HE GERMAN BASIC LAW 60 YEARS LATER. GERMAN AND EUROPEAN PERSPECTIVES (Ustawa Zasadnicza po 60 latach. Niemieckie i europejskie perspektywy)
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The article provides a general and brief overview of the German Basic Law 60 years after its adoption. Two different viewpoints are presented - the German and European perspectives. The starting point is the reference to the constitutional history of Germany, as well as numerous important anniversaries due in 2009, including the 20th anniversary of peaceful revolution in the former GDR. From the German perspective, the most important aspect is the evolution of legal provisions concerning individual rights, parliamentary system of government and federalism. This evolution was connected, particularly in relation to individual rights, with jurisprudence of the Federal Constitutional Court (FCC). The FCC has given a constitutional status to the principle of proportionality of constitutional restrictions on individual rights and recognized them as not only 'defensive rights', but also as an origin of a positive duty of the state to protect those values and legal goods which constitute the basis for enactment of these rights. Amendments of the Basic Law have changed in particular the shape of the federal system which, following the reform of 2006, provides more power to lands. From the European perspective, the discussion is focused on pointing out that a membership of the European Union does not imply a breach of the principle of supremacy of the Basic Law, because it is, in its Article 23 that the basis for participation in European integration is provided. The Basic Law itself determines the goals and outlines of integration, allows for transfer of sovereign powers to the Community institutions and specifies the procedure for such transfer. From this point of view, of particular importance is the principle of conferred powers which provides a basis for operation of the institutions of the Union and the European Communities. Not only the solutions adopted in the Basic Law, but also the provisions of the establishing treaties, should be interpreted on the assumption that the European Court of Justice is not empowered to modify constitutional law of Member States and jurisprudence of their constitutional courts.
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