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Subject

Gesetzesvorbehalt

9 replies    
Context/ examples
Manche Grundrechte stehen unter einem (materiellen oder formellen) Gesetzesvorbehalt. Sie können also durch einen gesetzlichen Eingriff, nicht aber durch einen unterhalb des Gesetzesrang stehenden Verwaltungsakt bzw Hoheitsakt eingeschränkt werden.
AuthorRupert25 Oct 04, 23:17
Comment
*schubs*

I am curious, too.
#1AuthorOliver <de/us>26 Oct 04, 14:11
Translationprovision of legality
Comment
responding to the *schubs*
source: Legal Dictionary Dietl/Lorenz
very few google hits, appears to be a German concept
#2AuthorJellybina 26 Oct 04, 15:10
Comment
Romain (another legal dictionary) has the following entry:
constitutional requirement of a specific enactment plus the followign explanation in brackets: if constitutional rights are to be restricted

constitutional rights = fundamental rights
#3AuthorJellybina26 Oct 04, 15:15
Comment
If I understand this concept correctly, certain rights (even rights granted by the constitution itself?) can be curtailed by legislative acts. I guess we really don't have a specific term for this.

I've googled a little by now and found the following, in addition to Jellybina's posts:

"constitutional requirement of specific enactment" (http://www.ucl.ac.uk/laws/global_law/german-c...) (with a funny typo, BTW, "fundamental tights")

"legal reservation" (http://www.proz.com/?sp=h&id=22075)

"stipulation for statutory powers where basic rights are to be affected" (http://www.eurofound.eu.int/emire/GERMANY/RES...)
#4AuthorOliver <de/us>26 Oct 04, 15:45
Comment
You might find more explanations if you googled with "Notstandsgesetze", these were enacted in the 60s and greatly, in parts violently, opposed in Germany at that time, because they enabled the Government to curtail some fundamental rights in the event of an emergency and are regarded as seriouslz anti-democratic.
I know coz I was there (and still have the scars to prove it!).
#5Authorhein mück 26 Oct 04, 16:22
Translation"statutory reservation"
Comment
that comes from Foster and Sule "German Legal System and Laws" (3rd ed. Oxford 2003) - excellent book (and I'm not one of the authors!). However, I agree with others that it may need more explanation if a common law audience is to read it "cold". I would suggest "Some basic rights only gain effect or can only be restricted (formally or in substance) by statute."
#6Authordavid26 Oct 04, 16:26
Translationreservation of statutory powers
Sources
Comment
Sounds even better - I've got to admit, however, that I found it when I googled for statutory reservation. ;-)

The "Gesetzesvorbehalt" in connection with constitutional rights is discussed in the last three sentences. (The other concept is called "Vorbehalt des Gesetzes", but more often than not both terms are confused.)

re: formell/materiell: This doesn't deal with how the constitutional right is restricted (what would formally vs. in substance be?), but with the question whether only act of parliament (formelles Gesetz) or any regulation or bylaw (materielles Gesetz) can restrict a certain constitutional right.
#7AuthorFrank FMH26 Oct 04, 16:54
Comment
ah, yes, stand corrected. The substance v formal distinction I had in mind was the difference between a restriction of the application of the right (Schrank bzw. Einschränkung) under Art 19 GG. as opposed to a restriction on how the rights can be enforced - substance v. procedure would have been better. But not the relevant distinction here, I agree. On the other point though, "reservation of statutory powers" suggests to me that the (already granted) statutory powers are reserved somehow, rather than that the powers can only be granted through statute. But then I don't think "statutory reservation" is great either... Umschreibungsvorbehalt ;)
#8Authordavid26 Oct 04, 17:19
Comment
Thanks for your great endeavour. I actually discussed that topic with a common lawyer. He completely ignored that concept. Apparently, there is no self-standing translation to be used without further explanation.
The distinction of "formell/materiell" deals with the difference whether a statutory reservation is subjet to additional conditions (e.g. proportionality) = "materieller Gesetzesvorbehalt", as it is usually found in the European Convention of Human Rights, or if the fundamental right can be restricted by any statute (=formeller Gesetzesvorbehalt), as it is the case in the Austrian Staatsgrundgesetz.
#9AuthorRupert27 Oct 04, 12:52
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