Main Data
Author: Eibe Riedel, Rüdiger Wolfrum
Editor: Eibe H. Riedel, Rudiger Wolfrum
Title: Recent Trends in German and European Constitutional Law German Reports Presented to the XVIIth International Congress on Comparative Law, Utrecht, 16 to 22 July 2006
Publisher: Springer-Verlag
ISBN/ISSN: 9783540377207
Edition: 1
Price: CHF 82.80
Publication date: 01/01/2010
Category: Recht/Jurisprudenz
Language: English
Technical Data
Pages: 289
Kopierschutz: DRM
Geräte: PC/MAC/eReader/Tablet
Formate: PDF
Table of contents

This volume contains the German National Reports on Public Law presented at the XVIIth Congress of the International Academy of Comparative Law, Utrecht 2006.

The articles provide an overview over recent developments and new issues in both European Constitutional and German Public Law from a German perspective and offer an in-depth analysis of the legal issues discussed.

The book offers scholars as well as practitioners a sound basis for studies on a wide range of current and interesting issues in the field of comparative law.

Table of contents
"II. The Concept of Precautionary Action (S. 182-183)

1. Material Content and Limits of the Precautionary Principle in German Law

For many years the necessity to reflect on the conditions and limits of the precautionary principle has become apparent.10 Being a binding, but rather abstract legal concept it has been adapted to many different circumstances and largely depends on its concrete realization through various statutes.11 § 4 of the legal expert draft of a General Part of an Environmental Code (Umweltgesetzbuch – Allgemeiner Teil – Entwurf – UGB-AT-E) defines the precautionary principle as the requirement to strive towards precluding preventable or unforeseeable environmental degradation by adequate measures, in particular by long-term planning and by emission limitations according to the technical state of the art.

12 § 5 (1) of the Draft of the Commission on the Creation of an Environmental Code (UBG-KomE) in a more all-encompassing way maintains the necessity to prevent or reduce risks to the environment and human health, in particular by farsighted measures, by planning and by adequately applied technical measures.

13 § 5 (2) states that “precaution serves the protection of sensitive constituents of the balance of nature”. 14 Although these draft laws have not been enacted yet, they provide a good basis for understanding the nature of the precautionary principle.15 From a scientific point of view, risks are assessed by multiplying the probability of damage by the severity of that damage.16 In German law there is a discussion whether the precautionary principle should only be understood as precaution against risks or additionally as requiring precautions to ensure the preservation of resources, which is related to the term “sustainable development”.

Risk precaution basically means shifting the classical notion of danger prevention towards areas where a danger does not yet exist, although it appears very hard in practice to differentiate between the two situations. Some authors identify a certain tendency of police law, which traditionally has dealt with dangers, to increasingly adopt the structure of risk administration. According to a statement of Di Fabio, “the great ‘softener’ of the precautionary principle has for a long time infiltrated the field of danger prevention”. Others state that the precautionary principle does not aim at achieving something other than danger prevention, but that it requires different instruments and follows different categories."
Table of contents
Title Page4
Copyright Page5
Table of Contents8
Constitutional Principles for Europe*9
I. General Issues9
1. The Subject Matter9
2. National and Supranational Principles: On the Question of Transferability11
3. Constitutional Principles in View of Varying Sectoral Provisions13
II. Founding Principles of Supranational Authority15
1. Equal Liberty15
2. The Rule of Law18
3. Democracy25
a) Development and Basic Features25
b) The Principle of Democracy and the Institutional Structure31
c) Transparency, Participation, Deliberation and Flexibility34
d) Supranational Democracy: An Evaluation38
4. Solidarity40
III. Concluding Remarks42
The Emergence of European Constitutional Law44
I. Introduction44
II. Starting Point: The Case Law47
III. Fundamental Objections49
IV. A Functional Approach?53
V. The Case for Further Constitutionalization59
VI. The Role of the European Convention on Human Rights 62
VII. Conclusions65
The Legal Position of Migrants  GermanReport70
Introduction: Who Qualifies as Migrant in the German Context? 71
1. The Structure of Legal Regulation of Migrants Status: the Emergence of a Multi-Level System of Migration Law73
1.1. Current Dynamics73
1.2. German Migration Laws, according to their Rank within the Legal Order74
1.2.1. Constitutional Law74
1.2.2. Parliamentary Legislation75
1.2.3. Rule-Making by the Federal Government75
1.2.4. Rule-Making by the Länder Governments76
2. Legal Conceptions Used in National Legislation: Alien as the Basic Concept of German Migration Law77
2.1. Aliens77
2.2. Union Citizens77
2.3. Refugees78
2.4. Migrant Workers78
2.5. Illegal Residents79
3. Acquiring the Status of Migrant: a Plurality of Residence Permits 79
3.1. The Types of Residence Permits Under the Residence Act79
3.2. Administrative Procedures and Legal Review82
3.3. The Main Groups of Migrants in Germany, according to their Legal Status84
3.3.1. Union Citizens and their Relatives84
3.3.2. Long-Term Residents and their Relatives86
3.3.3. Migrant Workers of Turkish Nationality and their Relatives89
3.3.4. Admission for Purposes of Employment91
3.3.5. Persons with Refugees Status or Other Forms of InternationalProtection92
3.3.6. Persons whose Deportation Is Temporarily Suspended (So-Called Toleration) 96
3.3.7. Admission of Migrant Groups on