For a long time now the German labor market has been deep in the throes of a crisis. The search for ways out has become the leading topic of political debate, at the latest since the election year 2002, with the main emphasis centering round concepts for activation programs. These concepts have been under international academic discussion for several years. In some countries they have meanwhile been put into practice, for instance within the scope of the sweeping welfare reform carried out in the United States (U.S.) in the mid-nineties under the slogan “from welfare to work”.

On October 24, 2002, the Second Senate of the Bundesverfassungsgericht (German Federal Constitutional Court) issued its ruling in the Geriatric Nursing Act case. The eagerly expected judgment not only puts an end to the discussion on the Federation's legislative powers in the field of geriatrics, which has occupied German politicians and constitutional scholars since the mid-1980s, when the drop in the number of applicants for geriatric nursing jobs and the steady growth of the elderly population have led to calls for a standardization of the education for geriatric nurses at Federal level. More importantly, the decision brings clarity to the question of the justiciability of the so-called Erforderlichkeitsklausel (“necessity clause”) laid down in Article 72 para. 2 of the Basic Law.

In November, 2000, the Bundesverfassungsgericht (Federal Constitutional Court) surprised the public by holding that the publisher's freedom of expression and press secured by Article 5 of the Grundgesetz (Basic Law) could be violated if the publication of advertisements was prohibited, provided the advertisement is included in the scope of protection itself. At that time shocking advertisements were being heavily discussed in the public. This public debate had been sparked, in part, by the Bundesgerichtshof (Federal Court of Justice) decision prohibiting Stern Magazine's publication of advertisements containing repulsive pictures on behalf of the fashion and lifestyle brand Benetton. The magazine complained to the Federal Court of Justice against this judgment, an appeal that generated the dictum quoted above. In November, 2002, the Federal Constitutional Court had another opportunity to characterize the importance of the freedom of expression and the press in competition law, particularly in the context of the publishing industry.

[Editors’ Comment: As is well known, opposition to a possible war against Iraq has been, within the Western world, among the strongest in Germany. Accurately sensing an overwhelming rejection of any armed intervention in Iraq among the German populace, the Social-Democrat / Green coalition government led by Chancellor Gerhard Schröder and Foreign Minister Joschka Fischer began to take a stance against the forcible disarmament of Iraq and the toppling of the regime of Iraqi President Saddam Hussein during their reelection campaign in the fall of 2002. Since then, and in the face of an ever more undisguised intention on part of the Bush administration to go ahead with a war under all circumstances, Schröder and Fischer have reiterated and reinforced their position, going as far as to rule out any active German participation in an armed intervention even if such was eventually called for by the Security Council. The German government's position has been complicated by the fact that Germany is currently an elected member of the Security Council, and held its rotating presidency in the month of February. Its relations with the United States have been strained on account of the incompatibility of views on how to resolve the Iraq crisis, and Germany has increasingly found itself in an isolated position on the international plane, though it has recently been joined by France and Russia in its attempts to yet avoid a war. The Christian-Democratic and Liberal opposition have alleged that the Schröder government has internationally isolated the country, and, worse, alienated it from its traditionally strongest ally, the United States, in order to distract from its current domestic unpopularity. Be this as it may, it is probably true to say that the great majority of Germans across all sections of society are genuinely strongly opposed to a war. Such pacifist sentiments link back to the peace movement of the late 1970s and 1980s which saw an equally broad cross-section of society march side by side to protest against the military build-up of the Cold War, and which, among others, brought about the Green party itself. Critics have alleged then and now that such radical pacifism is both naive and the wrong lesson to be learned from Germany's omnipresent Nazi-past. Interestingly, the non UN-sanctioned intervention in Kosovo had the strong support of both this just re-elected government, as well as the general public, although the more mainstream adherents of a German ‘no’ to an Iraq intervention point to the very different circumstances in that case.

It is common knowledge that the Internal Market is based on the notion of free movement which, in turn, rests on four basic freedoms (goods, persons, services and capital). The European Court of Justice (hereinafter “Court”) has always interpreted these freedoms broadly while construing the exceptions to these freedoms strictly. This approach was to no small extent based on a presumption of mutual trust and mutual recognition among Member States. It allowed the Court, in many cases, to ensure free movement within the Internal Market without having to await the adoption of harmonised European Community measures.

First of all I want to express my deep gratitude for having been given the honour to speak to you today. A lawyer from Germany addressing the 50th birthday celebration of the Nederlandse Orde van Advocaten - that would have been inconceivable back in 1952 when the Dutch Bar was founded. This inconceivable idea has become reality thanks to the rule of law. After all, the rule of law has been the fundament on which the treaties establishing the European Union of today have been based. Incidentally, the first such treaty, the European Coal and Steel Community Treaty dates of the same year 1952. We all, and in particular we foreign lawyers, should pay tribute to Hugo de Groot (Hugo Grotius), this magnificent Dutch lawyer, who centuries ago has laid the theoretical bases therefor.

On January 15th 1958, the German Bundesverfassungsgericht (Federal Constitutional Court - FCC) pronounced a judgement deemed to be a prime example for the Court's early jurisprudence concerning the scope of fundamental rights in Germany: The Court's famous “Lüth”-decision resulted from a constitutional complaint brought by Erich Lüth, former member of the Hamburg senate.* In the early 1950s, Lüth had called upon film distributors and the public to boycott Veit Harlan's tearjerker movie Unsterbliche Geliebte (Immortal Beloved). Cause for his appeal was Harlan's prominent role in the Nazi propaganda machinery as Goebbels' protégé and director of the movie Jud Süss in 1940, which counts as one of the worst anti-semitic films released during the Nazi regime. After having lost several civil lawsuits, Lüth asserted the violation of constitutional rights. Over six years later, he was to be proved correct: The Federal Constitutional Court ruled that Lüth's complaint was covered by the right to freedom of speech guaranteed in Art. 5 of the German Basic Law (Grundgesetz). The Court stated that the fundamental rights as laid down in the Grundgesetz are not only of importance as subjective rights protecting the individual against state intrusions on the private sphere. As a whole they also unfold an objective dimension in representing society's crucial values. Therefore, they govern the entire legal order - including civil law and private law relations! This was indeed understood as a staggering conclusion with which the Court went far beyond the issue at stake. Since Lüth, German legal discourse characterizes this phenomenon as the third-party or horizontal effect of basic rights (Drittwirkung).