Transparenz als Verfassungsprinzip – Grundgesetz und Europäische Union : Transparency as a Constitutional Principle – German Basic Law and European Union

Jürgen Bröhmer examines the often used in the political and legal debate concept of transparency in the context of the Constitution and of the European Union law. The concept of transparency has several aspects. One can speak of transparency of results, if the result of a decision-making process is disclosed. Closely related is the content of transparency, relating to the clarity and comprehensibility of the decision result. The process transparency refers to the decision process itself, which are often designed very differently, particularly in transparency relevant points. In federal structures and the increasingly "globalized" world responsibility transparency is becoming increasingly important, which is concerned with the question whether you can assign the result of a decision-making process nor a responsible decision-makers. Transparency is not a new concept and a close look into the Basic Law shows that many rules and principles of the Basic Law have the creation of transparency and of a different type to the subject. But there are also inherited deficits, such as the interpretation of freedom of information in Art. 5 GG, its interpretation has to be adapted to the new conditions of the information society. The comparison with the law of the European Union, where it first of all deals with access to documents and to the decision-making process in the legislative body of the Council of Ministers shows that demands for more transparency can be seen in the context of an actual or perceived democratic deficit. Overlooking the law of the European Union, the author, inter alia, the right of access to documents in detail represents

The external affairs power in Australia and in Germany: Different solutions, similar outcome?

Australia and Germany are both constitutionally organized federal states. The Commonwealth Constitution and the German Basic Law approach the distribution of power between the centre and the constituent entities in external affairs matters from opposite directions. In the end, in both cases an institutional modus vivendi has been found in trying to balance the interests of the federation with those of the constituent entities by improving information and communication between the two levels and by involving and listening to the constituent entities. However, the position of the German Länder in external affairs is considerably stronger than that of their Australian counterparts. Whereas Article 23 of the Basic Law indicates the potentially strong position of the Länder in external affairs, it is also an indication of the degree to which European Union matters have evolved into a sui generis relationship and which can no longer be regarded as merely a subset of traditional external affairs even if they cannot be regarded as domestic affairs either

Economic constitutionalism in the EU and Germany – The German constitutional court, the European Court of Justice and the European Central Bank between law and politics

The relationship between the European Union (EU) and its member states has recently been the subject of several legal proceedings in the German Federal Constitutional Court (GFCC) and the European Court of Justice. The backdrop to the underlying controversies were policies instituted by the European Central Bank (ECB) dealing with the economic and monetary situation in various member states in the context of the sovereign debt crises to influence interest rates, combat deflationary tendencies and keep inflation under but close to the ECB’s 2% inflation target. Especially so-called outright monetary transactions (OMTs) and the corresponding OMT-program and a particular high volume public sector asset purchasing program (PSPP) announced by the ECB have been controversially discussed. Legally, the controversies are about the prohibition for the ECB to finance debt held by the EU or member states (Article 123 TFEU) and about the delineation of economic policy (Article 119 et seq. TFEU), which lies in the hands of the members states, and monetary policy (Article 127 et seq. TFEU), which is exclusively in the hands of the ECB. The GFCC in its decisions propagated a restrictive approach emphasizing the role of the member states and pointing to the doctrines developed by it around ultra vires acts and so-called identity review. This paper attempts to shed some light on this controversy and argues that beyond the legal controversy lies a deeper problem of the relationship between judicial and political decision-making that the GFCC should exercise restraint in exercising its functions and remember its own doctrine of “open constitutional norms” developed in a different context but applicable here as well

State Immunity and the Violation of Human Rights

Ch. 1. Introduction. I. The Problem of State Immunity in General. II. State Acts Constituting Torts under Domestic Law. III. The Scope and Objective of this Study. IV. Reasons for State Immunity. V. History and Development of Sovereign Immunity. VI. Immunity from Adjudication and Immunity from Attachment and Execution. VII. State Immunity and Related Immunities and Privileges. VIII. Related Concepts -- Ch. 2. The Current Legal Situation. I. National Statutes on Sovereign Immunity and their Application in Court Practice. II. Jurisprudence in Countries without Immunity Statutes. III. The European Convention on State Immunity. IV. Other Conventions and Treaties. V. Draft Proposals for Multilateral Conventions. VI. Conclusion -- Ch. 3. Developing the Case Against Immunity. I. The Protection of Individuals in International Law. II. Practical Effects of the Increased Significance of Human Rights and the Individual in other Areas of International Law. III. Ch. 4. Reconciling Human Rights and State Immunity. I. Solutions Proposed by Other Authors. II. An Attempt to Reevaluate Fundamental Individual Interests and Collective Sovereignty Interests. Conclusion. The field of international human rights has been one of the most prominent and dynamic areas of public international law in recent decades. At the same time the law of state immunity, albeit less prominent, has also been subjected to a process of dynamic change. The principle of absolute immunity of states from the adjudicatory jurisdiction of foreign states has been replaced by a restrictive concept under which foreign states can be sued under certain circumstances. The violation of fundamental human rights by foreign states is, however, still widely regarded as immunity- protected conduct, be it because such violations must be considered as governmental acts (acta jure imperii) or because the violations were committed outside the territory of the foreign state. Consequently, it is often impossible for the victim of such violations to bring damage proceedings against the foreign state based on municipal (tort) law in a municipal court. The present study attempts to demonstrate that international law does not per se demand that foreign states be granted immunity in such cases. The current state of international immunity law as evidenced by state practice and the work of several international learned bodies is surveyed extensively. It is shown that the granting of immunity may contradict the procedural guarantees of the European Convention of Human Rights. The impact of human rights law on the traditional concept of diplomatic protection is described. The study concludes that a further restriction of the immunity privilege is necessary, and criteria are offered to distinguish between violations of human rights which should remain immunity-protected and violations where the interest of the perpetrating state to remain immune from foreign jurisdiction must yield to the interest of the injured individual to obtain adequate redress