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THE SIXTIETH ANNIVERSARY OF THE BASIC LAW OF THE FEDERAL REPUBLIC OF GERMANY (W szescdziesieciolecie Ustawy Zasadniczej Republiki Federalnej Niemiec)

100%
Sarnecki P.
Przegląd Sejmowy
|
2009
|
issue 6(95)
9-15
EN
This article introduces the present issue of 'Przeglad Sejmowy' dedicated to the 60th anniversary of the adoption of the Basic Law in Germany. The author outlines the history of the creation of that act and identifies the factors which influenced its solutions. He also describes its further development, including numerous amendments which still enable it to determine the real functioning of the Federal Republic of Germany. The article also mentions frequent cases where German solutions are adapted by constitutions of other states, including the Polish constitution. The Polish constitutional law scholars have long been interested and involved in studying the institutions of the German system of government, of which this issues of 'Przeglad Sejmowy' is a proof.
2
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GOVERNMENT IN THE PARLIAMENTARY SYSTEM OF THE FRG (Rzad w systemie parlamentarnym RFN)

63%
Zwierzchowski E.
Przegląd Sejmowy
|
2009
|
issue 6(95)
EN
The Bonn Constituent Assembly has developed a unique and innovative form of parliamentary system. Its normative approach, particularly the method of constitutional regulation of the position of the Federal Chancellor within the structure of government bodies and in the system of supreme authorities of the Federation, is very distinct, therefore even serious German constitutionalists doubted if it is consistent with the model of parliamentary government. The author attempts to confront appropriate norms of the Basic Law with their practical application. First, he presents normative solutions of the Basic Law specifying the legal status of the Chancellor and constitutionally separated organs of the federal government, as well as the legal basis for their operation. He also provides a relatively concise description of mutual influence exerted by main political actors, including the elites of political parties functioning within institutionalized decision-making structures responsible for appointments and shaping future and current goals of the authorities of the Federation. The author is particularly interested in its influence on separated branches of the federal government, as well as the influences of the latter on decisions of other organs. One of the final conclusions is that the period when, due to post-war underdevelopment of socio-political institutions, the executive covered the whole political sphere at the same time marginalizing the impact of other political institutions, ended in the mid 1960s. The balance - temporarily upset - between the authorities and the political establishment was changed to the disadvantage of the executive. The significance of diverse political elites increased as they began to effectively influence the shape of government policy. This means an increasing role of both representative bodies and party leadership. Currently, they play a key role in the system of government. This is typical not only of the Federal Republic, but also of all countries where the institutional shape of democratic political system so permits.
3
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HE GERMAN BASIC LAW 60 YEARS LATER. GERMAN AND EUROPEAN PERSPECTIVES (Ustawa Zasadnicza po 60 latach. Niemieckie i europejskie perspektywy)

51%
Starck C.
Przegląd Sejmowy
|
2009
|
issue 6(95)
17-31
EN
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.
4
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OPENNESS OF THE GERMAN CONSTITUTIONAL SYSTEM TO EUROPEAN UNITY (Otwarcie systemu konstytucyjnego Niemiec na sprawy jednosci Europy)

51%
Wojtowicz K.
Przegląd Sejmowy
|
2009
|
issue 6(95)
EN
The participation of the Federal Republic of Germany in the European integration process is reflected, above all, in the European Community/European Union membership. The constitutional authorization to FRG's access to the Community establishing treaties was given by Article 24 paragraph 1 of the Basic Law which provided for the transfer, by means of a statute, of the sovereign powers to inter-state institutions. The present conditions of Germany's membership of the European Union are specified more precisely in Article 23 paragraph 1 of the Basic Law which contains the requirements determining the system of the organization, which is considered as the imposition of 'structural guarantees' on the Union subject to supervison by Germany as its member state. The Federal Constitutional Court (FCC) held that the provisions of the Preamble and Article 23(1) of the Basic Law establish the principle of openness of the German legal order to European law and impose an obligation on German constitutional organs to contribute to accomplishment of European unification. This constitutional delegation is not, however, unrestricted and is subject to authority limits, applied particularly to lawmaking activity of the Communities (European Union). The principle of conferred powers prevents the acts from having ultra vires effect in the FRG's legal system. Another limitation is the protection of the German constitutional identity from violation, formulated on the basis of Article 79 paragraph 3 in conjunction with Articles 1 and 20 of the Basic Law, from which it follows that the EU is obliged to respect the fundamental human rights, the principle of democracy and federal structure of the state. It should also be pointed out that in the light of the position taken by the FCC, the integration mandate given by the Basic Law does not allow the authorities of the German state to accede to a federal state and renounce German sovereignty.
5
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THE BASIC LAW IN THE LIGHT OF FUNDAMENTAL RIGHTS CONTAINED THEREIN (Ustawa zasadnicza w swietle ujetych w niej praw podstawowych)

51%
Grawert R.
Przegląd Sejmowy
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2009
|
issue 6(95)
EN
The article provides an analysis of the formation and development of the provisions of the Basic Law concerning individual rights and freedoms. In the beginning, the authors of the Basic Law treated it as an interim constitutional instrument, which mostly relates to the above-mentioned issue. However, due to political developments, the FRG has existed several decades before German unification. As concerns individual freedoms, their stability and transformation have resulted from jurisprudence of the supreme courts, especially the Federal Constitutional Court, which not only explained the scope of particular constitutional freedoms, but also led to the recognition, on their basis, of some general principles, above all the principle of complete protection, covering all aspects of the individual's position and the necessity of such protection. Both the explanation of the scope of particular freedoms and examination of their mutual relations are currently founded on the recognition of an objective order of values underlying the constitutional regulation, of which the most important is the protection of human dignity. The problem faced today when interpreting fundamental rights is an increasing Europeanization and globalization of constitutional solutions. The structure of fundamental rights in the Basic Law has proved its effectiveness, enabling their further development and greatly affected the shape of the German state and society.
6
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SYSTEM OF PROTECTION OF FUNDAMENTAL RIGHTS IN THE FRG (System srodków ochrony praw podstawowych w RFN)

51%
Banaszak B., Zukowski L.
Przegląd Sejmowy
|
2009
|
issue 6(95)
EN
The Constitution of the FRG of 1949 accentuates, in a special way, the need to ensure effective means for the protection of individual rights and freedoms, drawing special attention to recourse to a court as a means of protection of violated fundamental rights (Article 19 paragraph 4). In the light of jurisprudence of the Federal Constitutional Court (FCC) the right of recourse to a court, as a separate public right protected by constitutional complaint, provides a 'norm that underlies the entire legal order'. It is also supplemented by a list of detailed guarantees of the proper shape of judicial procedure on the 'rights similar to fundamental rights', including the right to a statutory judge, right to be heard, prohibition on punishment without legal authority and the 'ne bis in idem' principle. In Europe, constitutional complaints have the longest period of application in Germany and Austria. Even if the implementation of this special means of judicial protection to the constitutional system (Article 93 paragraph 1(4a) of the Basic Law) has aroused great controversy, its was given a broad scope of material application. Moreover, the extent of fundament rights protection in the jurisprudence of the FCC was widened. In practice, the entirety of the norms ensuing from the Basic Law was made the basis for the Court's review. However, due to a large number of complaints, the FCC applied a more restrictive approach to statutory requirements, including the requirement to exhaust all legal remedies, thereby emphasizing exceptional character of constitutional complaints. The aim of further amendments of the Federal Constitutional Court Act was to introduce procedural solutions that can be used to select complaints before their consideration. Among the means of fundamental rights protection established by the Basic Law, of particular importance are extra-judicial means of protection. They include the right of petition specified expressly in Article 17 of the Basic Law which authorizes 'everyone' to address written 'requests' or 'complaints' to 'competent authorities' and to the 'representation of the nation'. The same category of means includes the right of petition to be addressed to the Parliamentary (Bundestag) Commissioner of the Armed Forces, who is a typical ombudsman of specialized nature having the powers to initiate and control enumeratively specified matters of military nature (Article 45b of the Basic Law). Moreover, a commissioner for personal data protection is appointed in relation to matters of personal data protection on the federal level. However, in the FRG there is no ombudsman of the Scandinavian type, responsible for a comprehensive (universal) protection of individual rights and freedoms.
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