Riedel / Wolfrum 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
2006
ISBN: 978-3-540-37720-7
Verlag: Springer
Format: PDF
Kopierschutz: Wasserzeichen (»Systemvoraussetzungen)

E-Book, Englisch, Band 188, 289 Seiten, eBook

Reihe: Beiträge zum ausländischen öffentlichen Recht und Völkerrecht

The present volume compiles the German National Reports on Public Law that are to be presented at the XVIIth Congress of the Inter- tional Academy of Comparative Law, which will take place from 16 – 22 July 2006 in Utrecht, the Netherlands. By publishing the conference report before the conference itself has taken place, we hope to enable interested scholars and practitioners to gain information in greater - tail as it will be possible during the conference, and in this way to stimulate and inspirit the overall discussion. The Congress, like its predecessors, will bring together academics and practitioners from all over the world and thus offer an excellent opportunity for discussion and comparison on a wide range of current and interesting issues. The articles of this volume map out the current situation and doctrinal ramifications of a specific comparative project, as designed by the C- gress organisers. Each contributor provides both a full picture of the subject area and sets out his or her view on the topic, which will, given our experiences from the previous conferences, stimulate and enrich the discussions at this year’s conference. This volume contains eight reports focussing on specific topics of G- man Public Law and two dealing with questions of European Consti- tional Law.

Zielgruppe

Research

Autoren/Hrsg.

Riedel, Eibe

Wolfrum, Rüdiger

Riedel, Eibe H.

Wolfrum, Rudiger

Inhaltsverzeichnis

Constitutional Principles for Europe.- The Emergence of European Constitutional Law.- The Legal Position of Migrants — German Report.- Constitutional Referendum in Germany — Country Report.- E-Government — Country Report on Germany.- Quangos — An Unknown Species in German Public Law? German Report on the Rulemaking Power of Independent Administrative Agencies.- Progress and the Precautionary Principle in Administrative Law — Country Report on Germany.- Legal Means for Eliminating Corruption in the Public Service.- Characteristics of International Administration in Crisis Areas — A German Perspective.- Constitutional Guarantees of Judicial Independence in Germany.

Leseproben

"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."