Sunday, July 3, 2022
HomeLawSlugs of Berlin – Verfassungsblog

Slugs of Berlin – Verfassungsblog

The utter abjectness of the Berlin civil service is a matter that pretty everybody in Germany will instantly and effortlessly agree upon. After all we do. In any case, it’s completely true what they are saying and write, as each Berliner can verify from their very own expertise. Day-after-day, the massively well-liked Tagesspiegel Checkpoint e-newsletter arrives with a brand new lengthy listing of blissful sarcasms about what has been screwed up and gone fallacious once more on this or that department of the Senatsverwaltung. Day-after-day you retain shaking your head: this may’t be occurring, there’s no approach it may possibly go on like this. However in fact it may possibly go on like this. It has been happening like this for therefore a few years. Within the meantime, shaking our heads has grow to be a behavior that we now not wish to do with out. There are much less nice issues to do together with your head than shaking it. One might nearly assume that the republic affords itself this dysfunctional federal capital as a form of symptom provider and designated affected person whose existence permits it to not should confront its personal unresolved conflicts.

One of many issues the Berlin civil service is thought to have achieved with specific aplomb was to mess up the state and federal elections final September in essentially the most spectacular approach. We now have written intensively on this matter right here, and Christian Waldhoff’s report from his personal expertise was finally even instrumental within the resignation of the Berlin state election commissioner. Within the case of electoral errors, not like botched airport planning or unavailable civil service appointments, nevertheless, one doesn’t essentially should resign to sarcasm and head-shaking. There’s a authorized course of in place to guarantee that there will probably be penalties. Or so one would assume.

The Bundeswahlleiter (Federal Election Commissioner) has lodged an objection towards the election in six Berlin constituencies, and the Bundestag’s Electoral Evaluate Committee sat in judgement on it in oral proceedings final Tuesday. This sentence already encompasses the peculiarity of this occasion: It’s a court docket process implanted in parliament. There are contentious hearings on questions of reality and regulation. Members of parliament, the lawful creation of which is the topic of the proceedings, are sitting on the bench. The plaintiff is nominally the top of the method whose defectiveness he’s objecting to. And whereas the chairperson of the committee, Daniela Ludwig (CSU), emphasised her intention to „keep away from any tribunal character“, the chairs on which the representatives from Berlin have taken their seats did certainly appear to bear a definite resemblance to the dock.

Probably the most peculiar factor about this entire setup appears to me to be the Bundeswahlleiter himself. Not the particular person in fact – the incumbent, Georg Thiel, leaves little doubt about his dedication to implement the regulation and the structure basically and towards the failure of the Berlin civil service specifically – however the workplace.

In Germany, the Federal Election Commissioner is appointed by the Federal Ministry of the Inside for an indefinite time frame and a profession civil servant of that very Ministry himself, historically the President of the Federal Statistical Workplace. In its self-understanding, the workplace isn’t a part of the state administration however, as an electoral organ (Wahlorgan), an „establishment of social self-organisation not sure by directions“. I can’t appear to seek out any norm that explicitly safeguards this independence, although. And both approach, its institutional hyperlink to the Dwelling Secretary already exhibits that the proper conduct of democratic elections in Germany in 2022 continues to be thought of a kind of policing matter.

This robust hyperlink to the manager department is balanced by the truth that the Bundeswahlleiter’s powers are restricted by the federal design of the election administration. Despite the fact that they’re federal elections, their precise administration is generally carried out on the state and municipal stage. When the primary federal elections have been held in 1949, there was no federal election commissioner in any respect; the state election commissioners did the job on their very own account. And even at present, the Federal Election Commissioner has no authority over the state election commissioners on easy methods to conduct their enterprise. He has neither the authority to challenge directions nor to intrude. There aren’t any reporting obligations in direction of him. The truth that he’s knowledgeable in any respect about what went fallacious in the course of the election relies on a mere „gents’s settlement“, as Thiel put it on the listening to on Tuesday. And if a state, like Berlin now apparently, finds it helpful to find to the Federal Election Commissioner solely a section of all that went fallacious, then it may possibly. The Berlin state election administration, for its half, shrugs its shoulders regretfully: They didn’t possess any precise data of what has been happening, both. Sadly, that’s the accountability of the district administration.


Max Planck Legislation connects ten Institutes in Germany and Luxembourg to kind one of many world’s largest frameworks for doctoral and postdoctoral coaching in regulation.

Discover out extra about our educational alternatives right here and maintain up-to-date with our quite a few actions, together with programs open to the general public, by subscribing to our e-newsletter right here.


It appears to me that the issue lies not solely within the private or structural inadequacy of the actors concerned, however within the institutional set-up. Why does Germany not have, as different international locations, a correct and significant, unbiased Federal Election Fee, which has all the required competences for the proper conduct of a federal election after which may also be held accountable for something that goes awry, irrespective of at which stage?  What is that this „self-organisation“ between the municipal, state and federal ranges however diffusion of accountability?

But additionally materially, the sense of the electoral evaluation system that’s in place in Germany doesn’t appear fully self-evident to me. Its intention is to analyze whether or not and which electoral errors have occurred precisely, and whether or not they have been „mandate-relevant“, i.e. severe sufficient to have a mathematical impact on the composition of the Bundestag. With solely 802 extra votes, the SPD would have gotten a further seat. Which means, in accordance with Thiel’s calculation, that solely three votes extra for SPD per affected polling station in Berlin on common would have sufficed to alter the composition of the Bundestag. However how does one decide whether or not or not an electoral error is sufficiently big to make that seem possible if it consists of votes not forged and thus not recorded to start with? Can one, because the Berlin election administration suggests, merely extrapolate from the final voter turnout and the vote shares of the events? If a statistical guess like will do, to cite the CDU/CSU MP Patrick Schnieder, why take the difficulty of really counting votes within the first place?

Assuming the affect on the composition of the Bundestag is a given – what’s the authorized consequence? How does one appropriate such an error? What’s gained by repeating the compromised election at a (a lot) later date? How democratic is it when six Berlin constituencies are allowed to re-elect an already elected Bundestag months after the very fact in a totally completely different political scenario? What is that this entire electoral evaluation process however, at greatest, a placebo, and at worst, a procrastination measure to course of all flaws into oblivion till it’s disposed of by way of the passage of time?

So, would a repeat election be a proportionate treatment for these errors? This query was additionally hotly disputed within the listening to. In accordance with the Berlin state election administration, it could be disproportionate to ask 900,000 Berliners to forged their votes anew as a result of just a few thousand voters have been disadvantaged of theirs‘. To this, the Federal Election Commissioner Thiel objected with the, in my opinion, legitimate argument that one man, one vote can be about minority safety. Should you deprive a small minority of their proper to vote, you’ll be able to’t argue {that a} correction be disproportionate as a result of their quantity seems small in relation to the bulk whose rights you left untouched. In Thiel’s view, it’s completely crucial to repeat the election within the six constituencies involved, as a matter of precept. The value, nevertheless, can be almost definitely a considerably decrease turnout, he admitted, which then, through overhang and compensatory mandates, would possibly even affect the distribution of mandates all through Germany.

What about those that have moved away from or to at least one these Berlin constituencies within the meantime? Would this make a repeat election disproportionate? Thiel’s reply was once more categorically no. This distortion was inherent within the system and already priced in by election regulation and thus can now not be included within the proportionality take a look at.

My impression is that the willingness to really throw out the flawed Berlin election is distinctly extra pronounced within the CDU/CSU than within the SPD. Unsurprisingly so. That is nonetheless Parliament, not a court docket. The occasion of Olaf Scholz and Franziska Giffey presumably has little need to check in observe whether or not their victories of final September may be replicated underneath present circumstances. So it’s fairly attainable that this election evaluation process will finish as they at all times do. The case will find yourself in Karlsruhe, and by the point a verdict is reached on the Bundesverfassungsgericht, the legislative interval will probably be over anyway.


Stellenausschreibung DFG-Forschungsgruppe „Menschenrechtsdiskurse in der Migrationsgesellschaft (MeDiMi)“

Gibt es eine „Vermenschenrechtlichung“ migrationsgesellschaftlicher Diskurspraxis, und welche Reichweite, Formen und Folgen hat sie?

Im Rahmen der DFG-Forschungsgruppe „Menschenrechtsdiskurse in der Migrationsgesellschaft (MeDiMi)“ sind an der Professur für Öffentliches Recht und Europarecht (Jürgen Bast) zum 1.9.2022 zu besetzen: 1 wiss. Mit. (Postdoc, 100 %), 2 wiss. Mit. (Promotionsstellen, 65 %) und 1 Projektkoordinator*in (Wissenschaftsmanagement, 50 %). 


Which is why we must always maybe ask concerning the institutional set-up right here, too. I spoke on the telephone at present with the political scientist Oliver Lembcke. He makes a radical however attention-grabbing suggestion: If the Bundestag has been elected in such a flawed approach, why don’t we attempt to repair this earlier than it convenes, as a substitute of (months and years) afterwards? Why not set up an unbiased Federal Election Fee that has the facility to intervene and order in such a case that the flawed elections are repeated straight away, as rapidly as attainable, with out additional delay? Look, Berlin, earlier than we will set up a sound election end result, the brand new Bundestag can’t convene, the brand new Chancellor can’t be elected and the brand new authorities can’t be appointed. So that you’d higher get your act collectively instantly. After all, that may be terribly irritating, sophisticated and costly, each administratively and politically. However maybe for that very cause it could even be a sanction that each the state and the federal stage would actually wish to keep away from in any respect prices. As a substitute of simply shrugging and saying: Too dangerous, sorry, however nothing may be carried out now anyhow, the way in which the Berlin administration does now of their common sluggish method. That’s simply not ok.

I want to thank Tobias Gafus, Oliver W. Lembcke and Christian Neumeier for his or her worthwhile enter.

The week on Verfassungsblog

… is summarized by PAULINE SPATZ:

Taking in thousands and thousands of Ukrainian refugees, European civil society has proven how properly it may possibly work together with refugees when borders are opened and inhibiting rules are eliminated. States have been studying in latest weeks to be supportive relatively than controlling. DIETRICH THRÄNHARDT argues in favor of utilizing these experiences to query extra critically than earlier than to what extent restrictions on the free motion of refugees make sense.

Unsurprisingly, the Federal Constitutional Courtroom has dominated the so-called facility-based obligatory vaccination to be constitutional in its determination of April 27, 2022. The choice continues the realignment of the proportionality take a look at that was already superior within the selections on the federal emergency brake. For STEPHAN RIXEN, it is a cause to wonder if the Federal Constitutional Courtroom is about to wreck its proportionality case regulation legacy.

The German Parliament is way too giant – this makes it too costly and hinders its potential to work. Subsequently, politicians have been attempting for a very long time to make it considerably smaller by way of a reform of electoral regulation. The representatives of the „site visitors gentle coalition“ who have been appointed to the electoral regulation reform fee suggest substitute votes as an answer. ALEXANDRA BÄCKER & HEIKE MERTEN clarify why this proposal creates extra issues than it solves, each constitutionally and politically.

As of Might 28, 2022, the EGBGB could have its personal provision on fines for the primary time. Fines truly serve to safeguard public security. On this respect, the introduction of the availability on fines into non-public regulation is shocking. NIKLAS WOLF takes a important take a look at the brand new Artwork. 246e EGBGB and exhibits how client pursuits grow to be a part of public order within the sense of „ordre public“ by way of an EU regulation.

Roughly two weeks in the past, the European Fee introduced its draft for a regulation to stop and fight youngster sexual abuse. Related to that is the introduction of the evaluation of all digitally despatched content material („chat management“), which is prone to be the most important state surveillance mission in Europe for the reason that finish of the Chilly Struggle. The „chat management“ is clearly a violation of the Constitution of Elementary Rights, argues ERIK TUCHTFELD, as a result of this fashion, the Fee would mainly abolish the digital secrecy of correspondence whereas nothing can be gained by way of youngster safety.


 Wissenschaftliche Stelle beim Fachinformationsdienst für internationale und interdisziplinäre Rechtsforschung

Der von der Deutschen Forschungsgemeinschaft an der Staatsbibliothek zu Berlin angesiedelte Fachinformationsdienst für internationale und interdisziplinäre Rechtsforschung unterstützt die wissenschaftliche Group mit spezialisierten Informationsressourcen und -infrastrukturen jenseits der bibliothekarischen Grundversorgung vor Ort.

Hierfür und insbesondere für Zielgruppenkommunikation und Open Entry-Beratung ist eine wissenschaftliche Stelle als Elternzeitvertretung vakant. Die Ausschreibung finden Sie hier.


The Constituent Meeting in Chile is within the ending levels earlier than the ultimate proposal is to be revealed on July 5, 2022. However for a number of weeks now, polls present a slim majority aspiring to vote towards the brand new structure. SVENJA BONNECKE suspects that that is primarily attributable to communication failures of the Constituent Meeting and blames each the media and the members.

Intolerant autocrats might have a tendency be nationalist – however they haven’t any downside with worldwide cooperation and networking, as seen within the assembly of US conservatives in Budapest every week in the past. Typical for these events is the cautious collection of reliable contributors based mostly on robust private connections and shared values throughout completely different religions and continents. RENÁTA UITZ traces the efforts of intolerant actors to construct a worldwide alliance.

In response to public stress and criticism from survivors, many states have begun to examine actions taken and selections made in the course of the COVID-19 pandemic. The query of who investigates and what’s investigated could also be as necessary right here because the outcomes themselves. JOELLE GROGAN analyzes „partygate,“ the Sue Grey report, and the failure of governments to study from their errors.

In Kenya, the Excessive Courtroom has dominated that there’s a proper to secure abortion. JOSHUA MALIDZA NYAWA celebrates the choice as an indication of what the International South has to contribute to the worldwide constitutional debate, additionally in distinction to the US, the place the Supreme Courtroom seems to be on the verge of taking down this very proper.

Eventually rely, the federal authorities had 39 Bundesbeauftragte (commissioners). Their titles are as various because the scope of their duties. Their constitutional framework is basically undefined. Bundesbeauftragte act on behalf of the federal authorities, however they don’t govern – what capabilities do they assume, what affect do they train? What are their constitutional limits? The place is there a necessity for reform? Along with the SCRIPTS Cluster of Excellence, our new weblog symposium explores the query of what the Auftrag of the Bundesbeauftragte truly is. KAROLINE HAAKE want to see a federal commissioner regulation, and MICHAEL KOSS explores the completely different levels of the media presence of the assorted federal commissioners.

In our 9/11 symposium on the rule of regulation, VICTORIA IBEZIM-OHAERI makes use of the instance of Nigeria to point out the function of worldwide counterterrorism norms in normalizing surveillance mechanisms.

That’s all for this week. Thanks to your consideration, keep tuned and please don’t overlook to help our work on Regular!

All greatest,

Max Steinbeis



Please enter your comment!
Please enter your name here

Most Popular

Recent Comments