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Littérature scientifique sur le sujet « Judicial review – Germany »

Auteur : Grafiati

Publié le 10 mars 2023

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Articles de revues sur le sujet "Judicial review – Germany"

Nolte, Georg, et Peter Rädler. « Germany – Judicial Review in Germany ». European Public Law 1, Issue 1 (1 mars 1995) : 26–32. http://dx.doi.org/10.54648/euro1995007.

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Stelkens, Ulrich. « Judicial Protection and Competitive Award Procedures in Germany ». Review of European Administrative Law 14, n^o 1 (14 mai 2021) : 141–65. http://dx.doi.org/10.7590/187479821x16190058548763.

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The history of German public procurement law is a history of attempts by the German legislator to implement the EU public procurement directives on judicial protection, namely Directive 89/665/EEC of 21 December 1989, as minimally as possible. Paradoxically, the history of German procurement law is also the history of an increased spreading of the model of judicial review in 'competitive award procedures' underlying Directive 89/665/EEC to other administrative procedures. Here, one can discern mutual fertilization of the discussions on the minimal standards for judicial protection foreseen in Directive 89/665/EEC, as well as a parallel discussion on minimal standards (directly derived from the German constitution) for judicial review in competitive award procedures concerning the recruitment of public officials. On this basis, one may discern trends in German case law, administrative practice, and scholarship towards developing judicial review systems in competitive award procedures for public procurement beyond the thresholds set by the EU directives. This is relevant for privatizations, gambling licences, and procedures to grant the right to use public spaces, to name only a few. However, these trends encounter difficulties because the German General Administrative Court Procedure Act and other relevant legislation are not tailored to competitive award procedures. This article will analyse these different trends and suggest explanations for them.

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Aung, Nge Nge. « The Basis of Constitutional Adjudication in Germany ». Fiat Justisia : Jurnal Ilmu Hukum 16, n^o 1 (7 juin 2022) : 47–64. http://dx.doi.org/10.25041/fiatjustisia.v16no1.2419.

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The Federal Constitutional Court of Germany leads the judiciary’s independence by protecting human rights within the Basic Law’s legal framework. In this case, the jurisdiction of the Court is essential to analyse comprehensively. The first and foremost function is interpretation. It is concerned with the extent of a supreme federal authority’s rights and duties and the citizens who can enjoy the fundamental rights under the Basic Law. The rest are abstract judicial review, constitutional complaint, and concrete judicial review. These all seem to depend on the Court’s interpretation and the supremacy of human dignity. Therefore, the issues lie when human dignity becomes a constitutional principle to resolve economic, social, and political disputes within the constitutional framework both in Germany and the European Union in practice. This research will used qualitative approach method. According to the literature reviews, human dignity is supreme, but it does not mean absolute.

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Konyukhova, A. A. « Settlement of Tax Disputes in the Russian Federation and Germany ». MGIMO Review of International Relations, n^o 2(41) (28 avril 2015) : 269–75. http://dx.doi.org/10.24833/2071-8160-2015-2-41-269-275.

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This article is devoted to the settlement of tax disputes in the Russian Federation and the Federal Republic of Germany. The features of the conflict settlement mechanism are both shown in the stage of administrative and judicial review. In accordance with German law, the administrative stage of dispute resolution, carried out by the tax authority, always precedes the filing of a complaint to a court. Consequently, the taxpayer submits his first application in writing to the tax authority that issued the tax act, though in some cases to a higher tax authority. This obligatory procedure was borrowed by the Russian tax system. The trial stage of tax dispute settlement in Germany is carried out by specialized courts, forming a two-level system for legal proceedings. Thus, the tax dispute submitted to the Court is settled first by the financial lands courts and then by the higher Federal Financial Court. However, the Federal Financial Court takes into consideration only certain categories of actions listed in the Act (the Regulations) of finance courts (Finanzgerichtordnung). In Russia appeals of administrative review of tax conflicts, unlike in the German system, are handled by arbitration and general jurisdiction courts. The Supreme Arbitration Court of the Russian Federation is the supreme judicial body for settling economic disputes and other cases considered by arbitration courts in implementing federal procedural judicial supervision over their activities and provides explanations regarding judicial practices. Arbitration courts established at the level of the Federation to resolve disputes involving commercial entities, e.g. enterprises and entrepreneurs, resolve the bulk of tax disputes. These courts are composed of specially created panels of judges known as bars, i.e. groups of judges who specialize in reviewing taxation cases.

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Belling, D. V., et G. Kulyamina. « Pardon in german law ». Lex Russica, n^o 3 (5 avril 2019) : 116–23. http://dx.doi.org/10.17803/1729-5920.2019.148.3.116-123.

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In modern Germany, a secular state with a republican form of government, there is still the institution of pardon, known in the pre-Christian era. Under the current Constitution of Germany pardon is carried out by the President of Germany, the decision is not subject to judicial review. The relationship of mercy and justice has been controversial for centuries. Opinions differ in literature and court practice, up to the Federal Constitutional Court of Germany. A retrospective of the historical development of the practice of pardon, the analysis of the goals and consequences of this measure convincingly prove the need for the possibility of judicial review of clemency decisions enshrined in the legislation. This is the only effective way to prevent arbitrariness, abuse of power and violation of human rights. The modern legal state should not allow the negative experience of past dictatorships and monarchies.

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Harker, Michael, Sebastian Peyer et Kathryn Wright. « JUDICIAL SCRUTINY OF MERGER DECISIONS IN THE EU, UK AND GERMANY ». International and Comparative Law Quarterly 60, n^o 1 (janvier 2011) : 93–124. http://dx.doi.org/10.1017/s0020589310000680.

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AbstractThe appropriate role of the courts in controlling the discretion of merger authorities has become one of the key issues in European merger law and policy in recent years. This article investigates judicial review of merger decisions, taking a comparative approach by examining cases from the EU, UK and Germany. We observe an apparent increase in the willingness of the EU and UK courts to scrutinize merger decisions, and a long-standing tradition of close scrutiny in Germany. In respect of the EU and UK, we consider agency theory offers a convincing explanation—that increased scrutiny is explained by the need to enhance the credibility of merger policy. In Germany, the constitutional basis of judicial review differs significantly, and the relatively close scrutiny exercised by the court is better explained by the very different constitutional context.

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Katsirea, Irini. « Judicial Review of Party Broadcasts in Germany and the United Kingdom ». Journal of Media Law 1, n^o 2 (novembre 2009) : 269–87. http://dx.doi.org/10.1080/17577632.2009.11427344.

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Baer, Susanne. « Who cares ? A defence of judicial review ». Journal of the British Academy 8 (2020) : 75–104. http://dx.doi.org/10.5871/jba/008.075.

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For a long time, politicians and scholars and even judges have criticised national and international courts with the competence of judicial review of legislative and executive powers. The defence usually relies on more or less abstract notions of the rule of law. This article, however, argues that at the heart of the matter are people, as protected by fundamental rights. Critical approaches to the law and studies in comparative constitutionalism allow us to understand why judicial review matters, namely: to whom. From that point of view, judicial review is not just a debatable idea, but it is about, specifically, children and women, non-patriarchal men and social and cultural minorities, poor people and others who are excluded. These are people in need of courts. For people, the rule of law is not just another concept of how things may be run, but is a protective device against arbitrariness, or outright hostility, of political majorities. Way beyond a reference to Germany�s history, judicial review is a �never again� to law as an empty promise.

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Perkins, Andrew James. « The Legal and Economic Questions posed by the German Constitutional Court’s decision in the Public Sector Purchase Programme (PSPP) Case ». ATHENS JOURNAL OF LAW 7, n^o 3 (1 juillet 2021) : 399–412. http://dx.doi.org/10.30958/ajl.7-3-7.

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This paper seeks to explore the PSPP decision of the German Constitutional Court and its effect on the monetary policy decisions taken by central banks. It begins by exploring the decision and its effect in Germany, together with its wider implications for the European Monetary Union before moving onto consider the standard of review that should be applied by the Courts when they are required to review central banks actions. Conclusions are reached to show that any standard of review should be limited because of the unique economic and political circumstances in which central bank decision making takes place. Keywords: Central Banking; Judicial Review; Proportionality; European Law; European Monetary Union.

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Shumylo, Mykhailo. « Judicial assistant : current state of legal regulation and review of court practice ». Yearly journal of scientific articles “Pravova derzhava”, n^o 32 (2021) : 323–30. http://dx.doi.org/10.33663/0869-2491-2021-32-323-330.

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Patronage service(executive support service)is a type of service and employment relations that arise, change and terminate to ensure effective, proper and quality performance of their duties by officials who are legally entitled to have a patronage servant. The term “patronage” comes from “patronatus” in Latin- the state or rights of the patron. In the national legislation, the patronage service is a quite new category and was first introduced in 1993 with the adoption of the Law on Civil Service, and therefore has no old traditions. The change in the status of the patronage service in Ukraine indirectly indicates its formation. There is no single approach to the principles of patronage service in foreign countries, for example, in Italy and Germany patronage service does not stand out as a separate concept, but such kind relationships are included in the public service, while in Australia, Britain, Georgia, Canada, Lithuania and Poland patronage service conceptually stands out as a category of public service with a number of special rules. The establishment of a patronage service in Ukraine was an objective necessity and today it operates in the system of legislative, executive and judicial branches. The labor functions of patronage service employees are directly correlated with the labor functions of public law official to whom they are assigned (subordinated). The patronage service includes advisers, assistants, commissioners, press-secretaries of the President of Ukraine, employees of the secretariats of the Chairman, First Deputy Chairman and Deputy Chairman of the Verkhovna Rada of Ukraine, employees of patronage services of the Prime Minister of Ukraine and other members of the Cabinet of Ministers of Ukraine, advising assistants of People's Deputies of Ukraine, judicial assistants and scientific advisers to judges of the Constitutional Court of Ukraine, judicial assistants, advisers to the Chairman of the Supreme Court and chairmen of cassation courts, as well as positions of patronage servants in other state bodies. At the same time as for judiciary, part 4 of Article 92 of the Civil Service Law (2015) states that the specifics of patronage service in courts, bodies and institutions of the judicial system are determined by the legislation on the judiciary and the status of judges. Judicial assistants are an integral part of the judiciary. Despite their legal status, whether civil or patronage servants, the lion's share of work is performed by judicial assistants. It can be concluded, directly or indirectly, that effective work of a court or a judge is not possible without the effective work of judicial assistants (judges' offices) and this interdependency is obvious. It should also be noted that a significant number of assistants later become judges, or if we take a look at the biographies of judges of all levels we can find out that many of them took their first steps in the legal profession as judicial assistants. This might lead to the conclusion that “judicial assistants environment” is a kind of a personnel reserve of the judiciary.

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Thèses sur le sujet "Judicial review – Germany"

Corkin, Nicola Christine. « Developments in abstract judicial review in Germany, Austria and Italy ». Thesis, University of Birmingham, 2011. http://etheses.bham.ac.uk//id/eprint/2835/.

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This thesis investigates the reasons for the change in decision-making patterns in abstract judicial review in Germany, Italy and Austria in the last three decades. The literature on constitutional courts suggests that there are six factors influencing the decision-making of a constitutional court judge: personal political attitudes of the judges, direct influence by political institutions, Black Letter of the Law, Precedent, changes in public opinion and the harmonisation of national law with European law. The empirical data shows that throughout the last three decades the conditions in which legislation is formulated has become more complex through the harmonisation of national law with European Law. This causes the courts to react in three distinct ways: 1. The style of decisions is more interpretative 2. More laws are, at least in part, found unconstitutional 3. The pattern of decisions is leaning towards more unconstitutionality rulings so as to clarify the political framework for future legislation. Worry is expressed by the courts that not all the cases reaching them are referred to them in good intention. Politicians are increasingly using the complexity of the political system to refer cases to the courts on which they would prefer not to take a decision.

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Jameson, A. « The Federal Constitutional Court, basic rights and the family : A study of the political significance of judicial review in West Germany ». Thesis, University of Oxford, 1986. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.384698.

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Künnecke, Martina. « Towards similar standards of judicial protection against administrative action in England and Germany ? : a comparison of judicial review of administrative action and the liability of public authorities under the influence of European laws ». Thesis, University of Hull, 2002. http://hydra.hull.ac.uk/resources/hull:8314.

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This comparison has shown that the traditionally divergent positions, which are taken in the control of administrative action in England and Germany, display some common ground in very general terms on which decisions are being taken. The formulation of these general observations is valuable in the preparation of a transnational approximation of judicial review mechanism for the establishment of comparable levels of judicial protection in Europe. These results may be useful for future developments of a common system of judicial review across Europe, even though these results may only represent two pieces in the jigsaw. The comparison has also identified major differences and assessed the reasons for the diverging developments in a historical perspective. The identification of these differences is equally important because of the need to find compromises between divergent systems. Secondly, the thesis was concerned with an analysis of the degree of Europeanisation of the national judicial review systems and the concept of public liability as it is currently emerging. Here, some changes can be noted in both legal systems, which have led to a slow convergence of the systems. The changes in England are marked by an increasing openness for more transparency in the decision-making and the development of a more rights based culture. The substantive review of administrative decision through the application of sharper tools such as proportionality and substantive legitimate expectation mark a new era. Germany, on the other hand displays very high standards of review. The changes in Germany which were provoked mainly by case law of the European Court of Justice indicate the need to reduce the standard of review in some areas, such as the protection of substantive legitimate expectation in the context of the recovery of, state aid. The neglect of procedural protection which is illustrated by generous provisions which allow the in-trial curing of procedural effects displays an approach in Germany which is very focused on the substantive correctness of decisions. This attitude might, in the future lead to controversies in the context of European laws. Nevertheless, limitations to a convergence are inherently set by each national systems constitutional framework. The reasons for the different developments of both legal systems in the nineteenth and early twentieth century can not be ignored and will remain to an extent to preserve the national character of both systems. The variety of results, which have been identified in the four main chapters of this thesis were concerned with issues dealing with the institutional aspects as well as systematic aspects of judicial review and public liability in England and Germany. However, the nature of this comparison required the analysis of institutional contexts as well of the substantive and procedural judicial review mechanisms. The questions asked were concerned with identification of common principles and differences in a historical context, the degree of Europeanisation, which has led to an approximation of nationally divergent positions and the limitations, which are provided by each system's constitutional framework in which judicial review operates. The comparison focused on the development of a system of judicial review of administrative action in a historical perspective, the judicial control of the exercise of discretionary powers, fair procedures and their judicial review and the liability of public authorities in tort.

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Rypáčková, Lucie. « Komparace správního soudnictví v České republice a vybraných evropských státech ». Master's thesis, Vysoká škola ekonomická v Praze, 2014. http://www.nusl.cz/ntk/nusl-196516.

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This thesis analyses the administrative justice system, which represents one of the key control mechanisms of the public administration in The Czech Republic. The aim of this thesis is to compare the administrative justice system of The Czech Republic with selected European models of the administrative justice system such as the French and German justice systems. The result of this comparison highlights the differences in justice systems and considers the possibility of implementing these models in The Czech legal system.The administrative justice system in The Czech Republic has been developing since 2003, when The Act N. 150/2002 came into effect. The operating administrative justice system in The Czech Republic is characterized by the following criteria: statutory framework, power and jurisdiction of the administrative court, organization of the administrative justice system and the course of the judicial administrative proceedings. The following chapters discuss the French and German models of the administrative justice system and analyze the similarities with the Czech system.The final chapter compares the individual administrative justice systems and their most important differences.

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Huang, Ren-Jyun, et 黃仁俊. « Intra-party democracy and the boundaries of judicial review in Germany ». Thesis, 2011. http://ndltd.ncl.edu.tw/handle/79606729808380628384.

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碩士
國立臺灣大學
國家發展研究所
100
This article is a structural analysis of the law and party system change in Taiwan. According to the single-party beginning, the change of party politics, the formation of party-state (Parteienstaat) ,the development of party system will be defined as the history of democratic transition in Taiwan(R.O.C.). Furthermore, this law change includes J. Y. (Judicial Yuan) Interpretation No. 31、J. Y. Interpretation No.261 and amending the Constitution for seven times. This interactive process initiates a dialog between the democratic state and the party democracy. Actually, they are hotly debating in the issue of intra-party democracy, political party autonomous, political party arbitration, inner-party primary election and expelling from the party. Consequently, this essay intends to give a systematic account of the intra-party democracy from the viewpoint of the comparative law. The problems of intra-party democracy are not only involved in the political reality and the legal system, they also involved in the divide of public laws and private laws, such as the Constitution, Party Law, Civil Organizations Act and Civil Code Part I General Principles. Hence, the purpose of this article is to establish a reasonable legal framework for the political parties. This essay has an aim to clarify the legal system of party in Germany and combine the social reality and the legal system in Taiwan so as to explore the issues of the freedom of political parties, the equality of political parties, the disclosure of political parties and the intra-party democracy in Taiwan(R.O.C.) and to comment the draft of party law in Taiwan(R.O.C.). This essay concludes that we should take the party law and intra-party democracy seriously. It is crucial to improve Taiwan''s Democratization.

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LE, BRETON Gaelle. « La cooperation du juge national a l'ordre juridique communautaire 1992-1993 ». Doctoral thesis, 1993. http://hdl.handle.net/1814/5461.

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ACAR, Ali. « Between legality and legitimacy : the case of judicial review of constitutional amendments from a comparative law perspective ». Doctoral thesis, 2015. http://hdl.handle.net/1814/34851.

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Defence date: 30 January 2015
Examining Board: Professor Giovanni Sartor (EUI Supervisor); Professor Bruno de Witte (EUI); Professor Giorgio Bongiovanni (University of Bologna, School of Law); Professor Reza Banakar (Lund University, Sociology of Law Department).
There is a growing scholarly interest in the issue of unconstitutional constitutional amendments. Generally speaking, this issue concerns whether there should be some limits to constitutional amendments and whether courts should control those limits. In this sense, unconstitutional constitutional amendment exacerbates the debate concerning the legitimacy of judicial review qua institution, and moves the discussion one step further. The rise in interest among scholars of the issue of unconstitutional constitutional amendments derives from the fact that constitutional amendments are sometimes used as an instrument by authoritarian governments to achieve their aims. The judiciary in various jurisdictions gives negative or affirmative responses to this instrumentalization of constitutional amendments by reviewing the contents of amendments. Thus, judicial review of constitutional amendments on substantive grounds has become a new legal phenomenon, which deserves close consideration. The purpose of this thesis is to contribute to this literature. How is it possible for a court to declare an amendment unconstitutional? Under what conditions can the legality of an amendment be questioned? What substantive considerations outweigh the formal value of a duly adopted constitutional amendment, which is normally regarded as the highest legal source in modern legal systems? What kind of legal theory can explain this practice? These are some of the guiding questions, the analysis of which constitutes the main goal of our work. The analysis is based on the distinction between the aspects of legality and of legitimacy. The legality of a constitutional amendment concerns two considerations. The first is whether the amendment is legally valid in terms of the constitutional norms. The constitutional norms here refer mainly to the procedural requirements or amendment mechanism, which the constitutional amendments have to meet. The second consideration is whether the amendment must conform to some (superior) principles, values etc. Depending on how one conceives of those superior principles, one may approach the issue at hand from the natural law perspective or legal positivism. In the present work, we stick to the legal positivism in accounting for the legality of unconstitutional constitutional amendments. The legitimacy of a constitutional amendment concerns the merit of the amendment according to political morality, namely, whether it is a good or a bad thing, with regard to the value that the constitutional amendment should pursue. Equally, the legitimacy of the substantive ii judicial review of constitutional amendments concerns whether it is a bad or good thing to confer on a court of an extra-ordinary power in a system, which is subscribed to constitutional democracy. This is a normative account of legitimacy, but it is not the only one. Legitimacy may also be approached sociologically, i.e. descriptively. In the latter account, legitimacy is examined on the basis of the political morality, which a legal and political order actually aims to achieve and pursue. These actual aims might be ideal or not (from an outsider and/or insider point of view). We will follow this sociological account in our analysis of the legitimacy of the judicial review of constitutional amendments. The analysis of the issue is carried out through a comparative law perspective. In this respect, three jurisdictions are examined: Germany, India, and Turkey, which provide the most prominent examples of case law concerning the judicial review of constitutional amendments on substantive grounds.

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FOURTOY, Frederic. « L'impact du droit communautaire secondaire sur le droit international privé français ». Doctoral thesis, 2003. http://hdl.handle.net/1814/4627.

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Defence date: 12 December 2003
Examining board: M. Christian Joerges, Directeur de recherches ; M. Eric Loquin, Codirecteur de recherches ; M. Hanns Ullrich, Suffragant ; Mme Elena Rodríguez Pineau, Suffragant
PDF of thesis uploaded from the Library digitised archive of EUI PhD theses completed between 2013 and 2017

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陳芃諭. « A Study on Judgements of the Court under Judicial Review : Feasibility of Introducing German Institution Constitutional Complaint ». Thesis, 2016. http://ndltd.ncl.edu.tw/handle/2nvawv.

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Livres sur le sujet "Judicial review – Germany"

Bhatia, K. L. Judicial review and judicial activism : A comparative study of India and Germany from an Indian perspective. New Delhi : Deep & Deep Publications, 1997.

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Vanberg, Georg. The politics of constitutional review in Germany. Cambridge : Cambridge University Press, 2005.

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Blüggel, Jens. Unvereinbarerklärung statt Normkassation durch das Bundesverfassungsgericht. Berlin : Duncker & Humblot, 1998.

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Streinz, Rudolf. Bundesverfassungsgerichtliche Kontrolle über die deutsche Mitwirkung am Entscheidungsprozess im Rat der Europäischen Gemeinschaften. Berlin : Duncker & Humblot, 1990.

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Judicial power in a federal system : Canada, United States and Germany. El Paso : LFB Scholarly Pub. LLC, 2012.

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1969-, Miller Russell A., et Ginsburg Ruth Bader, dir. The constitutional jurisprudence of the Federal Republic of Germany. 3^e éd. Durham, NC : Duke University Press, 2012.

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Haltern, Ulrich R. Verfassungsgerichtsbarkeit, Demokratie und Misstrauen : Das Bundesverfassungsgericht in einer Verfassungstheorie zwischen Populismus und Progressivismus. Berlin : Duncker & Humblot, 1998.

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Verfassungsgerichtsbarkeit in der Freien und Hansestadt Hamburg : Geschichte, Kompetenzen, Aufbau und Verfahren. Frankfurt am Main : P. Lang, 1991.

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Kommers, Donald P. The constitutional jurisprudence of the Federal Republic of Germany. Durham : Duke University Press, 1989.

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Kommers, Donald P. The constitutional jurisprudence of the Federal Republic of Germany. 2^e éd. Durham, N.C : Duke University Press, 1997.

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Chapitres de livres sur le sujet "Judicial review – Germany"

Singh, Mahendra P. « General Principles of Judicial Review ». Dans German Administrative Law, 64–82. Berlin, Heidelberg : Springer Berlin Heidelberg, 1985. http://dx.doi.org/10.1007/978-3-662-02457-7_5.

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Singh, Mahendra P. « Judicial Review of Discretionary Powers ». Dans German Administrative Law, 83–101. Berlin, Heidelberg : Springer Berlin Heidelberg, 1985. http://dx.doi.org/10.1007/978-3-662-02457-7_6.

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Singh, Mahendra P. « General Principles of Judicial Review ». Dans German Administrative Law in Common Law Perspective, 119–50. Berlin, Heidelberg : Springer Berlin Heidelberg, 2001. http://dx.doi.org/10.1007/978-3-662-07456-5_5.

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Singh, Mahendra P. « Judicial Review of Discretionary Powers ». Dans German Administrative Law in Common Law Perspective, 151–81. Berlin, Heidelberg : Springer Berlin Heidelberg, 2001. http://dx.doi.org/10.1007/978-3-662-07456-5_6.

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Mak, Elaine. « Another Turn of the Screw : An Evaluation of Lasser’S judicial Deliberations in the Light of the Practices of Constitutional Review in France, Germany and the United States ». Dans The Legitimacy of Highest Courts’ Rulings, 289–300. The Hague : T.M.C. Asser Press, 2009. http://dx.doi.org/10.1007/978-90-6704-519-3_19.

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« Germany ». Dans Judicial Review of Commercial Contracts. Beck/Nomos/Hart, 2021. http://dx.doi.org/10.5040/9781509931774.ch-006.

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« 5. Judicial Review in Germany ». Dans Controlling Environmental Policy, 72–81. Yale University Press, 1995. http://dx.doi.org/10.12987/9780300160840-008.

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Calabresi, Steven Gow. « The Federal Republic of Germany ». Dans The History and Growth of Judicial Review, Volume 2, 39–114. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780190075736.003.0004.

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This chapter looks at the German system of judicial review of the constitutionality of legislation, which has been borrowed by virtually all of the civil law countries in the world as being the one that is the most compatible with their legal system. The historical lessons drawn from Germany’s experience with the Third Reich made Germans acutely aware of the need for constitutional protection of rights growing out of the great historical wrongs of Nazism and of the Holocaust. Thus, the fundamental core explanation of the origins and growth of German judicial review is that it is a rights from wrongs phenomenon. That being said, the growth of German judicial review was made easier by the fact that the German Basic Law constituted the Constitutional Court to act as a federalism and separation of powers umpire. The German Constitutional Court has performed those umpiring function from 1949 down to the present day with great deftness and ability. Thanks to the great scholar, Hans Kelsen, the Germans borrowed a greatly modified system of U.S. judicial review, which was specially designed to work well in civil law countries. The German Model has, in turn, been borrowed by every oother country discussed in Volume II of my two part book series.

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Weidemann, Lilly. « Administrative Procedure and Judicial Review in Germany ». Dans Judicial Review of Administration in Europe, 53–58. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780198867609.003.0008.

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This chapter explores administrative procedure and judicial review in Germany. The German Basic Law contains a guarantee of access to justice. According to section 40(1) of the Code of Administrative Court Procedure (CACP), recourse to the administrative courts shall be available in all public-law disputes of a non-constitutional nature insofar as the disputes are not explicitly allocated to another court by a federal statute. German administrative court procedure generally aims to protect subjective rights. In general, all measures taken by a public authority are subject to review by courts. This principle forms an essential part of the fundamental rights constitutionally guaranteed. Thus, no measure by the public administration is excluded from this guarantee. The infringement of a procedural provision with protective effects does not necessarily lead to the right of the applicant to have the decision quashed. This usually requires the infringement of a right of the appellant resulting from substantive law. Damages cannot be claimed within the same (administrative) court proceeding that aims to quash an administrative decision.

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« Transparency and Judicial Deference ». Dans The Politics of Constitutional Review in Germany, 95–115. Cambridge University Press, 2004. http://dx.doi.org/10.1017/cbo9780511510427.005.

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