Refine
Year of publication
Document Type
- Contribution to online periodical (134) (remove)
Language
- German (104)
- English (21)
- Other Language (6)
- Spanish (3)
Is part of the Bibliography
- no (134)
Keywords
- Abgeordneter (10)
- Diäten (8)
- Deutschland / Bundestag (7)
- Deutschland (6)
- Rechtswissenschaften (5)
- Völkerrecht (5)
- international law (4)
- Deutschland / Bundespräsident (3)
- European Convention on Human Rights (3)
- Parteienfinanzierung (3)
Institute
- Lehrstuhl für Öffentliches Recht, Finanz- und Steuerrecht (Univ.-Prof. Dr. Joachim Wieland) (39)
- Lehrstuhl für Sozialrecht und Verwaltungswissenschaft (Univ.-Prof. Dr. Constanze Janda) (9)
- Lehrstuhl für Verwaltungswissenschaft, Staatsrecht, Verwaltungsrecht und Europarecht (Univ.-Prof. Dr. Mario Martini) (7)
- Lehrstuhl für vergleichende Verwaltungswissenschaft und Policy-Analyse (Univ.-Prof. Dr. Michael Bauer) (5)
- Lehrstuhl für Politikwissenschaft (Univ.-Prof. Dr. Stephan Grohs) (2)
- Lehrstuhl für Hochschul- und Wissenschaftsmanagement (Univ.-Prof. Dr. Michael Hölscher) (1)
- Lehrstuhl für Öffentliche Betriebswirtschaftslehre (Univ.-Prof. Dr. Holger Mühlenkamp) (1)
- Lehrstuhl für Öffentliches Recht, Staatslehre und Rechtsvergleichung (Univ.-Prof. Dr. Dr. h.c. Karl-Peter Sommermann) (1)
- Lehrstuhl für Öffentliches Recht, insbesondere Europarecht und Völkerrecht (Univ.-Prof. Dr. Wolfgang Weiß) (1)
Legal acts performed by EU Member States applying Union law come within the scope of the Convention and can give rise to adjudication by the ECtHR. A long series of judgments illus-trate the ECtHR’s approach regarding the application of Union law by the courts of EU Mem-ber States. The Convention and Union law are not two autonomous systems separated by a watertight fence. Both European Courts should therefore adopt a wholistic approach in this area, because only a wholistic view takes full account of the legal reality which is one of inter-action and intertwining. The ECtHR makes abundant use of EU law sources, thereby always explicitly referring to them. Three different categories of cases can be identified in how the CJEU goes about the Convention in its case-law.
Rafał Lemkin (1900-1959): A life-long story of engagement in the development of human rights law
(2023)
This blog post aims to provide a brief overview of the life and work of Rafał Lemkin by ex-ploring his participation in the interwar and post-war international dialogue. It demonstrates a variety of means, including academic activities (research, publications, conferences), as well as diplomacy and personal relationships, which Lemkin used to disseminate his ideas and research. Despite having limited resources and being a refugee for much of his life, Lemkin drew upon his linguistic abilities and showed himself to be an extraordinary “constant negotiator”. His varied work experience, gained in the early stages of his career in Lviv and Warsaw, likely aided him in developing an inclusive perspective on law and human rights that later informed his ground-breaking work on genocide.
The picture regarding the protection of fundamental rights in Europe today increasingly looks like a patchwork, due to a lack of coordination at different levels. Developments reinforcing that picture include the emergence of different methodologies for the application of funda-mental rights, Constitution-based challenges to European law by national Supreme Courts, codifications of existing case-law and the creation of so-called « hybrid » institutions. The resulting complexity is a challenge for domestic courts, a threat to the confidence of citizens and detrimental to the fundamental rights themselves, their special role and authority being gradually eroded by a general relativism. EU-accession could have an anti-patchwork effect and represent a chance for a general coordination of fundamental rights in Europe. Beyond making the Convention binding upon the EU, it would also have a pan-European (re)structu-ring effect by confirming the Convention as the minimum benchmark providing both the bedrock and the framework for any other national or European fundamental rights as well as for the necessary judicial dialogue on the latter. Good progress has been achieved since the resumption of negotiations for EU-accession, justifying cautious optimism as to the possibility to find adequate solutions to the outstanding issues.
The article presents the judgment of the Polish Constitutional Court of 10 March 2022
(K 7/21). In this judgment, the Court questioned the constitutionality of the art. 6 of the European Convention on Human Rights, one of the fundamental norms of the European system of human rights protection. The article criticises this decision and shows its negative consequences for the individual right to a fair trial.
Can parliament govern the transport transition? How the German Bundestag scrutinizes rail projects
(2022)
The paper aims to elucidate to what extent the German Parliament exerts control over rail planning. Parliament has the budgetary right, but information asymmetries vis-à-vis the railway company Deutsche Bahn and the Ministry of Transport make parliamentary control difficult.
Recently, Germany has instituted a parliamentary review process that allows the Parliament to take up concerns by the public affected by rail projects. We use the principal-agent theory to model this new institution. Parliament delegates rail planning to the Deutsche Bahn, while the Federal Railway Authority serves as a budget watchdog, and parliament uses input from public participation as a deck-stacking procedure. The paper first situates the institutional innovations—the new parliamentary oversight procedure—against the former logic of rail-way planning. Second, based on the documentation of parliamentary oversight, we analyze for which demands by the affected public the Parliament uses its power to change rail projects.
The paper showed that public participation matters. The German Parliament introduced expensive changes to rail projects. In particular, demands that had been voiced in well-institutionalized public participation (that is, when municipalities, regional associations, etc., were engaged in long-term institutionalized dialogues with the Deutsche Bahn) were more likely to be addressed. An Extra budget was then allocated to, for example, noise-regulating measures.
To sum up, the German Parliament uses information gained in public participation in com-bination with its budget rights to exert control over railway planning for conflictual projects. Thus, Parliament takes a more active role in railway planning. Whether this also leads to more acceptance for rail projects, is an open question.
Two different States licensed exports of intrusion tools and related items to a third State. That State then used it to spy on human rights defenders, lawyers, journalists, activists, opposition politicians, and dissidents. While one of the licensing States is a member of the Wassenaar Arrangement, the other is not but had declared to follow it unilaterally. The legal analysis considers the attribution of the relevant acts and omissions by the States and examines possible breaches of international export control law and international human rights law.
The essay examines changes in German law on administrative procedure recently introduced to address the challenge of digitization. This reform was undertaken in the framework of the very complex German legal system, which has federal structure, as well as the so-called “three pillars” of general administrative, financial and social security procedures, and a tradition of homogeneous development. The article also investigates the links between administrative procedural law and the legislation on e-government, as well as the problem of the poor interoperability of the IT systems of the various levels of government (Federation, Länder and Municipalities), that the (federal) law on online access to public services proposes to solve. Finally, the potential and limits of digitization of administrative procedure are examined, distinguishing binding and routine measures (easily automated) from the new frontiers of artificial intelligence.
For centuries, export control regulations have accompanied the development of new weapon technologies. The revelations of the ‘Pegasus Project’ have put the question of whether and how to regulate the export of the new technology ‘cyberweapons’ in the limelight: Is the current international export control law up to the challenge of sufficiently regulating the proliferation of ‘cyberweapons’ or does it need an update? To answer this question, the blog post will, first, turn to the definition and relevance of ‘cyberweapons’. Secondly, international export control law is introduced as a possible measure to mitigate the risks posed by ‘cyberweapons’ against the backdrop of regulating the use of ‘cyberweapons’ or establishing a moratorium on its trade. Third, the blog post will assess the export of ‘cyberweapons’ in general and the export of Pegasus in particular within the current international export control framework. The current framework seems to touch upon partial aspects of the trade with ‘cyberweapons’. However, it stands to fear that it is not up to the task of sufficiently curtailing the proliferation of ‘cyberweapons’ and the associated risks, as it especially leaves the underlying problem of the trade with zero-day vulnerabilities untouched.
It has long been a commonplace that the European Union forms a community of law and that the principle of “integration through law” is one of its central characteristics. In view of the growing scope and complexity of Union law, which requires ever new adaptations from the Member States, research on the implementation of Union law, which also works empiri-cally, is gaining considerable importance. An international research project conducted at the German Research Institute for Public Administration was dedicated to the implementation and adaptation strategies of selected EU Member States. It investigated the transposition of organisational and procedural requirements for national administrations as laid down in EU directives related to environmental and energy policy. The investigation focused on various modalities of transposition: minimum transposition (“copy out”), the enactment of provisions that create obligations going beyond the requirements of the Directive (“gold-plating”) and the extension of the rules or principles of the Directive to other fields of law (“spill-over”), either by including a subject area not provided for in the Directive in the scope of application of the transposition provisions (spill-over in the narrow sense) or by fundamentally reforming a legal area on the occasion of the Directive (spill-over in the broad sense). The comparative analysis revealed a low degree of strategic use of transposition modalities. However, there is a growing awareness among Member States that they belong not only to a law community, but also to an implementation community. This is not least due to the mechanisms and procedures of intertwining Union and national action.
The hybrid EPPO structure is operating under a hybrid set of fundamental rights, thus calling into question the well-established principle of the single set of norms applicable throughout criminal proceedings. Moreover, the system is characterized by a distortion of the commonly applied logical link between liability for violations of fundamental rights and control over the actions entailing those violations. EU Member States risk being held accountable under the Convention for actions on behalf of the EPPO which they did not fully control and which were subject to a different corpus of fundamental rights. The EU, for its part, takes the risk of seeing EPPO prosecutions being invalidated by domestic courts applying a Convention protection level which may be higher than the Union level. The only way to minimize the impact of these distortions is for the EU to become a Contracting Party to the Convention, along with its own Member States. This would do away with the ambivalence of the legal framework characterizing the protection of fundamental rights under the EPPO Regulation. It would also contribute to a better implementation of the principles of the rule of law and procedural fairness, advocated by the Regulation itself. Such a move would seem all the more important in light of the fact that if the EPPO proves successful, its competence might be extended in the future to other areas.
Brexit means Brexit
(2021)
The notion of civil service in Europe: establishing an analytical framework for comparative study
(2021)
Comparative study of the employment regimes of public officials in European countries requires an appropriate analytical framework, including definitions. This blog entry explores the meaning and scope of terms “civil service” and “civil servant”. It argues that a civil servant is an employee of the executive power, who has special duties and responsibilities, and should often meet specific requirements.
Die Quellen-TKÜ ist grundrechtsdogmatisch gleichsam ein Sandwichkind zwischen Tele-kommunikationsüberwachung und Online-Durchsuchung. Mit ihrer kleinen Schwester, der Telekommunikationsüberwachung, teilt sie die Eigenschaft, auf die gleichen Kommunika-tionsdaten, nämlich zu übermittelnde Inhalte, zuzugreifen. Mit ihrer großen Schwester, der Online-Durchsuchung hat sie gemeinsam, das gesamte Endgerät zu infiltrieren. Anders als diese darf sie aber nicht das Gesamtsystem ausspähen, sondern ausschließlich „laufende Kommunikation“ überwachen. Wie sich dies technisch gewährleisten lässt, damit die Quellen-TKÜ nicht in eine Online-Durchsuchung umschlägt, präzisieren die Ermächtigungsnormen bislang nur ungenügend. Der Beitrag sucht nach grundrechtsdogmatisch tragfähigen Antworten auf die verfassungsrechtlichen Problemlagen und legt den Finger in offene Wunden der gesetzlichen Regelungen.
Zulassungsverfahren für Künstliche Intelligenz – Über IT-Regulierung, Impfstoffe und Covid-Tests
(2021)
Bevor ein Patient ein Medikament einnimmt, muss aufgrund umfangreicher Tests feststehen, dass die Risiken beherrschbar sind. Warum aber dürfen Betriebssysteme, Smartphones und Smart-Home-Devices ohne unabhängige Vorabprüfung auf den Markt? Für Hochrisiko-KI schlägt die EU nun einen neuen Weg ein, um riskante Technologien künftig zu regulieren.
Wie kann zukünftig sichergestellt werden, dass Gesetze mit einem digitalen bzw. (teil)automatisierten Verwaltungsvollzugsprozess kompatibel sind? Hierfür muss der Hebel bereits bei der Entwurfsphase von Gesetzen und Verordnungen angesetzt werden. So lautete eine Kernaussage unseres Impulspapiers »Recht Digital«, in dem wir einige der Voraussetzungen dargestellt haben, die für automationstaugliche Rechtsnormen berücksichtigt werden sollten.
The article explains the current state of affairs concerning the freedom of press in Poland
Electoral Disinformation and Summary Judicial Proceedings: Is the Polish Experience Relevant?
(2021)
In Poland special summary (24-hour) judicial proceedings against electoral disinformation were introduced in 1998. Although it has been successfully used to declare that information disseminated during an electoral campaign is false, it has not attracted much attention and
is generally absent from the current legal scholarship and international reports on electoral disinformation.
Against this backdrop, the post aims to critically analyze the Polish regulatory model con-cerning summary judicial proceedings. The implications of these mechanisms become even more complex when we consider that in mid-2019 the European Court of Human Rights found Poland for the third time in breach of the right to freedom of expression (Article 10 of the European Convention on Human Rights) for having convicted the applicant in these extraordinary 24 -hour judicial proceedings.