Germany

   

Quality of Democracy

#5
Key Findings
Reflecting a stable system founded on the rule of law, Germany’s score for democracy quality places it in the top ranks (rank 5) internationally. Its score on this measure has improved by 0.1 point since 2014.

Parties receive public and private funding, with some transparency concerns. Courts blocked an attempt to ban the far-right NPD party, but a subsequent law bars parties that oppose the basic democratic order from receiving public funding. The media is largely free of political interference, with considerable diversity of ownership despite growing financial difficulties.

Civil rights are broadly respected, but the former head of the domestic security agency was involved in several scandals, and forced to retire. Non-discrimination laws are extensive, and same-sex marriage has been legalized. The issue of public-school teachers wearing headscarves has been controversial.

The legal system, government and administration act predictably. Judicial review is strong, and corruption is rare. While political figures’ income-disclosure requirements have been strengthened, some loopholes remain.

Electoral Processes

#3

How fair are procedures for registering candidates and parties?

10
 9

Legal regulations provide for a fair registration procedure for all elections; candidates and parties are not discriminated against.
 8
 7
 6


A few restrictions on election procedures discriminate against a small number of candidates and parties.
 5
 4
 3


Some unreasonable restrictions on election procedures exist that discriminate against many candidates and parties.
 2
 1

Discriminating registration procedures for elections are widespread and prevent a large number of potential candidates or parties from participating.
Candidacy Procedures
10
On 24 September 2017, elections were held to constitute the new German Bundestag. A total of 42 parties and 111 independent candidates contested the elections. Germany’s constitution ensures that members of the Bundestag, the country’s lower parliamentary house, are elected in general, direct, free, equal and secret elections for a legislative period of four years (Basic Law, Arts. 38, 39). Parties that defy the constitution can be prohibited by the Federal Constitutional Court. In January 2017, following a complaint by the Länder governments regarding the far-right National Democratic Party (NPD), the Federal Constitutional Court decided that while the party is without any doubt unconstitutional in its program and actions, there are no indications that the party will succeed in achieving its anti-constitutional aims. Therefore, the suit to ban the NPD failed.

The Political Parties Act (Parteiengesetz, PPA) sets general criteria for the management of political parties and candidates. While independent candidates have to fulfill a signature gathering prerequisite (modest by international standards) in order to qualify for the ballot, parties must meet strict organizational requirements (PPA Section II). If parties have continuously held at least five seats in the Bundestag or a state parliamentary body (Landtag) during the last legislative period, they are allowed run in the election without any initial approval from the Federal Election Committee (Bundeswahlausschuss, FEC).

To what extent do candidates and parties have fair access to the media and other means of communication?

10
 9

All candidates and parties have equal opportunities of access to the media and other means of communication. All major media outlets provide a fair and balanced coverage of the range of different political positions.
 8
 7
 6


Candidates and parties have largely equal opportunities of access to the media and other means of communication. The major media outlets provide a fair and balanced coverage of different political positions.
 5
 4
 3


Candidates and parties often do not have equal opportunities of access to the media and other means of communication. While the major media outlets represent a partisan political bias, the media system as a whole provides fair coverage of different political positions.
 2
 1

Candidates and parties lack equal opportunities of access to the media and other means of communications. The major media outlets are biased in favor of certain political groups or views and discriminate against others.
Media Access
10
Political campaigning is largely unregulated by federal legislation, a fact modestly criticized by the latest OSCE election report. Article 5 of the Political Parties Act (Parteiengesetz, PPA) requires that “where a public authority provides facilities or other public services for use by one party, equal treatment must be accorded to all parties.” During electoral campaigns, this general criterion applies to all parties that have submitted election applications (Art. 5 sec. 2). The extent of public services parties are able to use depends on their relative importance, which is based on each parties’ results in the last general election (Art. 5 sec. 3). This is called the “principle of gradual equality,” and constitutes the basis for parties’ access to media in conjunction with the Interstate Treaty on Broadcasting and Telemedia (Rundfunkstaatsvertrag). The gradual equality principle is also applied to television airtime, although in this case the time granted to large parliamentary parties is not allowed to exceed twice the amount offered to smaller parliamentary parties, which in turn receive no more than double the amount of airtime provided to parties currently unrepresented in parliament. While public media networks provide campaigns with airtime free of charge, private media are not allowed to charge airtime fees of more than 35% of what they demand for commercial advertising. Despite these rules, there is a persistent debate as to whether the media’s tendency to generally focus coverage on the six largest parties and, in particular, on government parties is too strong.

Citations:
OSCD (2018): Federal Republic of Germany. Elections to the Federal Parliament (Bundestag). 24 September 2018.
https://www.osce.org/odihr/elections/germany/358936?download=true

To what extent do all citizens have the opportunity to exercise their right of participation in national elections?

10
 9

All adult citizens can participate in national elections. All eligible voters are registered if they wish to be. There are no discriminations observable in the exercise of the right to vote. There are no disincentives to voting.
 8
 7
 6


The procedures for the registration of voters and voting are for the most part effective, impartial and nondiscriminatory. Citizens can appeal to courts if they feel being discriminated. Disincentives to voting generally do not constitute genuine obstacles.
 5
 4
 3


While the procedures for the registration of voters and voting are de jure non-discriminatory, isolated cases of discrimination occur in practice. For some citizens, disincentives to voting constitute significant obstacles.
 2
 1

The procedures for the registration of voters or voting have systemic discriminatory effects. De facto, a substantial number of adult citizens are excluded from national elections.
Voting and Registration Rights
10
German citizens (Basic Law, Art. 116 sec. 1) aged 18 or older are eligible to vote and run for election to the Bundestag, provided that they have resided in Germany for at least three months (Federal Electoral Act, sections 12.1, 15). By judicial order, the right to vote can be denied to criminals, persons lacking legal capacity and convicts residing in a psychiatric hospital (Federal Electoral Act, sec.13). Prior to an election, every registered citizen receives a notification containing information on how to cast a vote as well as an application form for postal voting. Today, postal voting is widely used, largely without issue. According to the Federal Returning Officer, it encompassed 28.6% of registered voters, an increase of 4.3% compared to the 2013 elections. Citizens not included in the civil registry (e.g., homeless people) are eligible to vote but have to apply to authorities in order to be registered.

After the Federal Constitutional Court declared some provisions regarding the voting rights of Germans living abroad to be unconstitutional, a new amendment on the issue was drafted and passed in May 2013. Today, Germans living abroad have the right to vote (Federal Electoral Act, sec. 12) if they have lived at least three months in Germany after their fifteenth birthday and have not lived more than 25 years abroad without interruption. Those who do not fulfill these requirements are still eligible to cast their vote if they can verify that they are both familiar with and affected by German political conditions. Germans living abroad have to register to vote with the authorities of their last domestic residence at least 21 days before the election. They can then cast their vote by mail (cf. Federal Elections Act sections 36, 39 and Federal Electoral Regulations).

During the period under review, there were two state elections (Bavaria and Hesse). As in previous elections, no major irregularities or complaints about voter registration, voter lists or postal voting were reported.

Citations:
OSCE (2018): Federal Republic of Germany. Elections to the Federal Parliament (Bundestag). 28 September 2018. https://www.osce.org/odihr/elections/germany/358936?download=true

Postal ballot: Information provided by the Federal Returning Officer
https://www.bundeswahlleiter.de/info/presse/mitteilungen/bundestagswahl-2017/35_17_briefwaehler.html

Federal Elections Act (BWG) Sections 36, 39

Federal Electoral Regulations (BWO) Sections 20, 25 to 31, 66, 74, 75

To what extent is private and public party financing and electoral campaign financing transparent, effectively monitored and in case of infringement of rules subject to proportionate and dissuasive sanction?

10
 9

The state enforces that donations to political parties are made public and provides for independent monitoring to that respect. Effective measures to prevent evasion are effectively in place and infringements subject to effective, proportionate and dissuasive sanctions.
 8
 7
 6


The state enforces that donations to political parties are made public and provides for independent monitoring. Although infringements are subject to proportionate sanctions, some, although few, loopholes and options for circumvention still exist.
 5
 4
 3


The state provides that donations to political parties shall be published. Party financing is subject to some degree of independent monitoring but monitoring either proves regularly ineffective or proportionate sanctions in case of infringement do not follow.
 2
 1

The rules for party and campaign financing do not effectively enforce the obligation to make the donations public. Party and campaign financing is neither monitored independently nor, in case of infringements, subject to proportionate sanctions.
Party Financing
8
In June 2017, the German Bundestag secured the required two-thirds majority to change Article 21 (3) and (4) of the Basic Law, which regulates the financing of political parties. The Constitutional Court had refused to declare the National Democratic Party (NPD), a right-wing extremist party, unconstitutional. In response, the government and other political parties wanted to exclude the NPD and other extremist parties from state-based party financing. Any party that fights against the free democratic basic order or against the existence of the Federal Republic of Germany by abusing the basic freedoms will no longer be able to benefit from tax advantages on donations and state grants.

In general, Germany’s political parties finance their activities under the terms of the Political Parties Act (PPA) through state funding, membership fees, donations and sponsorships. In order to be eligible for state funding, parties must win at least 0.5% of the national vote in federal or EU elections, or 1% in state elections. A party’s first four million votes qualify for funding of €1 per vote per year; for every vote thereafter, parties receive €0.83. In addition, individual donations up to €3,300 receive match funding of €0.45 per every €1 donated. State funding of political parties has an upper limit, which in 2017 was €165 million. Since 2013, this cap has been annually adjusted for inflation. Public financing, however, must be matched by private funding. Thus, parties with little revenue from membership fees and donations receive less than they would be entitled to based on votes alone.

After the September 2017 elections, the German Bundestag decided to increase the upper limit for party financing by €25 million to €190 million. The governing parties (i.e., the CDU, CSU and SDP) justified this increase, which is far above the inflation rate, on the basis of the increasing costs caused by digitalization, intensified communication and internet security. This change was highly disputed in the public and between the parties, and was passed a day after the beginning of the FIFA World Cup 2018.

The lack of transparency regarding party finances continues to receive criticism. The Group of States against Corruption (GRECO) has identified some progress with respect to transparency, but continues to point out shortcomings in the German system. In its 2017 report, GRECO concluded that “Germany has implemented satisfactorily or dealt with in a satisfactory manner three of the eight recommendations contained in the Fourth Round Evaluation Report. Of the remaining recommendations, two have been partly implemented and three have not been implemented.” In addition, a recent assessment based on the accounting reports of all major parties, the nonprofit organization LobbyControl found that three-quarters of all donations to parties lack transparency. All donations less than €10,000 and revenues coming from party sponsorship remain opaque. By law, the names and addresses of campaign donors must be made public if donations from that source exceed €10,000 per year.

Citations:
Bundestag (2017):
https://www.bundestag.de/dokumente/textarchiv/2017/kw25-de-parteienfinanzierung/509770

Bundestag (2018): Drucksachen 19/2509 und 19/2734.

GRECO (2017) https://rm.coe.int/fourth-evaluation-round-corruption-prevention-in-respect-of-members-of/168072fd68

Do citizens have the opportunity to take binding political decisions when they want to do so?

10
 9

Citizens have the effective opportunity to actively propose and take binding decisions on issues of importance to them through popular initiatives and referendums. The set of eligible issues is extensive, and includes national, regional, and local issues.
 8
 7
 6


Citizens have the effective opportunity to take binding decisions on issues of importance to them through either popular initiatives or referendums. The set of eligible issues covers at least two levels of government.
 5
 4
 3


Citizens have the effective opportunity to vote on issues of importance to them through a legally binding measure. The set of eligible issues is limited to one level of government.
 2
 1

Citizens have no effective opportunity to vote on issues of importance to them through a legally binding measure.
Popular Decision-Making
6
In Germany, referenda are of importance on the municipal and state levels. At the federal level, referenda are exclusively reserved for constitutional (Basic Law, Art. 146) and territorial issues. On the municipal and state levels, voter initiatives have grown in use since German unification, with their increasing frequency bolstered by legal changes and growing voter awareness. However, discussions about introducing referenda on the federal level are ongoing and intensifying.

From 1946 to 2016, 349 direct democratic procedures took place on the state level. In some states (e.g., Baden-Wuerttemberg, North Rhine-Westphalia, Rhineland-Palatinate), the government or parliament can, under certain conditions, call a referendum with the power to confirm or overturn a decision by the legislature. The main themes had been education/culture (about 25%) and democracy, state organization, and domestic politics (about 25%). Most commonly used are direct democratic procedures in Hamburg (30.4%), Baden-Wuerttemberg (26.2%), and Berlin (21.7%).

On the municipal level, there were 7,503 procedures between 1956 and 2017, with more than half ince 2003, showing the strong growth over the last two decades.

Citations:
Mehr Demokratie (2017): Volksbegehrensbericht 2917
https://www.mehr-demokratie.de/fileadmin/ pdf/volksbegehrensbericht_2017.pdf

Mehr Demokratie (2018): Bürgerbegehrensbericht 2018
https://www.mehr-demokratie.de/fileadmin/pdf/2018-12-04_BB-Bericht2018.pdf

Access to Information

#7

To what extent are the media independent from government?

10
 9

Public and private media are independent from government influence; their independence is institutionally protected and fully respected by the incumbent government.
 8
 7
 6


The incumbent government largely respects the independence of media. However, there are occasional attempts to exert influence.
 5
 4
 3


The incumbent government seeks to ensure its political objectives indirectly by influencing the personnel policies, organizational framework or financial resources of public media, and/or the licensing regime/market access for private media.
 2
 1

Major media outlets are frequently influenced by the incumbent government promoting its partisan political objectives. To ensure pro-government media reporting, governmental actors exert direct political pressure and violate existing rules of media regulation or change them to benefit their interests.
Media Freedom
8
Germany’s Basic Law guarantees freedom of expression, press and broadcasting (Art. 5 sec. 1) and prohibits censorship, with exceptions delineated by the standards of mutual respect, personal dignity and the protection of young people. Strong constitutional guarantees and an independent judiciary provide for strong media freedom. A new anti-whistleblower provision penalizes the handling of leaked data without ensuring adequate protection for investigative journalists as well as their sources. The recently reformed law governing the work of Germany’s foreign intelligence agency (BND) allows the surveillance of foreign journalists, thus legalizing potential infringements on media freedom rather than preventing them. Laws regulating access to information remain weak compared to other countries.

Print media, which are largely self-regulated, are broadly independent of political interference. The German Press Council is tasked with protecting press freedom. However, the latent economic crisis of newspapers and publishing houses may slowly but steadily undermine media pluralism. In the World Press Freedom Index of 2018, Germany ranked 16th out of 180 countries, a slight decline from rank 12 in 2015.

The Interstate Treaty on Broadcasting and Telemedia (Rundfunkstaatsvertrag) provides a general nationwide framework for the operation of public and private broadcast media. In the private broadcasting sector, governmental influence is limited to the general provisions, regulations and guidelines stated in the interstate treaty that ban discrimination or other abuses. While the relationship between public authorities and private media can be seen as unproblematic, one can observe dependencies between authorities and the public media organizations (ARD and ZDF) that are at least questionable.

To what extent are the media characterized by an ownership structure that ensures a pluralism of opinions?

10
 9

Diversified ownership structures characterize both the electronic and print media market, providing a well-balanced pluralism of opinions. Effective anti-monopoly policies and impartial, open public media guarantee a pluralism of opinions.
 8
 7
 6


Diversified ownership structures prevail in the electronic and print media market. Public media compensate for deficiencies or biases in private media reporting by representing a wider range of opinions.
 5
 4
 3


Oligopolistic ownership structures characterize either the electronic or the print media market. Important opinions are represented but there are no or only weak institutional guarantees against the predominance of certain opinions.
 2
 1

Oligopolistic ownership structures characterize both the electronic and the print media market. Few companies dominate the media, most programs are biased, and there is evidence that certain opinions are not published or are marginalized.
Media Pluralism
9
In Germany, the Interstate Treaty on Broadcasting and Telemedia (Rundfunkstaatsvertrag, RfStV) defines a threshold of average annual viewership share of 30%, over which a broadcaster is considered to have an unallowable dominance over public opinion (RfStV, Sec. III, Subsection 2). The Federal Cartel Office (FCO) regulates most questions of oligopoly and monopoly in Germany, and has blocked several potential mergers in both print and electronic media markets.

Two main public television broadcasters operate at the national level in Germany: the Arbeitsgemeinschaft der Rundfunkanstalten Deutschlands (ARD), a conglomerate composed of various regional TV channels, and the Zweites Deutsches Fernsehen (ZDF). According to the Arbeitsgemeinschaft Fernsehforschung (AGF), a broadcast media research group, in 2018 public broadcasters hold a market share of 47.8%, slightly more than in previous years. In the private sector, the RTL Group holds 20.6% market share, while the ProSiebenSat.1 Media AG accounts for 16.9% of the total television market. TV is the most used media (80%), followed by radio (65%) and the internet (63%). The rise of streaming media service providers like Netflix has led to a slight fall in the market share of private television broadcasters.

The nationwide print media market is dominated by five leading daily newspapers: Süddeutsche Zeitung, Frankfurter Allgemeine Zeitung, Die Welt, Handelsblatt and the tabloid Bild. Bild has by far the biggest circulation in Germany. Additional agenda-setters are a number of weeklies, in particular Der Spiegel, Focus, Die Zeit and Stern. However, the latent economic crisis of newspapers and publishing houses may slowly but steadily undermine media pluralism.

With newspaper circulation continuously falling, the internet including the streaming media services has become an increasingly important medium for citizens to gather information. This has forced print media to engage in significant cost cutting measures, including reducing the size of editorial staff. In summary, Germany has a comparatively plural and diversified media ownership structure and modestly decentralized television and radio markets.

Citations:
https://www.agf.de/daten/tvdaten/marktanteile/

https://www.bdzv.de/fileadmin/bdzv_hauptseite/aktuell/publikationen/2017/ZDF_2017.pdf

https://de.statista.com/statistik/daten/studie/74804/umfrage/marktanteile-oeffentlich-rechtlicher-und-privater-vollprogramme/

To what extent can citizens obtain official information?

10
 9

Legal regulations guarantee free and easy access to official information, contain few, reasonable restrictions, and there are effective mechanisms of appeal and oversight enabling citizens to access information.
 8
 7
 6


Access to official information is regulated by law. Most restrictions are justified, but access is sometimes complicated by bureaucratic procedures. Existing appeal and oversight mechanisms permit citizens to enforce their right of access.
 5
 4
 3


Access to official information is partially regulated by law, but complicated by bureaucratic procedures and some poorly justified restrictions. Existing appeal and oversight mechanisms are often ineffective.
 2
 1

Access to official information is not regulated by law; there are many restrictions of access, bureaucratic procedures and no or ineffective mechanisms of enforcement.
Access to Government Information
8
The Freedom of Information Act took effect in 2006. The act defines what government information is publicly available. In his 26th Activity Report, covering the period 2016 to 2017, Federal Commissioner for Data Protection and Freedom of Information (BfDI), Andrea Voßhoff, acknowledges that nearly all German states have adopted their own freedom of information laws or are in the process of developing legislation.

Even so, citizens remain largely unaware of the federal Freedom of Information Act. Although many federal agencies strive for transparency, some public authorities have interpreted the act in a very restrictive manner. Some have sought to introduce delays in the process of providing information, while others have refused to provide access to documents altogether, arguing that the contents were of vital importance to ongoing government activities and thus confidential. In an overall assessment in 2018, Andrea Voßhoff concluded that citizens are increasingly making use of their rights and that federal authorities do no longer regard the information right of citizens as a nuisance but as a significant element of a civil society. More than 20,000 citizens turned to the BfDI concerning complaints and questions. The main activity of the BfDI and government was the adjustment of the national laws to the new Data Protection Directive of the European Union from May 2016. However, the national law did not strengthen the BfDI and its federal commissioner which was expected to be one of the main points in translating the EU directive into national law (BfDI 2018b).

Citations:
BfDI (2018a): 6.Tätigkeitsbericht zur Informationsfreiheit 2016 und 2017.
https://www.bfdi.bund.de/SharedDocs/Publikationen/Taetigkeitsberichte/TB_IFG/6TB06_18.html;jsessionid=8F278CD43752856CC559CFBB167B372D.2_cid329?nn=5217154

BfDI (2018b): Pressemitteilung 07/2018 zum 6. Tätigkeitsbericht: https://www.bfdi.bund.de/DE/Infothek/Pressemitteilungen/2017/12_UebergabeTB_15_16.html

Civil Rights and Political Liberties

#6

To what extent does the state respect and protect civil rights and how effectively are citizens protected by courts against infringements of their rights?

10
 9

All state institutions respect and effectively protect civil rights. Citizens are effectively protected by courts against infringements of their rights. Infringements present an extreme exception.
 8
 7
 6


The state respects and protects rights, with few infringements. Courts provide protection.
 5
 4
 3


Despite formal protection, frequent infringements of civil rights occur and court protection often proves ineffective.
 2
 1

State institutions respect civil rights only formally, and civil rights are frequently violated. Court protection is not effective.
Civil Rights
9
In general, all state institutions respect individual freedoms and protect civil rights. Civil rights are guaranteed by the Basic Law and their modification is possible only by a two-thirds legislative majority. Some provisions concerning basic human rights are not alterable at all. The court system works independently and effectively protects individuals against encroachments by the executive and legislature. In the Economist Intelligence Unit’s Democracy Index, Germany has consistently ranked 13th in recent years.

In her recent activity report, the federal privacy officer, Andrea Voßhoff, noted that access to information and basic civil rights are in good shape, and respected by government and the respective courts. However, the president of the Federal Office for the Protection of the Constitution, Hans-Georg Maaßen, was involved in various scandals and – after heated debates within the government, and between the government and opposition – was forced into premature retirement.

Citations:
https://freedomhouse.org/report/freedom-world/2018/germany

https://www.bfdi.bund.de/SharedDocs/Publikationen/Taetigkeitsberichte/TB_IFG/6TB06_18.html?nn=5217154

To what extent does the state concede and protect political liberties?

10
 9

All state institutions concede and effectively protect political liberties.
 8
 7
 6


All state institutions for the most part concede and protect political liberties. There are only few infringements.
 5
 4
 3


State institutions concede political liberties but infringements occur regularly in practice.
 2
 1

Political liberties are unsatisfactory codified and frequently violated.
Political Liberties
9
Due to Germany’s historical experience with National Socialism, political liberties are highly protected by the country’s constitution and the Constitutional Court. Freedom of expression is protected by the constitution (Art. 5), although there are exceptions for hate speech and Nazi propaganda, such as Holocaust denial. With the exception of cases where individuals are deemed to be actively seeking to overturn the democratic order, the right to assemble peacefully is guaranteed (Basic Law, Art. 8) and is not infringed upon. All exceptions are applied very restrictively. For example, even extreme parties such as the far-right Nationaldemokratische Partei (NDP) currently have full freedom to operate. The Bundesrat appealed to the Federal Constitutional Court seeking to prohibit the NDP but the court did not ban the NPD in his judgement from 17 January 2017.

The freedoms to associate and organize (Basic Law, Art. 9), as well as academic freedom, are generally respected. Non-governmental organizations operate freely. Every person has the right to address requests and complaints to the competent authorities and to the legislature (Basic Law, Art. 17). Freedom of belief is protected by the constitution (Basic Law, Art. 4).

How effectively does the state protect against different forms of discrimination?

10
 9

State institutions effectively protect against and actively prevent discrimination. Cases of discrimination are extremely rare.
 8
 7
 6


State anti-discrimination protections are moderately successful. Few cases of discrimination are observed.
 5
 4
 3


State anti-discrimination efforts show limited success. Many cases of discrimination can be observed.
 2
 1

The state does not offer effective protection against discrimination. Discrimination is widespread in the public sector and in society.
Non-discrimination
8
Germany’s Basic Law (Art. 3 sec.3) states that every person, irrespective of parentage, sex, race, language, ethnic origin, disability, faith, religious belief or political conviction is equally important and has the same rights. The General Equal Treatment Act of 2006 added age and sexual orientation to that enumeration of protected categories. The Federal Anti-Discrimination Agency (FADA) monitors compliance with legal anti-discrimination norms and principles, supports persons who have experienced discrimination, mediates settlements, informs the public about infringements, and commissions research on the subject of discrimination.

Nevertheless, discrimination remains a problem in various spheres of society. For example, there is widespread agreement that women should be better represented in the business sector’s upper management. In 2015, the government adopted legislation to increase the number of women on corporate supervisory boards. The law stipulates a 30% share of women on the boards of large companies.

The Federal Constitutional Court decided in June 2013 that treating same-sex partnerships and opposite-sex marriages differently from a taxation perspective was unconstitutional. In June 2017, the Bundestag, with a large majority, went a step further and opened civil-law marriage to same-sex couples, which has overcome any remaining unequal treatment.

In January 2015, the Federal Constitutional Court ruled that a bill banning headscarves for teachers at public schools must adhere to state laws (Ländergesetze). A general prohibition on teachers expressing religious beliefs through their appearance is not compatible with the freedom of faith and the freedom to profess a belief (Art. 4 secs. 1 and 2 of the Basic Law). However, in a dissenting opinion, two of the judges opposed the majority’s reasoning, signaling that non-discrimination on religious grounds is a contested issue in society and in constitutional law.

In November 2017, the Federal Constitutional Court requested that the government accept a third sex thus avoiding discrimination of intersexual persons.

Citations:
www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2015/bvg15-014.html

https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/DE/2017/bvg17-095.html

Rule of Law

#5

To what extent do government and administration act on the basis of and in accordance with legal provisions to provide legal certainty?

10
 9

Government and administration act predictably, on the basis of and in accordance with legal provisions. Legal regulations are consistent and transparent, ensuring legal certainty.
 8
 7
 6


Government and administration rarely make unpredictable decisions. Legal regulations are consistent, but leave a large scope of discretion to the government or administration.
 5
 4
 3


Government and administration sometimes make unpredictable decisions that go beyond given legal bases or do not conform to existing legal regulations. Some legal regulations are inconsistent and contradictory.
 2
 1

Government and administration often make unpredictable decisions that lack a legal basis or ignore existing legal regulations. Legal regulations are inconsistent, full of loopholes and contradict each other.
Legal Certainty
10
Germany’s Basic Law (Art. 20 sec. 3) states that “the legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice.” In reality, German authorities do live up to this high standard. In comparative perspective, the country generally scores very highly on the issue of rule of law in indices whose primary focus is placed on formal constitutional criteria.

In substantive terms, German citizens and foreigners appreciate the predictability and impartiality of the German legal system, regard Germany’s system of contract enforcement and property rights as being of high quality, and put considerable trust in the police forces and courts. Germany’s high courts have significant institutional power and a high degree of independence from political influence. The Federal Constitutional Court’s final say on the interpretation of the Basic Law provides for a high degree of legal certainty. Concerning the rule of law index of the World Justice Report for 2017/18, Germany ranks 6 out of 113 countries, an improvement of two positions compared to the 2015/16 report.

Citations:
https://worldjusticeproject.org/sites/default/files/documents/WJP_ROLI_2017-18_Online-Edition.pdf

To what extent do independent courts control whether government and administration act in conformity with the law?

10
 9

Independent courts effectively review executive action and ensure that the government and administration act in conformity with the law.
 8
 7
 6


Independent courts usually manage to control whether the government and administration act in conformity with the law.
 5
 4
 3


Courts are independent, but often fail to ensure legal compliance.
 2
 1

Courts are biased for or against the incumbent government and lack effective control.
Judicial Review
10
Germany’s judiciary works independently and effectively protects individuals against encroachments by the executive and legislature. The judiciary inarguably has a strong position in reviewing the legality of administrative acts. The Federal Constitutional Court (FCC) ensures that all institutions of the state obey the constitution. The court acts only when an appeal is made, but the court holds the right to declare laws unconstitutional and has exercised this power several times. In case of conflicting opinions, the decisions made by the FCC are final; all other governmental and legislative institutions are bound to comply with its verdicts (Basic Law, Art. 93).

Under the terms of the Basic Law (Art. 95 sec. 1), there are five supreme federal courts in Germany, including the Federal Constitutional Court (Bundesverfassungsgericht), Federal Court of Justice (the highest court for civil and criminal affairs, Bundesgerichtshof), Federal Administrative Court (Bundesverwaltungsgericht), Federal Finance Court (Bundesfinanzhof), Federal Labor Court (Bundesarbeitsgericht) and Federal Social Court (Bundessozialgericht). This division of tasks guarantees highly specialized independent courts with manageable workloads.

Germany’s courts, in general, and the FCC, in particular, enjoy a high reputation for independence both domestically and internationally. In the World Economic Forum’s Global Competitiveness Report 2017/18, Germany’s relative performance on judicial independence has declined in recent years, with Germany now ranked 25th out of 138 countries after ranking 17th in previous years. However, the rule of law index of the World Justice Report that includes judicial review ranked Germany 6th out of 113 countries.

Citations:
http://www3.weforum.org/docs/GCR2018/05FullReport/TheGlobalCompetitivenessReport2018.pdf

To what extent does the process of appointing (supreme or constitutional court) justices guarantee the independence of the judiciary?

10
 9

Justices are appointed in a cooperative appointment process with special majority requirements.
 8
 7
 6


Justices are exclusively appointed by different bodies with special majority requirements or in a cooperative selection process without special majority requirements.
 5
 4
 3


Justices are exclusively appointed by different bodies without special majority requirements.
 2
 1

All judges are appointed exclusively by a single body irrespective of other institutions.
Appointment of Justices
8
Federal judges are jointly appointed by the minister overseeing the issue area and the Committee for the Election of Judges, which consists of state ministers responsible for the sector and an equal number of members of the Bundestag. Federal Constitutional Court (FCC) judges are elected in accordance with the principle of federative equality (föderativer Parität), with half chosen by the Bundestag and half by the Bundesrat (the upper house of parliament). The FCC consists of sixteen judges, who exercise their duties in two senates of eight members each. While the Bundesrat elects judges directly and openly, the Bundestag used to delegate its decision to a committee in which the election took place indirectly, secretly and opaquely. In May 2015, the Bundestag unanimously decided to change this procedure. As a result, the Bundestag now elects judges directly following a proposal from its electoral committee (Wahlausschuss). Decisions in both houses require a two-thirds majority.

In summary, in Germany judges are elected by several independent bodies. The election procedure is representative, because the two bodies involved do not interfere in each other’s decisions. The required majority in each chamber is a qualified two-thirds majority. By requiring a qualified majority, the political opposition is ensured a voice in the selection of judges regardless of current majorities. Recently, the election of the incoming FCC president, Stephan Harbarth, has attracted some media attention, which may indicate that the new and open procedure has had positive spillover effects in this regard.

To what extent are public officeholders prevented from abusing their position for private interests?

10
 9

Legal, political and public integrity mechanisms effectively prevent public officeholders from abusing their positions.
 8
 7
 6


Most integrity mechanisms function effectively and provide disincentives for public officeholders willing to abuse their positions.
 5
 4
 3


Some integrity mechanisms function, but do not effectively prevent public officeholders from abusing their positions.
 2
 1

Public officeholders can exploit their offices for private gain as they see fit without fear of legal consequences or adverse publicity.
Corruption Prevention
8
Despite several corruption scandals over the past decade, Germany performs better than most of its peers in controlling corruption. According to the World Bank’s 2017 Worldwide Governance Indicators, Germany is in the top category in this area, outperforming countries including France, Japan and the United States, but falls behind Scandinavian countries, Singapore and New Zealand. Germany’s overall performance has also improved relative to other countries. In 2017, Germany ranked 7th out of 215 countries compared to 15th in 2010.

The country’s Federal Court of Audit (Bundesrechnungshof) provides for independent auditing of national spending under the terms of the Basic Law (Art. 114 sec. 2). According to various reports, the revenues and expenditures of the federal authorities were in general properly documented.

Financial transparency for office holders is another core issue in terms of corruption prevention. Provisions concerning income declarations by members of parliament have improved, but the required declarations still lack precision. Since 2013, members of the Bundestag have to provide details about any ancillary income in a 10-step income list. Since the last election in 2017, 154 out of 709 members of parliament (22%) declared additional income. Within the FDP parliamentary party, almost every other member (43.8%) has an additional income, while politicians with the highest incomes are members of the CDU. The Greens have the lowest percentage of additional income with only 7.5% of its members of parliament. The current system of parliamentary transparency remains inadequate. Instead, it incentivizes declaring auxiliary income in slices of lesser amounts.

Citations:
World Bank (2018):
http://info.worldbank.org/governance/wgi/index.aspx#reports

https://www.abgeordnetenwatch.de/blog/nebeneinkunfte-2018
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