Germany

Germany in Europe

According to the work “Guide to Foreign and International Citations”, by the Journal of International Law and Politics (New York University School of Law):

In Germany’s federal structure, most of the legislative power is concentrated at the national level, while administrative, judicial, and enforcement functions are exercised principally at the state level. Executive responsibilities on the federal level lie principally with the Federal Government (Bundesregierung), which is headed by the Chancellor (Bundeskanzler). The Chancellor is elected by the Bundestag. The Federal President (Bundespräsident), the official head of state, is elected for a five-year term—with the possibility of reelection for a consecutive term—by a Federal Convention (Bundesversammlung) consisting of equal numbers of members of the Lower House of Parliament (Bundestag) and members elected by the parliaments of the individual states. The President’s duties are primarily ceremonial.

The Constitution vests the legislative power in a bicameral parliament, consisting of the Lower House of Parliament, whose members are directly elected by the people every four years, and the Senate (Bundesrat), who consists of members of the state governments. Most federal law is initiated by the Federal Government and later voted upon and passed into law, first by the Bundestag and then the Bundesrat. The Bundesrat, however, has only suspensive veto power over most legislation. Thus, with the important exception of bills relating to the administrative responsibilities of the states, the Bundesrat can only delay legislation rather than veto it outright.

The 16 Länder have their own constitutions, each of which establishes a unicameral State Legislature (generally called Landtag). The State Legislature elects the state’s Prime Minister (generally called Ministerpräsident), who heads the State’s Government (Landesregierung or Staatsregierung).

Judicial power is exercised by the Federal Constitutional Court, the federal courts and the courts of the States.

Germany’s legal system is based on a civil law tradition.

Judicial functions pertaining to the federal constitution are performed exclusively by the Federal Constitutional Court (Bundesverfassungsgericht). State constitutional matters are generally adjudicated by State Constitutional Courts (Landesverfassungsgericht).

In contrast to some other federative countries, Germany’s state and federal courts are integrated in a single court system, organized both hierarchically and by subject matter. The courts are grouped into five categories:

  • Ordinary Courts (Ordentliche Gerichtsbarkeit),
  • Labor Courts (Arbeitsgerichtsbarkeit),
  • Administrative Courts (Verwaltungsgerichtsbarkeit),
  • Social Courts (Sozialgerichtsbarkeit), and
  • Fiscal Courts (Finanzgerichtsbarkeit).

The federation can establish special courts as well, like the Federal Court for Patent Matters.

The Ordinary Courts are responsible for criminal matters, civil matters (such as matrimonial or family proceedings and disputes arising under private law such as sale or lease agreements, as well as commercial and corporate law), and non-contentious legal proceedings, which include bequests, probate and guardianship matters. There are four levels: local courts, regional courts, regional courts of appeals (all administered on state level) and the Federal Court of Justice (Bundesgerichtshof). In criminal cases, one of the first three courts has original jurisdiction, depending on the nature of the crime. In civil proceedings, jurisdiction is vested in either the local or regional court.

The Labor Courts handle disputes arising from employment contracts and industrial relations, including collective bargaining agreements. There are three levels: labor courts, labor courts of appeals (both administered of state level), and the Federal Labor Court (Bundesarbeitsgericht). The Administrative Courts also have three levels:

  • the administrative courts
  • the administrative courts of appeals, both on the state level, and, finally,
  • the Federal Administrative Court (Bundesverwaltungsgericht).

They handle proceedings under administrative law that do not fall within the jurisdiction of the social courts, the finance courts, the ordinary courts (e.g., cases of official liability), or the constitutional courts. The Social Courts rule on all disputes concerned with social security. They also have three levels: local, appellate and the Federal Social Court (Bundessozialgericht). Finally, the fiscal courts (Finanzgerichtsbarkeit), which consist of only one level of state courts and the Federal Finance Court (Bundesfinanzhof), deal with taxation and related matters.”

History

Nationalism among the German Knights

More truly patriotic as a class than German princes or German burghers were the German knights—those gentlemen of the hill-top and of the road, who, usually poor in pocket though stout of heart, looked down from their high-perched castles with badly disguised contempt upon the vulgar tradesmen of the town or beheld with anger and jealousy the encroachments of neighboring princes, lay and ecclesiastical, more wealthy and powerful than themselves. Especially against the princes the knights contended, sometimes under the forms of law, more often by force and violence and all the barbarous accompaniments of private warfare and personal feud. Some of the knights were well educated and some had literary and scholarly abilities; hardly any one of them was a friend of public order.

Yet practically all the knights were intensely proud of their German nationality. It was the knights, who, under the leadership of such fiery patriots as Ulrich von Hutten and Franz von Sickingen, had forcefully contributed in 1519 to the imperial election of Charles V, a German Habsburg, in preference to non-German candidates such as Francis I of France or Henry VIII of England. For a brief period Charles V leaned heavily upon the German knights for support in his struggle with princes and burghers; and at one time it looked as if the knights in union with the emperor would succeed in curbing the power of the princes and in laying the foundations of a strongly centralized national German monarchy.

Rise of Lutheranism Favored by the Knights and Opposed by Charles V

But at the critical moment Protestantism arose in Germany, marking a cleavage between the knightly leaders and the emperor. To knights like Ulrich von Hutten and Franz von Sickingen the final break in 1520 between Martin Luther and the pope seemed to assure a separation of Germany from Italy and the erection of a peculiar form of German Christianity about which a truly national state could be builded. As a class the knights applauded Luther and rejoiced at the rapid spread of his teachings throughout Germany. On the other hand, Charles V remained a Roman Catholic.

Not only was he loyally attached to the religion of his fathers through personal training and belief, but he felt that the maintenance of what political authority he possessed was dependent largely on the maintenance of the universal authority of the ancient Church, and practically he needed papal assistance for his many foreign projects. The same reasons that led many German princes to accept the Lutheran doctrines as a means of lessening imperial control caused Charles V to reject them. At the same Diet at Worms (1521), at which the Council of Regency had been created, Charles V prevailed upon the Germans present to condemn and outlaw Luther; and this action alienated the knights from the emperor.

Online Official Resources:

  • Federal Government: bundesregierung.de
  • Lower Chamber of Federal Government: bundestag.de
  • Higher Chamber of Federal Government: bundesrat.de
  • Federal President: bundespraesident.de
  • Constitutional Court: bundesverfassungsgericht.de
  • Federal Patent Court: www.bpatg.de
  • Attorney General: generalbundesanwalt.de
  • Federal Ministry of Justice: bmj.bund.de
  • Federal Gazette: bundesgesetzblatt.de

Federal Courts online resources include:

  • https://www.bundesgerichtshof.de
  • https://www.bundesarbeitsgericht.de
  • https://www.bundessozialgericht.de
  • https://www.bverwg.de
  • https://www.bundesfinanzhof.de

Federal Law online resources include:

  • https://bundesrecht.juris.de/bundesrecht
  • https://www.jura.uni-muenster.de
  • https://www.jura.uni-sb.de

Description of Germany

The Concise Encyclopedia of the European Union describes germany in the following terms: [1] After the country’s defeat in World War II, Germany was partitioned into four occupied zones – US, British, French and Soviet. Berlin, itself divided into the same four zones, lay in the Soviet sector, and in 1949 East Berlin became the capital of a grim new Soviet satellite state, the German Democratic Republic, known as East Germany. At the same time the Federal Republic of Germany, or West Germany, was formed from the three western zones, with Bonn as its capital. For a year in 1948/9, Berlin was blockaded by the Soviet Union but rescued from starvation by an allied airlift, thus preserving a lone beacon of freedom behind what Winston Churchill in 1946 had called the ‘Iron Curtain’ lowered on Europe by Stalin. In 1961, to stem the westward flow of refugees, the communists built the Berlin Wall, which was not torn down until the collapse of the Soviet empire in 1989 paved the way to the reunification of the country with the absorption of East Germany into the Federal Republic.

The German story over the last 50 years is principally that of great economic success accompanied by a complex relationship to the country’s troubled past and its anxious neighbours. Germany’s war guilt still casts its shadow. No ‘good German’ speaks of nationalism without a shudder (the contrast between the UK’s positive historical consciousness of nationhood and German recollections of National Socialism bedevils discussion of sovereignty between the two countries). Germany’s response to its own legacy has been to seek rehabilitation through integration into international organisations, with the aim of exercising collective rather than individual influence (see more in this European encyclopedia). Whether the main result of this policy has been to dilute Germany’s power or to extend its reach remains a matter of lively debate (see more in this European encyclopedia). It must, for example, be admitted that in many ways the EU has been shaped along German lines. Its ‘social dimension’ reflects the Rhine model of society rather than the Anglo-Saxon model. The D-mark long dominated the Community’s monetary environment and the European Central Bank is based on the Bundesbank. The very concept of a federal Europe draws heavily on the Federal Republic’s structure.

Some of the deeper ideas that came to shape the modern Europe also have a history in German thought. In the Third Reich and Vichy France German conquest was rationalised as the beginning of a vigorous new European order capable of standing up to Bolshevism and challenging the Asian and Anglo-Saxon worlds. Earlier still, World War I planners in Berlin had nurtured visions of a customs union stretching across Mitteleuropa from France to the Russian frontier (see more in this European encyclopedia). Defeat, demilitarisation and the communist threat wrought a transformation in these ideas, which were now inherited by a peaceful new generation wedded to democracy and determined to anchor itself in friendly alliances: with NATO and the USA against the Soviet Union; with the EEC as a stepping stone to stability and prosperity; and with France as an assurance against resentment of Germany’s recovered strength or (that same ambiguity again) as a means to achieve joint leadership of Europe (see more in this European encyclopedia). A reunified Germanyis today free from danger on either border (see more in this European encyclopedia). It is rich and highly regarded as a reliable ally. If doubts about excessive power remain, they are as often the self-doubts of Germans as the misgivings of other nations.

The country’s yearning to be reaccepted as a civilised nation after World War II coincided with Churchill’s vision of Franco-German reconciliation as the key to some form of united Europe (see more in this European encyclopedia). West Germany was established with a new constitution in 1949, entering the Council of Europe in 1950. Meanwhile, Chancellor Konrad Adenauer was pursuing friendship with France, even floating the idea of complete union of the two countries. In 1951, Jean Monnetand Robert Schuman of France proposed, and Adenauer agreed, to pool their countries’ coal and steel industries. The objective, sealed with the Treaty of Paris, was to prevent the resurgence of German dominance in these crucial war industries. Adenauer went on to sign the North Atlantic Treaty in 1955 and the Treaty of Rome in 1957, the latter designed to free the market for German manufacturing in return for protecting French agriculture.

Germany’s Francophile strategy, symbolised by the signature of the Treaty of the Elysée in 1963, did not, however, blind it to other priorities, some of which were anathema to Adenauer’s soulmate and co-signatory, the French president Charles de Gaulle. Adenauer was pro-American and favoured British membership of the EEC. His economics minister Ludwig Erhard, the architect of Germany’s ‘economic miracle’ of the 1950s and 1960s and a strong believer in open markets, was opposed to French protectionism: he even tried to resist the concept that the Common Market should be a customs union rather than a free trade area. The technocrat Walter Hallstein, who became the first president of the Commission in 1958, was an ardent federalist, a stance that led to bitter clashes with de Gaulle but set a policy that was to be followed almost uninterruptedly both in Brussels and in Germany, above all under Commission President Jacques Delors and Chancellor Helmut Kohl in the 1980s and 1990s.

If the mutual interests of France and Germany were strong enough to survive the nationalism of de Gaulle, they easily surmounted lesser strains, and a succession of French presidents and German chancellors continued to develop the special relationship. For Germany, however, there were still greater issues to the east – the Soviet threat and the seemingly remote dream of reunification. In the early 1970s, reversing the previous ‘Hallstein doctrine’ of confrontation with the Warsaw Pact countries, Chancellor Willy Brandt had instituted Ostpolitik, a policy of détente greeted with caution, even suspicion, in anti-communist circles. For the next 20 years, Germany’s political agenda would be defined by Ostpolitik (conducted with varying degrees of enthusiasm) and the maintenance of Franco-German leadership of a Europe in which integration was proceeding inexorably, if at an uneven pace.

In 1990 the Berlin Wall came down, as suddenly as it had been erected. President François Mitterrand of France and British Prime Minister MargaretThatcher reacted to the potential enlargement of Germany with visceral alarm, as did Italy’s premier Giulio Andreotti, but Kohl pushed ahead resolutely. Mitterrand, recognising the inevitable, switched tack, accepting reunification in exchange for the Maastricht Treaty, which he saw as a new version of France’s longstanding policy of German containment. To Kohl, the bargain was attractive – a more unified EU and a Germany made whole, in return for surrendering the hegemony of the D-Mark.

The future will belong to the Germans … when we build the house of Europe. Former chancellor Helmut Kohl

Reunification presented the Community with severe technical obstacles, relating chiefly to the acquis communautaire, Russian troops and East Germany’s treaties. By a special dispensation, however, East-West German trade was already tariff-free and transitional arrangements were soon agreed. The united Germany was incorporated into NATO, the Polish border was settled and in 1994 the last of Russia’s 350,000 soldiers departed. The price of reunification was incalculable (see more in this European encyclopedia). On top of some DM13 billion paid to the Russians, there were the costs of cleaning up East Germany’s pollution and building its infrastructure and the disguised cost of exchanging the D-Mark for the worthless Ostmark on a 1-for-1 basis. Priced out of the labour market, East Germans migrated westwards in search of jobs, while high interest rates, designed to forestall inflation, fed through into Europe-wide recession and volatile foreign exchange markets.

Germany’s population was now increased by 17 million and its land area by 30%. Already Europe’s largest country, with the added influence derived from being the principal contributor to the Community budget, it had become even more dominant – at least in economic terms. Its number of MEPs was increased from 81 to 99, though its votes in the Council of Ministers remained unchanged. Diplomatically Germany had long felt unable to punch its weight, having been impotent in the 1991 Gulf War and the Bosnian crisis. In 1994, however, it reflected its maturing political status by amending its constitution to allow German troops to be deployed outside its own borders on UN-backed operations – an amendment further modified in 1999 to allow participation in the international force in Kosovo.

Nineteen ninety-eight marked Kohl’s 16th and last year as chancellor, by which time he had progressively realised his mission of ‘a united Germany in a united Europe’. It had often been an uphill struggle. The Community was less popular among the electorate than in the élites. The growing authority vested in the EUtook away power not only from the national government but also from the almost equally important governments of the regions, the L?nder (see more in this European encyclopedia). This twin threat to sovereignty led to the German constitutional court coming close to refusing permission to ratify the Maastricht Treaty. Towards the end of his career Kohl had staked his reputation on the single currency, against the advice of the prestigious Bundesbank and seemingly against the wishes of the majority of his fellow citizens. A weak and divided coalition opposition, however, together with abhorrence of any action that could be construed as a reversion to nationalism, ensured that in the end the replacement of the D-Mark by the euro went through with little organised protest.

In recent years the country’s image as an economic powerhouse has been somewhat dented. The political will has been lacking to undertake fundamental tax and labour market reforms in the face of heavy unemployment; and there has been a trend in manufacturing industry to invest abroad rather than incur Germany’s high social and regulatory costs. Nor are these the only problems. The former East Germany remains economically backward; and social tensions have been awakened by an influx of refugees from Central Europe, Turkey and the Balkans. The resultant malaise led to Kohl’s defeat by Gerhard Schroder in the elections of 1998, bringing to power for the first time a chancellor without direct memories of the war years.

Initially preoccupied with domestic concerns, Schroder flirted briefly with the ‘third way’ message of British Prime Minister Tony Blair, before allowing relations with France to resume centre stage (see more in this European encyclopedia). These, however, were not quite what they had once been. The personal chemistry between the two countries’ leaders was indifferent; they had disagreed over several aspects of the single currency; and Germany’s vision of a federal Europe with a powerful Parliament was at variance with France’s preferred model of integration. Moreover, change was afoot. Spain and Britain, despite the latter’s non-participation in the euro, were a growing presence (see more in this European encyclopedia). Eastward enlargement would bring Europe’s centre of gravity closer to Berlin: but it would also complicate the question of EUintegration and would raise the spectres of migration, low-cost competition and organised crime (see more in this European encyclopedia). As Kohl’s immense shadow faded, some of Germany’s old certainties were fading with him.

Merger Law in Germany

Germany and the Laws of International Trade

Resoruces

See Also

Resources

Notas y References

  1. Based on the book “A Concise Encyclopedia of the European Union from Aachen to Zollverein”, by Rodney Leach
  2. Véase También

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