Slide 1

Introduction to German Constitutional Law

Dr. Clemens RichterEuropean Executive Co-Dean of

CESL

Slide 2

Histor ical Developments

- Germany a geographical area and a cultural unit of long history

- Germany a young nation state (The „Reich“ of 1871)

- The roots of German constitutionalism

– The German states in the early 19th century– The constitution of St. Paul's Church (1848/49)– The German constitution of 1871 (a „ rule of law“- constitution)– The German constitution of 1918/19 (the first democratic constitution)

– The era of decline (1933-1945)– The partition of Germany (1945-1989/1990)– The reunification (1989/1990)

Slide 3

The „Basic Law “ - the German Constitution

- Why a „basic law“ (Grundgesetz)?

- How the basic law was adopted (1948/49)

– Herrenchiemsee Convent / Parlamentarischer Rat– Approval by the western powers (US, UK and France)– Consent of the German Regions („Länder“ ) becoming the Federal →

States of Germany

- How 'German' is the Grundgesetz?

Slide 4

Rule of Law Republic

Federalism

Welfare State

The Grundgesetz

Separation of Powers(often seen as part ofthe rule of law)

Democracy

Slide 5

The constitution as the supreme law of the land

The constitution is the highest-ranking law in Germany

Legislation of Parliament is implementing the relatively general provisions of the constitution

Administrative acts and regulations of lower rank

- Laws and admin. acts violating provisions of the Constitution are unconstitutional.

- The decision whether legislation of Parliament is unconstitutional or not is to be taken by the German Constitutional Court

- The decision whether or not acts of the administration (ranking under the Parliamentary legislation) is unconstitutional can be taken by the ordinary courts

Slide 6

The role of fundamental r ights

„The dignity of man is inviolable. To respect and protect it is the duty of all state author ity.

(Art. 1 of the German Basic Law)

Slide 7

The role of fundamental r ights

3 dimensions

Freedom from interference(classical liberal dimension)

Duty of the state tointerfere (social dimension of the fundamental rights)

The influence of fundamental freedoms on private law

Fundamental freedoms as value guidelines(K. Hesse)

1 2

3

Slide 8

The „Basic Law “ and German F ederalism

- 16 Federal States

- Possess a huge amount of competences in legislation and administration

- Power distribution is guaranteed by the constitution, cannot be altered by Parliament through simple majority vote but requires super-majority of 2/3 plus consent of 2/3 of federal states

- Federal states („Länder“) take part in legislation on the federal level

Slide 9

The „Basic Law “ and the E uropean Union

- A limitation of sovereignty

- Multilevel Constitutionalism (Ingolf Pernice)

- Practical importance: The example of China-EU investment treaty negotiations(see: the role of the Commission and the European Parliament)

Transfer of sovereign powers

Direct effect ofEU law

Supervision by the ECJ

Slide 10

Thank you!

CESL is the first China-Foreign jointly run law school approved by the Chinese government.

It is based on a network of high-ranking partner institutions in China and the EU, building a bridge between the diverse European legal traditions and Chinese legal culture.