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THE FEDERAL CONSTITUTIONAL COURT: EVOLUTION OF ITS ROLE IN THE POLITICAL SYSTEM OF GERMANY AND EUROPE (1951-2009) (Federalny Trybunal Konstytucyjny i ewolucja jego polityczno-ustrojowego znaczenia w Niemczech i w Europie (1951-2009)

100%

Czarny P.

Przegląd Sejmowy

2009

issue 6(95)

This article examines the role that the Federal Constitutional Court (FCC) has played in the system of government of the FRG since its inception, and its significance for the development of constitutional law in the European states. The starting point is a brief review of the most important provisions of the Basic Law of 1949 and the Federal Constitutional Court Act of 1951. A new model of constitutional judiciary established by these acts does not copy the solutions adopted in the USA and Austria even if it follows them. The article also describes the FCC's efforts to get in practice full independence from other supreme organs of the state, during its first difficult years of functioning. As a main factor in the evolution of the FCC one should recognize the establishment, in the second half of the 1950s, of the so-called dogma of fundamental rights which made it possible to assess conformity of statutes with the provisions of Chapter I of the Basic Law. The second half of the 1970s was of special significance for the FCC, when – by way of a 'creative' interpretation of the Basic Law - it prevented or modified the implementation of numerous socio-political reforms introduced by the ruling SPD/FDP coalition. During that period many procedural questions have been resolved. The Federal Constitutional Court is sometimes called the European constitutional court. This phrase may be understood in two ways. First, as a pattern for the reception of legal solutions and the concepts of jurisprudence. From this perspective, it is even called the father or the grandfather of other European constitutional courts. Secondly, as a court which often expresses its opinion on the matters of European integration and is engaged in a dialogue with the European Court of Justice by questioning its views. At the beginning of the 21st century, the challenges faced by the FCC include the progress of European integration in the context of the Lisbon Treaty and the assessment of limitations of fundamental rights in the fight of terrorism.

CURRENT LAWMAKING DILEMMAS OF THE EXECUTIVE IN THE FRG (Wspólczesne dylematy prawotwórstwa egzekutywy RFN)

80%

Dzialocha K., Skwara B.

Przegląd Sejmowy

2009

issue 6(95)

In the FRG, statutory instruments implementing Community law are issued, each time, on the basis of a delegation by a law, which however does not satisfy the requirements specified in Article 80(1), second sentence, of the Basic Law. They do not indicate a concrete act of Community law, but only give authorization to implement abstractly defined EC directives or regulations. Any restriction of the scope of such authorization ensues only from the purpose of the authorizing law. The argument for unconstitutionality of such authorizations is the lack of determination of the content of statutory instrument issued on their basis, the argument for their constitutionality is provided by a joint interpretation of Article 80 and Article 23 of the Basic Law. These authorizations are the response to the decision of the sovereign of the FRG to accede to the Communities and the European Union. They are justified, on the grounds of legal dogma, by the accomplishment of the principles of democracy, perceived from the perspective of the European system of constitutional law which constitutes a coherent system combining national law and European law. Nevertheless, they do not perform the basic function of statutory delegation (authorization by a law) to issue a statutory instrument in order to compensate democratic deficit which is an attribute of the issuance of statutory instruments. There are two possible ways to solve this dilemma, First is to modify Article 80(1), second sentence. Second is to depart from the formula of general authorizations and replace them by specific authorizations which make it possible to implement, by way of a statutory instrument, a narrower scope of Community law, limited to a chapter of a law in which such specific authorization was regulated. Arguments for the second solution include failure of all attempts to amend Article 80(1) second sentence, and the fact that the determination of the content of a statutory instrument by an authorization by a law results, above all, from the constitutional principles of the state ruled by law, democracy and separation of powers.

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2 Przegląd Sejmowy

2 2009

1 Czarny P.

1 Dzialocha K.

1 Skwara B.

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THE FEDERAL CONSTITUTIONAL COURT: EVOLUTION OF ITS ROLE IN THE POLITICAL SYSTEM OF GERMANY AND EUROPE (1951-2009) (Federalny Trybunal Konstytucyjny i ewolucja jego polityczno-ustrojowego znaczenia w Niemczech i w Europie (1951-2009)

CURRENT LAWMAKING DILEMMAS OF THE EXECUTIVE IN THE FRG (Wspólczesne dylematy prawotwórstwa egzekutywy RFN)