidelberg:
C. F. Mller Juistischer Verlag, 2004), 61358; Christoph Mllers, Die drei Gewalten: Legiti-
mation der Gewaltengliederung in Verfassungsstaat, Europischer Integration und International-
isierung (Weilerswist, Germany: Velbrck 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 Bundestags 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 ffentliche Verwaltung 38 (1985): 593605.
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 AusschubesetzungZum Urteil des Bundesverfassungsgerichts
vom 14. Januar 1986, Die ffentliche Verwaltung 39 [1986]: 23639; Karl-Heinz Hohm, Recht
auf Chancengleichheit der Fraktionen und oppositioneller MinderheitenschutzZur Nich-
treprsentanz der GRNEN-Fraktion in Gremien und Ausschssen der sicherheitsempfi nd-
lichen Bereiches, Neue Juristische Wochenschrift 38 (1985): 40814; Horst Dreier, Regelungs-
 Notes to Chapter Four 765
form und Regelungsinhalt des autonomen Parlamentsrechts, Juristenzeitung 45 [1990]:
31021; in general, see Hans Herbert von Arnim, Parteifi nanzierung: Zwischen Notwendig-
keit und MissbrauchAlte Probleme und neue Entwicklungen, Neue Zeitschrift fr Verwal-
tungsrecht 22 [2003]: 107680); Minority Rights in Investigative Committees Case, 105 BVer-
fGE 197 (2002) (regarding the decision, see Meinhard Schrder, Altes und neues zum Recht
der Parlamentarischen Untersuchungsausschsse aus Anla der cdu-Parteispendenaff re,
Neue Juristische Wochenschrift 52 [2000]: 145558; Dieter Wiefelsptz, Der Eid im Untersuc-
hungsausschuss, Zeitschrift fr Rechtspolitik 35 [2002]: 1418). 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 Ade-
nauer bis Kohl, Zeitschrift fr Politik 33 (1986): 4466. Roman Herzog, former president of
the Federal Constitutional Court and former federal president, called the chancellor democ-
racy 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 govern-
ment, 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 FutureA 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): 118.
7. Werner Maihofer, Abschliessende usserungen, 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, Einfhrung in das ffentliche Recht (Heidelberg: C. F. Mller Jurist-
ischer Verlag, 1985).
9. For studies of the Bundestag, see Gerard Braunthal, The West German Legislative Pro-
cess (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 rela-
tionship between the chancellor and the Federal Parliament, see R. Rausch, Bundestag and
Bundesregierung (Munich: C. H. Becksche Verlagsbuchhandlung, 1976); E. U. Junker, Die
Richtlinienkompetenz des Bundeskanzlers (Tbingen: 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 Staatssekretr (Munich: C. H. Becksche Verlagsbuchhandlung, 1969);
and H. Rausch, Der Bundesprsident (Munich: Bayerische Landeszentrale fr Politische Bil-
dungsarbeit, 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. Martins Press, 1985);
Christof Degenhart, Staatsrecht I (Heidelberg: C. F. Mller Juristischer Verlag, 2002), 274
81; Martin Nolte & Christian Tams, Das Gesetzgebungsverfahren nach dem Grundgesetz,
Juristische Ausbildung 22 (2000): 15865.
11. Gustav Heinemann, president from 1969 to 1974, once threatened not to sign any mea-
sure 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 Courts judgment in the Engineers 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 Bundesprsident (Munich: Bayerische Landeszentrale fr
politische Bildungsarbeit, 1979), 6768, 7983; Franz Reimer, Vertrauensfrage und Bunde-
stagsauflsung bei parlamentarischer Anscheinsgefahr, Juristische Schulung 45 (2005):
68083.
12. Ernst Benda, Nur ein Trick, Frankfurter Allgemeine Zeitung, June 8, 2005.
13. 62 BVerfGE 1 (1983). The decision featured a 62 split. See Wolf-Rdiger Schenke, Zur
verfassungsrechtlichen Problematik der Bundestagsauflsung, Neue Juristische Wochen-
schrift 36 (1983): 15053; Christian Pestalozza, Art. 68 gg light oder Die Wildhter der Verfas-
sung, Neue Juristische Wochenschrift 57 (2005): 281720; Hans-Peter Schneider, Sybillinisch
oder salomonisch? Das Urteil des Bundesverfassungsgerichts zur Parlamentsauflsung,
Neue Juristische Wochenschrift 36 (1983): 152930; Willi Geiger, Die Auflsung des Bundestags
nach Art. 68 gg, Jahrbuch des ffentlichen Rechts der Gegenwart 34 (1985): 4161.
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; Jrn Ipsen, Die Auflsung des 15.
Deutschen BundestagesEine Nachlese, Neue Zeitschrift fr Verwaltungsrecht 24 (2005):
114750. In general, see Volker Busse, Auflsung des Bundestages als Reformproblem,
Zeitschrift fr Rechtspolitik 38 (2005): 25760.
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, Frank-
furter Allgemeine Zeitung, May 24, 2005; Rupert Scholz, Zuverlssig wre nur der Rcktritt,
Frankfurter Allgemeine Zeitung, June 8, 2005; Erhard Denninger, Vertrauensfrage setzt
Krisenlage voraus, Frankfurter Allgemeine Zeitung, June 9, 2005; Dieter Grimm, In Wah-
rheit 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. Martins 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 Hochschulorganisa-
tion, Verwaltungsarchiv 64 (1973): 7585; Bernhard Schlink, Die Wissenschaft sfreiheit
des BundesverfassungsgerichtsZur Entscheidung des Bundesverfassungsgerichts vom
29. Mai 1973, Die ffentliche Verwaltung 26 (1973): 54145. Von Beyme cited many other ex-
amples: East-West Basic Treaty Case, 36 BVerfGE 1 (1973) (requiring foreign policy makers to
adhere to the goal of German reunification) (see Jrg Menzel, Verfassungsrechtssprechung
[Tbingen: J. C. B. Mohr (Paul Siebeck), 2000], 22633); Abortion I Case, 39 BVerfGE 1 (1975)
(invalidating a liberal abortion law) (see Martin Kriele, Anmerkung, Juristenzeitung 30 [1975]:
22225; Christian-Friedrich Menger, Das verfassungsrechtliche Urteil zu 218 StGB
Gesetzgebung durch das Bundesverfassungsgericht?, Verwaltungsarchiv 66 [1975]: 397403);
Widowers Pension II Case, 39 BVerfGE 169 (1975) (instructing Parliament to find a fairer
method of transferring a wifes pension entitlement to her surviving husband by the end of
1984) (see Rdiger Zuck, Anmerkung, Neue Juristische Wochenschrift 28 [1975]: 92223); Leg-
 Notes to Chapter Four 767
islative Pay Case, 40 BVerfGE 296 (1975) (effectively ordering Parliament to increase the sala-
ries of legislative representatives) (see Joachim Henkel, Anmerkung, Die ffentliche Verwal-
tung 29 [1975]: 81921; Hans H. Klein, Diten-Urteil und Diten-StreitLegendenbildung
im Verfassungsrecht, in PlanungRechtRechtschutz Festschrift fr Willi Blmel zum 70.
Geburtstag am 6. Januar 1999, eds. Klaus Grupp & Michael Ronellenfitsch [Berlin: Duncker
and Humblot, 1999], 22557). 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 (Baden-
Baden: Nomos Verlagsgesellschaft , 1984), 51123; and Christine Landfried, The Impact of
the German Constitutional Court, Government and Opposition 20 (1985): 52241; Das
Bundesverfassungsgericht im politischen System, eds. Robert Chr. Van Ooyen & Martin H. W.
Mllers (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, 69293, 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-Wrttemberg where the Court is based, Casper declared:
The Federal Constitutional Court is of great importance. As far as its institutions are con-
cerned, 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 Karl-
sruhe Republic. Gerhard Casper, The Karlsruhe RepublicKeynote Address at the
State Ceremony Celebrating the 50th Anniversary of the Federal Constitutional Court, Ger-
man 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 fr parlamentarische Untersuchung (Art. 44 GG, 30 AO)Zur Entscheidung des
BVerfG v. 17.7.1984, BVerfGE 67, 100 (Flick-Untersuchungsausschuss), Juristenzeitung 40
(1985): 11219; Peter Badura, Anmerkung, Die ffentliche Verwaltung 37 (1984): 76064;
Udo Di Fabio, Rechtschutz im parlamentarischen Untersuchungsverfahren (Berlin: Duncker
and Humblot, 1988).
26. 105 BVerfGE 197 (2002).
27. See Volker Rben, 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 Menschenwrde: Akt III, Neue Juristische
Wochenschrift 50 (1998): 51012; Bernd Sangmeister, Der Krieg der RichterBVerfG, NJW
1998, 519, Juristische Schulung 39 (1999): 2128; Rolf Strner, Das Bundesverfassungsgericht
 768 Notes to Chapter Four
und das frhe menschliche LebenSchadensdogmatik als Ausformung humaner Rechtskul-
tur?, Juristenzeitung 53 (1998): 31768.
32. 96 BVerfGE 375, 399 (1997).
33. Besides a matter of separation of powers as provided for in Article 20 (2), the delega-
tion 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 Lnder.
34. 30 BVerfGE 1, 2728 (1970). Th is translation is from Walter F. Murphy & Joseph
Tanenhaus, Comparative Constitutional Law (New York: St. Martins Press, 1977), 662. Re-
garding this decision, see Sinemus, supra note 2, at 14251; Helmut Kalkbrenner, An-
merkung, Bayerische Verwaltungsbltter (1971): 14647; Karl-Heinrich Hall, Abhrentsche-
idung und GrundgesetzBVerfGE 30, 1, Juristische Schulung 12 (1972): 13237; Peter
Hberle, Die Abhrentscheidung des Bundesverfassungsgerichts vom 15. 12. 1970Analyse
und kritik des Urteils sowie des Minderheitsvotums vom 4. Januar 1971, Juristenzeitung 26
(1971): 14556.
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 Hit-
ler 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. Becksche Verlagsbu-
chhandlung, 1983), 3:246. For a general discussion of this, see Dieter Wilke, Bundesverfas-
sungsgericht und Rechtsvernderung, Archiv des ffentlichen Rechts 98 (1973): 196247.
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), 453507. See also Thomas F. W. Schodder, Fderative Gewaltenteilung
in der Bundesrepublik Deutschland (Frankfurt am Main: Peter Lang Verlag, 1989), 1418;
Felix Hammer, Die Verfassung des Deutschen Reiches vom 11. August 1919Die Weimarer
Verfassung, Juristische Ausbildung 22 (2000): 5763.
37. See Ernst K. Pakuscher, Administrative Law in GermanyCitizen and State, Amer-
ican Journal of Comparative Law 16 (Summer 1968): 309, 32124; 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 (Ox-
ford: Berghahn Books, 2006), 2:6088.
38. Klaus Bosselmann, Protection of Constitutional Rights and Reform of Nuclear
Power Plant Licensing Procedures in West Germany: An Interim Assessment, Hastings In-
ternational and Comparative Law Review 6 (1983): 555.
39. 53 BVerfGE 30 (1979). Regarding this decision, see Helmut Simon & Hermann Heu-
ner, Sondervotum, Neue Juristische Wochenschrift 32 (1980): 76469. In general, see Ernst
Kutscheidt, Das stillgelegte Atomkraft werk, Neue Zeitschrift fr Verwaltungsrecht 15 (1987):
3335; Peter Weides, Noch einmal: Das stillgelegte Atomkraft werk Ursachen und Folgen
des Fehlens einer immissionschutzrechtlichen Parallel Genehmigung zu den atomrechtli-
chen (Teil-) Genehmigungen der Errichtung eines Kernkraft werks, Neue Zeitschrift fr Ver-
waltungsrecht 15 (1987): 200204.
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 natu-
ral 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 fr Verwaltungsrecht 21 (2002): 91317; Hans-Georg Kluge, Staatsziel
TierschutzAm Scheideweg zwischen verfassungspolitischer Deklamation und verfas-
sungsrechtlichem Handlungsauft rag, Zeitschrift fr Rechtspolitik 37 (2004): 1014. Regard-
ing 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):
75112.
43. 17 BVerfGE 1 (1963). Regarding the decision, see Rdiger Zuck, Anmerkung, Neue
Juristische Wochenschrift 27 (1975): 92223. In general, see Michael Sachs, Die Quotenrege-
lung und der Rentenalterbeschluss des BVerfG, Neue Zeitschrift fr Verwaltungsrecht 10
(1991): 43742.
44. Widowers Pension II Case, 39 BVerfGE 169 (1975).
45. 53 BVerfGE 30 (1979).
46. 104 BVerfGE 249 (2002). See Richtern Di Fabio und Mellinghoff, Abweichende Mei-
nung, Neue Zeitschrift fr Verwaltungsrecht 21 (2002): 588 91; Fritz Ossenbhl, Abschied
von der Lndertreue?, Neue Zeitschrift fr Verwaltungsrecht 22 (2003): 5354; Walter Frenz,
Atomkonsens und Landesvollzugskompetenz, Neue Zeitschrift fr Verwaltungsrecht 21
(2002): 56163.
47. Roman Herzog remarked: In the United States, as well as in Germany, there has al-
ways been a second form of separation of powers, which we in Germany call vertical separa-
tion 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): 49098.
49. Bosselmann, supra note 38, at 55964.
50. Article 67 provides a procedure known as a constructive vote of no confidence, pursu-
ant 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 Ladem-
acher & Walter Mhlhausen, Sicherheit Kontrolle SouvernittDas Petersberger Abkommen
vom 22. November 1949Eine Dokumentation (Melsungen: Kasseler Forschungen zur Zeit-
geschichte Verlag, 1985).
52. 104 BVerfGE 151 (2001). See Eckart Klein & Stefanie Schmahl, Die neue NATO-
Strategie und ihre vlkerrechtlichen und verfassungsrechtlichen Implikationen, Recht und
Politik 35 (1999): 198209; Ernst R. Zivier, Der Kosovo: Einsatz als Przedenzfall? Zum
strategischen Konzept der NATO vom 23./ 24. April 1999, Recht und Politik 35 (1999): 210
15; Roland Pofalla, Die Bundeswehr im AuslandEine Zwischenbilanz des Gesetzge-
bungsverfahrens, Zeitschrift fr Rechtspolitik 37 (2004): 22125.
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 interna-
tional 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 partys former Chairman and its most visible member. Russell Miller,
Merely a Landmark or a Change of Course: The Federal Constitutional Court Hears Argu-
ments 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 re-
lated shift s. The fi rst was an attempt by Gerhard Schrder (spd) and Joschka Fischer (Green
Party) to realign Germanys traditional center-left parties toward die neue Mitte, espe-
cially on matters of foreign policy and security. Th is shift had im mense personal conse-
quences as well. For Foreign Minister Fischer, the case [seemed] to have high personal
stakes as the Courts decision could serve as the legal and constitutional blessing (coming
from such a highly respected institution as the Federal Constitutional Court) for his [per-
sonal] 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 acknowl-
edged as much in his comments as he repeatedly invoked his past to chide the pds and bol-
ster his credibility and objectivity before the Court. Ibid. Second, this personal- and party-
based reform was meant to signal Germanys 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, Ju-
ristische Schulung 24 (1985): 807 9; Dietrich Rauschning, Organstreit zur Nachrstung
BVerfGE 68, 1, Juristische Schulung 24 (1985): 86368; Christian Sailer, Verfassungsbeschwerde
gegen die Zustimmung der Bundesregierung zur Dislozierung amerikanischer Mittelstreckenra-
keten in der Bundesrepublik Deutschland (Munich: Meyster 1984), 16175. In general, see Ingo
von Mnch, Rechtsfragen zur Raketenstationierung, Neue Juristische Wochenschrift 36
(1984): 57782; Theodor Schweisfurth, Rechtsfragen der Raketenstationierung, Neue Ju-
ristische Wochenschrift 36 (1984): 1506 9.
59. 68 BVerfGE 1, 8587 (1984).
60. See Thomas M. Franck, Political Questions/Judicial Answers (Princeton: Princeton
University Press, 1992), especially chap. 7, pp. 10725. See also Degenhart, supra note 10, at
21213.
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 Mller, 1982).
65. 55 BVerfGE 349, 365 (1980).
66. 46 BVerfGE 160 (1977). See Menzel, supra note 18, at 27983.
 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), 7375.
73. Ibid.
74. North Atlantic Treaty (Nordatlantkvertrag) from 4 April 1949, (1955) Bundesgesetz-
blatt [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 Ger-
manys 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, 23435.
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 ab-
horred 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 ad-
ministration 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: Univer-
sity 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, Ju-
ristenzeitung 21 (1994): 107375; Torsten Stein & Holger Krninger, Bundeswehreinsatz im
Rahmen von nato-, weu- bzw. vn-MilitraktionenBVerfG vom 12.7.1994, Juristische
Ausbildung 50 (1995): 25462; Claus Arndt, Verfassungsrechtliche Anforderungen an inter-
nationale Bundeswehreinstze, Neue Juristische Wochenschrift 46 (1994): 2197 99; Norbert
Riedel, Die Entscheidung des Bundesverfassungsgerichts zum Bundeswehreinsatz im Rah-
men von nato-, weu- bzw. un- MilitraktionenAnmerkungen zum Adria-, awacs- und
Somalia-Urteil des Bundesverfassungsgerichts, Die ffentliche Verwaltung 48 (1995): 13541;
Gerd Roellecke, Bewaff nete AuslandseinstzeKrieg, Auenpolitik oder Innenpolitik?
Ein verfassungsnderndes Urteil des Bundesverfassungsgerichts, Der Staat 34 (1995): 415
28; Roland Pofalla, Die Bundeswehr im AuslandEine Zwischenbilanz des Gesetzgebungs-
verfahrens, Zeitschrift fr Rechtspolitik 37 (2004): 22125; Peter Dreist, Die Bundeswehr im
Ausland, Zeitschrift fr Rechtspolitik 38 (2005): 3536. Regarding Article 24 (2) in general,
 772 Notes to Chapter Four
see Hans-Georg Franzke, Art. 24 II gg als Rechtsgrundlage fr den Aueneinsatz der
Bundeswehr?, Neue Juristische Wochenschrift 45 (1992): 307578.
81. For an excellent discussion of the debate over the meaning of Article 87a (2), see
Daniel-Erasmus Kahn & Markus Zckler, Germans to the Front, or Le malade imaginaire,
European Journal of International Law 3 (1992): 16377.
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 54750; Klaus Dau & Gotthard Whrmann, Der Auslandseinsatz
deutscher StreitkrfteEine Dokumentation des awacs-, des Somalia- und des Adria-Verfahrens
vor dem Bundesverfassungsgericht (Heidelberg: C. F. Mller Juristischer Verlag, 1997).
84. 90 BVerfGE 286 (1994).
85. Critics would point out that the Court took a very different approach to its interpreta-
tion 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 Parliaments 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 indicat-
ing 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 Germanys 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: Ger-
man 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), 1011.
100. Deutsche Politiker entsetzt, Frankfurter Allgemeine Zeitung, September 12, 2001, at 2
(authors translation).
101. Regierungserklrung des Bundeskanzlers Gerhard Schrder 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 Regierungserklrung des
Bundeskanzlers Gerhard Schrder 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
StreetJournal (WSJ.com) November 29, 2009, available at http://online.wsj.com/article
 Notes to Chapters FourFive 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 Schrder aum Wahlkampfauft akt, from Aug. 5,
2002, available at http://archiv.spd.de/servlet/PB/show/1019519/Schrder%20Rede
%20WahlkampfauftaktHannover.pdf.
106. Ibid.
107. Ibid., at 6.
108. Currie, supra note 41, at 4445.
109. War Powers Resoultion, 50 U.S.C. 154148 (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, Grundzge des Verfassungsrechts der Bundesrepublik Deutschland,
20th ed. (Heidelberg: C. F. Mller Juristischer Verlag, 1995), 21415.
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, Bundesverfas-
sungsgericht und Sdweststaatsfrage, Archiv des ffentlichen Rechts 77 (1952): 45364; Wil-
helm Drr, Die Konstituante des Sdweststaats, Archiv des ffentlichen Rechts 77 (1952):
46568; Ulrich Scheuner, Die Rechtssprechung des Bundesverfassungsgerichts und das
Verfassungsrecht der Bundesrepublik, Deutsches Verwaltungsblatt 67 (1952): 64549). 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. Becksche Verlagsbuchhandlung, 1983), 1:587635 (at pages 58387 there
is an extensive bibliography on the democratic principle underlying the Basic Law). See also
Ernst-Wolfgang Bckenfrde, Demokratie als Verfassungsprinzip, in Demokratie und
GrundgesetzEine Auseinandersetzung mit der verfassungsrechtlichen Rechtsprechung, eds.
Thomas Blanke & Martina Lttmann (Baden-Baden: Nomos Verlagsgesellschaft, 2000), 8
31; Christoph Degenhart, Staatsrecht I Staatsorganisation, 18th ed. (Heidelberg: C. F. Ml-
ler Verlag, 2002), 38.
3. For a detailed discussion in English of each of these aspects of Germanys system of po-
litical 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), 12172.
4. [T]he Basic Law clearly rejects direct democracy, regardless of theat least
ostensiblygreater potential it has for legitimation. Michael Brenner, The Constitutional
 774 Notes to Chapter Five
Framework of Democratic Representation, in Constitutionalism, Universalism and
DemocracyA Comparative Analysis, ed. Christian Starck (Baden-Baden: Nomos Verlagsge-
sellschaft , 1999), 135, 139.
5. Article 28 (1) also requires the Lnder to embrace the principles of republican, demo-
cratic, 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 Mnch & Philip Kunig, 5th ed. (Munich: C. H. Becksche Verlagsbu-
chhandlung, 2000), 2:31431.
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 Ver-
lagsgesellschaft , 1991), 111, 126.
7. Brenner, supra note 4, at 146.
8. See German Bundestag, Questions of German History: Paths to Parliamentary Democ-
racy (Bonn: German Bundestag Public Relations Division, 1998); Ress, supra note 6, at
11518.
9. Basic Law, Article 38 (3).
10. Ress, supra note 6.
11. Volker Rben, 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 Untersuchungsausschsse, Neue Juristische Wochenschrift 40 (1987):
80812.
17. For a list and discussion of some thirty constitutional cases dealing with the rights of
parliamentary political parties (Fraktionen), see Gerald Kretschmer, Selbstndige Recht-
spersonen der Parlamentsrechts, Das Parlament, May 2229, 1992, 1214.
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, Germanys Volatile Greens, New York Times Magazine, Febru-
ary 13, 1983, at 37ff; Wilhelm Brklin, The German Greens: The Post-Industrial Non-
Establishment and the Party System, International Political Science Review 6 (1985): 46381; E.
Gene Frankland, The Role of the Greens in West German Parliamentary Politics, 19801987,
Review of Politics 50 (1988): 99122; Gerd Langguth, The Green Factor in German Politics (Boul-
der, Colo.: Westview Press, 1986); and Bernhard Flor, Verfassungsrechtliche Aspekte des Demokra-
tie- und Mandatsverstndisses der Grnen (Darmstadt: Dissertations Druck, 1986), 1024.
20. See Reinhard Brckner 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]: 247579;
Hwai-Tzong Lee, Chancengleichheit der politischen ParteienEine sich aus der Natur der
Sache ergebende Betrachtung [Munich: VVF-Verlag, 1994], 13243; Christof A. Hettich, Par-
teispenden und VerfassungsrechtDie verfassungsrechtlichen Vorgaben einer Spendenfinanzier-
ung politischer Parteien [Mannheim: JUPEC-Verlagsgesellschaft, 1989], 12427, 23639); and
Party Finance Case V, 73 BVerfGE 40 (1986) (regarding the decision, see Ernst-Wolfgang
Bckenfrde, Sondervotum zu BVerfGE 73, 40, Neue Juristische Wochenschrift 39 [1986]:
2494 97; Martin Morlok, Spenden-Rechenschaft-SanktionenAktuelle Rechtsfragen der
Parteienfi nanzierung, Neue Juristische Wochenschrift 53 [2000]: 76169; Hettich, supra, at
13847, 188 93, 24650). On 15 December 1983, the Court rejected the Green Partys applica-
tion for a temporary injunction against the Bundestags 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 Juris-
tische Wochenschrift 38 [1985]: 40813; Paul Kirchhof, Die Steuerung des Verwaltungshan-
delns durch Haushaltsrecht und Haushaltskontrolle, Neue Zeitschrift fr Verwaltungsrecht 2
[1983]: 50515; Helmuth Schulze-Fielitz, Gesetzgebung als materiales Verfassungsverfahren
Die Befugnisse des Vermittlungsausschusses und die Aufspaltung von Gesetzen, Neue
Zeitschrift fr Verwaltungsrecht 2 [1983]: 70917).
21. See Party Finance V Case, 73 BVerfGE 40 (1986). See Ernst-Wolfgang Bckenfrde,
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 Constitu-
tion of the Federal Republic of Germany, ed. Ulrich Karpen (Baden-Baden: Nomos Verlagsge-
sellschaft , 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 consid-
eration of bills, composed of Members of the Bundestag and the Bundesrat, be convened.
29. Geschftsordnung 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 fnfundfnfzigsten Deutschen Juristentages,
pt. P (Munich: C. H. Becksche Verlagsbuchhandlung, 1984), 2:9. See also Walter Schmitt
Glaeser, Das Bundesverfassungsgericht als Gegengewalt zum verfassungsndernden
Gesetzgeber?Lehren aus dem Diten-Streit 1995, in VerfassungsstaatlichkeitFestschrift
fr Klaus Stern zum 65. Geburtstag, ed. Joachim Burmeister (Munich: C. H. Becksche Ver-
lagsbuchhandlung, 1997), 1183 99; Horst Dietrich, Beamte als Abgeordnete und das Diten-
Urteil des Bundesverfassungsgerichts, Zeitschrift fr Beamtenrecht 74 (1976): 97105; Hans
H. Klein, Diten-Urteil und Diten-Streit Legendenbildung im Verfassungsrecht, in Pla-
nung- Recht- Rechtsschutz- Festschrift fr Willi Blmel zum 70. Geburtstag am 6. Januar 1999,
eds. Klaus Grupp & Michael Ronellenfitsch (Berlin: Duncker and Humblot, 1999), 22557;
Peter Hberle, Zum Diten-Urteil des BVerfG (BVerfGE 40, 296), in Kommentierte Verfas-
sungsrechtsprechung, ed. Peter Hberle (Knigstein: Athenum Verlag, 1979), 21532;
 776 Notes to Chapter Five
Christian-Friedrich Menger, Zur Kontrollbefugnis des Bundesverfassungsgerichts bei Ver-
fassungsbeschwerden gegen Rechtsnormen- zum Ditenurteil des BVerfG vom 5.11.1975,
Verwaltungsarchiv 67 (1976): 30315; Joachim Henkel, Anmerkung, Die ffentliche Verwal-
tung 28 (1975): 81921.
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 nulli-
fied state legislation providing for advisory referenda on equipping the Federal Armed Forces
(Bundeswehr) with atomic weapons. For a general discussion of the constitutional implica-
tions of the various forms of direct democracy, see Peter Krause, Verfassungsrechtliche
Mglichkeiten unmittelbarer Demokratie, in Handbuch des Staatsrechts (8 vols.), eds. Josef
Isensee & Paul Kirchhof (Heidelberg: C. F. Mller Juristischer Verlag, 1987), 2:231337.
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 Zulssigkeit des Volksentscheides nach dem Grundgesetz,
Juristenzeitung 33 (1978): 21723; 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 Associa-
tion. The participants were Professors Klaus Stern (University of Cologne), Ernst Benda
(Freiburg University), Christian Graf von Krockow (Gttingen University), Werner Mai-
hofer (Eu ropean University Institute [Florence]), and Christian Graf von Pestalozza (Free
University, Berlin). In Verhandlungen, supra note 31, at 548. Another spirited discussion
took place in the panel discussion at the meeting of the German Association of Municipal
and Local Government, in BrgerinitiativenWege oder Irrwege der Parlamentarischen De-
mokratie (Gttingen: Verlag Otto Schwartz, 1978). See also Klaus G. Troitzsch, Volksbegeh-
ren 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, Weit-
erentwicklung der verfassungsrechtlichen Rechtsprechung zum Plebiszit, Bayerische Ver-
waltungsbltter 136 (2005): 32132.
36. See also Peoples Ballot Case, 74 BVerfGE 96 (1986). An orga nization known as Ab-
stimmungsinitiative fr Volksentscheid (aiv) tried to qualify for a position on the ballot in
the federal elections of 25 January 1987. The groups main objective was to secure a referen-
dum that would allow citizens to vote on par ticu lar measures without regard to party identi-
fication. 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. Two-
thirds 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 six-
teen 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 fr den Deutschen Bundestag, in Der verfasste RechtsstaatFestgabe fr Karin Grahof,
eds. Gerd Pfeiffer, Udo Burgermeister & Gerald Roth [Heidelberg: C. F. Mller Juristischer
Verlag, 1998], 87108); and Ballot Admission Case, 3 BVerfGE 19 (1953) (regarding the deci-
sion, see Volker Nenstiel, Die Auswirkungen der Weimarer Wahlrechtsentwicklung auf die Recht-
sprechung des Bundesverfassungsgerichts [Frankfurt am Main: Peter Lang Verlag, 1992], 284
89; Joachim Lege, Unterschriftenquoren zwischen Parteienstaat und SelbstverwaltungDie
Rechtsprechung zum kommunalen Wahlvorschlagrecht [Berlin: Duncker and Humblot, 1996],
4348). The Ballot Admission Case (1953) nullified a provision of federal law requiring new par-
ties 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 re-
strictions on access to the ballot. In the Stoevesandt Case (1960), for example, the Court nul-
lified 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 rec-
ognized 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 mea-
sure. Declared the Court: The principle of equality means equal voting rights for all citi-
zens. In the field of election law the legislature enjoys only a narrow range of options. Dif-
ferentiations 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 Kontinuitt und Reform (Dsseldorf: Droste Verlag,
1985). A massive bibliography on German election law and electoral politics to that point ap-
pears at pages 383432. See also Heino Kaack, Zwischen Verhltniswahl und Mehrheitswahl
(Opladen: C. W. Leske, 1967). For a good description in English of the German election sys-
tem, see U. W. Kitzinger, German Electoral Politics (Oxford: Clarendon Press, 1960), 1737.
See also Wolfgang Schreiber, Handbuch des Wahlrechts zum Deutschen Bundestag, 7th ed.
(Cologne: Carl Heymann Verlag, 2002), 5053.
40. See, for example, Hans Rass, Die Mehrheitswahlund was darn?, Der Monat (Sept.
1965): 204; and Ferdinand A. Hermens, Das Wahlrecht und die politische Stabilitt, Die
Politische Meinung 4 (1959): 3343; also Kaack, supra note 39.
41. See Jesse, supra note 39, at 16471.
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 87108).
 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 14143. Regarding a comparison of the
Hare-Niemeyer and dHondtschen systems as exemplified by the Bavarian state parliamen-
tary election of 1986, see Lee, supra note 20, at 22631.
44. 6 BVerfGE 84 (1957) (regarding the decision, see Otto Uhlitz, Anmerkung, Die
ffentliche Verwaltung 10 [1957]: 718; Niebler, supra note 38, at 87108); 13 BVerfGE 127 (1961);
16 BVerfGE 130 (1963); 66 BVerfGE 291 (1984). Regarding Overhang Mandates in general,
see Niebler, supra note 38, at 87108.
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 14950.
47. Ibid., at 151.
48. Bundeszentrale fr politische Bildung, Hintergrund aktuellBundestagswahl
2009, available at www.bpb.de. See Streit um berhangmandate, 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 Janu-
ary 2012, Neue Zeitschrift Fr Verwaltungsrecht 31 (2012): 622.
53. 3 BVerfGE 45 (1953). See Karl-Heinz Hohm, Mandatsrotation und Grundgesetz
Zur verfassungsrechtlichen Problematik des Rotationsprinzips, Neue Juristische Wochen-
schrift 37 (1984): 165763; 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 fr Verwaltungsrecht 23 (2004):
7035; Helmut Nicolaus, Nachrckverfahren im Bundestag und berhangmandate, Juris-
tische Schulung 40 (2000): 436599.
54. 3 BVerfGE 45, 50 (1953). See also Territorial Reorga nization Case, 13 BVerfGE 54, 82
(1961) (regarding the decision, see Susanne Greulich, Lnderneugliederung und Grundgesetz
Entwicklungsgeschichte und Diskussion der Lnderneugliederungsoption nach dem Grundgesetz
[Baden-Baden: Nomos Verlagsgesellschaft, 1995], 7980).
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, Wahlgrundstze
und Wahlverfahren, in Isensee & Kirchhof, supra note 34, at 10:269311.
59. Deceased Overhang Mandate Case, 97 BVerfGE 317 (1998).
60. Gebhart Mller, minister-president of Wrttemberg-Hohenzollern, was one of those
who urged his fellow delegates in the Parliamentary Council to anchor the 5 percent mini-
mum threshold rule in the Basic Law; see Jesse, supra note 39, at 222. (Gebhart Mller be-
came 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), 22554; Gerhard Leibholz, Strukturprobleme der modernen Demokra-
tie, 3d ed. (Heidelberg: C. F. Mller Juristischer Verlag, 1967), 4154.
61. 1 BVerfGE 208, 24761 (1952) (regarding the decision, see Jrg Menzel, Verfassung-
srechtssprechung [Tbingen: J. C. B. Mohr (Paul Siebeck), 2000], 4955; Nenstiel, supra note
38, at 25777; Heinz-Christian Jlich, Chancengleichheit der Parteien-Zur Grenze staatlichen
 Notes to Chapter Five 779
Handelns gegenber den politischen Parteien nach dem Grundgesetz [Berlin: Duncker and
Humblot, 1967], 6377; Niebler, supra note 38, at 87108).
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 Black-
Green, in Germanys New Politics, eds. David Conradt et al. (Tempe, Ariz.: German Studies
Review, 1995), 177 92.
67. See All-German Peoples 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 Bundes-
republik 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 Fr Verwaltungsrecht 31 (2012) : 33.
71. See Schreiber, supra note 39, at 56162. See also David Nikolai Rauber, Wahlprfung in
DeutschlandMateriell-rechtliche Mastbe fr die Wahlprfung bei Parlamentswahlen und
Wahlen auf kommunaler Ebene (Baden-Baden: Nomos Verlagsgesellschaft, 2005), 48 60.
72. For an overview of the Courts jurisprudence under Article 41, see von Mnch, supra
note 5, at 2:55369.
73. Martin Morlock, Artikel 41, in Grundgesetz Kommentar (3 vols.), ed. Horst Dreier, 2d
ed. (Tbingen: J. C. B. Mohr [Paul Siebeck], 2006), 2:105970 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 Rdiger Schenke, Der gerichtliche Rechtsschutz im
Wahlverfahren, Neue Juristische Wochenschrift 34 [1981]: 244044); 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, Wahlprfung-
srecht als Veranschaulichungsbeispiel ffentlich-rechtlicher GrundsatzfragenBVerfG,
NJW 2001, 1048, Juristische Schulung 41 [2001]: 54549; and Eine stillschweigende
VerfassungsnovellierungZum Wahlprfungsurteil des BVerfG vom 8.2.2001, Neue Jurist-
ische Wochenschrift 54 [2001]: 103536).
76. Bush v. Gore, 531 U.S. 98 (2000). See Russell A. Miller, Lords of Democracy: The Ju-
dicialization 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): 26979. The change in the Electoral Act also extended the fran-
chise 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 Courts case law, see Marten Breuer, Verfassungsrech-
tliche Anforderungen an das Wahlrecht der Auslandsdeutschen (Berlin: Duncker and Humblot
Verlag, 2001), 83101.
81. Foreign Voters II Case, 83 BVerfGE 60 (1990) (regarding the decision, see Hans A.
Stcker, Der Binnen- und der Aussenaspekt der VolkssouvernittBemerkungen zu den
Urteilen des Bundesverfassungsgerichts zum Auslnderwahrrecht 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]: 30524; Klaus
Bumle, Anmerkung, Bayerische Verwaltungsbltter 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,
194989 (Washington, D.C.: German Historical Institute, 1995), 37. The theory of the Partei-
enstaat traces its origin to the work and advocacy of Gerhard Leibholz, a justice of the Con-
stitutional Court from 1951 to 1971. See Gerhard Leibholz, Der moderne Parteienstaat, in
VerfassungsstaatVerfassungsrecht, ed. Gerhard Leibholz (Stuttgart: Verlag W. Kohlham-
mer, 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: Univer-
sity of Chicago Press, 1958), 13858; Ilona K. Klein, Die Bundesrepublik als Parteienstaat
Zur Mitwirkung der politischen Parteien an der Willensbildung des Volkes 19451949 (Frank-
furt am Main: Peter Lang Verlag, 1991), 22435. In general, regarding the framing of the
Basic Law, see Klaus Krger, Die Entstehung des Grundgesetzes, Neue Juristische Wochen-
schrift 42 (1989): 131824; Hans-Peter Schneider, 50 Jahre GrundgesetzVom west-
deutschen Provisorium zur gesamtdeutschen Verfassung, Neue Juristische Wochenschrift 52
(1999): 1497504.
87. 1 BVerfGE 208, 24041 (1952).
88. See also 44 BVerfGE 125, 145 (1977); 44 BVerfGE 52, 63 (1979). See Karl-Heinz Ladeur,
Anmerkung, Deutsches Verwaltungsblatt 99 (1984): 22425; Peter Hberle, ffentlichkeit-
sarbeit der Regierung zwischen Parteien- und Brgerdemokratie, Juristenzeitung 32 (1977):
36171.
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 po-
litical parties. The Constitutional Court chose the Organstreit procedure over the constitu-
tional 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), 915.
91. The Basic Laws 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 Councils leading pariticipants, Georg August Zinn, was quoted as
saying that the proposition that parties should be supported by the state was absolutely un-
imaginable to us back then. See Ulrich Dbber, 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 Hberle, Unmittelbare
staatliche Parteifi nanzierung unter dem GrundgesetzBVerfGE 20, 56, in Kommenti-
erte Verfassungsrechtsprechung, ed. Peter Hberle (Knigstein: Athenum 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 BVer-
fGE 134 (1966). For a detailed analysis of Party Finance III (1966), see Henning Zwirner, Die
Rechtsprechung des Bundesverfassungsgerichts zur Parteifi nanzierung, Archiv des ffentli-
chen Rechts 93 (1968): 81135. See also Peter Hberle, Unmittelbare staatliche Parteifi nan-
zierung unter dem GrundgesetzBVerfGE 20, 56, Juristische Schulung 7 (1967): 6474;
Dimitris Tsatsos, Die Finanzierung politischer ParteienDie Urteile des deutschen
Bundesverfassungsgerichts vom 19. Juli 1966 zur Frage der Zulssigkeit staatlicher Parteifi-
nanzierung, Zeitschrift fr auslndisches ffentliches Recht und Vlkerrecht 26 (1966): 37187.
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): 22341.
96. For a fuller discussion of this case, see ibid., 22841.
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),
91332.
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 Grund-
lagen und parteigesetzliche Rechtsfragen, Juristische Ausbildung 22 (2000): 393400; Karl-
Heinz Seifert, Die politischen Parteien im Recht der Bundesrepublik Deutschland (Cologne:
Carl Heymanns Verlag, 1975), 4852.
99. For a general discussion of these steadily mounting subsidies, see Christine Land-
fried, Parteifinanzen und politische Macht (Baden-Baden: Nomos Verlagsgesellschaft, 1990),
91117; Georg Vanberg, The Politics of Constitutional Review in Germany (Cambridge: Cam-
bridge University Press, 2005), 14367; 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), 2846 and 5481.
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 Republics fi rst and long-serving chancellor, and the csu in mem-
ory of Bavarias minister president from 1957 to 1960. Years later, when the Green Party and
Left Party (Die Linke, successor to East Germanys old Party of Democratic Socialism) en-
tered Parliament, the Heinrich Bll and Rosa Luxemburg Foundations were created to rep-
resent their respective interests.
101. The raw data are contained in Arnim, supra note 99, at 363370. See also Arthur B.
Gunlicks, Campaign Finance in the West German Party State, Review of Politics 50 (1988):
3049; 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 districts 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 ques-
tion 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 ques-
tionable 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 minis-
ters 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 BVer-
fGE 100 (1984).
107. 52 BVerfGE 63, 65 (1979).
108. 73 BVerfGE 40 (1986).
109. Ibid., 10317.
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 fr Verwaltungsrecht 13 (1994):
21824; Horst Sendler, Verfassungsmige Parteifi nanzierung?, Neue Juristische Wochen-
schrift 47 (1994): 36567; Jrn Ipsen, Globalzuschsse statt Wahlkampfkostenerstattung,
Juristenzeitung 47 (1992): 753808.
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 abso-
lute limits on state funding. Its detailed enumeration of permissible and impermissible fund-
ing and fund-raising approached the level of judicial micromanagement of political fi nanc-
ing 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): 10121.
115. Weinheim Voters 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): 11012; Andreas Ransiek, Ver-
stecktes Parteivermgen und Untreue, Neue Juristische Wochenschrift 60 (2007): 172730.
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 Ver-
waltungsblatt 117 (2002): 1065144.
118. The full text of the 2004 Political Parties Act as amended is included in Becksche Tex-
tausgaben: Grundgesetz, 58th ed. (Munich: C. H. Becksche Verlagsbuchhandlung, 2007),
32751.
 Notes to Chapter Five 783
119. German Bundestag, Questions on German History, supra note 8.
120. See Steven Ozment, A Mighty FortressA New History of the German People (New
York: Perennial, 2005), 27172.
121. German Bundestag, Questions on German History, supra note 8. See Verordnung des
Reichsprsidenten zum Schutz von Volk und Staat [Order of the Reich President for the Pro-
tection 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 min-
istries held by his party by arresting and intimidating opponents before calling for new elec-
tions. Despite rampant intimidation of other parties and their candidates by the now un-
checked 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 Hindenburgs 49
percent, rising to 3753 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, 19331945: Eine Bilanz, eds. K. D. Bracher et al. (Ds-
seldorf: Droste, 1983), 16 (quoting Joseph Goebbels, translation from Andras Saj, 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: Uni-
versity of Chicago Press, 1994): 213 (Militant democracy represents the most startling as-
pects 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 RightsPart I, American Political Science Review 31 (1937): 417 (A virtual state
of siege confronts European democracies. State of siege means, even under democratic consti-
tutions, 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 RightsPart II, American Political Sci-
ence Review 31 (1937): 638. See also Max Lerner, It Is Later Than You ThinkThe Need for a Mili-
tant Democracy (New Brunswick, N.J.: Transaction Publishers, 1989); Karl Mannheim, The
Th ird Way: A Militant Democracy, in Collected Works of Karl MannheimDiagnosis of Our
Time, ed. Karl Mannheim (London: Routledge, 1943): 3:4; Militant Democracy, ed. Andrs Saj
(Utrecht: Eleven International Publishing, 2004); The Militant Democracy Principles in Mod-
ern Democracies, ed. Markus Th iel (Surrey, U.K.: Ashgate, 2009); Michel Rosenfeld, A Plural-
ist 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; Ger-
hard Leibholz, Freiheitliche demokratische Grundordnung und das Bonner Grundgesetz, in
Grundprobleme der Demokratie, ed. Ulrich Matz (Darmstadt: Wissenschaft liche Buchgesell-
schaft, 1973); Johannes Lameyer, Streitbare Demokratie: Eine verfassungshermeneutische Unter-
suchung (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 Democ-
racies, 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; Ju-
dith 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 Germanys 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), 665.
135. Niesen, supra note 130, at 10 (quoting 2 BVerfGE 1, 12 [1952]his translation);
Markus Th iel, Zur Einfhrung: Die wehrhafte Demokratie als verfassungsrechtliche
Grundentscheidung, in Wehrhafte Demokratie, ed. Markus Th iel (Tbingen: J. C. B. Mohr
[Paul Siebeck], 2003), 124.
136. 5 BVerfGE 85 (1956). For commentaries on the Communist Party Case, see Edward
McWhinney, The German Federal Constitutional Court and the Communist Party Deci-
sion, Indiana Law Journal 32 (1957): 295312; and Paul Franz, Unconstitutional and Out-
lawed Political Parties: A German-American Comparison, Boston College International and
Comparative Law Review 5 (1982): 5189; Helmut Ridder, Aktuelle Rechtsfragen des kpd-
Verbots (Berlin: Luchterhand Verlag, 1966), 913. For an extremely critical view of the case,
see Wolfgang Abendroth, Das kpd-Verbotsurteil des Bundesverfassungsgerichts, in An-
tagonistische 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-UrteilEine
Anti-FestschriftProbleme des Kampfes um Freiheit und Demokratie, ed. Karl Pfannen-
schwarz (Frankfurt am Main: Marxistische Bltter Verlag, 1976), 5055. For a discussion of
the kpd and srp cases together, see Lars Flemming, Das npd-VerbotsverfahrenVom Auf-
stand der Anstndigen zum Aufstand der Unfhigen (Baden-Baden: Nomos Verlagsgesell-
schaft, 2005), 3445.
137. Donald P. Kommers, Judicial Politics in West Germany (Beverly Hills, Calif.: Sage Pub-
lications, 1976), 190 91.
138. Niesen, supra note 130, at 10.
139. 5 BVerfGE 85, 14142 (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 Socialisms crimes. The left-right equidistance
 Notes to Chapter Five 785
expressed by militant democracy [as implemented by the Socialist Reich Party and Commu-
nist Party cases] buttressed an equal valuation of crimes committed by and against the Ger-
man 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. Jrgen Weber, Germany 19451990: 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 Anwlte: Strbele, Mahler, SchilyEine deutsche
Geschichte (Cologne: Fackeltrger-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 Germanys Far Right, The Economist (Mar. 15, 2001).
161. Felix Hanschmann, Federal Constitutional Court to Review npd Party Ban Mo-
tion, German Law Journal 2/17 (Nov. 1, 2001), available at www.germanlawjournal.com/article
.php?id=104. See also Kathrin Groth, Der npd-Verbotsantrageine Reanimation der stre-
itbaren Demokratie?, Zeitschrift fr Rechtspolitik 33 (2000): 500505; Rudolf Wassermann,
Aktivierung der wehrhaften DemokratieZum Antrag auf NPD-Verbot, Neue Juristische
Wochenschrift 53 (2000): 376063; Ingo von Mnch, Der Aufstand der Anstndigen?,
Neue Juristische Wochenschrift 54 (2001): 72833.
162. Bundesverfassungsgericht (BVerfG) (Federal Constitutional Court), 2 BvB 1/01 from
July 3, 2001 (regarding the decision, see Martin Morlok, Parteiverbot als Verfassungsschutz
Ein unauflsbarer Widerspruch?, Neue Juristische Wochenschrift 54 [2001]: 293141).
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 Jrn Ipsen, Rechtsfragen des npd-
Verbots, 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 FiveSix
167. Felix Hanschmann, Another Test in Proceduralizing Democracy: The Oral Pro-
ceedings 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 Mller, ReportBundesverfassungsgericht (Federal Constitutional
Court)2003, in Annual of German & European Law2004, eds. Russell A. Miller & Peer
C. Zumbansen (Oxford: Berghahn Books, 2006), 333.
170. Rensmann, supra note 158, at 1130.
171. Ibid., at 112829.
172. Ibid.
173. Ibid.

chapter six
1. Klaus Vogel, Verfassungsentscheidung des Grundgesetzes fr eine internationale Zusam-
menarbeit (Tbingen: J. C. B. Mohr [Paul Siebeck], 1964), 10, 35; Stephan Hobe, Der offene
Verfassungsstaat zwischen Souvernitt und Interdependenz (Berlin: Duncker and Humblot,
1996).
2. See Vogel, supra note 1. See also Rudolf Geiger, Grundgesetz und Vlkerrecht, 4th ed.
(Munich: C. H. Becksche Verlagsbuchhandlung, 2009), 12.
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, Juristen-
zeitung 22 (1973): 594, 596; Dieter Wilke & Gerd H. Koch, Auenpolitik nach Anweisung
des Bundesverfassungsgerichts? Bemerkungen zur Bindungswirkung des Grundvertrags-
Urteils (Anmerkung zu: BVerfG, U. v. 31.07.1973 - 2 BvF 1/73 - = BVerfGE 36, 1), Juristen-
zeitung 24 (1975): 233; Adalbert Podlech, Logische und hermeneutische Probleme einer
neueren Tenorierungspraxis des Bundesverfassungsgerichts, Die ffentliche Verwaltung
26 (1974): 337; Meinhard Schrder, Zur verfassungskonformen Auslegung vlkerrechtli-
cher Vertrge, Juristische Rundschau 49 (1974): 182, 183; Otto Kimminich, Das Urteil
ber die Grundlagen der staatsrechtlichen Konstruktion der Bundesrepublik Deutsch-
land (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 In-
ternational 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.
(Tbingen: 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 sover-
eignty 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 nonethe-
less 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 ap-
proaches, 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, Vlkerrecht
und staatliches Recht, in Vlkerrecht, ed. Graf Vitzthum, 4th ed. (Berlin: De Gruyter, 2007),
99; Oppenheims International Law, eds. R. Jennings & A. Watts, 9th ed. (Oxford: Oxford
University Press, 1992), 53; Torsten Stein & Christian von Buttlar, Vlkerrecht, 12th ed. (Co-
logne: Carl Heymanns, 2009), 57; Volker Rben, Auenverfassungsrecht (Tbingen: J. C. B.
Mohr [Paul Siebeck], 2007), 66.
12. Hugo J. Hahn, Review of G. Boehmers Der vlkerrechtiche 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 15564; Hilf, supra note 6, at 18184.
13. Grgl 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. Grgl Case, 111 BVerfGE 307, 318 (2004).
15. Margot Horspool & Matthew Humphreys, European Union Law, 5th ed. (Oxford: Ox-
ford University Press, 2008), 197.
16. Grgl 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.
(Tbingen: 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.
(Tbingen: 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 im-
plementation 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 Medelln 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: Uni-
versity of Pennsylvania Press, 2006).
29. Article 53 of the Vienna Convention of the Law of Treaties. See Malcolm Shaw, Inter-
national Law, 5th ed. (Cambridge: Cambridge University Press, 2003), 11719.
30. Land Reform III Case, 112 BVerfGE 1, 25 (2004).
31. See Hartwig, supra note 13, at 869; Felix Mller & Tobias Richter, Report on the Bundes-
verfassungsgerichts (Federal Constitutional Courts) Jurisprudence in 2005/2006, German
Law Journal 9 (2008): 161, 16869, available at www.germanlawjournal.com/pdfs/Vol09No02
/PDF_Vol_09_No_02_161-194_Developments_Mueller.pdf; Christian Tomuschat, The Ef-
fects 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 Lbbe-Wolff, echr and National JurisdictionThe Grgl Case, Hum-
boldt 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, Fed-
eral Constitutional CourtChamber 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 GermanyThe 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
CourtChamber Decision of 4 February 2010 (2 BvR 2307/06), available at www.bundes-
verfassungsgericht.de/entscheidungen/rk20100204_2bvr230706.html.
34. See Tomuschat, supra note 31.
35. Preventive Detention I Case, 109 BVerfGE 133 (2004) (regarding the decision, see An-
drew 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, In-
compatible 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 appli-
cable 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 NoteRetrospective Preventive Detention in Ger-
many: 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 LovePreventive 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 Europes 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 orders establishment. Th is
autonomy of the legal order corresponds to Monnets conception for the Communitys
political-administrative system. Armin von Bogdandy, Constitutional Principles, in Prin-
ciples of European Constitutional Law, eds. Armin von Bogdandy & Jrgen Bast (Oxford:
Hart Publishing, 2007), 3, 3435.
43. 37 BVerfGE 271 (1974). See Carl Lebeck, National Constitutionalism, Openness to
International Law and the Pragmatic Limits of European IntegrationEuropean Law in the
German Constitutional Court from eec to the pjcc, German Law Journal 7 (2006): 907,
91415, 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. Jrgen 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 (19961997): 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 & Mat-
thew Humphreys, European Union Law, 6th ed. (Oxford: Oxford University Press, 2010),
17883; Solange I Case, 37 BVerfGE 271, 278 (1974).
48. Solange I Case, 37 BVerfGE 271, 27879 (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 Vokuhle, Multi-
level Cooperation of the European Constitutional CourtsDer Europische Verfassungsgeri-
chtsverbund, 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 Dia-
logue, 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 56.
 790 Notes to Chapter Six
52. Paul Craig & Grnnie de Brca, eu LawText, 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), 13941.
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 Declara-
tion 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 tra-
ditions common to the Member States and from international human rights treaties, espe-
cially the Eu ropean Convention for Human Rights. Case 4/73, Nold v. Commission, 1974
E.C.R. 491.
56. Ibid.
57. Miriam Aziz, Sovereignty ber 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 Europischen Gemeinschaft und die Verfassungsrechtsprec-
hung, Archiv des ffentlichen Rechts 100 (1975): 30, 5051. See Hans-Uwe Erichsen, Bundes-
verfassungsgericht und Gemeinschaft sgewalt, Verwaltungsarchiv 66 (1975): 177.
59. Th is included West Germanys fi rst (and long-serving) chancellor, Konrad Adenauer
of the center-right Christian Democratic Union. See Frank Schorkopf, Der Europische Weg
(Tbingen: J. C. B. Mohr [Paul Siebeck], 2010), 6, 1314. 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, 53741. 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 UnionThe Maastricht Decision of the Bundes-
verfassungsgericht, 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 unani-
mously 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 constitu-
tionally facilitate German reunification, by having the newly created Lnder in the disinte-
grating 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 146apparently requiring a wholly new constitutional undertaking at
the hoped-for time of reunificationwas 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 Lnder 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-Drig Grundgesetz, eds. Roman Herzog et al.,
60th supplement (Munich: C. H. Becksche 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 & Jrgen Bast (Ox-
ford: Hart Publishing, 2007), 765, 778. Th is view is disputed. See Christoph Schnberger,
Die Europische Union als Bund. Zugleich ein Beitrag zur Verabschiedung des Staatenbund-
Bundesstaat-Schemas, Archiv des ffentlichen 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 associa-
tion (Article 9 (1)), the right to choose ones 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 Deutsch-
land, eds. Paul Kirchhoff & Josef Isensee (Heidelberg: C. F. Mller Juistischer Verlag, 1993),
855.
69. The Union shall respect fundamental rights, as guaranteed by the Eu ropean Conven-
tion 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 Brca, 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 Bundesverfassungsgerichts Bananas Judgment, Columbia Journal of
European Law 9 (20022003): 109.
78. 113 BVerfGE 273 (2005). See Der Europische Haftbefehl vor dem Bundesverfassungsgeri-
cht, ed. Frank Schorkopf (Tbingen: J. C. B. Mohr [Paul Siebeck], 2006); Oreste Pollicino,
European Arrest Warrant and Constitutional Principles of the Member States: A Case
LawBased 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 Courts First Senate later ruled that member states also have dis-
cretion 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 (sol-
ange) the constitutional state principle is observed.
81. The Courts 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, 31015 (2005).
82. Ibid., 300.
83. Lebeck, supra note 43, at 931. For discussions of the Eu ropean Unions entry into the
criminal law field under its third pillar, traditionally the jealous preserve of national sover-
eignty, 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 LawA 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 Gentle-
men, 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 state-
orientation of Article 20 (1) of the Basic Law. See Paul Kirchhof, Die Identitt der Verfas-
sung, in II Handbuch des Deutschen Staatsrechts, eds. Gerhard Anschtz & Richard Thoma,
3d ed. (Tbingen: J. C. B. Mohr [Paul Siebeck], 2003), 21 mn. 69 (arguing that Germanys
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 ro-
pean 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
Mny & J. H. H. Weiler (San Domenico, Italy: Eu ropean University Institute, 2000), 19.
87. Jrgen Habermas, Why Europe Needs a Constitution, New Left Review 11 (Sept./
Oct., 2001): 5, 1619 (referring to what he calls a catalytic constitution).
88. Maria Cahill, Irelands Constitutional Amendability and Eu ropes 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 Bundes-
verfassungsgericht, ed. Karen Kaiser (Heidelberg: Springer, 2011); Franz C. Mayer, Rashomon
in KarlsruheReflection on Democracy and Identity in the European Union, International
Journal of Constitutional Law 9 (2011): 757. For criticism of the Courts decision, see Christian
Tomuschat, The Ruling of the German Constitutional Court on the Treaty of Lisbon, Ger-
man 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 Mllers, 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 SixSeven 793
_Vol _10 _No _08 _1241 -1258 _Lisbon %20Special _Halberstam %20and %20Mollers .pdf;
Christoph Schnberger, Lisbon in Karlsruhe: Maastrichts 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 Courts de-
cision, see Frank Schorkopf, The European Union as an Association of Sovereign States:
Karlsruhes 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 Trans-
forming 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, 37576 (1986).
92. Lisbon Treaty Case, 123 BVerfGE 267, 35354 (2009).
93. Alfred Grosser, The Federal Constitutional Courts Lisbon Case: Germanys
SonderwegAn Outsiders 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 Framethe Ultra Vires Decision of the German Federal Constitu-
tional 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 60From 1949 to 2009: The Basic Law
and Supranational Integration, German Law Journal 11 (2010): 99, 11012, 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
Schbel-Pfister, Der ungeschriebene Verfassungsgrundsatz der Europarechtsfreundlich-
keit: Trick or Treat?, in II Linien der Rechtsprechung des Bundesverfassungsgerichts, eds. Ari-
ane 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 declarations 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 Menschenwrde als Grundlage der staatlichen Gemeinschaft ,
in Handbuch des Staatsrechts der Bundesrepublik Deutschland (8 vols.), eds. Josef Isensee &
Paul Kirchhof (Heidelberg: C. F. Mller Juristischer Verlag, 1987), 1:815 61. See also Karl
Doehring, Staatsrecht der Bundesrepublik Deutschland, 3d ed. (Frankfurt am Main: Alfred
Metzner Verlag, 1984), 28084.
 794 Notes to Chapter Seven
3. See Erhard Denninger, Verfassungsrechtliche Schlsselbegriffe, in Festschrift fr Ru-
dolf 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 fol-
lows 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), 17580.
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 Laws
human dignity clause.
7. 119 BVerfGE 1 (2007).
8. Ibid., at 30.
9. Ibid., at 3758.
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 natural-
law tradition. See, for example, Josef Wintrich, Die Bedeutung der Menschenrechten fr
die Anwendung des Rechts, Bayerische Verwaltungsbltter 5 (1957): 13740; Willi Geiger,
Gesetz ber das Bundesverfassungsgericht (Berlin: Verlag Franz Vahlen GmbH, 1952), 134;
Ernst Benda, Werner Maihofer & Hans-Jochen Vogel, Die Menschenwrde, in Handbuch
des Verfassungsrechts (2 vols.) (Berlin: Walter de Gruyter, 1984), 1:110; Christian Starck,
Menschenwrde als Verfassungsgarantie im modernen Staat, Juristenzeitung 36 (1981):
45764; and Article 1 (1), in Grundgesetz: Kommentar, eds. Theodore Maunz, Gunter Durig
& Roman Herzog, 3d ed. (Munich: C. H. Becksche Verlagsbuchhandlung, 1973), 3. Win-
trich, 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): 17882. See also Peter Badura, Generalprvention und Wrde
der Menschen, Juristenzeitung 19 (1964): 33744.
12. See Winfried Brugger, Elemente verfassungsliberaler Grundrechtstheorie, Juristen-
zeitung 42 (1987): 63340.
13. 30 BVerfGE 173, 193 (1971).
14. 4 BVerfGE 7, 1516 (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 constitu-
tionalism. In Fletchers view, this overemphasizes Kants individualistic legal theory to the
neglect of his communitarian moral theory. Fletcher sees the Basic Law as an effort to in-
tegrate Kants communitarian moral theory into a liberal legal order. Fletcher, supra note 11,
at 17172.
16. Robert H. Wieber, Lincolns Fraternal Democracy, in Abraham Lincoln and the
American Political Tradition, ed. John L. Thomas (Amherst: University of Massachusetts
Press, 1986), 1130.
 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
Menschenwrde, 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): 26567.
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 con-
victed 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 offenders crime, notwithstanding the offenders advanced age, the serious
condition of his health, and his exemplary prison record. The Second Senate, over the dissent-
ing opinion of Justice Mahrenholz, ruled that the lower courts 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 15156.
32. 109 BVerfGE 190 (2004).
33. Ibid. The senate held that the Lnder violated Article 74 (1) [1] of the Basic Law for in-
terfering with the federal governments authority over criminal law, construed to include
punishments such as preventive detention.
34. The senate decided 53 to keep the Land laws in force and the complainants in deten-
tion for a limited period to give the Lnder time to promulgate local regulations in strict com-
pliance with constitutional standards and without interfering with federal authority. The de-
cision 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, 24455. For an informative discussion of Preventive Detention II, see Frieder
Dnkel 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): 519637, 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 poli-
cies to remain in force for a transitional perioduntil 31 May 2013to give the legislature
time to bring them into conformity with both domestic and international law. Unlike Pre-
ventive Detention II, the opinion was unanimous.
 796 Notes to Chapter Seven
37. Honecker Case, Berlin Constitutional Court, VerfGH 55/92, Europische Grundrechte
Zeitschrift 20 (1993): 48.
38. See Bruno Schmidt-Bleibtreu & Franz Klein, Kommentar zum Grundgesetz fr die
Bundesrepublik Deutschland, 5th ed. (Neuwied: Hermann Luchterhand Verlag, 1980),
14143.
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, guaran-
tees 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. Martins Press, 1977),
46667.
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 Ver-
handlungen des 53. Deutschen Juristentages (Berlin: 1980), I:129.
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 Abor-
tion Cases in Comparative Perspective, Brigham Young Law Review 1985 (1985): 371409.
See also Winfried Brugger, A Constitutional Duty to Outlaw Abortion? A Comparative
Analysis of the American and German Abortion Decisions, Jahrbuch des ffentlichen Rechts
der Gegenwart 36 (1987): 4966.
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), 556607.
46. See Brugger, supra note 43, at 5055. For a comprehensive discussion of the American
jurisprudence, see Laurence H. Tribe, American Constitutional Law, 2d ed. (Mineola, N.Y.:
Foundation Press, 1988), 133762.
47. See Brggemann 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 (Tbingen: Deutsche
Gesellschaft Elie Verhaltenstherapie, 1985).
50. Susanne Walther, Thou Shalt Not (but Thou Mayest): Abortion after the German
Constitutional Courts 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 Unifi-
cation, ed. Christopher Anderson et al. (Boulder, Colo.: Lynne Rienner, 1993), 14243.
52. Section 13 of the Pregnancy and Family Assistance Act amended 218 and 219 of the
German Penal Code. These amended sections (nderung 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 Constitu-
tional Law of Abortion in Germany: Should Americans Pay Attention?, Journal of Contem-
porary Health Law and Society 10 (1994): 132; 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): 273314; and Walther, supra note 50, at 384402.
58. Bavarian Pregnancy Assistance Amendment Act (Bayerisches Schwangerenhilfeergn-
zungsgesetz), 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 Bavarias
Pregnancy Assistance Act. See Bavarian Abortion I Case, 96 BVerfGE 120 (1997), and Bavar-
ian 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 Lnder 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 Glendons 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 Fed-
eral 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.german-
lawjournal .com /pdfs/Vol07No09/PDF_Vol _07_No _09_761-776 _Developments _Lep-
sius.pdf.
68. In addressing several of these issues, the Federal Parliament has proceeded with cau-
tion, 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 permit-
ted surrogate motherhood agreements subject to the reservation that the identity of all par-
ties be properly and fully documented. For its part, the Federal Constitutional Court has left
most of these issues untouched, except for admonishing legislatorswith respect to organ
donations in particularthat persons retain control over their bodies in conformity with
the principles of consent and self-determination as informed by the principle of human dig-
nity. 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 discontinu-
ance 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 notewor-
thy, too, that in the Muscular Dystrophy Case the Constitutional Court held that it is incom-
patible with the personality and right-to-life clauses of Article 2considered in tandem
with the social state clausefor 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 21516.
73. Ibid., at 23440.
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 Courts interpretation of the
personality clause, see R. Scholz, Das Grundrecht der freien Entfaltung der Personlichkeit
in der Rechtsprechung des Bundesverfassungsgerichts, Archiv des ffentlichen Rechts 100
(1975): 80130, 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 28485.
77. Some commentators, such as Hans Peters, have adopted a narrower view of the per-
sonality 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 be-
fore 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 Persnlichkeitskerntheorie.
See Hans Peters, Das Recht auf freie Entfaltung der Persnlichkeit in der hchstrichterlichen Recht-
sprechung (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): 481530.
78. 90 BVerfGE 145 (1994).
79. 90 BVerfGE 263 (1994).
80. The right to personality, incidentally, has not been confi ned to natural persons. Free-
dom 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 casethe Public Assembly Case (20 BVerfGE 150 [1956])
the Court held that freedom of action protected by Article 2 (1) was violated by a standard-
less and arbitrary denial of license to an orga nization wishing to assemble in public and so-
licit 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, 33940 (1994).
88. Census Act Temporary Injunction Case, 64 BVerfGE 67 (1983).
89. Widows Child Welfare Case, 1 BVerfGE 97 (1951).
90. Donald P. Kommers, Fundamental Rights: A Comparative Analysis (Lecture pre-
sented at the Center for Contemporary German Studies, Johns Hopkins University, Wash-
ington, 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 doctors records on a
patient facing a criminal trial. Medical Confidentiality Case, 32 BVerfGE 373 (1972). Even
the publics 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 de-
clined 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 ac-
cused.) 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 Kck v. Germany (2003), 37 EHRR 51.
101. In the well-known Klass Case, 30 BVerfGE 1 (1970), the Constitutional Court sus-
tained the validity of the amendment over the objection of Hesses 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 10s 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 Beschrnkung des Brief-, Post- und Fernmeldegeheimnisses in der Fas-
sung des Gesetzes zur nderung des Strafgesetzbuches, der Strafprozessordnung und an-
derer Gesetze (Verbrechensbekmpungsgesetz) [Crime Control Act], of 28 October 1994,
BGBl. I:3186, gendert 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 38182.
107. 109 BVerfGE 279 (2004).
108. The amendment to Article 13, together with laws adopted to carry out the surveil-
lance, were challenged under the eternity clause of Article 79 (3) for infringing the funda-
mental 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 4445. 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 re-
sulted in an acoustical surveillance of a private home. For an excellent discussion of this
case in English, see Jacqueline R. Ross, Germanys Federal Constitutional Court and the
Regulation of gps Surveillance, German Law Journal 6 (2005): 180512, 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 consti-
tutional 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 employ-
ment of military weapons against a passenger plane. See Jochen von Bernstorff, Pflichtenkol-
lision und Menschenwrdegarantie. 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 37181.
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 Crim-
inal Procedure enacted in 2007 to satisfy a European Community Directive.
123. Ibid., at 31719.
124. Schmidt-Bleibtreu & Klein, supra note 38, at 16768.
125. 5 BVerfGE 13 (1956).
126. See Decision of Federal Administrative Court, 9 BVerwGE 78 (1959); and Neue Juris-
tische 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 Re-
view 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 complaintan unusually detailed eighty-
nine-page typewritten briefon 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. Kants categorical imperative[a]ct only according to the maxim by
which you can at the same time will that it should become universal lawwas 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, Wrttemberg, and Hessen in particularadopted between 1808 and 1820. It ap-
peared as a major principle of constitutional governance in Articles 134 and 137 of the Frank-
furt 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 (Arti-
cle 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 ac-
counts of equality in contemporary German constitutionalism, see Paul Kirchhof, Der
allgemeine Gleichheitssatz, in Handbuch des Staatsrechts, eds. Paul Kirchhof & Josef Is-
ensee (Heidelberg: C. F. Mller Juristischer Verlag, 1992), 5:837 972; Michael Sachs, Beson-
dere Gleichheitsgarantien, in Handbuch des Staatsrechts, eds. Paul Kirchhof & Josef Isensee
(Heidelberg: C. F. Mller Juristischer Verlag, 1992), 5:101784; Lerke Osterloh, Kommen-
tierung zu Art. 3 GG, in Grundgesetz Kommentar, ed. Michael Sachs, 3d ed. (Munich: C. H.
Becksche 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 gov-
ernment under the Fift h Amendments 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 Courts jurisprudence in this
field. See Gerhard Leibholz, Die Gleichheit vor dem Gesetz, 2d ed. (Munich: C. H. Becksche
Verlagsbuchhandlung, 1959). Justice Leibholzs understanding of the equality rule, in turn,
relied heavily on Swiss and American precedents, which had developed the rationality [arbi-
trariness] test in equality cases. See Michael Sachs, The Equality Rule Before the German
Federal Constitutional Court, St. LouisWarsaw 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, 42526 (1961) (The constitutional safeguard is offended only if a
classification rests on grounds wholly irrelevant to the achievement of the states objec-
tive. . . . 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): 9971033.
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 84446.
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 fr die
Bundesrepublik Deutschland: Kommentar Rechtsprechung Des Bundesverfassungsgericht (Co-
logne: Dr. Otto Schmidt, 2006), Rz (marginal notes) 26013023.
155. For an excellent treatment of Germanys patriarchal tradition, see Gordon Craig, The
Germans (New York: G. P. Putnams Sons, 1982), 14769.
156. See 3 BVerfGE 225, 23748 (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 BVer-
fGE 9, 1112 [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, 5253 [1960]). In a series of social security cases, the Court also sus-
tained laws advantaging men in the allocation of death and retirement benefits. See, respec-
tively, Orphans Pension Case, 17 BVerfGE 1, 1726 (1963) and Social Security III Case, 48
BVerfGE 346 (1978). See also Social Security II Case, 43 BVerfGE 213, 22530 (1977) (re-
quiring 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 Mnch & Philip
Kunig, Grundgesetz Kommentar, 5th ed. (Munich: C. H. Becksche 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), 129230.
160. Arbeitsrechtliches EGAnpassungsgesetz [Employment LawEuropean Com-
munity 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 husbands citizenship) and Common Marital
Name Case, 84 BVerfGE 9 (1991) (nullifying a law requiring the husbands 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), 32832.
162. 85 BVerfGE 191, 207 (1992). For an exhaustive account of statutory and jurispruden-
tial 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 Ger-
man 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: Les-
sons from the German Experience, Cardozo Womens Law Journal 3 (1996): 22930.
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, 20910 (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): 34754. 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 fr Paritt im Geschlechterverhalt-
nis (Berlin: Duncker & Humblot, 1988).
171. 74 BVerfGE 163 (1987).
172. 85 BVerfGE 191, 2067 (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 Mnnern [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 Ministerprsident, 2000 E.C.R. I-1875.
182. Anke M. Stock, Affi rmative Action: A German Perspective on the Promotion of
Womens 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 anti-
discrimination law emerging at present. Paul Craig & Grainne de Burca, eu LawText,
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 SevenEight
values of the Union while at the same time includ[ing] among the Unions 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 ecjs fi rst tentative steps toward a more substantive
conception of equality. In traveling the distance from Kalanke to Marschall, the positive ac-
tion 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 r-
mative Action Discourse and Constitutional Equality in Germany and the U.S.A., Colum-
bia 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.
Becksche 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, 73039; 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 Vlkerrecht als Rechtsordnung, Internationale Gerichtsbarkeit, Menschen-
rechte, Festschrift fr Hermann Mosler, eds. Rudolf Bernhardt et al. (Berlin: Springer Ver-
lag, 1983), 913.
2. Ibid.
3. For a comprehensive overview of the Federal Constitutional Courts decisions, see
Walter Schmitt-Glaeser, Die Meinungsfreiheit in der Rechtsprechung des BVerfGE, Ar-
chiv des ffentlichen Rechts 97 (1972): 60123. See also Christian Starck, Meinungs- und
Wissenschaftsfreiheit, in Festschrift fr Wolfgang Zeidler (Berlin: Walter de Gruyter, 1987),
153959. 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), 17388.
4. Barenblatt v. United States, 360 U.S. 109 (1959) (Black, J., dissenting).
5. See Helmut Goerlich, Wertordnung und Grundgesetz (Baden-Baden: Nomos Verlagsge-
sellschaft , 1973), 5160.
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 Tenants 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 Courts view
ofthe relationship between constitutional and private law. According to the most authori-
tative account of the Councils 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), 1:3442. The other viewthat basic rights guarantees would
apply to private legal relationships as well as to the relationship between individuals and
the statewas strongly advocated by Gnter Drig. See Gnter Drig, 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 Fest-
schrift fr Erich Molitor zum 75. Geburtstag (Munich: C. H. Becksche Verlagsbuchhand-
lung, 1962), 1733.
8. See Kurt Hntzschel, Das Grundrecht der freien Meinungsusserung and die Schran-
ken der allgemeinen Gesetze des Artikel 18 der Reichsverfassung, Archiv des ffentlichen
Rechts 49 (1926): 22837. See also Frede Castberg, Freedom of Speech in the West (New York:
Oceana Publications, 1960), 32225.
9. For additional commentaries on the Lth Case, see Gerhard Casper, Redefreiheit und
Ehrenschutz (Heidelberg: C. F. Mller Juristischer Verlag, 1971), 3039; Gnter Drig, Zum
Lth Urteil des Bundesverfassungsgerichts vom 15.1.1958, Die ffentliche Verwaltung II
(1958): 184 97; and Peter Lerche, Zur verfassungsgerichtlichen Deutung der Meinungsfrei-
heit, in Festschrift fr Gebhard Mller (Tbingen: J. C. B. Mohr [Paul Siebeck], 1970), 197
215. For critical analysis of Lth in English, see Peter Quint, Free Speech and Private Law in
German Constitutional Theory, Maryland Law Review 48 (1989): 25265; Stephen Gard-
baum, The Horizontal Effect of Constitutional Rights, Michigan Law Review 102 (2003):
387; Jacco Bomhoff, Lths 50th Anniversary: Some Comparative Observations on the Ger-
man 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, Whos 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 Constitu-
tional 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 Germanys militant democracy,
see Hella Mandt, Demokratie und Toleranz, in Res Publica, ed. Peter Haungs (Munich: Wil-
helm Fink Verlag, 1977), 23360. See also the following cases of the Federal Constitutional
 806 Notes to Chapter Eight
Court: Socialist Reich Party Case, 2 BVerfGE 1, 1215 (1952); Communist Party Case, 5
BVerfGE 85, 14046 (1956); and Official Propaganda Case, 44 BVerfGE 125, 14546 (1977).
12. 403 U.S. 15 (1971).
13. For related cases, see the Rmerberg 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 Courts 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 Pri-
vate Law: Theory and Practice in West Germany, International and Comparative Law Quar-
terly 17 (1968): 58788. 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), Europische Grundrechte Zeitschrift 20
(1993): 3023.
23. 27 BVerfGE 71 (1969).
24. Ibid., at 81. In underlining the importance of informational freedom as an indepen-
dent 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 Colognes regional court had not properly balanced the
interests protected by informational freedom against penal provisions banning the disclo-
sure of state secrets).
27. 27 BVerfGE 88 (1969).
28. Ibid., at 99100.
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, con-
stitutional complaints are brought against a judicial decision after the complainant has ex-
hausted 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 Mnch, Grundgesetz Kommentar (3 vols.), 3d ed. (Munich: C. H.
Becksche Verlagsbuchhandlung, 1981), 1:27172.
32. 27 BverfGE 88, 102 (1969).
33. Film Propaganda Case, 33 BVerfGE 52 (1972). See also Radical Groups Case, 47 BVer-
fGE 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 Stein-
berger, Freedom of the Press, supra note 1, at 92527.
36. Bruno Schmidt-Bleibtreu & Franz Klein, Kommentar zum Grundgesetz fr die Bundes-
republik Deutschland, 5th ed. (Neuwied: Hermann Luchterhand Verlag, 1980), 205; Gerhard
Leibholz & Hans Justus Rinck, Grundgesetz fr die Bundesrepublik Deutschland, 6th ed. (Co-
logne: Verlag Dr. Otto Schmidt, 1979), 21718; and von Mnch, supra note 31, at 27172.
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. OBrien, 391 U.S. 367, 382 (1968) (holding that since the gov-
ernments interest in the continued availability of Selective Ser vice certificates was signifi-
cant, and the prohibition on destruction of cards was an appropriately narrow means of
protecting this interest, the First Amendment did not bar OBriens conviction for burning
his certificate during an antiwar protest). The OBrien Court stated that government regu-
lation is sufficiently justified if it is within the constitutional power of government, if it fur-
thers an important or substantial governmental interest, if the governmental interest is unre-
lated 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), 5052.
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 Germanys leading constitutional theo-
rists, has ardently defended balancing as a legitimate mode of constitutional decision mak-
ing. See Balancing Constitutional Review and Representation, International Journal of
Constitutional Law 3 (2005): 572; Robert Alexy, A Theory of Constitutional Rights, trans. Ju-
lian Rivers (Oxford: Oxford University Press, 2002).
44. For a detailed discussion of this process of decision making see Quint, supra note 9, at
12530.
45. 42 BVerfGE 143 (1976).
46. Ibid., at 14849.
47. Ibid., at 14446.
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 newspapers
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 Re-
view, ed. David M. Beatty (Dordrecht: Martinus Nijhoff Publishers, 1994), 270.
56. Tucholsky I (Soldiers Are Murderers) Case (Chamber Decision), Europische Grun-
drechte Zeitschrift 21 (1994): 46365. Worth recalling here is the procedure governing cham-
ber 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 deci-
sion 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 dig-
nity 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 per-
sons 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 ex-
pressing his wish to serve in the armed forces). Justice Dieter Grimm, a member of the cham-
ber that handed down the Tucholsky I (Soldiers Are Murderers) decision, defended these and
related decisions in a magazine interview. See Zeitschrift fr Rechtspolitik (1994): 27679. See
also Dieter Grimm, Die Meinungsfreiheit in der Rechtsprechung des Bundesverfassungsg-
erichts, Neue Juristische Wochenschrift 27 (1995): 1697705.
60. Darmstadt Signals Case (Chamber Decision), Europische Grundrechte Zeitschrift 20
(1993): 2837.
61. See Neue Juristische Wochenschrift 23 (May 14, 1970): 90810.
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 Se-
lected Issues in Law and Religion, DePaul Law Review 47 (1997): 85, 11827.
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. Prisoners 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, 21827. 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 2627.
84. Ibid., at 28.
85. 120 BVerfGE 180 (2008).
86. Ibid, at 204.
87. Ibid., at 20916.
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 state-
ments made about the drug companys 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 Dem-
onstration 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, 24950 (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 24445.
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. Kom-
mers, The Spiegel Affair: A Case Study in Judicial Politics, in Political Trials, ed. Theodore
L. Becker (Indianapolis: Bobbs-Merrill, 1971), 533; 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), 15253.
110. The balancing approach was reaffi rmed again in the Journalist Treason Case, 21 BVer-
fGE 239 (1967).
111. Herbert Bernstein, Reflections on the Spiegel Case, American Journal of Comparative
Law 14 (1967): 56061.
112. One of the strongest endorsements of the public function doctrine appeared in the
Press Freedom Case, 10 BVerfGE 118, 121 (1959). North RhineWestphalia sought to bar pub-
lishers 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 presss public role in Germany and the relationship of a free
press to the principle of human dignity, see Jutta Limbach, Human Dignity and the Free-
dom of the Press, Bulletin of the German Historical Institute 44 (Spring, 2009): 59 68. Lim-
bach 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 Lnder, see Press Laws, 3d ed.
(Bonn: Inter Nationes, 1993), 1011. An English-language translation of Hamburgs 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 Adver-
tising Case, 64 BVerfGE 108 (1983); and Liebesgrotte Case, 51 BVerfGE 304 (1979). The Wall-
raff 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 re-
porter, for publishing damaging information about Bilds 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 newspa-
pers 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 free-
dom of speech and press, particularly when the subject of the utterance is an important mat-
ter of public policy.
116. See German Law Archive, supra note 114.
117. Ibid.
118. 113 BVerfGE 63, 8283 (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),
389496. 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), 25657.
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, Constitutionaliz-
ing Communications: The German Constitutional Courts Jurisprudence of Communications
Freedom, Hastings International and Comparative Law Review 33 (2010): 95202. For Witte-
mans earlier account covering the Constitutional Courts case law up to 1983, see Christo-
pher Witteman, West German Television Law: An Argument for Media as Instrument of
Self-Government, Hastings International and Comparative Law Review 7 (1983): 145210.
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): 12535; and Michael Zoeller, Public Control Cause or Consequence of
Scarcity? The Example of Regulating Electronic Media in the United States and in Ger-
many, in The Political Economy of Freedom, ed. Kurt R. Leube & Albert H. Zlabinger (Mu-
nich: Philosophia Verlag, 1984), 14357.
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 Lnder, and the public corporation,
Deutschland Radio. The regional corporations form the Association of Public Broadcasting
Corporations in the Federal Republic of Germany (Arbeitsgemeinschaft der ffentlich-
rechtlichen Rundfunkanstalten der Bundesrepublik Deutschland [ard]). For a comprehen-
sive 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 ber den Rundfunk im vereinten
Deutschland vom 31 August 1991 [Inter-State Treaty of 31 August 1991 Concerning Broad-
casting 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 Com-
munications, supra note 130, at 10311.
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
Stations governing council was also challenged for its alleged selectivity of the groups repre-
sented 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), 321.
143. For a description of the university system, see Peter J. Katzenstein, Policy and Politics
in West Germany (Philadelphia: Temple University Press, 1987), 296302.
144. See Henning Zwirner, Zum Grundrecht der Wissenschaft sfreiheit, Archiv des
ffentlichen Rechts 98 (1973): 313. See also Kommentar zum Grundgesetz fair die Bundesrepub-
lik Deutschland (Neuwied: Hermann Luchterhand Verlag, 1984), 590651. For an extensive
bibliography on the freedom of scientific and scholarly inquiry, see pp. 58489.
145. von Mnch, supra note 31, at 294.
146. Posthumous Libel Case (Chamber Decision), Europische Grundrechte Zeitschrift 20
(1993): 14647.
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., Uni-
versity of Michigan Journal of Law Reform 21 (198788): 20153. 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 incarna-
tion of every mans 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 in-
volved the seizure under the Youth Protection Act of an American fi lm because of its exces-
sive 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 acts 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): 61338.
161. 81 BVerfGE 278, 297 (1990).
162. 81 BVerfGE 298 (1990).
163. Ibid., at 299300.
 Notes to Chapters EightNine 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, 2526 (2010).

chapter nine
1. See Ingo von Mnch & Philip Kunig, Grundgesetz-Kommentar, 5th ed. (Munich: C. H.
Becksche Verlagsbuchhandlung, 2003), 3:145253. 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 Mnch & 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), 3:268289. Leading commentaries on church-state relations under the Basic Law are
Josef Listl, Das Grundrecht der Religionsfreiheit in der Rechtsprechung des Bundesverfas-
sungsgerichts, Archiv des ff entlichen Rechts 92 (1967): 99127; and, Das Staatskirchen-
recht in der Rechtsprechung des Bundesverfassungsgerichts, Archie des ffentlichen Rechts
106 (1981): 21883; Paul Mikat, Staat, Kirchen and Religionsgemeinschaften, in Handbuch
des Verfassungsrechts, eds. Ernst Benda, Werner Maihofer & Hans-Jochen Vogel (Berlin:
Walter de Gruyter, 1984), 2:105987; Staatskirchenrecht oder Religionsverfassungsrecht? Ein
begriffspolitischer Grundsatzstreit, eds. Hans Michael Heinig and Christian Walter (Tbin-
gen: J. C. B. Mohr [Paul Siebeck], 2007); 100 Begriffe aus dem Staatskirchenrecht, eds. Hans
M. Heinig and Hendrik Munsonius (Tbingen: 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): 97111.
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), 16567,
173 93.
7. Ekkehart Stein, Staatsrecht, 7th ed. (Tbingen: J. C. B. Mohr, 1980), 222.
8. von Mnch & Kunig, supra note 1, at 1:33843.
9. According to the Court, the principle of the constitutions 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), 3023.
12. 32 BVerfGE 98, 106.
13. Ibid., at 10910.
14. 12 BVerfGE 1, 45 (1960).
15. Ibid. Th is translation appears in Walter F. Murphy & Joseph Tanenhaus, Comparative
Constitutional Law (New York: St. Martins Press, 1977), 467.
16. 35 BVerfGE 366, 375 (1973).
17. Ibid.
18. von Mnch & Kunig, supra note 1, at 1:33537.
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 Soldiers Conscientious Objector I Case
(28 BVerfGE 243 [1970]), the Court rejected a soldiers 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 unrec-
ognized 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 objectors status. In another decision, however,
handed down on the same day, the Court invalidated a sentence of detention imposed prior to
the soldiers recognition as a conscientious objector but carried out after he was so recog-
nized. Soldiers Conscientious Objector II Case, 28 BVerfGE 264 (1970). See also Soldiers
Conscientious Objector III Case, 32 BVerfGE 40 (1971) (sustaining an order requiring a sol-
dier 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 Mnch & Kunig, supra note 1, at 1:77477.
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
Senateits jurisdiction extended to procedural issues involving basic rightsruled 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 legisla-
tion). In Alternative Civilian Ser vice III Case (24 BVerfGE 178 (1968)), the First Senateits
jurisdiction extended to substantive basic rights issuesreinforced the Second Senates de-
cision by ruling that no legitimate community interest in multiple punishment could be
found to override freedom of conscience.
28. See tabular material in von Mnch & Kunig, supra note 1, at 1:34647.
29. Act of 13 July 1977, BGBl. I:1229.
30. Die Zeit, Dec. 16, 1977, at 4.
31. Sddeutsche 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 RhineWestphalia)
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 Frderkreis 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):
299312.
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 competi-
tion secured by Article 12 (1). 105 BVerfGE 252 (2005).
48. Bundesverwaltungsgericht, Neue Juristische Wochenschrift 59 (2006): 1303. It was suf-
ficient for the Court that she accepted Hubbards 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 Scientol-
ogy 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): 85154.
49. In the Bah Religious Community Case, for example, the Court noted that a commu-
nitys 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 com-
munity 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, ffentlich-rechtliche Religionsgesellschaften. Studien zur Rechtsstellung der
 816 Notes to Chapter Nine
nach Art. 137 Abs. 5 WRV korporierten Religionsgesellschaften in Deutschland und der Eu-
ropischen Union (Berlin: Duncker and Humblot, 2003).
52. For two excellent articles on the experience of the Jehovahs Witnesses in Germany,
see Scott Kent Brown II, Jehovahs Witnesses v. Land Berlin: Requiring Religious Commu-
nities Seeking Public Corporation Status in Germany to Satisfy the Meaning of Purpose of
Corporation Status Test, Brigham Young University Law Review no. 2 (1999): 673702; Pauline
Cote, Rule of Law and Religious Minorities: A Case Study of Jehovahs Witnesses, The
Review of Faith & International Affairs 5 (2007): 1116.
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 Bcken-
frde, Zum Ende des Schulgebetsstreit: Stellungnahme zum Beschl. des BVerfGE v.
16.10.1979, Deutsche ffentliche Verwaltung 33 (1980): 32327. See also Ulrich Scheuner, No-
chmals: Zum Ende des Schulgebet, Deutsche ffentliche Verwaltung 33 (1980): 51315; Chris-
toph Link, Die Schulgebetsentscheidung des Bundesverfassungsgerichts, Juristenzeitung
35 (1980): 56466.
55. See Udo Steiner, Der Grundrechtsschutz der Glaubens- and Gewissensfreiheit (Art.
41, 2 GG), Juristische Schulung 22 (1982): 15766. See also von Mnch & Kunig, supra note 1,
at 1:22627.
56. See Klaus G. Meyer-Teschendorf, Staat and Kirche im Pluralistischen Gemeinwesen
(Tbingen: J. C. B. Mohr [Paul Siebeck], 1979), 14562; and Klaus Schlaich, Neutralitt als
verfassungsrechtliches Prinzip (Tbingen: J. C. B. Mohr [Paul Siebeck], 1972), 2639.
57. See C. Durham, Religion and the Public Schools: Constitutional Analysis in Ger-
many and the United States (Paper presented at the First Annual Conference of the West-
ern Association for German Studies, Oct. 21, 1977), 1423. The following discussion draws
heavily from this marvelous and hitherto unpublished paper.
58. Ibid., at 2223.
59. Ibid., at 14.
60. Ibid., at 1718.
61. See Ernst Christian Helmreich, Religious Education in German Schools (Cambridge,
Mass.: Harvard University Press, 1959), 5371, 13250.
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 segrega-
tion 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 interde-
nominational 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 par-
ents, it must guarantee the schools minimal existence. See 75 BVerfGE 40 (1987).
63. Frankfurter Rundschau, July 21, 1988.
64. See Durham, supra note 57, at 3967. Th is section of Durhams paper deals with the
controversy surrounding the so-called Bremen clausethe provision of the Bremen Consti-
tution providing for nonsectarian instruction in all public schoolsand the equally contro-
versial decision of the Hesse Constitutional Court holding unconstitutional a nonsectarian
prayer recited in the public schools. Durhams critical analysis of these controversies in-
cludes 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 fhlen sich irritiert and verletzt, Mnchner Neueste Nachrichten, Sept.
25, 1995, at 33. See also the lead story on the controversy in Der Spiegel in Mnchner Neueste
Nachrichten, August 14, 1995 (no. 33/14), at 2234.
69. See, for example, Freidrich Karl Fromme, Und wenn das Urteil falsch ware, Frank-
furter 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 Germanys leading weekly news magazine entitled Das Kreuz mit dem Kruzifi x: Abschied
von der christlichen Kultur, Der Spiegel, August 14, 1995, at 2225; 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, Wash-
ington, 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, 28485 (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 Compara-
tive Law 28 (2000): 439505.
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 col-
lected and orga nized an impressive 316-page report, which includes, inter alia, the text of
Brandenburgs contested statute, the cdu/csus abstract judicial review petition to the Fed-
eral Constitutional Court, the opposing briefs of Berlin and Brandenburg, the constitutional
complaints of several churches and concerned parents, and scores of editorials and newspa-
per articles. See Religion in den Schulen: Der Streit um das Fach ler in BrandenbergEin
Beispiel fr die Ausenandersetzung um das Verhltnis 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 StaatPolitik, eds. M. Brocker, H.
Behr & M. H. Hildebrandt (Wiesbaden: Westdeutscher Verlag, 2003), 199220.
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 re-
quired 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 cam-
paign 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 Berlins Mayor Wolfgang Wowereit (spd), although leading
members of the national spd such as Foreign Minister Frank-Walter Steinmeier and the Parlia-
mentary 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 Berlins
citizens and yes votes by a majority of those voting. The referendum lost substantially on both
counts. For detailed accounts of Berlins 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, Sddeutsche 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.: Wes-
leyan University Press, 1973), 193 99.
94. In 2006, the church tax yielded 4.1 billion. The funds were distributed proportion-
ately to the eligible religious denominations and, in the case of the Catholic Church, divided
proportionately among Germanys twelve dioceses. Statistisches Jahrbuch fr die Bundesre-
publik Deutschland 2007 (Berlin: Statistischer Bundesamt), 67.
95. Ibid., at 198.
96. Church Construction Tax Case, 19 BVerfGE 206, 21718 (1965).
97. See ibid. (holding that the church tax applies only to natural persons). See also Mixed-
Marriage 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 nonchurch 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) (sustain-
ing 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 21617.
100. The featured case and several of the cases cited in the following paragraphsand
elsewhere in this chapterhave 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
BundesverfassungsgerichtFederal Constitutional CourtFederal Republic of Germany, Vol.
4: The Law of Freedom of Faith and the Law of the Churches 19602003 (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: Athe-
naum Verlag, 1970), 14164.
107. Meyer-Teschendorf, supra note 56, at 327.
108. See Josef Listl, Konkordat and Kirchenvertrge in der Bundesrepublik Deutschland
(Berlin: Duncker and Humboldt, 1987). Drawing on Listls study, R. Taylor Cole reported
that the postWorld War II period has witnessed an escalation of religious treaties. Prot-
estant church treaties, he noted, differ from the Catholic Concordats in that they are nego-
tiated 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 com-
peting theories are discussed at length in Meyer-Teschendorf, supra note 56. An extensive bib-
liography on these competing views and on the church-state relationship, generally, appears at
21123.
110. 42 BVerfGE 312, 333 (1976).
111. Ibid., at 331.
112. Ibid.
113. Ibid., at 323.
114. Ibid., at 33031.
115. 70 BVerfGE 138 (1985).
116. Ibid., at 162.
117. Ibid., at 163.
118. Ibid., at 16667.
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 hospi-
tals); 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 Occupa-
tional Training Act to religious institutions).
120. See Hans D. Jarass & Bodo Pieroth, Grundgesetz fr 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 Laws 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 Courts 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 BVer-
fGE 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 Unem-
ployment 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 contempo-
raneously 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); Widows Pension III Case, 62 BVer-
fGE 323, 33031 (1982); and Common Law Marriage Case, 87 BVerfGE 234, 26465 (1992).
131. Common Law Marriage Case, 87 BVerfGE, 234, 26465 (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 Bioeth-
ics Quarterly 7 (2007): 693702.
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 hard-
ship to the party opposing the application owing to exceptional circumstances, that the
 Notes to Chapters NineTen 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 acknowl-
edged that the upbringing of a childin this case its educationis primarily the responsi-
bility 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 over-
ruled its 1981 decision sustaining a law that granted the mother but not the father legal cus-
tody 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 childs welfare.
145. Kindschaft srechtsreformgesetz, of 17 December 1997, BGBl. I: 2942.
146. The senate found the statute unconstitutional, however, insofar as it lacked a transi-
tional 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 transi-
tional legislation, whose passage the senate required by 31 December 2003, would allow for the
possibility of joint custody if in the childs 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, Legitimittsprobleme der Bundesrepublik (Munich: Ver-
lag C. H. Becksche Verlagsbuchhandlung, 1977), 11520.
2. One of the best treatments of the background and interpretation of the social state prin-
ciple 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 ver-
fassungsrechtlichen Grenzen wirtschaftspolitischcr Gesetzgebung im sozialen Rechtsstaat,
Archiv des ffentlichen Rechts 92 (1967): 382407; Hans Michael Heinig, The Political and the
Basic Laws Sozialstaat PrinciplePerspectives from Constitutional Law and Theory, Ger-
man 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 Bundesre-
publik Deutschland (8 vols.), ed. Josef Isensee & Paul Kirchhof (Heidelberg: C. F. Mller Ju-
ristischer Verlag, 1987), 1:1045, 11014.
4. See Erhard Denninger et al., Kommentar zum Grundgesetz fr 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 Bckenfrde, State, Society and Liberty, trans. J. A. Underwood (Oxford: Berg,
1991), 4770.
6. Th is is particularly true of the concept of social democracy; see Zacher, supra note 3, at
10961101.
7. See, for example, the protocols of the Main Committee of December 4, 1948, 18th ses-
sion (fi rst reading) (typescript), 216ff. Some scholars have severely criticized Social Demo-
cratic 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), 2733.
8. See Zacher, supra note 3, at 1:11014.
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 individuals 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 Mlheim-Krlich Case, 53 BVerfGE 30 (1979). Mlheim-Krlich deals
mainly with the right to life and bodily security. The states obligation to promote and safe-
guard 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 (Tbingen: Mohr Sie-
beck, 2008).
14. Ernst Karl Pakuscher, Judicial Review of Executive Acts in Economic Affairs in Ger-
many, Journal of Public Law 20 (1971): 274; Reiner Schmidt, Principles of the Economic Sys-
tem in the Federal Republic of GermanyA 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 articu-
lated by Abendroth and others seem simply incredible. See W. Abendroth et al., Der Kampf
um das Grundgesetz: ber die politische Bedeutung der Verfassungsinterpretation (Frankfurt:
Syndikat, 1977). But a variation on these themes has flowered into a new, fully credible politi-
cal force in Germany. Strenuously advocating a modernized social welfare state as a counter
to Germanys recent concessions to neo-liberalism and unbridled capitalism, the predeces-
sor 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 Haw-
ley, Demagogues, Communists, and Germanys New Left-Wing Heavyweight, Spiegel-
Online (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: Wissen-
schaft 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 19441994: Basic Documents, 2d. ed. (Ox-
ford: Berghahn Books, 1995), 41112 and 41719. Even Germanys sacred tradition of codeter-
mination has been called into question by European harmonization.
20. See Germany Seals 50 billion Euro Stimulus Plan, SpiegelOnlineInternational,
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, SpiegelOnlineInternational, February 20, 2008, available at www.spiegel.de/in-
ternational/business/0,1518,536635,00.html.
22. Articles 134 and 135, the residue of economic arrangements going back to Bismarcks
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, 4145 (1957).
24. See Georg Ress, Government and Industry in the Federal Republic of Germany, In-
ternational and Comparative Law Quarterly 29 (1980): 90. Some commentators maintain that
governmental enterprises operating under private law are entitled to the same entrepreneur-
ial 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): 11322; 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 Tri-
bune, May 27, 2008, at www.iht.com/bin/printfriendly.php?id=13250896.
30. That the worlds 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 propertys
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 Amer-
ican 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 institu-
tion, the German Constitution . . . both explicitly affi rms private propertys institutional le-
gitimacy and grants it constitutional protection in positive terms. Gregory S. Alexander,
Property as a Fundamental Constitutional Right? The German Example, Cornell Law Re-
view 88 (2003): 733, 736. See also Christopher Brunner, Power and Purpose in the Anglo-
American 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 Re-
view 8 (1983): 32627; and Georg Ress, The Right to Property under the Constitution of the
Federal Republic of Germany (Paper delivered at Notre Dame German-American Consti-
tutional 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 Interna-
tional 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 903Powers 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 (Sa-
chenrecht) 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, Sa-
chenrecht I, 2d ed. (Baden-Baden: Nomos Verlagsgesellschaft, 2010), 7 mn. 6.
37. Feldmhle 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 LawThe Protection of Civil Liberties (Aldershot, U.K.: Ashgate/
Dartmouth, 1999), 32021.
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 De-
cisions 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 27778.
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 Re-
sources, 1976), 17. See also Klaus-Berto Doemming, Rudolph Werner Fusslein & Werner
Matz, Entstehungsgeschichte der Artikel des Grundgesetzes, Jahrbuch des ffentlichen
Rechts, n.s., I (1951): 144.
48. Feldmhle 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 57, 1979), 11.
50. See Wrttemberg-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 tribu-
nals 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 Ger-
man 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 theorythe party benefiting from the justified intrusion must bear the risk of
the resulting harmpermeates 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 1520.
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: Uni-
versity 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 BVer-
fGE 270 (1971); and Phonograph Record Case, 31 BVerfGE 275 (1971).
66. Manfred Rehbinder, Urheberrecht, 15th ed. (Munich: C. H. Becksche Verlagsbuch-
handlung, 2010), 5860.
67. Church Music Case, 49 BVerfGE 382, 392 (1978); Frank Fechner, Geistiges Eigentum
und Verfassung (Tbingen: 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 [Verw-
ertungsrecht]. 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 sugges-
tion 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 WillenZur gesetzlichen bernahme nichtamtlicher
Paragrafenberschriften, 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 & Prac-
tice 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 3012.
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 cer-
tain limited rights of codetermination within industry and laid the groundwork for the Co-
determination 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 spe-
cialist, is an illustration of this principle. The Court ruled that the activities of medical spe-
cialists 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 22728.
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); Bakers 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 Germanys 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 restric-
tion 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 governments
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 37879.
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 his-
tory 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 FCCs 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): 12338.
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), 296325. See also Donald P. Kom-
mers, The Government of West Germany, in Introduction to Comparative Government, eds.
Michael Curtis et al. (New York: Harper and Row, 1985), 26773.
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 Le-
galization of Education: The Role of the Federal Constitutional Court in West Germany,
Review of Politics 47 (1985): 6669; 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 Universittszeitung 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 latters 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 institu-
tion 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 statu-
tory 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 transi-
tional 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 de-
scribe 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), 14856. For another excellent discussion of developments in the so-
cial economy of the old gdr, see Eric Owen Smith, The German Economy (London: Rout-
ledge, 1994), 254318 and 416542.
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),
115123; and Eckart Klein, An der Schwelle zur Wiedervereinigung Deutschlands-
Anmerkungen zu Deutschlands Rechtslage im Jahre 1990, Neue Juristische Wochenschrift 40
(1990): 106573.
140. See Jarausch, supra note 138, at 75.
141. East Germanys voluntary accession to the Federal Republic under the Basic Lawa
decision affi rmed by East Germanys fi rst freely elected parliament (following elections on
18 March 1990)also was regarded as evidence of the Basic Laws broad acceptance among
East Germans. For a different view, see Arthur Benz, A Forum of Constitutional Delibera-
tion: A Critical Analysis of the Joint Constitutional Commission, German Politics 3 (1994):
99117. See also Gerd Rllecke, Schwierigkeiten mit der Rechtssicherheit nach der
deutschen Wiedervereinigung, Neue Juristische Wochenschrift 41 (1991): 65762; 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 east-
ern Lnder, see Artur Wandtke, Auswirkungen des Einigungsvertrags auf die neuen
Bundeslnder, Gewerblicher Rechtsschutz und Urheberrecht 4 (1991): 263 67.
142. A. James McAdams usefully classified the questions of transitional justice confront-
ing Germany as a consequence of reunification into four categories: criminal justice: prose-
cuting gdr officials; disqualifying justice: the search for Stasi collaborators; moral justice:
assessing the complete record of dictatorship; and corrective justice: returning private prop-
erty. A. James McAdams, Judging the Past in Unified Germany (New York: Cambridge Uni-
versity 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. 2226.
146. For more detailed discussion, see Quint, supra note 139, at 12453.
147. Unification Treaty, Article 41 (I), in tandem with Exhibit III, Einigungsvertrag, Bul-
letin no. 104 (Bonn: Presse-und Informationsamt der Budesrepublik, September 6, 1990),
1:11920.
148. See McAdams, supra note 142, at 145; Johathan J. Doyle, A Bitter Inheritance: East
German Real Property and the Supreme Constitutional Courts Land Reform Decisions of
April 23, 1991, Michigan Journal of International Law 4 (1992): 832 64.
149. Unification Treaty, supra note 147, at 12225.
150. Ibid., at 12728.
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 typi-
cally 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
theplenum 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 Ger-
man 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 PrussiansBrandenburg 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, Spte Hoff nung fr die Opfer der Bodenreform, Frankfurter Allge-
meine 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 16871.
164. Academy of Science II Case, 85 BVerfGE 360, 37273 (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 5859. For an account of his experience as the commissioner in charge of the
Stasi fi les, see Joachim Gauck, Winter in SommerFrhling im Herbst: Erinnerungen (Mu-
nich: Siedler Verlag, 2009).
168. Article 33 (2) reads: Every German shall be equally eligible for any public office ac-
cording to his or her aptitude, qualifications, and professional achievements.
169. sed Educators 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 politi-
cally motivated sentences), Europische 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), Europische 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, 38487, 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 Peoples 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, 12425, 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), 2015,
208, 21114
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
Bah Religious Community Case, 83
BVerfGE 341 (1991), 72, 561, 815 n.49
Bakers 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
Blinkfer Case, 25 BVerfGE 256 (1969), 45455,
457, 458
Blood Transfusion Case, 32 BVerfGE 98
(1971), 544
Bll Case, 54 BVerfGE 208 (1980), 485
Brandenburg Ethics Case, 104 BVerfGE 305
(2001), 576, 58889, 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, 499501, 763 n.138
Budget Control Case, 45 BVerfGE 1 (1977), 164
Bundesrat Case, 37 BVerfGE 363 (1975), 114,
11516, 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,
4089, 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, 18283, 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.12122
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, 6067
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, 58386, 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),
65657
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.13031
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,
12526, 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 Deci-
sion), 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 Europische Grundrechte
Zeitschrift (EuGRZ) 376 (1997), 711
Criminal Court Judge II Case, (Chamber
Decision), 27 Europische 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 Europische 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.12223
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 Wochen-
schrift (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
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), 12930,
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
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 fr 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
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
Feldmhle 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, 99100, 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),
9091, 95, 123, 129, 130, 508, 51011, 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.15859
Flick Case, 67 BVerfGE 100 (1984), 72, 162, 752
n.131, 774 nn.1314, 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), 13233, 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
Grgl Case, 111 BVerfGE 307 (2004), 74, 310,
311, 31920, 32325, 613, 787 nn.1314, 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), 25960
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.13031
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,
1068, 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),
11011, 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
Jehovahs Witnesses Case, 102 BVerfGE 370
(2000), 56263, 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), 18687, 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),
13940
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), 2056
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),
31618, 696, 787 n.18, 787 nn.2021, 787 n.25,
788 n.30, 830 n.159
Law in ForceTemporary 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,
47980, 483, 484, 798 n.74, 822 n.9
Legislative Pay Case, 40 BVerfGE 296 (1975),
237, 76667 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
Lth Case, 7 BVerfGE 198 (1958), 60, 61, 66, 74,
44243, 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, 33840, 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, 21819,
222, 284, 765 n.5
Minors and Districting Case, 31 Neue
Zeithschrift fr 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
Mlheim-Krlich 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.99101
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), 25556, 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, 43032, 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 RhineWestphalia Salaries Case, 4
BVerfGE 115 (1954), 139, 757 n.32, 763
nn.11920
npd Finance Case, 20 BVerfGE 134 (1966), 781
n.92
npd Party Ban Dismissal Case, 107 BVerfGE
339 (2003), 29596, 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, 67980, 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), 23334, 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
Orphans 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, 24750, 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, 15657, 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, 27780, 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.2021
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
Peoples 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 Europische 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
Prisoners 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 Brckner 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),
55657, 675, 676
Road Traffic Case, 27 BVerfGE 18 (1969), 761
n.95
Rmerberg Speech Case, 54 BVerfGE 129
(1980), 454, 806 nn.1317
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
Europische 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 Educators 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,
32629, 332, 344, 789 n.43, 789 nn.4548,
789 n.50, 790 n.58
Solange II Case, 73 BVerfGE 339 (1986),
69, 32728, 331, 332, 335, 33841, 349,
793 n.91
Soldiers Conscientious Objector I Case, 28
BVerfGE 243 (1970), 814 n.19
Soldiers Conscientious Objector II Case, 28
BVerfGE 264 (1970), 814 n.19
Soldiers 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, 8182, 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, 45153,
458, 5034, 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,
52526, 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), 41416
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
Tenants 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),
42122, 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 Europische
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), 62829
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 Voters Association Case, 99
BVerfGE 84 (1998), 782 n.115
Werner Case, 28 BVerfGE 191 (1970), 476
Widowers Pension I Case, 17 BVerfGE 1
(1963), 185, 769 n.43
Widowers Pension II Case, 39 BVerfGE 169
(1975), 766 n.18, 769 n.44
Widows Child Welfare Case, 1 BVerfGE 97
(1951), 419, 799 n.89
Widows Pension I Case, 25 BVerfGE 142
(1969), 763 n.120
Widows Pension II Case, 40 BVerfGE 121
(1975), 822 n.10
Widows 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
Wppesahl Case, 80 BVerfGE 188 (1989), 227,
228, 732 n.56
Wrttemberg-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 Europische Grun-
drechte 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
Brggemann 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 Frderkreis 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 Kck 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.8284
Zaunegger v. Germany, (2009) 50 E.H.R.R.
38, 821 n.147
B. European Court of Justice
Badeck v. Hessischer Ministerprsident, 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.5556
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
Medelln v. Texas, 552 U.S. 491 (2008), 787
nn.2627
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
OBrien; 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 Commu-
nity 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, 11415, 373 94;
Abortion Reform Act of 1974, 374,
38485; after reunification, 38586;
Bavarian physicians challenging regula-
tions 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 abor-
tions, 37384; 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, 51936. 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,
52324, 525
Act to Control and Restrict Immigration
and to Regulate the Residence and
Integration of eu Citizens and Foreigners
(Immigration Act of 2002), 11014
Adenauer, Konrad, 90, 153, 190, 201, 204,
290, 510
Administrative federalism, 1045,
11415, 120
Administrative lawmaking, 176 77
Admissibility, question of, for hearing initial
constitutional complaints, 20
Admonitory decisions (Appellentscheidun-
gen), 36
Advertising: commercial speech, 460,
498 99; physicians restricted to advertis-
ing only one specialty, 676; public vs.
private broadcasting, 51718
Affi rmative action, 43133
Afghan istan, 207
Agenda 2010, 156, 161
Age restrictions on professions, 426, 671, 676
aids, 499
Airborne Warning and Control System
(awacs), 2015, 20714
Aircraft Noise Act of 1971, 172 74
Alexy, Robert, 66
Allgu Regional Court, 525
Alliance 90, 255
Allied High Commission, 190 91
Al- Qaeda, 207
Alternative ser vice, 55153
Der anachronistische Zug oder Freiheit
und Democracy (The Anachronistic
Parade or Freedom and Democracy,
Brecht), 525
Ancillary constitutional issues, 34
Animal Protection Act, 18284, 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 Expropria-
tion of property
Army, German. See Military
Arrest warrants, Eu ropean Arrest Warrant
Act, 34042
Art Copyright Act, 488
Artistic and academic freedom, 51936;
ban on novels publication, 358 61, 461;
flag desecration, 52930; governing
bodies of institutions of higher education,
53135; history of academic freedom,
53536; national anthem, 530; political
satire as art, 465 67, 52930; pornogra-
phy, 52329
Assembly right, 499502
Assignment of case, fcc, 2627
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), 42627
Atomic consensus, 14849
Atomic energy. See Nuclear energy
Atomic Energy Act, 17781
Atomic weapons deployment, 195, 198200
Atomic weapons referenda, 94 95, 12425
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, 70710;
licensing, 671
Auschwitz Hoax, 493 98
Austrian Constitutional Court, 7
Authority: division between federation
and Lnder, 12037; implied-powers
provision, 125; judicial vs. legislative,
16475; legitimacy and moral authority
of FCC, 38; Parliaments authority to
expropriate or regulate property,
63850
Authorship of fcc decisions, 2829
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, 2015, 20714
Baden, 8187
Baden-Wrttemberg: cdu using spds
Eppler statements in campaign, 4068;
Christian interdenominational schools,
57275; Church Tax Act, 591; Green Party
in state parliamentary elections, 226;
smoking bans, exemptions from, 674;
State Media Act, 51718; territorial
reorga nization, 87
Badura, Peter, 73
Bah religious community, 561
Balancing rights in constitutional interpre-
tation, 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 Courts jurisdic-
tion, 10; constitutional theory, 5559;
Eu rope Article (Article 23), 333; free
democratic order under, 2; history, 1;
international law and, 30219; interpreta-
tion of, 4276; judicial review, 3, 4; new
constitutionalism of, 4348; objective
order of values, 5758, 171; polity, nature
of, 4855; Preamble, 302, 685; proposed
amendment to adopt plebiscitary devices
at national level, 237; reunification and,
686; sources of interpretation, 7075;
state and morality, 4546; state orga niza-
tion, 5355; structural unity of, 5657, 63;
supremacy of, 4648; unconstitutional
constitutional amendments, 5859
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, 66670
Bavarian Constitution, 6, 7
Bavarian Party, 254
Bayer Pharmaceutical Company, 498
Benda, Ernst, 41112, 415, 469
Benetton, 499
Berlin-Brandenburg: ethics instruction in
public schools, 589; merger of, 8081
Berlin smoking bans, exemptions from, 674
Berlin Wall, 303
Bernstein, Herbert, 5078
Biblis-A nuclear power plant, 14850
Bickel, Alexander, 68
Bill of rights, 4445, 331, 355. See also
Human dignity and basic rights
Binding effect rule, 37
Bismarcks Kulturkampf against Catholic
Church, 540
Black, Hugo, 442
Blair, Philip, 80, 94, 128
Blinkfer (pro-communist weekly),
45458
Blood transfusions refused on religious
grounds, 544
Bckenfrde, Ernst-Wolfgang, 49, 65, 73, 75,
204, 226, 237, 392 93, 552
Bll, Heinrich, 485, 522
Bonn Constitution. See Basic Law
Boom, Steve, 339
Bosnia-Herzegovina, 2023
Boycotts, 44243, 454
Brandeis, Louis, 215
Brandenburg and Berlin, merger of, 8081
Brandenburg Higher Education Act, 536
Brandenburg School Act, 58889
Brandt, Willy, 15455, 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 instruc-
tion, 576, 589 90
Bremen Evangelical Church, 597
Brenner, Michael, 217, 247
Brinkman, Karl, 73
Broadcasting: dual broadcasting system,
51618; Inter-State Broadcast Treaty of
1991, 517; legislative authority over, 123,
354; national television station, 51013;
nonpolitical and information-oriented
broadcast system, 518; radio stations,
privately owned, 51416; remuneration of
authors by schools for multiple broad-
casts, 65455; rights and responsibilities
of, 508; speech clauses vs. personal
interests, 47983. See also Television
Brokdorf demonstration against nuclear
power plant, 500
Bryde, Brun- Otto, 67475
Budget: amendment of Basic Law on, 96;
Eu ropean authority over German budget,
351; executive-legislative relations and,
163 64
Bundesrat: consent power, 11420, 122;
Constitutional Court members, election
of, 2324; enlargement of power of,
11920; foreign policy, role in, 119;
gridlock in, 11415; lawmaking, 154;
reform of German federalism and, 11820,
122; representation in, 54; treaty-making
powers, 309; veto power of, 114, 119;
voting in, 11020
Bundestag: chancellors position, 53;
Committee on the Eu ropean Union, 190;
Constitutional Court members, election
of, 23; foreign affairs powers, 193; Judicial
Selection Committee, 2324; 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, 67577
Cabinet, power over foreign affairs, 190
Cable Penny Case, 518
Calvin, John, 549
Campaign broadcasting restrictions, 292
Campaign spending and fi nancing, 218,
26984
Campenhausen, Axel von, 73
Candymakers 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, 2627
Caseload, FCC, 2933, 31t
Casper, Gerhard, 41, 162
Catholic Church: Bismarcks Kulturkampf
against, 540; concordat with Holy See,
12528; 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, 35657,
40811, 459
Chamber of Workers, 664
Chancellor: Basic Law on power of, 77;
election of, 15455; foreign affairs power,
190; in state organ izational hierarchy, 53
Chancellor democracy, 153
Charter of Fundamental Rights (eu), 344
Chickens, Regulation for Keeping (1987),
18284
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,
61213
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 spds
Eppler statements, 4068; 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 (194849), 9, 270; scandal
investigation (2002), 218; on social state
(Sozialstaat), 50; street theater derisive of,
52529; 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,
57175. See also Religion and religious
freedom
Church music, copyright issues, 655
Church tax, 590 95
Cicero (political magazine), 50910
Cigarette manufacturers and tobacco
warning labels, 498, 674
Citation Requirement (Zitiergebot), 181
Citizenship, jus sanquinis, 268
City-states, 51
Civil Partnership Act of 2001, 60611
Civil servants. See Public employees
Clergy in public office, 597
Coal and iron industries, Investment Aid
Act for, 62426
Codetermination Act of 1951, 627
Codetermination Act of 1976, 627, 659 63
Coercion: demonstration as, 501; economic
coercion and free speech rights, 45457;
prenuptial agreements and, 612
Cold War, 3023, 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 Constitu-
tional complaints
Computer information, confidentiality
rights against exploratory online
searches, 417
Computer voting, 249
Conceptual jurisprudence, tradition of
(Begriff sjurisprudenz), 5556
Concordats, 595. See also specific concordat by
subject matter
Concrete judicial review, 11t, 13, 553, 613, 660
Concurrent jurisdiction of federation and
Lnder, 121, 12223
Concurrent legislation, essentiality of,
13137, 143
Conferences, fcc, 2829
Confessional schools, 12528, 576
Confidentiality: Der Spiegel disclosure of
state and military secrets, 5037, 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, 67677
Confl icts, federal-state. See Federal-state
relationship
Conradt, David, 11819
Conscientious objectors, 114, 115, 476, 55053
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 Amend-
ment, 441, 442; Fourteenth Amendment,
355, 373, 421; jurisdiction over constitu-
tional 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: Baden-
Wrttembergs establishment of Chris-
tian 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 proce-
dure, 21; free speech rights, 443; intra-
senate 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,
1113, 11t, 31; religious youth association
and undisturbed practice of religion,
54043; smoking bans, exemptions from,
674; sources of, 31, 32t
Constitutional interpretation, 55 73;
academic literature as source, 73;
common understanding of words and
terms, 7071; competing judicial visions,
64 66; historical materials as source,
7172; international and comparative
materials as source, 73 75; judicial
precedent as source, 7273; modes and
techniques, 62 69; objective order of
values, 5758, 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 interpre-
tive approaches, 63 64; structural unity
of Basic Law, 5657, 63; theories of the
constitution, 5559; unwritten principles
as source, 70; written text as source,
70 71
Constitutional questions, fcc jurisdiction
over, 3
Constitutional review, 45
Constitutional state (Rechtsstaat), 4849,
405, 62223, 639
Constitutional theory, 5559
Constitution of 1867, 4
Consular rights, 318
Consumer protection legislation, 671,
672 73
 852 index
Cooperative federalism, 95, 13843
Coordination theory, 596
Copyright law, 65156
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 defendants right to
freedom of expression, 476; new trials
when defendant was convicted under
subsequently voided statute, 37; poly-
graph use, 363; preventive detention,
32425; sentencing in drug cases, 400
Crucifi x display: courtroom, 545; public
schools, 68, 57785
Cuius regio, eius religio, 539
Cults and sects, 55455
Currency: change from Mark to Euro, 340;
reunification and, 686
Customary international law, 31119
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-of-
action claim, 405
Danish Minority Party in Schleswig-
Holstein, 25455
Darkazanli, Mamoun, 341
Data stockpiling in fight against terrorism,
41718
Death penalty cases (U.S.) and foreign
nationals consular rights, 318
Decisions, form and effect of, 3538, 36t
Declaratory rulings, 3738
Defamation. See Libel and defamation
Defense, national. See Military; Security
Dehler, Thomas, 17
Delegation of legislative power, 17589
Democracy, 77, 216301; defi nition of, 216;
elections and voting, 238 69; legislative
committees, 22833; Lisbon Treaty and,
344; majority party, limitations on,
23337; militant, 52, 57, 269, 285300, 663;
minority party rights, 22228; parliamen-
tary, 21637; parliamentary ossification
and lack of creativity, 237; party state and
political spending, 26984; political
spending, 26984. See also Elections and
voting
Democratic state (Demokratieprinzip),
5152, 339, 345, 349. See also Democracy
Democratic theory, 62
Demonstrations and right to assemble,
499502
Deportation, protests at airport against,
5012
Deputies, parliamentary, 228, 231, 243
Der Spiegel disclosure of state and military
secrets by, 503 7, 509
Desertion from military, 553
dEstaing, Valry 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, 65556
Disability classifications, 43539
Discrimination. See Equality
Disloyalty: public employees, ban on,
434; speech rights and government
employees, 476; teachers engaging in
disloyal speech, 449
Disparaging questions case, 47879
Disputes between federal organs, 11t,
1415, 32
Dissolution and vote of no confidence,
154 62. See also Vote of no confidence
Districting for voting, 24952
Divorce, 412, 61112
dna paternity testing, 413
Doctor-assisted suicide or euthanasia, 398
Doctors. See Physicians
 index 853
Documentary evidence, parliamentary
committees right to, 163
Dogs, breeding of dangerous breeds, 13637
Drug cases, sentencing in, 400
Due process clause, 69, 355
Durham, W. Cole, 60, 571
Drig, Gnter, 73
Dsseldorf: Administrative Court, crucifi x
in courtroom, 545; Higher Regional
Court, 546; Regional Court, 540, 546
ealg (Entschdigungs-und Ausgleichsleis-
tungsgesetz 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,
45457
Economic recovery of West Germany, 292
Economic Stabilization Act of 1967, 627, 659
Economic system, 622712; governmental
responsibility for, 62627; Investment
Aid Act, 62426; nature of, 62330;
neutrality doctrine and, 628, 659;
reunification and, 685711; social market
economy, 622; state-operated commercial
activities, 62628; Volkswagen and super
majority voting requirement, 62830. 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, 26971, 278,
286, 290, 291, 293 94, 299300; 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, 25254; districting,
24952; Eu ropean Parliament elections,
263; foreign resident aliens right to vote
in municipal elections, 266 68; foreign
resident voting, 269; Hamburgs constitu-
tion on voting rights of resident aliens,
269; Maastricht Treaty, 23842, 269;
minimum threshold of electoral success,
254 63; mixed member-proportional
system, 24243, 247; overhang mandates,
24348; party state and political spend-
ing, 26984; political contributions,
26984; rules governing elections, 242;
Th ree Direct Constituencies Clause
(Grundmandatsklausel), 259 63; 2005
federal election and inverse electoral
effect, 24849; voting computers used in
2005 election, 249
Electronic monitoring of the home, 41516
Electronic voting, 249
Embassies, jurisdiction issues, 31216
Emergency price control, 182
Employment and labor: board representa-
tion 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, 42831; labor rights,
663 65; lockout of employees, 664;
machinists, gender equality issues, 432;
maternity leave, 431, 704; occupational
rights, 65985; 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, 13031
England, fcc reliance on cases from, 75
Enlightenment, 53940
Environmental pollution, 398
Environmental protection, 634, 675
Environment and Peace Task Force
(eptf), 478
Eppler, Erhard, 4068
Equality, 354, 355, 41939; asylum
seekers, 42627; causation standard,
434; disability classifications, 43539;
 854 index
Equality (continued)
elections, 24352; equal protection
analysis, 42025; gender discrimination,
42733; heightened judicial review, 421,
435; political party funding and, 27378,
28182; proportionality principle and,
42527; public entities and, 420; rational-
ity approach, 421; suspect classifications,
43335
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, 34042
Eu ropean Arrest Warrant and Surrender
Procedure, 34043
Eu ropean Commission on Human Rights
on abortion issues, 384
Eu ropean Community: concrete judicial
review proceedings, 69; fundamental
rights and, 326; gender equality direc-
tives, 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, 32425, 332, 344; invasion of
privacy of semipublic figure, 491; joint
child custody when parents unwed, 613;
Osho associations rights, 555; religious
freedom, limitations in interest of public
order, 587
Eu ropean Court of Human Rights
(ECtHR): dualism of decisions, 310, 311,
31925; as interpretive aid for domestic
courts, 74, 78; invasion of privacy of
semipublic figure, 491 92; judicial
activism of, 339; Osho associations rights,
55455; on preventive detention, 37172
Eu ropean Court of Justice: Constitutional
Courts relationship with, 327; Eu ropean
arrest warrants, 34142; on fundamental
rights, 335; on gender discrimination in
employment, 430, 43233; 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, 32627, 338, 343, 350
Eu ropean law, 32552
Eu ropean Monetary Union, 351
Eu ropean Parliament: elections, 263; role
in Eu ropean Community lawmaking,
327, 331
Eu ropean Union (eu): Charter of Funda-
mental Rights, 344; comity, 71; Council of
the Eu ropean Union, 344; currency,
change to Euro, 340; directive requiring
data stockpiling in fight against terrorism,
41718; Germanys participation in, 27;
sovereign debt crisis, 35051; third pillar
policies, 34142. See also Lisbon Treaty;
Maastricht Treaty
Euthanasia, 398
Evangelical Church, 554, 597
Eviction and tenants right of occupancy,
63541
Evidence: documentary, 163; executive
privilege to withhold, 218
Executive discretion: separation of powers,
153; treaty-making power, 190205
Executive-legislative relations, 72, 153 64;
budget and, 163 64; executive privilege,
162 63; lawmaking, 15354; Parliaments
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, 65659
Expression. See Freedom of speech and press
Expropriation of property, 63850; ground-
water, property owners right to dispose
of, 64045; monetary equalization, 645;
Monument Protection and Care Act,
 index 855
64550; 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, 61213
Family rights, 539, 61220; biological father
and paternity rights, 61318; child
allowance system payments to working
parents, 601; maternity leave, 431, 704;
parental rights and responsibilities,
61218; personality clause and, 612; sex
education and parental rights, 61820.
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 (Bundesver-
waltungsgericht): expropriation of
property, 645; in federal court system, 3;
Hamburg protective declaration on
Church of Scientology, 55556; judicial
review, 327; party fi nance, 284; porno-
graphic novel ban, 524; property cases,
638; school prayers in North Rhine
Westphalia denominational school, 567;
shop closing hours, 678
Federal Census Act of 1983, 40811
Federal comity. See Comity doctrine
Federal Constitutional Court (fcc), 341;
authority of, 54; authorship of decisions,
2829; case assignment, 2627; caseload
and impact, 2933, 31t; committees/
chambers, 20, 35; concrete judicial
review, 11t, 13; conferences, 2829;
creation of, 1; decision-making proce-
dure, 2526; dissenting opinions, 503;
draft ing opinions, 28; internal adminis-
tration, 25; intrasenate chamber system,
2022; judgments, 26; judicial removal,
26; jurisdiction, 816; leadership of
presiding justice, 28; legislative debate
over creation of, 910; 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, 2728; orders or rulings,
26; plenum, 1920; publication of
decisions, 26; qualifications and tenure,
2224, 39; rapporteurs role, 27, 28;
Rules of Procedure, 2526; secret
deliberations, 26; specific issues, 1016,
11t; split decisions, 503; status and
prestige, 1718, 39; temporary injunc-
tions, 11t, 1314; two-senate structure,
1820; 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; qualifi-
cations and tenure of justices, 2224; split
decisions, 503; temporary injunctions, 14;
two-senate structure, 19; unconstitutional
parties, 16
Federal Council of States. See Bundesrat
Federal Court of Justice (Bundesgericht-
shof): commercial speech and freedom of
press, 499; consumer protection legisla-
tion, 672; defamation cases, 477, 485; East
German criminal court judges, license
revocation, 711; equality principle, 420;
experiment exception to patent law,
65659; 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 (Bundesnach-
richtendienst), 414
 856 index
Federalism, 77 78, 79151; arbitrating
federal-state relationship, 12832;
Bundesrat, voting in, 11020; comity
doctrine, 90 95; concurrent legislation,
essentiality of, 121, 12223, 13137;
cooperative, 95, 13843; division of
legislative power, 12037; homogeneity,
principle of, 88 90; implementation of
federal law, 14350; judicial review,
13137; jurisprudence of, 12324; local
self-government, 104 9; nature of, 8788;
reform of, 11820, 12223, 13132, 143, 144;
revenue apportionment and distribution,
95104; states legislative powers, 12528;
territorial orga nization, 80 90. See also
Administrative federalism
Federalist Papers, influence of, 5
Federal Labor Court (Bundesarbeitsgeri-
cht), 3, 599, 665
Federal Law Gazette, 26
Federal Ministry of Justice, 9
Federal Nuclear Energy Act, 14548
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), 5051, 88. See
also Federalism
Federal-state relationship: arbitrating,
12832; confl icts, 11t, 1516, 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, 45354
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, 100103
Firefighters, gender restrictions for, 431
First Senate, 1820; constitutional com-
plaints handled by, 32, 32t
Fischer, Joschka, 205, 226, 294, 343
5 percent minimum threshold rule,
25459, 262
Flag desecration, 52930
Fletcher, George, 362, 63738
Flick Corporation, 162 63, 283
Flood control, 63134
Foreign affairs, 189214; distribution of
foreign affairs powers, 122, 189 90;
executive discretion, parliamentary
consent, and treaty-making power,
190205; Iraq War, 20714; treaty-making
power, 200214
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 womens rights in, 430, 43233
Frankfurt Airport demonstration, 5012
Frankfurt Constitution of 1849, 4, 6, 71, 105,
419, 519, 535
Frankfurt Higher Regional Court, 369
Frankfurts Rmer art forum, 454
Free Democratic Party (fdp), 17, 24, 154,
208, 226, 234, 357
Freedom of action (Handlungsfreiheit),
400405; horseback riding restrictions,
4045; hunting license testing, 404;
passport denial case, 4014; 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, 45859
Freedom of religion. See Religion and
religious freedom
Freedom of speech and press, 354, 441537;
assembly right and, 499502; balancing
against other private interests (Lth),
60 61, 66, 74, 44253, 461, 507; balancing
against personality, 484 92; balancing
 index 857
tests perils, 5078; broadcasting, 51018;
commercial speech, 460, 498 99;
counterattack (Gegenschlag) theory of
speech, 45354; criminal defendants
right to free speech, 476; criminal libel
statute used against press, 45053;
disparaging questions case, 47879;
fighting words, 45354; freedom of
information, 457 60; free press, overview
of, 5023, 508; heightened judicial
scrutiny, 460, 461, 462, 464 69, 484;
Holocaust denial, 493 98; journalistic
sources, protection of, 50910; 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, 47984;
rationality and proportionality, 460, 461;
reputational interests and offensive
speech, 46079; 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 agFree Broad-
casting, Inc.), 51416
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, 42733;
Eu ropean Court of Justice on, 430,
43233; fi refighters, 431; machinists, 432;
maternity leave, 431, 704; public employ-
ees, 432; retirement and, 432; working
hours of women, 430
General Registers Office, 30
Genscher, Hans-Dieter, 202
Geriatric Nursing Act, 13237, 139, 142
German Civil Code (Brgerliches Gesetz-
buch), 316
German Code of Civil Procedure (Zivil-
prozessordnung), 316
German Communist Party. See Communist
Party of Germany (kpd)
German Confederation of 1815, 4
German Democratic Republic (East
Germany), 3034; abortion issues, 385;
collaboration charges as defamation, 477;
dismantling of bureaucracies of, 7034;
East-West Basic Treaty, 303 9; former
East Germans trust in fcc, 40; newspa-
pers seizure, security risk to West
Germany, 45859; property rights,
68788; 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 fr Normung or din),
65556
German Mark (Deutsche Mark), discon-
tinuation of use of, 340
German Municipal Code, 107
German Postal Union, 665
German Press and Information Office,
23437
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
Grgl, Kazim, 31925, 613
Government employees. See Public
employees
Great Recession of 2008 9, 627
Greek rescue package (2011), 35051
Green Party: after reunification, 255;
challenge to Maastricht Treaty, 334;
coalition with sdu under Schrder, 226;
in Constitutional Court, 24; early success
of, 237; exclusion from committees, 195,
22326; on executive privilege, 163;
 858 index
Green Party (continued)
Political Parties Act challenge, 280, 281;
surveillance of members of, 22728; on
treaty-making powers of Bundestag, 195
Grimm, Dieter, 65, 343, 4045, 58485
Groundwater, property owners right to
dispose of, 64045
Grndgens, Gustaf, 358
G10 Act, 41415
Gunlicks, Arthur, 1045, 109, 110, 119,
122, 283
Guttenberg, Karl-Theodore zu, 553
Haas, Evelyn, 417, 470, 475, 581
Hberle, Peter, 40
Hague Convention on the Ser vice of
Documents Abroad, 405
Hallstein Doctrine, 303
Hamburg: constitution on voting rights,
269; flood control, 63134, 638; national
television station, 51013; protective
declaration on Church of Scientology,
55556; sex education, 618
Hamburgs Regional Court, 443, 486, 660
Hamilton, Alexander, 55, 215
Hans Seidel Foundation, 279
Harlan, Veit, 61, 44243, 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, 78, 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 interpreta-
tion, 65, 68; on objective will thesis, 64;
on separation of powers, 21415; on
unitary federal state, 88
Hesses Regional Administrative Court, 675
Hessian Judiciary Act of 1962, 18689
Heun, Werner, 142
Higher education: Abitur (traditional
college preparatory diploma), 67879;
academic decision making, 536; Branden-
burg Higher Education Act, 536; concur-
rent jurisdiction of federation and Lnder,
121; governing bodies of, 53135; history of
academic freedom, 53536; Lower Saxony
system of governance, 53135; numerus
clausus limiting admissions to field of
study, 60, 67984; postwar reform, 678;
professors, appointment of, 13941;
teaching outside of academic field, 536;
tuition to state institutions, 14142;
university admission, judicial review,
68485. See also Artistic and academic
freedom
Higher Education Framework Act, 13941
Hirsch, Martin, 75, 552
Historical materials as source, 71 72
Historical structures, Monument Protection
and Care Act, 64550
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
Hpker-Aschoff, Hermann, 17
Horizontal effect doctrine, 60 61, 171, 449
Horseback riding restrictions, 4045
Hostages, negotiating for, 197 98
Hours: business regulation, 671; Shop
Closing Act, 67778; working hours of
women, 430
Human dignity and basic rights, 355440; in
Basic Law, 4445, 57, 59 62, 285; basis of
dignity, 357 61; Charter of Fundamental
Rights, 344; community membership
and, 362; disability classifications, 43539;
doctor-assisted suicide or euthanasia, 398;
dual character of rights, 60; economic
liberties and social state, 622 712;
equality, 41939; Eu ropean Communitys
protection of, 331; freedom of action
 index 859
(Handlungsfreiheit), 400408; gender
discrimination, 42733; God-given rights,
357; horizontality of rights, 60 61, 171;
human dignity clause, 355, 399; human
person, description of, 362; intellectual
property, 65059; inviolability of the
home, 41416; marriage and family rights,
600 620; objective and subjective
character of, 372; occupational and
associational rights, 65985; paternity
cases, 41213, 41819; physical integrity,
41819; polity and conception of human
person, 36173; prison cases, 36373;
private information and collection of
census information, 35657, 40811, 459;
property rights, 63059; right to die, 398;
right to informational self-determination,
35657, 40819; right to life, 373 99;
substantive rights theories, 61 62; suspect
classifications, 43335; terrorism and
balancing of liberty rights vs. security,
41318; Transsexuals Act, 413, 42025,
606; unconstitutionality of constitutional
amendments, 59; values and, 5758. See
also Abortion cases; Freedom of speech
and press; Religion and religious free-
dom; Right to personality
Hunting license testing, 404
Hustler magazine, 468
ig-Metalls works council, 664 65
Ihering, Rudolf von, 6
Illegitimacy: child benefit allowance to
unmarried parents, 601; child custody
and, 61213; rights of children, 400,
41213, 41819, 539
Immigration Act of 2002, 11014, 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 defendants 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, 32425, 37172;
prison labor, 37071; refusal to release
prisoner who is likely to repeat criminal
acts, 369; rehabilitation/resocialization of
prisoners, 368, 370, 371, 47983; release
from prison for probationary period,
368 69; sex offenders, 370, 371 72; youth
imprisonment and resocialization,
36970
Incest charges as defamation, 47778
Income Tax Act of 1951, 602
Individualism, 70
Information, right to. See Freedom of
information
Informational self-determination, right to,
35657, 40819
Injunctions, temporary, 11t, 1314
Institutional theory, 62
Institutions of higher education. See Higher
education
Insurance payments for child care, 601
Intellectual property, 65059; Article 14,
650; copyright law, 65156; cybersquat-
ting, 656; din standards, 65556; patent
law, 65659
Interest groups, 273, 278, 516
Intergovernmental organizations, 334
International Court of Justice, Article 38, 311
International law, 30252; Basic Law, Article
25, 311, 316; Cold War and, 3023;
comparative materials as source, 7375;
constitutional limits to, 308 9, 31819,
32627, 351; customary international law,
31119; East-West Basic Treaty, 303 9;
Eu ropean Arrest Warrant and Surrender
Procedure, 34042; Eu ropean law, 74,
32552; international tribunals and,
31925; Statute of the International Court
of Justice, 311; supranational law vs.
domestic constitutional law, 78; treaties,
30911. See also Lisbon Treaty; Maastricht
Treaty
International tribunals, 31925
Inter-State Broadcast Treaty of 1991, 517
 860 index
Intimate sphere, 4058, 484
Invasion of privacy, 165; past criminal event
and right of prisoner, 484; public figures,
4058, 484. See also Right to personality
Inverse condemnation, 645
Inverse electoral effect, 24849
Investment Aid Act, 62426
Iraq War, 20714
Iron industry, Investment Aid Act for,
62426
Irving, David, 493
Islam. See Muslims
Iure gestionis, 315
Jaeger, Renate, 415, 624
Jehovahs 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), 52425
Judges and justices: background and
training of, 34; East German criminal
court judges, license revocation, 71011;
number of fcc justices, 19; objectivity of
fcc justices, 66; salaries and pensions,
12122
Judgments, fcc, 26
Judicial authority. See Authority
Judicial lawmaking, 165 68, 17175
Judicial precedent: common-law precedent,
55; as source in constitutional interpreta-
tion, 7273. See also Stare decisis
Judicial removal, 26
Judicial restraint: in economic regulation,
66573; in foreign affairs, 196 98
Judicial review: fccs powers, 1, 3; federal-
ism, 13137; form and effect of decisions,
3538, 36t; gradation theory, 670, 671; in
operation, 3340; origins of, 410; polity
and, 3840; scope of review, 3335;
separation of powers and, 162; university
admission, 68485. 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 Lnder, 121; election
review, 264; over embassies, 31216;
exclusive jurisdiction of federation, 122;
FCC, 816; framework jurisdiction, 123
Jurisprudence: of federalism, 12324. See
also International law
Jus sanquinis citizenship, 268
Justices. See Judges and justices
Just Leave Me in Peace (book), 52930
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, 15455, 161 62, 202, 218,
284, 583
Khler, 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
Lnder. See Federal-state relationship; States
Landesbanken, 627
Landlords. See Property rights
Land ownership. See Property rights
Lawmaking: administrative lawmaking,
17677; executive-legislative relations
and, 15354; notice of Eu ropean legisla-
tion to national parliaments, 344, 349
Lawyers. See Attorneys
Least restrictive effect (Erforderlichkeit), 67
 index 861
Left Party, 262
Legal positivism, 5556, 58, 357
Legal scholarship, 73, 167 68
Legal thought: German vs. U.S., 5556. See
also Kantian thought; Legal positivism
Legislation. See Lawmaking
Legislative committees. See Parliamentary
committees
Legislative power: in Bundestag and
Bundesrat, 54; delegation of, 17589;
division between federation and Lnder,
12037; executive-legislative relations, 72,
153 64; federalism and, 12528; judicial
authority vs., 16475
Leibholz, Gerhard, 17, 57, 64, 65, 86
Leusser, Claus, 7
Leutheusser-Schnarrenberger, Sabine, 417
Libel and defamation: disparaging questions
case, 47879; freedom of art, 522; free
speech, 45053, 454; political satire, 468;
reputational interests, 461, 462, 464;
sexual abuse case, 47778; Stasi Stolpe
case, 477; street theater case, 52529
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, 34352
Listl, Joseph, 73
Local self-government, 104 9
Long-haul trucking permits, 671
Lower Saxony: Higher Administrative
Court, 500; higher education governance,
53135; private broadcasting, 517;
Volkswagen and super majority voting
requirement, 628
Loyalty. See Disloyalty
Lneburg Higher Regional Court, 458
Lth, Erik, 61, 44243, 449
Luther, Martin, 549
Lutheranism, 540, 562
Maastricht Treaty, 69, 23842, 269,
33240, 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, 23337
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, 61112; fundamental right to
marry, 604 6; husbands surname,
required use of, 431; joint tax fi ling of
married couples, 6024; prenuptial
agreements, 612; same-sex marriage,
60611; Spanish man wanting to marry
German woman, 605, 611
Marshall, John, 10
Marxism-Leninism, 290. See also Commu-
nist 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
Mayens absentee ballots, 265 66
Mediation Committee, 228, 22933
Medical schools, admission policies,
68485
Mellinghoff, Rudolf, 149, 587
Mephisto (Mann), 358, 461, 48485, 51923
Merkel, Angela, 29, 114, 120, 2045, 227, 398
Midwives, age restrictions on, 426
Militant democracy, 52, 57, 269, 285300, 663
Military: alternative ser vice, 55153;
conscientious objectors, 114, 115, 476,
55053; deployments in un and nato
operations, 200203, 20714; desertion,
 862 index
Military (continued)
553; gender discrimination, 433; modern-
ization of armed forces, 553; parliamen-
tary approval of armed operations, 69;
soldiers are murderers, 468 76
Military affairs power, 200214
Military and Civilian Ser vice Acts, 551
Minimum rationality, 67
Mining industry, 663 64
Minority party rights, 71, 22237; nato and
un preace-keeping measures and, 202;
parliamentary committees and, 163,
21733; public funding, 27478; public
relations measures of government during
1976 federal election campaign, 23437;
right to receive government information,
227; surveillance of members of minority
party, 22728
Minority religions, 553 66; cults and sects,
55455; membership in, 554; status of,
564 66
Minors. See Children; Youth
Missiles deployment, 198200
Mohl, Robert von, 5
Monarchical constitutionalism, 4
Montesquieu, 164
Monument Protection and Care Act, 64550
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, admis-
sion to, 68485
Municipalities: core functions doctrine
(Kernbereich theory), 105, 108 9; local
self-government, 104 9
Murderers, soldiers as, 46876
Mushroom importing, 32731
Muslims: headscarf ban in public schools,
68, 72, 73, 58587; Islamic classes in
North RhineWestphalia, 576; in
post-reunification Germany, 554; ritual
slaughter, 556 64, 675 76
Mutlangen demonstration against military
installations, 500501
Name changes of municipalities, 104 9
National anthem, 530
National Democratic Party of Germany
(npd), 16, 293300, 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, 28689, 293300. See also Socialist
Reich Party (srp)
Necessary and proper clause (U.S.), 125
Neo-Marxist critics, 39
Neo-Nazi parties, prohibition of, xxx,
28689, 293300. See also Socialist Reich
Party (srp)
Neutrality: church-state relations and,
57175, 595; economy and, 628, 659
New constitutionalism of Basic Law, 4348
Newspapers. See Freedom of speech and
press
New trials in criminal cases in which
defendant was convicted under subse-
quently 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 deploy-
ment, 204; International Security
Assistance Force, 207; Serbia and
Montenegro bombing campaign, 205;
Strategic Concept, 194, 204, 205, 210;
Turkeys appeal for assistance from, 208,
209
North RhineWestphalia, 291, 417; Admin-
istrative 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, 14550, 185, 398 99
Null and void decisions, 72 73
Oath refusal and freedom of religious belief,
54550
Objective needs analysis, 671
Occupational and associational rights, 354,
65985; business practice regulations,
67577; candymakers, 671, 67273; entry
and admission regulations, 67172;
existing trades or businesses, attempting to
protect against competition, 672; freedom
of economic association and rights of labor,
66365; gradation theory of judicial
review, 670, 671; judicial intervention vs.
self-restraint, 66573; long-haul trucking
permits, 671; master craftsmen, examina-
tion for certificate of proficiency, 672; milk
distributors, licensing of, 672; Muslim
butchers, 67576; numerus clausus limiting
admissions to field of study, 60, 67984;
occupational choice and higher education,
60, 67884; personality and, 667, 670;
public health regulations, 67375; retail
trade, technical educational requirements,
67172; reunification, effect of, 704,
70711; shop closing law cases, 67778;
technician licensing, 67071; university
admission and judicial review, 68485. See
also Attorneys; Physicians
Oldenburg, 87
Open state, commitment to, 30252. 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, 2728
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, 1516, 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-Jrgen, 610, 658
Parental rights and responsibilities, 61218;
personality clause and, 612; religious
education and, 576, 588; sex education
and, 61820
Parishes, church, on right to split, 595 600
Paris Trade Agreement of 1950, 191
Parliament. See Bundestag
Parliamentary committees, 21733; on
Election Scrutiny, 228; on Eu ropean
Union, 228; on Foreign Affairs and
Defense, 190, 228; importance in Bun-
destag, 22833; on Judicial Selection, 228;
Mediation Committee, 228, 22933; on
Petitions, 228; right to documentary
evidence, 163
Parliamentary Council, 7, 8 9, 357, 637
Parliamentary democracy, 21637
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), 5253, 278, 286.
See also Political parties
Passive virtues, 68 69
Passport denial, violation of freedom of
movement, 4014
Patent law, 65659
 864 index
Paternity cases, 41213, 41819
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, 66670; Shop
Closing Act, 677 78
Philippine Embassy, 31216
Phonograph records, copyright issues, 655
Physical integrity, right to, 41819
Physicians: advertising restricted to only
one specialty, 676; age limit for participa-
tion 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, 1920
Plickert, Philip, 697
Police, 501, 509
Political contributions, 26984; equality
among parties and state subsidies, 27379;
illegal contributions (Umwegfi nanzier-
ung), 280; limits on state subsidies,
28384; as tax deductions, 27173, 27884
Political parties: banned parties, 286 93,
449; campaign broadcasting restrictions,
292; as constitutional organs, 27073;
fi nancial status of, 226; mixed member-
proportional system and, 24243, 247;
Organstreit proceeding by, 15; party
privilege, 286; political contributions,
26984. See also Elections and voting;
Minority party rights; specific political
parties
Political Parties Act of 1967, 27881, 283
Political question doctrine, 161, 196, 197 98
Political representation. See Democracy
Political satire, 465 67, 52930
Politicizing justice, 39
Polity: Basic Law and, 4855; conception of
human person and, 36173
Polygraph use in criminal proceedings,
363, 419
Pornography regulation, 52329
Practical concordance (praktische Kondor-
danz), 67 68
Pragmatism, 55
Prayer in public schools, 56672, 577
Preconstitutional laws, 3435
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, 32425, 37172
Price Control Act, 17576
Prison cases. See Imprisonment
Privacy. See Invasion of privacy
Privatization: of aviation and railways, 122,
627; of government monopolies, 62627
Professors. See Higher education
Prognosis doctrine, 185
Propaganda, confi scation of, 23337, 459
Property rights, 63059; Article 14, 63031,
633, 63435, 637, 639; deficiency of protec-
tion in Eu ropean fundamental rights, 340,
349; expropriation or regulation of
property, Parliaments authority, 63850;
garden plot leases, right to terminate, 639;
groundwater, property owners right to
dispose of, 64045; intellectual property,
65059; Joint Declaration on the Settle-
ment of Open Property Issues, 688, 689;
Land Reform (Bodenreform) contro-
versy, 688 97; Monument Protection and
Care Act, 64550; rent control, 63940;
restitution after reunification, 698702;
reunification, 68788; satellite dish,
landlords objection to installation of,
458; social obligation of property, 63738;
tenants right of occupancy, 63541; Unity
 index 865
Treaty, 7037; 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, 42527, 435; freedom of speech and,
460, 461; information, right to, 459;
occupational restrictions and, 67172,
678; privacy rights and, 484; property
rights and, 639; segregated schools for
disabled children and, 439; telecommuni-
cations 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,
58687
Public figures and invasion of privacy,
4058, 484
Public forum doctrine, 501
Public function doctrine, 280, 664
Public funds, distribution among states, 96
Public health regulations, 67375
Public-law controversies, jurisdiction over, 3
Public person in semipublic settings, 47984
Public relations measures of government
during 1976 federal election campaign,
23437
Public schools: authority of individual
Lnder, 576; Brandenburg School Act,
58889; Catholic-Protestant Land
agreement, 588; church-state relations
and neutrality, 57175; compulsory
crucifi x display, 68, 57785; compulsory
observational stage (Frderstufe), 619;
ethics instruction, 576, 589 90; history of,
57576; interdenominational schools,
57276; Muslim headscarf ban, 68, 72, 73,
58587; religious instruction, 12528, 539,
576, 588; religious practices and symbols
in, 566 90; school prayer, 566 72, 577; sex
education, 61820; special education
system for disabled children, 43539;
Stuttgart Higher School Authority,
Muslim woman teacher not permitted to
wear headscarf, 586; teachers engaging in
disloyal speech, 449
Public trust in FCC, 3940
Punitive damages sought against German
company by U.S. plaintiff, 405
Quint, Peter, 485
Quorum, 19
Radio stations, privately owned, 51416
Railways, 122, 627, 671
Rapporteurs 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, 54344; blood
transfusions refused on religious grounds,
544; church autonomy, 595 600; clergy in
public office, 597; conscientious objectors,
114, 115, 476, 55053; coordination theory,
596; corporate status of religious bodies,
561 62; cults and sects, 55455; defi nition
of religion, 544; free exercise of religion,
53953; loyalty to constitutional order,
562; minority religions, 553 66; neutrality
in church-state relations, 57172, 595; oath
refusal, 54550; parish division to
establish new parish, 597 99; public
schools, religious practices and symbols
in, 12628, 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,
54044. See also specific religious bodies
Religious instruction in public schools,
12528, 539, 576, 588
Rent control, 63940
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,
46079. See also Freedom of speech and
press
Reserved powers, 125, 129
Res judicata, 32021
Ress, Georg, 217
Restitution after reunification, 688, 689 93,
698 702
Restraint of Trade Act of 1957, 627
Retail trade as occupation, 67172
Reunification: abortion issues after, 38586;
disbarment of East German attorneys
who collaborated with Stasi, 70710; East
German criminal court judges, license
revocation, 71011; legacy of East German
communism, 7047; occupational and
associational rights after, 704, 70711;
population decline in new states after,
252; property rights after, 31617, 354,
68788; reconceptualization of armed
forces use, 202; state structure after, 80;
Unification Treaty (1990), 309
Revenue apportionment and distribution,
95104
Review. See Judicial review
Rheinland-Palatinates Monument Protec-
tion and Care Act, 64550
Right to assemble and demonstrate, 499502
Right to die, 398
Right to information. See Freedom of
information
Right to informational self-determination,
35657, 40819
Right to life, 373 99; abortion cases, 60, 75,
11415, 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, 399419, 484 92;
divorce and privacy rights, 41213;
freedom of action (Handlungsfreiheit),
400405; freedom of expression vs., 461,
465, 478, 479, 480, 485; informational
self-determination, 35657, 40819;
intimate lifestyle choices, 605; intimate
sphere of privacy, 4058, 484; occupa-
tional rights and, 667, 670; surveillance
technology, 41516; terrorism and
balancing of privacy rights vs. security,
41318; transsexuals, 413
Right to physical integrity, 41819
Rben, Volker, 21718
Rmer (Frankfurt) art forum, 454
Rottmann, Joachim, 23536
Rule of law state (Rechtsstaat), 48, 622
Rule of three, 20
Rules of Procedure (fcc), 2526
Rupp, Hans G., 33
Rupp-von Brnneck, Wiltraut, 75, 380, 398,
522, 535
Saarland, licensing of privately owned radio
stations, 51416
Saarland Territory, 193
Same-sex marriage, 605, 60611
Satellite dish, landlords objection to
installation of, 458
Satire. See Political satire
Saxony federal election (2005), 248
Schuble, Wolfgang, 122
Schaumburg-Lippe Constitution, 6
Scheffler, Erna, 24
Scheuner, Ulrich, 88
Schily, Otto, 294
Schleswig-Holstein elections: Danish
Minority Party in, 25455; districts in,
 index 867
25052; 5 percent minimum threshold rule,
25459, 262; foreign resident aliens right to
vote in municipal elections, 26668; 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, 65154
School prayer, 566 72, 577
Schools. See Confessional schools; Higher
education; Public schools
Schrder, Gerhard, 111, 119, 15456, 161, 194,
2078, 229, 262, 293, 294
Schumacher, Kurt, 191
Scientology, 477, 55556
Search and seizure cases, 503 7, 509
Second National Energy Act of 2005, 627
Second Property Law Amendment Act of
1994, 698
Second Senate, 1820; constitutional
complaints handled by, 32, 32t
Security: balancing of privacy rights vs.,
41318; freedom of information vs.,
45859; minority partys 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, 152215;
delegation of legislative power, 17589;
executive-legislative relations, 153 64;
foreign and military affairs, 189214;
judicial vs. legislative authority, 16475
September 11, 2001 terrorist attacks, 207
Serbia and Montenegro, 203, 205
Sermon on the Mount, 54650
Ser vice of process, 405
7 percent minimum threshold rule, 254
Sex-based discrimination. See Gender
discrimination
Sex education, 61820
Sex offenders, imprisonment of, 370, 37172
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, 67778
Simma, Bruno, 309
Simon, Helmut, 64, 75, 380, 398, 535
Single Eu ropean Act of 1986, 327, 331
Sit-down demonstrations, 500501
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 (19481949), 270; pds alliance
with disaffected left from, 262; private
broadcasting, opposition to, 517
Socialist Reich Party (srp), 16, 28689
Socialist Unity Party, 255, 256
Social Security Act, 185
Social state (Solzialstaat), 4950, 368, 600,
62224, 628, 639, 659, 664
Social theory, 62, 362
Societal representation, in business govern-
ing structures, 51316
Soldiers are murderers, 46876
Solidarity Pact, 104
Solidarity Supplemental Tax or Soli
(Solidarittszuschlag), 104
Sllner, Alfred, 581
Somalia, 202, 204
Sommer, Bertold, 392
Soraya, Princess, 165 68
Sources of interpretation, 7075
Southwestern states, 8187
Sovereign debt crisis, 35051
Sovereignty: administrative, 149; constitu-
tional review and, 4; constitutional
sovereignty, 323, 325, 351; dual sovereignty
theory of federalism, 138, 311; national
sovereignty, 302, 311, 33234; vs. open-
ness, 351; popu lar sovereignty, 52, 54, 76,
153, 264, 270, 290, 339; state sovereignty,
352; transfer to eu, 32526, 332
 868 index
Soviet Land Reform, 688 97
Soviet Union: expropriations and restitu-
tion, 689 94; missiles deployment and,
198200
spd. See Social Democratic Party of
Germany
Special education system for disabled
children, 43539
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, 5355
States: administration by federal commis-
sion, 145; federal territory divided into,
80; legislative powers of, 12528; press
rights and duties, 508; reorga nization of,
8081; 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, 52529
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, 4648
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, 43335
Switzerland, fcc reliance on cases from, 75
Taliban, 207
Tape recorders, copyright violations against
manufacturers of, 65455
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, 6024; legislation, 164;
nonreusable food and beverage containers,
675; political contributions as tax deduc-
tions, 27173, 27884; political parties,
status of, 226; Solidarity Supplemental
Tax or Soli (Solidarittszuschlag),
104; television user fees as, 513
Teachers. See Public schools
Telecommunications Act, 418, 627
Telecommunications privacy, 41416, 510
Teleological reasoning, 63
Television: Cable Penny Case, 518;
courtroom ban of live broadcasts, 508;
federally operated stations, 90 94, 51013;
fees for users, considered as tax, 513
Temporary injunctions, 10, 11t, 1314
Tenants right of occupancy, 63541
Tenure of fcc justices, 2224, 39
Territorial orga nization, 80 90
Terrorism: aviation security vs. right to life,
396 98; balancing of liberty rights vs.
security, 41318
teu (Treaty on Eu ropean Union). See
Maastricht Treaty
Thalidomide, nullifying settlement agree-
ments 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, 42125, 606
Travel restrictions, 434. See also Freedom of
action (Handlungsfreiheit)
Treason, 5047
Treaties: church-state, 595; commitment to,
69, 12528; doctrine of execution
(Vollzugslehre), 310; power to make,
190205, 30911. 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, 34950
Unconstitutionality: of banned political
parties, 11t, 16; of constitutional amend-
ments, 5859; legal provision unconstitu-
tional 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; embar-
goes, 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; constitution-
alism, 47; death penalty cases and foreign
nationals consular rights, 318; federalism,
79; flag desecration, 529; inverse condem-
nation, 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, 7037
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, 16971
Unwritten principles as source, 70
Uprising of the Decent (Aufstand der
Anstndingen), 294
Value-oriented theory, 62
Values, basic rights and, 5758
Verden Regional Court, 363
Veto power of Bundesrat, 11819
Vienna Convention on Diplomatic Rela-
tions, 314
Vineyards, restrictions on cultivation,
639
Voided statutes, 3637
Volkswagen and super majority voting
requirement, 62830
von Ihering, Rudolf, 56
von Schlabrendorff, Fabian, 548
von Weizscker, 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, 64045
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 govern-
ment 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, 42733; 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
Wrttemberg-Baden, 8187
Wrttemberg-Hohenzollern, 8187
Youth: cults and sects, 554; imprisonment
and resocialization, 369 70; pornography
and, 52325
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 as-
signed in the text. As we remarked in our Note on Translation in our Acknowledg-
ments, we have extensively revised and adapted most of the translations reproduced
here. These editorial changes reflect our goal of producing the most literal and accu-
rate translations of the Courts decisions while also achieving uniformity and literary
grace across all of the books 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 infor-
mation purposes only; the official German originals are the sole authoritative ver-
sions. The translations were prepared with the utmost care. Nevertheless, no repre-
sentation 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 Grgl 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 authorita-
tive 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 CourtFederal Republic of Germany 35889 (1992)
6.4 Solange II Case, from 1.II Decisions of the BundesverfassungsgerichtFederal
Constitutional CourtFederal Republic of Germany 61333 (1992)
8.4 csu- npd Case, from 2.I Decisions of the BundesverfassungsgerichtFederal
Constitutional CourtFederal Republic of Germany 22043 (1998)
8.9 Holocaust Denial Case, from 2.II Decisions of the Bundesverfassungsgericht
Federal Constitutional CourtFederal Republic of Germany 62030 (1998).
9.2 Oath Refusal Case, from 4 Decisions of the BundesverfassungsgerichtFederal
Constitutional CourtFederal Republic of Germany 7083 (2007)
9.3 Ritual Slaughter Case, from 4 Decisions of the BundesverfassungsgerichtFederal
Constitutional CourtFederal Republic of Germany 34054 (2007)
9.4 Jehovahs Witnesses Case, from 4 Decisions of the Bundesverfassungsgericht
Federal Constitutional CourtFederal Republic of Germany 31634 (2007)
10.13 Land Reform I Case, from 3 Decisions of the BundesverfassungsgerichtFederal
Constitutional CourtFederal Republic of Germany 2653 (2005)
10.14 Key Date Case, from 3 Decisions of the BundesverfassungsgerichtFederal
Constitutional CourtFederal Republic of Germany 87109 (2005)
10.15 East German Disbarment Case, from 3 Decisions of the
BundesverfassungsgerichtFederal Constitutional CourtFederal Republic of
Germany 399413 (2005)

permissions from other sources

3.1 Southwest State Case, from Walter F. Murphy and Joseph Tanenhaus, Compara-
tive Constitutional Law (New York: St. Martins Press, 1977). (Translated by Mrs.
Renate Chestnut.)
 Per missions 873
3.2 First Broadcasting Case, from Walter F. Murphy and Joseph Tanenhaus,
Comparative Constitutional Law (New York: St. Martins 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. Martins Press, 1977).
(Translated by Mrs. Renate Chestnut.)
3.8 Concordat Case, from Walter F. Murphy and Joseph Tanenhaus, Comparative
Constitutional Law (New York: St. Martins 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) (Lon-
don: Butterworth, 1957). Reprinted with permission of the editor.
5.5 Maastricht Treaty Case, from 33 International Legal Materials 395444 (1994).
Copyright by the American Society of International Law. (Translated by Ger-
hard Wegen and Christopher Kuner.)
5.11 Party Finance I Case, from Walter F. Murphy and Joseph Tanenhaus, Com-
parative Constitutional Law (New York: St. Martins 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. Martins Press, 1977). (Translated
by Mrs. Renate Chestnut.)
7.2 Mephisto Case, from Walter F. Murphy and Joseph Tanenhaus, Comparative
Constitutional Law (New York: St. Martins 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 Lth 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. Martins 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.
 874 Per missions
9.10 Joint Income Tax Case, from Walter F. Murphy and Joseph Tanenhaus,
Comparative Constitutional Law (New York: St. Martins Press, 1977). (Translated
by Mrs. Renate Chestnut.)
10.1 Investment Aid I Case, from Walter F. Murphy and Joseph Tanenhaus, Com-
parative Constitutional Law (New York: St. Martins 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. Martins Press, 1977).
(Translated by Mrs. Renate Chestnut.)