Prohibition of the individual law
The constitution of the Federal Republic of Germany contains in Article 19 the prohibition of the individual law . There it says in paragraph 1: “ Insofar as a basic right can be restricted by law or on the basis of a law according to this Basic Law, the law must apply in general and not only for individual cases. "Exceptions may arise only from the constitution itself, like kind. 14 , para. 3 sentence 2 GG (expropriation laws) and Art. 15 set 1 GG (socialization laws) serving as leges speciales the Art. 19 GG as lex generalis proceed.
Laws as barriers to the exercise of fundamental rights
Fundamental rights secure " the individual's sphere of freedom from interference by public authority ... ". Insofar as the constitution allows interventions in the sphere of freedom, one speaks of “barriers” to the exercise of fundamental rights. One such barrier is the so-called legal reservation . Thus, in Article 8 (2) of the Basic Law, there is the formulation that meetings in the open air can be restricted “by or on the basis of a law”.
The limitation of the legislature
According to the wording, the legislature (the legislature ) could impose such restrictions without limits. Initially, all that is required is a regulation in the form of a law . A corresponding regulation can be made for an indefinite number of cases by a general-abstract legal norm , but theoretically also by individual law . For example, it might be politically desirable for a government to ban demonstrations in a particular political situation . The consequence for the sphere of freedom, which is supposed to guarantee the freedom of assembly , would be a severely restricted legal protection against a law compared to a ban on assembly through an administrative act (cf. § 15 Assembly Act ). In order to prevent misuse, there are therefore restrictions on the barriers, so-called “barrier barriers”. One of these “barriers” is laid down in Article 19 (1) of the Basic Law. Here the legislature is obliged to formulate laws restricting fundamental rights in such a way that they apply “in general and not just for individual cases. "
On the one hand, this prevents the legislature from regulating individual cases by law, which, according to the doctrine of the separation of powers, basically falls within the remit of the administration (the executive branch ) and the judiciary (the judiciary branch ) . In addition, however, it also prevents the requirement of equal treatment from Art. 3 GG from being impaired. An individual case may be the reason for a legal regulation, but the law must not aim to regulate this individual case only. The Federal Constitutional Court also understands a specific group of specific cases as an individual case. Laws restricting fundamental rights must therefore be formulated as "abstract general" regulations.
Article 5, Paragraph 2 of the Basic Law contains a special legal regulation , according to which the freedom of opinion and freedom of the press may only be restricted by general laws .
An example from case law
An example of the case law of the Federal Constitutional Court on this subject. In the underlying case, the Federal Constitutional Court had to assess, among other things, whether a regulation in the Montan Co-Determination Protection Act is compatible with Article 19 (1) of the Basic Law. Under paragraph 109 et seq. is it [called:
- " Art. 19, Paragraph 1, Clause 1 of the Basic Law prohibits laws that restrict fundamental rights and that are not general but only apply to individual cases. The requirement that the law has to be general is fulfilled if, due to the abstract version of the legal facts, it cannot be foreseen how many and which cases the law will apply ..., if not just a single occurrence of the intended Legal consequences are possible ... The fact that the legislature has a number of specific cases in mind, which it takes as the occasion for its regulation, does not give it the character of an individual law, if it is suitable according to the nature of the facts in question, indefinitely many more cases to regulate. "
- " According to these principles ... [here follows the legal provision to be assessed] is not an individual law. Rather, it is a 'cause law' in the aforementioned sense. The reason for the regulation gave the legislature specific cases in which it was facing the imminent departure of certain group parent companies from the coal and steel co-determination. However, the regulation is formulated abstractly and relates to a number of companies that were not finally determined at the time of its adoption ... A hidden individual law could therefore only exist if such future cases of application were excluded from the outset. "
Individual evidence
- ↑ cf. BVerfG, judgment of May 7, 1969 - 2 BvL 15/67
- ↑ BVerfG, judgment of March 2, 1999, Az. 1 BvL 2/91; BVerfGE 99, 367 - Co-determination in the coal and steel industry.
