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- Lehrstuhl für Öffentliches Recht, insbesondere deutsches und europäisches Verwaltungsrecht (Univ.-Prof. Dr. Ulrich Stelkens) (55) (remove)
The constitutions of the Lander contain similar provisions for the issue of Rechtsverordnun-gen based on Land legal acts. There are only a few rules on the procedure of the adoption of Rechtsverordnungen in the Grundgesetz and the land constitutions. The aim is to enable social groups to settle, under their own responsibility, the matters that concern them. The power to enact Satzungen is, thus, directly linked to the idea of self-government, which ex-plains the importance of Satzungen at local level. The principle of subsidiarity of the constitu-tional complaint as a criterion which may lead to the inadmissibility of a constitutional com-plaint directly challenging a legislative act also has an impact on the interpretation of proce-dural law applicable to regular courts. It has already been said that the BVerfG gives a clear priority to constitutional complaints challenging a judicial decision which leads to an indirect constitutional review of a legal act on which the decision is based via Article 100(1) GG.
This thesis explores the principles of administrative punishment under the European Con-vention of Human Rights (ECHR). Administrative punishment, for its part, is gaining popularity across European legal systems because it is a flexible, speedy and cost-efficient option. More precisely, it allows public authorities to inflict punishment without having to undergo a judi-cial action. The procedural safeguards that the concerned individual can expect are accor-dingly lower. However, whilst at the national and European Union levels the academic atten-tion grew in line with the gradual expansion of the use of administrative punishment, the same cannot be said regarding the legal framework of the Council of Europe (‘CoE’). Compre-hensive scholarly works on the subject matter are still missing and only a few authors are researching administrative sanctions within this framework more profoundly, i.e., in a cross-cutting manner.
This is regrettable because nowadays, one can speak of a rich and congruent body of admini-strative punishment under the CoE’s law. Not only has the European Court of Human Rights (ECtHR) admitted administrative sanctions within its remit since the famous Engel case in 1976, but it also interprets all relevant terms found in the letter of ECHR such as ‘criminal charge’, ‘penal procedure’, and ‘penalty’ autonomously and in harmony with one another. Autonomous interpretation of these key terms by using Engel criteria means that administra-tive sanctions can, and often are, put under scrutiny (as long as they bear ‘punitive’ and ‘de-terrent’ hallmarks). All in all, the following normative sources can be said to comprise the ius puniendi administrativus within the legal framework of the CoE: First, Article 6 ECHR, which ensures the procedural protection for administrative sanctioning by enshrining the right to a fair trial and its various components, i.e., by laying down a range of participatory and defence rights, as well as the possibility to have access to judicial review and the presumption of inno-cence. Secondly, Article 4 of Protocol No. 7 to the ECHR, which stipulates ne bis in idem prin-ciple precluding double jeopardy. Thirdly, Article 7 ECHR is essential in giving substantive pro-tection to the subject-matter, and lays down the requirement of legality including regulatory quality, non-retroactive application of administrative sanctions, and no punishment without personal liability. Finally, Recommendation No. R (91) 1 of the Committee of Ministers to the Members States on administrative sanctions of 13 February 1991 as a ‘soft’ yet authoritative legal act creates boundaries for acceptable administrative sanctioning. All of these normative sources form the backbone of the research.
This thesis intends to fill the aforementioned academic gap and contribute to the legal scho-larship. It furthermore aspires to be a useful source for practitioners working within the field of public law who are empowered to regulate on or impose administrative sanctions. For this reason, the following research questions are tackled: What is a sanction? What purposes does it serve in a legal system? What is an administrative sanction in particular? What are its role and idiosyncratic features? What aims does it follow? How can it be differentiated from other types of public admonition, i.e., from criminal law measures? How do the CoE and the ECtHR conceptualize an administrative sanction? What guarantees stipulated by the ECHR are applicable to these sanctions? To what extent do they apply? Are there any limitations? If so, then what are the implications thereof on the individual rights? Is the current level of pro-tection in the field of administrative punishment regarding fundamental rights sufficient?
The thesis has furthermore sought to verify the following hypothesis: “The ECtHR acknowled-ges certain minimum requirements stemming from the ECHR from which the administrative authorities imposing a punitive administrative measure upon the individual, cannot deviate”. The hypothesis was drafted similarly to the wording of Article 6 (3) ECHR, which, together with other paragraphs of this Article, enlists fundamental individual guarantees for (any kind of) punishment (“Everyone charged with a criminal offence has the following minimum rights […]”).
Proportionality in English Administrative Law: Resistance and Strategy in Relational Dynamics
(2021)
Proportionality is at the centre of heated debates in English administrative law. It has been adopted for matters pertaining to European law and the European Convention on Human Rights, but its use in other areas parts of English administrative law is highly contentious. While some arguments in favour or against applying proportionality in England are similar to those exchanged in relation to other legal systems (such as tensions between increased objectivity in judicial control over administrative action vs. the desirability of more limited control), other arguments are more specific to English administrative law. To understand the challenges encountered by proportionality in English administrative law, this paper adopts a contextual analysis, putting the emphasis on the relational dynamics framing the interactions between the main actors involved in the proportionality test. Paradoxically, this perspective rehabilitates the analysis of the legal techniques behind transplants such as proportionality: indeed, transplants are vehicles for legal changes in ways that go beyond the circulation of ideas across the world. Instead of being merely superficial and rhetorical, transplants engage deeply with the whole gamut of institutions and actors in a legal system, calling on them to rearticulate their implied and explicit relationships.
The article introduces a research project carried out at the German Research Institute of Public Administration and the German University of Administrative Sciences Speyer. It examines the development, content and effectiveness of the written and unwritten standards of good administration drawn up within the framework of the Council of Europe (CoE).
The history of German public procurement law is a history of attempts by the German legislator to implement the EU public procurement directives on judicial protection, namely Directive 89/665/EEC of 21 December 1989, as minimally as possible. Paradoxically, the history of German procurement law is also the history of an increased spreading of the model of judicial review in ‘competitive award procedures’ underlying Directive 89/665/EEC
to other administrative procedures.
Here, one can discern mutual fertilization of the discussions on the minimal standards for judicial protection foreseen in Directive 89/665/EEC, as well as a parallel discussion on mini-mal standards (directly derived from the German constitution) for judicial review in competi-tive award procedures concerning the recruitment of public officials.
On this basis, one may discern trends in German case law, administrative practice, and scho-larship towards developing judicial review systems in competitive award procedures for pub-lic procurement beyond the thresholds set by the EU directives. This is relevant for privati-zations, gambling licences, and procedures to grant the right to use public spaces, to name only a few. However, these trends encounter difficulties because the German General Administrative Court Procedure Act and other relevant legislation are not tailored to com-petitive award procedures. This article will analyse these different trends and suggest explanations for them.