On 18 December 2002, one of the major legislative projects of the Schröder Government during its first term of office from 1998 to 2002 failed when the Federal Constitutional Court delivered its judgement in the Immigration Act case. In a split decision, the Court declared the new Immigration Act, the “Gesetz zur Steuerung und Begrenzung der Zuwanderung“ (Act on the Management and Limitation of Immigration) void for formal reasons: It found that the Act did not receive a valid majority vote in the Bundesrat, the chamber of the 16 German states (Länder) that form the Republic. The Court did not have to deal with any questions related to the content of the Act. It discussed only the constitutionality of the legislative procedure.

In a society in which communication is increasingly mediated by electronic networks the methods of police investigation change. Instead of traditional methods like questioning and plain-view surveillance, the police increasingly prefer the surveillance of communications mediated by networks. The corresponding methods offer possibilities of gaining information which were not available before. Especially if the police use them without preliminary knowledge or a base suspicion at an early stage of the investigation, these methods are characterized by their scope: they result in the collection of a lot of irrelevant information and they affect many uninvolved and innocent persons. But at the same time they may furnish exactly the evidence the police are looking for: the phone number and whereabouts of the suspect; the conversation that verifies participation in an offense. It can be no surprise that these methods have become the central methods of investigation.

Private sector companies face a major challenge in ensuring compliance with the many detailed data protection rules that can apply. The compliance burden is further increased if a business enterprise operates in several countries with different data protection rules. This may complicate the exchange of data within the enterprise. The purpose of this article is to plot a path through these rules governing the transfer of personal data abroad.

Some of the most magnificent achievements of human culture, from the Parthenon to Paradise Lost, have been inspired by religion and some of the worst atrocities of human history have been committed to worship its commands. In consequence, whenever questions of religion become part of the political and legal agenda of a society one might be very insecure about the solution of the problem but can be absolutely confident that the stakes are high and the discussions intense. This general observation about religious issues has gained a special dimension due to the events of September 11, 2001, and the wars in Afghanistan and Iraq. Since then the role of religions in general and of Islam in particular is at the very core of central debates of global civil society and of the deliberations and actions of policy makers.

[Editors’ Note: Prof. Brugger's article will appear in German Law Journal in two parts, the first in this month's issue and the second in Vol. 4, No. 1 (1 January 2003). The article originally appeared in Stocktaking in German Public Law 117 (Bullinger and Starck eds., 2002). It is republished here with the kind permission of NOMOS Verlag, Baden-Baden.]

Article 1 is the Basic Law's crown. The concept of human dignity is this crown's jewel: an interest so precious that the state must affirmatively protect and foster its inviolability. This uniquely important status is evident from human dignity's prominence in the constitution, the early Federal Republic's pressing need to repudiate the Third Reich, the many judicial and scholarly exegeses of Article 1, and human dignity's unique claim to absolute protection. The success of the German legal construct of human dignity also is apparent from its influence on the European Union's Charter of Fundamental Rights. That document likewise begins with a provision nearly identical to the Basic Law's Article 1.

The European Court of Justice (ECJ) decided, in the case Tanja Kreil v. Germany, that Council Directive 76/207/EEC of 9 February 1976 (equal treatment directive) precludes the application of national provisions, such as those of German law, which impose a general exclusion of women from military posts involving the use of arms. The ECJ found that such policies violated the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. Since this ruling both the Bundesverfassungsgericht (BVerfG – Federal Constitutional Court) and the ECJ have had to confront the question whether the German system of compulsory military service for men is compatible with Article 3.2 and 3.3 of the Grundgesetz (GG – German Basic Law) and the equal treatment directive.

A dark cloud appears to have settled over the northern Atlantic. With regard to fostering international security, consensus-based cooperation between Europe and the United States seems overshadowed by tension, divisiveness, and uncertainty. This must dismay anyone who believes that even-handed cooperation would yield more peaceful prosperity than uncoordinated, competitive efforts.

Once a major reform has been concluded, one might easily be tempted to be just glad about what has been achieved and to think that nothing more needs to be done. However, experience in Germany as regards the amendment of criminal law and law of criminal procedure has shown that “after the reform” has, at the same time, always meant “before the reform.” The history of German criminal law is the history of a never-ending reform. The reform has not only consisted in making individual corrections to the existing positive law; time and again, developments in society have posed new challenges to criminal law, which, in the course of time, have resulted in profound changes in its structure. This means that even after a reform has been concluded, there must be willingness to further shape criminal law or, as the case may be, to protect it from changes that might be brought about by new influences. German criminal law, with its more than 130 years of history, and with its almost 180 more or less profound amendments of the law, bears eloquent witness to the profound changes that criminal law can experience, in spite of individual extensive reforms, admittedly in a time of historical upheavals. The present contribution provides an outline of the history of German criminal law through the present time and tries, on the basis of this outline, to develop a forecast of the influence to which criminal law will be exposed in the future.

On 25 July 2003 the German Bundesverfassungsgericht (Federal Constitutional Court – FCC) handed down an order which is likely to give a new direction in global disputes since it relates to an act that is absolutely necessary when starting litigation: the service of a writ in a suit before a court. The Court's order is an important element in a discussion of the compatibility of German procedural law and conflict of laws with foreign, notably U.S. American class action and punitive damages suits that has been going on in Germany for a long time already. The following case note will provide a brief introduction to the debate and comment on the Court's order before sketching the possible consequences of the FCC's latest decision.

In the past few years, almost half of the Verfassungsbeschwerden (individual constitutional complaints) brought before the Bundesverfassungsgericht (BVerfG –Federal Constitutional Court) claimed a violation of the Recht auf rechtliches Gehör (right to a hearing in court), guaranteed in Art. 103 para. 1 of the Grundgesetz (GG – German Basic Law). These constitutional complaints do not only constitute the largest number of all constitutional complaints, they are also the most successful ones: If such a violation is plausible, then the Court usually does not make use of its discretion to refuse to hear the case, but rules on the merits in favor of the complainants.

For a long time now the German labor market has been deep in the throes of a crisis. The search for ways out has become the leading topic of political debate, at the latest since the election year 2002, with the main emphasis centering round concepts for activation programs. These concepts have been under international academic discussion for several years. In some countries they have meanwhile been put into practice, for instance within the scope of the sweeping welfare reform carried out in the United States (U.S.) in the mid-nineties under the slogan “from welfare to work”.

In April, 2002, a 19 year-old pupil ran amok in a high school in Erfurt, killing several teachers and fellow pupils. The young man was reported to have played computer games, in particular games known as “ego-shooter,” quite excessively. These tragic events fueled the plans of the German government and the Federal states to reform the law for the protection of children and young persons. The legislative machinery issued new legislation at a rather impressive pace. Only one year after the tragedy in Erfurt, on 1 April 2003, two major legal documents entered into force: the Jugendschutzgesetz (JuSchG – Juvenile Protection Act) of the Federal government and the Jugendmedienschutz-Staatsvertrag (JMStV – Agreement of the German Federal States regarding the Protection of Human Dignity and Juveniles in Radio and Televised Media). This complicated two-fold structure stems from the federal nature of the German state where the competence to legislate is divided between the Federal Government and the individual Laender (Federal States). The latter, in order to achieve uniformity among themselves and reaching the breadth of the Germany territory, must cooperate and legislate in the form of an interstate agreement. The JuSchG regulates mainly the protection of juveniles in the public and limits the distribution of items, which have been determined to be dangerous, like printed material, videos, DVDs or CD-Roms. In contrast thereto the JMStV pertains to the protection of juveniles in the radio broadcasting industry and in the so called “Telemedia,” in particular the internet. In the following, we will give a short overview of the developments wrought by these new laws.

Even experienced scholars will have to think for quite a while when asked to remember whether a similar situation has ever occurred: A tiny constitutional provision in the organisational part of the Grundgesetz (GG – Basic Law), not exactly neglected by learned writers but definitely never seen as a source of major problems, became the starting point of one of the most emotional outbursts German politics has ever experienced. The said provision, Article 51.3(2) of the Basic Law, dealing with the voting procedure in the Bundesrat innocently says that the votes of one Land's representatives “can” (“können”) be cast only unanimously. In order to understand the causes for the earthquake that struck the German political and constitutional system in the 774th session of the Bundesrat on 22 March 2002 it is essential to shed light on the structure and the constitutional role of the Bundesrat.

This paper examines recent institutional and structural developments relating to unified supervision of financial services in Germany. The main thrust of the academic debate concerning unified supervision of financial services was started in the UK. More recently, international organizations have taken an interest in the subject. Some of the issues confronting countries the world-over with respect to the unified supervision of financial services are whether to adopt unified supervision and, if so, how to structure the institutional and regulatory framework for unified agencies. At the outset, it must be pointed out that issues of regulatory organization are essentially second order issues. Far more important—and the first order issue— is the implementation of financial regulation, in particular supervisory capacity and its quality and the soundness of the legal framework underlying the regulatory process.

As pointed out by the Federal Constitutional Court, a specific determination of the appropriateness of hate speech prohibitions can be based only on the circumstances of individual cases. Some particularly prominent cases are now reviewed.

The status and range of human rights in international relations is a politically delicate and legally contested topic. In a recent decision the Federal Constitutional Court was forced to concretize the relation between international human rights obligations, domestic constitutional rights laid down in the Grundgesetz and international duties following from extradition contracts between the Federal Republic and other UN member states. More precisely, in the “Extradition to India”-case the FCC had to deal with the crucial question of human rights adjudication: can an accused be handed over to a country where the police force is accused of “using torture as a regular instrument during the interrogation of apprehended persons” and whose correctional institutions are described as “keeping prisoners and detainees in custody under conditions which resemble a cruel, inhuman and humiliating treatment or punishment”?

“If there be any among us who wish to dissolve this union, or to change its republican form, let them stand undisturbed, as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.” The framers of the German Grundgesetz (Basic Law or Constitution) of 1949 had lost Thomas Jefferson's optimistic faith that the self-healing powers of reason would render a democratic polity immune to totalitarian temptation. The Weimar Republic had proved defenceless against the rise of a totalitarian movement, which availed itself of the democratic process as a Trojan horse in its effort to establish a brutal dictatorship.

Robert Kagan's article and book on the future of transatlantic relations have gained much prominence in the debate on the reasons for and impact of the transatlantic rift on the war against Iraq. However, and regrettably, Kagan's work confirms rather than challenges the prejudices and stereotypes of both sides. After putting Kagan's approach in a political perspective, I intend to show that the antinomies used by Kagan and other participants in the debate, such as might and right, unilateralism and multilateralism, prevention and repression, hegemony and sovereign equality, democratic imperialism and pluralism, constitute useful analytical tools, but do not in any way capture the divergence of values and interests between the United States and Europe. However, the result of such an analysis does not lead to the adoption of one or the other extreme, but to the realization that international law occupies the space between them, allowing for the permanent re-negotiation of the place of “Mars” and “Venus” in international affairs.

Newspapers abound with stories of corporate difficulties in connection with asbestos-related lawsuits. Internationally, most litigation to date has taken place in the United States, where high damages awards, comparatively liberal liability theories, and countless claims by not only the sick but also the so-called “worried well” – those who claim to have been exposed to asbestos but who have not yet contracted an asbestos-related disease – have clogged the judicial system and landed many companies in strife. Insurers have also been hit hard.